IN the HIGH COURT of SOUTH AFRICA NORTH WEST PROVINCIAL DIVISION, MAHIKENG CASE NO: 672/15 in the Matter Between

IN THE HIGH COURT OF SOUTH AFRICA NORTH WEST PROVINCIAL DIVISION, MAHIKENG CASE NO: 672/15 In the matter between:

GEORGIOU NICHOLAS N O 1ST APPLICANT (In his official capacity as co-trustee of the N Georgiou Trust)

MAUREEN LYNETTE GEORGIOU N O 2ND APPLICANT (In her official capacity as co-trustee of the N Georgiou Trust)

JOSEPH REYNOLDS CHEMALY N O 3RD APPLICANT (In his official; capacity as co-trustee of the N Georgiou Trust) and

CENTRAPROPS 50 (PTY) LTD RESPONDENT t/a BEEFMASTER

JUDGMENT

Landman J:

[1] Georgiou Nicholas N O, Maureen Lynette Georgiou N O and Joseph Reynolds Chemaly N O, the applicants, apply for the liquidation of Centraprops 50 (Pty) Ltd trading as Beefmaster.

[2] This application served in motion court and I reserved judgment because of my concerns about the jurisdiction of this court to entertain the application.

[3] Item 9 of Schedule 5 of the Companies Act 71 of 2008 (the New Act) provides that despite the repeal of the Companies Act 61 of 1973 (the Old Act), until the date determined in terms of item 9(4), Chapter 14 of the Old Act continues to apply with respect to the winding-up and liquidation of companies.

[4] Section 12 of the Old Act deals with the jurisdiction of courts and provides that:

‘(1) The Court which has jurisdiction under this Act in respect of any company or other body corporate, shall be any provisional or local division of the High Court of South Africa within the area of jurisdiction whereof the registered office of the company or other body corporate or

the main place of business of the company or other body corporate is situate.’

See also section 344 read with the definition of ‘court’ in the Old Act.

[5] The registered office of the respondent is situated at 104 Peter Mokaba Avenue, Potchefstroom, North West Province. The applicants aver that this address falls within the jurisdiction of this court. This is not the case as Mr Scholtz, who appeared for the applicants, is aware. The jurisdiction of the North West High Court does not coincide with the territory of the North West Province. Potchefstroom, a town in the North West Province falls under the jurisdiction of the Gauteng North Division of the High Court.

[6] Mr Scholtz referred me to a letter in the file addressed by the applicant’s attorney to the Registrar of this court dated 8 May 2015. It indicates that an application for liquidation of the respect served in the North Gauteng High Court and was transferred by that Court to this Division. It continues to say that as the file had not been received from that court, the Registrar of this court is requested to issue a new case number as the applicants wish to proceed on an urgent basis. Fresh papers were filed.

[7] Mr Scholtz submitted that although the North Gauteng High Court has jurisdiction, I should nevertheless entertain the application because the respondent’s attorney has provided a letter dated 28 August 2015 in which the

3 applicant’s attorney is informed that the respondent will not oppose the application and that his letter may be used for this purpose. Mr Scholtz submitted that this letter may be construed as consent to the jurisdiction of this court. In my view the letter does not constitute consent to jurisdiction and even if it did it would not be sufficient. See Du Preez v Philip-King 1963 (1) SA 801 (W) at 803A-H) and Girdwood v Theron 1913 CPD 859 at 862.

[8] No other basis is raised in the papers on which this court would have jurisdiction. Without jurisdiction this court may not consider the application.

[9] Section 27 of the Superior Courts Act 10 of 2013 caters for a situation such as this one. It provides that:

‘(1) If any proceedings have been instituted in a Division or at a seat of a Division, and it appears to the court that such proceedings-

(a) should have been instituted in another Division or at another seat of that Division; or

(b) would be more conveniently or more appropriately heard or determined-

(i) at another seat of that Division; or

(ii) by another Division,

that court may, upon application by any party thereto and after hearing all other parties thereto, order such proceedings to be removed to that other Division or seat, as the case may be.

(2) An order for removal under subsection (1) must be transmitted to the registrar of the court to which the removal is ordered, and upon the receipt of such order that court may hear and determine the proceedings in question.’

[10] I understood Mr Scholtz to say that if I find that this court has no jurisdiction to hear the application I should transfer the matter to the appropriate court. It is true that the respondent has not advanced any submissions regarding a transfer but as it does not intend to oppose there is no point in seeking its submissions. In my view the application must be transferred urgently to the Gauteng North Division together with a copy of this judgment.

Order

[11] I make the following order:

1. This matter is to be removed to the North Gauteng Division of the High Court sitting at Pretoria/Tshwane. 2. The Registrar of this court shall transmit this judgment and order and the contents of the file in this matter to the Registrar of the North Gauteng Division of the High Court sitting at Pretoria/Tshwane as a

matter of urgency.

AA Landman Judge of the High Court

APPEARANCES:

Date of hearing: 10 September 2015

Date of Judgment: 16 September 2015

Counsel for the Applicant: Adv Scholtz Instructed by: Van Rooyen Tlhapi Wessels Inc