KIM v SENSATIONELL (ZIMBABWE) (PVT) LTD 2016 (2) ZLR 188 (H)

Flynote

Company: " liquidation " application for " grounds " "fair and equitable" " no alternative remedy available " when company should be wound up on such grounds

Practice and procedure: " affidavit " supporting affidavit " supplementary affidavit

Headnote

The applicant filed an application for the winding up of the respondent company on the grounds that it was fair and equitable to do so. The applicant alleged that the respondent's shares were held by one Park who had opened a competing company in Zimbabwe and another in Zambia. The applicant sought to file an additional affidavit deposed to by his wife as a further opposing affidavit but his wife had not filed any founding affidavit. The applicant's wife had titled her affidavit "answering affidavit" although, because she had filed no founding affidavit, the court found that the affidavit was improperly before it.

Held, that in considering whether it ought to allow the admission of such a further affidavit, the court ought to consider whether the other litigants would be prejudiced by the contents of the supplementary affidavitwhich was proposed to be filed. The guidance given was that the court should be loath to admit any further affidavits, especially where they seek to introduce new evidence which would be prejudicial to the other party, where the prejudice could not be alleviated by an appropriate order as to costs.

Held, further, that in applying the concept of "fair and equitable" as envisioned by s 206(g) of the Companies Act, one should consider the analogy of partnership and the concept is strictly confined to those small domestic companies in which, because of some arrangement, express, tacit or implied, there exists between the members in regard to the company's affairs a particular personal relationship of confidence and trust similar to that existing between partners in regard to the partnership business. The applicant did not aver in his papers that the respondent company qualified as one that was amenable to the application of the deadlock principle, nor was it averred by that the parties were in a "quasi partnership".

Held, further, that it was not just, or equitable, to wind up the respondent company at the instance of the applicant who was only a 30 percent shareholder, in the absence of cogent evidence of wrongdoing on the part of the majority shareholder. Other remedies lay at the applicant's disposal in terms of the Companies Act.