interest. Clause 5.3 of the association agreement provided that upon the death of a member shares shall be bequeathed according to the testamentary dispositions ‘his made by the deceased member’. Legal representatives of the respondents wrote a letter to the agent of the executor to inform the executor that they exercised their right in the association agreement to purchase the interest of the deceased in Laconia CC. They further indicated that they would object to a liquidation and distribution account transferring the membership interest of the deceased to any person other than the respondents. In this regard, the respondents referred to section 35 of the Close Corporation Act, 26 of 1988 (the Act) in terms whereof their consent would be necessary to transfer the deceased’s interest in the corporation to someone else. As Thomas Wyss (in both his capacities) insisted that he is entitled to the membership of the deceased member’s interest, the matter ended up in the High Court. Thomas Wyss in both his capacities brought an application in that court to declare the requirement contained in s 35 of the Act referred to above unconstitutional, declaring that he personally is entitled be the full and unfettered owner’ of the deceased’s interest in ‘to the corporation and directing that the deceased’s interest be transferred to him and that this position be reflected in the liquidation and distribution account of the estate. The respondents’ stance in opposition to the relief claimed was that they will abide to the order of the court in respect of the question of the constitutionality of s 35 of the Act, but until it was declared to be unconstitutional they would rely on it. They also maintained the prayer to be transferred the and unfettered ownership’ of the ‘full membership was misconceived as the membership does not confer such benefit but only
interest. Clause 5.3 of the association agreement provided that upon the death of a member ‘his shares shall be bequeathed according to the testamentary dispositions made by the deceased member’. Legal representatives of the respondents wrote a letter to the agent of the executor to inform the executor that they exercised their right in the association agreement to purchase the interest of the deceased in Laconia CC. They further indicated that they would object to a liquidation and distribution account transferring the membership interest of the deceased to any person other than the respondents. In this regard, the respondents referred to section 35 of the Close Corporation Act, 26 of 1988 (the Act) in terms whereof their consent would be necessary to transfer the deceased’s interest in the corporation to someone else. As Thomas Wyss (in both his capacities) insisted that he is entitled to the membership of the deceased member’s interest, the matter ended up in the High Court. Thomas Wyss in both his capacities brought an application in that court to declare the requirement contained in s 35 of the Act referred to above unconstitutional, declaring that he personally is entitled ‘to be the full and unfettered owner’ of the deceased’s interest in the corporation and directing that the deceased’s interest be transferred to him and that this position be reflected in the liquidation and distribution account of the estate. The respondents’ stance in opposition to the relief claimed was that they will abide to the order of the court in respect of the question of the constitutionality of s 35 of the Act, but until it was declared to be unconstitutional they would rely on it. They also maintained the prayer to be transferred the ‘full and unfettered ownership’ of the membership was misconceived as the membership does not confer such benefit but only
Wyss%20Thomas%20and%20Another%20v%20Hungamo%20Leevi%20and%206%20Others%20(SA%2060-2016)%20[2018]%20NASC%20(23%20April%202018).docx