Rantsoareng v Tshem and Another (1404/2022) [2022] ZAFSHC 76 (19 April 2022)

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[2022] ZAFSHC 76
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Rantsoareng v Tshem and Another (1404/2022) [2022] ZAFSHC 76 (19 April 2022)

IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
Of Interest to other Judges:
Circulate to Magistrates:
NO
NO
NO
Case No:
1404/2022
In the matter
between:
PALESA PRETTY
RANTSOARENG
Applicant
and
PERSEVERENCE
NONTYATYAMBO TSHEM
1
st
Respondent
HAMBA NATHI
TRAVEL (PTY)
LTD
2
nd
Respondent
[Registration
number:  2003/028991/07]
NEDBANK
LIMITED
3
rd
Respondent
CORAM
:
DAFFUE J
HEARD
ON
:
14 APRIL 2022
DELIVERED
ON
:
19 APRIL 2022
This judgment was
handed down electronically by circulation to the parties’
representatives by email, and release to SAFLII.
The date and
time for hand-down is deemed to be 14h30 on 19 APRIL 2022.
I
INTRODUCTION
[1]
Two directors of and shareholders in a company are involved in an
unsavoury feud.  The
one intends to launch application
proceedings to declare the other a delinquent director in terms of
the Companies Act.
[1]
As a
precursor an
interim
interdict is sought on an urgent basis to
inter
alia
prohibit the
“
delinquent”
from
transacting on the company’s one bank account.  Apparently,
these former friends and business associates do not see eye
to eye
anymore.  The court is called upon to decide whether a case has
been made out for
interim
relief.
II
THE PARTIES
[2]
The applicant is Me Palesa Pretty Rantsoareng, a major businesswoman
residing
in Bloemfontein.  Adv R van der Merwe appeared for her
on instructions of Blair Attorneys.
[3]
The 1
st
respondent is
Me Perseverance Nontyatyambo Tshem, a businesswoman residing in
Centurion, Gauteng Province. Adv M Vimby appeared for
her on
instructions of DT Mokwena Attorneys, which firm until recently acted
as the 2
nd
respondent’s attorneys.
[4]
The 2
nd
respondent is Hamba Nathi Travel (Pty) Ltd, a company with its
registered address in Bloemfontein.  It is not surprising that
this company neglected to oppose the application, firstly because no
relief is sought against it, but more importantly, no valid
resolution could possibly be obtained to oppose as will soon become
clear.  The company shall herein later interchangeably be
referred to as
“
Hamba
Nathi”
or
“
the
company.”
[5]
The 3
rd
respondent is Nedbank, a commercial bank and
registered financial services provider.  Nedbank does not oppose
the application.
III
THE RELIEF CLAIMED
[6]
The following relief is claimed as is apparent from the notice of
motion
which is quoted
verbatim:
“
1.
That the Uniform Rules of Court relating to service and process be
dispensed with in order that this
application be heard as one of
urgency in terms of Rule 6(12);
2.
That the First Respondent be interdicted and restrained
pendente
lite
from transacting in any way on the
Second Respondent’s Nedbank business bank account, with account
number
1171093071
and
on the second Respondent’s Nedbank banking profile with electronic
profile number
3010009519
;
3.
That the First Respondent be ordered and directed
pendente lite
to provide to the Applicant the access codes to the Nedbank
electronic banking profile of the Second Respondent with electronic
profile
number
3010009519
and/or the Nedbank business account
with account number
1171093071
within 24 (twenty-four) hours
from date of this order;
4.
In the event that the First Respondent fails to comply with the
aforesaid order, that the Third
Respondent be authorized to provide
to the Applicant the access codes to the Nedbank electronic banking
profile of the Second Respondent
with electronic profile number
3010009519
and/or Nedbank business account with account number
1171093071
,
alternatively
to add the Applicant as a
user electronic banking profile of the Second Respondent with
electronic profile number
3010009519
and/or Nedbank business
account with account number
1171093071
with her own access
code(s);
5.
That the order in paragraph 2, 3 and 4 operate as an interim
interdict with immediate effect
pending the finalisation of the
application to declare the First Respondent a delinquent in terms of
the Companies Act, Act 71 of
2008, same to be instituted within 14
days of this order;
6.
In
the alternative
to paragraphs 2, 3 and 4 above, that the First Respondent be ordered
and directed to sign the resolution attached to the Applicant’s
founding affidavit as Annexure FA22 within 24 (twenty-four) hours
from date of this order and to provide a copy of such signed
resolution
to my attorney via electronic mail at
bruce@blairattorneys.co.za
;
7.
That the First Respondent be ordered to pay the costs of this
application,
alternatively
, that the First Respondent,
together with any other Respondents who oppose this application be
ordered to pay the costs of the application
jointly and severally,
the one to pay the other(s) to be absolved.”
[7]
It should be noted already at this stage that the application was
issued
on 29 March 2022, although the notice of motion was signed
four days earlier on 25 March.  The applicant deposed to her
founding
affidavit as late as 28 March 2022.  The application
was enrolled for 7 April 2022 and the 1
st
respondent was
directed, in the event of electing to oppose, to file her answering
affidavit on/or before 4 April 2022.  The
applicant must have
been advised by her legal team that she intended to approach the only
judge on duty during the recess and that
the application would on all
probabilities be opposed, bearing in mind the hostilities evident
from the earlier correspondence.
The sheriff’s return of
service has not been filed, but notice to oppose was given on Friday
1 April.  Therefore, the 1
st
respondent was allowed a
day or at most two or three court days to file her answering
affidavit.  Notwithstanding the pressure
exerted on the 1
st
respondent, the applicant afforded herself the luxury to serve and
file her replying affidavit three days later.  It was served
on
the 1
st
respondent’s attorney at 08h40 on 7 April 2022 –
the date on which the application was set down for hearing - and the
original
affidavit was brought to me as I was on my way to the
unopposed motion court that started as usual at 09h30.  There
was no time
to read it.  I shall hereunder deal with this aspect
in more detail.
IV
THE DEFENCES
[8]
The alleged urgency is attacked.  It is
the 1
st
respondent’s case that any urgency was at best self-created.
It is accepted in the 1
st
respondent’s heads of argument that the issue of urgency might have
become moot insofar as the application was postponed on 7 April
to
the opposed motion court roll of 14 April 2022.  Although I
decided after completing the unopposed motion court roll at about
16h30 to postpone the application as I had no time to read the
replying affidavit and eventually listened to arguments on the
merits,
this defence needs to be considered, even if it may only have
a bearing on costs.  Fact is that the applicant received the
so-called
forensic report from the internal auditor as long ago as
November 2021.  This was reported on 22 November 2021 to the
applicant’s
attorney at the time.
[2]
As long ago as 5 November 2021 the applicant was of the view that the
1
st
respondent was in breach of her fiduciary duties as Hamba Nathi’s
director.
[3]
[9]
The applicant raised the issue of her inability to
transact on the company’s online
banking platform with Nedbank for
the first time on 15 March 2022.
[4]
The 1
st
respondent is not in a position to provide an access code to the
applicant for the reasons mentioned hereunder.  Since 20
September
2021 she did not and could not transact on that
account.
[5]
The applicant
failed to explain how she or the other employees of Hamba Nathi
managed to transact on the Nedbank account from
September 2021 to
February 2022.  In any event, there is no doubt that Hamba Nathi
has been receiving its bank statements from
the bank regularly.
[6]
[10]
The 1
st
respondent objected to the hearsay evidence presented and the failure
to explain why confirmatory affidavits by the relevant witnesses
have
not been filed.
[7]
The most glaring missing evidence is that of the internal auditor, Ms
Mbali Zondi, who allegedly found serious irregularities
in her
forensic audit report.
[11]
The 1
st
respondent is not responsible for the changing of the company’s
access code which allows electronic banking on the Nedbank account.
Applicant’s allegation to that effect is untrue.  The 1
st
Respondent handed over several company items, including a laptop and
cellphone, to the applicant on Sunday 19 September 2021.
She
explains that the cellphone is required to transact electronically on
the Nedbank account as an OTP number is received on that
cellphone
every time a transaction is to be made.
[8]
The problem, so it is alleged, was apparently caused by applicant or
other employees of Hamba Nathi.  Instead of relying
on the
evidence of company employees like Boipelo Moamogoa, the financial
manager, and Nomfundo Skosana, the head of debtors, to
confirm the
applicant’s evidence, this was not done.  In fact, Nomfundo
Skosana, who left the company’s service since then,
deposed to a
confirmatory affidavit in support of the 1
st
respondent’s version.
[12]
It is also contended that the application is premature if cognizance
is taken of the
shareholders’ agreement which provides for the
calling of a meeting of the Board of Directors to deal with company
matters.
These meetings must be held every six weeks, but the
applicant has failed to attend meetings notwithstanding the 1
st
respondent’s insistence.
[9]
There is no doubt that the 1
st
respondent’s request for a Board meeting to be held has been
rejected.
[10]
[13]
Over and above the defences raised and mentioned in the previous
paragraphs, the 1
st
respondent also dealt with the merits of the accusation that she had
committed fraud against Hamba Nathi and therefore is guilty
of
breaching her fiduciary duties.  In fact, she is accusing the
applicant of utilising company funds for the benefit of her
other
businesses.
[11]
It is
emphasised by the 1
st
respondent that the document relied upon by the applicant as a
forensic audit report is not signed and confirmed under oath to be
correct by its alleged author.
V
COMPANY DIRECTORS’ FIDUCIARY DUTIES
[14]
There is no doubt that company directors have to comply with their
fiduciary duties.
This has always been the case in our common
law and our present statute, the Companies Act, is a partial
codification of these duties.
[12]
The courts are empowered to declare a director a delinquent director
if the requirements of the legislation are met.
[13]
Obviously, the objective is to protect shareholders and other
stakeholders such as creditors and employees.
[15]
Although clear transgressions by directors should require the urgent
attention of a
court, it is not necessary to deal with this aspect
any further, bearing in mind the conclusion arrived at
in
casu
.
VI
REQUIREMENTS FOR
INTERIM
RELIEF
[16]
The requirements to be met in order to achieve success in an
application for
interim
relief
are well known.  It is unnecessary to delve into these in any
detail.
[14]
I shall
consider the requirements in some detail when I evaluate the
evidence.  It must be reiterated that an
interim
interdict is a court order preserving or restoring the
status
quo
pending determination of the parties’ rights.  It does not
involve a final determination of these rights.
[15]
VII
EVALUATION OF THE EVIDENCE AND COUNSEL’S SUBMISSIONS
[17]
It is sometimes required to rely on hearsay evidence when a court is
approached on
the basis of urgency.  Court are often sympathetic
to applicants in urgent matters.  However, it is required of the
applicant
to explain exactly why the hearsay evidence should be
allowed.  It
must
be clearly stated that the allegations of fact are true to the best
of the applicant’s information, knowledge and belief and
the basis
of such knowledge or belief must be put on record.  It is trite
that the failure to state the source of the information
or grounds of
belief in the founding affidavit is an irregularity that cannot be
cured in the replying affidavit.  Even if the
applicant complies
with these requirements, a court is not bound to accept the hearsay
in the exercise of its discretion.  In
any event, secondary
evidence pertaining to documents is inadmissible.  The facts
in
casu
are also totally distinguishable from those in
Lagoon
Beach Hotel (Pty) Ltd v Lehane NO
[16]
and therefore
my approach to the hearsay relied upon by the applicant differs as
set out hereunder.
[18]
Often when an applicant approaches the court based on
alleged urgency and provides for truncated
time frames, the
respondent is put under pressure to such an extent that it is not in
a position to deal exhaustively with the applicant’s
averments.
In casu
, the applicant, who had ample time to prepare a proper
affidavit, approached the court during the recess with an undercooked
application
based on alleged urgency.  A good argument could be
made out that the applicant did not make out a proper case to be
entitled
to urgent relief.  Substantial redress could have been
achieved by launching the application earlier and providing the
normal
time frames afforded by the rules.  Having said this and
as mentioned above, the application was postponed to the opposed roll
and insofar as the 1
st
respondent did not seek more time
to file a supplementary answering affidavit, there is just no reason
to strike the matter from
the roll at this stage due to lack of
urgency.
[19]
I am mindful of the manner how
interim
interdicts are to be evaluated.  Unlike in the case of opposed
motions for final relief, the court is entitled to rely on the
applicant’s version together with any facts set up by the
respondent which the applicant cannot dispute and to consider
whether,
bearing in mind the inherent probabilities, the applicant
could on those facts obtain final relief eventually.  Then the
court
considers the facts set up in contradiction by the respondent
and if serious doubt is cast upon the applicant’s version, the
applicant
cannot succeed.  Mr Vimbi’s reliance on the
Outa
judgment
[17]
is not
justified.  In that case the Constitutional Court cautioned
courts against granting interdicts that may trespass upon
the terrain
of authorised state functionaries which is not the case
in
casu
.
The court stated that although courts have the power to grant
restraining orders in such instances they shall
“
not
readily do so, except when a proper and strong case has been made out
for the relief and, even so, only in the clearest of cases.”
[20]    It
is the applicant’s contention that the 1
st
respondent, her co-director, co-shareholder and former friend, has
not only unlawfully utilised company funds in an amount of
R179 000.00
during one weekend in September 2021 to pay for her
40
th
birthday party in Cape Town,
[18]
but that she has as a matter of fact unlawfully utilised company
funds to the tune of R19 851 057.00 – nearly twenty
million Rand – for personal expenses.  Although this is not
articulated, but if the applicant is to believed, the 1
st
respondent has stolen this money, or put more mildly, has defrauded
the company with the aforesaid amount.  No court will accept
that somebody is a thief or fraudster without proper proof.  The
say-so of the applicant is just not good enough, even bearing
in mind
the test applicable to the adjudication of applications for
interim
relief.
[21]
The irony of the applicant’s version is that she personally did not
do the investigation, but
relies on a document which is incomplete.
It does not contain a heading and not even the name, not to mention
the signature,
of the author.
[19]
The document in the court file starts off with the name of a
passenger, one Matholeni Simanga.  Apparently, several pages
thereof did not find the way to the court file.  If the indexing
and pagination of the court bundle are considered, undertaken
by the
applicant’s attorney, even her legal team did not have the complete
document.  The document closes with some figures,
dealing
inter
alia
with “
bad
debts for all the years we have had
”
in the amount
of over R7m and a total of R19 074 274.32.  The total
differs from the amount mentioned by the applicant
as reflected above
and a reference to
“
bad
debts”
cannot
be equated to personal use of company funds as the applicant wants
the court to believe.
[22]
There is no explanation from the internal auditor, either under oath,
or at all.  The 1
st
respondent and the court were in a sense ambushed with a document
containing a lot of inscriptions while the alleged author did not
even care to affix his/her signature thereto.  More importantly,
the author failed to confirm the
“
report”
under oath, either in support of the applicant’s
founding affidavit, or in response to the answering affidavit when
the 1
st
respondent
pointed out this serious neglect.  What do we have attached to
the replying affidavit? An email from one Mbali to
the applicant
dated 1 April 2022, the last portion which reads as follows:
“…
.
regarding Mrs. Persi Tshem’s case regarding the court date, I will
avail myself to can come and testify.”
This
is just not good enough.  Mr Van der Merwe’s valiant attempts
to persuade me to accept the hearsay evidence did not find
favour.
The applicant failed to
state that the allegations of fact relied upon are true to the best
of her information, knowledge and belief and also failed to state
the
basis of such knowledge or belief.
Therefore, I disregard any hearsay evidence relating to company funds
allegedly misused.  Even if I could accept the applicant’s
hearsay version, it is common cause that the 1
st
respondent is since September 2021 not in a position to transact on
the Nedbank account in order to transfer company funds to her
or any
other account.  Interdict procedure is not utilized to deal with
a
fait accompli.
The
applicant has failed to make out a case for an interdict in
accordance with paragraph 2 of the notice of motion; however, I shall
later herein return to this issue.
[23]
The 1
st
respondent cannot provide the applicant with any
access codes.  This has been explained.  This version is in
line with
the inherent probabilities. There is no need to repeat
myself and I merely refer the reader to what I stated above.  If
the
applicant or the other employees of Hamba Nathi mentioned in the
papers did not have access codes from September 2021, the applicant
would surely have taken action much earlier.  It is disingenuous
of the applicant to suggest that the 1
st
respondent could
have interfered with the access code(s) and then to seek relief
against her in that regard as is evident from paragraph
3 of the
notice of motion.  Such relief should not be granted.
[24]
A simple request to the relationship manager of the bank
would have provided an answer as to what
went wrong.  This was
not done
ex
facie
the founding affidavit, although it appears as if the bank prevented
the use of the existing access code(s) on receipt of the applicant’s
correspondence and her request that the 1
st
respondent be removed as a signatory to the bank account.
[20]
This occurred already in January 2022.  If Hamba Nathi cannot
access the Nedbank account on line, as its employees could
have done
from September 2021 till at least February 2022, the company’s
directors should in principle resolve the matter.
This is
easier said than done as
in
casu
we are faced with a dilemma. In the normal run of the mill case no
formal meeting of the Board of Directors would be required as
the
problem could be solved easily.
[25]
In principle the directors must act in terms of the shareholders’
agreement notwithstanding
differences.  The 1
st
respondent stated under oath that in the event of the applicant
having a problem with her personally, she would be prepared to
nominate
an alternative director in accordance with the shareholders’
agreement.
[21]
Having
said this, it is common cause that the directors of Hamba Nathi are
at loggerheads and cannot see eye to eye.
One does not have to
be an Einstein to predict the outcome of their negotiations.
Meetings of the Board of Directors – there
are only two directors -
may be held, either formally or informally, as provided for in the
shareholders’ agreement in order to
resolve company issues.
In the event of a failure to obtain a unanimous decision, the
agreement provides for a process to resolve
the deadlock.  It
may be argued that if the applicant was prepared to adhere to the 1
st
respondent’s request in this regard, this aspect might well have
been settled by now.  On such assumption there would be
insufficient
reason for the court to at this stage interfere with the
internal affairs of Hamba Nathi.
[26]
Mr Vimbi submitted that the application had been brought
prematurely.  He insisted that the
applicant should have adhered
to the 1
st
respondent’s requests for a Board meeting to be held.
According to him it is
“
mind boggling that the
Applicant flatly refuse to attend the Board Meeting whereby her
appointment as the employee of the Second Respondent
can be
discussed, the resolution to give her access to the Nedbank account
could also be taken.”
I do not agree for
the reasons advanced in the previous paragraph.  The animosity
between the parties does not allow for mature
discussions in order to
arrive at a resolution which will benefit the company.
[27]
I find it difficult to understand why the 1
st
respondent does not want to agree to a proposition as reflected in
paragraph 4 of the notice of motion, to wit that the directors
of
Hamba Nathi authorise Nedbank to provide an access code to the
responsible person in the company’s employ in order to allow
the
company to transact on the account.  This seems to be an
obstinate approach.  She confirms that she is not Hamba Nathi’s
travel manager anymore and is unable to transact on the Nedbank
account.  This has been the position since September 2021.
[22]
In this regard I accept that the applicant believes that she is in
possession of sufficient facts to launch proceedings to
declare the
1
st
respondent a delinquent director.  Furthermore, the business of
Hamba Nathi must continue in the absence of the 1
st
respondent who is not involved in the day-to-day running of the
business.  It struck me that the applicant’s averment that
the
1
st
respondent had started a business under the name of Hamba Lwethu
(Pty) Ltd which is competing unlawfully with Hamba Nathi has been
met
with a bare denial.
[23]
In fairness to the 1
st
respondent, the applicant did not place evidence before the court to
substantiate the conclusion, but I would have expected more
than a
denial from the 1
st
respondent in the circumstances of this case.
[28]
The applicant relies on an allegation that the Premier Hotels have
put a hold on the company’s
account due to its failure to settle
the account.  Instead of attaching proof hereof, she relies on a
demand for immediate payment
from another supplier.  This demand
was supposed to be attached as annexure “FA17” to the founding
affidavit but this was
not the case.  The annexure, being a
statement of Protea Hotels dated 1 March 2022 merely indicating the
creditor’s terms
of payment, was eventually attached to the
replying affidavit.  It is not a demand for immediate payment as
alleged.   Notwithstanding
the improper explanation with
reference to a document that does not support the applicant’s
version, I accept that any business
that does not have access to its
bank account will be hamstrung and this may well lead to
dissatisfaction amongst unpaid creditors
and the eventual demise of
the business.
[29]
Mr Vimbi submitted that the applicant failed to prove
any of the four requirements for
interim
interdicts.
Although I agree with him that no case has been made out for the
relief in paragraph 3 of the notice of motion,
I am satisfied that
the applicant succeeded to prove a
prima facie
right, although
open to some doubt, in respect of the
interim
relief contained
in paragraph 4 of the notice of motion. Although the applicant has
not made out a case for the relief claimed in
paragraph 2, I am
prepared to grant relief based on the evidence of the 1
st
respondent.  She made it clear in several paragraphs of her
answering affidavit that she has no intention to transact on the
Nedbank account of Hamba Nathi.  In my view, and her counsel was
constrained to agree, there is no reason why she should not
be
interdicted from transacting on the account
pendente lite
.
[30]
I accept that Hamba Nathi directly, and the applicant as
director and majority shareholder indirectly,
may face problems
pertaining to the inability to pay creditors immediately insofar as
company funds in the Nedbank account are frozen
for all practical
purposes.  The creditworthiness of the company may well be
seriously affected and in the competitive world
we live in it may
have disastrous consequences.  The applicant who is apparently
trying to steer the ship and who is a majority
shareholder will
suffer as a result.  A reasonable apprehension of irreparable
harm has been proven if the
status quo
is allowed to
continue.
[31]
Whose balance of convenience must be considered?  The
applicant and the 1
st
respondent are both directors of and
shareholders in Hamba Nathi.  If the Nedbank account cannot be
utilised, the company will
most probably suffer as a result, but also
the shareholders indirectly.  The application was not and could
not be brought by
the company.  If the application is dismissed
in toto
, the applicant as the majority shareholder stands to
suffer more than the 1
st
respondent who is in any event
not involved with the day-to-day business of Hamba Nathi anymore.
No harm can be caused to the
1
st
respondent if the
interdict is granted.  The whole purpose is to carry on with the
normal business activities of the company,
also ultimately to the
advantage of the 1
st
respondent.  There is also the
real possibility that the 1
st
respondent is trying to hold
the applicant and the company at ransom in order to provide a
springboard for her new venture which
according to the applicant is
in direct competition with Hamba Nathi.  A dismissal of the
application will assist the new venture
to come off the ground
successfully, whilst the applicant maintains that the 1
st
respondent, in being involved therein, is in breach of her fiduciary
duties.
[32]
There is no satisfactory alternative remedy in order to settle
the issue of access to the company’s
account with Nedbank.  No
doubt and contrary to what the 1
st
respondent stated under oath, confirmed by her counsel in argument,
directors’ meetings will not solve the problem whilst the
mechanisms
provided for in the shareholders’ agreement will take up
valuable time with no reasonable expectation of a resolution.
In
any event, the 1
st
respondent has already subtly threatened that applicant may not be
authorised to transact on the bank account as a necessary consequence
of such meetings.
[24]
VIII
CONCLUSION
[33]
In conclusion I am satisfied that appropriate orders in
line with paragraphs 2, 4 and 5 of the
notice of motion should be
granted.  Notwithstanding the applicant’s partial success, I
am not prepared to grant any costs
in her favour.  The
application was not only half-baked, but it was brought based on
self-created urgency.  In exercising
my discretion and to show
my discontent for the manner in which this application was brought, I
shall not follow the general rule
in awarding costs to the successful
party.  Having said this, the 1
st
respondent could
have prevented a fiercely contested application by consenting to the
relief which I intend to grant.
IX
THE ORDERS
[34]    The
following orders are issued:
1)
The 1
st
respondent is interdicted
pendente lite
from transacting in any way on the 2
nd
respondent’s
Nedbank business bank account with account number 1171093071 and on
the 2
nd
respondent’s Nedbank banking profile with
electronic profile number 3010009519.
2)
Nedbank, the 3
rd
respondent, is directed and authorised to
provide the applicant with the access code(s) to the Nedbank
electronic profile number
3010009519 of the 2
nd
respondent, Hamba Nathi (Pty) Ltd, and/or the 2
nd
respondent’s Nedbank business account number 1171093071.
3)
The orders in paragraphs 1 and 2 above shall operate as
interim
interdicts with immediate effect pending finalization of the
applicant’s application to declare the 1
st
respondent a
delinquent director in terms of the
Companies Act, 71 of 2008
which
application shall be instituted within 10 days from the date of this
order.
4)
Each party shall be responsible for their own costs of the
application.
JP DAFFUE J
On behalf of the
Applicant:          Adv
R Van Der Merwe
Instructed
by:
Blair Attorneys
BLOEMFONTEIN
On behalf of the
Respondent:      Adv M Vimbi
Instructed
by:
Matsepes Inc
BLOEMFONTEIN
[1]
71 of
2008 and see paragraph 5 of the notice of motion as well as numerous
paragraphs in the founding affidavit
,
inter alia
para 6, pp 32 - 37
[2]
Answering affidavit: para 44, p 211
[3]
Ibid
:
paras 17 & 18, p 208
[4]
Ibid
:
para 19, 208
[5]
Ibid
:
paras 23-25, p 208 & 209
[6]
Ibid:
para 83, p 216 & para 214, p 233
[7]
Ibid:
para 8, p 206, para 153, p 224, paras 162-165, p 226
[8]
Ibid
:
para 178, p 228
[9]
Ibid
:
para 77, p 215, paras 217 & 218, p 233, para 228, p 234, para
235, p 235 as well as the shareholders’ agreement, annexure
“FA2”,
pp 70 - 106
[10]
Letter dated 16 February 2022 on p 171 and response at p 173
[11]
Answering affidavit, paras 115 – 165, pp 220 – 226, paras 208 –
209, p 232
[12]
Act 71 of 2008 and section 76 & 77 in particular
[13]
Section 162 of Act 71 of 2008
[14]
Setlogelo v Setlogelo
1914 AD 221
at 227 & numerous cases since then
[15]
National
Gambling Board v Premier, Kwa-Zulu Natal & others
[2001] ZACC 8
;
2002
(2) SA 715
(CC) at para 49
[16]
2016
(3) SA 143 (SCA)
[17]
National
Treasury & others v Opposition to Urban Tolling Alliance &
others
2012
(6) SA 223
paras 44 - 47 & 63 – 66 & para 65 in particular
[18]
Founding affidavit: para 4.43, p 24
[19]
Ibid
:
para 4.55 read with annexure “F10”, pp 129 - 160
[20]
Founding affidavit: paras 11 & 12, p 38
[21]
Answering affidavit: paras 227 – 229, p 234
[22]
Answering
affidavit: paras 23, 48 & 49 on pp 208 & 211
[23]
Founding
affidavit: para 4.63.2, p 29 read with answering affidavit: para
200, p 231
[24]
Answering
affidavit: para 199, p 231