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[2021] ZAGPJHC 352
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Miller v Natmed Defence (Pty) Ltd (18245/2019) [2021] ZAGPJHC 352; 2022 (2) SA 554 (GJ) (24 August 2021)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE NO: 18245/2019
REPORTABLE: YES
OF INTEREST TO OTHER
JUDGES: YES
REVISED.
24-08-2021
In the matter between:
David
Garth
Miller
Applicant
Versus
Natmed
Defence (Pty) Ltd
First Respondent
Chalcid
(Pty) Ltd
Second Respondent
Daniel
Johannes Stephanus Kellerman
Third Respondent
Donald
Dinnie
Fourth Respondent
Lance
Turner
Fifth Respondent
JUDGMENT
MATOJANE J
Introduction
[1]
This is an application where the Applicant seeks
the following relief:
1.
an order, setting aside the decision taken by the
shareholder of the first respondent (“Natmed”) to remove
the Applicant
as a director of the first respondent due to alleged
non-compliance with Companies Act,2008; and reinstating the Applicant
with
retrospective director’s fees.
2.
The payment of outstanding amounts claimed in
terms of a contract (“remuneration claim”). There are
four legs to the
Applicant's remuneration claim, namely
(a)
Applicant claims that he was contractually
entitled to director’s fees of R50 000.00 per month payable by
Natmed, in respect
of March 2019, he only received R5 000.00, and he
received no payment for in respect of April 2019. He claims this
shortfall of
R95 000.00
(b)
There was an agreement by Natmed and Chalcid to
pay the Applicant a discretionary bonus in respect of the financial
year ending
February 2018, which he has not been paid.
(c
)
The
Applicant seeks to be retrospectively remunerated his director’s
fees at R50 000.00 per month, from the date of his removal
until the
date on which he is reinstated;
(d)
a declaratory order that should the Applicant be
reinstated as a director of Natmed, he is entitled to directors fees
of R50 000.00
per month from the date of his reinstatement until the
date that his directorship lawfully terminates.
(e)
The Applicant seeks to have a written directorship
contract rectified to reflect the legal entity as Natmed rather than
Natmed (Pty)
Ltd.
3.
Finally, there is an application for referral to
oral evidence if the remuneration claim cannot be resolved on papers.
[2]
Natmed and the second respondent (“Chalcid”)
are both owned by the Kalafit Trust (“shareholder”), a
body
registered in terms of the Trust Property Control Act,1988.
[3]
The third respondent(“Kellerman”),
fourth respondent (“Dinnie”) and fifth respondent
(“Turner”)
are all cited in their capacities as trustees
of the shareholder. The respondents dispute that Dinnie is a trustee
Background
[4]
On 25 May 2017, the Applicant, acting in his
personal capacity and Kellerman acting in his capacity as a duly
authorised shareholder
representative of both Natmed and Chalcid,
concluded three separate oral agreements.
[5]
The first agreement was a directorship agreement
between the Applicant and Netmed (“Natmed Agreement”).
The second directorship
agreement was between the Applicant and
Chalcid (“Chalcid Agreement”). The third agreement was
between Applicant on
the one hand and Chalcid and Natmed on the other
(“bonus agreement”).
[6]
In October 2018, by agreement, the Applicant
resigned from Chalcid, and the amount that Chalcid was paying the
Applicant in director’s
fees was taken over by Natmed. These
amounts are disputed. The Applicant’s initial director’s
fee was R5 000.00 per
month from Natmed and R5 000.00 from Chalcid.
[7]
The Applicant’s Natmed directorship
continued until 30 April 2019, when he was removed as the director
thereof. The Applicant
is challenging this removal in the present
proceedings.
Points
in limine
–
(a)
Misjoinder
[8]
Dinnie states that he is not a trustee of the
shareholder and should not have been cited as a party to these
proceedings. He states
that he is the Chief Executive Officer of the
first and second respondent and his citation as a trustee constitutes
a misjoinder
as he has no direct and substantial interest in this
application. This exception can be readily disposed of. The Applicant
is under
a
bona fide
belief that Dinnie is a trustee. Neither Dinnie nor Kellerman has
placed before the court countervailing evidence in the form of
a copy
of the deed of trust or the letter of authority reflecting the names
of the trustees. The information lies purely within
their knowledge.
The applicant's version stands.
(b)
Lack of
locus standi
in judicio
[9]
The third and fifth respondent submits that the
Applicant lacks the requisite
locus
standi
to claim the amounts appearing
in the notice of motion as the invoices were issued by Miller Steward
(Pty) Ltd, who should have
been joined in the proceedings as it has a
direct and substantial interest in this matter. This point
in
limine
can also be readily disposed of.
[10]
The shareholder concedes in its answering
affidavit that Miller Stewart is not a party to any contract that
forms part of the relief
claimed. The agreement was entered into
personally with the Applicant. It was the Applicant that rendered
services, and no other
person from Miller Steward did so. The
respondents did not deny the averments by the Applicant in paragraph
15 of his founding
affidavit that it is his removal as a director and
the failure to pay his fees and bonuses owed to him in his personal
capacity,
which is a subject matter of this application and
accordingly he had
locus
standi.
The respondents have failed to raise a genuine dispute of facts, the
Applicant’s version again stands.
(c)
Foreseeable dispute bona fide dispute of fact.
[11]
It
is well established under the
Plascon-Evans
rule that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the Applicant's affidavits, which have been admitted by the
respondent, together with the facts alleged by the latter,
justify
such order. It may be different if the respondent’s version
consists of bald or uncreditworthy denials, raises fictitious
disputes of fact, is palpably implausible, far-fetched, or so clearly
untenable that the court is justified in rejecting them merely
on the
papers
[1]
.
[12]
The respondents submit that Applicant was aware
that each of the agreements subject to this application was oral. As
a result, the
Applicant foresaw the reasonable likelihood of the
terms of the oral agreements being the subject of genuine and bona
fide factual
disputes.
[13]
In my view, none of the disputes of fact before me
is such that they cannot be resolved on the papers. The denials by
the shareholders
are, in most cases, farfetched or untenable and fall
to rejected.
The first issue –
Director’s fees
[14]
The Applicant claims R25 000-00 (twenty-five
thousand rands) from the First and Second Respondent each in
director's fees. Kellerman
alleges that such amount was in large part
constituted by the consulting fees of R40 000-00 (forty thousand
rands) payable to Miller
Stewart (Pty) Ltd and a director's fees of
R10 000-00 (ten thousand rands) pursuant to the resignation of the
First Respondent's
marketing manager and subsequent resignation of
the Applicant from the Second Respondent.
[15]
It is common cause that the incumbent marketing
manager of the first respondent left as of 30 June 2018. The first
time the Applicant
invoiced both the first and second respondents,
respectively, for the increased amount of R25 000.00 was in June 2018
and not July
2018 before the marketing manager had departed. The
version of Kellerman that the payment of the additional R40 000.00
was in respect
of the Applicant taking up the interim role of
marketing manager is unsustainable. The Applicant stopped the
marketing activities
at the first respondent in January 2019; despite
this, the full amount of R50 000.00 continued to be paid to the
Applicant for
January and February 2019. If the respondent’s
version was correct, the full amount of R50 000.00 would not have
been paid
for the months of January and February.
[16]
It is not disputed that in March 2019, the
applicant only received R5 000.00, and he received no payment in
respect of April 2019.
His claim for this shortfall of R95 000.00 is
justified.
The second issue -
Discretionary bonus agreement
[17]
After being appointed a non-executive director on
26 May 2017, the Applicant sent a confirmatory email to Kellerman
confirming the
oral agreement concluded the previous day. The email
makes a reference to the oral agreement regarding the discretionary
bonus.
In the fourth paragraph, it is recorded that:
“
As
agreed, I shall be remunerated at R 10,000.00 per month (R120,000.00
per annum) plus an
additional discretionary
but objective driven bonus of R 130,000.00 based on contribution and
value add.”
[18]
Kellerman never disputed or denied the contents of
this email. He concedes that an amount of R100 000.00 was offered to
the Applicant
as a discretionary bonus; however, on his version, the
Applicant rejected the offer. As a result, no discretionary bonus
agreement
was concluded. There would have been no need to make this
offer to the Applicant if there was no agreement to pay Applicant
such
a bonus.
[19]
The Applicant requested information on why he was
offered only R100 000.00 instead of R130 000.00, which was not
responded to. He
denies that he rejected the offer of R100 000.00
and, in an endeavour to limit the dispute, have accepted the offer of
R100 000.00
in respect of the discretionary bonus. The Applicant has
made out a case for entitlement to the discretionary bonus of R100
000.00
that was offered to him.
The third issue –
Rectification of the Natmed directorship agreement
[20]
The Applicant relies on a written directorship
agreement, which is sought to be rectified. The shareholder argues
that the written
agreement was never concluded and signed by the
shareholder or any of the Respondents.
[21]
The Natmed directorship agreement refers to Natmed
(Proprietary) Ltd as an entity that the Applicant contracted instead
of Natmed
Medical Defence (Proprietary) Ltd. Nothing turns of this
typographical error as Natmed (Proprietary) Ltd has no relationship
with
the trust or any trustees cited in this matter. It is only
Natmed Medical Defence who has to give effect to this agreement.
[22]
Dinnie was the duly authorised representative in
entering into the written agreement in question and has already
conceded that the
contracting party ought to have been Natmed Medical
Defence (Pty) Ltd and not Natmed (Pty) Ltd. I can see no reason why
the doctrine
of rectification should not be applied where a document
wrongly records the identity of a party so as to give effect to the
intent
of the true parties in terms of a prior agreement or
understanding between them.
[23]
The incorrect description of the legal entity that
the Applicant contracted with was occasioned by the common error
between the
parties who signed the written contract in the
bona
fide
but mistaken belief that it
recorded their true agreement between them. The Natmed written
directorship agreement falls to be rectified
by removing reference to
an entity described as "Natmed (Proprietary) Limited" with
registration number "[....]"
and replacing it with "Natmed
Medical Defence Proprietary Limited" with registration number
"[....], wherever the
former appears.
[24]
Having already thus disposed of the preliminary
issues I now proceed to determine whether it was competent for the
shareholder to
remove the applicant as a director without first
providing him with reasons for the proposed removal prior to the
decision being
taken.
The removal as a
director
[25]
It is common cause that on 24 April 2019, the
Applicant was notified of a shareholders meeting to be held on 30
April 2019. The
meeting was to be held telephonically. The main
resolution proposed was the Applicant’s removal as a director
of Natmed with
immediate effect. The notice stated that the notice
period arising from statute for the holding of such a meeting was
waived and
that prior to considering and voting on the above
resolution by the shareholder, the Applicant has the opportunity to
make representation
either personally or through a representative.
[26]
On 29 April 2019, the Applicant, through his
attorneys, addressed a letter to Kellerman setting out alleged
deficiencies in convening
the meeting. The letter read:
“
2.
We are instructed that on 24 April 2019, a document purporting to be
a notice convening a "shareholders' meeting" in
terms of
section 61(1) of the Companies Act, 2006 (as amended)
("the
Act") was emailed to our client by Stephen Kellerman ("the
purported notice").
3. The
purported notice is defective for, inter alia, the following reasons
(the list is not
exhaustive, and our
client's rights to supplement the reasons for the notice being
defective, if it becomes necessary in the future,
are reserved):
“
3.1.
It was not delivered at least ten business days before the meeting,
as provided
for in section 62(1) read with
section 71(2)(a) of the Act;
3.2. It does not contain
all the particulars required in terms of section 62(3) of the Act;
3.3.
The proposed resolutions fail to comply with section 65(4) of the Act
in that they
are not accompanied by
sufficient information or explanatory material; and
3.4.
An attempt to hold the meeting telephonically falls foul of section
71(2)(b) of the
Act, as our client would
then be denied the opportunity of making a representation in person.
This is not simply a technical point,
and we are instructed to
highlight that our client has had difficulties with conference calls
and video conference calls, as there
is, from time to time,
difficulties in hearing people that have dialled in and a loss of
communication during such calls.
4.
Consequently, our client will not be afforded a
reasonable opportunity to make a presentation before the shareholder
votes.
5.
In the event that a "shareholder’s
meeting" is convened on 30 April 2019, our client will be denied
the opportunity
to put forward relevant information and to ensure
that the decision-maker is appropriately and adequately informed
before taking
such a decision. As a result, any proposed resolution
passed to remove our client as director will be invalid and will fall
to
be set aside.
6.
“
Our client cannot be denied his statutory
right before the shareholder votes to adopt a resolution for his
removal, and our client
is entitled to be furnished with reasons for
his intended removal in order for him to make a meaningful
presentation. In this regard,
we refer you to the case of Pretorius
and another v Timcke and others (15479/14) [2015]ZAWCHC (June 2015)
at paragraph 9”.
…
.
[27]
Natmed responded on 30 April 2019, denying that it
was in breach of the Act and recorded that the meeting would proceed
on that
date. The Applicant did not attend the meeting, and the
meeting proceeded in his absence, where a decision was taken to
remove
him as a director.
[28]
The Applicant contended that his removal was in
breach of section 71(2)(b) of the Act on the basis that;
(a)
No reasons were given to the Applicant regarding
why his removal as a director was proposed in order to enable him to
make representations.
(b)
The notice to remove the Applicant was evidently
given short of the statutorily required 10-day period.
(c
)
The
shareholder’s meeting that took the decision to remove him was
held telephonically in breach of section 63(2)
(d
)
the
notice of the meeting was given less than ten days before the meeting
in breach of section 62(1)(b).
Discussion
[29]
It bears mentioning outrightly that
section 71
of
the
Companies Act 71 of 2008
draws a clear distinction between the
removal of a director by the company's shareholders and instances
where the board of directors
seek to remove a director.
Section 71
reads, in relevant part:
“
(1)
Despite anything to the contrary in a company's
Memorandum of Incorporation or rules, or any agreement between a
company and a director,
or between any shareholders and a director, a
director may be removed by an ordinary resolution adopted at a
shareholders meeting
by the persons entitled to exercise voting
rights in an election of that director, subject to subsection (2).
(2)
Before the shareholders of a company may consider
a resolution contemplated in subsection (1) -
(a)
the director concerned must be given notice of the
meeting and the resolution, at least equivalent to that which a
shareholder is
entitled to receive, irrespective of whether or not
the director is a shareholder of the company; and
(b)
the director must be afforded a reasonable
opportunity to make a presentation, in person or through a
representative, to the meeting
before the resolution is put to the
vote.
(3)
If a company has more than two directors, and a
shareholder or director has alleged that a director of the company-
(a) has become-
(i) ineligible or
disqualified … ; or
(ii)
incapacitated ...
; or
(b)
has neglected, or been derelict in the performance of, the functions
of
director, the board, other than the
director concerned, must determine the matter by resolution, and may
remove a director whom
it has determined to be ineligible or
disqualified, incapacitated, or negligent or derelict, as the case
may be.
(4)
Before the board of a company may consider a
resolution contemplated in subsection (3), the director concerned
must be given-
(a)
notice of the meeting, including a copy of the
proposed resolution and a statement setting out reasons for the
resolution, with
sufficient specificity to reasonably permit the
director to prepare and present a response; and
(b)
a reasonable opportunity to make a presentation,
in person or through a representative, to the meeting before the
resolution is
put to the vote.
(5) …
(6) …
(7) …
(8)
If a company has fewer than three directors-
(a)
subsection (3) does not apply to the company;
(b)
in any circumstances contemplated in subsection
(3), any director or shareholder of the company may apply to the
Companies Tribunal,
to make a determination contemplated in that
subsection; and
(c)
subsections (4), (5) and (6), each read with the
changes required by the context, apply to the determination of the
matter by the
Companies Tribunal.
(9)
Nothing in this section deprives a person removed
from office as a director in terms of this section of any right that
person may
have at common law or otherwise to apply to a court for
damages or other compensation for-
(a)
loss of office as a director; or
(b)
loss of any other office as a consequence of being
removed as a director.
(10) … ’
[30]
It was submitted by Mr Budlender SC for the
applicant that
section 71(2)(b)
requires as a prerequisite for
removing a director that reasons for the proposed removal be given to
the director prior to the
decision being taken. He argued that the
section does not contemplate a director only making representations
against the intended
conclusion but also the actual basis and
reasoning leading to that conclusion. He submitted further that the
interpretation that
a director is not entitled to the reasons for the
proposed removal would simply make the provisions of
section 71(2)(b)
meaningless as the Applicant could not make representations when he
did not know the reasons for his removal as a director.
[31]
Counsel
relied on the Western Cape decision of
Pretorius
and Another v
Timcke
[2]
as authority for the proposition that the requirement that the
director be given a reasonable opportunity to make a presentation
should be read to require that reasons for the proposed removal be
given to the director prior to the decision being taken.
[32]
In that case, shareholders gave notice to the
directors of their intention to remove them by way of a
resolution.
The director’s representative
attended the meeting and requested the reasons the shareholders
proposed to remove the directors.
The shareholders maintained that
the directors were not entitled to reasons but stated that the
shareholders no longer wanted the
applicants to remain as directors.
The shareholders proceeded with adopting a resolution to remove the
directors. The court declared
the resolutions taken to remove
directors invalid and set them aside. The court stated:
“
[10]
I respectfully disagree with the argument
postulated in support of the opposition of the relief claimed. Whilst
the Act requires
less of the shareholding in the removal of a
director/s, the affected director/s indeed have a statutory right to
be heard before
the shareholders' vote to adopt a resolution for
his/their removal. A reading of the record of the proceedings at the
shareholder's
meeting illustrates that when the applicants'
representatives were informed that the "reason" for their
proposed removal
was that the shareholding no longer wanted
applicants to serve as directors, they were in my view merely advised
of their finding
or conclusion and indeed not furnished with a
reason. The reason/s forming the basis for such finding or conclusion
remained unknown.
To read into the provision that an affected
director can make representations without being furnished with
reasons for his or her
intended removal, would render the wording of
the provision superfluous and without effect. Its simple
interpretation would be
that the applicants had to be afforded with
reasons in order that they could make representations in respect
thereof and meet their
case accordingly.
[11]
In my view therefore the reason was never given by
the shareholders and consequently without such reason being made
known, the applicants
were not afforded the fundamental right to be
heard. By not knowing the reason for their proposed removal, they
could not exercise
their right to be heard as they undoubtedly did
not know on what issue/s to state their case. Rules of natural
justice and the
fundamental principle of audi alterem partem
presupposes the right to place facts and evidence before the decision
maker A prelude
to the exercise of the right includes the right to
obtain information, particulars or documents so as to place the
affected person
in a position to meet the case that need be answered.
The Respondents wanted to avoid this situation from arising again.
The argument
by Mr. Loots that they nonetheless had an opportunity to
make representations, is in my view incorrect as the applicants'
representatives
would not have known what information to place before
the shareholders which would be relevant and apposite to the reason/s
for
their intended removal.
[33]
But can the requirement that the director be
afforded “
reasonable opportunity
to make a presentation”
be read to require that reasons for the proposed removal be given to
the director prior to the decision being taken? I am constrained
to
disagree. It would appear that the Western Cape High court has
impermissibly resorted to the remedy of reading in circumstances
where the Act is clear and the reading in not warranted.
[34]
In
Hyundai
[3]
, the Constitutional
Court cautioned that:
“
It
follows that where a legislative provision is reasonably capable of a
meaning that places it within
constitutional
bounds, it should be preserved. Only if this is not possible should
one resort to the remedy of reading in or notional
severance.”
[35]
The requirement that shareholders must furnish a
director concerned with the reasons for the proposed resolution in
advance is expressly
provided for in section 71(3) of the Act. The
section provides for instances where the removal of a director is
sought by the board
of directors. The director concerned must be
given notice of the meeting, a copy of the relevant resolution
accompanied by a statement
of reasons for the resolution, which is
detailed enough to enable him to formulate a response. Secondly, the
decision by the board
of directors to remove a director is subject to
review by a court to ensure that removal is procedurally and
substantively fair.
[36]
Where shareholders seek, the removal of a
director, Section 71(1) does not require shareholders to provide the
director concerned
with a statement setting out the reasons for the
proposed resolution as in the case where the removal is by directors.
The legislature
has deliberately preserved the right of the majority
shareholders to remove a director who they no longer support.
Directors serve
at the behest of shareholders who elected them. The
shareholders can remove them at will without having to provide
reasons.
[37]
Counsel,
as in the case of
Pretorius
,
placed reliance on the decision of the Constitutional Court in
Minister
of Defence and Military Veterans v Motau and
others
[4]
.
The
Motau
decision is distinguishable from the current case. In that case, the
issue that arose for decision was whether the Minister had
shown good
cause for her decision to terminate the two directors’
membership of the board. The termination of their services
was
undertaken in terms of section 8(c) of the Armscor Act, which permits
the Minister to remove a board members on good cause
shown.
[38]
The court in dealing with the procedural
constraints on the exercise of the Minister’s 8(c) power, held
that the Minister
had to comply with section 71(1) and (2) of the Act
as it is the procedure by which the Minister exercises her section
8(c) power.
At paragraph 79 the court explained:
“
It
would not lead to an absurdity to hold that the Minister, as sole
shareholder for these purposes, was
obliged
to comply with section 71(1) and (2)
in
the circumstances of this case
. For the
purpose of those provisions is not only to ensure that a majority of
shareholders assent to a decision to dismiss a director,
but also to
ensure that those whose interests may materially be affected by the
decisions taken are given an opportunity to put
forward relevant
information, and to ensure that the decision-makers are appropriately
informed before taking a serious decision”.
(own
underlining)
[39]
Section 71(1) does not require shareholders to
have a reason for wanting to remove a director. In my view,
shareholders cannot,
therefore, be obliged to give reasons in advance
as this was not the legislature's intention.
Inadequate notice
[40]
The Applicant elected not to make representations
for consideration by the shareholder, submitting that the notice for
his removal
was short of the statutorily required 10-day period. It
is so that the Applicant did not consent to the shorter notice period
and
has objected to the meeting taking place on short notice. In my
view, even if the Applicant was given the entire statutory notice
period, he would still have not taken the opportunity to make
representations at the meeting as his attitude was that he could
not
have participated and made representations when he did not know what
exactly he needed to address.
[41]
Though short of what is statutorily required, the
notice period did not prejudice the Applicant to warrant the setting
aside the
shareholders' decision in exercising a statutory right that
they possess. Nothing in section 71 deprive the Applicant of the
right
he may have at common law or otherwise to claim damages for
loss of office as a director for non-compliance with the required
notice
period.
Non-suitability of the
meeting over electronic means
[42]
On
common cause facts, there were difficulties in the past with
telephonic means of communication. Applicant submits that as someone
entitled to participate and to make representations, the meeting of
such nature ought to have not proceeded telephonically and
doing so
was in breach of section 63(2)
[5]
of the Act and would have had the effect denying him an opportunity
of making representation in person in terms of section 71(2).
[43]
Section 71(2)(b) affords the Applicant a
reasonable opportunity to make a representation, in person or through
representative ‘to
the meeting’ before the resolution is
put to the vote more. The Applicant does not explain why he did not
instruct his attorneys
to participate in the meeting on his behalf if
he personally had difficulties. The attorneys were entitled to attend
or participate
telephonically and raise the Applicant’s
complaint at the meeting. This, in my view, also could not be said to
have prejudiced
the applicant rendering his removal unlawful.
[44]
Even
if I am wrong in my finding that it was competent for the shareholder
to remove the applicant as a director without having
to give reasons
in advance for its
decision,
the applicant cannot insist on remaining a director in the
circumstances where the shareholder no longer have trust that
he can
conduct the affairs of the company to its liking. The relationship of
trust has broken down irretrievably, as evidenced
by the dispute over
salary and bonuses and the eventual decision to remove him. The
appropriate remedy, in my view, lies in a claim
for damages for loss
of office as a director as contemplated in section 71(9)
[6]
of the Act. A declaratory order that he be reinstated as a director
fall to be dismissed.
[45]
The order
In the result, the
following order is made
a.
The first respondent is ordered to pay the
applicant an amount of R95 000 plus VAT in outstanding
director’s fees;
b.
The first and second respondents, jointly and
severally, the one paying the other to be absolved, are order to pay
the applicant
a discretionary bonus of R100 000.00 in respect of the
financial year ending February 2018.
c.
The Natmed written directorship agreement falls be
rectified by removing reference to an entity described as "Natmed
(Proprietary)
Limited" with registration number "[....]"
and replacing it with "Natmed Medical Defence Proprietary
Limited"
with registration number "[....], wherever the
former appears.
d.
The respondents to pay the costs
K E MATOJANE
JUDGE OF THE HIGH
COURT,
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
Appearances
Counsel
for Applicant:
Advocate S Budlender SC
Advocate
Y Peer
Attorney
for Applicant:
Edward Nathan Sonnenbergs Inc
Counsel
for Respondent:
Advocate L Morrison SC
Attorney
for Respondent:
Bouwer Cardona Attorney
[1]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA)
[2]
(15479/14
[2015] ZAWCHC 215
(2 June 2015)
[3]
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors: In Re Hyundai Motor Distributors
(Pty) Ltd and Others
v Smit NO and Others
[2000] ZACC 12
; 2001(1) SA 545;
2000 (10) BCLR
1079
(CC) at para 22.
[4]
2014
(5) SA 69
CC para 73
[5]
Unless
prohibited by its Memorandum of Incorporation
a shareholders meeting
to be conducted entirely by electronic communication; or one or more
shareholders, or proxies for shareholders,
to participate by
electronic communication in all or part of a shareholders meeting
that is being held in person, so long as
the electronic
communication employed ordinarily 10 enables all persons
participating in that meeting to communicate concurrently
with each
other without an intermediary, and to participate reasonably
effectively in the meeting.
[6]
S
71(9) Nothing in this section deprives a person removed from office
as a director in
terms of this section of
any right that person may have at common law or otherwise to
apply to a court for
damages or other compensation for— 5 (a) loss of office as a
director; or
(b) loss of any other
office as a consequence of being removed as a director