THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 738/2023
and 739/2023
In the matter between:

EQUISTOCK PROPERTIES 8 (PTY) LTD FIRST APPELLANT
HENDRIK ANDRE COETZEE SECOND APPELLANT

and

WILLEM NICOLAAS SAAIMAN OOSTHUIZEN FIRST RESPONDENT
KAREN OOSTHUIZEN SECOND RESPONDENT
LADUMA BISCUITS (PTY) LTD THIRD RESPONDENT
ALI IFTIKHAR t/a PAN AFRICAN FURNISHERS FOURTH RESPONDENT
BANANA WORLD (PTY) LTD FIFTH RESPONDENT
LUCAS VAN VUUREN t/a MFG SIXTH RESPONDENT
GERHARDUS MARTINUS OOSTHUIZEN
t/a DC MOTORS SEVENTH RESPONDENT

Neutral citation: Equistock Properties 8 (P ty) Ltd and Another v Oosthuizen and
Others (738/2023 and 739/2023 ) [2025] ZASCA 06 (29 January
2025)
Coram: DAMBUZA and HUGHES JJA and COPPIN AJA
Heard: 21 November 2024

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Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website,
and released to SAFLII. The date for hand down is deemed to be 29 January 2025 at
11h00.
Summary: Civil Procedure – the requirements of a final interdict restated – authority
to bring an application not established – personal costs order properly made – appeal
dismissed with costs .

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___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: Limpopo Division of the High Court , Polokwane (Diamond AJ, sitting
as a court of first instance ):
1 The appeal is dismissed .
2 The second appellant is to pay the costs of the appeal, including the costs of two
counsel, where so employed.
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Hughes JA (Dambuza JA and Coppin AJA con curring) :

[1] This is an appeal against the order by Diamond AJ in the Limpopo Division of
the High Court, Polokwane (the high court) :Firstly , dismissing an application
(the application) by the first appellant, Equistock 8 (Pty) Ltd (Equi stock) : (a) directing
the fourth, fifth , sixth and seventh respondents to pay rentals in respect of their
occupation of Equistock ’s properties into Equistock’s banking account ; and (b)
interdicting those respondents from paying any such rentals to the first, second or third
respondent , or negotiating with th ose respondents concerning the rental or renting of
Equistock’s properties. Secondly , grant ing a personal punitive costs order against
Hendrik Coetzee (Mr Coetzee) , who had deposed to the founding affidavit of Equi stock
in the applicati on. The appeal is with the leave of the high court .

[2] Only t he first respondent, Laduma Biscuits (Pty) Ltd (Laduma) , the second
respondent (Willem Oosthui zen) and the third respondent (Karen Oosthuizen)
(collectively referred to as ‘the O osthuizens ’) opposed the application and filed an
answering affidavit in th ose proceedings . At the time of the application , the properties
were le t to tenants, who are cited as the fourth to seventh respondents. These
respondents opted not to take part in any of the proceedings.
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[3] Equistock was registered as a company in South Africa in 1999 . On 20 January
2000, the following persons were appointed as its directors: Willem Oosthuizen, Karen
Oosthuizen , and her father, Mr Coetzee S enior (the deceased) . Mr Coetzee is the son
of the deceased and the brother of Karen Oosthuizen.

[4] It is not in issue that p rior to his death , the Oosthuizens concluded an oral
arrangement with the deceased, in terms of which he (the deceased) , through his
entities, AP Coetzee Trust and Passer Domesticus Trust, would loan money to
Laduma , a company owned by the Oosthuizens. A ccording to the Oosthuizen s, as
security for the repay ment of these loans, the AP Coetzee Trust held the Oosthuizen s’
shareholding in Equis tock as security . The Oosthuizens assert that, in terms of the
arrangement , it was agreed that once the loans were paid up, the shares would be
transferred to Karen Oosthuizen , to be held in a separate trust account, the Eagle
Trust , or any entity nominated by the Oosthuizens.

[5] During 2000 and 2002, Equistock purchased two commercial properties in
Groblersdal, Limpopo . The first , a property situated at 9 Industrial Road , was
purchased on 7 January 2000 and the second, situated at 1 Linbri Street , was
purchased on 15 May 2002 . According to the O osthuizens , in terms of their
arrangement with the deceased , Laduma would collect the rental derived from the two
properties and pay all the expenses relating to th em. Equistock would merely be the
property holder, as no business was con ducted through it. And, in accordance with that
arrangement , over the years Laduma effectively managed Equistock . It collected the
rentals and paid the instalments of and all the expenses relating to the two properties .

[6] The Oosthuizens contend that the deceased , who was a n accounting expert
with a doctorate in accounting , was content with the aforesaid arrangement , which
extended from 2000 to 2013. The deceased did not actively take part in the business
of Laduma and any affairs relating to the two properties . During 2013 , the Oosthuizens
contend , they established that the deceased had misrepresented to them certain facts
regarding the repayment of the loan they had taken from him. They say that they
discovered that they had overpaid the deceased by R358 709.18. Consequently, they
instituted an action in the Gauteng Division of the High Court, Pretoria (the Pretoria
high court) , against , amongst others, the deceased and the trusts, claiming the transfer
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to them of the ir shareholding in Equistock , which was held as security , as well as the
repayment of the amount they allege they overpaid (the pending action) .

[7] In retaliation, during July 2014, the deceased appointed Karen Oosthuizen ’s
sister -in-law, Wanda van der List and her husband, Robert van der List (the Van der
Lists) , as additional directors on Equistock ’s board and he unsuccessfully sought to
remove the Oosthuizens as directors of Equistock. The Oosthuizens launch ed an
urgent interim application to interdict the deceased from doing so and causing an
encumbrance on the assets of Equistock. This culminated in an order being granted
by agreement on 3 September 2013. Significant ly, the status quo that existed prior to
2013 remained in place until the deceased passed away on 21 September 2018 and
is still in place . Thus, Laduma continued to manage Equistock , as it did prior to the
order of 3 September 2013.

[8] After the death of the deceased, the Passer Domesticus Trust , who had as
trustees the Van der Lists, and Karen Oosthuizen’s mother , Mrs Cynthia Yvonne
Coetzee, surreptitiously obtained an order for the winding - up of Equistock in the
Western Cape Division of the H igh Court, Cape Town . This was short -lived, as on
30 June 2020 , on applica tion by the Oosthuizens , the winding up order granted in
favour of Passer Domesticus Trust was duly rescinded.

[9] The family feud brought about attempts to have the original directors of
Equistock changed . Mr Coetzee had been incarcerated for eight years for a
transgression involving SARS and was only released in 2004 . Until the application , or
shortly before that , he had had not been involved with Equistock at all. After the death
of the deceased, he set out to continue the battle with the Oosthuizens for the control
of Equistock . According to a resolution produced in the pending action, following the
deceased’s death, and specifically o n 17 May 2021, a special shareholders meeting
was purportedly held, where Mr Coetzee purportedly allocated ‘the sole sharehold [ing]
of 100% of all the legally issued share in Equistock’ to himself. As the self-appointed
sole shareholder , Mr Coetzee purported to resolve on his own, amongst other things ,
to change Equistock’s address, to change its board of directors , by removing the
Oosthuizens and by adding new director s, namely , Cynthi a Yvonne Coetzee (the
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deceased’s wife and mother of Karen Oosthuizen ), and Christine Coetzee
(Mr Coetzee’s spouse ).

[10] Following the change in its directorship , another resolution was passed on
21 May 2021 by the newly appointed board , whereby Equistock purportedly resolved
to bring the application and authorised Mr Coetzee to take all the necessary steps in
that regard . According to the resolution , amongst other matters, the board of Equistock
consisted of six directors of which four were executive and two were non -executive
directors . The four executive directors were said to be the Van der Lists, Mrs Cynthia
Yvonne Coetze e and Christine Coetzee . And the non-executive directors were said to
be the Oosthuizens .

[11] Mr Coetzee, presenting himself as a director of Equistock, deposed to the
founding affidavit in the application. The Oosthuizens , who opposed the application, in
their answer placed the appointment of Mr Coetzee as a director in issue as well as
his authority to institute the application on behalf of Equistock. They contended that he
had no shareholding in Equistock . Other than contending that despite his conviction
he could be a director, Mr Coetzee did not explain how he came to own the shares, or
how he became a director. The high court found that ‘no weight c an be attached ’ to
Mr Coetzee’ s version. And that ‘ [t]here is no indication that [Mr Coetzee] possesses
any personal knowledge of the nature of the relationship’ between Equistock, the
Oosthuizens and the deceased . Having found that no case for an interdict had been
made out , and that Mr Coetzee had not shown on the papers that he was a shareholder
of Equistock and entitled to represent it as director , the high court dismissed the
application and granted a punitive costs order against Mr Coetzee personally. That
costs order is also a subject of this appeal .

[12] Two main issues arose for decision in the high court and need to be considered
in this appeal , namely, first, whether the application for the interdict was authorised by
Equistock, and second , whether a case for the interdict ory relief was made out. The
costs order made against Mr Coetzee depends on the outcome of the first enquiry . The
high court held him liable for the costs , after finding that the resolutio ns passed
purporting to authorise the bringing of the application were invalid and a nullity , and
that ‘no legal consequences could flow’ there from. It is important to note th at the
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respondents never utilised the procedure in rule 7(1) , of the Uniform Rules of Court , to
challenge the authority of the ap pellant’s attorneys to act on its behalf and institute the
proceedings for an interdict in the name of Equistock.1 For that reason , the high court
did not find that it had been established that the attorneys for the applicant were not
authorised to act accordingly in this matter .

[13] Regarding the authorisation , the high court found that Equistock did not
authorise the application, essentially, because Mr Coetzee was not a shareholder or a
director of Equistock and the purported resolutions of 17 and 21 May 2021 were invalid
and a nullity , and no consequences flowed from them . Those findings of the high court
cannot be faulted . Even though Mr Coetzee averred in the purported minutes or
resolution of 17 May 2021 that he was the sole shareholder of Equistock , that was
false . In the replying affidavit in the application Mr Coetzee concedes that the shares
in Equi stock have always been held by the AP Coetzee Trust. Even though Mr Coetzee
represented in the founding affidavit that he was a director of Equistock , he did not
show how and when he was appointed as such . He did not even show that he c ould
be considered as a de facto director of Equistock. No case was made out at all that he
actually managed Equistock .

[14] The version of the Oosthuizens , who are directors of Equistock, that Mr Coetzee
was neither a shareholder nor director of Equistock , must prevail , in terms of the
Plascon-Evans rule.2 It is also the most probable or feasible version on the papers. It
is apparent that the application was the ‘brainchild ’ of Mr Coetzee , who primarily
wanted access to the rental income from Equistock’s properties . The application was,
on close analysis , ultimately based on falsehoods concocted by Mr Coetzee. The
purported minutes or resolution of 17 May 2021 is the most blatant of these. It appears
from that document that Mr Coetzee held a ‘Special General shareholders ’ meeting by
himself where he resolved that certain things be done concerning the affairs and

1 Ganes and Another v Telecom Namibia Ltd [2004] 2 All SA 609 (SCA); 2004 (3) SA 615 (SCA); (2004)
25 ILJ 995 (SCA) para 19; Unlawful Occupiers of the School Site v City of Johannesburg [2005] 2 All
SA 108 (SCA); 2005 (4) SA 199 (SCA ) para 14. Rule 7(1) provides that ‘. . . the authority of anyone
acting on behalf of a party may, within 10 days after it has come to the notice of a party that such person
is so acting, or with the leave of the court on good cause shown at any time before judgment, be
disputed, whereafter such person may no longer act unless he satisfies the court that he is authorised
so to act, and to enable him to do so the court may postpone the hearing of the action or application’.
2 Plascon -Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd [1984] 2 All SA 366 (A); 1984 (3) SA
623 (A).
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management of Equistock. At the outset , he falsely claims to be ‘the sole shareholder
of 100% of all the legally issued shares in Equistock’. He then delu sionally proceeds
to dictate what must be done. Amongst other things, he purports to instruct ‘the board
of directors to meet imm ediately or as soon as possible bu t within 4 days, to give effect
to these legal resolutions of the 100% shareholder of this company ’. As he conce ded
the shares are still held by AP Coetzee Trust, Mr Coetzee was never a shareholder ,
let alone a sole, or 100% shareholder of Equistock. Thus, this ‘meeting’ and his
‘resolutions’ were clearly not legally valid .

[15] The purported meeting of 21 May 2021 , where new di rectors were added , is a
perpetuation of the charade of 17 May 2021. It is as legally invalid as the latter . This
very document , which purportedly authorised the bringing of the application, does not
include Mr Coetzee as a director . Yet he avers in the first paragraph of the founding
affidavit in the application that he is a director of Equistock . He does not say when or
how he came to be appointed as a director . The Oosthuizens contend that he had no
shares in Equistock and that his appointment as director was void from the outset. The
only signatories of this invalid resolution that were indeed directors of Equistock are
the Van der Lists . But their signature to the purported resolution of 21 May 2021 cannot
be regarded as t hat of the actual legally constituted board , and their signatures most
definitely did not regularise or validate the ‘resolution’ , or the process initiated by
Mr Coetzee .

[16] Besides those defects , there is no proof that before any of the purported
meetings were held and purported resolutions were adopted that each properly
appointed director of Equistock, including the Oosthuizens , had been given and had
received the requisite notice of the issues to be decided there upon , as is required by
section 74 of the Companies Act 71 of 2008 . Another noteworthy aspect is that the
deceased himself, who had a first -hand knowle dge of the facts , including the rent
collection arrangement, did not , during his lifetime , seek to do what Mr Coetzee,
purported to do. Given all the above , the high court cannot be faulted for concluding
that it had not been proved that Equistock authorised the bringing of the application
and that the facts show that it was actually Mr Coetzee himself who brought it
purportedly in the name of Equistock. On that basis alone , the appeal on the merits
must fail .
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[17] Regarding whether a case for an interdict was in any event made out – the
requirements for obtaining a final interdict are trite. The following must be shown: (a) a
clear right on the part of the applicant; (b) an injury actually committed or reasonably
apprehended; and (c) the absence of any other satisfactory remedy .3 As for a clear
right, it is established that an applicant must prove the right it seeks to protect on a
balance of probabilities . Whether an applicant has such a right is a substantive law
question , but whether it has been established is a n evidential question. Where the point
is genuinely in disput e in opposed application p roceedings, the applicant can only
succeed if the facts averred by the respondent , together with the facts in the applicant’s
affidavits, which the respondent admits , establishes that right.

[18] Even though i t could be argued , as a general proposition , that the owner of
property is entitled to collect the rental derived from the property , that does not follow
axiomatically . In terms of a contractual or other arrangement , or law , the actual
collection of the rent might well be the right and duty of another entity or person. In this
matter, besides the fact that it was not proved that it was Equistock that sought to
assert such a right , there are at least two other factor s that stoica lly stand in the way
of such assertion. That is the binding nature of the arrangement that applied from the
outset and in terms of which Laduma was to collect the rental and pay all the expenses ,
which Mr Coetzee had no knowledge of and could not dispute. Second , there is no
proof that Equistock , through its properly app ointed board , cancelled the long-standing
arrangement and was legally entitled to do so .

[19] Regarding proof of an injur y committed or reasonably apprehended – there is
no case made out in that regard. The arrangement dates back to when the properties
were acquired , and ther e is no suggestion, let alone proof , that Equistock has suffered
any in jury because of it , or that an injury is reasonably apprehended if the arrangement
was to continue. And in respect of the availability of an alternative remedy – the fact of
the pending action in the Pretoria high court, in which the question of the shareho lding
of Equistock is to be resolved, presents as a remedy that would also resolve the issue

3 Sanachem (Pty) Ltd v Farmers Agri - Care (Pty) Ltd and Others 1995 (2) SA 781 (A) ; [1995] 2 All SA
268 (A) at 789C.
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of the collection of the rentals . In sum, no case for interdictory relief was made out and
the application should also have failed for that reason, as found by the high court.

[20] Lastly, I address the issue of the punitive costs order against Mr Coetzee. First ,
this is consistent with the high court’s finding that he instigated the proceedings without
the requisite authority . Second, since the matter of costs was in the discretion of the
high court , this Court may only interfere with a deci sion on the costs if that discretion
was not exercised judicial ly. In this matter , it has not been demonstrated that the high
court had exercised its discretion irregularly or injudiciously . On the contrary , the award
was properly made and there is no justification to inter fere with the high court’s decision
on the costs . Since the appeal is a continuation of those proceedings, with Mr Coetzee
driving it, he personally , and not Equistock should bear the costs of the appeal.

[21] The following order is issued :
1 The appeal is dismissed.
2 The second appellant is to pay the costs of the appeal, including the costs of
two counsel, where so employed.



___________________
W HUGHES
JUDGE OF APPEA L
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Appearances

For the first appellant: T P Kr üger SC and C D’Alton
Instructed by: Cilliers & Associates, Mossel Bay
Rossouw s Attorneys , Bloemfontein

For the second appellant: H P Wessels
Instructed by: Hurter Spies Inc , Centurion
Rossouw s Attorneys, Bloemfontein

For the first to third r espondent s: J F Moolman
Instructed by: Pratt Luyt & de Lange Incorporated ,
Polokwane
Phatsoane Henney A ttorneys, Bloemfontein