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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE Number: 025143/2022
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
2025 /07/03
In the matters between: -
AS VAN DYK FAMILIE TRUST (PTY) LTD FIRST APPLICANT
JUSTUS VAN DER BERG N.O. SECOND APPLICANT
MARIA JOHANNA ELIZABETH VAN DER BERG THIRD APPLICANT
And
ANDRIAS PHILLIPPUS RUDOLPH KEMP FIRST RESPONDENT
ZEEKOEGAT NR. (PTY) LTD SECOND RESPONDENT
JUDGMENT
BAQWA, J
Introduction
[1] The applicant s seek an order compelling the first respondent to convene a
shareholder’s meeting as contemplated in section 61 (12) read with 61(3) of the
Companies Act 71 of 2008 (the Act) for the shareholders of the s econd
respondent and other anci llary relief together with costs on a punitive scale.
[2] The respondent seeks a dismissal of the application, alternatively that it be
referred to trial for what they submit are substantial factual disputes raised by
the respondent, such as the failure to join the remaining shareholders and non -
compliance with rule 41 A which requires an applicant or plaintiff to serve on
each party to an action a notice which states whether they agree or oppose the
referral of the matter to mediation .
The parties
[3] The first applicant is As Van Dyk Family Trust (Pty) Ltd registration number
81/011236/07, a private company with limited liability, registered in terms of
South African Law.
[4] The second applicant is Justus Van der Berg N.O. an adult male of the farm
Boeken -houtskloof who acts herein as a trustee of the Justrie Trust, M aster’s
reference IT 12253/99.
[5] The third applicant is Maria Johanna Elizabeth Van der Berg N.O a major female
of the farm Boeken -houtskloof also in her capacity as trustee of the Justrie
Trust
[6] Johan David Kemp w ho is mentioned as a trustee in the letter of authority of the
Justrie Trust, is deceased and has not yet been replace d by another trustee.
[7] The first re spondent is Andreas Phillipus Ruldolph Kemp, a major male
attorney residing on the farm Zeekoegat 290 JR, Gauteng.
[8] The second respondent is Zee koegat Nr 14 (Pty) Ltd registered in terms of the
Company Laws of South Africa with r egistered address at plot 1[...] Z[...] ,
Pretoria.
[9] The applicant s served an application in terms of Rule 30 in they alleged that the
answering affidavit was irregular but that application seems to have been
abandoned.
[10] Similarly the applicants had raised the issue of representation of second
respondent by the first respondent as being incompetent in terms of Rule 7
but that is also no longer being pursued.
The Facts
[11] Both the first applicant and the Justrie Trust are shareholders of the second
respondent and they base their locus standi on their shareholding and that it
entitl es them to approach this court in term of section 61 (12) (b) of the Act.
[12] The first respondent is the sole remaining director of the second respondent and
there have been attempts to compel him as its so le director to convene a
shareholder’ meeting. One such meeting was scheduled to take place on 13
July 2021 at the off ice of J P Botha Accountants th ough it later turned out to
have been called in a defective manner.
[13] As a result, the shareholders abandoned any reliance on the purported removal
of the first respondent as a director of the second respondent at that meeting .
They decided to initiate a new process.
[14] The first applicant and the Justr ie Trust are shareholders of the second
respondent, each holding 14% of the issued shares therein.
[15] The last shareholders meeting was convened about 5 years ago and despite
numerous requests by the applicants to the first respondent to call a meeting
to discuss important matters including a possible removal of the first
respondent as a director of the second respondent, the requests have fallen
on deaf ears.
[16] In terms of section 61 (3) of the Act, the board of a company must call a
shareholders meeting if one or more written and signed demand is delivered
to the company and such demand specifies the purpose for such meeting at
the earliest possible time. The demand must be by at least 10% of the voting
rights entitle to be exercised in relation to the matter proposed to be
considered at the meeting.
Demand by the applicants
[17] On 3 May 2022 the first applicant and Justrie Trust delivered a signed and
written demand (the notice) which complies with section 61 (3) of the Act on
the first respondent.
[18] The said notice was personally delivered on the first respondent by A van Dyk
Snr and Adriana Esther Van Rensburg on 3 May 2022 and he is enjoined
accordingly to convene a shareholders meeting by statute.
Failure to comply with a demand
Should a company fail to convene a meeting for any reason other then those
contemplated in section 61 (11) when requested by shareholders in terms of
subsection (3) to convene a meeting a shareholder may apply to a court for an
order requiring the company to convene a meeting on a date considered by the
court as appropriate in circumstance s such as those set out in the present
application.
The issues
[19] What this court has to determine is whether the issues raised by the first
respondent such as the non -joinder of other shareholder and the allegations
that the applicants had disposed of their of their shares in terms of
agreements of sale are sustainable in law.
[20] In short the court has to determine whether there is any justification for the first
respondent ‘s failure to call a shareholders meeting or whether first
respondent should be directed to convene a shareholder’s meeting as
requested.
Opposition by the respondents
[21] This application is being opposed by the respondents. The first respondent
delivered an answering affidavit totall ing 157 pages without the annexures .
With the annexures the affidavit is 739 pages.
[22] It does appear that this amounts to an obfuscation by the respondents as their
affidavit fails to address any of the issues applicable to this application.
[23] Whilst is common cause that the history of this matter involves other members
of the family that history does not impede the application of the provisions of
section 61 (3) of the Act. That section, in essence is meant to provide an
opportunity for any affected shareholder to be updated and informed
regarding company matters and the issue of non -joinder is merely a red -
herring raised by the respondent by the respondents.
[24] Further, the issue of the purported sale of shares predates this application by
about ten (10 years) and i t is common cause that the relevant sale
agreements were never pursued to their logical conclusion .
[25] Notification of other shareholders is provided for in the application itself in that, if
the applicants succeed and the order is granted, the court shall order that the
first respondent as the sole director should call a shareholders meeting as
prayed for in prayer 1 of the notice of motion, and that he must notify all the
shareholders thereof as prayed for in prayer 2 of the notion of motion.
[26] No rights of their’s will be infringed or affected prejudicially by the order of the
court in these proceedings.
[28] Instead, they will be granted an opportunity to vote and exercise their rights
which then have been denied in excess of five (5) years.
[29] The other shareholders’ rights are therefore not prejudicially affected by the
granting or dismissal of this application.
[30] Further, other shareholders have an additional protection in that they can apply
to set aside the order in terms of section 61 (5) of the Act on the basis that the
application is frivolous o r vexatious .
[31] In light of the above, I make the following order
Order
31.1That the First Respondent be directed to convene a shareholder’s
meeting of the Second Respondent, as contemplated in section 61(12), read
with section 61(3) of the Companies Act, Act 71 of 2008, for the shareholders
of the Second Respondent by no later than 15 April 2025 ;
31.2 That the First Respondent be directed to deliver a notice to all
shareholders of the Second Respondent in the prescribed manne r and form
for the meeting at least 10 (ten) business days before the meeting is to begin;
31.3 That the First Respondent be directed to deliver the notice to all
shareholders of the Second Respondent in t he prescribed manner and form of
for the meeting, within 14 (fourteen) days from the service of any order
granted in terms hereof;
31.4 That should the First Respondent fail to deliver a notice as envisaged in
paragraphs 2 to 3 supra, that the First, alt ernatively the Second and Third
Applicant/s be authorised to deliver a notice to all shareholders of the Second
Respondent in the prescribed manner and form as of the record date for the
meeting at least 10 (ten) business days before the meeting is to begin;
31.5 That the content of the Demand for a Shareholders’ Meeting dated 28
April 2022 and the proposals contained therein, delivered on 3 May 2022 in
terms of section 61(3) of the Companies Act, Act 71 of 2008 on the First
Respondent, and of which a true copy is appended hereto marked “X”, be
discussed, and resolved during said meeting; and
31.6 That the costs of the application be borne by the Second Respondent
which costs are to be taxed on Scale C in terms of Rule 69(7), such costs to
include costs of counsel.
SELBY BAQWA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing: 14 October 2024
Date of judgment: 7 March 2025
Appearance
On behalf of the Applicants Adv WW Gibbs
waynewgibbs@gmail.com
Instructed by Van Dyk Steenkamp Attorney Inc
behalf of the Respondents Adv M Snyman SC
smphahlele@law.co.za
Instructed by Cremer & Strydom Inc