REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025-012813
DATE : 17 February 2025
In the matter between:
WIA INVESTMENTS SA (PTY) LIMITED Applicant
and
JEFFREY SIDNEY ROBILE First R espondent
SLOBBODAN (‘BOBBY’) KUPRESAAN Second Respondent
SUNELEX ENERGY (PTY) LIMITED Third Respondent
Neutral Citation : WIA Investments SA v Robile and 2 Others (2025-012813)
[2025] ZAGPJHC --- (17 February 2025)
Coram: Adams J
Heard : 11 February 2025
Delivered: 17 February 2025 – This judgment was handed down
electronically by circulation to the par ties' representatives by
email , by being uploaded to CaseLines and by release to SAFLII.
The date and time for hand -down is deemed to be 10:30 on
17 February 2025.
(l) NOT REPORTABLE
(2) NOT OF INTEREST TO OTHER JUDGES
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Summary: Civil procedure – urgent application – for interdictory relief against
directors of company – factual dispute going to the heart of the matter –
respondents’ version cannot possibly be rejected on the paper – this is fatal to
applicant’s cause – application should also fail due to lack of urgency – any
urgency self -created –
Urgent application struck from the roll for lack of urgency .
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ORDER
(1) The applicant’s urgent application be and is hereby struck from the urgent
court roll for lack of urgency.
(2) The applicant shall pay the first and the second respondents’ costs of this
urgent application, such costs to include Counsel’s charges on scale ‘C’ of
the tariff applicable in terms of the Uniform Rules of Court.
JUDGMENT
Adams J :
[1]. On 15 August 2024 a company by the name of Sunelex Group (Pty)
Limited (Sunelex Group) and the applicant (WIA Investments) concluded a
written Sale of Shares and Claims Agreement (sale agreement) in terms of
which Sunelex Group sold to WIA Investments all of the issued shares in the
third respondent (Sunelex Energy), as well as the loan account of Sunelex
Group against Sunelex Energy, for the purchase price of R150 million. The first
respondent (Mr Robile) and the second respondent (Mr Kupresaan) are
shareholders in and of Sunelex Group . The y acted as directors at all relevant
times of Sunelex Group . The purchase price of R150 million was payable by the
seller to the purchaser on the ‘effective date’, defined as the day following the
date of fulfilment of the conditions of the sale agreement.
[2]. At a meeting on 22 October 2024 ostensibly of the shareholders of
Sunelex Energy, which meeting had been convened by WIA Investments,
Messrs Robile and Kupresaan were removed as directors of Sunelex Energy.
They refuse to accept their removal and have steadfastly maintained that they
are and remain directors of the company. The resolution taken at the meeting
on 22 October 2024 to have them removed as directors of Sunelex Energy, so
Mr Robile and Mr Kupresaan contend, is a nullity as WIA Investments, despit e
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their claim to the contrary, did not acquire the shareholding in the said company
and could therefore not make those decision qua majority shareholders of
Sunelex Energy.
[3]. In this opposed urgent application WIA Investments applies on an urgent
basis for an order in the following terms: -
‘(1) … … …
(2) The first and second respondents are hereby restrained and interdicted from
representing the third respondent in any capacity whatsoever, inclusive that of
director.
(3) The first and second respondents are furthermore restrained and interdicted from
interacting with any financial institutions, with a view to soliciting funds, or even
creating the impression that they are attempting to act in the interest of the
Matjhabeng Solar Energy Project in the Free State Province.
(4) The First and Second Respondents are hereby restrained and interdicted from
instructing Deon Govender and/or Bonisile Majavu, respectively the firms
Covington & Burlingh (Pty) Ltd and Bonisile Majavu Incorporated, or any other
firm of attorneys for that matter to represent them in as far as the Matjhabeng
Solar Energy Project is concerned.
(5) The relief sought from paragraphs 2 to the present one of this order is to operate
as interim relief pending an application to be brought by the CIPC of South Africa
supported by the Applicant, with a view to having the First and Second
Respondents declared delinquent Directors, and in addition thereto, put on
probation for life, which application is to be initiated by no later than February
2026, when the South African Police Services, as well as the CIPC shall have
completed their investigation into the fraudulent activities of the First and Second
Respondents in respect of the Matjhabeng Solar Energy Project.
(6) The First and Second Respondents are hereby ordered to pay the costs of this
application on an attorney and client basis, with the C scale in mind.
(7) Further and/or alternative relief. ’
[4]. In issue in this opposed urgent application is whether factually Messrs
Robile and Kupresaan could and should have been removed validly as directors
of Sunelex Energy at the 22 October 2024 meeting . Closely related to this issue
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is whether factually the meeting of the shareholders of Sunelex was properly
convened and whether any resolutions passed at that meeting had any binding
force.
[5]. The main difficulty with the applicant’s cause is that there is clearly a
factual dispute between the parties , which goes to the heart of the matter. The
dispute in a nutshell is whether , by the date of the ‘shareholders meeting’ on 22
October 2024, WIA Investments had acquired the majority shareholding in
Sunelex Energy, entitling it to remove the first and the second respondents as
directors of the said company. The first and the second respondents allege that
the purchase consideration had not been paid by WIA Investments as provided
for in the sale of shares agreement. Therefore, so the contention on behalf of
the respondents goes, a condition precedent had not been fulfilled, which, in
turn, means that the sale and transfer of the shares did not materialise. On my
reading of the papers, there appears not to be any dispute about this fact. That
then means that the applicant’s case falls flat on that factual basis alone.
[6]. The point is that the factual dispute is fatal to the applicant’s case even in
the context of what it terms an application for interim relief, which requires the
applicant to demonstrate a prima facie right even if open to some doubt. The
applicant is not entitled to the relief claimed by it in this application in view of the
version of the first and the second respondents, which cannot possibly be
rejected out of hand.
[7]. For this reason alone, the application should fail.
[8]. There is another reason why the applicant ’s application should fail and
that relates to the issue of urgency. The first and the second respondent also
oppose the urgent application on the grounds that the application is not urgent.
In the event that it is determined that there is any urgency, then it is submitted
on behalf of the respondents , that the urgency is entirely self -created. The
applicant, so the respondents contend, have been aware since at least 22
October 2024 that, according to them (the appli cant), that they (the first and the
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second respondents) are supposedly no longer directors of the Sunelex Energy.
The first and second respondents made it clear all along that they continue to
regard themselves as directors. The rhetorical question to be asked is why the
applicant took so long from November 2024 to February 2025 to launch this
application, if, in their view, the matter is so urgent.
[9]. I find myself in agreement with th e submissions on behalf of the first and
the second respondents . The simple fact of the matter is that howsoever one
views this matter the applicants should have launched this application much
sooner than they actually did.
[10]. This Court has consistently refused urgent applications in cases when
the urgency relied -upon was clearly self -created. Consistency is important in
this context as it informs the public and legal practitioners that Rules of Court
and Practice Directives can only be ignored at a litigant's peril. Legal certainty is
one of the cornerstones of a legal system based on the Rule of Law.
[11]. For all of these reasons, I am not convinced that the applicant ha s
passed the threshold prescribed in Rule 6(12)(b) and I am of the view that the
application ought to be struck from the roll for lack of urgency.
[12]. The application therefore falls to be struck from the roll and the costs .
Order
[13]. In the result, I make the following order:
(1) The applicant’s urgent application be and is hereby struck from the urgent
court roll for lack of urgency.
(2) The applicant shall pay the first and the second respondents’ costs of this
urgent application, such costs to include Counsel’s charges on scale ‘B’ of
the tariff applicable in terms of the Uniform Rules of Court.
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_________________________________
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg
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HEARD ON: 11 February 2025
JUDGMENT DATE: 17 February 2025 – Judgment handed
down electronically
FOR THE APPLICANT : C Georgiades SC
INSTRUCTED BY: Ngcingwana Incorporated , Sandton
FOR THE FIRST AND
SECOND RESPONDENT S: A E Ayayee
INSTRUCTED BY: Bonisile Majavu Incorporated ,
Johannesburg
FOR THE THIRD RESPONDENT: No appearance
INSTRUCTED BY: No appearance