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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number : 12794/202 4
In the matter between:
K2022504463 SOUTH AFRICA (PTY) LTD First Applicant
THE BEACH COUN TRY & SAFARI Second Applicant
COLLECTION (PTY) LTD
and
STEPHEN MARK VAN ROOYEN First Respondent
PATRICK MARCO HAUSOTTER Second Respondent
JONAS HANDEKYN Third Respondent
MY DESTINATION HOLDINGS (PTY) LTD Fourth Respondent
and
MARCEL YVON MARIE DE MAUDAVE BESTEL Third Party
JUDGMENT
PARKER, AJ:
Introduction
2
[1] It is about money and friendship . The envisaged t hird party is the sole shareholder
and director of both Applicants (hereinafter referred to as “Bestel ”). As for first r espondent ,
he will hereinafter be referred to as “Van Rooyen ”. These two parties are now in a boxing
ring after a promising future floundered, which had its genesis in a business venture in the
hospitality sector. They concluded an oral agreement based on the trust between them and
agreed to structure the business in a certain manner due to the personal circumstances of
Van Rooyen . They agreed to team up to create a business in which they would purchase
immovable property on the Breede River to conduct a resort business .
The issues
[2] The applicants as the registered owner of the immovable property and the business
conducted thereon, respectively, are seeking an order of eviction and interdict restraining
the respondents from using any of the assets . Van Rooyen denied that the respondents
are in competition with the applicants and alleging there is no evidence to prove it . The
second and third respondents are the “investors ” in the venture and will be referred to as
such. They , along with the first and fourth re spondents oppose the grounds sought by the
applicants, namely that;
2.1 The respondents be evicted from Portion 4 […] of the Farm A[…], Erf 1[…],
Swellendam, Western Cape .
2.2 The respondents be interdicted and restrained from using any of the assets of
the applicants for commercial purposes.
[3] The investors do not reside at the business however visited it from time to time. Their
opposition to the action brought by the applicants is based on their investment capital paid.
3
The first respondent opposes the eviction on the basis he resides there most of the time.
The fourth respondent (hereinafter referred to as “MDH ”) of which Van Rooyen is the
director of, has its registered addres s at 2[…] T[…] Ave B[….], Cape Town . This is also
the address disclosed by Van Rooyen in his opposing affidavit as his address.
Bestel’s version
[4] A property holding company, the first applicant (hereinafter referred to as “K2”)
would be formed in which investors could acq uire a stake to fund the purchase of the
immovable property which became the registered owner .
[5] Bestel’s versio n is, Van Rooyen and he agreed that they would incorporate a second
company which would be the operating company to conduct the business (“the resort” ) and
accordingly second a pplicant (hereinafter referred to as “BCSC ”) came into being . The
proposed structure was that BC SC would own 100% of the shares in K2 and that Bestel
would hold all the shares in BC SC and be the sole director of both companies . This
arrangement was due to Van Rooyen ’s difficult past which affected his reputation; hence
the structure was agreed upon to mitigate potential prejudice to their intended business .
On this basis , the two men agreed that Van Rooyen would stay outside of the formalities
of the entities. Accordingly, it was agreed that B estel would hold 50% of the shares in
BCSC on Van Rooyen’s behalf and the other 50% will be held by himself .
[6] According to Be stel the purchase of the immovable property required substantial
investment and its development in the amount of between R10.5 million to R15 million and
thereafter about R4.5 million for its renovations . This venture required financial resources
and business acumen which Bestel claims he undertook to contribute towards, i ncluding
funding all the initial expenses relating to the launch of the project including the purchase
of both BC SC and K2 as a shelf company .
4
[7] To finance the first phase of the project Van Rooyen identified the two investors who
agreed to invest €300,000 each into the venture in return for a 25% interest in K2 . Bestel
learnt that there was a shortfall in the payment due by the investors of an amount of
€150,000 , which resulted in Bestel securing a loan for R2.5 million being the shortfall
needed to effect payment to the conveyancing attorneys for the transfer and registration of
the property after Van Rooyen ’s payment left a shortfall of R1 million.
[8] The parties agreed that Van Rooyen would manage the resort at a salary of R30
000 per month and he would also oversee the renovation of the resort . The business went
through some financial woes emanating from two storms which hampered the full
development and the renovation s. Despite an interest by a certain Mr Marcel Golding in
the business , the said Golding declined to invest in the project allegedly due to Van
Rooyen's failure to make full disclosure of the exact financial position of the business with
a proper accounting thereof .
[9] Despite hiccups , the renovations went ahead, and it was Van Rooyen ’s goal to
launch a new resort on 31 December 2023 for the New Year's Eve music festival . Bestel
contends that the event would be hosted by the BCSC and all deposits received from the
250 prospective festival goers would be for the benefit of BCSC . Unfortunately, the
intended event did not materialis e as intended due to certain concerns raised by neighbors.
[10] Instead and w ithout Bestel's consent, Van Rooyen proceeded to host a toned down
event at a New Year's Eve event at the resort. Van Rooyen on the other hand stated that
this event was done with the consent of the legal coun sel for the municipality . The lack of
financial disclosure reached a boiling point when Van Rooyen demanded that payments
be made from the BCSC's account to a third party for certain refunds for the ca ncelled
festival, which payment request Bestel did not accede to.
5
[11] The relationship between them became fractious and broke down irretrievably. To
preserve the company's assets Bestel brought an ex p arte application for an interim
interdict restraining payments from Van Rooyen's bank account in which a final order was
granted on 9 April 2024 in this court by Justice Sh er. Applicants issued an action against
Van Rooyen , calling upon him to render a true and proper statement of account which was
at the date of this hearing , still pending. In addition, seven neighbors of K2 brou ght an
application against BCSC, K2 and the respondents praying for an order , inter alia, declaring
the use of the resort unlawful and seeking an interdict to prevent Van Rooyen to hold any
further musical festivals .
Van Rooyen’s version
[12] According to Van Rooyen, a special vehicle company (SPV) would hold the
immovable property directly which would allow for investors to enjoy the flexibility of buying
shares in the S PV which h e had envisaged as the structure for the ownership of the
property . For the management of the property , he envisaged setting up a second company
which he would own outright . He would be responsible for the upkeep of the property ,
booking guests, marketing to potential clients and arranging dates for events .
[13] In his opposing affidavit he disclosed an overall picture of him being the mastermind
of the venture , that he identified the resort property in the Bre ede River, he saw the potential
for the digital nomad market, and he engaged the investors before ap proaching Bestel. For
this, Van Rooyen’s contribution would comprise not only a R5 million financial contribution
but also what he terms as the “sweat equity” for which he would take up a 50% stake in the
SPV. According to him the two investors were already in a business relationship with him
and the shareholdings between the four of them (including Bestel) would be 25% each .
This was not acceptable to Bestel, and accordingly the investment agreement was not
signed by B estel. Furthermore , he agreed the 50/50 co ownership terms of BCSC were
that Bestel would hold Van R ooye n's 50% stake in his own name .
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[14] On his version, Bestel became a problem when he did not come up with a R2.5
million Rand which left them with a shortfall to fund the purchase of the resort and the
planned renovation s.
[15] Furthermore , it is alleged that Bestel showed a lack of interest in the project and
asserted that he was “never - not once been to the resort .” This was denied by Bestel.
Also, Bestel failed to open a bank account for K2 which caused Van Rooyen to open up a
separate bank account. This too was denied by Bestel because according to him the BCSC
account was already in existence on 2 December 202 2 which Van Rooyen had knowledge
of as Bestel furnished him with the bank details on 5 December 202 2. The BCSC bank
account details were also used by Van Rooyen in e-mails dated 6 April 2023 and 14 April
2023 respectively, where he set out that the BC SC bank details changed on 24 January
2024 ultimately for MDH.
[16] Van Rooyen offers the explanation to be - the running of the resort required money
for the renovations and since Bestel did not open the bank account of K2, it necessitated
the continued using of the MDH as a solution. Of critical importance, Van Rooyen concedes
that Bestel was not part of that decision .
[17] Insofar , as the unhappiness stemming from t he adjoining neighbo urs, Van Rooyen
says there was a disinformation campaign to convince several neighbo urs that the planned
New Year's Eve event would spell trouble . Van R ooye n concedes that he proceeded with
a much smaller tone d down New Year's Eve party with 130 guests in attendance which,
under the mu nicipal bylaws, was permissible . The cancellation of the bigger event caused
cancellations of various service providers and K2 and BCSC lost o ver a R1 million in los s
of profits. Interestingly , applicant ’s argument was made that the service provider refunds
requested by Van Rooyen to be paid from the BCSC account was refused by Bestel.
7
[18] On respondent’s version , second, third and f ourth respondents are not resident at
the resort. As for the fourth respondent , it’s registered address and that of Van Rooyen ’s
address (as contained in his opposing affidavit) is the same, in Bakoven. Van Rooyen
states that therefore there is no evidence to support the applicant ’s suggestion that the
second and third respondents are in fact in unlawful occupation of the resort. As for Van
Rooyen’s occupation of the resort he cont ends that the occupation is not unlawful since he
spent a great deal of time there as a part owner of th e business and he is within his rights
and fundamentally entitled to be there and to carry on a trade there . He therefore seeks
the protection under the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998 ( PIE).
[19] Van Rooyen is the partner who has been at the resort living there most of the time
to renovate and run the business and it was agreed Bestel would be the initial placeholder
shareholder and figurehead director of K2 and BCSC . According to Van Rooyen, Bestel
understand s that he i s liable to transfer 25% of K2 to second and third respondents, and
that he Bestel as figure head , holds 50% of BCSC for V an Rooyen .
Analys is
[20] Of importance , Bestel and Van Rooyen are embroiled in an action in respect of the
debatement of account relating to monies paid by the two investors to Van Rooyen,
destined for K2 , which is still ongoing. Since these monies were paid into the MDH account
it is yet to be determined whether the investors paid their full investment and whether these
full amounts were employed for the benefit of K2 , all of which remains to be seen .
[21] As stated by Bestel the proverbial key to unlocking the transf er of shares has
therefore always been with Van Rooyen . Since full payment has not been made by the
investors the shareholding cannot be determined .
8
[22] Because of the breakdown of the relationship , disciplinary action for the dismissal
ensued for the dismissal of Van Rooyen as manager of BCSC and K2 .
[23] It is clear that a factual dispute exists between the parties relating to the structure
of the business and the debatement of the account in respect of the lis pending will
hopefully resolve those issues. It is unclear whether the intention was that BCSC would
manage the resort and would result in it enjoy ing a stake in the K2, in contrast to Van
Rooyen ’s contention that BCSC was never going to be the owner of K2 .
[24] Bestel shows that Van Rooyen’s version is demonstrably false if one has regard to
and exchanges put up by him , in his opposing affidavit . These were contained in the
annexures to agreements i n terms of which BCSC sold shareholding in K2 to each of the
investors without B estel concluding the agreements with the investors , conflicts with the
version put up by Van Rooyen. This position is made worse in lieu of Van Rooyen’s’
explanation of the structure to Golding.
[25] The respondents are of the view that the factual disputes are best determined by
way of an action and not by motion proceedings. Furthermore, there is a lis pending that
should follow that normal course to steer the determinat ion of this matter. However, w hat
serves before me is firstly an eviction from the premises owned by K2 and secondly, in
relation to the business conducted on it , for the restraint of the respondents. Both of
which relates to a c ommercial eviction.
[26] In respect of the issue of an interdict restraining the respondents from using any of
the assets of the applicants for commercial purposes the requirements for an interdict are
trite.1 In this regard the relief sought by applicants is that of final relief . First a pplicant is
the owner of the immovable property. Second a pplicant is the owner of the busines s
1 Rule 6 (12) Uniform Rules of Court: Superior Court Practice, Erasmus.
9
conducted on the property of first a pplicant. Therefore, the applicants meet the first
requirement of possessing a clear right.
[27] How the two investor s came to be in possession of the premises is unclear .
According to Bestel the two investors and Van R ooyen do not have permission to occupy
the resort from the first applicant’ s board of directors , at the very least, not any longer. To
this end, applicants seek to interdict the investors also from using its assets as the investors
and Van Rooyen continue to operate the resort for the benefit of MDH unlawfully . In this
regard the injury is the continued occupation and the use in competition with the applicant s.
[28] The underlying problem is that Van Rooyen has not accounted to Bestel hampering
the determination of the investors transfer of shareholding in K2. Th is is the crux . This
underlying issue which respondents rely upon , in the guise of a factual dispute to resist
both the issues, h owever, respondents lose sight of t he current legal position. Bestel is the
sole director of both applicants. On Van Rooyen’s own version he occupied the resort and
utilised it for fourth r espondents benefit . It is not denied by Bestel that second and third
respondents through the injection of €300,000 as investors into the great plan would in
return hold a 25% interest in first applicant.
[29] It appears the investment happened; however, applicants did not see the money in
either of their bank account s as it was contended that there was a short payment . It is here
that the wheels start ed coming off . According to Bestel, the investors paid their investment
to Van Rooyen . This is not denied by Van Rooyen who according to him, utilized these
funds to manage the resort.
[30] Bestel has shown that the applicants have no alternative remedy in respect of the
eviction and the unlawful competition , particularly since the defences raised by the
respondents do not support their defences to the main action. As to an alternative remedy,
the current lis (the debatement case) in my view, as a defence, is unsustainable.
10
[31] Van Rooyen opposes the eviction on the basis t hat he wants the court to acce pt
that the business premises are his primary residence. Firstly, there is no escaping the
nature of the business . It is in the hospitality sector which may include sleeping at the
accommodation of the business premises. However, i t is a commercial concern. I found
it hard to accept that this is Van Rooyen ’s primary residence. I say so because of w hat is
before me - he disclosed an address at 2 […] T[…] Ave, B […], Cape Town , in his
answering affidavit “my address is 2 […] T[…] Avenue, B[…], Cape Town. Although I stay
a lot of time at portion 4 […] of the Farm A […] of 1[…] Swellendam .”2
[32] I accept that Van Rooyen may for such purposes and in furtherance of his duties
has slept at the business premises. But that had changed due to him not being the
manager for the applicants any longer. However , if one looks at what the definition of
primary residence is, it is far-fetched to accept the business premises to be Van Rooyen’s
primary residence. Neither does the Pie Act assist Van Rooyen. This is a commercially
run bu siness and Van Rooyen falls outside the definition of a vulnerable person under PIE
and the same argument therefore applies to the investors.
[33] Applicants lean on Stay at South Point Properties (Pty) Ltd v Mqul wana and Others3,
where t he appellant was nonsuited for failure to comply with P IE finding the application
fatally defective . “The appellant contended that the residents did not constitute the
respondents home ,and if evicted , they would not be rendered homeless because they
had homes to go to” .4 However, by the time the hearing of that application took place the
students had already vacated the accommodation and although the issue became moot ,
because of the wider and far-reaching implications of the evictions of students from student
accommodation the ap peal hearing proceeded .
2 Page 85 of the record
3 2024 (2) SA 640 (SCA)
4 Ibid para [4]
11
[ 34] The court went on to consider what is meant to be a “home ”, and followed the
approach in Barnet t5, that the sensible and ordinary meaning of the home is a place with
regular occupation with some degree of permanence . The court found that the eviction
does not render the students homeless because the students had homes other than the
residen ce. Importantly the student accommodation was said to be precisely that ,
“accommodation is not a home , it is a residence , of limited duration, for a specific purpose
that is time bound by the academic year… ”.6
[35] Accordingly, the court found that PIE did not apply to the unlawful occupation by the
respondents of th e student accommodation having found , if “the occupation of land does
not constitute the home of an occupier, PIE does not find application .”7 Since Van Rooyen
is no longer treated as an employee, he no longer holds the position as employee and by
implication any benefits which he may have derived from such employment is terminated.
Accordingly , the first respondent’s reliance on PIE is opportunistic .
Conclusion
[36] Whilst I agree that juristic person a acts only through its board and permission to
occupy can o nly be granted by its director, Bestel. T here is no escaping that the two
investors had ventured their money into a great plan which now has bellied up and as
sympathetic as I may be with the inves tors, their rights are hanging on a thread as against
the legal title that applicants have, thus leaving the investors in the proverbial cold. The
sooner the debatement of account is resolved, the sooner the investors will know where
they stand. However, as it currently is, the investors have not raised a sustainable defence
to the issues at hand in this application .
5 Barnett and Others v Minister of Land Affairs and Others (304/06) [2007] ZASCA 95; 2007 (6) SA 313 (SCA) 2007 (11)
BCLR 1214 (SCA) (6 September 2007) para [37] - [38]
6 Supra Stay at South Point Properties Pty Ltd para [17]
7 Supra para [9]
12
[37] The respondents’ basis of opposition to resist the eviction , one that Van Rooyen
resides at the resort and accordingly the provision of PIE applies , cannot be correct for
reasons f urnished earlier . In any event Van Rooyen confirms that neither of the investors
are resident at the resort therefore this defence only applies to hi m. In any event even if
one concedes that his duties as the erstwhile manager of K2 and BC SC would be such that
he would from time to time overnight there , it is clear that he is no longer employed by the
applicants when Van Rooyen was dismissed pursuant to a disciplinary hearing which he
did not attend on 1 3 March 2024 and therefore there is no merit in his defence .
[38] The second defen ce raised is that none of the respondents are in unlawful
occupation because according to them they are entitled to the majority shareholding in K2 .
It was argued that a party’s mere ownership of shareholding in an entity does not entitle
them to unfettered use or occupation , of that entity ’s property . This is so because juristic
entities act through their directors .
[39] As such the competition is ongoing as the respondents are inten t to continue with
their business . Accordingly, no weight can be attached to Van R ooyen's version that he
and the respondents are not competing with the applicant when the facts show otherwise.
[40] The facts upon which the applicants rely for the re lief sought in the main application
is notwithstanding the denials by the respondents clear and not contested on a genuine
and bona fide basis .
[41] Whilst it is my view that Van Rooyen has no legal basis to be in possession of the
premises or the business, a pplicants succeed with the interdict and eviction against him.
[42] The two investors have not disclosed the basis for their occupation save for the
investmen t destined for the a pplicants, however it was paid elsewhere, thus leaving them
with no protection ether.
13
[43] In the result , since Bestel is the only share holder of the applicants and the dispute
regarding first to third r espondents in relation to their shareholding in K2 , is of no
consequence . Simply put , Bestel is the sole director of both K2 and BCSC . The
respondents including fourth respondent, occupy the premises unlawfully without the
consent of the board of directors of K2 and are unlawfully using its assets including that of
BCSC , in the sense that they have taken control thereof . The respondents conduct the
business of the resort at the property with proceeds flowing to the fourth respondent ,
(admittedly so, by Van Rooyen) to the exclusion of the applicants . Lastly the respondents
do not have the permission of K2 , or BCSC, through Bestel as the director , to occupy the
resort or to utilize it for any purpose .
The Counter Application
[44] The respondents have failed in respect of two issues , firstly whether it is a proper
for the respondents to join Bestel as a third party , to then claim the relief that Bestel
transfers shareholding in the applicants to them . To this end Beste l relies on the pending
lis. The dispute pertaining to the shareholding of the respondents is not relevant to the main
application which relates to the eviction on the basis that the respondents do not have the
applicant s’ permission to occupy the premises. Therefore, the relief sought in the counter
application has no bearing to tha t sought in the main application and it is not an appropriate
for Bestel to be joined to these proceedings.
[45] To make out a case for the substan tive relief against Bestel in the counter
application , the respondents do not seek direct relief against a ny of the applicants. Instead,
they seek to introduce an alternative lis between themselves and Bestel pertaining to the
subject matter that is unrelated to the main application.
14
[46] It is trite that the test to determine whether there is a misjoinder is whether the party
to be joined has a direct and substantial legal interest in the subject matter of the litigation
which might be affected prejudicially by the judgment of the Court.8
[47] I agree with the Applicants that a party who has a financial or commercial interest in
the relief claimed, but no legal interest, should not be joined as a Plaintiff.9 Bestel’s joinder
and the introduction of the claim under the counter application is also not justified based
on convenience. The factual matrix of the counter application is entirely distinguishable to
the main application and the matter turns on significant factual disputes namely that of the
payment by the investors, t he content of the agreement between Bestel and Van Rooyen
pertaining to the structur e of the business; and the way Van Rooyen utilised funds paid to
him by the investors
[48] The respondents have raised w ide ranging disputes of fact and Bestel has replied to it
in detail pointing out the incorrect and conflicting submissions made by Van Rooyen with
the shareholder dispute as the crux of the matter especially that of the shareholding of K2 .
The respondents sought to rely on the factual dispute s as grounds for it to be referred to
oral evidenc e. I disagree for the reason that the respondent s have failed to raise a defence
to the main action.
The application to strike out
[49] The respondents sought an application to strike out certain paragraphs of the
replying affidavit on the basis that it contains new matter and in certain instances, hearsay,
privileged or irrelevant and vexatious.
[50] The first two objections being paragraphs 23 -24, relates to Van Rooyen ’s initial
occupation of the resort on account of his position as manager of both applicants and his
8 Henri Viljoen (Pty) Ltd v Awerbusch Brothers 1953 (2) SA 151 (O) at 169H. See also National Union of Metalworkers
of South Africa v Intervale (Pty) Ltd 2015 (2) BCLR 182 (CC) para14.
9 Agriplas (Pty) Ltd v Andrag Ampersand Sons (Pty) Ltd 1981 (4) SA 873 ( C) at 890B -C
15
dismissal. I see no difficulty with this, it certainly does not constitute new matter as alleged
by the respondents of the applicant's aim to patch up what was not contained in the
founding affidavit.
[51] However, in my view the founding affidavit made references to Van Rooyen’s
dismissal as manager of the applicants when the disciplinary hearing took place on 13
March 2024. This was not dealt with by Van Rooyen in his answering affidavit. To that
extent th e strike out will not be upheld.
[52] In respect of paragraph 38, being Van Rooyen ’s e-mail to Bestel at annexure FA 14
wherein Van Rooyen’s refusal to attend the disciplinary hearing and the inferences made
by Bestel flowing from it introduces new evidence .
[53] As for the complaints at paragraphs 39 that applicants are parachuting in the reply
and therefore the content is inadmissible. I agree that Bestel was referring to the Kilb ride
application where certain admissions were made by Van Rooyen was dealt with by Van
Rooyen in the answering affidavit , however Van Rooyen dismissed it as a bald allegation.
[54] As such to the extent that paragraphs 38 and paragraph 39 are considered hearsay
and falls to be struck out. The same applies to paragraph 40.
[55] As for paragraphs 69 and 114, that relating to settlement negotiations as privileged,
are self-explanatory therefore also struck from the record.
Costs
[56] There are no reasons to depart from the usual costs order that costs follow the result.
[57] Accordingly it is o rdered that ;
1. The counter application is dismissed with costs .
16
2. The joinder application is refused with costs .
3. Paragraphs 38, 39, 40, 69 and 114 are struck out from applicants replying
affidavit .
4. The first respondent and f ourth respondents be evicted from Portion 4 […]
of the Farm A[…], Erf 1[…], Swellendam, Western Cape.
5. That the respondents be interdicted and restrained from using any of the
assets of the applicants for any commercial purposes.
6. The respondents are liable for costs as between party and party on scal e
B including the costs of counsel where so employed.
_______________________
PARKER AJ
Acting Judge of the High Court
Appearances
Counsel for the Applicants: Adv Pieter -Schalk Bothma
Instructed by: TSP Attorneys
Counsel for the First, Second, Third and
Fourth Respondent s: Adv R Patrick SC
Instructed by: Scherman & Associates
This judgment was handed down electronically by circulation to the parties’
representatives by email.