IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case No: 2025 -035918
In the matter between:
ANWESKUS EIENDOME EN BEHERENDE First Applicant
PRIMERE KOOPERASIE BEPERK
CHRISTIAAN JACOBUS RICHTER Second Applicant
MARTHINUS THEUNIS STEYN CALITZ Third Applicant
HENDRIK JOHANNES JAKOBUS HANEKOM Fourth applicant
DANIEL JOHANNES GROVE Fifth Applicant
and
GERT HERMIAS AGENBAG First Respondent
TREVOR HAYES Second Respondent
CAREL JOHANNES WARNICH Third Respondent
GERHARDUS PETR US BRITS Fourth Respondent
FIRST NATIONAL BANK LIMITED Fifth Respondent
Heard on: 25 March 2025
Delivered Electronically on: 30 April 2025
JUDGMENT
___________________________________________________________________
LEKHULENI J
Introduction
[1] On 23 November 2024, the second to fifth applicants were elected as
directors of the first applicant during a special general meeting called by the
applicants. The applicants held the special general meeting to appoint new directors
for the first applicant, replacing the first t o the fourth respondents in their current
roles as directors of the first applicant . The first and third respondents contest the
validity of the special general meeting held on 23 November 2024. They do not
accept the outcomes of the proceedings conducted at that meeting, which resulted in
their removal as directors of the first applicant.
[2] In this applic ation, the applicants seek a declaratory order confirming that the
special general meeting of the first applicant, held on 23 November 2024, was validly
constituted. In addition, t he applicants seek an order to confirm that the respondents
were properly re moved from their positions as directors of the first applicant at the
special general meeting convened on 23 November 2024. Furthermore, the
applicants request that the second, third, fourth, and fifth applicants be officially
recogni sed as directors of the first applicant.
[3] In summary, t he subject matter of this application concerns the respondents’
alleged failure to vacate their office as the board of directors of the first applicant and
to hand over the management of the first applicant to the new directors (the second
to the fifth applicants) elected at a special general meeting held on 23 November
2024. The respo ndents opposed this application save for the f ifth respondent. The
fifth respondent did not take part in these proceedings.
Background Facts
[4] The first applicant is A nweskus Eiendome en Beherende Primere Kooperasie
Beperk , a primary Co-operative constituted and registered in terms of the Co -
operatives Act 14 of 2005 (‘the Co -operatives Act ’) with the CIPC under registration
number 2016/001839/24, and having its registered address at Byneslaagte Farm,
Luztville, Matzikama Municipality, Western Cape.
[5] The background of the first applicant as explained in the respective affidavits,
is that it began with a group of independent thinking Afrikaners seeking freedom , and
a place to provide a haven for themselves and their families. The intention was to
establish a community where these Afrikaner s could thrive alongside like -minded
pioneers, allowing them the opportunity to live freely and collectively pursue their
aspirations in a peaceful and supportive environment.
[6] The concept emerged in July 2015 with a small group of Afrikaners, who later
became members of the first applicant. In October 2015, several farms were
selected as viable options for the establishment of the community of the Afrikaner
group, and after numerous visits to these farms, it was decided to put the o ptions to
a vote by individuals who were members of the group at the time. Pursuant thereto,
the first applicant , a Co-operative was then officially registered on 4 March 2016 in
terms of the Co -operative s Act. Its objectives are to purchase agricultural l and and
offer its Afrikaner members a self -sustaining community.
[7] Subsequent thereto, the first applicant's members decided that it should
purchase Byneslaagte farm, which was registered in the first applicant's name on 1
August 2016. In October 2016, the first member of the first applicant took up
permanent residence on the farm, followed soon by other members and their
families. All members of the first applic ant are subject to the Constitution and the first
applicant's internal rules and regulations. These relevant documents formed part of
this application. In addition, members of the first applicant agreed to adhere to the
first applicant's code of conduct, w hich is part of the applicant's governing
documents.
[8] In terms of clause 25 of the first applicant's Constitution, the first applicant has
three spheres of government, with the result that the directors' powers are split into
the administrative (Gem eenskapraad), legislative (Kongres) and judicial powers
(Heemraad). The President of the first applicant is the Head of the Co -operative and
the Head of the Gemeenskapraad. Among other things, the President is responsible
for assenting Bills, referring Bill s to the Kongress for reconsideration of the Bill's
constitutionality or referring Bill s to the Heemraad for a decision on the Bill's
constitutionality. The Kongres serve as the legislative body of the first applicant . The
Kongres has the power to make law s and regulations provided they are not
repugnant to the Constitution or any laws of the Republic of South Africa. The judicial
authority of the first applicant vests in the Heemraad. The Heemraad is entrusted
with the judicial function to interpret the la ws and regulations made by the Kongres
and must determine that they are not in breach of the first applicant's Constitution or
any laws of the Republic of South Africa. The Heemraad also decides issues of
discipline where the members violate the governing documents of the first applicant.
[9] The first applicant as a Co-operative has directors who are the Head and the
deputy head of the Kongres as well as the Head and deputy head of the Heemraad.
Each division within the institutional structure of the first applicant operates
independently and functions separately from the others. In terms of the first
applicant's constitution, the board of directors and members of the Co-operative
must perform and adhere to the laws made by the Kongres, the legislative body of
the first applicant.
[10] The first applicant's Constitution was duly registered with CIPC on 12 April
2018. By joining as members of the applicant, members of the Co-operative agree to
comply with and are contractually bound by the Constitution of the first applicant , any
amendments made to it, and any bylaws established by the Kongres. Members are
bound to make financial contributions to the first applicant as determined by the
Kongres. The Constit ution of the applicant provides that once a member's
membership is terminated, the member's shares must be cancelled by resolution of
the board. A member forfeit s his shares in the first applicant upon such cancellation.
Complaints against any member for v iolation of the Constitution of the applicant or
any governing documents of the first applicant are dealt with by the judicial body of
the applicant , the Heemraad. Against this backdrop, I turn to consider the respective
parties' cases.
The Applicants ’ Case
[11] The applicants aver that Byneslaagte farm was purchased in October 2016,
and many of the first applicant's members permanently reside on the farm. These
residents rely on the first applicant for the provision of basic delivery servic e.
According to the applicants, the first applicant is governed meticulously in alignment
with the guidelines set forth by the Co -operatives Act, as well as the principles
enshrined in its Constitution. The applicants posit that the first to fourth respondents
registered the Constitution of the first applicant with CIPC on 12 April 2018.
However, that happened without the member's oversight or approval.
[12] The applicants assert that during the past two years, the first applicant's
members and the first to fourth respondents ( the directors) were embroiled in
constant disputes. According to the applicants, the respondents, as directors of the
first applicant r uled the first applicant's affairs with complete autocracy. The
applicants further averred that the respondents did not conduct the applicant's affairs
in accordance with the Co -operatives Act or the first applicant's Constitution. The
applicants stated that the respondents, particularly the first respondent, did not
tolerate members questioning his leadership and summarily terminated their
membership.
[13] Mr Eben Oosthuizen, the deponent of the applicants' founding affidavit, stated
that on 13 June 2022, he was appointed as the first applicant's internal auditor.
During his tenure as an internal auditor, he discovered irregular spending concerning
a company, K2018234593 (South Africa) (Pty) Ltd t/a De Anker Boerdery. It became
clear that the res pondents' conduct and the lack of members' oversight was the root
of the problem with the management of the first applicant. Mr Oosthuizen stated
further that the first applicant has not convened an annual general meeting since
February 2023, allowing the respondents (the first applicant's directors) to rule with
impunity. Furthermore, its auditors have not signed off on the first applicant's annual
financial statements for the 2023 or 2024 financial years.
[14] Mr Oosthuizen mentioned that he then resolved to request the first to fourth
respondent s to call an annual general meeting to address these concerns. On 4
September 2024, he formally requested, in writing, that the respondents convene an
annual general meetin g as required by the first applicant's Constitution. That notice
included a request to elect a new board of directors. According to Mr Oosthuizen, he
and Mr Fourie, both members of the first applicant, signed the letter petitioning the
directors to convene an annual general meeting . Accordingly, Mr Oosthuizen
asserted that 17 of the first applicant's seventy -two members supported the request
for an annual general meeting, constituting support in excess of 20%.
[15] According to Mr Oosthuizen, t he respondents, as directors of the first
applicant, did not accede to the request for an annual general meeting. Instead, the
respondents issued an unsigned notice on 18 September 2024 informing Mr
Oosthuizen that his membership was terminated immediately. T he directors also
issued Mr Fourie with a similar notice terminating his membership. Mr Oosthuizen
asserted that the respondents adopted the tradition of meeting descent with
expulsion. As a result of the respondent's failure to convene the general meeting as
requested in the letter dated 4 September 2024, Mr Oosthuizen stated that he and
Mr Fourie proceeded to issue two notices convening a special general meeting and
with an agenda.
[16] This notice informed members that the respondents failed to convene a
general meeting after a request from members holding 20% voting rights and that
the special general meeting w ould be held on Saturday, 23 November 2024, at Stella
Winery, Kys Halte, R362, Vredendal. The notice also informed members that they
were welcome to attend the meeting virtually and that a link for that meeting would
be provided to the members before the meeting.
[17] On 11 November 2024, Mr Oosthuizen emailed those notices to the first
applicant's members including the first to fourth respondents as directors of the first
applicant . The directors did not circulate these notices to the members on the first
applicant's WhatsApp group platform. Accordingly, Mr Oosthuizen created a new
WhatsApp group, invited the first applicant's members a nd the respondents , and
circulated those notices on that WhatsApp platform. The request for a special
general meeting did not find favour with the respondents. The respondents, through
their legal representatives, addressed a correspondence to Mr Oosthuize n
requesting an undertaking that members will not convene a special general meeting.
[18] In response, Mr Oosthuizen insisted that the notice for the special general
meeting was validly issued. Furthermore, he indicated that the respondents' notice
conve ning an annual general meeting on 28 November 2024 is ill -conceived as it
does not accommodate the first applicant's members' needs, particularly in that it is
only available online, excluding most of the first applicant ’s members. On 15
November 2024, the respondent's legal representative circulated a letter to the
applicants' members urging them to disregard the special general meeting of 23
November 2024 and informing them that the respondents have convened an annual
general meeting that will take place on 28 November 2024.
[19] In the letter, the respondents' legal representative informed members of the
first applicant that the respondents did not authorise the meeting of 23 November
2024 and urged the members of the f irst applicant to disregard the special general
meeting of 23 November 2024. The respondents proceeded to show their discontent
with the dissenting members' intention to proceed with the special general meeting
on Saturday, 23 November 2024, by issuing an urgent application under case
number 24954/2024 on 21 November 2024 seeking to interdict the dissenting
members from convening a special general meeting.
[20] On 22 November 2024, Slingers J dismissed the respondents' urgent
application. In light of this court's dismissal of the respondents' application, the
dissenting members proceeded to convene a special general meeting on 23
November 2024. The special general meeting was attended by 22 members and
three proxies. According to Mr Oosthuizen, at the meeting, four members, namely
the second to the fourth applicant, were proposed and unanimously accepted to
serve as the first applicants' directors.
[21] Subsequent thereto , the newly appointed director s addressed a letter dated
28 November 2024 to the former directors informing them of the business conducted
at the special general meeting and that they are to vacate their offices . The former
directors did not vacate their o ffices and convened an annual general meeting on 28
November 2024. On 5 February 2025, the newly elected directors submitted the
change of directors to CIPC. On 7 February 2025, CIPC issued the certificate of
registration confirming the adoption of the new ly elected directors.
[22] The applicants asserted that the respondents refused to assist the new
leadership with a peaceful leadership transition. Accordingly, the new directors
cannot access strategic information, bank accounts, software systems, information
system , keys, and other infrastructure vital to the director s’ effective management of
the first applicant's interests. On 10 February 2025, the new chair of the board of
directors addressed a letter to the respondents (the alleg ed former directors )
requesting them to hand over the keys for all office vehicles and tractors to the new
directors. The new chair of the board also instructed the respondents to stop
representing to third parties, that they represent the first applicant, or to conclude
transactions on behalf of the first applicant or provide false information to members
of the applicant. The respondents refused to comply with the new directors' request.
[23] On 11 February 2025, the respondents, particularly Mr Agenbag, the first
respondent herein , addressed a letter to the members of the first applicant and
informed them that the respondents do not regard the newly elected directors as
legitimate. Instead, it is a hostile takeover of the first applicant. In the letter, Mr
Agenbag pointed out that they (former directors) reported the matter to the South
African Police Services (SAPS) and CIPC. He also mentioned that pending the
investigation of SAPS, they will not provide any documents or minutes to any person
until the finalisation of that investigation. Mr Agenbag stated that the respondents are
not obliged to accept or cooperate with the newly elected directors. SAPS declined
to investigate this matter as it alleged it does not fall within the domain of SAPS.
[24] Pursuant thereto, the applicants' attorneys addressed a letter to the
respondents and urged them to cease to represent to third parties that they
represent the first applicant or provide false inform ation to members of the first
applicant. Additionally, the applicant's attorney requested the respondents to comply
with the request of the new chair of the board of directors contained in the letter
dated 10 February 2025 . The applicant’s legal representa tive stated that legal
action s would follow if the respondents failed to comply with the request. In
response, Mr Agenbag maintained that Slingers J, in her order dismissing the
respondents' application for interdict, ruled that the special general meeting of 23
November 2024 was null and void. Mr Agenbag also stated in the letter that he had
lodged complaints concerning the newly elected directors with CIPC, SAPS and the
National Prosecuting Authority.
[25] The applicants asserted that in February 2025, the new directors became
aware that the respondents not only represent ed to third parties that they represent
the first ap plicant but are also effecting payments from the first applicant's bank
account. The applicants asserted that the new directors cannot effectively manage
the applicant's affairs when the respondent s refuses to vacate their offices and
provide the new directors with access to the necessary infrastructure and
information. On 7 February 2025, the new board of directors convened a meeting
with FNB and explained the unusual circumstances in which the firs t applicant found
itself. Since that meeting, the first applicant's bank accounts held with FNB have
been frozen.
[26] In addition, the first applicant established a general store on the farm,
providing its residents with all necessary household and agric ultural supplies as the
town is 60 km away from the farm. Many of the residents rely on the shop for all their
household needs. The general store supplies agricultural needs that residents rely
on for their family endeavours. According to the applicants, s ince the special general
meeting, Mr Agenbag, one of the former directors, refused to open the shop. The
applicants also mentioned other inconveniences caused by the respondent s not
handing over leadership to them, like not having access to the water schem e
diagram to ensure sufficient water. The applicant s implored this court to grant the
relief sought in the notice of application to enable them to manage the first applicant
accordingly .
The Respondents’ Case
[27] The respondents stated that members of the first applicant agreed to adhere
to and are both contractually and by law bound by the Constitution of the first
applicant as well as any amendments thereto and any by -laws made by the Kongres
of the first applica nt. The respondents stated that as with any governing body, the
board of directors of the first applicant has experienced overtime dissatisfaction from
members, both individually and in small splinter groups. According to the
respondents, this is not uncom mon, nor does it indicate that the first applicant is
mismanaged or that the powers of the board of directors are being abused.
[28] The respondent s asserted that f or the past three years, the first applicant has
faced recurring challenges from a splinter group of members led by Mr Oosthuizen.
Mr Agenbag, the deponent of the answering affidavit and the director of the first
applicant, asserted that these challenges i nclude the refusal by the splinter group to
pay for services, including membership fees, water charges, internet services, and
growth fund levies relating to the provision of services. Mr Agenbag further
propounded that since November 2022, members of the splinter group have
engineered various frivolous disputes against the board of directors . These ongoing
disputes have created tension between members, particularly since many of these
disputes do not have any merit or foundation.
[29] According to Mr Agenbag, as a result of the disregard for the Constitution, the
internal rules and regulations, and the code of conduct of the first applicant, one of
the first applicant's members, Mr Stroebel, was on 15 December 2022, found guilty
of all complaints lodge d against him and was removed as a director by the first
applicant 's judicial sphere, the Heemraad. The member was instructed on 28
December 2022 to vacate the farm by 31 March 2023, which he failed or refused to
do.
[30] In addition, Mr Agenbag stated t hat Mr Fourie, who, together with Mr
Oosthuizen, called the special general meeting, was also expelled as a member of
the first applicant by the Heemraad, following a full internal disciplinary hearing. Mr
Fourie resigned as a director of the first applica nt and as the chairperson of the
Kongres on 21 December 2022. The Heemraad terminated his membership of the
first applicant on 3 May 2023, when he was also officially removed as a director. Mr
Agenbag further stated that Mr Oosthuizen who deposed to the fo unding affidavit in
this application, is no longer a member of the first applicant and has not been one at
any relevant time, contrary to what he claims in his founding affidavit.
[31] According to Mr Agenbag, Mr Oosthuizen has also been expelled by the
Heemraad as a member of the first applicant. His membership was terminated on 18
September 2024 due to his repeated violations of the Constitution and the first
applicant's code of conduct, inter alia, for disrespecting the first applicant's board of
directors and leadership, publishing confidential details of disputes, spreading false
information and failing to act in the first applicant's best interest. A copy of Mr
Oosthuizen's termination letter was also attached to the answering affidavit
supporting this averment.
[32] Mr Agenbag refuted Mr Oosthuizen's accusations of the autocratic leadership
style of the board and asserted that he was not responsible for disciplining members.
The Heemraad, of wh ich Mr Agenbag was not a member, is responsible for matters
of discipline, misconduct and contravention of the provisions of the first applicant's
Constitution and other governing documents. In Mr Agenbag ’s view , the Heemraad
followed the process of applying the principles of the audi alter am partem principle.
When a complaint is received from a member, the Heemraad would consider the
complaint and address communication with the accused person to inform him or he r
of the complaint and the allegations, giving that person the opportunity to reply to the
allegations. The Heemraad will then consider the evidence and the versions of the
parties before making any ruling or coming to any decision.
[33] The respondents a sserted that the special general meeting convened by the
applicant s was null and void. The respondents stated that in terms of the first
applicant's Constitution, a special general meeting can only be convened either by at
least two directors of the first applicant, alternatively, by five or more members of the
first appl icant, provided that the members in number constitute at least 20% of all
members of the first applicant, having petitioned the directors to convene such
meeting and the meeting is not convened within 21 days.
[34] According to the respondents , if conside ration is given t o Mr Oosthuizen's
declaration under oath , he unilaterally resolved to call a special general meeting.
Although Mr Oosthuizen may have subsequently canvassed the support of his fellow
expelled members and a few other disgruntled members, the respondents asserted
that the directors of the first applicant were not petitioned by two of the directors or
by five or more members , alternatively , members in good standi ng, who, at the time,
in numbers constituted 20% of the total members.
[35] In addition, the respondents pointed out that both Mr Oo sthuizen and Mr
Fourie's membership of the first applicant have been terminated. In addition, 2 other
members who supported the petition to the directors to convene a special general
meeting had been expelled. As such, of the remaining 13 people, only 7 wer e, at any
relevant time, in good standing and in full compliance with the Constitution and other
governing documents. Thus, the petition and request for a special general meeting
were, in fact, supported by less than 10% of the members in number, falling s hort of
the threshold set in the first applicant's Constitution.
[36] The respondent s submitted that the obstructive and rebellious actions of Mr
Oosthuizen and Mr Fourie, as well as the spreading of negative propaganda
amongst the members, is driven by Mr Oosthuizen and, in all likelihood, Mr Fourie's
personal vendettas and does not portray the general consensus or intention of the
majority of the members that are in good standing. The respondents asserted that
the notice sent by Mr Oosthuizen petitioning for a special general meeting was also
conveniently signed by Mr Oosthuizen and Mr Fourie. None of the other members
have at any stage confirmed their support for the call of a special general meeting in
writing or otherwise, other than for Mr Oosthuizen's uncorroborated claim that they
supported him.
[37] Furthermore, the respondents asserted that the notice was only distributed a
mere 12 days before the said special general meeting was to be held. The
respondents opine d that having regard to the provisions of the first applicant’s
Constitution , at least 14 days’ notice was required. The respondent s contended that
the notice and agenda disseminated to the members by Mr Oosthuizen and Mr
Fourie in respect of this special general meeting are materially defective and did not
comply with the terms of the first applicant ’s Constitution .
[38] The respondent s further pointed out that the board of directors did not
authorise the convening of the meeting and formally recorded their objection to it.
They contended that a t the time Mr Oosthuizen sent his notice of a special general
meeting to members of the first applicant, t he directors had already sent out a notice
on 8 November 2024 that the annual general meeting would be held on 28
November 2024. Accordingly, the respondent stated that the special general meeting
held on 23 November 2024 was not and under no c ircumstances can it be regarded
as a proper and validly convened special meeting where any business of the first
applicant could lawfully have been conducted.
[39] In the circumstances, the respondents prayed that the application be
dismissed with costs on an attorney and client scale.
Principal Submissions by the parties
[40] Mr Nöthling , the counsel for the applicant, argued that the new directors (the
second to the fifth applicants) were appointed following an election held on 23
November 2024. On 28 November 2024, the new directors informed the respondents
(the former directors) of the business conducted at the special general meeting.
However, the respondents failed to vacate their office. Counsel submitted that the
applicants addressed a letter to the respondents requesting access to the assets and
information to enable them to manage the first applicant’s affairs. However, the
respondents made it clear that they would not accede to the new directors' request.
[41] On the question of urgency, counsel submitted that the new ly appointed
directors cannot effectively manage the first applicant's affairs without the former
directors handing over control of the first applicant’s affairs. Mr N öthling submitted
that the first applicant cannot pay its creditors and is running the risk of
compromising service delivery to the members of the Co-Operative. Counsel pointed
out that 39 of the first applicant’s members , currently live on the first applicant’s
property with their families. The first applicant cannot operate the general store it
established on the farm, which is a vital facility for its members' existence.
[42] Most concerningly, so the contention proceeded , the water infrastructure on
the farm cannot be managed without access to the first applicant’ s water
infrastructure diagram. The first applicant's farm, Bysneslaagte, is located in an arid
region, and the first applicant’s members are at risk of not havin g access to water
and increasing the risk of fire damage. In counsel' s view, the ongoing nature of the
harm flowing from the respondents' conduct makes this matter deserving of this
Court's urgent attention.
[43] On the merits of the matter, the applicant s' counsel argued that the former
directors had not convened an annual general meeting since February 2023. The
first applicant’s members have expressed their difficulty with the Co -Operative's
management and resorted to other avenues in an attempt to resolve the matter.
Ultimately, some of the first applicant’s members addressed a letter to the former
directors on 4 September 2024 requesting the directors to call a special general
meeting.
[44] Counsel further submitted that f ollowing the former directors' failure to
convene the Annual General Meeting, the members issued two notices on 11
November 2024 informing the members of the upcoming special general meeting.
These notices were circulated by email and through the WhatsApp platform. Mr
Nöthling submitted that members who attended the special general meeting
compiled comprehensive minutes of the business conducted at the special general
meeting. At that meeting, the members in attendance adopted a unanimous
resolution, removing the former directors (the respondents) from their office and
appoin ting the new directors. Mr N öthling submitted that once removed from office,
the former directors are duty -bound to hand over the affairs of the first applicant to
the new directors.
[45] Counsel submitted that Mr Fourie and Mr Oosthuizen's membership were
terminated on 18 September 2024. Accordingly, Mr Fourie and Oosthuizen were still
members on 4 September 2024, the date of requesting the board of directors to
convene a special general m eeting. According to counsel, before convening their
special general meeting, the petitioning members satisfied the 20% requirement
contained in clause 50.2(b) of the Co -Operative's constitution.1
[46] Mr N öthling further asserted that the applicants ha ve no other remedy to
ensure the effective management of the first applicant’s affairs, pending the final
adjudication of the dispute. The harm caused by the former directors' conduct is
significant. According to counsel, the former directors do not stand to suffer if the
applicants' relief is granted. Counsel implored the court to g rant the relief sought in
the notice of motion.
[47] On the other hand, Mr Engela, the respondents' counsel, impugned the
urgency with which this application was brought. Counsel submitted that the matter
is not urgent. According to Mr Engela, even if the matter is urgent, the urgency is
self-created, and the application was launched with a degree of urgency that is
completely unwarranted. Mr Engela asserted that the matter is not urgent because it
relates, in the first instance, to a meeting that took place more than four months ago,
on 23 November 2024. Despite the applicants having been told unequivocally by the
respondents since 23 November 2024 that they dispute the validity of the special
general meeting, the applicants chose not to institute actio n at any time until 14
March 2025, when this application was eventually issued.
[48] Mr Engela contended that the respondents had, from the outset, stated, in no
uncertain terms, that the appointment of the so -called "new directors" was disputed
and that their authority to act as such was rejected. This was the situation more than
1 Clause 50.2 provides as follows: ‘ A special general meeting shall be convened –
(a) By at least two Directors of the Co -operative; or (b) By five or more members of the Co -operative
Constituting in number at least 20% (twenty percent) of all the members of the Co -operative: Provided
that such members shall not be entitled to convene an special general meeting unless they have
forehand in writing petitioned the Directors to convene such a meeting and the meeting is not
convened within 21 (twenty on e) days reckoned from the date the petition was lodged, or unless for
any reason there are no Directors to whom such a petition can be addressed .’
four months ago. In all the circumstances, the disputes between the parties
manifested themselves as early as November 2024, more than four months ago.
Notwithstanding, the applicants gave the respondents a mere 24 hours to oppose
and another 24 hours to prepare and file their oppos ing affidavit.
[49] Counsel further noted that, despite the passage of nearly four months since
the special general meeting on 23 November 2024, and more than four weeks since
their belated letter of demand issued on 10 February 2025, the respondents were
requested to prepare and file their opposing affidavits within a very short timeframe .
Mr Engela submitted that no case had been made out whatsoever of th e extreme
departure from the rules. Counsel prayed the court to strike this application off the
roll.
[50] As far as the merits of the application are concerned, Mr Engela contended
that the rule nisi, which the applicants are seeking, includes certain prayers for
interdictory relief which are far-reaching. According to counsel, they are to the effect
that the respondents must hand over to the applicants all the assets and/or
information of the first applicant. In addition, they are to the effect that the
respondents be restrained from interfering with the management of the first
applicant's affairs, and of representing themselves as directors of the first applicant.
Considering that once the interdict is granted, the matter may take time to resolve
whilst the respondents are excluded in the administration of the first applicant,
counsel submitted that it would b e proper for this court to approach the application
as one in which a final relief is being sought.
[51] Mr Engela challenged the validity of the meeting of 23 November 2024 and
submitted that of the 22 members and the 3 proxies present at the meeting, 9
members were behind with their membership fees, and another 5 memberships had
been suspended or terminated , and they were expelled as members of the first
applicant. Counsel submitted that these members did not have the right to vote nor
to be elected as the "new" directors of the first applicant. They were a splinter group,
whose decisions do not bind the oth er members of the first applicant. According to
Mr Engela, the special general meeting was a sham if regard is had to the way it was
conducted. In all the circumstances, so the argument went, the matter should either
be struck from the roll with costs due to a lack of urgency or dismissed with costs
due to the failure on the part of the applicants to make out a case for the relief
sought in the notice of motion.
Issues to be decided
[52] From the above discussion, two primary issues arise for determination in this
matter. The first issue is whether the applicants' application was brought with the
requisite degree of urgency as envisaged in Rule 6(12) of the Uniform Rules or
whether the urg ency pleaded by the applicants is self -created. Secondly, whether
the special general meeting that was called on 23 November 2024 was validly
convened and constitutionally compliant with the governing documents of the first
applica nt including its Constitu tion.
Relevant legal principles and discussion
[53] As foreshadowed above, the respondents took issue with the urgency with
which this application was brought. The respondents assert ed that the urgency with
which this application was brought is egregiously self -created. In the interest of
diligence , I will address the t wo disputed issues ad seriatim.
Urgency
[54] The legal principles applicable to the question of urgency are well-established
in our law . Urgency in applications involves mainly the abridgement of times
prescribed by the rules and, secondarily, the departure from established filing and
sitting times of the court.2 Rule 6(12) of the Uniform Rules of Court confers courts
with a wide discretion to decide whether an application justifies enrolment on the
urgent court roll based on the facts and circumstances of each case.3 An application
is urgent when an applicant cannot obtain substantial redress in due course.4 The
2 See Rule 6(12) (a) and (b) of the Uniform Rules.
3 Mogalakwena Local Municipality v Provincial Executive Co uncil, Limpopo [2014] 4 AII 67 (GP) at
para 63; Caledon Street Restaurants CC v D’ Aviera 1998 JDR 0116 (SE) at 8.
4 Dlamini v City Manager of the City of Ekurhuleni Metropolitan Municipality [2023] ZAGPJHC 147 at
para 27.
degree of departure from the modes of service and time frame in the Uniform Rules
must be commensurate with the urgency in each case.5
[55] It is common cause in the present matter that the applicants brought this
application with extreme urgency. T he applicants gave the respondents a mere 24
hours to oppose and another 24 hours to prepare and file their opposing affidavit.
The reasons advanced by the applicants for the said urgency is that the respondents
are interfering and stifling the new directo rs' ability to manage the first applicant's
affairs. The applicants asserted, among other things, that the new directors cannot
manage the applicant's software systems, banking systems, and infrastructure. The
members of the first applicant risk having no access to water due to the respondents'
conduct.
[56] As further grounds of urgency, the applicant s stated that the first applicant is
precluded from managing the general store on which the residents rely and lastly
that the first applicant's members risk having no access to water, which is a risk to
property or life if fires cannot be adequately mainta ined.
[57] Rule 6(12)(b) requires two things of an applicant in an urgent application.
First, the applicant must explicitly state the circumstances that he avers render the
matter urgent and, secondly, why he claims that he would not be afforded substanti al
redress at a hearing in due course. Expressed differently, it is peremptory in Rule
6(12) that applicants set out explicitly the circumstances on which they rely to render
the matter urgent and why they claim that they cannot be afforded substantial rel ief
at a hearing in due course. If they do not do so, their application is fatally flawed. An
applicant is not allowed to create its own urgency.6
[58] In the present matter, I have considered the grounds of urgency raised by the
applicants, and, in my view, they are deficient of the threshold envisaged in Rule
6(12) of the Uniform Rules. It is important to remind ourselves that a matter is urgent
because of the imminence and depth of harm the applicant will suffer if relief is not
5 Republikeinse Publikasie (Edm s) Bpk v Afrikaanse Pers Publikasie (edms) Bpk 1972 (1) SA 773 (A)
at 782A -G.
6 Venter v Els 2024 (4) SA 305 (WCC) para 19.
given. As pointed out by Mr Engela, the respondents told the applicants,
unequivocally, since 23 November 2024, that the validity of the special general
meeting convened by Mr O osthuizen and Mr Fourie was disputed.
[59] The respondents made it clear that they would not hand over the leadership of
the first applicant to the applicants at the end of 2024 . Furthermore, the applicants
knew that the respondents were not accepting the validity of the meeting on 23
November 2024. To that end, the respondent s brought an application in this court to
interdict the applicants to hold the meeting on 23 November 2024. However, that
application was dismissed. Intelligibly, the applicants knew that the respondents did
not vacate their office as directors of the first applicant and after the meeting of 23
November 2024, the respondents completely disregarded the special general
meeting and convened an annual general meeting on 28 Nov ember 2024. The
respondents unequivocally refused to hand over the leadership of the first applicant
to the applicants and conveyed that stance to the applicants.
[60] In the founding affidavit, the applicants mentioned that Mr Agenbag refuses to
assist the new leadership with a peaceful leadership transition. The applicants
asserted that the new directors do not have access to strategic information, bank
accounts, softw are systems, information system accounting systems, and other
infrastructure vital to the director's effective management of the applicants' interests.
Evidently, they knew about this in November 2024. The applicants waited and did
nothing to compel the di rectors of the first applicant to hand over the necessary
document for the management of the first applicant.
[61] Most importantly, on 5 February 2025, the alleged newly appointed directors
submitted a change of directors to CIPC. On 7 February 2025, CIPC issued the
certificate of registration confirming the adoption of the newly elected directors. On
10 February 2025, Mr Hanekom, the new board chair, addressed a let ter to the
respondents requesting, among other things, keys for all offices, store warehouse
and other items for the effective management of the first applicant.
[62] On 11 February 2025, Mr Agenbag addressed a letter to the members of the
first applican t and stated that the directors of the first applicant do not regard the
newly elected directors as legitimate. Instead, he noted that it was a hostile takeover
of the applicant and that they reported the matter to the police. Among others, Mr
Agenbag stat ed that the respondents will not provide any documents or minutes to
any person until the investigation is finalised. From the chronology of these events, it
is abundantly clear that the respondents were not going to hand over the leadership
to the applica nts from November 2024. The suggestion by the applicants that they
intend ed to resolve the matter internally is implausible and unsustainable. At the very
least, they knew in February 2024, when Mr Agenbag sent a letter to all members of
the first applican t, that they did not recognise the newly appointed board.
[63] Notwithstanding all this information at their disposal, the applicants chose not
to institute action at any time since then until 14 March 2025, when this application
was eventually issued. Instead, they waited for a period of almost four months to
bring t his application. When they went ahead with the application, they did so with
the utmost urgency, providing the respondents with a mere 24 hours to file an
opposition and an additional 24 hours to prepare and submit their opposing affidavit.
[64] In summar y, despite almost four months having lapsed since the special
general meeting on 23 November 2024 was held, and more than four weeks since
the letter of demand of 10 February 2025, the applicants failed to bring this
application timeously. Belatedly, the r espondents brought this application with
extreme urgency and called upon the respondents to file their opposing affidavits
within a matter of hours. In my view, no case has been made whatsoever for this
extreme departure from the rules. The urgency asserte d by the applicants, in my
view, is entirely self -created.7 There is no justification for the applicants’ failure to
bring this application earlier after they were notified that the respondent s are not
recognising their leadership. Accordingly, the applic ants’ application must ordinarily
fail due to their decision to wait almost four months to approach the urgent court .
[65] Generally, the above finding regarding urgency would lead to the applicants'
application being struck off the roll. However, I am mindful that the disputed issues in
this matter are critical and affect a number of families. I believe both parties need
7 Big Blue Marketing CC v King Sabata Dalindyebo Local Municipality 2017 JDR 0302 (ECM) at para
10; Windsor Hotel (Pty) Ltd v New Windsor Properties (Pty) Ltd 2013 JDR 1989 (ECM) at para 9.
certainty on the validity of the meeting held on 23 November 2024 when the new
board of directors was appointed. Striking this matter from the roll without a
determination on the validity of the meeting of 23 November 2024, may leave the
parties uncertain abou t the leadership of the first applicant. For completeness, I will
address the remaining issue regarding the validity of the meeting held on 23
November 2024.
Was the special general meeting held on 2 3 November 2024 validly convened?
[66] It is common cause that the first applicant is governed in terms of its
Constitution and relevant rules that apply to all its members. The governing
instruments of the applicant bind all the members of the first applicant. Members of
the first applicant ag reed to be bound contractually by the Constitution and any
amendments thereto made by the Kongres, the legislative sphere of the first
applicant. In terms of section 26 of the Constitution of the first applicant, the
management of the first applicant vests with the board of directors. Clause 27 of that
Constitution sets out the powers of and restrictions on the board of directors.
[67] From the affidavits and documents filed, the members of the current board
have been expelled as members of the first applicant in terms of the Constitution of
the first applicant. Mr Fourie and Mr Oosthuizen, who petitioned the directors and
called the special general meeting, were expelled as members of the first applicant
by the Heemraad, the judicial author ity of the first applicant. Mr Fourie was expelled
as a member of the first applicant by the Heemraad following a full internal
disciplinary hearing. Notably, t he Heemraad of the first applicant found Mr Fourie to
have violated the code of conduct, the regulations and the Constitution of the first
applicant. In a letter dated 18 September 2024, addressed by the Heemraad, Mr
Fourie was informed that his membership was terminated with immediate effect.
[68] Mr Oosthuizen, the deponent of the founding affidavit of the applicants, has
also been expelled as a member of the first applicant by the Heemraad . From the
Heemraad decision filed in these proceedings, Mr Oost huizen's membership was
terminated on 18 September 2024 due to his repeated violations of the Constitution
of the first applicant and the code of conduct . Mr Oosthuizen was expelled for
disrespecting the applicant's board and leadership, and for spreading false
information and failing to act in the first applicant's best interest. At the time the
meeting was held on 23 November 2024, Mr Fourie and Mr Oosthuizen were no
longer members of the first applicant. In my view, they had no locus standi as
directors of the first applicant or to attend and participate in the meeting of the first
applicant.
[69] It must be stressed that Mr Oosthuizen and Mr Fourie were not forced to join
or take membership with the first applicant. They voluntarily committed themselves
to be loyal members of this Co -operative and are thus bound by the decisions that
are taken by t he established structures of this institution. There are remedies
available at their disposal for any decision that goes against them or for any decision
that they feel was arbitrary. In my view, Mr Oosthuizen does not have the locus
standi to institute th ese proceedings on behalf of the first applicant because he is not
a member of the first applicant. The Heemraad of the first applicant expelled him,
and his membership was not reinstated. The decision made by the newly elected
board of directors, which gr ants Mr Oosthuizen the authority to initiate these
proceedings, holds no significance. This is due to the fact that Mr Oosthuizen is not a
member of the first applicant, rendering the resolution moot and inconsequential.
[70] If the two members were aggrieved by the decision of the Heemraad , they
should have exhausted internal remedies to challenge the validity of their expulsion
as members of the first applicant. Alternatively, if the Mr Oosthuizen and Mr Fourie
were not happy with their expulsion , they should and could have challenged or
instituted review proceedings against the decision of the Heemraad to expel them as
members of the first applicant. On that score alone, the applicant’s application is
bound to fail. Against this backdrop, I turn to consider the validity of the meeting that
was held on 23 November 2024 .
[71] I must emphasise that in terms of the first applicant's Constitution, the special
general meeting could only be convened either by at least 2 directors of the first
applicant, alternatively, by 5 or more members of the first applicant provided that the
mem bers in number constitute at least 20% of all members of the first applicant,
having petitioned the directors to convene such a meeting and the meeting is not
convened within 21 days. In this case, Mr Oosthuizen called the meeting and was
supported by Mr F ourie. The other members who supported the call to petition the
directors did not constitute 20% as required by the Constitution of the first applicant.
Conspicuously , the Constitution unequivocally requires not only that a special
general meeting be petit ioned by five or more members, constituting 20% of all the
members, but that such members shall also convene the special general meeting.
[72] As correctly pointed out by Mr Engela, the notice convening the special
general meeting was only signed by Mr O osthuizen and Mr Fourie, who were no
longer members of the first applicant. The notice was not signed or issued by any of
the other members who allegedly supported the initial petition. This, in my view,
offended the Constitution of the first applicant. Th ese notices allegedly sent to
members were therefore not issued by 5 or more members, constituting 20% of all
the members, resulting in the special general meeting not being convened by such
members.
[73] Significantly, the Constitution sets out the time frame that is required to
convene a special general meeting. In fact, the Constitution of the first applicant
requires a period of 14 days’ notice to be given for the sitting of a special general
meeting. Paragraph 51.1 of the applicant’s Constitution provides that a general
meeting shall be convened by at least 14 days’ notice in writing to each member of
the Co-operative. The notice issued by Mr Oosthuizen and Mr Fourie for the special
general meeting of 23 November 2024 was only distributed a mere 12 days before
the special general meeting was to be held contrary to the prescripts of the first
applicant’s Constitution.
[74] What I find very concerning, which, in my view, is fatal to the applican ts’ case,
is that the board of directors of the first applicant did not authorise the convening of
the meeting of 23 November 2024 and vociferously objected to it. Notwithstanding
that the board of directors had already on 8 November 2024 called for a special
general meeting to be held on 28 November 2024, Mr Oosthuizen and his splinter
group still sent out a notice on 11 November 2024 that the annual general meeting
shall be held on 23 November 2024.
[75] In other words, even though the board of directors o f the first applicant had
set a date for the annual general meeting for 28 November 2024, Mr Oosthuizen and
his splinter group continued to call a meeting for 23 November 2024. In my opinion,
the actions taken by Mr Oosthuizen and Mr Fourie proverbially bear resemblance to
an attempted coup d'état . Their decision to convene a special general meeting,
despite the prior scheduling of an Annual General Meeting, fundamentally
compromised and invalidated the legitimacy of the purported meeting held on 23
November 2024.
[76] In my view, there was no need for another meeting as the board of directors
had already called for the Annual General Meeting for which the applicants sought.
Expressed differently, as from 8 November 2024, when the directors issued t he
notice for the meeting on 28 November 2024, the applicants did not have the right to
proceed with convening a special general meeting of their own accord. The board of
directors, an institutional structure of the applicant, had already set a date for th e
meeting. The applicant acted in defiance and intransigent ly to the decision of the
board of directors that the members of the first applicant duly and legitimately
appointed.
[77] To make matters worse, Mr Oosthuizen and Mr Fourie chose the date of the
proposed special meeting to be 23 November 2024. In other words , they chose a
date which was five days before the Annual General Meeting. Evidently, this lead me
to an ineluctable conclusion that the special general meeting was convened purely to
circumvent the proceedings of the Annual General Meeting, where the applicants
would have been free to voice their concerns and to vote, in the normal fashion, for
the appointment of new directors. I am mindful of the allegations of exclusion alluded
to by the applicants in their application. However, I believe that such i ssues could be
addressed by the Heemraad, their judicial body, which the members of the first
applicant unanimously established to address such problems.
[78] To this end, I agree with the views expressed by the respondents’ counsel
that the way the special general meeting was convened and conducted shows that it
was called to undermine the upcoming A nnual General Meeting, which was held on
28 November 2024, a mere five days later. Indeed, t he evidence shows that the
special general meeting was a complete sham. The applicants flagrantly flaunted the
procedural requi rement set out in the first applicant’s Constitution. No proper process
was followed with regard to the nomination and election of the proposed members as
directors, and members’ concer ns were simply ignored.
[79] In my view, Mr Oosthuizen and Mr Fourie's conduct offended the Code of
Conduct, the Regulations and the Constitution of the first applicant. Clause 11.2 of
the applicant's Constitution sets out its members' obligations. Amongst other things,
members must a dhere to the Constitution, any amendment thereto, and any by -laws
made by the Kongres. Furthermore, all members must conduct themselves in the
values and ethical values of the Constitution and always act in the best interests of
the Co -operative. The condu ct of the respondents offended the governing
documents of the first applicant and that cannot be countenanced.
[80] Thus, the applicants have failed to meet the first requirement for the relief they
seek, namely, to prove the "clear right" on which they purport to rely. Furthermore,
the deponent of the founding affidavit does not have the authority to bring this
application on behalf of the first applicant.
[81] Pursuant to the view I take, I deem it unnecessary to deal with the other
requirements of an interdict. The purported meeting of the 23 November 2024 was a
sham. It is invalid and not binding. Any decisions taken at that meeting are null and
void, and of no consequence. The respondents are the incumbent directors of the
first ap plicant, and they are entitled to continue managing the first applicant's day -to-
day operations until they are removed by a valid decision taken in terms of the first
applicant's Constitution, or by order of Court.
Order
[82] Given all these considerations, the following order is granted:
82.1 The applicant s’ application is hereby dismissed with costs, including the costs
of counsel on scale B.
________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPEARANCES
For the Applicants: Mr N öthling
Instructed by: Sune Van der Merwe Attorneys
For the Respondents: Mr Engela
Instructed by: Morne Binedell Attorney and Conveyancer