IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN )
Case number : 19605/2024
In the matter between:
TOM GELDERBLOM
CHRISTOPHER SAULS
FRANCOIS MARAIS First applicant
Second applicant
Third applicant
And
THE SANDOWN B AY FISHING COMPANY (PTY) LTD
PHILIPPUS MAY
RUDOLPH JANTJIES
ADELE BAADJIES
ELTON MAY
ERICA GILLION (née CARELSE ) First respondent
Second respondent
Third respondent
Fourth respondent
Fifth respondent
Sixth respondent
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REASONS DELIVERED ON 19 MAY 2025
VAN ZYL AJ :
1. On 17 January 2025 I granted the following order in the urgent court :
1.1. The applicants’ non -compliance with the forms and service provided for
in the Uniform Rules of Court is condoned and this matter is heard as
one of urgency in terms of Rule 6(12).
1.2. The second to sixth respondents are interdicted and restrained from
convening and proceeding with the shareholders meeting called for 20
January 2025 at 17h00, pending the final determination of the
application brought in terms of sec tion 163 of the Companies Act 71 of
20081 under case number 19605/2024.
1.3. The second to sixth respondents shall pay the costs of the application ,
inclusive of counsel’s fees taxed on Scale B .
2. These are, briefly, the reasons for the grant of the order.2
The main application
3. The parties to th is urgent application are all directors and shareholders of the
first respondent company . The company is a boat -based whale -watching
business which operates in the Overstrand and Hermanus area. The first
applicant a nd the second respondent founded the company, and were its
initial directors.
4. On 6 September 2024 the applicants in this matter instituted an application
1 “The Companies Act ”.
2 Reasons having been requested on 7 February 2025.
(“the main application”)3 under section 163 of the Companies Act, seeking
relief against the second t o sixth respondent s on the basis that the
respondents were acting in a manner that was oppressive and unfairly
prejudicial to the applicants’ rights as directors and shareholders . The
applicants claim, too, that the respondents are abusing the separate jur istic
personality of the first respondent.
5. That there are serious problems in the relationship between the parties is
clear from the content of the main application. The problems are ongoing.
The applicants say , for example, that even after the institut ion of the main
application the respondents undertook to provide the applicants with
information sought by the latter only if the applicants withdrew the main
application. That the applicants as directors and shareholders will be given
access to documenta tion to which they are legally entitled only under threat is,
according to the applicants, further evidence of the oppressive manner in
which the respondents conduct themselves.
6. There is a dispute between the parties as to whether the main application was
brought against the respondents only in their capacit ies as directors of the first
respondent, or whether it was also brought against them as shareholders . I
shall return to this aspect below, but p oint out at this juncture that the parties
in the main ap plication are cited in their capacities as both shareholders and
directors of the first re spondent. T he applicants rely on both capacities as a
basis for their locus standi in that application. Section 163 of the Companies
Act are, in terms, available to both directors and shareholders who feel
aggrieved b y oppressive or prejudicial conduct, or by abuse of the separate
juristic personality of a company:4
“(1) A shareholder or a director of a company may apply to a court for relief
if-
(a) any act or omiss ion of the company, or a related person, has
had a result that is oppressive or unfairly prejudicial to, or that
3 Under case number 19605/2024.
4 Emphasis supplied.
unfairly disregards the interests of, the applicant;
(b) the business of the company, or a related person, is being or
has been carried on or c onducted in a manner that is oppressive
or unfairly prejudicial to, or that unfairly disregards the interests
of, the applicant; or
(c) the powers of a director or prescribed officer of the company, or
a person related t o the company, are being or have bee n
exercised in a manner that is oppressive or unfairly prejudicial
to, or that unfairly disregards the interests of, the applicant. ”
7. The relief sought in the main application include orders to the effect that
respondents are to be restrained from acting i n a manner which unfairly
prejudices the company and the applicants’ “ rights as both shareholders and
directors ” in the company. The applicants also seek access to certain
company documents, as well as an order that the first respondent’s
memorandum of in corporation be amended to provide for proper and
adequate notice of directors’ meetings.
8. At the time of the hearing of the urgent application, the main application was
pending , it having been opposed by the respondents .
The urgent application
9. On 20 Dece mber 202 4, and thus while the main application was pending, the
second to sixth respondents called for a shareholders’ meeting to be held on
20 January 2025 . The purpose of the meeting was to vote for the removal of
the applicants as directors of the firs t respondent. The applicants –
unsurprisingly – considered the proposed meeting to be prejudicial to their
rights, and a further example of the oppressive conduct to which they had
been subjected .
10. The applicants accordingly requested the respondents to po stpone the
meeting to a date after the determination of the main application. The
applicants explain that both sides’ legal representatives were already on leave
by 20 December 2024, and the matter could not be dealt with immediately. It
seems from whatsa pp correspondence attached to the answering papers that
the applicants nevertheless informed their attorney of the notice on receipt
thereof, on 20 December 2024.
11. Correspondence w as addressed to the respondents’ attorney on 7 January
2025, requesting a re sponse by 10 January 2025. The respondent’s attorney
only reverted on 13 January 2025. On 14 January 2025 the applicants’
attorney sent another letter seeking a postponement of the meeting. The
attempt at staving off the meeting was unsuccessful, t he re spondents being
steadfast in their resolve to proceed with the meeting on 20 January 2025 .
12. The applicants therefore launched this urgent application on 1 5 January 2025,
seeking an interim interd ict preventing the holding of the shareholders’
meeting pendi ng the finalisation of the main application.
13. The respondents argue d that the application was not of sufficient urgency to
be entertained on the date of set -down. I was, however, of the view that the
timing of the notice of the meeting should be taken in to account: it was sent
five days before Christmas, during the court recess period , and while both
parties’ attorneys were already on holiday. I think that it was reasonable for
the applicants t o attempt to come to an agreement early in the new year, and
to institute this application when their attempt was rebuffed.
14. Urgency is a question of degree.5 Urgent applications must be brought in
accordance with the provisions of Rule 6(12), with due regard to the
guidelines set out in cases such as Luna Meubelve rvaardigers (Edms) Bpk v
Makin and another .6 In East Rock Trading 7 (Pty) Ltd and another v Eagle
Valley Granite (Pty) Ltd and others7 it was held as follows:
“[6] … An applicant has to set fort h explicitly the circumstances which he
5 In re: Several Matters on the Urgent Roll 18 September 2012 2013 (1) SA 549 (GSJ) para 18 .
6 1977 (4) SA 135 (W).
7 [2011] ZAGPJHC 196 (23 September 2011) par as 6-8. Emphasis added.
avers render the matt er urgent. More importantly, the Applicant must state the
reasons why he claims that he cannot be afforded substantial redress at a
hearing in due course. The question of whether a matter is sufficiently urgent
to be enrolled and heard as an urgent applica tion is underpinned by the issue
of absence of substantial redress in an application in due course . …
[7] It is important to note that the rules require absence of substantial redress.
This is no t equivalent to the irreparable harm that is required before the
granting of an interim relief. It is something less. He may still obtain redress in
an application in due course but it may not be substantial. Whether an
applicant will not be able obtain substantial redress in an application in due
course will be det ermined by the facts of each case. …
[8] In my view the delay in instituting proceedings is not, on its own a ground,
for refusing to regard the matter as urgent. A court is obliged to consider t he
circumstances of the case and the explanation given. The i mportant issue is
whether, despite the delay, the applicant can or cannot be afforded
substantial redress at a hearing in due course . …. “
15. I did not think that, given the circum stances in the present case , the
applicants would rece ive substanti ve redress in due course. The applicants
explained the prevailing situation in their founding papers. I was satisfied that
the matter should be dealt with as an urgent application under Rule 6(12).
16. The respondents complained , too, of the fact that the urgent applica tion was
brought under the same case number as the main application . They caused a
notice under Rule 30 to be issued calling upon the applicants to remedy this
“irregularity” prior to the hearing of the urgent application. The basis for th is
complaint is t he respondents’ contention that the main application was
brought against them in their capacities as directors of the first respondent,
whereas the urgent application is aimed at them in their capacities as
shareholders. I do not think that such a stark di stinction is warranted for the
purposes of the interim relief sought. I have already pointed out that the
parties have been cited in both capacities in the main application , and that the
applicants seeks relief pertaining to both capacities.
17. I was in any event not inclined to entertain this overly technical objection. The
matters are inextricably linked, and the urgent application was incidental to a
pending proceeding, namely the main application. The exercise of the
respondents’ votes at the proposed m eeting had a direct bearing on the
subject matter of the main application. It appeared to me that the Rule 30
notice was an attempt to delay the hearing of the urgent appli cation to the
point where it would be impossible to prevent the holding of the proposed
meeting. I therefore allowed argument of the urgent application to continue.
The proposed meeting
18. The requirements for the grant of an interim interdict are the following:8
18.1. a prima facie right – this need not be shown on a balance of
probabilitie s, but is sufficiently proved if prima facie established though
open to some doubt. The stronger the right is, the less need there is
for the balance of convenience to be c onsidered;
18.2. a well -grounded apprehension of irreparable harm if the interim relief is
not granted and the ultimate relief is eventually granted – this is a harm
that a reasonable person might entertain on being faced with certain
facts, and is an objective test;
18.3. a balance of convenience favouring the grant of the interim relief – the
Court must weigh the prejudice the applicant will suffer if the interim
interdict is not granted against the prejudice to the respondent if it is;
and
18.4. the absence of any other satisfactory remedy in the circumstances.
19. I have mentioned earlier that there is a dispute as to whether the main
application concerns the respondents as directors or as shareholders. The
8 See Prest Interlocutory Interdicts (1993) at 54 -86.
respondents contend that the main application is aimed at them in their
capacities as directors , and that there should thus be no problem with the
calling by the respondents of a shareholders ’ meeting as proposed. The
respondents therefore argue that the applicants are not entitled to interdict the
holding of a properly called shareholders’ meeting.
20. The argument is misplaced. The focus, in my view, should be on the
applicants in the main application rather than on the respondents. The
applicants clearly rely on their twin capacities – directors and shareholders –
for their locus standi in the main application, and they seek r elief on the basis
of conduct aimed at them in both capacities. The proposed shareholders’
meeting intend ed to seek the applicants’ removal as directors, and thus to
deprive them of locus standi in that respect , or otherwise to frustrate them in
the conduct of the litigation an d in the conduct of the first respondent ’s
business . All of the relevant parties were duly cited in both the main and the
urgent application as being shareholders and directors of the first respondent .
21. It is correct, as the respondents argued, that the applicants did not necessarily
have a legal right to remain in office as directors. It is, however, not an
answer to the urgent applica tion simply to say : “You have nothing to complain
about, because you will remain share holders even if we remove you as
directors ”. This was the gist of the respondents ’ answering affidavit. The
point in the present matter is however that the applicants have a right not to
be treated in a manner of the sort contemplated in section 163 of the
Companies Act, both in their c apacities as shareholders and directors. That is
the prima facie right they relied upon in the urgent application, not an alleged
right to remain directors at all costs. The respondents’ conduct in calling the
meeting sought to frustrate the applicants’ r ights as directors in the main
application. Tellingly, the respondents h ad not, by the time they had called for
the meeting, launch a counter -application for the removal of the applicants as
directors.
22. Given the strained relationship between the parties, it seem ed inevitable – on
these papers at least – that the applicants w ould in fact be removed as
directors should the meeting be allowed to proceed. Reinstatement would be
difficult, if not near impossible. The notice of the meeting itself, with the
proposed resolution to be taken attached to it, indicated how each of the
respondents intended to vote, and specified the 62,5% majority that they
collectively held. The spectre of a fait accompli , with none of the respondents
exercising their minds independ ently as they were statutorily bound to do,
loomed large. This constituted irreparable harm in the circumstances. It
matters not that the applicants would retain their status as shareholders in the
first respondent.
23. The balance of convenience favoured th e applicants. There was no pr ejudice
to the respondents in postponing the meeting until the parties’ difficulties as
set out i n the main application had been addressed.
24. The respondents argued that the applicants had an alternative remedy
because they wou ld remain shareholders of the first respondent, and would
thus continue to have the powers of shareholders. It seem ed to me, however,
that one of the core issues in the main application was the respondents’
alleged conduct in curtailing the exercise of th e applicants’ powers either as
directors or shareholders. The fact that they would remain shareholders after
the meeting was cold c omfort in the circumstances.
Conclusion
25. It may well be so that the respondents were entitled to call a shareholders’
meetin g. The applicants do not contend that the respondents were not
entitled to do so. The circumstances in which such meeting was called and
the particular purpose behind it , however, indicated a n attempt to frustrate the
applicants in the conduct of the mai n application. The proposed meeting and
the call for the applicants’ removal as directors were directly linked to the main
application. In the circumstances, I was satisfied that the applicants had met
the requirements for the grant of the interim interd ictory relief sought .
Costs
26. There was no reason why costs should not follow the result.
27. Each of the parties sought costs on the scale as between attorney and client
(the applicants essentially because they had attempted, unsuccessfully, to
negotiate wit h the respondents prior to th e institution of this application, and
the respondents because they regarded the urgent application as being
without merit), but I did not regard the matter as justifying punitive costs. In
the exercise of my discretion under Rule 67A I was of the view that the
respondents should pay the applicants’ costs on a party and party scale, with
counsel’s fees taxed on Scale B.
Order
28. For these reasons, I granted the order referred to at the outset.
_______________________ ___
P. S. VAN ZYL
Acting judge of the High Court
Appearances :
For the applicants : Ms M-A McChesney , instructed by Vorster & Steyn Inc.
Attorneys
For the respondents : Mr S. Moolla, instructed by TSP Inc Attorneys