IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 1 8728/2024
In the matter between:
CHARLENE JUANITA BAYER APPLICANT
and
POLKADRAAI NURSERY PROPRIETARY LIMITED RESPONDENT
Neutral citation: Bayer v Polkadraai Nursery (Pty) Ltd (Case no 18728/2024) [202 5]
ZAWCHC 232 (02 June 2025 )
Coram: NUKU J
Heard : 22 April 2025
Delivered : 02 June 2025
Summary: Interdict – proposed sale of respondent’s business enterprise as a going
concern not posing any threat to the applicant’s s hares – no prima facie
right established – application dismissed
ORDER
The application is dismissed with costs including the (a) costs of counsel on scale B,
and (b) costs occasioned by the postponement of the matter on 28 August 2024 and 11
November 2024.
JUDGMENT
Nuku J
[1] The applicant, who describes herself as a business woman and a shareholder of
the respondent , applies for an order , the effect of which i s to prohibit the respondent ’s
body of shareholders from considering an offer to purchase the respondent’s business
(sale of business agreement) until the finalisation of the legal proceedings she has
instituted in this Court , under case number 21620/2014 against her ex-husband Mr
Warwick Bruce Bayer (Mr Bayer) , the Bayer Trust, the respondent and the former
business rescue practitioners of the respondent’s predecessor (action proceedings) .
[2] The application was precipitated by a notice issued by the respondent on 13
August 2024, convening a general meeting of its shareholders which was to be held on
28 August 2024. The notice proposed resolutions for, inter alia :
2.1 approving the sale of business agreement as tabled;
2.2 approving the transfer of shares, being the whole or greater part of the
assets of the company.
[3] On 22 August 2024, the applicant’s attorneys of record addressed a letter to the
respondent’s board of directors recording the applicant’s objection to the sale of the
respondent’s business. The letter acknowledged that neither the applicant nor Mr Bayer
has any right to unilaterally prevent the sale of the respondent's business. That
notwithstanding the letter went on to formally record the applicant’s objection to the
proposed sale of the respondent's business which objection was said to be rooted ‘in
the fact that the settlement agreement, which dictates the rightful owner ship of the
business, has been disregarded .’ At subparagraph 6.3, the letter recorded that :
‘It is our client’s (applicant’s) position that the sale of business should not
proceed until the shares are transferred in accordance with the settlement
agreement , and the action under case number 21620/20 14 relating to the
legitimacy of the appropriation of our client’s (applicant’s) shares/members
interest has been finalised. Furthermore , it is our client’s understanding that she
is not the only shareholder who objects to the sale .’
[4] It is not clear f rom the papers whether the applicant’s attorneys received any
response to the letter referred to in the preceding paragraph. In any event, the applicant
launched the application on 27 August 2024 for hearing the following day. On 28 August
2024, the matter came before Ndita J who postponed it to the semi -urgent roll for
hearing on 11 November 2024 with costs standing over for later determination. The
application was further postponed for hearing on 22 April 2025 with costs, again,
standing over for later de termination.
[5] The applicant, in her rather terse founding affidavit, explained th e basis of her
approach to the Court as follows:
‘8. The proposed sale involves the transfer of 80% of the shares held by the
Trustees for the time being of the Bayer Trust and 20% of the shares held
by myself in Shadowlands Wholesale Nursery (Pty) Ltd.
9. I have a clear right to prevent the alienation of the shares which form the
subject matter of the main action, pending its final determination.
10. The proposed sale, if implemented , will cause me to suffer irreparable
harm as it will effectively render the main action moot and deprive me of
my rights should I succeed in that action.
11. I have no alternative remedy. Once the shares are transferred, it will be
extremely difficult, if not impossible, to reverse the transaction.
12. The balance of conve nience favours the granting of the interdict. While the
Company may suffer some inconveni ence in delaying the proposed sale,
this inconvenience is outweighed by the potential prejudice I will suffer if
the sale proceeds before the main action is resolved .’
[6] It is clear from the above that the applicant’s entire case is based on the notion
that the sale of business agreement would result in the transfer of the shares she holds
in the respondent, and which are still subject of a dispute in the action proceedings. The
notion that the sale of business agreement would result in the transfer of the applicant’s
shares in the respondent is, however, untenable for a number of reasons .
[7] Firstly, a copy of the sale of business agreement had been made available to the
applicant prior to the issuing of the notice convening the shareholders’ meeting . The
sale of business agreement recorded that the respondent intended to sell its business
enterprise as a going concern, including the business assets as outlined in clause 1. 2.2
thereof. The sale of business agreement did not , however, refer to any sale of shares.
[8] Secondly, although the notice and proxy form , which accompanied the notice,
made reference to a request for approval to ‘transfer shares ’ as it constituted ‘whole or
greater part of the assets ’ of the respondent , this was clearly an error because there
was only one transaction that was to be considered by the shareholders, namely, the
sale of business agreement which made no reference to any transfer of shares.
[9] Thirdly, the letter by the applicant’s attorneys dated 22 August 2024 makes it
clear that the applicant understands that neither she nor Mr Bayer have a right to
unilaterally prevent the sale of business. I mportantly, although this letter was in
response to the notice convening the meeting, it made no reference to a possible
transfer of the applicant’s shares and the only explanation for this must be that it is clear
from the reading of the sale of business agreement , that what was intended to be sold
was the first respondent’s business enterprise as a going concern , and that does not
involve any transfer of shares.
[10] The application was , in my view, entirely misconceived and should not have been
instituted in the first place. Counsel for th e applicant, however, sought to justify the
institution of the application on the fact that the notice convening the meeting referred
to, as one of the proposed resolutions, the transfer of shares .
[11] As stated already, whilst the re is referred to a re solution relating to the transfer of
shares, on any reasonable reading of the documents, there was only one issue to be
considered, namely, the sale of business agreement. In addition to that, this aspect was
explained in the respondent’s answering affidav it and from that point onwards, the
continuation of the application bordered on being reckless.
[12] The simple point is that sale of the respondent’s business enterprise as a going
concern has no bearing on the applicant’s shares in the respondent. The r espondent
will continue to exist with the shareholders unchanged , even if the proposed sale of its
business is approved. As the sale of the respondent’s business does not threaten the
applicant’s shares in the respondent, it follows that the applicant can assert no right,
clear or prima facie , that requires protection by the intervention of this Court . In the
circumstances of this case, the issue of irreparable har m as well as the balance of
convenience do not even arise because the applicant will continue to exercise her right
qua shareholder of the respondent whether the sale of business goes through or not.
[13] The result is that the application must fail, and the costs should follow the result.
Order
[14] In the result I make the following order:
The application is dismissed with costs including the (a) costs of counsel on
scale B , and (b) costs occasioned by the postponement of the matter on 28
August 2024 and 11 November 2024.
_____________________________
L G NUKU
JUDGE OF THE HIGH COURT
Appearances
For applicant: C Van Zyl
Instructed by: K J Breden kamp Attorneys, Cape Town
For respondent: H Beviss -Challinor
Instructed by: Beviss -Challinor Attorney s, Cape Town