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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 037099/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(4) Date: 20 May 2025
Signature:
In the matter between:
WILLIAM OLIVER GRAHAM N.O. First Applicant
ANNA MEY GRAHAM N.O. Second Applicant
HERMANUS ALBERTUS DU TOIT N.O. Third Applicant
And
SAILING PUPPY (PTY) LTD First Respondent
JACOBUS CORNELIUS REYNEKE Second
Respondent
JUDGMENT
NYATHI J
A. INTRODUCTION
[1] This is an application in which the applicant s seek an order of this Court to
convene a shareholders’ meeting under the provisions of Section 61(12) of the
Companies Act 71 of 2008 (“the Companies Act”).
[2] The application is made pursuant to a written demand by the Trust for the
holding of a shareholders’ meeting made under Section 61(3) of the
Companies Act on 12 March 2024. This demand has been frustrated by the
first respondent.
B. BACKGROUND
[3] The first, second and third applicants are the trustees of a Namibian registered
Trust, nam ely the Rodzina Carbonile Trust (“the Trust”)
[4] The Applicant Trust has since 15 October 2019 held the entire issued share
capital in the first respondent , Sailing Puppy (Pty) Ltd (“Sailing Puppy”) , a
South African registered Company. The Trust enjoyed beneficial and
undisturbed ownership of its shareholding in Sailing Puppy.
[5] Sailing Puppy has two directors , namely, Mr Jacobus Cornelius Reyneke who
is cited as the second respondent (“Mr Reyneke”) and Mrs Maria Elizabeth van
Straaten (“Mrs van Straaten”).
[6] On 12 March 2024, the Trust, as sole shareholder of Sailing Puppy, made
demand on Sailing Puppy under the provisions of section 61(3) of the
Companies Ac t, to convene a shareholders' meeting to transact business
under section 71(1) of the Companies Act for purposes of debating, and if
deemed appropriate, resolving and passing a resolution to remove Mr Reyneke
as a co -director of Sailing Puppy.
[7] Following upon the section 61(3) demand being sent, Mrs van Straaten set
about attempting to convene the shareholders’ meeting so demanded by the
Trust. To that end, Mrs van Straaten, on 12 March 2024 and at 22h28
addressed an email to Mr Reyneke :
1. informing him of the section 61(3) demand and the request by
the Trust that the board of Sailing Puppy convene the
shareholders’ me eting;
2. requesting his co -operation to agree to a date, time and venue
for the holding of the shareholders meeting and to that end
proposing a directors' meeting over MS Teams on 14 March
2024 at 11h00 to attend to these matters;
3. Mrs van Straaten also requested Mr Reyneke to give
consideration at the proposed board meeting on 14 March
2024, to the appointment of an independent Chairperson to
chair the shareholders meeting to be held.
[8] No response was forthcoming from Mr Reyneke in respect of the issues raised
by Mrs van Straaten in her email. Mr Reyneke’s refusal to co -operate with his
co-director Mrs van Straaten to convene the requested mee ting is rooted in a
claim by Mr Reyneke , which surfaced just after the Trust made demand for the
meeting. He alleged that he , and not the Trust, is the sole shareholder of
Sailing P uppy.
[9] Instead, and on 13 March 2024, Taljaard & De Oliveira Attorneys ("Taljaard"),
addressed a letter to Mrs van Straaten, informing her that their firm had been
instructed by Mr Reyneke to respond to the section 61(3) demand and that they
would do so in due course.
[10] Later, on 13 March 2024, Mr Reyneke (acting personally) addressed an email
to Mrs van Straaten in which he recorded that the directors' meeting that Mrs
van Straaten had proposed (and scheduled for 11h00 on 14 March 2024), was
"premature" , as he would be consulting with his attorneys and would revert to
Mrs van Straaten after he had done so.
[11] On 18 March 2024, Taljaard addressed a letter to Mrs van Straaten in which it
was amongst others recorded that "Both you and all the trustees of the Trust
who signed the aforesaid demand are acutely aware that the Trust is not a
shareholder of Sailing Puppy (Pty) L td ("Sailing Puppy )" and that "Our client
has a lways been the so le shareholder of Sailing Puppy".
[12] The Trust upon coming to learn of this letter on the same day , addressed
correspondence to Taljaard disputing the allegations contained in the letter
from Taljaard, it having become clear to the Trust that Mr Reyneke was
unlawfully contending that he, as opposed to the Trust , was the sole
shareholder of Sailing Puppy.
C. THE SHAREHOLDING IN CONTEXT
[13] The context of the shareholding is best illustrated in a broad summary of the
events that constituted the status quo before the Trust made the Section 61 (3)
demand :
1. Sailing Puppy was incorporated on 20 August 2019 ;
2. WPR Financial Services CC (“WPR”) incorporated Sailing
Puppy;
3. Mr Reyneke was from the date of incorporation, recorded as
the sole director of Sailing Puppy;
4. On 30 January 2020, WPR’s Mr Basch addressed an email to
Mr Reyneke indicating that:
(i) Sailing Puppy was ready for use; and
(ii) Mr Reyneke was the only director; and
(iii) that the first issue of 100 shares could be
“…done to whoever you wish.”
5. On 4 February 2020, WPR's Mr Basch addressed an email to
Mr Reyneke to which he attached the "...first share certificate
(issued in your name at incorporation date) and blank CM42
(share transfer form) for signing ."
6. On 6 February 2020, Mr Reyneke addressed an email to Mr
Basch asking "Can Pippa please amend the docs to transfer
the shares to the attached Namibian Trust. The date of transfer
should be 15 October 2019." It is common cause that reference
"Namibian Trust" is a reference to the Trust;
7. On 10 February 2020 , Mr Basch responded to the earlier email
of Mr Reyneke of 6 February 2020 and stated as follows:
“Hi Jacques,
Attached the draft docs as follows:
1. Share Certificate # 1 issued in your name as the
incorporator of the company
2. CM42 date 15 October 2019 where you transfer the 100
shares to the Rodzina Carbonile Trust (PS you must sign just
above the date)
3. Share Certificate # 2 issued to the Trust date 15 October
2019 Note that we need the address of the Trust in order to
complete the CM42 and Share Certificate properly, but that can
also be written in by hand.
Also don't worry about the two lines for director and the one for
secretary in the share certificates. You are the only director
and there is not an official company secretary registered with
CIPC.
Let me know If you have any questions?
Let the puppy sail. ”
8. On the same day , 10 February 2020, and within 14 minutes of
receiving the information to in the preceding subparagraph, Mr
Reyneke wrote to the second applicant’s husband and Mr.
Senekal and recorded that the shares were not issued at
incorporation but would first vest in him and then only 15
October will they vest onward s to (Rodzina ) the Trust . He then
advises them to send him the address of the Trust to enable
him to complete the CM42 and the share certificate.
9. Following the address of the trust being provided , Mr. Re yneke
on 3 March 2020 addressed an email to Mr Senekal (and
copied Mr. Graham ), in which he record ed th at:
"Hi Johan, Hier is Sailing Puppy se aandelesertifikate. Die
oorspronkllike (sic) sertifikate is by die oudi teure in PTA."
10. The certificate referred to in the email was accompanied by a
Securities Transfer Form signed by Mr Reyneke on 15 October
2019 in terms of which he transferred the 100 ordinary par
value shares which had been registered in his name under
share certificate No. 1, to the Trust.
11. A copy of Share Certificate No. 2 which Mr Reyneke signed on
15 October 2019 in his capacity as director of Sailing Puppy,
also accompanied Mr Graham's email, which reflects the Trust
as the "Registered Proprietor of 100 Ordinary Par Value
Fully Paid Shares ..."
12. Copies of the Securities Transfer Form (Form CM42) signed by
Mr Reyneke on 15 October 2019 as well as Share Certificate
No. 2 issued to the Trust and bearing the date of 15 October
2019 also confirm the status of the Trust as sole shareholder
of Sailing Puppy. [emphasis added] .
[14] It is first applicant (Mr. Graham’s) contention that since then, the Trust has
been and remains the sole shareholder of Sailing Puppy.
[15] Matters came to a head when Mr Reyneke in his efforts to th wart M rs. Van
Straaten and Mr Graham’s efforts on behalf of the Trust to have a
shareholders’ meeting called, that Mr. Reyneke started raising objections and
making allegations that he has always been a nd remains the sole shareholder
of Sailing Puppy. This much he contends in his answering affidavit filed in
opposition to this application.
[16] Mr. Reyneke contends that the No. 2 share certificate was issued as part of a
pledge, without providing any coherent supporting evidence thereto.
[17] The Trust submits that Mr Reyneke’s version of that he is the sole shareholder
in Sailing Puppy is contradicted by the clear facts and circumstances which
establish that the Trust has, since 15 October 2020 been the sole shareholder
of Sailing Puppy. Such facts (which are borne out by the documents which Mr
Reyneke admits) are destructive of the version of Mr Reyneke which is, on
paper, demonstrated to be palpably untrue meriting its rejection in motion
proceedings.
[18] There are allegations made by the first applicant in his founding affidavit that
Mr. Reyneke has in his capacity as a director of Sailing Puppy , abused his
powers and authority, and acted so as to prejudice Sailing Puppy and the
Trust’s int erests.1
[19] This type of conduct and breach of fiduciary duties on the part of Mr. Reyneke
is the main reason which necessitates th e bringing of this application on an
urgent basis.2
[20] In the circumstances, no directors’ meeting was held, and no sh areholders’
meeting was convened under the section 61(3) demand made by the Trust, Mr
Reyneke for his part, refusing to attend a directors’ meeting .
[21] The Trust approached Mr Ba sch’s office in an attempt to secure further
corroborative evidence in support of its shareholder status. Mr Basch confirmed
1 Founding Affidavit para 127 to 130.
2 Founding affidavit: heading G and the paragraphs thereunder.
the following in a letter dated 27 March 2024 sent to the directors of Sailing
Puppy :
1. that his offices had been instructed to register Sailing Puppy by
Mr Reyneke in August 2019 and that Sailing Puppy was
incorporated on 20 August 2019;
2. that Mr Reyneke was at the date of incorporation the sole initial
director and holder of 100% of the issued share capital of
Sailing Puppy;
3. that Mr Basch's office had been instructed by Mr Reyneke to
prepare a securities transfer form (CM42) as well as share
certificate number 2 of Sailing Puppy for the transfer of 100%
of the issued share capital to the Trust recording further that he
was in possession of the signed electronic copies of the CM42
and the share certificate in the name of the Trust;
4. that his offices had also been appointed to appoint Mrs van
Straaten as a director of Sailing Puppy with effect from 1 April
2022; and
5. that Sailing Puppy did not have an appointed company
secretary on record and that he had never maintained a share
register of Sailing Puppy nor a minute book nor did he have
any minutes of any corpora te actions on the part of the
company.
[22] In light of the above , the Trust resolved that it had exhausted all possible
alternative avenues to secure any additional corroborative evidence of the
factual position that it is the sole shareholder of Sailing Puppy. The Trust then
approach ed the court on an urgent basis seeking an order to convene a
shareholders’ meeting under section 61(12) of the Act.
D. THE PLEDGE
[23] It is common cause that Mrs van Straaten was appointed as a co -director with
Mr Reyneke in Sailing Puppy on 1 April 20223, and that he consented to the
appointment in order to safeguard the interests of the Trust. “…because it
held the shares in pledge as security for the repayment of the loans.”
[24] This particular aspect of Mr Reyneke’s statement is vehemently opposed by
the applicants as being fictional and an untruth under oath. They submit that it
is contradicted by all admitted documents which make no reference
what soever to a pledge. They submit that it is contrary to legal provisions
because:
1. When shares are pledged they are not transferred by the
pledgor to the pledgee. They are retained in the name of the
pledgor.
2. A pledge of shares involves the handing over of the share
certificate reflecting the name of the pledgor together with a
signed CM42 (in the case of certificated shares as these are).
3. It is only if there is a default that the pledgee can, following due
process , register the shares into the pledgee's nam e.
E. LEGAL PROVISIONS PERTAINING TO ORDER SOUGHT
[25] Section 61(3) of the Companies Act reads as follows:
” (3) Subject to subsection (5) and (6), the board of a company, or any other
person specified in the company's Memorandum of Incorporation or rules, must
call a shareholders meeting if one or more written and signed demands for
such a meeting are delivered to the company, and -
(a) each such demand describes the specific purpose for which the meeting
is proposed; …”
3 Mr Reyneke Answering affidavit para 25 .
[26] The courts have shown a reluctance to call a meeting in terms of this section or
its equivalent in earlier versions of the Companies Act. In Yende v Orlando
Coal Distributors (Pty) Ltd4 the Court refused to order the holding of a meeting
where despite disputes between the shareholders of the company, there was
nothing preventing the calling of a meeting. Dowling J reasoning that: “In
general, the policy of the Courts has been not to interfere in the internal
domestic affairs of a company, where the company ought to be able to adjust
its affairs itself by appropriate resolutions of a majority of the sh areholders.”5
[27] In CDH Invest NV v Petro tank South Africa (Pty) Ltd and Another 6, Van der
Linde J held that Court intervention in the form of an order in terms of section
6(12) is not there for the asking, as a Court generally declines to interfere in the
mana gement of company affairs. The learned Judge stated that:
“A court would generally, unless special circumstances require otherwise, have
to be satisfied that calling a members’ meeting was bona fide intended , with a
legitimate purpose, and in the best interests of the company”7
F. DISCUSSION
[28] The decisions referred to above display a stark reluctance by the Courts to
interfere in the management of compan y affairs when invited by applicants to
do so. The exception that was clearly stated is when speci al circumstances so
require, and when the court is satisfied that the intention s for calling the
members’ meeting were bona fide and in the best interests of the company.
[29] Mr Reyneke as can be seen above has not given his cooperation to the Trust’s
efforts to hold a shareholders’ meeting in terms of the section 61(3) demand.
He provides no tenable reason for his attitude.
4 1961 (3) SA 314 (W).
5 Ibid at p316.
6 2018 (3) SA 157 (GJ) confirmed on appeal on other grounds by the SCA as CDH Invest NV v Petrotank
South Africa (Pty) Ltd and Another 2019 (4) SA 436 (SCA); [2019] ZASCA 53.
7 At para 82.
[30] This s tate of affairs establishes without equivocation that as at 12 March 2024
when the Trust made demand upon Sailing Puppy that it convene a
shareholders’ meeting , the Trust enjoyed the competence and entitlement to do
so as the sole shareholder of Sailing Puppy.
[31] Being a co -director of Sailing Puppy , Mr Reyneke’s conduct thus far, is inimical
to the interests of Sailing Puppy . Mr Reyneke has , despite warnings by Mrs van
Straaten , caused Sailing Puppy losses in value to the tune of N$ 460 000.00
through his addendum scheme wherein Sailing Puppy assumed obligations of
another company , and in so doing denuded Sailing Puppy by that amount.
[32] The applicants have demonstrated the special circumstances required in
section 61(3) . When the court is satisfied that the intentions for calling the
members’ meeting are bona fide and in the best interests of the company , it will
eschew its general reluctance and grant the order sought.
G. THE ORDER
[33] The following order is made:
1. Condonation is granted for the applicants’ non -compliance with
the Uniform Rule s of Court pertaining to forms, time periods
and service, as well as the non - observance of Uniform Rule of
Court 41A and permitting the matter to be heard as an urgent
one in accordance with Uniform Rule of Court 6(12).
2. The first respondent, Sailing Puppy (Pty) Ltd is directed to
convene a shareholders meeting, as demanded by the
Rodzina Carbonile Trust ("the Trust ”) in terms of Section 61(3)
of the Companies Act, 71 of 2008 .
3. The first respondent is ordered to:
4. convene a shareholders’ meeting within 14 days of date of this
order; and
5. make suitable arrangements for the shareholders meeting to
take place at the 4th Floor Katherine & West Building, 1[...]
W[...] Street, Sandown.
6. Advocate Darryl Williams (who has confirmed his
preparedness to act as an independent Chairperson in the
separate affidavit placed before this Court) is appointed to act
as Chairperson of the shareholders meeting and to e xercise all
powers as Chairperson of the shareholders meeting and to
keep and prepare a minute of the meeting and cause such
minute to be paste d in the minute book of Sailing Puppy.
7. The second respondent is ordered to pay the costs of this
application including costs of senior counsel on the scale as
between attorney and client . To be taxed on scale C.
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 18/10/202 4
Date of Judgment: 20 May 2025
On behalf of the Applicant : Mr. N. Konstantinides SC
Applicants’ attorneys : Van Hulsteyns Attorneys, Pretoria
Instructing Attorney: Mr Andr ew Legg
e-mail: andrew@vhlaw.co.za
On behalf of the First Responde nt: Mr. A. Els SC
On behalf of the Second Respondent: Mr Myburgh
Respondents’ attorneys : Taljaard & De Oliveira; Pretoria
Instructing Attorney: Mr Taljaard
e-mail: Jan@Riaanbosch.co.za
Delivery : This judgment was handed down electronically by circulation to the parties'
legal representatives by email and uploaded on the CaseLines electronic platform. The
date for hand -down is deemed to be 20 May 2025.