REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2023 -117011
DELETE WHICHEVER IS NOT APPLICABLE
1.REPORTABLE: NO
2.OF INTEREST TO OTHER JUDGES: NO
3.REVISED : NO
25 March 2025 Judge Dippenaar
In the matter between:
ASSOCIATION FOR THE ADVANCEMENT
OF BLACK ACCOUNTANTS OF SOUTH
AFRICA NPC
APPLICANT
And
MZUKISI LUYANDA GIDINI FIRST RESPONDENT
Page 2
SPOKAZI JOJO MAQOMA
BANELE BEDNOCK MKWANAZI SECOND RESPONDENT
THIRD RESPONDENT
JUDG MENT
Delivered: This judgment was handed down electronically by circulation to the parties’
legal representatives by e -mail. The date and time for hand -down is deemed
to be 10h00 on the 25th of MARCH 2025.
DIPPENAAR J:
[1] This is an opposed application concerning the board of directors and the
management of the applicant . The applicant is the Association for the Advancement of
Black Accountants of Southern Africa NPC (‘ABASA’), a non -profit company, duly
incorporated and registered as such. The applicant was establish ed in 1985 to promote
the professional interests of black persons engaged in the accounting profession. In terms
of its memorandum of incorporation ( ‘MOI’) it was incorporated with effect from 18 August
2016 as a non -profit company.
[2] The first, second and third respondents, M r Gidini , Ms Jojo and Mr Mkwanazi are
individuals who are members and office bearers of the applicant. The nub of the dispute
relates to their suspension and the termination of their membership and directorship of
the applicant at the behest of the applicant’s National Council. The chairperson of the
National Council, Mr Phillip Rakgwale, is the deponent to the applicant’s affidavits.
[3] The background facts are shortly the following . An elective annual general meeting
of the applicant was held on 2 December 2021 in terms of its MOI, at which various
individuals were appointed as directors of the applicant : Ms Maqomo as president; Mr
Gidini , the first respondent, as vice -president, Ms Jojo, the second respondent, as
treasurer general and Mr Abbey as secretary general. Pursuant to the resignation of Mr
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Abby on 23 May 2023, a purported board meeting was held between Mr Gidini and Ms
Jojo in the absence of Ms Maqomo , at which it was resolve d to nominate Mr Mkwanazi ,
the third respondent, as director and secretary general.
[4] The applicant’s case in sum is that from July 2022, the respondents embarked on
a stratagem to unlawfully seize control of the applicant and performed a series of unlawful
acts. Pursuant to a preliminary investigation, that resulted in the suspension of their
membership on 31 August 2023 by way of a letter dated 1 August 2023. The respondents
did not appeal their suspension in terms of the applicant’s code of conduct but adopted
the stance that their suspension was unlaw ful. They continued with their unlawful actions,
including attempting to unlawfully remove Ms Maqoma as president and seize control of
the board. The respondents further effected changes to the registered directors of the
applicant by removing Ms Maqoma as director on the applicant’s CIPC profile without
authority and gained control of the applicant’s bank account at Standard Bank.
[5] That resulted in their membership being terminated by way of notice on 3
November 2023 at the instance of the president of the applicant’s National Council ,
following alleged violation of the conditions of their suspension. The National Council had
invoked cl ause 5.10(3)(b)1 of the MOI and further relied on a resolution of a Special
General Meeting resolution of 28 August 2023 to take over the control of the applicant on
an interim basis. According to the applicant it has a n undeniable clear right to have its
affairs properly controlled in accordance with its MOI and Companies Act free of unlawful
interference. It was contended tha t the re spondent s’ membership ha d been lawfully
terminated and they have no right to retain office bearer functions, as they forfeited the
functions and benefits of their membership by their conduct which warranted the
termination of their membership. The respondents did not cease their unlawful activities
and continued to conduct themselves as directors of the applicant .
1 Authorising it to ‘ temporarily assume the powers and functions of the Board if most of the Board Members
resign or are removed and are not replaced in accordance with the provisions of the Memorandum of
Incorporation until such time as a new Board can be appointed.’
Page 4
[6] The respondent’s primary defence was to challenge the lawfulness of their
suspension and removal as members and directors of the applican t, contending that the
provisions of the Companies Act 2008 pertaining to the removal of directors were not
complied with . They further challenged the authority of the National Council, contending
that the applicant relied on an incorrect interpretation of the MOI. They contended that as
appointed directors, they bear a fiduciary duty to the applicant and the proper utilisation
of its assets including monies held in its bank account , until they are lawfully removed
from office . The respondents further chall enged the authority of Mr Rakgwale, the
deponent to represent the applicant and disputed the applicant’s response to its r 7 notice.
[7] Two opposed applications were launched under the above case number. The first,
an urgent application dated 9 November 2023, launched by the applicant seeking
interdictory and related relief against the respondents (‘the interdict proceedings’) . No
order was granted and the ma tter was removed from the roll o n 21 November 2023. The
second, a separate application dated 14 June 20 24 launched by the respondents.
[8] The applicants sought interdictory relief : (a) restraining the respondents from
disrupting the smooth running and general proper administration of the applicant; (b)
holding themselves out to be office bearers of the applicant or acting in any manner that
represented to third parties that they hav e authority to represent to applicant or
communicate in public about internal and administrative matters relating to the applicant;
(c) unlawfully using the name, corporeal and incorporeal assets of the applicant including
the applicant’s Glue up platform to send communication to the applicant’s members and
stakeholders; and (d) interfering with the financial administration of the applicant or
purporting to act on behalf of the applicant to the applicant’s bank or otherwise to financial
institutions. In add ition, orders were sought (e) directing the respondents to forthwith
restore to their previous state, the applicant’s Standard Bank banking platform and its
Companies and Intellectual Property Commission (CIPC) profile in relation to the
members of the app licant; and (f) authorising the Sheriff and, if necessary the South
African Police Service to take all reasonable steps to enforce and execute the orders
granted in the event of the respondents failing to comply therewith, together with ancillary
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relief. In addition, the applicant sought declaratory relief that the applicant’s termination
of the respondent’s membership to it in terms o f the notices of immediate termination of
membership was valid. At the hearing, the applicants sought final interdicts as th e interim
relief sought had become academic due to the effluxion of time.
[9] The respondents in turn sought declaratory orders: (1) that all decisions and
actions taken by Mr Rakgwale and/or Ms Maqoma and/or interim board and/or any
member of the applicant’s National Council since on/or about 1 August 2023 , in respect
of the Applicant and its members, stakeholders and /or third parties , is declared null and
void ab initio and is set aside. (2) Any contra cts and/or binding agreements entered into
in the period in paragraph 1 above shall be subject to review and/or ratification by the
board of directors of the Applicant’ , together with ancillary relief.
[10] At the hearing , this court, with reference to Morudi 2 raised the issue of non -joinder
of the various parties who have a direct and substantial interest in the relief sought by the
respondents. It was self -evident that the re were numerous parties who would be affected
by the relief sought, as conceded by the respondents.
[11] In addition, the applicants’ newly appointed attorney of record was not aware that
the respondents’ application had been opposed and had not had sight of all the
application papers. The opposing papers had also not been uploaded onto the ele ctronic
platform and had not been brought to the court’s attention.
[12] After discussion between the parties , they agreed to postpone th e respondents’
application sine die , with costs reserved. It was submitted that the respondents’
application was self - standing and should be dealt with in due course. On that basis the
respondents’ application was postponed. The parties did not however agree to a
2 Morudi and Others v NP Housing Services and Development Co Ltd and Others [2018] ZACC 32; 2019
(2) BCLR 261(CC) (25 September 2018) paras 29 -31.
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postponement of the applicant’s application , but insisted that it be dealt with . The present
proceedings thus concern the relief sought by the applicant in the interdict proceedings .
[13] Prior to the hearing, t his court had further invited the parties to make
supplementary submissions on the issue whether an y of the issues raised in the
applications had become of academic interest only or, put differently, had become m oot.
The applicant delivered submissions . whilst the respondents elected not to. None of the
parties took the court into their confidence by se eking to deliver supplementary affidavits
regarding what had transpired since the last supplementary affidavits were delivered by
the respective parties during January and March 2024.
[14] In its supplementary heads of argument , the applicant submitted that t he crux of
the interdict sought had become moot through the effluxion of time as the term of office
of the respondents had come to an end on 3 December 2024. It submitted that the court’s
intervention was still required to restore control over the applican t’s bank account to ‘duly
appointed office bearers ’, as it remained under the control of the respondents. The
respondents on the other hand contended that the issues had not become moot.
[15] The issue of mootness can arise at any time. It is apposite to refer to Akani
Retirement Fund, wherein the Supreme Court of Appeal held : :3
‘[30]…This Court did not say that mootness should always be raised formally in the affidavits,
as the full court seemed to suggest. Indeed, it may not always be possible to raise the question
on affidavit, particularly where the issues raised for consideration h ave been overtaken by
subsequent events that either arise after the filing of, or are not foreshadowed in, the earlier
affidavits. There can be no absolute procedural bar (as the full court seemed to perceive) to
mootness being raised for the first time in the heads of argument filed on appeal. If anything,
it has come, not infrequently to be raised mero motu by courts. ’
[31] Here the facts were undisputed. The fact of Akani’s removal and its replacement with
Momentum as CINPF’s provider of administration s ervices, and the death of
Messrs Dangazele and Sema, are common cause. Insistence on affidavits, not only placed
form above substance, but also put the parties, the full court and in turn this Court to the
3 Akani Retirement Fund Administrators (Pty) Limited and Others v Moropa and Others (1125/2022 and
1129/2022) [202 5] ZASCA 13 (21 February 2025) paras 30 -31.
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unnecessary trouble and expense of having to consi der issues that on any reckoning are
academic …’
[16] Similar considerations arise in the present instance. The relevant facts were
similarly undisputed. The fact of the respondents’ suspension and removal as members
is common cause. Whether their removal as directors was valid is an issue that has
become of academic interest only for purposes of the interdictory relief, given that their
term of office came to an end on 3 December 2024. The applicant’s contention that th e
respondents’ term of office expired on 3 December 2024, was not disputed, and was
conceded by the respondents in argument.
[17] There is thus no live controversy at present as to whether the respondents are
directors of the applicant and no cause of action to consider at the time the court was
asked to make a pronouncement on the issue . Factually, the respondents are no longer
directors of the applicant as their term of office has come to an end . Consequently , they
do not have any ent itlement to perform the management functions of the applicant’s
affairs, including exercising control over its bank account and must relinquish such
control. They should have done so when their term of office came to an end.
[18] The applicant’s MOI4 clearly sp ecifies the steps which must be taken to appoint
directors and to replace the directors’ whose terms of office have expired. It is regrettable
that none of the parties considered it prudent to provide the court with supplementary
affidavits providing updat ed information regarding the current state of affairs and what
steps have been taken. The submissions made in argument amount to presenting
evidence from the bar and cannot be accepted. A court cannot be left to speculate as to
the current state of affairs of the applicant.
[19] Having had the benefit of considering a full set of the papers in the respondents’
application after the hearing, it appears clear that both applications are intertwined. The
4 In clauses 4 and 5.
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respondents’ c ounter application is centrally predicated on th e making of certain factual
findings in the applicant’s interdict application. As such the agreement between the
parties to the postponement of only the respondents’ application and to have the two
applications dealt with in separate hearings was ill -conce ived.
[20] The applicant at the hearing properly conceded that the interdictory relief sought
was no longer a live controversy . Ultimately, the issues pertaining to the respondents’
suspension and the termination of their membership of the applicant remain relevant only
insofar as the respondents’ counter application is concerned. Although cast as a self -
standing application, the respondents’ application is in essence a counter application. To
avoid a piecemeal hearing, i t would be apposite to consider the declaratory relief sought
by the applicant that the termination of the respondents’ membership of the applicant was
valid, together with the respondents’ application, if the applicant elects to persist with such
relief .
[21] As the interdictory relief sought by the applicant is no longer a live controversy , no
order will be made in relation thereto . Had that been the only relief sought, the application
would have been struck from the roll.5 The declaratory relief sought by the applicant is to
be postponed sine die. Given the relevant facts, it would be just that the respective parties
be held liable for their own costs.
[22] In the result, the following order is granted:
[1] The application for declaratory relief is postponed sine die, to be enrolled for
hearing on the same date before the same judge as the application launched by the
respondents under case number 2023 -117011;
5 MEC for Health, Gauteng v Dr Regan Solomons (1089/2023) [2024] ZASCA 184 (30 December 2024)
para 36.
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[2] The applicant and the respondents are liable for their own costs.
_____________________________________
EF DIPPENAAR
JUDGE OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
DATE OF HEARING : 04 FEBRUARY 2025
DATE OF JUDGMENT : 25 MARCH 2025
APPLICANT’S COUNSEL : Ms DM Mangadi (attorney)
APPLICAN T’S ATTORNEYS : Mangadi Masego Attorneys
RESPONDENT’S COUNSEL : Adv. L. Peter
RESPONDENT’S ATTORNEYS : Lowndes Dlamini Attorneys