IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 2025 -069955
In the matter between:
VALHALLA FISHING ENTERPRISES (PTY) LTD Applicant
and
BLUEFIN HOLDINGS (PTY) LTD First Respondent
MINISTER OF FORESTRY, FISHERIES
AND THE ENVIRONMENT Second Respondent
Hear ing date : 10 July 2025
Judgment Delivered : 16 July 2025
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JUDGMENT
___________________________________________________________________
O'Brien AJ
Introduction
1. The applicant , a diversified commercial and seafood enterprise, instituted
urgent proceedings for the enforcement of a sale of shares and a shareholder’ s
agreement (“ the agreements ”) concluded, with the first respondent on 29 March
2020. Centra l to the dispute is the applicant’s entitlement to utilize the first
respondent’s 2025 annual fishing permit allocation on its vessel, the MFV Valhalla.
The agreeme nt purportedly precludes the first respondent from unilaterally
terminating the agreement without a 12 -month written, notice supported by a majority
shareholder resolution and prohibits it from assigning its fishing right to third parties.
The second respo ndent did not take part in these proceedings.
2. According to the applicant, the agreement requires the first respondent to
make its 2025 annual fishing permit available to the applicant for allocation on the
MFV Valhalla, which the applicant owns. To withdr aw from the shareholders'
agreement, the first respondent must give 12 months' written no tice as a resolution
supported by a majority of its members. The first respondent should not make its
longline fishing rights available to any third party.
3. In order fo r the applicant to apply for its annual fishing permit in terms of
Section 13 of the Marine Living Resources Act, 18 of 1998 (“ the MLRA "), the first
respondent must make available to the applicant a tax clearance certificate or a tax
clearance authorisatio n; its levy clearance certificate; its current Companies and
Intellectual Property Commis sion disclosure form; a duly signed and issued board
resolution on the first respondent's company letterhead authorising the applicant to
apply for the first responden t's 2025 hake longline fishing permit and any other
document or certificate that may be required by the second respondent or his
officials for applying for any permit under Section 13 of the MLRA .
Factual background
4. On 28 February 2022, the first responden t was granted a 15 -year hake
longline commercial fishing right in terms of Section 18 of the MLRA. The allocation
was premised on the understanding that harvesting would be conducted using the
MFV Valhalla. Pursuant to the agreements, the first respondent acquired a 10%
equity stake in the applicant in exchange for long term access to the vessel. The first
respondent undertook to pay R160,000.00 consideration payable over 5 years with
annual interest of 12.5% .
5. Notwithstanding the agreements, the first respo ndent alleges several
breaches by the applicant: (i) failure to give timeous notice upon docking and
uploading, (ii) mismanagement of kingklip bycatch accounting and (iii) delayed
payment for fish sold. Furthermore, the applicant allegedly reneged on its
undertaking to allow the first respondent to acquire equity in a second vessel, the
MFV Jaqueline .
6. In an email dated 17 December 2024, Dar in Weitsz ("Weitsz"), the deponent
in the founding affidavit of the applicant, stated that he was aware that Shantaa l
Meter ("Meter"), the deponent in the answering affidavit, the first respondent wished
to cancel the shareholders' agreement.
7. Disputes escalated when the first respondent failed to receive financials and
benefits associated with its shareholding. The fir st respondent ultimately gave notice
of cancellation on 26 November 2024, citing non -performance and a lack of financial
benefit. The applica nt, disputing the cancelations ’ validity, launched urgent
proceedings on 14 May 2025 .
8. Notwithstanding the cancell ation of the agreements, Meter enquired from
Weitsz why she was never appointed as a director of the MFV Valhalla, given the
first respondent's shareholding in the company . Weitsz replied with a message,
stating, “ Because you got shares for Frap. ”
9. Accordin g to the first respondent's understanding, the message, in no
uncertain terms, makes a clear statement that the first respondent was not a
shareholder and never intended to be one since the sole purpose of the agreements
was to improve the first respondent 's prospects of being awarded a fishing right .
10. The first respondent refused to grant the applicant consent and authority to
get the hake longline fishing permit for the 2025 seaso n after the first week of
January 2025. The applicant then indicated that it would proceed with urgent legal
action by sending emails on 7 January 2025 , 17 January 2025, and 29 January
2025 .
11. On 20 January 2025 and 30 January 2025, respectively, the first respondent
requested financial information and certain company details. The re ply the first
respondent sought came on 30 January 2025, wherein the applicant stated that the
first respondent had failed to pay for the shares in accordance with the sale of
shares agreement. Accordingly, none of the rights, obligations and/or benefits
attaching to those shares has vested or passed to the first respondent. It concludes
that the first respondent is not entitled to access the requested records.
12. On 28 February 2025, strangely, Mr Moolla, who appeared for the applicant in
these proceedings, w rote an email to the first respondent advising that should the
latter not comply with its obligations by 5 March 2025, the applicant will approach
this court for urgent relief against the first respondent.
13. On 4 March 2025, the first respondent wrote a lett er to the applicant stating
that it had no contractual obligations towards the applicant and was not obliged to
contract with the latter. There was no response to this letter.
The answering affidavit
14. Rule 6(1) determines that an affidavit must support ev ery application brought
on notice of motion. Rule 6(d)(ii) states that a respondent must file an answering
affidavit if he opposes the relief sought by an applicant.
15. The regulations issued under the Justice of the Peace and Commissioner of
Oaths Act, 16 o f 1963, require an oath or affirmation to be administered by a
commissioner of oaths . Regulation 2(1) states that the commissioner of oaths must
ask the follow ing questions: (a) whether he/she knows and understands the contents
of the declaration; (b) whet her he/she has any objection to taking the prescribed
oath; and (c) whether he considers the prescribed oath to be binding on his
conscience. The deponent, if he answers the questions positively, must sign the
statement in the commissioner's presence. Regu lation 4(1) requires the
commissioner of oaths to certify that the deponent has acknowledged that he or she
knows and understands the contents of the declarati on. Thereafter, the
commissioner of oaths must sign the declaration, print his full name and busi ness
address and state his designation and the area for which he holds his appointment
or his office. Mr. Moolla submitted that the answering affidavit of Meter, who
describes herself as an adult female, while the commissioning refers to a “ he,"
therefore the answering affidavit suffers a fatal defect, constituting a nullity and
having no force or effect in law. For this proposition, he relies on Absa Bank Ltd v
Botha NO & Others 2013 (5) SA 563 (GNP) and Phumelela Local Municipality v
Telkom SA SOC Ltd (53 27/2022) [2023] ZAFSHC (31 May 2023) .
16. In Absa Bank, the court stated that if a deponent is a female, the
commissioner of oaths must use the pronoun " she"; if the deponent is a male, the
commissioner of oaths must use the pronoun " he". The court stated t hat, in that
case, no reliance could be placed on the commissioner of oaths' certification
because, ex facie , the affidavit would be unclear as to whether the deponent is a
male or a female. The court could not give effect to the presumption of regularity to
assume that the declaration was sworn to and signed in the commissioner's
presence.
17. In Phumelela, the court referred to the judgment of Parys -Aan-Vaal
Woonstelle (Pty) Ltd & Another v Plexiphon 115 CC (3489/2021) [2022] ZAFSHC
2 (20 January 2022) . In Phumelela, the court held that the commissioner's failure to
delete the appropriate gender justified an inference that the deponent did not appear
before the co mmissioner.
18. Mr Van der Schyff, acting for the first respondent, sought to distinguish the
Absa decision, arguing that in Absa, the court faced a summary judgment
application where the bank sought to deprive the homeowner of his property. Due to
the importance of the matter and the dire consequences it held for the homeowner,
the court required strict compliance with the law regarding the commissioning of an
affidavit. He also referred to the case of Knuttel NO and Others v Bhana and
Others (38683/2020) [20 21] ZAGPJH (26 August 2021) , where the court followed
the decision of S v Munn 1973 (3) SA 734 (N C) at 737 H –738 A where it held that
the regulations relating to the commissioning of an affidavit was directory and not
peremptory and that an affidavit will be accepted as long as there has been
substantial compliance.
19. In this matter, the commissioner o f oaths, in his declaration, refers to the
deponent as a " he"; therefore, there was no strict compliance with the regulations.
The question is whether the answ ering affidavit should be regarded as a nullity for
failing to comply with the regulation. The de ponent of the answering affidavit
describes herself as a female. She initialled every page of the answering affidavit,
and on the last page, her full signature appears. Mr Van der Schyff also submitted
that if there is a problem with the commissioning, he would call the commissioner of
oaths and the deponent to the answering affidavit to testify. I deem it not necessary.
20. The answering affidavit shows substantial regulatory compliance. In S v Msibi
1974 (4) SA 821 (T), the full court of the Transvaal Provinc ial Division found that the
requirements in Regulations 1, 2, 3 and 4 are not peremptory but merely directory. In
a suitable case where the requirements have not been complied with, the court may
refuse to accept the affidavit concerned as such or give it no effect. The question
should be whether there has been substantial compliance with the requirements in
each case. Following the principle of stare decisis, the Absa Bank court should have
upheld the full court's ruling in Msibi . Moreover, in the Absa Ban k case, the court did
not refer to Msibi . The court in Phumelela, although referring to the case of Nkondo
v Minister of Police & Another (1980) 2 SA 362 (O), respectfully failed to apply the
dictum in that case, where the court found substantial complianc e.
21. The deponent to the first respondent's affidavit initialled every page of her
affidavit and signed the last page. Warrant Officer D Smit, a South African Police
Service officer stationed at Brackenfell, commissioned the affidavit on June 27,
2025, as per the regulations. The only omission is that instead of referring to the
deponent's gender as " she", it refers to " he”. The fault is not that of the commissioner
of oaths. This is the fault of the person who typed the affidavit. I therefore find that
there has been substantial compliance with the regulations.
Urgency
22. Rule 6(12)(a) determines that a court may dispense with the forms and
service provided for in the rules and may dispose of such matter at such time and
place and in such manner and in accord ance with such procedure (which shall as far
as practicable be in terms of these rules) as it deems fit. An applicant must set out
explicitly the circumstances that render the matter urgent and the reasons the
applicant claims the applicant could not be af forded substantial redress at the
hearing in due course.
23. There are degrees of urgency. See Luna Meubel Vervaardigers (Edms)
Bpk v Makin and Another (t/a Makin ’s Furniture Manufacturers) 1977 (4) SA 135
(W); IL & B Marcow Caterers (Pty) Ltd v Greatermans S A Ltd ; Aroma Inn (Pty)
Ltd v Hypermarket s (Pty) Ltd and Another 1981 (4) SA 108 (4) .
24. In East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd [201 1]
JDR 1832 (GSJ) at para 6 to 7, the court stated:
“[6] The import thereof is that the procedure se t out in Rule 12 is not there
for taking. An applicant has to set forth explicitly the circumstances which he
avers render the matter urgent. More importantly, the Applicant must state the
reasons why he claims that he cannot be afforded substantial redres s at a
hearing in due course. The question of whether a matter is sufficiently urgent
to be enrolled and heard as an urgent application is underpinned by the issue
of absence of substantial redress in an application in due course. The rules
allow the court to come to the assistance of a litigant because if the latter
were to wait for the normal course laid down by the rules it will not obtain
substantial redress .
[7] It is important to note that the rules require absence of substantial
redress. This is not 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 to obtain s ubstantial redress in an application in
due course will be determined by the facts of each case. An applicant must
make out his case in that regard. ”
25. The app licant also referred me to the case of Tom Gelderbloem & Others v
The Sandown Bay Fishing Company (Pty) Ltd & Others, Case No: 19605/2024,
where the court granted an urgent order on 17 January 2025 but delivered the
reasons for it only on 19 May 2025. On the facts of that case, the court was of the
view that the applicants would not receive substantia l redress in the due course of
justice.
26. In this matter, the applicant asserts it sought relief from this court only after
months of trying to persuade the fir st respondent to fulfil its obligations under the
shareholders' agreement. The applicant further contends that if this matter is not
heard as an urgent matter, it will have to be enrolled on the normal roll, which would
render the relief sought by the applicant moot because the 2025 fishing season ends
on 31 December 2025 .
27. The applicant is the author of its urgency. I say so because:
27.1. The first respondent informed the applicant on November 26, 2024,
that they would not comply with the previously signed sha reholders’ and
catching agreement.
27.2. On 2 December 2024, the applicant, through its director, infor med the
first respondent that it got its shares for " frap", whatever that might mean;
27.3. In an email to the first respondent on 17 January 2025, the applicant
stated that if their emails continued to be ignored, legal action would begin the
following Monday.
27.4. On 30 January 2025, the applicant, in no uncertain terms, on a request
from the first respondent for records, informs that the latter is not entitled to
access any records it requested;
27.5. Adv. Moolla, managing director of Feike National Resource
Management A dvisors, notified the first respondent on 28 February 2025 that
non-compliance with its obligations before 5 March 2025 would lead to an
urgent application to the Western Cape High Court.
28. The above timeline shows that, since November 2024, the applican t was
aware that the first respondent would not comply with the agreements entered into
by the parties. Yet, this application was only issued by this court on 14 May 2025. No
explanation is given for the period between March and April 2025, nor is it clear why
the applicant did not approach this court for urgent relief. Adv Moolla, in writing the
email on 28 February 2025 as the legal advisor to the applicant, would have been
aware of the requirements for urgency.
29. The applicant has thus created its own ur gency. The applicant's contention
that it could not obtain substantial redress, the applicant only has itself to blame.
30. The application lacks urgency and sho uld be struck from the roll.
31. The first respondent, at the hearing for the first time invoked th e dispute
resolution clause contained in the agreements which mandates arbitration for legal
disputes.
Dispute resolution and arbitration
32. Clause 12 of the agreement stipulates that any dispute or difference between
the parties shall first be resolved by dispute resolution, and the parties shall agree in
writing to the appointment of a practising advocate of no less than 15 years of
experience regarding a ques tion of law dispute. In a financial matter, a practising
auditor with no less than 15 years of ex perience practising in Cape Town shall be
approached. Should the parties to the dispute not agree on whether the dispute is
primarily of a legal or financial nature, the matter will be deemed to be of a legal
nature. In that event, the parties agreed to re solve the dispute through arbitration.
33. Mr Moolla takes issue with the first respondent because it is irregular for the
first respondent's counsel, on the morn ing of the hearing, to raise a point in limine
that was not raised in the answering affidavit. He further contends that the matter
cannot be arbitrated because the Minister could not be a party to those arbitration
proceedings. Furthermore, clause 15 of the shareholder's agreement permits the
applicant to approach a court of law for the relief it seek s in the notice of motion.
34. Clause 15 of the shareholder's agreement does not assist the applicant.
Clause 11 of the shareholder's agreement provides that any dispute or difference
between the parties shall be resolved by arbitration. The share sale agreem ent, in
clause 12, similarly stipulates that parties should first attempt to resolve any disputes
or differences through dispute resolution.
35. A reading of the documents in a businesslike manner unequivocally reflects a
dispute resolution mechanism, specifi cally an arbitration mechanism, to which the
parties must adhere before approaching a court of law. Therefore, the applicant has
an alternative remedy. The app licant has failed to comply with these provisions; on
this basis, the application should also be struck from the roll with costs.
Clear right
36. Mr Van der Schyff contended that in the agreements, there is nothing in the
founding affidavit that unequivocally states that the agreement is still in force.
Accordingly, the applicant has failed to establish a clear right, and their application
should be dismissed. There is much to be said about this argument but I do not
address it further .
37. Regarding costs, both counsels were of the view that the Scale C cost is the
applicable scale.
38. I make the foll owing order:
The application is struck from the roll, with costs on Scale C.
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S C O’BRIEN
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
For the Applicant: Adv S Moolla
Instructed by: TSP Inc
For the First Respondent : Adv J van der Schyff
Instructed by: Stratford Lembo Inc