IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 19726/23
In the matter between:
DR PIETER FRANCOIS MELCHIOR
BRIERS
DR PRANAV RAMKILAWAN
FIRST APPLICANT
SECOND RESPONDENT
and
DR J BRUWER AND ASSOCIATES
NO 78 INC
DR ANDRE JACOBUS MAREE
DR ELSKE MARGUERITE FERREIRA
DR JASPER MICHAEL SMIT
DR MARSHA HERMANUS
DR SHARMISTHA HEERALAL
DR REINETTE VAN DER WESTHUIZEN
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
SIXTH RESPONDENT
SEVENTH RESPONDENT
DR SEAN DANIEL
DR YOLANDA VINK
THE COMPANIES AND
INTELLECTUAL PROPERTY
COMMISSION
EIGHTH RESPONDENT
NINTH RESPONDENT
TENTH RESPONDENT
Neutral citation: Dr Briers and Another v Dr J Bruwer and Associates No 78 Inc
and Others (Case no 19726/23) [2025] ZAWCHC … (3
October 2025)
Coram: NUKU J
Heard: 14 August 2025
Delivered: 3 October 2025
Summary: Practice: Application for leave appeal to be refused where the appeal
would have no reasonable prospects of success and it is not sufficient to point to
factual errors that have no bearing on the merits.
ORDER
1 The application for leave to appeal is refused; and
2 The applicants jointly and severally, the one paying the other to be absolved,
are directed to pay the party and party costs, including costs of counsel on scale B.
JUDGMENT
Nuku J:
[1] The applicants seek leave to appeal a decision of this Court made on 27 May
2025, whereby their application for certain relief under section 163 of the
Companies Act 71 of 2008 (Companies Act) was dismissed with costs.
[2] The application for leave to appeal sets out ten grounds for the intended
appeal, with the first relating to an alleged incorrect factual finding that does not,
in fact, affect the merits of the case . During the argument, it was stated that this
incorrect factual finding might have caused the Court to be less sympathetic
towards the applicants’ plight. Clearly, the first ground of the intended appeal does
not meet the requirement for granting leave to appeal, and no further discussion is
necessary on this ground.
[3] The second ground concerns what the second applicant initially claimed was
a unilateral change to his remuneration scheme. However, the facts showed that he
signed a consultancy agreement on 24 August 2021. Attached to the consultancy
agreement was a sched ule outlining the applicable remuneration scheme (the
original scheme). On the same day, he signed an addendum to modify the original
scheme (the amended scheme). The amended scheme resulted in the second
applicant earning about 15% more than he would have earned under the original
scheme.
[4] The amended scheme was valid for six months, after which the original
scheme would take effect. Due to an oversight, the second applicant was paid
under the amended scheme beyond the six months specified. Upon the oversight
being identified, the second applicant was advised that he may have received more
than he was entitled to and that it might be necessary for him to pay the difference,
if any.
[5] In light of the above facts, counsel for the applicants was compelled to admit
that there had been no unilater al change to the remuneration scheme applicable to
the second applicant. However, he then shifted his position and argued that the real
issue was that both applicants had, in fact, been discriminated against because a
lower remuneration had been agreed with them compared to the other practitioners.
This was, however, not the case that had been pleaded by the applicants, as their
case for unfair discrimination was based on the notion that the second applicant’s
remuneration had been unilaterally changed to a less favourable scheme. As a
result, this ground of appeal lacks merit.
[6] The applicants criticised the Court for adopting a very narrow approach
when it held that the respondents were contractually entitled to act as they did in
terminating the applicants ’ consultancy agreements. It was argued that the Court
ignored the dictum in Technology Corporate Management (Pty) Ltd v De Sousa
and Others1(Technology) where the Supreme Court of Appeal (SCA) held that:
‘Even if the majority shareholders act strictly in accordance with the contractual terms governing
the shareholders’ relationship, they may exercise their powers in a way that is oppressively or
unfairly prejudicial to minority shareholders. To that end , the courts have been vested with
statutory powers to override the majority’s exercise of its contractual powers in order to remedy
such oppression or unfair prejudice.’
1 2024 (5) SA 57 (SCA) at para [76]
[7] In Technology, the SCA addressed the provisions of section 252 of the
Companies Act 61 of 1973 (the Old Companies Act), which was the predecessor to
section 163 of the Companies Act, and has similar provisions. At para [77] it stated
that:
‘The section could be invoked in two situations. The first was where the complaint was that a
particular act or omission of the company was un fairly prejudicial to the member or group of
members. The second was where the affairs of the company were being conducted in a manner
unfairly prejudicial to that member or to some part of the members of the company. .. While
there was potentially an overlap between the two, there was a clear difference in principle,
between cases where the complaint arose from the actions of the company and those where it
was the manner in which the affairs of the company were being conducted that was a lleged to be
unfairly prejudicial. The one focused on the company's actions, while the other focused on the
manner in which the affairs of the company were being conducted and the actions of those
responsible for that conduct.’
[8] In considering a claim base d on section 163 of the Companies Act, it is
therefore necessary to distinguish between a complaint arising from a specific act
or omission of a company and one relating to how the company's affairs are
managed. To the se two, s ection 163 (1)(c) of the Compa nies Act has added the
exercise of the powers of a director or prescribed officer of the company, or a
person related to the company.
[9] The claim in Technology was based on the manner in which the affairs of
the company were being conducted and at para [78] the SCA stated that:
‘Unfairly prejudicial conduct by the company could arise from matters such as changes in the
articles of association to enable the majority shareholder to dispose of their shares; amending the
articles of association to confer additional rights on a developer; changes to the voting rights
attached to certain shares or the issue of additional shares in such a way as to result in a
shareholder's voting rights being diluted; or to enable the majority to acquire the minority's
shares; a merger with, or takeover by, another business; the disposal of the company's business
or a major asset of that business; or even the winding-up of the company. Any of those could be
structured so as to prejudice the interests of minority shareholders unfairly. Their common
feature was that they were actions by the company itself, albeit driven by the majority
shareholders.’ (footnotes omitted)
[10] Where the complaint concerns the manner in which the affairs of the
company are being conducted, the SCA at para [7 9] referred to a passage in Aspek
Pipe2 and explained that ‘Proof was required of an identifiable and discernible course of
conduct of the company's affairs that was unfairly prejudicial to the member or part of the
members.’
[11] It therefore follows that the applicants had the burden to provide proof of a
specific and identifiable course of conduct if their claim concerns how th e affairs
of the first respondent were managed, or proof of a specific act or omission by the
company if their claim concerns the company's conduct. The same applies to the
exercise of powers by a director under section 163 (1) (c) of the Companies Act.
[12] The applicants’ main argument was that they paid money to acquire their
respective drawing powers in the first respondent, and these were assets they
possessed which they could sell if they had been the ones who terminated the
consultancy agreements. The t ermination of the consultancy agreements, which
resulted in the loss of those assets, was either oppressive or unfairly prejudicial to
or unfairly disregarded their interests.
[13] The argument presented by the applicants, when taken to its logical
conclusion, would suggest that only the consultants have the right to terminate the
2 Aspek Pipe Co (Pty) Ltd and Another v Mauerberger and Others 1968 (1) SA 517 (C) at 529B – D.
consultancy agreement with thirty days’ notice, and not the company. However,
this is not what the consultancy agreement provides.
[14] The third and fourth grounds concern what the applicants call a failure to
recognize the connection between the consideration paid for the right to practice
and its termination. These grounds, however, do not advance the matter further
because a consultant’s right to practice as a consultant with the first respondent is
governed by the consultancy agreement. The result of terminating the consultancy
agreement is that it ends a consultant’s right to continue practicing as part of the
first respondent.
[15] There is also a ground related to the failure to ho ld general meetings, and a
statement is made that the applicants might have been able to persuade the other
consultants not to vote for terminating their consultancy agreements. However, this
ignores the explanation given by the respondents as to why they had to resort to
holding meetings by way of round robin, especially regarding how the second
respondent behaved during the in-person meetings.
[16] There is also a ground related to the costs associated with an application for
the separation of the first appli cant’s case, which was later abandoned. It was
argued that a party typically must pay the costs if it withdraws an application. In
this case, it was stated that the court had refused an amendment on incorrect
grounds. As a result, the judge, upon recognizi ng that mistake, took an unusual
step for a judge by urging the parties to agree not only on granting the leave to
appeal but also on revising the order she had made. Therefore, it was argued that
an appropriate order in these circumstances would be for ea ch party to pay its own
costs.
[17] It was, however, the first applicant who chose to apply for the separation of
his case. He is also the one who decided to abandon it in light of developments. In
the absence of an agreement regarding costs, it follows that he should be the one to
pay them. The agreement regarding the amendment of the order cannot be used as
a basis for each party to pay its costs without a specific agreement to that effect.
[18] Having considered all of the above, I am not convinced that the appeal has a
reasonable prospect of success. Therefore, the application for leave to appeal must
be refused, and costs should follow the outcome.
Order:
[19] As a result, the following order shall be issued:
19.1 The application for leave to appeal is refused; and
19.2 The applicants jointly and severally, the one paying the other to be absolved,
are directed to pay the party and party costs, including costs of counsel on scale B.
_____________________________
LG NUKU
JUDGE OF THE HIGH COURT
Appearances
For applicants: C Joubert SC with G Potgieter
Instructed by: Van Zyl Scheepers Attorneys, Stellenbosch
Care of: Norman Wink Stephans Inc, Cape Town
For respondents: IL Posthumus
Instructed by: Whalley and Van Der Lith Inc, Randburg
Care of: Herold Gie Attorneys, Cape Town