SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)

Case no: 990/2025
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Regional Magistrates: YES / NO
Circulate to Magistrates: YES / NO

In the matter between:

ZECHA JV ROSSTECH XEROX (PTY) LTD 1st Applicant

SEPHIRI ERNEST MOSALA 2nd Applicant

CHARLES ALFRED ROSSOUW 3rd Applicant

ROSSBURG INDUSTRIAL ENTERPRISES
(PTY) LTD t/a ROSSTECH XEROX 4th Applicant

and

ZECHA HOLDINGS (PTY) LTD 1st Respondent

MELISSA MARLENE JAPHTA 2nd Respondent

FIRSTRAND BANK LTD t/a FNB BANK 3rd Respondent

STANDARD BANK OF SOUTH AFRICA
LTD t/a STANDARD BANK 4th Respondent

Neutral citation: Zecha JV Rosstech Xerox (Pty) Ltd and 3 Others v Zecha
Holdings (Pty) Ltd and 3 Others (Case no 990/25) 07/11/
2025.

2
Coram: TLALETSI JP
Delivered: 07 November 2025.
Summary: Return day of a rule nisi – Having granted interim restorative relief
on urgent ex parte basis – Respondents failing to show cause why relief should
not be made final – Applicants having made a case for the relief – Relief granted
– Rule nisi confirmed.


ORDER


1. The third respondent is ordered to forthwith transfer the amount of
R4,250 000,00 (Four Million Two Hundred and Fifty Thousand Rands) ,
from the account held in its books by the first respondent under account
number 6[...], into the account held by the first applicant with the fourth
respondent under account number 3[...]; and

2. The first and second respondents are ordered to pay the costs of this
application on party-and-party scale, jointly and severally with each other,
the one paying the other to be absolved pro tanto.


JUDGMENT


Tlaletsi JP

[1] This is a return day of a rule nisi that was granted ex parte by Stanton J on
17 April 2025 based on the viva voce evidence tendered by Ms Andriette
Rossouw on behalf of the first applicant. The interim order granted is on
the following terms: -

3

“1. That this matter be heard as one of urgency and that the applicants’ non-
compliance with the rules of court regarding service and time periods be
condoned.

2. That the respondents are called upon to show cause, if so advised, on 16
May 2025 why the following shall not issue:
2.1 That the third respondent is ordered to forthwith transfer the amount
of R4,250 , 000.00 from the account held in its books by the first
respondent under account number 6[...] and transfer it into the
account held by the first applicant with the fourth respondent under
account number 3[...]; and

2.2 That first and second respondents be ordered to pay the costs of this
application on the scale as between attorney and client and which
liability is to be jointly with and severally from each other, the one
paying the other to be absolved pro tanto.

3. That paragraph 2.1 above will serve as an interim interdict with immediate
effect pending the final determination of this application and that the fourth
respondent is ordered to place a hold on account number 3[...] pending the
final determination of the application.

4. That the evidence tendered be transcribed as a matter of extreme urgency
and on transcription thereof be served and filed before the return date,
together with the notice of motion, founding affidavit by Ms A Rossouw,
confirmatory affidavit of Mr L Fouche, and annexures thereto, service to be
effected in terms of the Rules of Court.

5. That the Applicant’s attorney is authorised to deliver a copy of the court
order to the Respondents either by email or hand.”

4
[2] It is apposite to set out the factual matrix to identify the parties and their
respective standing , and further provide the factual basis of the
controversy in this matter.

[3] The first applicant is Zecha JV Rosstech Xerox (Pty) Ltd (“Zecha JV”), a
private company duly registered in terms of the laws of the Republic of
South Africa. The second applicant is Mr Sephiri Ernest Mosala
(“Mosala”), a major male businessman. The third applicant is Mr Charles
Alfred Rossouw (“C Rossouw ”), a major male businessman. The fourth
applicant is Rossburg Industrial Enterprises (Pty) Ltd, trading as Rosstech
Xerox (“Rosstech Xerox”), a company also duly registered in terms of th e
laws of the Republic.

[4] The first respondent is Zecha Holdings (Pty) Ltd (“Zecha Holdings ”), a
company also duly regist ered in terms of the laws of the Republic. Th e
second respondent is Ms Melissa Marlene Japhta (“Japhta”), a major
female. The third respondent is FirstRand Bank Ltd, a public company
duly registered in terms of the law s of the Republic and provi ding banking
services to its clients. The fourth respondent is Standard Bank of South
Africa Ltd, also a public company duly registered in terms of the laws of
the Republic and providing banking services to its clients.

[5] On 6 August 2021 , Zecha Trading CC (a Close Corpora tion of which
Mosala is the s ole member) entered into a j oint venture agreement with
Rosstech Xerox, the fourth applicant. The purpose of the joint venture was
to submit a tender to the Northern Cape Department of Education (“the
Department”) to provide printing and packaging of examination papers
used, inter alia , in the administration of the M atric Examination s in the
Northern Cape Province.

5
[6] The said tender was ultimately awarded to the joint venture entity. The
parties to this joint venture converted the joint venture into a private
company for it to be a vehicle to conclude the required contract with the
Department. That is how the Zecha JV came into being. The shareholding
of Zecha JV was as follows: Mosala held 51% and C Rossouw held 49%
of the issue d share capital. The two were also the only initial directors of
Zecha JV.

[7] In the course of time , Mosala and C Rossouw resigned as directors of
Zecha JV and appointed Japhta as the sole director. The reason for this
move is something that is not fully explained on the papers. Considering
the view I take of this matter , nothing tu rns on this issue. However,
according to the applicant s, the two (Mosala and C Rossouw ) remained
the only shareholders of Zecha JV . As it will be shown later , Japhta
contends that th e actual shareholding of Zecha JV changed. The
administrative tasks of Zecha JV were performed by the staff of Ros stech
Xerox. Andriette Rossouw, who is the deponent to the founding affidavit
and employed by Rosstech Xerox, acted as the manager of Zecha JV. Mr
Louis Fouché (“Fouché”), who is the financial manager of Rosstech Xerox,
performed the same functions for Zecha JV.

[8] The business of Zecha JV was conducted th us: All printing , packaging,
paper and other consumabl es required for its contractual obligations with
the Department were supplied and performed by Rosstech Xerox.
Rosstech Xerox paid for all consumables needed and invoice d Zecha JV
for goods and services supplied by it . According to the applicant s,
Rosstech Xerox is currently owed an amount of R18 579 568,33 for goods
and services supplied to Zecha JV.

[9] At all material times, the main source of income for Zecha JV was the
contract concluded with the Department. Payments received by Zecha JV

6
for goods and services rendered to the Department were used to pay for
invoices rendered to Zecha JV by Rosstech Xerox, and the balance would
be used to pay for other liabilities. At the inception of Zecha JV , a
business current account was opened at Standard Bank wi th account
number 3[...]. Mosala and C Rossouw were the only two persons
authorised as signatories on the said bank account . Fouché was the only
person authorised by the directors to effect internet payments from the
said bank account.

[10] Rosstech Xerox obtained material for the service of the contract between
Zecha JV and the Department from other creditors (i.e. Mondi, Altron and
BCX Bank) . For example, it obtained paper from Mondi . BCX Bank
financed the specialised equipment obtained by Rosstech Xerox for the
discharge of Zecha JV’s obligations with the Department. As of April 2025,
Rosstech Xerox was facing substantial pressure from these creditors and
was anxiously awaiting a long overdue payment from the Department. The
long-awaited payment was to be effected by the Department into the
account of Zecha JV, pursuant to the contract alluded to above. It bears
emphasis that the management of Zecha JV and that of Rosstech Xerox
are, for all intents and purposes, the same.

[11] It is not disputed that on 16 April 2025 , Andriette Rossouw received a
telephonic call from an official in the employ of the Department , advising
her that a substantial payment was to be made by the Department to
Zecha JV on that day, and that they should confirm receipt thereof by
16h00. Andriette Rossouw informed Fouché of this situation and
requested him to be on the alert and, as requested , to confirm the
payment by 16h00 if made. She further requested him to effect payment to
Rosstech Xerox in respect of monies owed to it.

7
[12] Shortly after 16h00 on 16 April 2025 , Fouché did check Zecha JV’s bank
account electronically and established that a payment of R5 912 197,32
from the Department indeed reflected in the account. However, he further
discovered that a payment not effected by him, in the amount of
R4 000 000,00 had been made from th at account of Zecha JV . He
immediately drove to Andriette Rossouw to report the development.

[13] It transpired that shortly after the payment of the R4 000 000,00, further
amounts of R250 000,00, and two amounts of R5 000,00, respectively,
had been paid from the account of Zecha JV . These transactions were
unbeknown to both Andriette Rossouw and Fouché . Upon enquiry from
Standard Bank, it was established that Japhta had on 16 April 2025
changed the mandate wit h the bank, and replaced Fouché with herself as
the only person authorised to effect payment from that banking account.
She made the payment s of R4 000 000,00 and R250 000,00 referred to
above to an account held in the name of Zecha Holdings held at FNB with
account number 6[...]. The sole director of Zecha Holdings is Mr Quincy
Marlon Monchusie, Japhta’s brother.

[14] The two payments in the amount of R5 000,00 were made as cash
transfers to telephone numbers , which would entitle the person with the
telephone numbers to withdraw the cash amounts from any Standard
Bank outlet (“cash send ”). On the same day (16 April 2025), Fouché
received a letter from Japhta informing him, inter alia, that his access to
the account number 3[...] is terminated with immediate effect, and that any
access by him to the account will be considered fraudulent.

[15] It is not clear from the papers how Japhta , who in the applicants’ version
was not an authorised signatory to the account with number 3[...],
happened to know about the payment of the amount of R 5 912 197,32 by
the Department on 16 April 2025.

8

[16] Immediately after the discovery of the above facts , Mosala and C
Rossouw, as shareholders of the first applicant, reported the above
transactions to Standard Bank as fraudulent . The latter interacted with
FNB and caused the FNB account (which received the payments ) to be
placed on temporary hold. A criminal case for theft and or fraud was also
registered with the South African Police Service . Mosala and C Rossouw
claim that as the only shareholders of Zecha JV, they took these steps
with a view to safeguard the monies belonging to Zecha JV, pending the
resolution of a possible dispute between the parties.

[17] Mosala and C Rossouw h eld a meeting of the shareholders of the first
applicant on 17 April 2025 at 10:30. At this meeting, Japhta was dismissed
as the director of Zecha JV in absentia. The shareholder s reinstated
themselves as directors of the first applicant. They resolved to institute
legal proceedings and authorised Andriette Rossouw to bring an
application to this Court on behalf of Zecha JV, and that the applicants ’
attorneys of record be appointed for that purpose.

[18] Japhta deposed to an answering affidavit in opposition to the application.
The other three respondents are not opposing the application. Her
response in a nutshell boils down to the following. On 15 April 2022 at
Kimberley, she entered into a written Shareholder Sale Agreement
(“Share Sale Agreement”) with Mosala in terms whereof Mosala sold, and
she purchased, 51% of the shareholding in the first applicant (Zecha JV).
In support of this averment, she attached as annexure MJ1 , the alleged
Share Sale Agreement. As consideration for the 51% shareholding
interest, an amount of R100 -00 was paid in cash to Mosala after signing
the agreement. Monchusie is one of the two witnesses to the agreement.

9
[19] Japhta avers further that it was a condition precedent to the Share Sale
Agreement that she would or ought to replace Mosala as a Director of
Zecha JV within sixty days from the 15th of April 2022. The condition was ,
according to her, fulfilled. To support this fulfilment, she refers to annexure
AR5 to the founding affidavit , which is a certificate issued by the
Commissioner of Companies and Intellectual Property Commission
(“CIPC”) on 22 November 2022 for Zecha JV. In the certificate , Japhta is
reflected as “Director” having been appointed on 01 May 2022. She avers
that she has , “ therefore” been the majority shareholder in the applicant
since 15 April 2022, and that this position has not changed.

[20] She further refers to annexure MJ2 of her answering affidavit, being a
copy of an email dated 13 June 2022 from Andriette Rossouw to Veronica
Crouse. The latter is an accountant to Zecha JV, and the email was
directing her to see to it that Mosala is removed as “dir” and Japhta and C
Rossouw must be included “51 – 49”. The above notwithstanding, Japhta
avers that the applicants, together with Andriette Rossouw, are well aware
that she is the majority shareholder of Zecha JV. According to her, the
above email was informing Crouse that she should see to it that the
amendments to the shareholding of Zecha JV be effected to show that she
(Japhta) holds 51% of the issued share capital and C Rossouw holds 49%
thereof. According to Japhta, she had been under the impression that all
formalities required for the registration of her 51% shareholding in Zecha
JV had been complied with. She states that she remained under this
impression until she was provided with the interim order granted by
Stanton J in these proceedings.

[21] The implication of the above circumstances, she avers, is that Mosala had
ceased to be a shareholder of Zecha JV since 15 April 2022 , and
therefore no valid sharehold ers’ meeting could be held with hi m on 17

therefore no valid sharehold ers’ meeting could be held with hi m on 17
April 2025. She had acquired Mosala’s rights attached to Zecha JV ,

10
including his voting rights. Therefore, any decision taken at that meeting
was irregular and unlawful , including the dec ision to launch this
application. Japhta further contends that Mosala does not have a
substantial interest in Zecha JV and , as such , lacks the locus standi to
bring this application against her.

[22] Regarding the dealings with the bank, Japhta avers that on 14 April 2025 ,
she formally requested Standard Bank to remove Fouché as a signatory
on Zecha JV’s account and to change the internet banking login details on
the account. As the sole director and signatory to the account with
Standard Bank , she avers that she was entitled to take the aforesaid
steps. That she acted urgently , as she could no longer allow Andriette
Rossouw and Fouché to sideline her in the conduct of the business of
Zecha JV and continue to financially mismanage it. She contends that as
the sole director of the applicant , she is legally responsible for the day -to-
day running of the entity and entitled to exercise her functions.

[23] According to Japhta, it was Monchusie who identified the opportunity to
submit a tender to the Department and who brought Mosala and C.
Rossouw together for the purpose of submitting that tender . As regards
the payments from the Standard Bank account, which she admits having
made, Japhta avers that her brother (Monchusie) had entered into a
verbal agreement with the parties to the joint venture in terms whereof he
would be remunerated for the consultancy services he provided to Zecha
JV. To date, he had been paid approximately 50 times by Zecha JV for his
consultancy services in a total amount of R5 , 500 000.00. In support of
this averment, Japhta refers this Court to annexure MJ9, being an extract
of Zecha JV bank statement showing some of the payments made to
Zecha Holdings. She avers further that he was, however, not paid since
February 2024 by Zecha JV , and at the end of February 202 5, he was

February 2024 by Zecha JV , and at the end of February 202 5, he was
owed an amount of R21 453 051,00. Therefore, on 3 March 2025, Japhta,

11
acting on behalf of Zecha JV, entered into a written Acknowledg ement of
Debt and Settlement Agreement in terms whereof it was agreed inter alia,
that Monchusie be paid an amount of R4 000 000,00 by the 30 th of April
2025, and that such payment would settle Zecha JV ’s indebtedness to
Monchusie. The Acknowledg ement of Debt and Settlement Agreement is
attached as annexure MJ10 to the Answering Affidavit . An invoice dated
12 April 2025, rendered to the applicant by Zecha Holdings (of which
Monchusie is a director), is annexure MJ11.

[24] Japhta avers that she had a verbal agreement with Andriette Rossouw
when she became a director of the applicant that she would earn a salary
of R45 ,000.00 per month . She was , however, not paid her salary by
Andriette Rossouw and Fouché despite her repeated requests. As a
result, she effected payment to herself on the 16th of April 2025 in part
payment in the sum of R250 000,00. She denies that the payment s she
made were fraudulent.

[25] To recap , the interim order granted by Stanton J is simply that the third
respondent be ordered to forthwith transfer the amount of R4,250 , 000.00 from
the account held in its books by the first respondent under account number 6[...]
and transfer it into the account held by the first applicant with the fourth
respondent under account number 3[...]. This is the order that the applicants
seek this Court to confirm. In essence, the applicants are seeking a restitutionary
relief. In addition, the interim order granted in the form of an interdict ordered the
fourth respondent to place a hold on account number 3[...] pending the final
determination of the application. To succeed, the applicants must establish a
clear righ t, an injury committed or apprehended, and the absence of a
satisfactory remedy.1

[26] The affidavits filed by the parties raise some dispute s of fact . Since the
applicants are seeking final relief , the principle s established in Plascon-

1 Setlogelo v Setlogelo 1914 AD 221 at 227.

12
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd2, where possible, find
application. The final order will be granted if the facts averred by the
applicants in the founding affidavit , which have been admitted by the
respondents, together with the facts alleged by the respondents, justify the
order sought. 3 The applicants are required to show , on a balance of
probabilities, facts which in terms of substantive law, establish the right
relied upon.4 I proceed to consider whether the applicants have satisfied
the requirements for the order sought.

[27] At the outset of the hearing, there was a misunderstanding as to which
issues needed to be determined in this application . The parties ultimately
agreed that the issues that were to be determined in the application that
was launched by Japhta and Zecha JV Rosstech Xerox (Pty) Ltd against
some of the current applicant s should not be part of this application. That
application served before Mamosebo J, and she made an order
“dismissing the application with costs”. In this application, the issues as
agreed by the parties are: whether Japhta as the sole director of Zecha JV
had, as a matter of fact , on 16 April 2025 , the authority to transact on
account number 3[...] held at Standard Bank; whether Japhta is the holder
of 51% of the issued share capital in Zecha JV; and what an appropriate
order would be in relation to costs.

[28] The common cause facts have established that the money that had been
deposited into bank account number 3[...] held at Standard Bank belonged
to Zecha JV. Further, that Japhta made payments from that account . The
question that arises is whether Japhta could deal with that money as she
did. It is Japhta’s case that by being the sole director of Zecha JV, she had

2 1984 (3) SA 623 (A).
3 Ibid at 634H -I; See also National Director of Public Prosecutions v Zuma 2009 (2) SA 277
(SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) para
26.

(SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) para
26.
4 Technoserve Medium Voltage (Pty) Ltd v Technical Reticulation Services (Pty) Ltd and Others
2025 JDR 1747 (WCC) para 43 – 44; See also Mayula Procurement and Property Management
(Pty) Ltd v Kopane 2020 JDR 1679 (FB) para 16.

13
all the authority to transact on its behalf as she did. Furthermore, she
contended that Mosala had ceased to be t he shareholder of Zecha JV as
she purchased his shares, and she became the majority shareholder. It is
therefore necessary t o investigate whether indeed Japhta became the
majority shareholder as she alleges. The result of this investigation will
provide the answer to the point in limine raised by Japhta, namely, that the
applicants failed to disclose material information to the court when they
obtained the interim order ex parte. The information which is alleged ought
to have been disclosed is that Mosala was no longer a shareholder of
Zecha JV as of 15 April 2022. The applicants are, as a result, said to have
misled the court.

[29] Japhta relies on the Share Sale Agreement for her contention that at the
time when she made the mon etary transfers, she was the majority
shareholder of Zecha JV , having purchased Mosala’s 51% interest.
Mosala disputes that he concluded the alleged Share Sale Agreement. He
disputes his signature on the document and submits that if it is indeed his
signature, it must have been taken from a separate contract and added to
the alleged Share Sale Agreement.

[30] The court is then faced with diametrically opposed versions of the parties.
On the face of it , what appears to be Mosala’s signature and th ose of
witnesses to the document (the alleged Share Sale Agreement) is in the
document. In the disputed Share Sale Agreement, Ernest Mosala is
reflected as the “Seller” and Japhta is reflected as the “Buyer”. The
significance and relevance of the document in this application is
considered hereunder.

[31] It is common cause that the Share Certificate of Zecha JV dated 11
February 2022 (annexure AR2) reflects that Mosala is the owner of 51 %
Ordinary Shares. Similarly, the Share Certificate issued to C Rossouw ,

14
also dated 11 February 2022, reflects the latter as the owner of 49% of the
Ordinary Shares in Zecha JV. These appear to be the only Share
Certificates issued by Zecha JV. There is no other official document
produced to show that Japhta had become a shareholder of Zecha JV.
The only official document produced indicates that she was registered as
a Director of Zecha JV. In the absence of any official document, it must be
accepted that , for all intent s and purposes , Japhta had not been a
shareholder of Zecha JV. Zecha JV has legal personality , and the only
proof of its shareholders is reflected in the documents provided by Zecha
itself, and the records held by the entity responsible for the registration of
companies, the CIPC . If inde ed there was any valid Share Sale
Agreement between Mosala and Japhta , the official records of Zecha JV
were never changed to ref lect the purported changes. On this aspect
alone, it must be found that Mosala was a 51 % shareholder of Zecha JV
and not Japhta.

[32] The determination of the legality or otherwise of the Share Sale
Agreement is , in my view , not necessary to determine whether a clear
right for purposes of this application has been established . The
probabilities and improbabilities relating to the conclusion of the alleged
agreement shall therefore not be considered in this judgment . In this
regard, the shareholders have a standing to bring this application on
behalf of the joint venture and in their individual capacity as well. Section
60 of the Companies Act 71 of 20085 allows shareholders to pass a

5 60. Shareholders acting other than at meeting
(1) A resolution that could be voted on at a shareholders meeting may instead be-
(a) submitted for consideration to the shareholders entitled to exercise voting rights in
relation to the resolution; and
(b) voted on in writing by shareholders entitled to exercise voting rights in relation to the
resolution within 20 business days after the resolution was submitted to them.

resolution within 20 business days after the resolution was submitted to them.
(2) A resolution contemplated in subsection (1)-
(a) will have been adopted if it is supported by persons entitled to exercise sufficient voting
rights for it to have been adopted as an ordinary or special resolution, as the case may
be, at a properly constituted shareholders meeting; and
(b) if adopted, has the same effect as if it had been approved by voting at a meeting.

15
resolution in writing , outside of a formal meeting. Such a resolution has
the same legal effect as if it was passed at a shareholders’ meeting.

[33] The legality of the removal of Japhta as the director of Zecha JV has no
bearing in these proceedings. It is to be recalled that the removal occurred
by resolution taken at a meeting held on 17 April 2025. This application is
based on the activities of Japhta on 16 April 2025 , when her directorship
of Zecha JV was not an issue. This brings me to the next issue to be
determined, namely, whether Japhta could transact as she did on 16 April
2025 on the bank account number 3[...] held at Standard Bank.

[34] The mandate given to Standard Bank on who had the authority to make
transactions on the account on behalf of Zecha JV is conta ined in
annexure AR4 to the replying affidavit. The aforementioned annexure is
an application to open a current account for Zecha JV submitted on 12
May 2022. The related persons in the application are C Rossouw and
Mosala. The instruction is that the two are t o sign jointly for the validity of
the transactions on the account. It is notable that this application (to open
a Business Account) is preceded by the alleged Share Sale Agreement
between Japhta and Mosala. However, in the aforesaid application made
on 12 May 2022, Japhta’s particulars do not appear.

[35] Annexure MJ13 is a document that Japhta contends is a mandate to the
bank to afford her signing authority in the aforementioned bank account

(3) An election of a director that could be conducted at a shareholders meeting may instead be
conducted by written polling of all of the shareholders entitled to exercise voting rights in
relation to the election of that director.

(4) Within 10 business days after adopting a resolution, or conducting an election of directors,
in terms of this section, the company must deliver a statement describing the results of the

in terms of this section, the company must deliver a statement describing the results of the
vote, consent process, or election to every shareholder who was entitled to vote on or
consent to the resolution, or vote in the election of the director, as the case may be.
(5) For greater certainty, any business of a company that is required by this Act or the
company’s Memorandum of Incorporation to be conducted at an annual general meeting of
the company, may not be conducted in the manner contemplated in this section.

16
from which she transacted on 16 April 2025 . The objective facts found on
this document, however, support the applicants’ version. The document is
dated 29 January 2024, and was submitted to open a “Moneymarket Call
Account-Investment” as an additional account for Zecha JV . Notably,
Fouché is included together with Japhta as signatories to this additional
account. The latter is also reflected as the d irector of Zecha JV . Both
Japhta and Fouch é have appended their signatures to the document.
Furthermore, just like as reflected in Annexure AR4 , which relates to the
current account of Zecha JV, both Mosala and C Rossouw are reflected
as shareholders. Notably, at the time when the additional “Moneymarket
Call Account – Investment” was opened in the name of Zecha JV, the
shareholding and respective percentage interests of Mosala and C.
Rossouw in Zecha JV , as reflected on Annexure MJ13, remained
unchanged from what appears on Annexure AR4 . The mandate to the
bank is for Japhta and Mosala to sign jointly for the transactions on this
additional account.

[36] The inescapable conclusion is that , when Japhta transferred the mone y
from account number 3[...], she did not have the necessary signing
powers on the account. For her to acquire such powers , she needed the
mandated signatories to authorise the Bank to allow her to be able to
access and transact on the account. She also required the authority of the
signatories, namely, C Rossouw and Mosala, for her to remove Fouché as
a signatory to the transactions on the account.

[37] There is a further reason why Japhta could not legally transfer money from
the account as she did. Section 75(3) of the Companies Act provides that:

“If a person is the only director of a company, but does not hold all of the
beneficial interests of all of the issued securities of the company, that person may
not-

17
(a) approve or enter into any agreement in which the person or a related person
has a personal financial interest; or
(b) as a director, determine any other matter in which the person or a related
person has a personal financial interest,

unless the agreement or determination is approved by an ordinary resolution of
the shareholders after the director has disclosed the nature and extent of that
interest to the shareholders.”

[38] It is common cause that she has a familial relationship with Monchusie ,
which makes the latter a “related person” for purposes of section 75(3). 6
Similarly, the purported Acknowledg ement of Debt and Settlement
Agreement Japhta submits the R4 000 000 payment was made with
regards to, would be an “agreement” for purposes of section 75(3). 7
Japhta did not obtain the consent of the shareholders to conclude an
Acknowledgement of Debt and Settlement Agreement with Monchusie.
Therefore, her actions contravened the provisions of section 75(3) of the
Companies Act.

[39] Japhta’s claim to the payment of the amount of R250 000,00 and
subsequent payments of the amounts of R5000,00 , is that they
represented outstanding salary that was due to her , which was not paid to
her despite her repeated requests. These payments were partial
settlement of the joint venture ’s indebtedness to her. The challenge
Japhta i s encountering is that in her own version , she had a verbal
agreement with Andriette Rossouw some time back that she w ould earn a
remuneration of R45000,00 per month, and that the verbal agreement was
never honoured. Andriette Rossouw , who disputes this averment, was

6 By virtue of s 2(1)(a)(ii) of the Companies Act 71 of 2008.
7 Section 1 of the Companies Act describes “agreement” as including a contract, or an
arrangement or understanding between or among two or more parties that purports to create
rights and obligations between or among those parties.

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neither a shareholder nor a director of Zecha JV for her t o conclude a
verbal agreement with Japhta to bind it.

[40] It was open to Japhta to obtain the consent of the shareholder s for these
payments if there was nothing untoward about them . She must have
known that the shareholders would not give the necessary authority for the
payments.8 She unilaterally took a decision in a matter in which she had a
financial interest to the disadvantage of a company which she owed a
fiduciary duty. Secondly, the payment of R250 000,00, which she claims to
have paid to her Capitec Bank account as her salary, is not factually
correct. The payment was made to Zecha Holdings, a company in which
her brother (Monchusie) is a sole director. It is also significant that s he
does not provide any reason or explanation for the two R5000,00 cash
payments to cell-phone numbers.

[41] I am satisfied that the applicants have succeeded in showing that the first,
second, and third applicants have a clear right. By making the mon etary
transfers to Zecha Holdings , Japhta interfered with the applicants’ clear
right. This includes the transfers of the two R5000,00 made through the
Cellphone numbers as “Cash Send ”. The applicants had a clear ri ght that
the money belonging to Zecha JV not be appropriated without
authorisation. The applicants have registered a criminal case with the
South African Police Service against Japhta. That would not secure the
money to be paid back to t he joint venture account. That case can
therefore not serv e as substantial redress to the applicants. The
submission on behalf of Japhta to the contrary has no merit. FNB has
placed a temporary hold on the money transferred. Without the

8 Her conduct may very well constitute “self -help”, which our common law has always recognised
as unlawful. [ Bock and Others v Duburoro Investments (Pty) Ltd (228/2002) [2003] ZASCA 94;
[2003] 4 All SA 103 (SCA); 2004 (2) SA 242 (SCA) (26 September 2003) para 14)

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confirmation of the rule nisi, the money will not be repaid to the joint
venture. The rule nisi issued must therefore be confirmed.

[42] What remains is the issue of costs. Both parties to the dispute have
submitted that costs should follow the result. I agree. What needs to be
decided is the scale applicable to such cost s. On behalf of the applicants ,
Mr Van Niekerk SC urged this Court to award costs on the scale between
attorney and client. He based his submission on what he referred to as the
conduct of the respondent which is said to be of a reprehensible nature.
He further submitted that the matter is of sufficient complexity such that
counsel’s fees be taxable on scale C of Rule 69(7). I am not persuaded
that the facts and conduct of the parties warrant a punitive order of cos ts,
and further that the matter is sufficiently complex to warrant fees of
counsel to be taxed as submitted. There a re certain matters that have not
been sufficiently explained regarding the conduct and the role of the
parties in the activities of the tender itself.

[43] In the result , the rule nisi issued by Stanton J is to be confir med with
costs. In effect, the following order is made:

1. The third respondent is ordered to forthwith transfer the amount of
R4,250 000,00 (Four Million Two Hundred and Fifty Thousand Rands) ,
from the account held in its books by the first respondent under
account number 6[...], into the account held by the first applicant under
account number 3[...]; and

2. The first and second respondents are ordered to pay the costs of this
application on party-and-party scale , jointly and severally with each
other, the one paying the other to be absolved pro tanto.

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________________________
LP TLALETSI
JUDGE PRESIDENT
NORTHERN CAPE DIVISION

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Appearances

On behalf of the Applicants: Adv. J.G Van Niekerk SC
Instructed by: Engelsman Magabane Inc ,
Kimberley

On behalf of the 1st and 2nd Respondents: Adv. J.K Mongala
Instructed by: JC Taylor Inc, Kimberley