REPUBLIC OF SOUTH AFRICA
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IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 189237/2025
REPORT ABLE: YES
OF INTEREST TO OTHER JUDGES: YES
REVISED: YES
31 October 2025
In the matter between
CHRISTOS HAJIMARKOS
And
COSTA HAJIMARKOS
GEORGE HAJIMARKOS
JUDGMENT
Mdalana-Mayisela J
Applicant
1st Respondent
2nd Respondent
Introduction
[ l] This is an urgent application for interim relief, pending the institution of
action proceedings, in which the applicant seeks to prevent the alleged
misappropriation of partnership assets by the respondents and secure his
financial oversight and administrative role within the family business,
specifically, access to all bank accounts and records.
[2] The respondents have raised several points in limine, among them that the
application lacks the requisite agency and should be struck from the roll; they
further contend that the application suffers from non-joinder of indispensable
parties, that the applicant lacks locus standi, and that no cause of action has
been disclosed.
[3] The applicant and respondents are brothers. They have been in business
together since 1994, operating a group of Spa supermarkets and Top liquor
stores. The business was initially run as a partnership but later incorporated into
a corporate structure, Markos Retail Holdings (Pty) Ltd, "Markos Holdings", and
its operating subsidiaries. The applicant, a qualified accountant, has historically
managed the business's financial affairs. Due to his involvement with the
competitor, he resigned from the board of directors. And his shares in Markos
Holdings are held by the second respondent as his nominee, a fact confirmed
by a Declaration of Trust and a Special Power of Attorney.
[4] The relationship between the brothers deteriorated in 2023. A previous
urgent application in March 2024 was settled by a settlement agreement that,
inter alia, limited monthly drawings for each partner to R500,000 and granted
the applicant full and unfettered access to all business bank accounts. The
appl_icant alleges that the respondents have breached this agreement by
drawing excessive amounts and denying him full access.
ANA LYSIS
Urgency
[5] Rule 6( 12) of the Uniform Rules of Court permits a departure from the
ordinary time frames where an applicant cannot obtain substantial redress in
due -course. The test is not whether the matter is important to the applicant,
but whether, if the matter were to follow the normal course, the app licant
would be denied adequate redress. The applicant must make out a case
justifying the departure from the day and time periods provided in Ru les 4 and
6(5) and satisfy the Court in the founding affidavit that the circumstances of
the case are such that he will not be afforded substantial redress at a hearing
if the matter is heard in due course and placed on the normal roll. 1
[6) The respondents argued strenuously that the urgency is self-created. They
presented a detailed timeline alleging that the applicant knew or should have
known of the impugned conduct for many months , and in some instances for
over a year, before launching this application. They point to his online access
to bank accounts and his delay in acting upon information provided by the
internal auditor in August 2025.
[7] The applicant's case on urgency rests on a series of events in late August
and September 2025: the discovery of allegedly fictitious sugar transaction
used to pay the second respondent's mistress; the denial of access to the
partnership's internal aud itor; and the respondents' refusal to provide
undertakings regarding their future conduct and the treatment of the
proceeds from a pending sale of four stores to the Spa group.
[8] I find that the application is urgent. My reasons are as follows:
[8.1] The nature of the relief sought: the applicant seeks an interim interdict. Its
very purpose is to preserve the status quo and prevent irreparable harm
pendente lite.2 The urgency of the application flows from the requirement of a
"well-grounded apprehension of irreparable harm" that would occur if the
matter were to proceed in the ordinary course.3 A delay of a few months in
matter were to proceed in the ordinary course.3 A delay of a few months in
1 Luna MeubelveNaardigers (Edms) Bpkv Makin (t/a Makin's Furniture Manufacturers) 177 (4) 135 (W) at
137F.
2 J .L v D.J (2024/088101) [2024] ZAGPJHC 1210 (15 October 2024).
3 Setlogelo v Setlogelo 1914 AD 221.
bringing such an application, while relevant, is not necessarily fatal if the harm
is ongoing and future-oriented.
[8.2] The allegations of ongoing misconduct; the core of the applicant's case
is not merely past misconduct but a reasonable apprehension of continuing
misappropriation. The discovery of a new, significant fictitious transaction in
August 2025 and the subsequent exclusion of the internal auditor in September
2025 are pivotal. They suggest an ongoing pattern of conduct that threatens
to deplete partnership assets. An interdict to stop this is, by its nature, urgent.
[8.3] The impending Spa group transaction: the sale of four Spa shops for over
R 160 million creates a unique and imminent risk. If the applicant's allegations
are true, there is a tangible risk that the respondents who control the business
could misappropriate these substantial proceeds. The respondents' refusal to
provide clear undertakings regarding these funds heightens this apprehension.
Waiting for the ordinary roll could result in these funds being dispersed beyond
easy recall.
[8.4] Tax non-compliance: the applicant alleges he is unable to perform his
duty to file returns, which will result in the accrual of penalties and interest from
SARS. This constitutes continuing financial harm to the business that escalates
with time.
[8.5] Delay and engagement: the applicant's attorneys engaged in
correspondence from 3 September to 10 October 2025 in an attempt to
resolve the dispute. By doing so, the applicant acted reasonably and
prudently in pursuing its rights and trying to resolve the matter.4 This period of
engagement, while contributing to the overall timeline, cannot be considered
dilatory against the applicant.5 Litigation is a last resort. The important issue is
4 Quick Drink Co (Pty) Ltd and Another v Medicines Control Council and Others 2015 (5) SA 358 (GP).
5 Nelson Mandela Metropolitan Municipality v Greyvenouw CC 2004 (2) SA 81 (SE) at 94C-D .
whether, despite the delay, the applicant can or cannot be afforded
substantial redress at a hearing in due course.6
[9] While the respondents' timeline raises questions about the applicant's
diligence, it does not, on balance, navigate the agency created by the recent
events and the nature of the relief sought. The potential for irreparable harm
to the partnership assets and the business's tax compliance is sufficiently
demonstrated. The application is therefore enrolled as urgent.
POINTS IN LIMINE
Non-joinder
[l O] The respondents argue that the application is fatally defective because
Markos Holdings and its operating subsidiaries have not been joined as parties.
They contend that the relief sought-financial oversight, access to accounts,
and spending limits directly affects these separate juristic entities and usurps
the powers of their boards of directors.
[ 11] The principle of separate corporate personality is foundational. The Court
has no general discretion to disregard a company's separate legal personality.
This could be done only as a last resort, where justice would not otherwise be
served and where no alternative remedy is available to the complainant.
Conduct such as fraud, dishonesty, improper conduct, or concealment of the
true state of affairs may constitute sufficient grounds for piercing the corporate
veil.7 In this case, the applicant's claim is not founded on his rights as a
shareholder or director of these companies, but on his rights as a partner in the
underlying quasi-partnership. He has argued that the corporate structure is a
mere vehicle for the partnership.
[12] In a case such as this, where the essence of the dispute is the relationship
between the partners behind the corporate veil, and where the relief is interim
and designed to preserve the assets of that underlying partnership, it is not
6 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2011] ZAGPJHC
196 at para 8.
196 at para 8.
7 Amlin (SA) Pty Ltd v Van Kooij 2008 (2) SA 558 ( C ).
strictly necessary to join every operating company. The dispute is
fundamentally inter se the partners. The order, if granted, would bind the
respondents in their capacities as the controlling minds of those companies to
allow the applicant certain oversight functions. The companies themselves,
while affected, are not indispensable parties to this interlocutory dispute
between their ultimate beneficial owners. They are not parties to the
settlement agreement that the applicant seeks to enforce compliance with.
This point in limine cannot be sustained.
Locus standi and cause of action
[ 13] The respondents argued that the applicant, being neither a registered
shareholder nor a director, has no legal standing to seek the relief claimed.
They rely on Smyth v Investec Bank Ltd 8 which confirms that a beneficial
owner's rights are personal against the nominee, not against the company.
[ 14] This argument, while technically sound in a pure company law context,
misses the mark in a quasi-partnership context. Our courts have consistently
recognized that where a company is in substance a partnership, the strict
legalities of corporate personality may be relaxed to give effect to the
underlying fiduciary duties and legitimate expectations of the members. In
Be/lairs v Hodnett and Another,9 the Appellate Division held,
"We fhink that the analogy of a partnership to the relationship of Be/lairs and Hodnett and the
company is an apposite and true one. That they chose the form of a company to give effect
to and carry out that relationship does not affect the existence, nature, or extent of any
fiduciary duty resting upon Be/lairs that is relevant to the present dispute. Since principles of
equity underlie a fiduciary duty, we think that the substance of their relationship and not the
form in which it was cast must be looked at in order to ascertain its existence, nature, and
extent. Hence , the fact that the Company was a separate, legal persona is not of great
extent. Hence , the fact that the Company was a separate, legal persona is not of great
importance in considering the present problem. For if Be/lairs did not at the time owe his co
shareholder and copartner any fiduciary duty of the kind contended for, he did not owe it to
the Compan y either."
8 (674/2016) [2017] ZASCA 147 (26 October 2017)
9 1978 (1) SA 1109 (A).
[15] Locus standi is not a technical concept with rigidly defined boundaries,
nor must it be narrowly construed. To determine whether the interest of a
litigant qualifies as a direct interest depends upon the facts of each case, and
no fixed or generally applicable rules can be laid down for all cases.10
[16] The following evidence strongly supports the existence of a quasi
partnership.
[ 16. l] The business began as a family partnership and retains that character.
[ 16.2] The brothers have always conducted themselves as partners, with a
clear understanding of their respective roles.
[16.3] The respondents' own attorneys, in correspondence prior to this
application, repeatedly referred to . the "partnership" and its assets, a
concession they now belatedly and opportunistically seek to retract.
[16.4] The second respondent holds the applicant's shares in a fiduciary
capacity as his nominee, giving rise to a clear fiduciary duty.
[17] I find that the locus standi of an applicant, as a partner in a quasi
partnership, to apply for an interdict is directly related to the interest he has in
the subject matter of the interdict.
[ 18] In a quasi-partnership, a partner is required to perform the partnership
business honestly and carefully and to account to the other partners. Included
in this duty is the duty of utmost good faith ( uberrima tides)_ 11 In this case, it
includes the right to access information and accounts, as well as the right to
prevent other partners from misappropriating partnership assets. The
applicant's cause of action is grounded in this fiduciary duty, the terms of the
undisputed settlement agreement, which is binding on the respondents, and
the common law rights of a partner.
10 The Law and Practice of Interdicts, CB Prest SC, 1993; Jacobs en 'n ander v Waks en andere 1992 (1) SA
521 (A).
11 Wegner v Surgeson 1910 TPD 571 .
[ 19] Consequently, I find that the applicant has demonstrated his legal
standing and seeks relief to protect his interests in the quasi-partnership. The
points in /imine of non-joinder, lack of locus standi, and no cause of action are
intertwined and are accordingly dismissed.
THE INTERIM INTERDICT
[20] The requirements for an interim interdict are well established: [a] a prima
facie right; [bl a reasonable apprehension of irreparable harm; [c] the
balance of convenience favoring the applicant; and [ d] the absence of an
alternative remedy 12.
Prima facie right
(21] In an application for interim relief, an applicant is not required to establish
a right to relief on a balance of probabilities. It is sufficient to show that such a
right is prima facie established, though open to some doubt. In a locus
classic us, Webster v Mitchel/13, the court explained what this means:
"In the grant of a temporary interdict, apart from prejudice involved, the first question for the
Court in my view is whether, if interim protection is given, the applicant could ever obtain the
rights he seeks to protect. Prima facie that has to be show n. The use of the phrase "prima facie
established though open to some doubt" indicates, I think, that more is required than merely
to look at the allegations of the applicant, but something short of a weighing up of the
probabilities of conflicting versions is required. The proper manner of approach I consider is to
take the facts as set out by the applicant, together with any facts set out by the respondent,
which the applicant cannot dispute, and to consider whether having regard to the inherent
probabilities, the applicant could on those facts obtain final relief at a trial. The facts set up in
contradiction by the respondent should then be considered. If serious doubt is thrown on the
case of the applicant he could not succeed in obtaining temporary relief, for his right, prima
facie established, may only be open to "some doubt". But if there is mere contradiction, or
facie established, may only be open to "some doubt". But if there is mere contradiction, or
unconvincing explanation, the matter should be left to trial and the right protected in the
meanwhile, subject of course to their respective prejudice in the grant or refusal of interim
relief. Although the grant of a temporary interdict interferes with a right which is apparently
12 Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son (SA) Pty Ltd [1995] 1 All SA 414 (T) 417-418; 1995 (1)
SA 725 (T) 729I-730G; LF Boshoff Investments (Pty) Ltd 1969 (2) SA 256 ( C) at 267B-E.
13 1948 ( 1) SA 1186 (W) 1189-1190 .
possessed by the respondent, the position of the respondent is protected because, although
the applicant sets up a case which prima facie establishes that the respondent has not the
right apparently exercised by him, the test whether or not the temporary relief is to be granted
is the harm which will be done. And in a proper case it might well be that no relief would be
granted to the applicant except on conditions wh ich would compensate the respondent for
interference with his right, should the applicant fail to show at the trial that he was entitled to
interfere."
[22] Having applied the aforesaid principle to the facts of this matter, and for
the reasons set out above, I am satisfied that the applicant has established a
prima facie right, though it is open to some doubt. His case is that he is a
partner in a quasi-partnership and a beneficiary under a trust and settlement
agreement. The respondents' own prior concessions, the trust deed, and the
settlement agreement provide a credible foundation to this right, which
includes the right to financial oversight and the right to prevent the
misappropriation of partnership funds.
Reasonable apprehension of harm
[23] The test for whether an applicant has established a reasonable
apprehension of harm is whether a reasonable man would, on presentation of
the facts, entertain an apprehension of injury. The applicant does not have to
prove on a balance of probabilities that harm will follow from the pleaded
facts, but rather that it is reasonable to apprehend injury faced with such
facts.14 The applicant has provided evidence of substantial drawings by the
respondents, even on his revised figures of R 10.6 million and R 15.2 million over
18 months, payments for personal expenses (solar, carpets, medical bills), and
a highly suspicious transaction involving a sugar shipment that was paid for but
never delivered to a company connected to the second respondent's
mistress. The exclusion of the internal auditor and their refusal to provide
mistress. The exclusion of the internal auditor and their refusal to provide
undertakings regarding the substantial sale proceeds cement this
apprehension. A reasonable person in the applicant's position would
undoubtedly fear continuing financial harm.
14 Free State Gold Areas Ltd v Merriespruit GM Co Ltd 1961 (2) SA 505 (W) at 518.
Balance of convenience
[24] The Court must weigh the prejudice the applicant will suffer if the interim
interdict is not granted against the prejudice to the respondents. If there is a
greater possible prejudice to the respondents, an interim interdict will be
refused; if, though there is prejudice to the respondents, that prejudice is less
than that of the applicant, the interdict will be granted, subject, if they can be
imposed , to conditions which will protect the respondents.15 In this case, this
requirement weighs heavily in the applicant's favor. The relief he seeks is largely
preservative and supervisory. It does not grant him operational control of the
stores. It seeks to prevent further drawings beyond the agreed limit, prevent
the use of business accounts for personal expenses, and ensure the
transparency required under the settlement agreement.
[25] The prejudice to the applicant if the interdict is refused is potentially
immense: continued asset depletion and an inability to ensure tax
compliance. The prejudice to the respondents if the interdict is granted is
minimal. They retain full managerial control and are merely required to adhere
to their prior agreements and to the basic principles of partnership fiduciary
duty. The balance of convenience clearly favors the granting of the interdict.
Alternative remedy
(26] The final requirement for the grant of an interim interdict is the absence of
another adequate remedy to the applicant. The court will not, in general,
grant an interdict when the applicant can obtain adequate redress by an
award of damages . But where an injury may be capable of pecuniary
evaluation and compensation, the court will generally grant an interdict if the
respondent is a man of straw, or the injury is a continuing violation of the
applicant's rights.16 A claim for damages for past m isappropriation is an
alternative remedy , but it is not an adequate remedy for ongoing and future
alternative remedy , but it is not an adequate remedy for ongoing and future
15 Webster v Mitchell supra at 1192-3; Hillman Brothers (West Rand) (Pty) Ltd v Van der Heuwel 1937 WLD
41 at 44 and 46.
16 Lubbe v Die Administrateur, Oranje-Vrystaat 1968 (1) SA 111 (O); Mandela v Falati 1995
(1) SA 251 (W) at 260D-E; Wyn berg Municipality v Dreyer 1920 AD 439.
harm. Once partnership funds are dissipated, a claim for damages may be
worthless if the funds cannot be recovered. In this case, the most effective
remedy to stop the misappropriation of assets is an interdict.
CONCLUSION
[27] In conclusion, the application is urgent. The points in limine are dismissed.
The applicant has met the requirements for an interim interdict.
[28] The order will be structured to give effect to the settlement agreement
and to preserve the partnership assets pending the final determination of the
parties' rights. The applicant's access to financial information will be for
oversight and tax compliance, not for day-to-day operational management.
ORDER
[29] Accordingly, the following order is made.
1. The applicant's non-compliance with the ordinary rules of court relating to
time and service is condoned, and the matter is heard as one of urgency.
2. Pending the final determination of the motion or action or arbitration
proceedings for the dissolution of the partnership and ancillary relief, to be
instituted by the applicant against the respondents within 30 court days of this
order:
2.1 The respondents are interdicted and restrained from drawing, directly or
indirectly, any amount in excess of R500,000 per month per person from the
business accounts of the Spa and Top stores operated by Markos Retail
Holdings (Pty) Ltd and subsidiary companies (Green Gambit Investments (Pty)
Ltd, Markos Brothers Primrose (Pty) Ltd, Markos Brothers (Pty) Ltd, Markos Square
(Pty) Ltd, and Markos Westwood (Pty) Ltd, without the applicant's consent.
2.2 The respondents are interdicted and restrained from causing the said
business accounts to be used for the payment of their personal or family
expenses, including but not limited to personal legal fees, household expenses,
and assets for private residences.
2.3 The respondents are directed to provide the applicant, within 5 days of this
order, with full and unfettered online (including accounting software) and
physical access to all bank accounts, books of accounts, and accounting
records (including petty cash reconciliations and cash out reports) of the said
business.
2.4 The respondents are directed not to unreasonably withhold their consent
for the timeous submission of all tax returns by the applicant and to provide all
necessary information for this purpose.
2.5 The respondents are interdicted and restrained from preventing the
applicant and his internal audit team from accessing the premises of any of
the Spar stores operated by their subsidiaries.
3. The respondents are ordered to pay the costs of this application, including
the costs of two counsel, jointly and severally, the one paying the other to be
absorbed, on Scale C.
MMP Mdalana-Mayisela
Judge of the High Court
Gauteng Division
Digitally delivered by uploading to Caselines and emailing to the parties.
Date of hearing:
Date of delivery:
28 October 2025
31 October 2025
Appearances:
For the applicant:
Instructed by:
For the respondents:
Instructed by:
Adv AR Bhana SC
Adv LM Spiller
Bowman Gilfillan Inc
Adv JL Myburgh
Fluxmans Inc