IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: A2023-129937
(1) REPORTABLE: t.)0
(2) OF INTERES TTO OTHER JU D GES: ~
(3) RE ED
2-'d'l.s;-I\ •
DATE
In the matter between:
TSHEPISO KENNEDY SIBANDZE
And
SENTEO DIGITAL (PTY) LTD
ZEENET MAHOMED
MOTHAJ
JUDGMENT
Appellant
1st Respondent
2nd Respondent
1) Before us is an appeal against the Regional Court Magistrate's order for
repayment of an amount of R308 000.00 paid to the appellant as loan.
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The parties
2) The appellant is Tshepiso Kennedy Sibandze, an adult male.
3) The first respondent is Senteo Digital (Pty) Limited, a company with limited
liability, registered and incorporated in terms of the laws of the Republic of South
Africa. ("Senteo").
4) The second respondent is Zeenat Mohamed , an adult businesswoman.
The factual matrix
5) The facts of this matter are uncomplicated and can be summarized in the
question: Were the respondents' monthly payments of R20 000.00 to the
appellant, from August 2018 to November 2019, a loan or a salary?
6) To prove that the payments were a loan, as the respondents would have it, rather
than a salary which the appellant suggested, the plaintiffs/respondents called two
witnesses, Miss Zeenat Mohamed and Miss Lenushka Parannath. The
defendant/Appellant took the stand as the sole witness to assert the opposite.
The version of the second respondent, M iss Z. Mohamed
7) The second respondent testified that she first met and became friends with the
appellant in 2016 at The Project, a company in which they were both employed.
After leaving The Project, she continued to work on freelance projects with the
appellant.
8) In June 2018, she arranged a meeting between two of her friends, Maryna Prince
and Lenushka Parannath, and the appellant to discuss the idea of starting a
company. They all had distinct skill sets that could contribute to a new business.
She provided strategic insights, and Ms Parannath, a former CEO , offered her
expertise in procurement and business. Maryna Prince was the creative director
and designer, while Tshepiso, the appellant, brought his web development
expertise.
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9) In August 2018, they held a directors' meeting to discuss the business scope,
target clients, and that they would only take salaries as directors once the
company was profitable and fair to everyone. Meanwhile, to help Ms Prince and
Sibandze cover their expenses while growing the business, Ms Parannath and
the second respondent offered their savings to support them.
10) They all worked from home , except when they held meetings at Ms Parannath's
garage. At the end of September, Ms Prince left the company , and they hired a
creative, Romaro Johary, with a gross monthly salary of R10 ,000.00.
11) Leading up to the appellant's involvement in the business, and on 26 June 2018,
the second respondent and the appellant had a WhatsApp conversation, which
proceeded as follows:
Second respondent: "No stress at all. Look, it is not going to be easy, but we
are going to make it work and find our success."
Appellant: "Agreed. My only concern wou ld be surviving and paying
bills whilst we work through this."
Second respondent: "I got that covered, LOL . Send me what your current costs
Appellant:
are, and we will cover your monthly bills."
"Around 1 OK per month. Elmer put me on 19K at the
beginning of the year."
"But let us chat about it when I see you because we need
to figure out when to leave and the leave period as well."
Second respondent: "I was going to say I can guarantee you 20K a month."
12) Continuing their engagement on WhatsApp , in July 2018, the second respondent
and the appellant concluded as follows:
Second respondent: "I am not sure how that works, but Len has that covered.
Appellant:
You should net at like 20 000 at minimum though."
"Okay, cool. You -need my current payslip for anything?"
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Second respondent: "Nope, it is all good. The accountant and Len will set up
SARS and stuff this month. So, it will all be sorted soon
enough."
13) Following these conversations, R20 ,000.00 was deposited into the appellant's
bank account each month, referenced as "Senteo Salary" until July 2019, when
it was referenced as "Loan". The second respondent testified that initially, they
referred to the deposit in the appellant's account as salary because they lacked
accounting knowledge. She stated that they forgot to update the reference to
indicate it was a loan.
14) She emphasized that the loans she and Ms Parannath provided to the business
would always be repaid once the company started making profits.
15) In evidence in chief, she discussed the company 's decision to provide a loan
instead of a salary. She testified as follows: "We did not have any money. Senteo
was (sic) made no business made no profit." Essentially, she explained that the
company did not have enough money to pay anyone a salary because it had not
made a profit during its time in operation.
16) When asked if the loan was not disguised as a salary, she replied that in their
year-end financial statements, it was always listed as a loan. In response to the
suggestion that changing the payments from salary to a loan was done to avoid
SARS , she vigorously disputed that.
17) Even under cross-examination, she disputed that the change was to avoid tax,
as the business had no money and was operating at a loss. Furthermore, upon
being asked to repay the loan, the appellant made a payment of R7 ,000.00,
which proved that he knew about the loan, she added.
18) Under cross-examination, she explained that the company was registered in
2014 as Dancing In Heels. In 2018, they changed the name to Senteo Digital,
which is the first respondent.
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19) When it was put to her that the appellant was employed in the role of web
designer, she accepted that statement. In response to the question about her
statement that the appellant "should net at like R20k at minimum ", she responded
that she did not have an accounting background.
20) She was questioned about the reference to the payment into the appellant as a
salary from August 2018 to June 2019, when it was changed to a loan. Her
response was that the word salary was recorded and scheduled along with the
recurring payment.
21) When asked about Ms Pa ran nth, who has knowledge about how companies
operate, did not spot the problem, she responded that it was an oversight and
that they had an agreement. She mentioned that the appellant was not given a
pay slip, nor an emp loyment contract.
22) After stating that they were new in business and figuring things out, she asserted
that their annual financial statements recorded it all as a loan.
23) She was referred to paragraph 13 of particulars of claim , which records: "It is
submitted that where the proof of payments reference 'salary', this was a
typographical error, and this should not be inferred as payment of a salary."
24) He r explanation of that paragraph was that she did not understand how things
work, but Ms Parannath's perspective was that it was a typographical error.
25) When challenged that the legal proceedings we re started to spite the appellant
for leaving, she said:
"I am currently in loads of debt. This is not a spite situation. Like I am living hand­
to-mouth at this point in time. So trying to reclaim some of the money that I loaned
to the business is a fair, is fair in this situation. It is not a spite situation in any
case. I loaned a lot of money to this business. I am now in debt because of that
whereas somebody else gained from that debt."
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Ms Parannath
26) Ms Parannath testified that she was the last director to be appointed to Senteo
(first respondent) and was well-versed with the business side of things, as a
former CEO. She was responsible for making payments and Senteo had one
employee, Romano Joreree, who was paid a salary and given a pay slip.
27) She testified that the second respondent had agreed to assist with some
expenses for the appellant and Ms Prince because they did not have savings,
families or anything that they could fall back on. She also assisted with some of
the expenses.
28) Further, she said that at that point, she was maxing out her credit cards and home
loan, which had been refinanced. She was in severe debt.
29) Under cross-examination, she conceded that as a former CEO, she has a fair
understanding of the financial accounts of a company, and the company relied
on her knowledge. In response to the question about the statement: "You should
net at like 20K minimum though," she said that her understanding was that the
second respondent used the word 'net' not in a corporate sense.
30) Focusing on the word 'net', counsel asked her whether there was net amount in
a loan. She said that she was not sure, because she had never had the
experience of needing to deal with net amount in a loan.
31) When pressed for an answer, she said that she was not an expert and could not
comment on it.
32) She testified that the reference to the word 'salary' was used for her to be able
to handle the administration of the company. When asked about the different
versions of why the word salary was used, she responded that everyone had a
different understanding, and that they could describe the same thing differently.
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33) Additionally, she testified that: "For Tshepiso it was , again, like I say, completely
inadvertent because you have been working 13 years in corporate, you hear
salary every month, I typed salary. When we realised it was , that this had actually
happened, then we changed it to loan."1
34) Finally, she commented that if they were to take that statement as true, then the
logical conclusion is that this would have never been an equal partnership
because that would have meant that she and Ms Mahomed were investing far
more than anyone else in the business. She decried the unfairness of the
situation and concluded that they worked for two years, assisted everyone else
with their expenses and they got no assistance.
Mr. Sibandze
35) The appellant testified that he was working at the Project Advertising and Media
and earning close to R 19 000.00 at the time.
36) It is common cause that the applicant met the second respondent at The Project
and became friends. Seeing that he was talented in web development, web
design and graphic design, she recruited him.
37) He testified that he joined the first respondent in August 2018, and his duties and
responsibilities were website development, data, analytics, and a bit of webs ite
design as well.
38) From the very beginning in June, when the conversation started, he claimed that
he was guaranteed a monthly payment of R20 000.00 and that it was not a loan.
Furthermore, he testified that he referred to his pay slip so that the second
respondent could match his previous income. He believed, after deductions, his
take-home pay was R20 ,000.00.
1 Record page 66.
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39) He asserted that the terms of his engagement were that he would be
remunerated the same amount as he was earning at his previous company. What
attracted him to the company , so his testimony went, was the freedom he would
attain there.
40) He contested the versions that the use of salary as a reference was a
typographical error and also disputed that it was used for administrative
purposes.
41) On the payment of R7 000.00, he testified that he paid because he was under
distress and was threatened with lawyers. Moreover, he offered to repay in
instalments of between R500 and R1000 because his current employment was
being threatened.
42) He maintained that he would not have left his previous work if he had been told
that he would be lent money. Under cross-examination, he was unshaken in his
assertion that the R20 000.00 was a salary.
43) When cross-examined about the absence of a payslip, he narrated that it was
his experience even at his previous employment that the payslip is provided after
some time or when he asked for it, as was the case at his last employment.
Issues
44) The crisp issue in this case is whether the payment of R20 ,000.00 per month
made to the appellant from August 2018 to November 2019 was a salary or a
loan.
45) The appellant contended that it was a salary, hence it was referenced as such in
the bank statements for almost a year. The respondents argued otherwise,
stating that it was a loan; accordingly, the reference was altered to reflect a loan
on the bank statements from June 2019 until his departure in November 2019.
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46) Therefore, the court a quo was confronted with two mutually destructive versions
as tabulated above. To make matters worse, it is common cause that there was
no written agreement memorializing the parties' agreement.
The law
47) It is trite that the court of appeal can only interfere with the decision of the trial
court if there has been a misdirection. In Special Investigating Unit v Phomella
Property Investments (Pty) Ltd and Another,2 the court held:
"There are different tests for interference by an appeal court, depending on the
nature of the discretion exercised by a lower court. As regards a loose
discretion:
' ... an appellate court is equally capable of determining the matter in the
same manner as the court of first instance and can therefore substitute
its own exercise of the discretion without first having to find that the court
of first instance did not act judicially.'
The approach on appeal against the exercise of a true discretion, however, is
very different:
'When a lower court exercises a discretion in the true sense, it would
ordinarily be inappropriate for an appellate court to interfere unless it is
satisfied that this discretion was not exercised -
"judicially, or that it had been influenced by wrong principles or a
misdirection on the facts, or that it had reached a decision which in the
result could not reasonably have been made by a court properly directing
itself to all the relevant facts and principles". [Footnote omitted.]
2 (1329/2021) [2023] ZASCA 45; 2023 (5) SA 601 (SCA) (3 April 2023)
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An appellate court ought to be slow to substitute its own decision solely
because it does not agree with the permissible option chosen by the lower
court."3
48) Where there are two mutually destructive stories, the court in National
Employers' Mutual General Insurance Association v Gray4 gave the following
dictum:
"For a Court to hold that an onus resting upon a plaintiff has in fact been
discharged, when there are two stories mutually destructive, the Court must be
satisfied upon adequate grounds that the story of the litigant upon whom the
onus rests, is true and the other false."
49) Under such circumstances, the analysis to be undertaken by a court is set out in
the matter of Stellenbosch Farmers' Winery Group Ltd. and Another v Martell &
Cie SA and Others.5 At paragraph five (5), the court held:
"On the central issue, as to what the parties actually decided, there are two
irreconcilable versions. So too on a number of peripheral areas of dispute which
may have a bearing on the probabilities. The technique generally employed by
courts in resolving factual disputes of this nature may conveniently be
summarised as follows. To come to a conclusion on the disputed issues a court
must make findings on (a) the credibility of the various factual witnesses; (b)
their reliability; and (c) the probabilities ... The hard case, which will doubtless
be the rare one, occurs when a court's credibility findings compel it in one
direction and its evaluation of the general probabilities in another. The more
convincing the former, the less convincing will be the latter. But when all factors
are equipoised probabilities prevail."
3 Supra para 11.
4 1931 AD 187 at 199.
5 (427/01) [2002] ZASCA 98; 2003 (1) SA 11 (SCA) (6 September 2002)
10

50) On the issue of credibility, the courts have pronounced themselves. To this end,
the court in Santam Bpk. v Biddulph6 stated the following:
"Whilst a court of appeal is generally reluctant to disturb findings which depend
on credibility it is trite that it will do so where such findings are plainly wrong (R
v Dhlumayo and Another 1948 (2) SA 677 (A) 706). This is especially so where
the reasons given for the finding are seriously flawed. Over-emphasis of the
advantages which a trial court enjoys is to be avoided lest an appellant's right
of appeal 'becomes illusory' (Protea Assurance Co. Ltd. v Casey 1970 (2) SA
643 (7) 648 D-E and Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd 1979
(1) SA 621 (A) 623H - 624A). It is equally true that findings of credibility cannot
be judged in isolation but require to be considered in the light of proven facts
and the probabilities of the matter under consideration."7
Analysis
51) To me , the WhatsApp communications between the applicant and the second
respondent hold the key to unlocking this case. The conversations concerned the
assurance that the appellant would net R20 000.00 per month. Ex-facie the bank
statements, the payments were referenced as salary payments. From these
undisputed facts, the respondents should offer a sound and sensible explanation
on a balance of probabilities:
(a) why these facts do not suggest a reference to salary payment; and
(b) more importantly, why these facts refer to a loan.
52) Instead of a solid elucidation of the situation, the respondents proffered
contradictory explanations concerning the use of the word 'Salary'. In the
Particulars of Claim , the respondents contended that it was a typographical error,
which was contrary to what was said under oath at trial. While Ms Parannath's
version is that it was used for administrative purposes, the second respondent
6 105/2003) (2004] ZASCA 11; (2004] 2AII SA23 (SCA); 2004 (5) SA586 (SCA) (23 Ma rch 2004
7 Supra para 5
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testified that it was due to a lack of accounting knowledge that the word 'Salary'
was used.
53) These answers are unsatisfactory. As a former CEO, Ms Parannath would have
been familiar with the consequences of labelling a payment 'Salary'. Given the
second respondent's email recording that the accountant and Ms Mohamed will
set up SARS and related matters this month, it is puzzling why they would lack
accounting knowledge.
54) Finally, a typographical error is self-explanatory. It means a mistake, such as a
misspelling that occurs during typing. By no stretch of the imagination could the
reference 'Salary' used over a period of ten months amount to a typographical
error.
55) About these contradictions, the court a quo commented as follows:
"They each had their own reason for initially referencing the payment as salary.
Miss Mohamed paid the amount at first form (sic) her own account and used a
reverence (sic) that would remind her as to the reason for the payment of the
money. She stated she used this reverence (sic) without really considering it
and without an accounting background she was not aware what the correct
reverence (sic) would be.
Miss Parannath used it purely for their reference. She state (sic) it was a
typographical error and it was used due.to her lack of knowledge as to these
things."8
56) Having examined the facts insofar as they related to the use of the word salary,
it is essential to look at the use of the word 'net'. In their attempt to explain the
use of the word 'net', the respondents' explanation moves from the sublime to
the ridiculous. For the second respondent to state that she did not know the
meaning of 'net' is bizarre, to say the least. She was not as na"fve as she would
8 Judgment para 5.3.1
12

have us believe. At her previous company , The Project, she wou ld have
encountered the word 'net' when she received her salary.
57) Secondly, the respondents had access to the services of an accountant, hence,
the appellant was informed that "the accountant and Len will set up SARS and
stuff this month so it will be sorted soon enough."
58) Worse still, it could not come from the mouth of a former CEO , Ms Parannath,
that she was not sure whether there was or was not a net amount in a loan.
59) Little wonder she sought refuge in the words "no comment" and "I am not an
expert", when pressed for an answer.
60) The word 'net' is found in the salary/ remuneration parlance. In the emp loyment
environment, it means the amount left after all deductions have been made. In
this case, it was used with the word salary. It brooks no debate that it meant what
is left after deductions. Accordingly, it is highly improbable that the parties had a
loan in mind.
61) Dealing with these contradictions, the court a quo held:
"Both sides contradicted their versions in their papers during their testimony. The
plaintiff's use of the word typographical error was not fully substantiated by the
evidence of the witnesses."9
62) Therefore, the court a quo's conclusion that the net reference "was more
probable a mistake born from inexperience" is unsound.
63} In light of the proven facts and contradictions, the credibility findings of the court
a quo are plainly wrong and unsustainable.
9 Judgment [5.6).
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64) The respondents provided neither a comprehensive nor a cogent explanation on
these issues. These contradictions go to the heart of the matter, and the court a
quo misdirected itself by failing to give them due weight and consideration. The
parties did not have a written memorial of their agreement, save for the
WhatsApp conversations, which required a closer analysis. Read together with
the rest of the evidence, these contradictions are material.
65) Furthermore, the court a quo misdirected itself in seeking the appellant to prove
that the payments were salaries. The appellant did not bear any such onus. The
onus was and remained on the respondents to prove that the payments were a
loan.
66) It is prudent to refer to the court a quo's conclusion on the WhatsApp
communication between the second respondent and the appellant: "This can be
a discussion as to a loan or a salary"10 which underscores this Court's conclusion
that the plaintiff failed to discharge its onus.
67) The respondent submitted that the financial statements always reflected that the
payments were a loan. On this issue, the respondents could not explain the
considerable discrepancy between the purported loan of R120 000.00 by
January 2019 as computed in the particulars of claim and the R51 362.00 loan
to T.K. Sibande according to the "Financial Statements for the 8 month (sic)
period ended 31 January 2019."
68) Finally, the respondents stated ad infinitum that the company did not have any
funds and was in the red as it was not generating any profit. To be precise, it was
in the ICU. Under the Company Act 71 of 2008, specific requirements must be
met before a company can loan money to its directors, and these requirements
were not complied with, let alone the solvency and liquidity tests.11
10 Supra (5.11]
11 Section 45(3)
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69) The reality is that the second respondent and Ms Parannath took money out of
their own pockets and lent it to the company to keep its fire burning, hoping it
would turn the corner and they would recover their investments. Sadly, it never
did. One thing is for sure in this case: the respondents failed to prove that the
payments to the appellant were a loan by the company to him.
Costs
70) The issue of costs is we ll-settled in our law. The costs follow the result, and I do
not intend to interfere with that well-trodden path.
Order
1. The appeal is upheld with costs, including counsel's fees on scale C .
2. The order of the Regional Court for the Regional Division of Gauteng, held
at Randburg under case number GPRANRC 1458/2021 is set aside and
replaced with the following:
2.1 The plaintiffs' claim is dismissed with costs, including the costs of
advocate, preparation and witness fees.
15
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG

I agree:
APPEARANCES :
Date of Hearing:
Date of Judgment:
For Applicant:
Instructed by
For Respondents:
Instructed by:
AC.TING JUDGE OF THE HIGH
COURT GAUTENG LOCAL
DIVISION, JOHANNESBURG
02 September 2025
20 November 2025
Att Voyi
Voyi Incorporated Attorneys
AdvV Pillay
Monica Molapisi Attorneys
16.