IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2025-209681
(1) REPORTAB LE-:
(2) OF INTERES T TO OTHER JUDG ES.
(3) REVISED.
2.0 ;,, /2.>2j • I
DATE
In the m atter between:
~
NTSHAUPA MCHALE NCHAUPA
and
KYALAMI SHISANYAMA (PTY) LIMITED
TSHEPO EVANS SEFOMOLO
THOMAS CHAUKE
GRANITE NETWORK (PTY ) LIMITED
JUDGMENT
MBONGWE , J:
Applicant
First R espondent
Seco nd Respondent
Third R espondent
Fourth Respondent
2
INTRODUCTION
[1] This is an urgent application brought by the applicant, a 40% shareholder and
former director of the first respondent, seeking to restrain the registration of
the transfer of his shares and to obtain declaratory relief confirming his
continued ownership thereof.
[2] The application arises from a contested sale of the company to the fourth
respondent, in which the applicant's shares were purportedly included despite
his express withdrawal of consent before completion of the transaction.
Background
[3] On 1 O July 2025, the board of directors of the first respondent resolved to sell
the company as a going concern for R 12 million. The applicant initially sought
to acquire the remaining 60% shareholding, but failed to raise the funds within
the agreed timeframe.
[4] The applicant mandated the third respondent to sell his 40% shareholding. A
purchaser, the fourth respondent, was identified. On 16 July 2025, a sale
agreement was concluded. The third respondent advanced R4 .8 million to the
purchaser. On 30 July 2025, the applicant received R2 ,225,226.27 net of
deductions, and accepted the payment.
[5] The applicant later discovered that his name had been removed from the Cl PC
registry and that the sale agreement had been concluded without full
disclosure. Despite repeated requests. the applicant was not furnished with
the sale agreement and proof of payment of the purchase price.
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[6] On 2 October 2025, a meeting was held where the applicant was informed that
the purchaser had not paid the outstanding R7.4 million. The applicant
withdrew his consent to the sale of his shares, which was accepted by the co
directors, the second and third respondents.
[7] On 3 October 2025, the applicant's attorney confirmed the withdrawal and
restoration of the applicant's shareholding in writing. On 8 October 2025, the
purchaser paid the outstanding balance. Thereafter, the co-directors' attorney
advised that the applicant's shares had been sold. The applicant was further
advised that if he wished to purchase his shares back, he should contact the
4th respondent.
Issues for Determination
[8] The issues for determination are:
8.1 Whether the applicant validly withdrew his mandate and consent to
the sale prior to completion.
8.2 Whether the respondents acted in breach of fiduciary and statutory
duties.
8.3 Whether the applicant is entitled to the urgent interdictory and
declaratory relief sought.
8.4 Whether the applicant's failure to tender repayment of the amount
received precludes the relief sought.
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Legal Framework
(9] A mandate may be revoked at any time before performance, unless it is
irrevocable or coupled with an interest. The principal is entitled to withdraw the
mandate before completion, particularly where the sale is conditional upon full
payment of the purchase price.1
[1 O] The mandate in this case was not irrevocable, nor was it coupled with an
interest. It was a conventional agency arrangement, terminable at will. The
applicant's withdrawal on 2 October 2025 was lawful and effective.
[11] Directors owe fiduciary duties to act in good faith and in the best interests of
the company and its shareholders. These duties include the obligation to avoid
conflicts of interest and to disclose material information.2 A director who acts
as mandatary for a fellow shareholder must exercise the utmost good faith and
avoid self-dealing.3
[12] The removal of a shareholder from the Cl PC registry without lawful basis
constitutes a violation of corporate governance and may be interdicted.4
[13] Urgent relief is justified where the applicant demonstrates a prima facie right,
irreparable harm, and absence of alternative remedies.5
1
Blower v Van Noorden 1909 TS 890 at 897; Reid v Mitche/11925 AD 237 at 243.
2 Robinson v Randfontem Estates Gold Mining co Ltd 1921 AD 100 at 177 .
3 Phillips v Fieldstone Africa (Pfy) Ltd 2004 (3) SA 465 (SCA) at para 31.
• Pretoria City Council v Modimola 1966 (3) SA 250 (T) at 254.
5 Luna Meubel Vervaardigers v Makin 1977 (4) SA 135 (W) at 137F-G .
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Analysis
(a) Validity of Withdrawal
[14] The applicant's withdrawal of consent on 2 October 2025 was unequivocal and
accepted by the co-directors. The sale was not yet complete, as the balance
of the purchase price had not been paid, and the shares had not been
transferred.
[15] The subsequent payment on 8 October 2025 did not revive the mandate, nor
did it override the applicant's withdrawal. The respondents' acceptance of the
withdrawal estops them from asserting otherwise.6
(b) Breach of Fiduciary Duty
[16) The third respondent's financial involvement with the purchaser, undisclosed
to the applicant, constitutes a material conflict of interest. As a director and
mandatary, he was under a duty to act with utmost good faith and to disclose
all facts that might affect the applicant's decision.7
[17] The failure to disclose the advancement of R4 .8 million to the purchaser
undermines the integrity of the transaction and vitiates the mandate. The
applicant was entitled to full disclosure before consenting to the sale.
(c) Restitution Argument
6 Du Plessis v Pienaar NO and Others 2003 (1) SA 671 (SCA) at para 20.
7 Howard v Herrige/ 1991 (2) SA 660 (A) at 678E-F .
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[18] The respondents argue that the applicant Is not entitled to relief as he has not
tendered repayment of the amount he received. This argument is misplaced.
[19] The applicant's claim is not for rescission of a completed sale, but for
enforcement of his withdrawal of consent prior to completion. The principle of
restitutio in integrum applies where a party seeks to undo a completed
transaction. In this case, the transaction was not perfected at the time of
withdrawal.8
[20] Even if restitution were required, the respondents have not tendered to restore
the applicant's shareholding or account for the full purchase price. Equity does
not permit them to retain both the shares and the proceeds while denying the
applicant his rights.
[21] In any event, the applicant's attorney's letter of 3 October 2025 implicitly
reserved the applicant's rights, including the right to account for any amounts
received. The issue of repayment, if any, is ancillary and does not preclude the
declaratory or interdictory relief.
(d) Public Policy Consideration
[22] To permit the registration of transfer in these circumstances would undermine
the integrity of shareholder rights and corporate governance. In my view, this
court must intervene to prevent the erosion of lawful ownership through
procedural irregularity and undisclosed dealings.9
8 Kudu Granite Operations (Pfy) Ltd v Caterna Ltd 2003 (5) SA 193 (SCA) at para 17; Brooklyn House
Furnishers (Pfy) Ltd v Knoetze and Sons 1970 (3) SA 264 (A) at 270H -271 A .
9 Gihwala and Others v Graney Property Ltd and Others 2017 (2) SA 337 (SCA ) at paras 134-136.
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Order
[23] In the premises, the following order is made:
1. It is declared that the matter is heard on urgency as contemplated in Rule
6(12) and that the rules relating to form, service and time periods are
dispensed with.
2. The second to fourth respondents are interdicted and restrained from
registering or causing to be registered the transfer of the applicant's 40%
shareholding in the first respondent.
3. It is declared that the applicant remains the lawful owner of 40% shares
in the first respondent held in terms of his share certificate.
4. The third respondent's mand ate to sell the applicant's shares is declared
have been lawfully withdrawn on 2 and 3 October 2025.
5. The second, third and fourth respondents are directed to restore the
applicant's name to the CIPC registry as a 40% shareholder of the first
respondent w ithin 1 O days of this order.
6 The second and third respondents are ordered to pay the costs of this
application jointly and severally, the one paying the others to be
absolved.
GAUTENG DIVISION, PRETORIA .
Date of hearing:
Date of judgment:
APPEARANCES
For the Applicant
Instructed by
For the Respondents
Instructed by
8
13 November 2025
20 November 2025
Adv K. Bokaba
Thobakgale Attorneys Incorporated
Adv MJS Kock
Mathie Jooma Sabdia Inc