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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2025-061844
In the matter between:
ODETTE OCTAVIA JOUBERT N.O. First Applicant
CHRIS ANAGNOSTELLIS N.O. Second Applicant
MARMIKO FAMILIE TRUST (IT 12757/96) Third Applicant
BLACK RHINO GAME LODGE (PTY) LTD Fourth Applicant
and
MARTIN KYLE JOUBERT First Respondent
COMPANIES AND INTELLECTUAL
PROPERTY COMMISSION Second Respondent
ORDER
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED:
........................... ...................................
DATE SIGNATURE
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DATE SIGNATURE
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TOLMAY J
1. This is an application to declare the first respondent (Mr. M Joubert) a delinquent
director in terms of s162 of the Companies Act .1 The application was initially
launched as an urgent application but was struck from the role due to lack of
urgency. This is a further chapter in an ongoing dispute between members of
the Joubert family to gain control over what may be described as family wealth.
2. The first and second applicants act in their capacity as trustees of the third
1 71 of 2008.
1. The application is referred to trial.
2. The applicants shall, as plaintiffs in the action, within 20 days of the date
of this order deliver its declaration.
3. The further exchange of pleadings and pre -trial procedures, including
discovery and the request for and provision of trial particulars, shall be
regulated by the Uniform Rules of the Court in respect of action
proceedings.
4. The costs occasioned by the application, including the costs relating to
the opposed motion, are reserved for determination in the trial.
5. This judgment must be brought to the attention of the South African
Revenue Services.
JUDGMENT
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applicant, the Marmiko Family Trust (the Trust).The Trust is the sole shareholder
of the fourth applicant, Black Rhino Game Lodge (Pty) Ltd (BRGL). Mr Joubert
is a director of BRGL. The first and second applicants are respectively the
mother and the brother of Mr Joubert . The first and second applicants will
collectively be referred to as the Trustees.
3. A perusal of the papers reveal s that the Trustees questions the validity of Mr .
Joubert’s directorship of BRGL and this is the subject of a nother pending
application. The Trustees and Mr Joubert are also involved in an application
pertaining to the trustees of the Trust. The papers reveal a very acrimonious
family dispute about what is described by the Trustees as “family money”. They
are of the view that Mr. Joubert is attempting to exclude them from this money.
4. In this application the Trustees wish to declare Mr Joubert a delinquent director.
They allege fraudulent conduct on his part. They say he fraudulently represented
to the South African Revenue Services (SARS) that he had been authorised to
act as BRGL’s Public Officer in terms of s246 of the Tax Administration Act2. This
fraudulent act requires that he be declared a delinquent director in terms of
s162(5)( c) of the Companies Act.
5. The Trustees allege that Mr Joubert had unilaterally usurped the role of Public
Officer by fraudulently representing to SARS that he had the consent of the
directors of BRGL to be so appointed. It is also alleged that Mr. Joubert
perpetrated a fraud on the fi scus by submitting a forged document to SARS to
2 28 of 2011.
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manipulate the company’s tax profile , by so doing it is alleged that Mr. Joubert
committed a serious offence against the state’s revenue collection processes
that constitutes a criminal offence.
6. Mr Joubert explains that he is a director of seven companies . He and his
mother, Mrs. Joubert, the first applicant, are directors in six of those companies.
He alleges that the Trustees acted to the detriment of BRGL and were using the
funds for personal purposes and to the detriment of the company. He says that
he requested them to stop this conduct and to assist him in ensuring that BRGL
becomes tax compliant. They refused and continued with unlawful conduct. At a
directors’ meeting the Trustees were advised that the company is trading in a
manner that ope ns the directors up to accusations of reckless trading. Mr .
Joubert wanted an accountant to be appointed urgently to sort the books out and
get the company tax compliant. This led to further disputes and an urgent
application brought by Mr. Joubert where an interim order was granted that inter
alia appointed Beancounter (Pty) Ltd to regularize BRGL’s books. An application
was then successfully brought to stay the interim order. The Trustees terminated
the services of Beancouter (Pty) Ltd, despite the fact that BRG L, according to
him, still did not have audited financial statements and is not tax compliant.
7. Mr. Joubert also alleges that the second applicant is not a Trustee of the Trust,
despite the Master’s letter of authority confirming his appointment, he alleges
that the second applicant was removed as trustee by the majority of trustees of
the Trust. He denies the alleged fraudulent and unlawful conduct he is accused
of. He says he did not fraudulently represent himself as BRGL’s Public Officer ,
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nor did he submit any letter of appointment to SARS. He says he appointed a
tax consultant Martmo Group (Pty) Ltd (Martmo) to review the BRGL ’s tax
compliance dur ing March 2025. He alleges that Martmo had irregularly
submitted documents to SARS appointing him as Public Officer. He denies
disrupting access to the e-filing system that resulted in penalties from SARS.
8. He alleges the Trust is not registered with SARS and that he was informed b y
Martmo that VAT returns were not filed by BRGL and that penalties will be levied
by SARS. The version by Mr Joubert and allegations made by him against the
Trustees are denied in the replying affidavit.
9. Before the hearing the Court asked counsel to consider whether the matter could
be determined on application considering the disputes of fact. During argument
counsel for the applicants indicated that the only issue the Court had to determine
was whether the matter should be referred to evidence or trial. The applicant was
of the view that the dispute is narrow, and the factual inquiry should be limited to
the mandate given by Mr Joubert to Martmo and his knowledge of its actions.
The only witnesses that will be required to deal with these issues will be that of
Mr. Joubert and his attorney Mr Lazarus. The applicants proposed an order that
limits the evidence to these orders and witnesses. It was argued on behalf of Mr
Joubert that the matter should either be dismissed based on a foreseeable
dispute of fact or referred to trial.
10. In my view the argument on behalf of the applicants is a n oversimplification of
the disputes between the parties. The applicants a llege that a fraud was
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committed by Mr Joubert and that must result in a declaration of delinquency as
envisaged in s162 of the Companies Act. The Trust carries the onus to prove
such fraud, and it must be borne in mind that fraud is not easily inferred .3 The
applicant carries the onus to prove its case. Therefore, it is inconceivable that
the dispute be limited to Martmo’s mandate and Mr Joubert’s knowledge of
Martmo’s actions. Even if that is proven that will not ineluctably lead to fraud
being established, considering the elements that are needed to prove fraud.
11. The Plascon-Evans4 rule finds application. Relief in motion proceedings may be
granted if those facts averred in the applicant’s affidavits which have been
admitted by the respondent, together with the facts alleged by the respondent,
justify such an order.
12. The determination of whether a fraud was committed by Mr Joubert can only be
established through evidence. The Trustees alleges that a fraud was committed
based on the factual matrix set out by them in the affidavit. These allegations are
denied by Mr Joubert, and he sets out the facts on which he relies to
substantiate his version. As was stated in Room Hire CO (Pty) Ltd v Jeppe Street
Mansions (Pty Ltd5 “….it is undesirable to attempt to settle disputes of fact solely
on probabilities disclosed in contradictory affidavits, …” In National Director Of
Public Prosecutions v Zuma6 the SCA explained:
“Motion proceedings, unless concerned with interim relief, are all about the
3 Courtney-Clarke v Bassingthwaighte [1991] 3 All SA 625 (Nm), 1991 (1) SA 684 (Nm) P. 689 Gilbey
Distillers & Vintners (Pty) Ltd v Morris NO 1990 (2) SA 217 (SE).
4 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd, [1984] 2 All SA 366 (A).
5 1949 (3) SA 1155 (T).
6 2009 (2) SA 277 (SCA).
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resolution of legal issues based on common cause facts. Unless the
circumstances are special they cannot be used to resolve factual issues
because they are not designed to determine probabilities. It is well established
under the Plascon-Evans rule that where in motion proceedings disputes of fact
arise on the affidavits, a final order can be granted only if the facts averred in the
applicant's (Mr Zuma's) affidavits, which have been admitted by the respondent
(the NDPP), together with the facts alleged by the latter, justify such order. It may
be different if the respondent's version consists of bald or uncreditworthy
denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so
clearly untenable that the court is justified in rejecting them merely on the papers.
The court below did not have regard to these propositions and instead decided
the case on probabilities without rejecting the NDPP's version”.7
13. It cannot be that Mr Joubert’s version can merely be rejected on the papers. The
parties have two diametrically opposed versions, which will require a
consideration of probabilities and the credibility of the witnesses. The court will
generally refer a matter to oral evidence where the scope of the dispute is narrow
this is not the case here. The matter needs proper ventilation in trial proceedings.
14. It was argued on behalf of Mr Joubert that the factual dispute was foreseeable
and that the application should be dismissed on that basis. I agree that the factual
dispute was foreseeable, but in terms of Rule 6(5)(g) of the Uniform Rules of
Court, when disputes of fact arise in motion proceedings and cannot be resolved
on affidavits, the court may dismiss the application, refer the matter for oral
7 Id par 26.
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evidence, or refer it to trial. The court should adopt the process that ensures
justice is done with the least delay, and this rule may yield to the interests of
justice, resulting in a referral to trial. 8 In the exercise of that discretion I deem it
necessary that the matter be referred to trial. The parties make serious
allegations against each other and the veracity of those allegations should be
evaluated in a trial. It is also of concern that they accuse each other of
transgressions against SARS. This judgment should accordingly be brought
under the attention of SARS for its consideration.
The following order is made:
1. The application is referred to trial.
2. The applicants shall, as plaintiffs in the action, within 20 days of the date of
this order deliver its declaration.
3. The further exchange of pleadings and pre -trial procedures, including
discovery and the request for and provision of trial particulars, shall be
regulated by the Uniform Rules of the Court in respect of action
proceedings.
4. The costs occasioned by the application, including the costs relating to the
opposed motion, are reserved for determination in the trial.
5. This judgment must be brought to the attention of the South African
Revenue Services.
8 Golden Peanut and Tree Nut SA (Pty) Ltd v Vermeulen N.O and others, [2019] JOL 46046 (FB).
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_________________________
R TOLMAY
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances:
For Applicant: Adv H Viljoen & Adv N Daniels instructed by Osborn Wellsted Paulsen
Incorporated.
For Respondent: Adv R Maphutha & Adv Seshoka instructed by Lazarus Joshua
Attorneys.
Date of hearing: 27 November 2025.
Date of judgment: 9 December 2025.