About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2025
>>
[2025] ZAGPJHC 1277
|
|
Moodley v Strawberry Worx POP (Pty) Ltd and Others (2024/007980) [2025] ZAGPJHC 1277 (5 December 2025)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
2024-007980
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
In
the matter between:
KESAVAN
MOODLEY
APPLICANT
and
STRAWBERRY
WORX POP (PTY) LTD
FIRST RESPONDENT
ASHVEER
JAIRAJH
DWARIKAPERSADH N.O.
SECOND RESPONDENT
KRITHIKA
DWARIKAPERSADH N.O.
THIRD RESPONDENT
RIDWAAN
MOHAMED
FOURTH RESPONDENT
NISHA
NAIDOO
FIFTH RESPONDENT
S&A
PROJECTS AND MANAGEMENT SERVICES
SIXTH
RESPONDENT
(PTY) LTD
THE
COMPANIES AND INTELLECTUAL
SEVENTH RESPONDENT
PROPERTY
COMMISSION
JUDGMENT
DREYER, AJ
[1]
The first and second respondents, as the
Trustees of the NKA Trust, and the sixth respondent, S&A Project
Management Services
(Pty) Ltd, together hold 50% of shareholding in
Strawberry Worx Pop (Pty) Ltd. The sixth respondent, Mr Ridwaan
Mohamed, was a
Strawberry Worx shareholder until December 2023 when
he sold his shareholding to S&A.
[2]
The balance of Strawberry Worx’s
shareholding is contested. The applicant contends that he is the 50%
shareholder. The respondents
contend that S&A acquired the
disputed 50% shareholding in December 2023, from the fifth
respondent, Ms Nisha Naidoo who was
in fact the owner of the shares,
not the applicant.
Factual matrix
[3]
On 6 February 2024, the applicant’s
application for urgent interdictory relief against the first, second,
third, fourth and
sixth respondents from giving effect to a
resolution taken at a shareholders’ meeting of the first
respondent, Strawberry
Worx, on 24 January 2024, removing the
applicant as a director of Strawberry Worx, pending an application to
set aside such resolution,
was struck from roll for lack of urgency.
The applicant persists with the interdictory relief.
[4]
The facts which gave rise to this
application are contested. The parties have been involved in a series
of contentious litigation
since at least 2023. Central to all the
pending litigation is the question of the applicant’s
shareholding and position as
a director of Strawberry Worx.
[5]
The applicant contends in the founding
affidavit that the respondents have admitted his 50% shareholding in
Strawberry Worx, both
in the pending action proceedings between the
parties before the Durban High Court and in a letter addressed by the
second to fourth
respondents’ attorneys, of 9 December
2022, to his attorneys of record. The applicant contends that Ms
Naidoo transferred
her shareholding in Strawberry Worx to the KM
Family Trust in 2016. In 2018, the KM Family Trust, in turn,
transferred its Strawberry
Worx’s shareholding to the
applicant. The applicant does not have a copy of the share
certificate recording that he is the
holder of 50% of the
shareholding in Strawberry Worx. The applicant contends that any
documents reflecting that anyone other than
he is a 50% shareholder
of Strawberry Worx are as a result of fraud perpetrated by Mr Ashveer
Dwarikapersadh and Mr Mohamed.
[6]
The applicant disputes that Ms Naidoo held
Strawberry Worx shares in 2023, or that she could legally have
transferred her Strawberry
Worx shareholding to S&A. In addition,
the applicant disputes that S&A was a registered shareholder on
24 January 2024
when Strawberry Worx held its shareholders’
meeting. The applicant contends that, until the valid transfer and
recording
of S&A shares in Strawberry Worx’s share
register, S&A had no right to call the shareholders’
meeting or to
vote at it.
[7]
The applicant contends that, as he is a 50%
shareholder in Strawberry Worx, the shareholders’ meeting of 24
January 2024 was
not correctly called or constituted and any
resultant shareholder’s decision falls to be set aside. The
applicant contends
that he was not afforded procedural fairness at
the shareholders’ meeting of 24 January 2024 in that his right
to legal representation
was refused.
[8]
In
contradistinction to the applicant’s facts, the respondents
deny that the applicant is or was ever a shareholder of Strawberry
Worx. The respondents applicant
[ES1]
asserts
that the current shareholders of Strawberry Worx are the NKA Trust,
represented by the second and third respondents,
and S&A. This
assertion is supported by Strawberry Worx’s share register and
issued share certificates. The respondents’
deponent
states that he ascertained the true position relating to the
shareholding of Strawberry Worx in late 2023 on receiving
the share
register from Strawberry Worx’s previous accountants, Ramathe
Desai Bhagat and Jenna Accountants in late 2023.
That share register
is with Mr Antoon Nortje of WRN Accounting, who is the
current company secretary.
[9]
The respondents rely on the affidavit of Ms
Naidoo who confirms that she sold her Strawberry Worx shares, which
she had held since
2010, to S&A in December 2023.
[10]
The respondents contend that at the
Strawberry Worx’s shareholders’ meeting of 24 January
2024 they complied in all
respects – notice of the meeting was
given by the shareholders and the applicant was given an opportunity
to make representations,
but failed to do so.
[11]
The applicant persists in his replying
affidavit that he is the 50% shareholder of Strawberry Worx. The
applicant states that he
had dealt with Strawberry Worx’s share
register in his founding affidavit and that Mr Cassim’s
affidavit confirms the
transfer of the shares the KM Family Trust
held in in Strawberry Worx to him in 2018. This assertion, under
oath, is incorrect.
Mr Cassim does not confirm that Strawberry Worx’s
shares were transferred to the applicant in 2018. Mr Cassim’s
affidavit
does not support the applicant’s contention that he
is a 50% shareholder of Strawberry Worx. The applicant fails to
address
in reply that Strawberry Worx’s share register was held
by Strawberry Worx’ previous accountant. That share
register
does not record the applicant as a shareholder.
[12]
Ms Naidoo then recants.
[13]
On 15 July 2025 the applicant launched an
application to introduce a further affidavit, a supplementary
affidavit by Ms Naidoo.
In the affidavit, Ms Naidoo denied that she
ever was a shareholder of Strawberry Worx. Instead, she asserts that
she initially
held the shares as nominee for the applicant. She held
these shares as nominee from 2010 to 2016. Still holding these shares
as
nominee for the applicant, these shares were transferred to the KM
Family Trust. In 2018, the shares were transferred from the KM
Family
Trust to the applicant, himself. Ms Naidoo contends that the second
respondent, Mr Ashveer, Dwarikapersadh (“Ashveer”)
induced her by fraudulent representations, undue influence and duress
to conclude the sale of shares agreement.
[14]
The respondents responded to the
supplementary affidavit stating that Ms Naidoo was represented by a
senior practitioner in concluding
the sale of shares agreement in
December 2023. Ms Naidoo was not induced to conclude the agreement.
The contemporaneous exchange
of correspondence evidences the
negotiation of the terms of the sale of shares agreement. In addition
to her confirmatory affidavit
filed in this matter in February 2024,
the respondents record that Ms Naidoo had filed three other
affidavits in the various pending
litigation between the parties,
confirming that she was a Strawberry Worx shareholder and denied that
she had held the shares as
nominee for the applicant.
[15]
I granted the application to introduce the
further affidavits.
[16]
It is against this contested set of facts
that the applicants’ claim for interdictory relief must be
considered.
Legal matrix
[17]
The removal of directors is regulated in
section 71
of the
Companies Act 2008
. This section
distinguishes between the removal of a director at the behest of the
shareholders as opposed to that by the
board of the company.
Shareholders may remove a director by an ordinary resolution, namely,
a vote in favour of the resolution
by at least 51% of the
shareholders. The relevant provision reads:
“
(1)
Despite anything to the contrary in the company’s memorandum of
incorporation or rules, or any agreement
between a company and a
director or between any shareholders and a director, a director may
be moved by
ordinary resolution
adopted at a shareholders’ meeting by persons entitled to
exercise voting rights
in an
election of that director, subject to subsection (2).
(2)
Before the shareholders of a company may consider a resolution
contemplated in subsection (1) –
(a)
the director concerned must be
given notice of the meeting and the
resolution
at least equivalent to that of a shareholder is
entitled to receive, irrespective of whether or not the director is a
shareholder
of the company; and
(b)
the director must be afforded a
reasonable
opportunity to make a presentation,
in person or through a representative, to the meeting, before the
resolution is put to a vote
.”
[18]
There are three requirements for a
shareholder to remove a director. First, the calling of the meeting
by the shareholders. Second,
the director must be given notice of the
meeting and the resolution. Third, the director must be given an
opportunity to make a
presentation before the removal resolution is
put to vote.
[19]
The
shareholders’ meeting was called by S&A. The requisite
notice of the meeting was given to the applicant. The sale
of shares
agreement concluded between Ms Naidoo and S&A is evidence of
cession of the shareholding.
[1]
The delivery of the share certificate is not a requirement of the
cession.
[2]
In
Botha
v Fick
,
the court held that the rule referred to in
Labuschange
v Denny
[3]
that “where a right of action is evidenced in a document,
delivery of the document to the cessionary is necessary, not for
the
validity but for the completion of a cession of that right of action
to him” is not a rule of the substantive law,
but rather
a matter of evidence.
[4]
[20]
Thus,
while beneficial ownership of shares can pass by cession between
parties, the company recognises only the registered holder
as the
shareholder.
[21]
The persons entitled to exercise the voting
right at the shareholders’ meeting are either the shareholder
or the shareholder’s
proxy.
[22]
In terms of
section 49(2)
of the
Companies
Act, a
shareholder’s certificate is proof that the holder owns
the shares. This section is read with
section 50(4)
of the
Companies
Act, which
states that:
“
A
securities register … maintained in accordance with this Act
is sufficient proof of the facts recorded in it, in the absence
of
evidence to the contrary
.”
[23]
Consequently, a person who holds a share
certificate and whose name appears on the share register is, in the
absence of evidence
to the contrary, considered to be the registered
shareholder.
[24]
By application of principles elucidated in
Botha v Fick
and the provisions of the
Companies Act,
ex
facie
Strawberry Worx’s share
register, the only persons who could exercise the right to vote at
Strawberry Worx shareholders’
meeting on 24 January 2024, were
the NKA Trust and S&A.
Interim relief
[25]
Is
the relief the applicant seeks interim? In
Airoadexpress
,
the Appellate Division (as it then was), tracing the history of
interdicts back to Roman Dutch Law, stated that an interim interdict
is for relief that is pending some process (not necessarily by a
court) already actually instituted or to be instituted that is
capable of resulting in a binding determination “
of
the matter substantially in issue between the parties
”.
[5]
[26]
The applicant seeks interim relief that he
be re-instated as a director of Strawberry
Worx,
pending the finalisation of the determination of an application to
set aside the resolution of the shareholders’ meeting
removing
him as a director. That application cannot be determined without the
critical and central dispute between the parties,
namely who are the
legitimate and registered shareholders of Strawberry Worx. That
dispute will be finally determined in the litigation
pending before
the Durban High Court. The decision by the Durban High Court will
determine whether Strawberry Worx’s shareholders’
meeting
of 24 January 2024 was correctly called and constituted and
consequently whether the resolution removing the applicant
as a
director of Strawberry Worx was valid and binding against the
company. Though the applicant has recognised the finality of
the
decision to be made by the Durban High Court and has referenced it in
his founding affidavit, that is not the final relief
that the
applicant seeks.
[27]
The final relief the applicant seeks,
namely setting aside the Strawberry Worx’s shareholder
resolution to remove him as director of Strawberry
Worx, is not the
matter substantially in
issue between the parties;
the
shareholding of Strawberry Worx is.
[28]
The interim relief the applicant seeks does
not meet the requisite standard as articulated in Airoadexpress. For
that reason, the
application fails.
[29]
If I am wrong, the applicant has failed to
show that he has a
prima facie right
open to some doubt,
entitling him to
the interim relief that he seeks.
[30]
This
standard is adjudicated by taking “
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 upon 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 unconvincing explanation, the
matter should be left to trial and the
right be protected in the
meanwhile, subject of course to the respective prejudice in the grant
or refusal of interim interdict
”.
[6]
[31]
In this matter the facts are a moving
target. The disputes of fact are open to
more
than
some doubt
.
The central issue in the disputed facts before me is who are the
shareholders of Strawberry Worx. That question will be finally
determined in the pending litigation in the Durban High Court. The
applicant and respondents make contradictory assertions
as to
Strawberry Worx’s shareholding. This is compounded by of
Ms Naidoo’s recanting that she was a Strawberry
Worx’s
shareholder. Ms Naidoo’s recanting version is in stark contrast
to the available documentary evidence, such
as the share certificate
and share register.
Shareholders’
meeting properly called and constituted
[32]
The
prima
facie right
is a right relative to the
final relief sought, namely whether the person will be successful in
the anticipated or pending proceedings.
In this instance, has the
applicant established that Strawberry Worx’s shareholders’
meeting of 24 January 2024 was
not properly called and constituted?
At the heart of that question is whether the applicant or S&A was
a shareholder of Strawberry
Worx.
[33]
The applicant’s contention that he is
a 50% shareholder of Strawberry Worx is not supported by any
extrinsic evidence. The
only documentary evidence the applicant
places before the court is an unsigned copy of a share certificate in
the name of KM Family
Trust. The applicant avers in his founding
affidavit that the signed share certificates and the share register
evidencing his shareholding
in Strawberry Worx are in the possession
of Strawberry Worx and he has no access to these documents.
[34]
The difficulty with the applicant’s
assertion is that he fails in reply to address respondents’
withdrawal of the concession
that he is a shareholder and the
respondents placing into evidence Strawberry Worx’s share
register, which was obtained from
the auditors. The share register
does not reflect that the applicant is or was a shareholder. The
share register records that Ms
Naidoo was a 50% shareholder before
these shares were acquired by S&A. There is no evidence before me
which is contrary to
Strawberry Worx’s share register. In the
absence of such contrary evidence, the share register is, in terms of
section 50(4)
of the
Companies Act, sufficient
evidence of Strawberry
Worx’s shareholding.
[35]
The
applicant
fails to address the respondents’ contention that Ms Naidoo
sold her shares in Strawberry Worx to S&A. This
despite attaching
the full bundle of the pleadings in the action pending before the
Durban High Court to his founding affidavit.
Included in the bundle
of pleadings was an intended amendment brought by the respondents. In
the intended amendment, the respondents
deny that the applicant was a
shareholder in Strawberry Worx.
[7]
The respondents plead that S&A purchased Ms Naidoo’s
shares. A copy of the sale of shares agreement is attached.
[8]
The applicant fails to address this sale of shares in his replying
affidavit, despite the respondents’ placing reliance on
S&A’s
majority shareholding in Strawberry Worx as the basis for the correct
calling and constitution of Strawberry Worx’s
shareholder’s
meeting on 24 January 2024.
[36]
Instead
of replying to the respondents’ contentions, the applicant
makes sweeping allegations of fraud. It is trite that fraud
will not
be lightly inferred.
[9]
[37]
Against these contested facts is Ms
Naidoo’s recanting affidavit. Ms Naidoo denies she ever held
Strawberry Worx’s shares
in her own right, but only as the
applicant’s nominee, before these shares were transferred to
the KM Family Trust, still
as nominee for the applicant then onward
transferred to the applicant. The applicant does not contend in
either his founding or
replying affidavits that Ms Naidoo held the
shares in Strawberry Worx as his nominee nor that the KM Family Trust
held the shares
as his nominee.
[38]
Ms Naidoo contends that through fraud and
undue influence she was induced to believe she was the holder of the
shares, when she
was not, and convinced her to sell her shares to
S&A. Ms Naidoo does not retract that she received assistance and
guidance
from a senior legal practitioner when concluding the sale of
shares agreement. Her recanting affidavit does not square with her
conduct recorded in the answering affidavit, and confirmed by her
under oath.
[39]
Ms Naidoo’s recanting affidavit does
not support the applicant. The recanting affidavit sets out a
different version of the
facts as that contended for and relied on by
the applicant.
[40]
With three versions of the shareholding in
Strawberry Worx before me, the applicant has not established “
a
prima facie right open to some doubt
”,
that Strawberry Worx’s shareholders’ meeting of 24
January 2024 was incorrectly called and constituted.
Denial of legal
representation
[41]
The second basis on which the applicant
relies that the resolution of Strawberry Worx’s shareholders’
meeting of 24
January 2024 was invalid is that there was
non-compliance with the provisions of
section 71
of the
Companies Act
in
that the applicant was denied the opportunity to have legal
representation and to make submissions against his removal as
director.
The applicant’s position is not supported by the
papers. The applicant was given the requisite 10-day notice period of
the
shareholders’ meeting.
Section 71
does not afford a
director
legal
representation. It affords a director an opportunity to make
representations “
in person or
through a representative”
.
[42]
The minutes of the shareholders’
meeting, which the applicant does not dispute, reflects that the
applicant was given an opportunity
to make representations, but
failed to make any representations as to why he should not be removed
as a director. The only issue
the applicant raised was that the
meeting was not correctly constituted as he was a 50% shareholder of
Strawberry Worx.
[43]
The applicant’s legal
representatives, before they left the shareholders’ meeting,
conceded that the
Companies Act does
not give a director the right to
legal representation at a shareholders’ meeting. The only issue
the applicant’s legal
representatives addressed was that there
was a dispute regarding the Strawberry Worx’s shareholding. The
minutes do not record
that the applicant’s legal
representatives were prevented from making representations on his
behalf. The applicant’s
legal representative made no
representations against the resolution to remove the applicant as
director. They stated that their
presence at the shareholders’
meeting was supported by a proxy given to them by the applicant as
the 50% shareholder. The
chairperson rejected these proxies on the
basis that his role was to chair the shareholders’ meeting, not
make a determination
on the shareholding of Strawberry Worx. That,
the chairman stated, was a matter for the court to determine.
[44]
The papers do not support the applicant
that he has a prima facie right, open to some doubt, that Strawberry
Worx’s shareholders’
meeting of 24 January 2024 be set
aside.
[45]
On this basis the application fails. Given
my determination that the applicant has failed to show that he has a
prima facie right,
there is no need for me to consider the balance of
the requirements for an interim interdict.
Costs
[46]
This brings
me to
the question of costs.
[47]
The applicant took no further steps in this
matter from 6 February 2024 when the matter
was
struck from the urgent roll until 15 July 2025. The Applicant
launched an application to introduce a further affidavit, the
affidavit itself having been served (not filed) on 15 July 2025. No
such curtesy was afforded to the court. In addition, the applicant
served its heads of argument, together with an application seeking
condonation for the late filing of heads on 15 July 2025. The
application and heads were only filed by uploading to CaseLines on 25
July 2025, less than a court day before the hearing. The
applicant
sought no condonation for the period 15 to 25 July 2025. The only
explanation counsel for the applicant proffered was
that the attorney
of record, Durban based, was “unfamiliar” with CaseLines.
The applicant has a local correspondent
attorney. CaseLines is and
has been the methodology for the filing of all papers in this
division since March 2020. The proffered
explanation is no excuse for
the non-compliance.
[48]
The applicant’s practice note filed
on 25 July 2025 recorded that the matter required
one
day for the hearing. The applicant’s practice note was filed
more than a week after the allocation of the roll. The practice
directive specifies that a special allocation should be sought where
matters require a hearing in excess of 4 hours. Such non-compliance
is suffice for the matter to have been struck from the roll.
[49]
In
addition to the applicant’s failure to comply with the practice
directive of the court, the applicant has attached to its
founding
affidavit various pleadings from other pending
litigation,
without reference to the actual paragraphs or pages of those
pleadings on which he relies. To exacerbate the matter,
the applicant
has pleaded that the content of attached pleadings is “
incorporated
by reference”
,
leaving it to the court to discern what portion of the attached
pleadings are relevant to issues in dispute in this application.
As
stated in the matter of
Swissborough
Diamond Mining v Government of South Africa
:
[10]
“
Regard
being had to the function of affidavits, it is not open to an
applicant or a respondent to merely annexe to its affidavit
documentation and to request the Court to have regard to it. What is
required is the identification of the portions thereof on
which
reliance is placed and an indication of the case which is sought to
be made out on the strength thereof. If this were not
so the essence
of our established practice would be destroyed. A party would not
know what case must be met. See
Lipschitz
and Schwarz NNO v Markowitz
1976
(3) SA 772
(W)
at
775H and
Port
Nolloth Municipality v Xahalisa and Others; Luwalala and Others v
Port Nolloth Municipality
1991
(3) SA 98
(C)
at
111B--
C.
"
[50]
Such failure merits an adverse costs order.
[51]
As a mark of the court’s displeasure,
the applicant is directed to pay the costs of the hearing of this
matter on scale as
between attorney and client.
Order
[52]
I make the following order
1.
The application is dismissed.
2.
The applicant is to pay the costs of the
hearing of the matter on 28 and 29 July 2025 on scale as between
attorney and client, the
balance of the costs of the application on a
party and party scale, costs of counsel on scale C.
DREYER AJ
ACTING JUDGE OF THE
HIGH COURT
JOHANNESBURG
For
the Applicant:
GD
Harpur SC
Instructed
by Boasing & Co
For
the Respondent:
R
du Plessis SC
Instructed
by Pagel Schulenburg
Date
of Hearing: 28 July 2025
Date
of Judgement: 5 December 2025
[1]
Botha v
Fick
[1994] ZASCA 184
;
1995 (2) SA 750
(A) at 778 G-I, applied and confirmed in
Kaps
and Others v Morapedi and Others
2025
JDR 2619 (WCC)
and
Aesthesis
Holdings (Pty) Ltd v Eksteen Administration Holdings (Pty) Ltd and
Others
2025
JDR 0436 (GP)
.
[2]
Botha v
Fick
above n 1 at 778I-J.
[3]
1963 (3) SA 538
(A) at 543 in fine – 544B.
[4]
Botha v
Fick
above n 1 at 779 A-B.
[5]
Airoadexpress
(Pty) Ltd v Chairman, Local Road Transportation Board, Durban
[1986] ZASCA 6
;
1986
(2) SA 663
(A) at 681D – F. The court referenced van der
Linde Institutes 2.1.4.7 cf.
EFF
v Gordhan
2020
(6) SA 325
(CC) at para 47.
[6]
Webster
v Mitchell
1948 (1) SA 1186
(W) at 1189, qualified in
Gool
v Minister of Justice and Another
1955 (2) SA 682
(C) at 688E, and approved in
Simon
NO v Air Operations of Europe AB
[1998] ZASCA 79
;
1999
(1) SA 217
(SCA) at 228G-H.
[7]
At the time of the hearing, the amendment had been granted and the
applicant had pleaded to the amendment. In the amendment,
the
applicant seeks a declaration of rights, that he holds 50% of
Strawberry Worx’s shares.
[8]
CaseLines,
10:
Annexures to Answering Affidavit at 10-56 – 10-72.
[9]
Gilbey
Distillers & Vintners (Pty) Ltd and Others v Morris No and
Another
[1990]
3 All SA 294
(SE) at 225-226;
Gates
Appellant v Gates Respondent
1939
AD 150
at 154-155.
[10]
1997 (2) SA 297
(T) at 324 F-G.