REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
(2)
(3)
REPOR TA BLE: N O
OF INT EREST TO O TH ER JU D GES: N O
RE V ISED : NO "
9 D ecemb er 2025, ___ 7'1 •• ■
D ATE
In the matter between:
MULALO BRIDGETTE NETSHITOMBONI
MASHUDU NETSHITOMBONI
and
REMEMBER SIPHO MAFUYEKA
RENDANITAKALANIMAFUYEKA
RWP CRECHE NPC
Case Num ber: 24398/22
First Applicant
Second A pplicant
First Respondent
Second Respondent
Third Respondent
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AUBREY MAFUYEKA Fourth Respondent
COMPANIES AND INTELLECTUAL PROPERTIES
COMMISSION OF SOUTH AFRICA Fifth Respondent
SPACE SECURITIZATION (RF) (PTY) LTD Sixth Respondent
JUDGMENT
JANSE VAN NIEUWENHUIZEN J
Introduction
[1] The applicants’ claim is based on a settlement agreement concluded between
the first applicant and the first respondent on 29 March 2021. The relief claimed
by the applicants will be dealt with in more detail infra.
[2] The application is opposed by the first to fourth respondents, whom will
collectively be referred to as “the respondents” or as cited.
[3] The respondents brought a counter -application and the relief claimed therein is
also based on the settlement agreement.
Background
[4] The first applicant conducted the business of a crèche on premises leased from
Space Securitisation (RF) (Pty) Ltd (the sixth respondent herein, hereinafter
referred to as the (“landlord”) in terms of a written lease agreement entered into
between the parties on 21 February 20 19. Clause 17.1 provides that the first
applicant may not without the landlord’s prior written permission cede her rights
in terms of the agreement to another party.
[5] Prior to the signing of the lease agreement, t he first applicant had to erect a
building on the premises to run the crèche from. Due to financial constraints the
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first applicant sought an investor and was introduced to a certain Mr Pitso
(“Pitso”). At some stage the relationship between the first applicant and Pitso
soured and they parted ways on the understanding that the first applicant will
refund the money Pitso invested in the creche.
[6] The first applicant was in desperate need of another investor and was introduced
to the first respondent by her pastor. To formalise their business relationship, the
first applicant and first respondent (herein after referred to as “the parties” unless
indicated otherwise) entered into a partnership agreement on 25 September
2017. The “Nature of Partnership” is defined as “the objective of doing business
of a day care centre or early childhood development centre (ECDC) including
everything associated with s uch a nature of business.” The parties each held
50% interests in the partnership and would, according to the written partnership
agreement, share in the profits and losses of the partnership accordingly.
[7] I pause to mention that the crèche was registered as a private company known
as the RWP Day Care Centre on 10 June 2015 and the parties are both directors
of the company. Although the existence of the private company was not dealt
with in the partnership agreement, it appears that the first respondent considered
the private company at that stage as the owner crèche. His statement in this
regard reads as follows:
”It is surprising to think that she can do as she pleases while we are both in partnership
and codirectors in a company that owns the day care.”
and
“When she signed the lease agreement on the 17th of February 2019, we were directors
together in the private company of the crèche. The least she could have done would
have been to sign the lease agreement on behalf of the company of the crèche”
[8] Thus, and although the crèche is owned by the private company, the partnership
is entitled to all the income generated by the crèche. The first respondent
is entitled to all the income generated by the crèche. The first respondent
explained the reason for the forming of the partnership as follows: to “govern our
relationship in the crèche ”. The relationship between the parties was, however,
already regulated as co-directors of the private company that owns the crèche.
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The company is in law entitled to the income generated by the business it owns
and should keep proper record of its earnings for tax and other purposes. The
fact that the business of the crèche is ostensibly conducted by two separate legal
entities is legally untenable.
[9] Notwithstanding the aforementioned anomaly, the parties registered the same
crèche as a third legal entity in December 2020, to wit Non-Profit Company, RWP
Crèche NPC (the third respondent herein, hereinafter the referred to as “NPC”).
The first applicant and first respondent were also directors of this company and
their spouses, the second applicant and the second respondent non -executive
directors.
[10] According to the first responded it was always the intention of the parties that the
NPC would enter into the lease agreement referred to supra. The first respondent
stated that the first applicant misled the landlord into believing that she is the
owner of the crèche whereas the private company was the owner of the crèche
at the time that when the lease agreement was entered into.
[11] The business relationship between the parties run into difficulties when the first
respondent accused the first applicant of misappropriating money belonging to
the crèche. Although the parties, according to the first respondent, agreed that
no cash payments in respect of the monthly fees for children attending the crèche
will be accepted, the first applicant did receive cash payments. The cash was
supposed to be deposited in the bank account of the crèche.
[12] At some stage the first respondent became suspicious as the monthly payments
that were received did not tally with the number of children attending the crèche.
In order to investigate the discrepancy, the first respondent requested class lists
from the teachers and a list of children atten ding the crèche from the first
applicant. The number of children appearing on the class lists were in fact more
applicant. The number of children appearing on the class lists were in fact more
than the number on the first applicant’s list and confirmed the first respondent’s
suspicion that the first applicant was unlawfully taking money from the crèche.
[13] A meeting was arranged for 29 March 2021, during which meeting the first
applicant admitted that she had been taking money from the payments received
from parents to pay for her debts in the amount of approximately R 37 000,00.
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The first applicant apologised for her conduct and was informed by the first
respondent that an apology would not suffice as her conduct amounted to a
breach of the partnership agreement and is a criminal offence.
[14] The first respondent informed the first applicant that he could report the matter
to the police, terminate the partnership agreement and follow disciplinary
procedures to remove her as principal of the crèche as she could no longer be
trusted. In order for the first respondent to reconsider opening a criminal case,
the first applicant could either resign from the crèche before a disciplinary hearing
is convened and/or could refund the money she stole. The first applicant refused
to resign and/or to refund the money.
[15] The first respondent thereupon informed the first applicant that he is terminating
the partnership agreement and that he will lay a criminal charge of fraud against
her. At that stage a certain Ms Shabangu intervened and the first applicant
decided to call Mr Ayo and the second applicant for advice. Subsequent to
discussing the matter with Mr Ayo, the second applicant and a cousin who is an
advocate, the settlement agreement was drafted.
[16] According to the first respondent, t he first applicant discussed the settlement
agreement on various occasions with Mr Ayo, the second applicant and Ms
Shabangu and the agreement was several times amended at her request. It took
three hours to finalise the settlement agreement, and the first applicant only
signed the agreement once she was satisfied with the contents thereof.
[17] The first applicant’s version of the discussion differs somewhat. According to the
first applicant, the first respondent who is a practicing attorney, threatened to
have her arrested on a charge of theft unless she signed the settlement
agreement that forms the subject matter of the dispute between the parties.
[18] Clause 2 of the agreement recorded that the Partnership Agreement between
[18] Clause 2 of the agreement recorded that the Partnership Agreement between
the parties is cancelled and in terms of clause 3, the agreement is intended to
govern the business relationship between the parties at RWP Creche.
[19] Clause 4 recorded that the agreement commenced on 29 March 2021 ”and shall
continue for an indefinite period until termination by notice or under circumstances that
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renders the agreement irrevocably broken down or as hereinafter provided.” (own
emphasis)
[20] Under the heading “THE CAUSE OF THE AGREEMENT” , it was, inter alia,
recorded that the first applicant breached the partnership agreement through
financial misconduct, that she entered into a lease agreement with the landlord
in her personal name and that the settlement between the parties have been
negotiated to save the first applicant from being dismissed and/or legal action
being taken against her.
[21] Clause 11 contains the terms of the agreement. The terms included, inter alia,
that the first applicant is demoted to Deputy Principal of the crèche , that the
partnership agreement is cancelled and that the lease agreement in respect of
the crèche will be ceded to the company. Clause 11.8 dealt with the
consequences of a breach of the agreement by the first applicant.
[22] It appears that the first respondent, after the conclusion of the settlement
agreement, started to conduct the business of the crèche in the name of the
NPC.
[23] Shortly after the signing of the settlement agreement and on 21 March 2021, the
first respondent forwarded the settlement agreement to the landlord and
requested the landlord to cede the lease a greement to the NPC. The landlord
responded on the same day and informed the first respondent in no uncertain
terms that it does not consent to the cession. Mr van der Merwe (“van der
Merwe”) acting on behalf of the landlord made the following remark in respect of
the contents of the settlement agreement: “Your attached settlements content is
extremely concerning as it states Bridgette [first applicant] has been demoted,
yet she is a director of your non -profit company!”. Although the first respondent
alleged that he resolved the matter with van der Merwe there is no documentary
proof that the landlord has changed its stance.
[24] The first applicant felt aggrieved by the terms of the settlement agreement and
[24] The first applicant felt aggrieved by the terms of the settlement agreement and
sought legal advice. On 7 April 2021 A J Masingi Attorneys addressed a letter to
the first respondent informing him that the first applicant gives notice of the
cancellation of the agreement in terms of clause 4. The first respondent was
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further informed that the cancellation of the settlement agreement revives the
partnership agreement and will regulate the business relationship between the
parties.
[25] The first respondent responded on the same day and informed AJ Masingi
Attorneys that the cancellation was not accepted because the first applicant did
not advance reasons for her decision to cancel the agreement. It appears that
the import of clause 4 escaped the first respondent.
[26] The first respondent informed AJ Masingi Attorneys that he has suspended the
first applicant with immediate effect from the crèche until the legal dispute is
resolve.
[27] The first respondent , furthermore, informed the first applicant that a formal
disciplinary investigation will be held against her. The first charge is “GROSS
INSUBORDINATION – in that on the 7 th of April 2021 and on many occasions
before that you have conducted yourself towards me as a director and investor
in the crèche in a subordinate way b y refusing to provide me with your
qualifications when I requested them for the new position you are in…”
[28] It is not clear on what conceivable basis in law one director can act in an
insubordinate manner against the other director. In law co-directors are equal in
status. The first applicant denied the first respondent’s authority to subject her to
disciplinary proceedings and pointed out that a resolution to this effect was not
taken by the directors. In his answering affidavit the first respondent boldly denies
the allegation and, without providing any detail, simply stated that the disciplinary
hearing was “duly constituted” . Notably no resolution to support the first
respondent’s denial is attached to the answering affidavit.
[29] The “Disciplinary hearing” was held on 22 April 2021 and in a letter dated 26
April 2021 the first respondent informed the first applicant that she was dismissed
as an “employee” of the RWP crèche. The first applicant was advised of her right
as an “employee” of the RWP crèche. The first applicant was advised of her right
to approach the CCMA in the event that she deemed her dismissal unfair.
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[30] The first applicant did refer the matter to the CCMA, and the CCMA held that it
“lacks jurisdiction to entertain the dispute as there is no employment relationship
between the parties.”
[31] On 26 April 2021 the first and second respondents in their respective capacities
as director and non-executive director of the NPC, held a purported meeting of
directors and resolved to remove the first and second applicants respectively as
director and non-executive director and to appoint the second respondent as a
director and the fourth respondent as a non -executive director of the NPC. No
notice of the meeting was given to the first and second applicants.
RELIEF CLAIMED BY THE APPLICANTS
[32] Based on the facts set out supra, the applicants claim the following relief:
“1. Reviewing and setting aside a settlement agreement entered into between the
First Applicant and the First Respondent at Bloemfontein on the 29 th March
2021.
2. In the alternative to prayer 1 above, an order in terms of which a settlement
agreement entered into between the First Applicant and the First Respondent
at Bloemfontein on the 29th March 2021 is declared null and void.
3. In the alternative to prayers 1 and 2 above, an order in terms of which the
cancellation of the settlement agreement entered into between the First
Applicant and the First Respondent at Bloemfontein on the 29th March 2021 is
declared lawful and valid.
4. An order in terms of which a partnership agreement entered into between the
First Applicant and the First Respondent on the 25 th September 2017 is
restored and / or reinstated.
5. An order in terms of which a resolution taken on 26 April 2021 by the First and
Second Respondent which removed the Applicants as its Directors of the Third
Respondent is declared unlawful and invalid.
6. An order in terms of which the Applicants removal from the Third Respondent
is declared unlawful and invalid.
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7. An order in terms of which the dismissal of the First Applicant from her
employment is declared unlawful and invalid.
8. An order in terms of which the First to Third (sic!) Respondents are ordered to
reinstate the First Applicant to her position as a Principal of the Third
Respondent retrospectively with all her salaries and benefits.
9. An order in terms of which the First, Second, Fourth and Fifth Respondents are
ordered to restore Applicants’ memberships (sic!) in the Third Respondent
immediate effect and on similar conditions to those of prior their removal.
10. An order in terms of which the Fifth Respondent is ordered to remove / cancel
membership (sic!) of Fourth Respondent from the Third Respondent.”
12. An order in terms of which the Respondents are ordered to pay the costs of
this application.”
Opposition and discussion
[33] In opposing the relief claimed by the applicants, t he respondents raised four
points in limine, but only persisted with two of the points at the hearing of the
matter.
First point in limine: Res Judicata
[34] The first applicant issued a previous application in the urgent court against the
same parties, based on the same cause of action and claiming the same relief.
The application was struck from the roll due to a lack of urgency and was later
on withdrawn by the applicant.
[35] Notwithstanding the withdrawal of the application, the respondents contend that
the present application, in which the same relief on the same cause of action
between the same parties is claimed is res judicata. The point is misconceived.
The first requirement for the successful reliance on res judicata is a final
judgment. [See: African Wanderers Football Club (Pty) Ltd v Wanderers Football
Club 1977 (2) SA 38 (A)]
[36] In casu the respondents did not allege, nor could they prove that a previous
judgment that is final exists. In the premises, the point stands to be dismissed.
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[37] I pause to mention that the respondents endeavoured during address to extent
the point by relying on the settlement agreement as an absolute bar to claiming
the same relief that was settled by the parties. A party is bound by its pleadings
and as the point was not raised in the respondents’ answering affidavit, I do not
propose to deal with the new point.
Second point in limine: Non-compliance with Rule 53
[38] This point is raised in respect of the review relief claimed by the applicants in
prayer 1. In addressing th e point, the respondents did not only rely on the
procedural defect, to wit ; that the notice of motion does not comply with the
procedure prescribed in rule 53 for review applicants but also dealt with the
merits of the relief. I, therefore, deem it prudent to, at this stage, deal with the
merits of the relief claimed in prayer 1.
Review: competent relief
[39] Review proceedings fall within the ambit of administrative law and contracts are
governed by the law of contract. These are two very distinct and different
branches of the law. It is inconceivable that a party to a contract could obtain
relief under the guise of administrative law. The relief claimed in prayer 1 is
legally untenable and stands to be dismissed. In the premises, the provisions of
rule 53 are not applicable to the application and the second point in limine is for
this reason dismissed.
Declaring the settlement null and void
[40] It is common cause between the parties that the first respondent informed the
first applicant that he will report her to the police. It is, furthermore, common
cause that the aforesaid statement led to the signing of the settlement
agreement.
[41] The question is whether the statement amounts to duress or coercion. If so, the
contract may be set aside only if the threat was made unlawfully or contra bones
mores. A threat will be contra bones mores if the person making the threat
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acquires more than he/she is entitled to. [See: Hohne v Super Stone Mining (Pty)
Ltd 2017 (3) SA 45 (SCA)]
[42] Having regard to the admission by the first applicant that she took money from
the crèche for personal gain, I am of the view that the first respondent did not
acquire more than he would have been entitled to if the settlement agreement
was not signed. Consequently, the applicants have not made out a case for an
order declaring the settlement agreement void due to duress.
Declaring the cancellation of settlement agreement lawful and valid
[43] Clause 4 of the settlement agreement clearly and unambiguously gives the
parties the right to cancel the agreement by notice. In Amler’s Precedent of
Pleadings , Harms, 7th edition, the learned author dealt with this aspect at p115,
as follows: “The right to cancel a contract unilaterally in the absence of a breach
depends on the terms of the contract.”
[44] In the result, the applicants are entitled to an order that the settlement agreement
has been lawfully and validly cancelled.
Settlement agreement to be restored and/or reinstated
[45] The applicants’ contend that the cancellation of the agreement entails that the
settlement agreement should be reinstated. The consequences of a cancellation
by notice have been described by Kerr in The Principles of the Law of Contract
6th edition at 703 as follows:
“..a major change in the history of the parties’ contractual relationship has taken place
but certain adjustments may still have to be made between them (the parties). In the
case of cancellation, the major change is that no further performance by either party is
due; obligations to perform in future is terminated, brought to an end, no longer exist;
but rights already accrued, due and enforceable, can be pursued and whatever
adjustments the law allows in respect of the default by one party can be enforced.”
[46] In other words, the period during which the settlement agreement existed is
[46] In other words, the period during which the settlement agreement existed is
recognised, not nullified. The settlement agreement existed from 29 March 2021
until its cancellation by the first applicant by notice on 7 April 2021. Clause 11.5
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records that the partnership agreement is “hereby cancelled” which entails that
the cancellation of the partnership agreement by the settlement agreement
occurred on 29 March 2011. In the result the partnership agreement was already
cancelled when the first applicant cancelled the settlement agreement.
[47] In the result, no legal basis exists to order the restoration or reinstatement of the
partnership agreement and the relief claimed in prayer 4 cannot be granted.
Resolution taken on 26 April 2021 by the first and second respondents be
declared unlawful and invalid
[48] Schedule 1 to the Companies Act, 71 of 2008 contains provisions pertaining to
non-profit companies. In terms of paragraph 5 directors are appointed as follows:
(1) If a non-profit company has members, the Memorandum of Incorporation
must-
(a) set out the basis on which the members choose the directors of a
company; and
(b) if any directors are to be elected by the voting members, provide for
the election each year of at least one-third of those elected directors.
(2) If a non-profit company has no members, the Memorandum of Incorporation
must set out the basis on which directors are to be appointed by its board,
or other persons.”
[49] The parties have failed to attach the company’s Memorandum of Incorporation,
and it is unclear on the papers on what basis the applicants and the first and
second respondents were appointed as directors and non -executive directors.
Insofar as the removal of the first and second applicants as directors are
concerned, section 71 of the Act provides for the procedure to remove a director
of a company.
[50] Section 71(4) is peremptory and provides that a board must prior to considering
a resolution for the removal of a director, give the director:
---
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“(a) notice of the meeting, including a copy of the proposed resolution and a
statement setting out reasons for the resolution, with sufficient specificity to
reasonably permit the director to prepare and present a response; and
(b) a reasonable opportunity to make a presentation, in person or through a
representative, to the meeting before the resolution is put to a vote.”
[51] The allegation by the applicants that they did not receive notice of the meeting of
26 April 2021, is not disputed by the respondents. The failure to comply with the
provisions of section 71(4) renders the meeting and the resolution taken at the
meeting void and the applicants are entitled to a declaratory order to this effect.
Dismissal from employment and reinstatement
[52] The relief claimed in this respect is res judicata. The CCMA via Commissioner
Suria van Wyk had already ruled on this issue on 7 July 2021. The Commissioner
made the following finding in paragraph 39 of the ruling:
“39. Based on the aforementioned, I find that the relationship between the parties
was not that of an employment relationship and therefore the CCMA lacks
jurisdiction to entertain both the matters referred.”
[53] In the result, the relief claimed in prayers 7 and 8 stands to be dismissed.
Restoration of applicant’s memberships in the NPC and cancellation of fourth
respondent’s membership
[54] As stated supra, no documents in respect of the NPC and whether it has
members or not have been made available to court. Furthermore, the applicants
have not averred that they were members of the NPC or that the fourth
respondent is a member of the NPC. in the result, th ere is no factual basis to
grant an order in terms of prayers 9 and 10 and the relief claimed therein is
dismissed.
COUNTER-APPLICATION
[55] The respondents’ claim the following relief in the counterapplication:
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“1. Declaring the settlement agreement between first applicant and first
respondent dated 29th March 2021 valid, lawful and enforceable.
2. Compelling sixth respondent to cede the lease agreement signed between first
applicant and sixth respondent to third respondent on the same terms and
conditions as expressed in clause 11.6 of the settlement without having to
repeat the lease period.”
[56] The court has dealt with the relief claimed in prayer 1 supra and the relief in
prayer 1 stands to be dismissed.
Compelling sixth respondent to cede the lease agreement
[57] None of the respondents are parties to the lease agreement between the first
applicant and the landlord. The principle of privity of contract thus applies which
entails that only parties to a contract may enforce the terms of the contract. [See,
inter alia: Sage Life Ltd v Van der Merwe 2001 (2) SA 166 (W)]
[58] The relief claimed by the respondents is in direct violation of the trite principle of
privity of contract and stands to be dismissed.
Costs
[59] No reason exists to deviate from the principle that the successful party is entitled
to its costs, and such an order will be issued. I am’ however, not prepared to
order the NPC to pay costs. A non -profit company should utilise its income
towards its stated object and not on legal squabbles between its directors. The
applicants and the respondents have in various aspects misconceived the legal
principles applicable t o the relief claimed herein and in the exercise of my
discretion counsels fees are payable on scale A.
Observation
[60] In view of the facts of this matter, I deem it prudent to remind the parties of the
objects and policies of non -profit companies as contained in Schedule 1 to the
Companies Act, more particularly: that the Memorandum of Incorporation must
set out at least one object of the company that must be either a public ben efit
object or another object stated in paragraph (1)(a)(ii); all the assets and income
of the NPC , however derived, must be applied for the advancement of the stated
object and no member or director of the company is entitled to any part of the
nett value of the NPC.
O rder
[16] The follow ing order is granted:
1 . The cancellation of the settlement agreement entered into between the
first applicant and first respondent on 29 March 2021 is declared lawful
and valid.
2. The mee ting held by the first and second respondents, ostensibly as
directors of the third respondent, on 26 April 2021 is declared void and
the resolution taken at the meeting is set aside.
3. The first, second and fourth respondents are ordered to pay the costs of
the application, jointly and severally, the one paying the others to be
absolved. Counsel's fees on scale A.
4. The counterapplication is dismissed.
5. The first, second and fourth respondents are ordered to pay the costs of
the counterapplication, jointly and severally, the one paying the others
to be absolved. Counsel's fees on scale A.
DATE HEARD:
11 September 2025
JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
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DATE DELIVERED:
9 December 2025
December 2025
APPEARANCES
Counsel for the Applicant: Adv MM Aphane
Instructed by: Siebani Attorneys
Counsel for the (1-4) Respondents: Adv LT Leballo
Instructed by: Mafuyeka & Associates
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