046028/2024–adj 2 JUDGMENT
2025-09-09
oral, partly written agreement and that the deceased
and the second applicant created rights and
obligations between each other which rights also
affected the first applicant, Route 66.
2. Secondly, declaring that the partly oral partly
written agreement entered into between the deceased
and Mr de Beer, i n respect of the sale of deceased's
50% shareholding in Route 66 and the sale of the
deceased's 100% shareholding in the first respondent
at the Vaal Rugby Organisation (Pty) Ltd, I shall refer
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to it as VRO is a valid agreement as at 26 August 2021
and binding on the deceased's estate.
3. Furthermore, the applicants seek an order declaring
that the rental agreement entered into between Route
66 and VRO in October 2016 was effectively cancelled
as of the 26
th of August 2021.
4. Then the applicants seek an order that this Court
make orders agains t the, the second respondent, who
is the appointed executor in Blomerus senior’s estate
late, to reflect this alleged agreement in the liquidation
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and distribution account.
The applicants seek final relief . Thus, insofar as
there is any dispute of fact, that dispute of fact has to be
resolved on the basis of the facts as alleged by the
respondents together with the facts alleged by the
046028/2024–adj 3 JUDGMENT
2025-09-09
applicants, which are, in fact, admitted by the respondents.
The applicants contend for an agreement reached
by way of WhatsApp messages that passed between
Mr de Beer and the deceased.
It is important to note that it is common cause that
at the time of the conclusion or the negotiation and then the
alleged conclusion of this agreement, the deceased was
unable to speak, his vocal cords having being removed as a
result of cancer.
The inherent probabilities are thus that the only
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real manner for the, in which the deceased could
communicate with anybody was in some form of writing,
whether email, text messages, or even in manuscript
letters.
The applicants contend that the agreement reached
between the parties had the following tacit oral, tacit and
implied terms.
1. That the rental agreement as between Route 66 and
VRO would cease to exist;
2. That any arear rentals owed by Route 66 to VRO
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would be incorporated into the sale price and would
form part of the agreement;
3. That all outstanding utilities and other debt s owed
by VRO would be taken over by Mr de Beer and
Route 66’s liability as the sale encompassed. In other
046028/2024–adj 4 JUDGMENT
2025-09-09
words, Mr de Beer says he would be solely responsible
for the debt of VRO;
4. Further terms included that the deceased would sell
100% of his, of the shareholding in VRO to
Mr de Beer , as well as the deceased's 50%
shareholding in Route 66 would be sold to Mr de Beer ;
5. That the purchase price for both sets of
shareholding would be R4.8 -million;
6. That the sale price would be payable in terms of a
payment schedule attached to the founding affidavit, 10
those are monthly amounts;
7. The effective of the agreement would be the 1 st of
November 20 21 but then according to Mr de Beer , the
deceased requested that the agreement commences
earlier so that the effective of the commencement of
this agreement of sale, would be the 31
st of August
2021; and
8. Then, finally, that simultaneous ly with the transfer
of ownership of the shareholding, a covering bond
would be registered over the immovable property
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owned by the first respondent in favour of the
deceased, that is as security for payment of the
purchase amount. Additionally the two applicants
would be responsible for the costs associated with that
bond.
046028/2024–adj 5 JUDGMENT
2025-09-09
It is evident from the founding affidavit that the
registration of a bond over the property of the, of VRO is an
essential term of the agreement. Only the first and second
respondent opposed this application. The deponent to the
answering affidavit is the son of the deceased, Mr Janus
Blomerus.
There is, the dispute of fact which exist on the
papers can be summarised as follows:
1. Mr Blomerus, the respondents, contend that whilst
they accept that there had been negotiations as
10
between the deceased and Mr de Beer regarding the
sale of the deceased's shareholding in both Route 66
and VRO, no final agreement had, in fact, been
concluded.
2. The respondents also contend that the terms of the
agreement contended for, and that is the, specifically
the registration of a covering bond, is struc k by the
provisions of section 44 of the Companies Act, that is
the new Companies Act. By virtue of section 44 of the
Companies Act w henever a company provides financial
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assistance, whether by way of a loan or guarantee, the
provision of security or otherwise, to any person for
the purpose of, or in connection with the subscription
to any option or any securities issued or to be issued
by the company or for the purchase of securities of the
046028/2024–adj 6 JUDGMENT
2025-09-09
company, unless the memorandum, and it is only if the
memorandum of incorporation allows for such an
agreement , that such security to be given, that a
company may give such financial assistance subject to
the provisions of subsection 3 and 4 of section 44.
3. Prior to financial assistance being given by a
company, the shareholders must pass, amongst others,
a special resolution adopted within the previous two
years which approved such assistance, either for a
specific recipient or generally for a category of
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potential recipients and the board, that is the directors
of such a company, is satisfied that ( a) immediately
after providing the financial assistance, the company
would satisfy the insolvency and liquidity test provided
for in section 4 of the Act and (b) the terms under
which the financial assistance is proposed to be given,
are fair and reasonable to the company.
I am satisfied that that agreement contended for,
relates at least in part, to the acquisition by Mr de Beer of
the deceased's shareholding in VRO and the proposed
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registration of a mortgage bond over the property of VRO,
constitutes financial assistance. In this , the C ourt is guided
by the judgment in Karoo Auctions (Pty) Ltd v Hersman
1951 (2) SA 33, a judgment of the full bench comprising of
Reynolds and Sampson J . The Co urt found that the passing
046028/2024–adj 7 JUDGMENT
2025-09-09
of a bond over assets was financial assistance.
By virtue of subsection (5) of section 44 of the
Companies Act:
“A decision of a board of a company to
provide financial assistance, contemplated
in subsection (2) or an agreement with
respect to the provision of any assistance,
is void to the extent that the provision of
that assistance would be inconsistent with
(a) this section or (b) a prohibition
10
condition or requirement contemplated in
subsection (4). ”
On the papers before me, Mr Kelly , acting for the
applicants , were constrained to concede that no solvency
and liquidity test had been performed by the board, which,
at the time, comprised of the deceased.
In his heads of argument filed on behalf of the
applicant, Mr Kelly sought to convince the Court that given
that the deceased was the sole shareholder at the time in
VRO, the non -compliance regarding the special resolution
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to be passed ought to be excused on the basis of there
clearly having been mutual assent, that is the shareholder
being fully aware.
The applicants cannot succeed in the relief they
seek on at least two bases. Given the factual disputes on
046028/2024–adj 8 JUDGMENT
2025-09-09
the papers, I am not convinced and/or satisfied that the
WhatsApp messages, copies of which are attached to the
founding affidavit, evidence each of the terms contended
for.
On the respondents’ version, a meeting was to have
been held, at the very least on 25 November 2021, when
Mr Blomerus junior , the deponent, arrived at the deceased's
home to find Mr de Beer and his girlfriend trying to have the
deceased sign documents but Mr de Beer also telling Mr
Blomerus that the attorney, Mr Jimmy de Kock, the
10
applicant’s attorney of record, was on his way for a
meeting.
The applicants, in the boldest of fashions, in reply,
simply deny these allegations. The inherent probabilities of
the respondents’ version demonstrate that:
1. Some form of documentary evidence must have
existed regarding the terms proposed and contended
for by the applicant. It is also clear that some or
consultation were to be scheduled between the
deceased, Mr de Beer , and Mr de Kock. That
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consultation, apparently, never occurred.
2. The oral agreement cannot be regarded as a valid
agreement for at least two reasons:
a) There was non -compliance with the requirements
of section 44(3) and by virtue of subsection (5)
046028/2024–adj 9 JUDGMENT
2025-09-09
the agreement is void.
b) Further , insofar as the registration of a mortgage
bond or a covering bond was by all accounts an
essential term of the agreement. The
incumbrance of the immovable property of VRO
by way of a bond, constitutes an incumbrance of
land which, to my mind, requires the agreement
to be in writing, failing which, the agreement is
void.
Mr Gibson , on behalf of the respondents, argued
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and sought to demonstrate, and manage to demonstrate that
his clients, even prior to the institution of this application,
upon receipt of a draft version of the founding affidavit,
warned the applicants and their attorney of the dispute of
fact, a denial of the agreement contended for, demonstrated
that the applicants, despite invitations by the executrix to
do so, failed to provide documentation to support a claim
against the deceased's estate and, in fact, waited some two
years after the appointment of the executrix to launch these
proceedings.
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The respondents contend that the applicants ought
to bear of the costs of a dismissal of the main application
on a punitive scale. I am not inclined to accede to that
request but different considerations apply in relation to the
counter -application.
046028/2024–adj 10 JUDGMENT
2025-09-09
In the counter -application the first respondent,
VRO, seeks a declarator that the lease agreement remains
valid and that the first applicant in the main application,
remains bound by the , those terms of the lease agreement.
I can find nothing on these affidavits,
demonstrating a valid cancellation of the lease agreement
as contended for by the applicants. The lease agreement,
as one normally finds in agreements of this nature, contains
a non -variation clause. T hat is where the parties to that
agreement, Route 66 and VRO, had agreed that the only
10
manner in which the lease agreement could be varied or
even cancelled, was by way of it being recorded in writing,
signed by all parties or on behalf of all parties.
According I find that the lease agreement
concluded between the first applicant and the first
respondent remains valid and binding.
In relation to the counter -application, the lease
agreement contains a clause, entitling the landlord to
punitive costs in the event of litigation.
In the result, I grant an order in the following terms:
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1. The main application is dismissed with costs,
including the costs of counsel on scale C.
2. The counter -application is granted in that:
2.1 The lease agreement concluded between the first
applicant and the first respondent on 13 October