REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE Number: 025143/2022
(l) REPORT ABLE: if_S/NO
(2) OF INTEREST TO OTHER JUDGES: YjsJNO
(3) REVISED: YES/t-jf)
2026/r.?y. .:!.-..~ ......... .
In the matters between: -
ANDRIAS PHILLIPPUS RUDOLPH KEMP FIRST APPLICANT
ZEEKOEGAT NR. (PTY) LTD SECOND APPLICANT
And
AS VAN DYK FAMILIE TRUST (PTY) LTD FIRST RESPONDENT
JUSTUS VAN DER BERG N.O. SECOND RESPONDENT
MARIA JOHANNA ELIZABETH VAN DER BERG THIRD RESPONDENT
RE:
AS VAN DYK FAMILIE TRUST (PTY) LTD FIRST APPLICANT
JUSTUS VAN DER BERG N.O. SECOND APPLICANT
MARIA JOHANNA ELIZABETH VAN DER BERG THIRD APPLICANT
AND
ANDRIA$ PHILLIPPUS RUDOLPH KEMP FIRST RESPONDENT
ZEEK OE GA T NR. (PTY) LTD SECOND RESPONDENT
LEAVE TO APPEAL JUDGMENT
BAQWA, J
Introduction
[1] This is an application for leave to appeal against the judgement handed down by
this Court on 7 March 2025.
The Test
[21 The "standard" test to be applied is set out in Section 17(1)(a)(i) of the Supreme
Court Act 1 O of 2013 (the Act), namely, whether there is a reasonable possibility
that another court would find differently from this court.
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[3] An alternative pathway to leave to appeal is set out in Section 17(1 )(a)(ii) of the
Act, namely, whether there are other compelling reasons why leave ought to be
granted.
Prospects of success.
[4] In the MEC of Health, Eastern Cape v Mkhitha and Anothers 1 the SCA said:
"An applicant for leave to appeal must convince the court on proper grounds that
there is a reasonable prospect or a realistic chance of success on appeal. A
mere possibility of success, an arguable case, or one that is not hopeless, is
not enough. There must be a sound, rational basis to conclude that there is a
reasonable prospect of success on appeal."
[5] None of the grounds of appeal raised by the applicant demonstrate any prospect
of success.
Analysis
(6] The first ground of appeal is that although the court correctly found that the
applicants rely on the fact that the first respondent is the only remaining director
of the second respondent and that the applicants seek to compel him to convene
a meeting of shareholders, the court failed to consider the fact that the applicants
changed the directorship irregularly and that annexure "D" to the founding
affidavit reflects seven directors and one alternative director.
, [2016/ZASCA 176(25 November 2016)].
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[7] As demonstrated in the judgement , the evidence shows that there is only one
director of the second respondent and that there are therefore no other directors
to be given notice of the application or to be joined as parties to the application.
[8] In terms of Section 68 of the Companies Act 71 of 2008 (the Act), it provides that
each director of a profit company must be elected by the persons entitled to
exercise voting rights in such election and Section 71 of the Act provides for the
removal of a directors. The allegation by the respondents that the applicants
changed the directorship at CPRO is not sustainable in the circumstances.
[9] The second ground is based on a dispute of the applicants' shareholdings .
[1 O] The dispute arises from the pending litigation between the parties and other
entities.
[11] Based on this ground , it is contended that this court erred in finding that the
respondents are shareholders of the second respondent, whereas all the
shares were sold to the Dries Kemp Family Trust (the Trust).
[12] Whilst it is common cause that some agreement had been entered into between
the applicants, the Trust, and other entities , it is also common cause that such
agreements had not been followed up to finality having been entered into some
1 O years ago. The failure to pursue the said agreements resulted in the shares
never being transferred to the Trust.
[13] In the circumstances , it cannot be validly contended that this court erred in its
finding that the applicants are the lawful shareholders of the second
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respondent.
[14] The fact that there may be pending litigation between some of the parties and
others to enforce those contracts does not deprive the applicants of their
shareholding. Consequently , they remain shareholders with all the rights
afforded them by the relevant legislation.
[15] To argue that pending the enforcement of the contract, the shareholders are no
longer shareholders constitutes an argument or contention that is not valid in
law.
[16] Regarding the nonjoinder of other persons said to be shareholders, this was duly
dealt with in the judgement , in that such persons would not be prejudiced by
the order of the court since notification of the other shareholders is provided for
in the order and that they would be granted an opportunity to vote and exercise
their rights which they had been denied over the years.
[17] The judgement is also firmly based on the fact that the first respondent and the
Justrie Trust are shareholders who hold in aggregate between them no less
than 10% of the voting rights entitled to be exercised in relation to the matters
proposed to be considered at the meetings as envisaged in Section 61 (3)(b) of
the Act.
Conclusion
[18] In the circumstances , no other court would come to a different conclusion.
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Resultantly the appeal would not have any reasonable prospects of success.
Order
[1 9] In the result, I make the following order:
19.1 The application for leave to appeal is dismissed with costs.
Date of hearing: 14 October 2024
Date of judgment: 23 January 2026
Appearance
behalf of the Applicants
Instructed by
On behalf of the Respondents
Instructed by
/)
SELBYBAQWA
JUDGE OF THE HIGH COURT
GAUTENG_DIV SION, PRETORIA
Adv M Snyman SC
smphahlele@law.co. za
Cremer & Strydom Inc
Adv VW.J Gibbs
waynewgibbs@gmail.com
Van Dyk Steenkamp Attorney Inc
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