REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
NORTHWEST DIVISION, MAHIKENG
Case No:2025-232971
In the matter between:
THOMAS ALWYN KOEKEMOER Applicant
and
TERS & TOM TRADING (PTY) LTD First Respondent
TERTIUS NORTJE
PHILLIP NORTJE
Second Respondent
Third Respondent
Coram: Mfenyana J
This judgment was handed down electronically by circulation to the parties’
representatives by email. The date of handing down of the judgment is deemed to
be 26 January 2026.
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
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ORDER
(a) The requirements of the Rules relating to forms, service and
timeframes are dispensed with, and the matter is dealt with as one of
urgency.
(b) The respondents are ordered not to interfere in any manner
whatsoever in the applicant’s right to execute his rights and
responsibilities as a director and shareholder of the first respondent.
(c) The respondents are ordered and directed not to forbid the applicant
in any manner whatsoever, from entering, using or occupying the office
in the Spar Building, which he used and occupied prior to 18 November
2025.
(d) The respondents are ordered and directed not to remove or cause to
be removed any movable items from the said office, without the written
consent of the applicant.
(e) The respondents are ordered and directed not to withhold or cause to
be withheld, reduce or cause to be reduced any payments, salaries,
emoluments or benefits due to the applicant by virtue of his position as
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a director and shareholder of the first respondent without the written
consent of the applicant.
(f) The first respondent is ordered to effect payment to the applicant of
any amounts in respect of salaries, emoluments or benefits to the
applicant in his capacity as a director and shareholder of the first
respondent, which the applicant received, whether directly or by debit
order prior to 18 November 2025, and which were terminated by or on
behalf of the first respondent after 18 November 2025 without the
written consent of the applicant, and without a company resolution as
prescribed by section 71 of the Companies Act, within five days of this
order. Such payments shall be made to the applicant, alternatively to
the entity/ies to which such payments were made before their
termination.
(g) The orders in paragraphs b) to f) shall operate as interim relief and with
immediate effect pending the determination of Part B and any steps to
be taken by the applicant within 60 days of this order against the
respondents, setting aside the findings by Commissioner S. van Wyk
against the applicant.
(h) The first and second respondents are ordered to pay the costs of Part
A of the application on a party and party scale, including costs of
counsel on scale C.
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JUDGMENT
Mfenyana J:
[2] The applicant brought an urgent application for relief in two parts. In Part
A, the applicant seeks interim relief that he be declared a director and the
holder of a 49% shareholding in the first respondent (the company). He
further seeks several orders interdicting the respondents from interfering
with his rights in executing his duties and responsibilities as a shareholder
and director of TERS; from entering, using or occupying the office in the
Spar building, Christiana, which he occupied prior to 18 November 2025.
He further seeks an order interdicting the respondents from removing, or
causing the removal of, any movable items from the said office without his
written consent. Lastly, the applicant seeks an order interdicting the
respondents from withholding or reducing any payments, salaries,
emoluments, or benefits due to him, in his capacity as a director,
shareholder, or employee of the company, without his written consent.
[3] The relief in Part A would operate as interim relief pending the outcome of
the final relief sought by the applicant in Part B.
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[4] The second respondent, in his personal capacity, opposes the application,
while the first and third respondents do not.
[5] The applicant avers that he was invited by the second respondent to join
the company as a director and shareholder. Upon joining, he became
responsible for the financial management (as Chief Financial Officer) of
the company, while the applicant was responsible for general
management.
[6] The second respondent, allegedly acting on behalf of the company,
instituted disciplinary proceedings against the applicant . The disciplinary
hearing culminated in the summary dismissal of the applicant as an
employee of the company. All payments to the applicant were thereafter
discontinued. The letter of dismissal specifically records that the
applicant’s positions as shareholder and director of the company are not
implicated.
[7] The applicant contends that he and the second respondent are, in addition
to being directors and shareholders of the company, employees of the
same company. He further contends that “… the fairness of the disciplinary
proceedings and of the subsequent dismissal and termination of
payments” to him are matters regulated by labour law.“
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[8] The applicant challenges the authority of the second respondent to
terminate his services and payments as a director of the company without
a resolution by the first respondent. The removal of directors is sanctioned
by two provisions of the Companies Act, and in both instances, a resolution
should be adopted either by the shareholders or the board of directors.
[9] Although the dismissal of an employee does not require board approval
and can be effected as part of managerial responsibilities, the second
respondent was not accorded any managerial responsibilities. Relying on
Waterfront1, the applicant argues that where a party’s employment (or
payments) has been terminated without proper authority, such termination
is unlawful and the appropriate remedy is an interdict.
[10] The applicant avers that, as there is no written contract of employment, he
is not under the control or supervision of the second respondent and that
he occupies the position of a director rather than that of an employee.
[11] The applicant was dismissed on 18 November 2025 and notified of the
outcome on the same day. He states that he was unable to institute court
proceedings immediately, due to a lack of funds and only managed to
depose to an affidavit , eight business days after 18 November 2025. To
1 V & A Waterfront properties (Pty) Ltd and Another v Helicopter & Marine Services (Pty) Ltd and
Others 2006 (1) SA 252 (SCA).
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this end, he contends that there is no basis to contend that urgency is self-
created.
[12] He further contends that both he and his wife are suffering from chronic
illnesses and are on chronic medication, and if the unlawful conduct of the
first respondent is not arrested, he will not obtain substantial relief in due
course.
[13] The second respondent contends that the applicant has failed to
demonstrate that he would suffer irreparable harm or that he would not be
afforded substantial redress in due course. He argues that the applicant,
furthermore, has an alternative remedy which is being pursued at the
CCMA.
[14] The respondent disputes that the applicant approached the court at the
earliest opportunity, noting that the applicant was aware of the impending
disciplinary action, which he had threatened to interdict. Accordingly, the
respondent contends that the applicant should not have waited until his
salary was discontinued before launching the proceedings.
[15] Urgent applications are governed by Rule 6(12), which requires an
applicant to demonstrate that the matter warrants the attention of the
urgent court and that urgency is not self-created. The applicant must also
show that he will not obtain substantial redress at a hearing in due course.
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[16] I am persuaded that urgency was not self-created, and the delay was not
inordinate and sufficiently explained by the applicant. It is not difficult to
understand that once payments to him were discontinued by the company,
it was nearly impossible for him to undertake any financial decisions,
including prosecuting this application . His chronic, undisputed illness
clearly requires treatment, and no substantial redress could be obtained in
due course. As such, he will not obtain substantial redress in the ordinary
course. Urgency has therefore been established.
[17] The applicant contends that he has satisfied the requirements for an
interim interdict. First, he has no alternative remedy and cannot obtain
comparable and effective relief other than through the granting of an
interdict.
[18] He further contends that the balance of convenience favours him. He is the
director and shareholder, and currently has no income. Both he and his
wife are in need of medical aid.
[19] Concerning a prima facie right, he contends that he is entitled to exercise
his rights as a director and shareholder of the company, and that this
entitlement is under threat. He further states that this situation is likely to
persist for a considerable period if the interim interdict is not granted.
[20] The second respondent contends that he is acting in his personal capacity
“(t)o protect the interests of the company. In view of the applicant’s
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conduct, waiting for the board meeting will not provide the required
outcome.
[21] The second respondent concedes that the applicant is a director and a
shareholder of the company. Consequently, the relief for a declaratory
order is incompetent in the absence of a dispute between the parties.
[22] The second respondent submits that the applicant has not provided details
of the duties he is allegedly performing to justify his uninterrupted visits to
the premises, particularly as he had not been there for months before June
2025.
[23] He contends that the applicant has referred the dispute regarding the
payment of his remuneration to the CCMA, which is an effective alternative
remedy available to the applicant. He will therefore be able to obtain
substantial redress in due course, he adds.
[24] The second respondent raises the following points in limine: The first is
that this court lacks jurisdiction in that the dispute between the parties,
being a labour dispute, is serving before the CCMA, which has exclusive
jurisdiction over the dispute between the parties. Although the issue of lack
of jurisdiction is not canvassed in the answering affidavit, the respondent
contends that the court seized with this matter may mero motu decide the
issue.
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[25] Reference was made to Communication Workers Union v Telkom SA Ltd2,
where the court held that where it is apparent from the facts that the court
has no jurisdiction, the court may still determine that issue even though it
was not canvassed elsewhere in the affidavit.
[26] This point in limine is misplaced. The dispute between the parties relates
to the applicant as a director and shareholder. Nothing further need be said
in this regard.
[27] [27] Regarding the requirements for an interdict, the second respondent
avers that the applicant has failed to demonstrate a basis for his
entitlement to a salary in his capacity as a director of the company. Here,
I interpose to point out that the applica nt was dismissed as an employee
of the company and not as a director. It is trite that the process for the
removal of a director must follow the stipulations of section 71(1) and (3)
of the Companies Act
3.
[28] There is no suggestion that this process was ever implemented. Ironically,
the second respondent references these peremptory provisions of the
Companies Act to impugn the applicant’s contention that the second
respondent lacked authority of the second respondent to act on behalf of
the company.
2 Communication workers Union v Telkom SA Ltd 1999 (2) SA 586 (T); 1999(2) All SA 113 (T).
3 Act 71 of 2008.
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[29] The fact that the matter is pending in the CCMA, the second respondent,
continues, proves that the applicant has alternative relief and would obtain
substantial redress in due course. He contends that the applicant was
dismissed from his position as the general manager of the company, and
cannot seek that the company continue to pay his remuneration as he does
in this application. He further avers that the applicant does not have a prima
facie right to remuneration as a director and provides no details of his
duties as a director.
[30] Concerning the balance of convenience, the applicant contends that the
court may weigh up the prejudice to be suffered by both parties. The
question of prospects of success plays a vital role in assessing the balance
of convenience. Where the prospects of success in the main application
are stronger, the less the need for the balance of convenience to favour
the applicant.
[31] It is worth reiterating that the applicant’s status as a director and
shareholder of the company is not implicated by his dismissal as an
employee.
[33] The first respondent does not oppose the application, and the second
respondent confirms that he is not acting on the first respondent’s behalf.
Accordingly, the orders sought against the first respondent will be
adjudicated as unopposed.
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[32] It is settled law that an applicant for an interim interdict must establish a
prima facie right, if open to some doubt. 4 Although the applicant initially
admitted being an employee of the company, together with the second
respondent, he later turned around and stated that he assumed that
because there was no written contract of employment between himself and
the company, he was not an employee. Both parties, however, accept that
the issue of the termination of the employment relationship is before the
CCMA and should therefore not detain this court.
[33] The second respondent stated that the status of the applicant as a director
and shareholder was not implicated by his dismissal, and to this end, there
is no dispute which requires the court to grant the relief sought in paragraph
1 of the notice motion, declaring the applicant a director and a shareholder
of the company. What may require confirmation is that he is a holder of
49% shares of the first respondent.
[34] The remaining issue is whether the applicant is entitled to any payments,
salaries, emoluments, or benefits as a director. Salaries and other
emoluments constitute the remuneration an employer pays an employee
for services rendered, including any allowances to directors and non-cash
benefits.
4 Setlogelo v Setlogelo 1914 AD 221; see also: Webster v Mitchell 1948 (1) SA 1186 (W).
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[35] As a director, the applicant may be entitled to payments and benefits. The
applicant has demonstrated, based on the Annual Financial Statements
(albeit only in the replying affidavit), that in the 2025 financial year, he
received R1.3 million, which equates to R113 000.00 per month. While the
applicant refers in his replying affidavit to a payslip, he failed to attach it,
and, as a result, it is not clear what portion of the annual compensation
constituted the salary he was receiving . The applicant has not specified
the portion of the payment he seeks from the first respondent. He has,
however, established a prima facie right to payment; the only uncertainty
concerns the exact amount to be ordered. It follows, therefore, that the
applicant’s claim insofar as it pertains to payments he ordinarily received
as evidenced by the annual financial statements, as well as his medical aid
benefit, should be sustained.
[36] The fact that payments and benefits were discontinued indicates that he is
suffering harm, which is not only imminent but continuing. Save for stating
that the applicant received payments and benefits by virtue of being an
employee, the second respondent provides no further explanation for the
termination of the payments and benefits to the applicant as a director.
The applicant contends that his medical condition requires chronic
medication without which the harm would be permanent and cannot be
mitigated by a damages claim. Though the details of his responsibilities as
a director have not been identified, these are matters which ought to fall
within the knowledge of both the applicant and the second respondent, as
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directors of their company; alternatively, they are easily ascertainable. In
this regard, the balance of convenience favours the applicant.
[37] The applicant has demonstrated that he is a director and shareholder of
the first respondent, which is admitted by the second respondent. His
duties and responsibilities should not be interfered with. It has not been
disputed that before 18 November 2025, the applicant occupied the office
in the Spar Building, Christiana. It is also no dispute that there are movable
items in his office, though not specified. The parties are also in agreement
that the applicant is a director and a holder of 49% shareholding of the first
respondent.
Costs
[38] It is trite that costs follow the result. Although the applicant has sought
costs on an attorney and client scale, I am not persuaded that the
opposition by the second respondent was vexatious, more particularly as
the applicant did not readily locate his dispute as a director but also as an
employee, which latter dispute is serving before the CCMA. Although the
first respondent did not oppose the application, I am of the view that costs
should nonetheless be awarded against it. This is because it was the first
respondent who terminated payments to the applicant, thereby
precipitating this application. It was the first respondent’s conduct, through
the actions of the second respondent, which necessitated the present
litigation.
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Order
[39] I therefore make the following order:
(a) The requirements of the Rules relating to forms, service and
timeframes are dispensed with, and the matter is dealt with as one of
urgency.
(b) The respondents are ordered not to interfere in any manner
whatsoever in the applicant’s right to execute his rights and
responsibilities as a director and shareholder of the first respondent.
(c) The respondents are ordered and directed not to forbid the applicant
in any manner whatsoever, from entering, using or occupying the office
in the Spar Building, which he used and occupied prior to 18 November
2025.
(d) The respondents are ordered and directed not to remove or cause to
be removed any movable items from the said office, without the written
consent of the applicant.
(e) The respondents are ordered and directed not to withhold or cause to
be withheld, reduce or cause to be reduced any payments, salaries,
emoluments or benefits due to the applicant by virtue of his position as
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a director and shareholder of the first respondent without the written
consent of the applicant.
(f) The first respondent is ordered to effect payment to the applicant of
any amounts in respect of salaries, emoluments or benefits to the
applicant in his capacity as a director and shareholder of the first
respondent, which the applicant received, whether directly or by debit
order prior to 18 November 2025, and which were terminated by or on
behalf of the first respondent after 18 November 2025 without the
written consent of the applicant, and without a company resolution as
prescribed by section 71 of the Companies Act, within five days of this
order. Such payments shall be made to the applicant, alternatively to
the entity/ies to which such payments were made before their
termination.
(g) The orders in paragraphs b) to f) shall operate as interim relief and with
immediate effect pending the determination of Part B and any steps to
be taken by the applicant within 60 days of this order against the
respondents, setting aside the findings by Commissioner S. van Wyk
against the applicant.
(h) The first and second respondents are ordered to pay the costs of Part
A of the application on a party and party scale, including costs of
counsel on scale C.
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S MFENYANA
Judge of the High Court
Northwest Division, Mahikeng
-
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Appearances:
For the applicant:
Counsel: J.H.F Pistor SC
Instructed by: Lourens Bezuidenhout Inc.
c/o Maree & Maree Attorneys Inc.
For the second respondent:
Counsel: A.G van Tonder
Instructed by: van de Wall Inc.
c/o van Rooyen Tlhapi Wessels Inc.
Date of hearing: 12 December 2025
Date of judgment: 26 January 2026