Core Logistix (Pty) Ltd v Rooks (8239/2018) [2026] ZAGPJHC 199 (16 February 2026)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

CASE Number: 8239 / 2018
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
16 February 2026

In the matter between:-
CORE LOGISTIX (PTY) LTD Plaintiff
and
FRANCES SUSAN ROOKS Defendant
Summary:
Postponement – principles considered – good cause for postponement must be
shown – defendant failing to show good cause – postponement application
stratagem to avoid trial – defendant failing to make timeous application for
postponement – postponement refused
Mediation Protocol – objectives considered – Protocol not intended to secure
postponement – postponement on the basis of Protocol refused
Fiduciary dutie s – nature of duties and principles considered – defendant as
director and employee having duty of good faith and trust towards plaintiff –

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defendant conducting herself in breach of fiduciary duty – plaintiff suffering prejudice
– defendant liable towards plaintiff
Companies Act – s 75(6) and s 76 considered – statutory duty of good faith and
trust on director – external financial interests by director and related person
prohibited without full disclosure – breach of such duties renders director liable –
defendant liable under these provisions.
Companies Act – s 162(5)(c) considered – declaring director delinquent – Serious
misconduct required – breach of fiduciary duties, particular duty of trust, fraudulent /
unlawful transactions and serving personal interests constituting egregious
misconduct – defendant declared to be delinquent director
Claims for damages – plaintiff proving defendant liable to pay plaintiff damages for
breach of trust, breach of fiduciary duties and / or fraudulent unlawful transactions –
judgment given against defendant
Counterclaims – defendant failing to prove counterclaims – claims not competent
and not supported by evidence – counterclaims dismissed

JUDGMENT


SNYMAN, AJ
Introduction

[1] What in my view is sadly lacking in the commercial world of today is the lack
of integrity. Especially where it comes to senior members of management in
the corporate environment, integrity should form the cornerstone of all
transactions embarked upon by such persons. But unfortunately, the meaning
of integrity seems to have been lost. So, and as a point is departure in this
matter, it is perhaps appropriate to establish what it means.

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[2] A number of apposite sayings identify what is meant by ‘integrity’, in the
specific context of the case in casu . First, ‘ integrity gives you real freedom
because you have nothing to fear since you have nothing to hide ’. And
importantly, ‘ integrity is not something you show others, but it is how you
behave behind their back’ . In a similar vein, Oprah Winfrey said that ‘integrity
is doing the right thing knowing that nobody knows whether you did it or no t’.
In finally tying it all together, John D Rockefeller expressed the view that: ‘ I
believe that every right implies a responsibility, every opportunity an
obligation, every possession a duty ’. These anecdotes should inform all
senior management members in any business on how to conduct themselves,
lest situations like the one in casu, arises.

[3] The above being said in introduction, I turn t o the case at hand. The plaintiff
issued summons against the defendant on 28 February 2018. This summons
was preceded by substantial earlier litigation between the parties, which I will
deal with later in this judgment. Following an amendment of the plaintiff’s
particulars of claim on 27 May 2 021, the plaintiff ultimately postulated a
number of individual claims against the defendant. Generally said, t hese
claims arise from a breach by the defendant of her fiduciary duties with
plaintiff as well as several unlawful transactions and serious misconduct
perpetrated by her . The plaintiff also seeks an order that the defendant be
declared a delinquent director in terms of the Companies Act 1. All of the
plaintiff’s claims have been defended by the defendant.

[4] The defendant has also brought a number of counterclaims in an amended
plea and counterclaim filed on 24 November 2022 . These counterclaims
relate to the defendant claiming the following sums: (1) R2 534 666.40 as
purchase price for her shares in the plaintiff; (2) R630 350.35 in respect of her
pension benefits ; (3) R2 674 275.60 for past loss of earnings; and (4)

pension benefits ; (3) R2 674 275.60 for past loss of earnings; and (4)
R1 000 000.00 for defamation. In turn, the plaintiff has opposed these claims.

[5] This matter came before me for trial on 11 August 20 25, and continued for
that entire week. The plaintiff was represented by Advocate J Kaplan, and the

1 Act 71 of 2008 (as amended).

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defendant represented herself. At the commencement of the tr ial, the
defendant sought a postponement of the trial, which I refused to grant, for the
reasons dealt with below. At the conclusion of the trial, t he plaintiff presented
oral closing argument, however the defendant indicated she was not ready to
present oral closing argument. I then afforded the defendant until 5
September 2025 to submit written closing argument, which she then did only
on 7 September 2025. The plaintiff submitted written argument in reply on 19
September 2025.

[6] As the proceedings have concluded, I now turn to deciding the parties’
respective claims, first by setting out the relevant background facts . These
backgrounds facts have been ascertained from substantial documentary
evidence, which included a judgment by Keightly J on 11 July 2018 , in earlier
litigation between the same parties . Secondly, there was the testimony of six
witnesses for the plaintiff, as well as the testimony by the defendant herself,
and one witness who testified on her behalf. But before I get to the
background facts, the defendant’s postponement application must be dealt
with.

[7] For ease of reference in this judgment, I will refer to the plaintiff as ‘ Core’ and
the defendant as ‘Rooks’, throughout.

The postponement application

[8] This matter has quite some history . It all started with an urgent application
brought by Core on 23 June 2017 under case number 22449 / 17 to enforce a
restraint of trade and confidentiality undertaking against inter alia Rooks. An
interim order was granted on 18 July 2017, affording Core the relief sought.
What followed was an extensive exchange of affidavits between the parties ,
and the matter finally came before Keightly J, with the learned Judge, by way
of a comprehensive written judgment handed down on 11 July 2018, found
against Rooks. Some findings in this judgment are significant to this matter,

against Rooks. Some findings in this judgment are significant to this matter,
and will be dealt with later in this judgment . Rooks then sought to challenge
this judgment on appeal, ultimately by way of a petition for leave to appeal to

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the Supreme Court of appeal (SCA), when leave to appeal was refused by
Keightly J. The petition to the SCA was also not successful. The judgment by
Keightly J thus stands.

[9] Whilst the aforesaid proceedings were ongoing, the current action
proceedings were instituted, and continued in the normal course. In the end,
the matter was set down for trial on 21 November 2022. On 18 November
2022, Rooks, as represented by HJW Attorneys at the time, brought a
substantive application that the trial be postponed sine die, in order for Rooks
to amend her plea, in terms of a notice of intention to amend only filed earlier
that same month. This postponement application was opposed by Core.

[10] In support of the postponement application, Rooks sought to rely on an
alleged lack of funds, which according to her resulted from unlawful conduct
of Core towards her. This lack of funds allegedly caused her to be unable to
properly instruct her attorneys in filing a plea, and when dealing with further
process filed by Core where it was asking for further particulars. She stated
that she was not aware that she could amend her earlier plea , because her
attorneys had withdrawn when Core convened pretrial proceedings, in which
proceedings it became apparent that the deficiencies of the plea was an
issue. Rooks also contended that she was unrepresented since November
2019 when her attorneys withdrew and was still unrepresented when Core
sought to amend its particulars of claim in March 2021. Rooks then did seek
to amend her plea later in 2021, however her next attorney then also withdraw
in January 2022 due to a lack of funds. New attorneys were appointed on 21
June 2022 , however a lack of funds continued to plague their ability to
properly assist her . At the end of August 2022, Rooks’s attorneys were in
position to properly advise her and then advised her that a substantive
amendment to her plea, and the proper formulation of a counterclaim, was

amendment to her plea, and the proper formulation of a counterclaim, was
required. It is all the aforesaid that then led to the postponement application.

[11] Ultimately, the trial did not proceed on 21 November 2022, as it was inter alia
agreed, on that date, that the trail be postponed sine die and that Rooks
would deliver her amended plea and counterclaim by 24 November 2022. The

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reason why reference need s to be made to why Rooks requested a
postponement at this time , as summarized above, will become apparent
below.

[12] Ultimately, and after further legal process was exchanged between the parties
in the course of 2023, Core, by way of notice given on 3 June 2024, set the
matter down for trial on 11 August 2025. On 31 March 2025, Core’s attorneys
wrote to Rooks’s attorneys, referring to the matter being set down for trial on
11 August 2025, and requesting that a further pre-trial be conducted between
the parties to ensure that the trial proceed s. On 4 April 2025, Rooks’s
attorneys indicated that they would take instructions and revert. However, and
on 10 April 2025, Rooks’s attorneys withdrew as attorneys of record. Clearly
anticipating the same possible action of Rooks then seeking a postponement
of the upcoming trial, Core acted proactively to ensure that the trial proceeds.

[13] In a letter by Core’s attorneys to Rooks’s attorneys on 16 April 2025, in which
it was inter alia indicated that the notice of withdrawal on 10 April 2025 was
defective, Core’s attorneys specifically pointed out that the mandate of the
Rooks’s attorneys has been terminated by her so as to scupper the pre -trial
proceedings. Reference was made to the two previous attorneys that
withdrew in 2019 and in 2022 in similar circumstances, when action was
required to bring the matter to trial. Rooks was accused of engaging in
delaying tactics. Also on 16 April 2025, Core’s attorneys sent a letter directly
to Rooks herself, calling upon her to attend a pre -trial conference and to
discover the documents listed in her discovery affidavit.

[14] On 24 April 2025, Rooks answered that she was unable to attend a pretrial,
because she was without ‘council’ (sic) , and she would respond once she
finds such ‘council’. When Core’s attorneys heard n othing f rom Rooks for
about a month, a further letter was sent to Rooks on 6 June 2025, indicating

about a month, a further letter was sent to Rooks on 6 June 2025, indicating
that she by then had six weeks to find alternative representation, which was
more than enough time considering the looming trial date, and that she was
‘plainly’ obstructing the process. Again, Rooks responded on 6 June 2025 that

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she was ‘sorting out’ the problem with regard to her representation and that
she would respond by 25 June 2025.

[15] Clearly not trusting Rooks’s bona fides , Core’s attorneys on 11 Ju ne 2025
requested the Registrar to convene a pre-trial in terms of Rule 37(3)(b) of the
Uniform Rules. The Registrar then indeed convened a pre -trial to be held
virtually on 23 June 2025 , by way of notice to the parties on 11 June 2025.
Rooks answered that she would ‘ disadvantage’’ herself by attending the pre -
trial without representation, which representation she only expected to secure
by 25 June 2025. The Registrar then moved the pre-trial to 30 June 2025.

[16] On 26 June 2025, Rooks then made her true intentions clear. In an e-mail to
the Registrar and Core’s attorneys, she stated that she does not have legal
representation, and was not willing to continue with the matter without legal
representation. She stated that her mother was ill and bedridden, a nd she
could not leave he r mother unattended, as her mother was not capable of
helping herself. She even contended that as far as she was concerned the
matter was not ready for trial, as she wanted ‘further discovery’ to happen .
She also contended that formal mediation was required before the matter
could proceed to trial. She requested a postponement of the matter coupled
with a demand for mediation.

[17] On 30 June 2025, Core’s attorneys sent a comprehensive response to Rooks,
setting out all the preceding events referred to above. It was stated that the
conduct of Rooks was ‘plainly obstructive’ and aimed at delaying the
commencement of the trial. It was also stated that mediation was not required
before trial in this matter. Core’s attorneys indicated that the matter would
proceed to trial, despite Rook’s failure to co-operate. Rooks replied the same
day, reiterating that she was not willing to proceed without legal
representation and that the matter was not ready for trial because ‘my

representation and that the matter was not ready for trial because ‘my
questions or requests were not answered honestly or relevant material
provided’.

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[18] The next action by Core’s attorneys was on 16 Jul y 2025, when they
requested Rooks to participate in the drawing up of a joint practice note ,
which had to be submitted at least seven days prior to trial. Rooks was
provided with a draft of a joint practice note to consider , and to provide her
comments to. It was recorded that if Rooks did not participate in this, the
practice note would be submitted as is, with a covering note to the Registrar.
A response was forthcoming from Rooks on the same day, and once again, in
the same terms as before. She yet again indicated she was not willing to
proceed without a legal representative, that the matter was not ready to
proceed to trial , she had to attend to a pending criminal case against her
brought by the plaintiff, that her mother required constant care, and that she
wanted ‘more discovery’ and mediation.

[19] Core’s attorneys replied on 17 July 2025. It was pointed out that Core’s
attorneys had no knowledge of documents requested, nor of questions that
remained unanswered. It was pointed out that the insistence on mediation
was incorrect. Rooks was referred to her continuous attempts to obstruct the
pre-trial proceedings, and so prevent the trial from proceeding. This solicited a
reply from Rooks on 18 July 2025 repeating what she had already said. She
however now added that she does not have money as a ‘civil case is all about
money’. She indicated that she would present her case in this regard ‘to the
judge’. Rooks even went so far, in an e -mail on 22 July 2025, of intimating
that the Core’s attorneys had perpetrated some impropriety in obtaining trail
dates ‘quickly’, despite this matter having been set down as far back as June
2024. The response by Core’s attorneys came on 23 July 2025, simply
repeating part of what has already been said, above , which need not be
repeated.

[20] On 23 July 2025, Rooks sent an e-mail to Core’s attorneys indicating that she

[20] On 23 July 2025, Rooks sent an e-mail to Core’s attorneys indicating that she
‘stood firm’ in her position that the matter was not ready for trial. She
reiterated her earlier view as to why this was purportedly the case. She stated
that she would appear at Court when the matter is set down to convey this to
the presiding Judge. On 25 July 2025, Core’s attorneys sent an e -mail t o
Rooks indicating that since she refused to provide comment s to the joint

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practice note, it will be filed as is , together with the note to the Registrar as
intimated earlier. It was indicated that Rooks was free to represent herself at
Court and she would be kept informed of the allocated Judge and courtroom.
The practice note was then filed on 28 July 2025 on this basis, with a note to
the Registrar. This yet again solicited a response from Rooks on 28 July
2025, that she was not ready to proceed with the matter, for the reasons
already dealt with above.

[21] And finally, on 28 July 2025, Core’s attorneys wrote to Rooks, indicating that if
she intended seeking a postponement, as she was clearly intimating she
would do, she needed to bring a substantive application for a postponement,
as she ha d done in 2022. She was informed that this application had to set
out the grounds for seeking the postponement, supported by evidence. It was
indicated the application would be opposed. Rooks was requested by Core’s
attorneys to file such an application by 4 August 2025, so Core would have a
proper opportunity to file an answering af fidavit. This letter went unanswered.
And needless to say, no substantive application for a postponement was
brought.

[22] On 1 August 2025, when the matter came before me for trial, Rooks indeed
applied for a postponement , from the bar, and without submitting a
substantive application. She in essence raised the same reasons for seeking
the postponement, as set out in all the correspondence referred to earlier. But
now, her focus had shifted slightly, to an insistence that the matter be
postponed for mediation. What is clear to me is Rooks was receiving legal
advice somewhere, and was seeking to rely on the Mediation Protocol for the
Gauteng Division issued by the Judge Present of the Gauteng Division of the
High Court in April 2025 (the Mediation Protocol). It is true that the Mediation
Protocol is intended to compel the parties to attempt mediation in the course

Protocol is intended to compel the parties to attempt mediation in the course
of civil trial proceedings, before the matter is adjudicated. Rooks was
effectively arguing that the matter be removed from the trial roll so that
mediation first be conducted under the Mediation Protocol.

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[23] Core’s counsel indicated that the Mediation Protocol did not apply in this
instance. I believe this submission is premised on the fact that summons in
this case was issued as far back as 2018, prior to Rule 41A of the Uniform
Rules coming into effect on 9 March 2020. 2 The Mediation Protocol reflects
that process is initiated by a notice in terms of Rule 41A, which notice must be
delivered in every new action by virtue of Rule 41A(2) . The plaintiff had no
such duty when it issued summons in 2018.

[24] Nonetheless, I believe there are other more pertinent reasons why any
application of the Mediation Protocol should not lead to a postponement of
this case. First, it simply cannot lie in the mouth of Rooks to seek to rely on
the lack of mediation as a basis for seeking a postponement, considering her
own delinquent, if not deliberate, conduct. There was nothing standing in the
way of her delivering her own notice in terms of rule 41A, if she believed
mediation was needed, especially where there was a trail date already
allocated as far back as June 2024. The issue could have been addressed in
pre-trial proceedings, or in the joint practice notice, which Core effectively
begged her to participate in, and which she spurned.

[25] Second, the Mediation Protocol itself does not prescribe postponement of the
trial where no Rule 41A notice is filed , as required by clauses 4.5 and / or 4.6
thereof. The enforcement mechanisms for compliance is found in clause 4.10.
This includes adverse costs orders (section 4.10.1) , no new allocation of trial
dates to the parties (clause 4.10.2.1), or that legal practitioners may be guilty
of professional misconduct, with all its consequences (clause 4.10.2.3) . But
nothing in the Mediation Protocol prescribes that a matter that is ready for trial
in all respects, has been properly set down, and where the parties are before
Court to conduct the trial, must be postponed or removed from the roll just

Court to conduct the trial, must be postponed or removed from the roll just
because there is no Rule 41A notice and / or mediation minute / report. In
fact, and to adopt such an approach would be counterproductive to what is
sought to be achieved by way of the Mediation Protocol itself, in which one of
the prima ry objectives is reflected to be to ‘ Promote the efficient

2 Rule 41A was instituted by GN R107 in GG 43000 of 9 March 2020.

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administration of justice in the Gauteng Division whilst also transforming
access to justice and the availability of the courts to the litigating public’.3

[26] In my view, the Mediation Protocol is intended to avoid matters from coming
to trial in the first place by facilitating settlements, and so relieve congestion of
the trial roll. It has the same objective as the obligatory process of conciliation
in employment law disputes under the Labour Relations Act (LRA). 4
Considering the large volume of disputes that are referred for example to the
Commission for Conciliation, Mediation and Arbitration (CCMA) under the
LRA, if it was not for the mediation imperative, where the bulk of disputes are
indeed settled, the system would not cope where it came to arbitration of
those disputes. If an obligatory system of mediation applies to civil litigation
disputes, it may have such results, however I must confess that having regard
to the nature of civil litigation, I believe not nearly to the extent of success of
this process where it comes to the CCMA. Nonetheless, one case settled
through third party intervention, such as a mediation, is a spot that open s for
another case that cannot be settled. But where the dispute is already at trial ,
is properly set down and ready to proceed to trial, it would be foolish to
effectively lose the date, which is already unavailable where it comes to
allocating it to someone else, just because there is no compliance with the
Mediation Protocol. As said in Adams v National Bargaining Council for the
Road Freight and Logistics Industry and Others5:

‘Although it is highly desirable for good order that rules be complied with on
their own terms, the function of the rule is the paramount consideration and,
where it can be safely found that the purpose of the rule is achieved, it is
highly undesirable to approach the matter in a literalist way. Mechanical
thinking is anathema to our law: cessante ratione legis cessat et ipsa lex. ...’

thinking is anathema to our law: cessante ratione legis cessat et ipsa lex. ...’

[27] Accordingly, I do not believe that the fact that no mediation between the
parties took place in casu , as well as the fact that there was no Rule 41A

3 Clause 2.1.2.2.
4 Act 66 of 1995 (as amended). This process is found in section 135 as read with section 191 of the
LRA.
5 (2020) 41 ILJ 2051 (LAC) at para 16.

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notice filed , constituted proper cause for the postponement of this matter. I
believe that Rooks’s reliance in this was simply opportunistic, and she was
clearly informed by someone with knowledge in Court process to attempt to
invoke the Mediation Protocol, in a manner that was not appropriate.

[28] I now turn the other grounds Rooks sought to base her postponement
application on. But first, I will deal with the requirements applicable to
applications for postponement before this Court. These requirements were
neatly articulated in National Police Service Union and Others v Minister of
Safety and Security and Others6 as follows:

‘… The postponement of a matter set down for hearing on a particular date
cannot be claimed as of right. An applicant for a postponement seeks an
indulgence from the Court. Such postponement will not be granted unless this
Court is satisfied that it is in the interests of justice to do so. In this respect the
applicant must show that there is good cause for the postponement. In order
to satisfy the Court that good cause does exist, it will be necessary to furnish
a full and satisfactory explanation of the circumstances that give rise to the
application. Whether a postponement will be granted is therefore in the
discretion of the Court and cannot be secured by mere agreement
between the parties. In exercising that discretion, this Court will take into
account a number of factors, including (but not limited to): whether the
application has been timeously made, whether the explanation given by the
applicant for postponement is full and satisfactory, whether there is prejudice
to any of the parties and whether the application is opposed. All these factors
will be weighed by the Court to determine whether it is in the interests of
justice to grant the postponement.

What is in the interests of justice will in turn be determined not only by what is
in the interests of the parties themselves, but also by what, in the opinion of

in the interests of the parties themselves, but also by what, in the opinion of
the Court, is in the public interest. The interests of justice may require that a
litigant be granted more time, but account will also be taken of the need to
have matters before this Court finalised without undue delay …’


6 2000 (4) SA 1110 (CC) at paras 4 – 5.

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[29] So, and in sum , a number of considerations apply where it comes to the
Rooks’s application for a postponement . 7 First, I have a discretion as to
whether the application for postponement should be granted or refused, which
discretion must be exercised judicially. Second, I would be required to
consider all the facts, which includes the facts leading up to the postponement
request and what is advanced in the postponement application itself. Third, I
must consider if the application for postponement was made timeously,
meaning that it was brought as soon as possible after the circumstances
which would substantiate a postponement become known to the applicant for
postponement. Fourth, it must be considered whether applying fundamental
fairness and justice , in the particular circumstances, would justify a
postponement. Fifth, the application for postponement must always be bona
fide and not used simply as a tactical manoeuvre for the purpose of obtaining
an advantage which would otherwise not be available. Sixth, it is a matter of
public interest that there should be an expeditious end to litigation. 8 And
finally, an important consideration is the issue of prejudice, namely whether
any prejudice caused by a postponement to the other party could be fairly
compensated for by an appropriate order of costs or any other ancillary
mechanisms. This necessarily also involves the weighing off of the prejudice
to the two respective parties, if a postponement is refused on the one hand, or
granted on the other. All these factors must be weighed, in totality, to decide
whether, in the end, it would be in the interests of justice to grant the
postponement.

[30] As to the reason s to be provided for justifying a postponement, the Court in
Absa Bank Limted v Baloyi 9 said that ‘good and strong reasons ’ for the
postponement must be given , meaning there must be a full and satisfactory
explanation for the circumstances that gave rise to the application. By way of

explanation for the circumstances that gave rise to the application. By way of
an apposite comparison on the facts to the case in casu , the Court in
Standard Bank of South Africa Limited v Khewija Engineering and

7 See Insurance and Banking Staff Association and Others v SA Mutual Life Assurance Society
(2000) 21 ILJ 386 (LC) at para 44; Standard Bank of South Africa Limited v Khewija Engineering and
Construction (Pty) Ltd and Others 2025 JDR 0245 (GJ) at paras 11 – 14.
8 Mc Carthy Retail Ltd v Shortdistance Carriers CC 2001 JDR 0168 (SCA) at para 28.
9 2021 JDR 1021 (GP) at para 3.3.

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Construction (Pty) Ltd and Others 10 refused a postponement application
because the application was not brought timeously and was only brought
shortly before the set down date, the application was not brought bona
fide but simply as a delaying tactic founded on a contention that the
respondent party wanted to instruct new attorneys , the history of this matter
reflected numerous instances where the respondents engineered delays to
avoid the finalisation of the application and the explanation given for the
postponement was ‘ far from full and satisfactory ’. In the end, the Court in
Khewija Engineering supra said the following, which I believe neatly describes
why the current postponement application by Rooks had to fail:

‘... the Respondents failed to provide a full and satisfactory explanation or
compelling justification in the application which would have enabled this Court
to exercise its discretion in favour of the Respondents and grant the relief
sought by them; the application is mala fides and an abuse of process. On the
facts of the present matter, it is clear that it is nothing more than a delaying
tactic. In addition thereto, it appears that the First Respondent is no stranger
to the utilisation of these tactics ...’

[31] When applying the principles discussed above to the complete factual
exposition preceding Rooks’s application for a postponement, I held the view
that Rooks had no made out proper cause for a postponement which would
justify my exercising of a discretion to grant it. The reason why a complete
consideration of all the facts is necessary is because Rooks, despite all the
invitations and warnings extended to her by Core beforehand, did not even
bother to bring a substantive application for a postponement. She simply
arrived at Court, and in essence demanded a postponement on the basis that
she wanted to get legal representation and that the matter was as far as she
was concerned not ripe for hearing because of the mediation issue . There

was concerned not ripe for hearing because of the mediation issue . There
was no other cause or reason put forward for the postponement. There simply
exists no good cause for a postponement, on the facts. With a modicum of
due care, Rooks could have been ready for trail. But instead, she adopted an

10 2025 JDR 0245 (GJ) at para 15.

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obstructive and obstinate attitude. This kind of approach is most unhelpful in
convincing this Court to exercise its discretion in her favour.

[32] It must also be considered that whenever Rooks was required to participate in
steps needed to prosecute the trail further, she would procrastinate and on
several occasions, changed attorneys at the moment action needed to be
taken and then seek a delay to obtain new attorneys . With regard to the pre -
trial proceedings, she refused to participate, and yet again suggested that she
needed to find alternative legal representation at her own leisure. She had no
regard for the interests of Core. This matter could have been concluded in
2022. Mainly as a result of the conduct of Rooks, it took some three years to
again come to trail. It is not in the interest of justice to allow this matter to
procrastinate further. In the end, and on the fact s, I am convinced that the
postponement application was not bona fide , and was nothing more than a
stratagem to scupper the commencement of the trial, yet again. Rooks had
ample time to arrange for legal representation, and her failure to have done so
cannot serve as an excuse, especially considering the history of this case.
Insofar as she may suffer prejudice, it was of her own doing. All said, I was
not satisfied that Rooks has made out a proper case for the matter to be
postponed further, and I therefore refused Rooks’s postponement application.

The relevant background

[33] Before setting out the background facts in this matter, something must be said
about Rooks as a witness. Overall, her testimony was entirely unsatisfactory
and lacking in credibility. In Stellenbosch Farmers' Winery Group Ltd and
Another v Martell et Cie and Others11 the Court said:

‘... the court's finding on the credibility of a particular witness will depend on its
impression about the veracity of the witness. That in turn will depend on a

impression about the veracity of the witness. That in turn will depend on a
variety of subsidiary factors, not necessarily in order of importance, such as (i)
the witness' candour and demeanour in the witness -box, (ii) his bias, latent
and blatant, (iii) internal contradictions in his evidence, (iv) external

11 2003 (1) SA 11 (SCA) at para 5.

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contradictions with what was pleaded or put on his behalf, or with established
fact or with his own extracurial statements or actions, (v) the probability or
improbability of particular aspects of his version, (vi) the calibre and cogency
of his performance compared to that of other witnesses testifying about the
same incident or events. ...’

[34] Applying the aforesaid, my first reference is to Rooks’s performance in the
witness box. She was evasive, argumentative, and would often make
sarcastic and unfunded statements about Value and her fellow directors . She
would avoid answering direct questions, directly. She simply failed to
acknowledge or recognize any wrongdoing on her part, despite, in several
instances, it being quite obvious that it existed. A pertinent example would be
where she admitted to authorising transactions without further approval,
where it was required in terms of the policy of Core (as part of the Value
group) where the transaction was in excess of a specified amount, but was
unable to accept that she did anything wrong, and fabricated a version to
cover herself . In several instances, her testimony was never put to any of
Core’s witnesses, which I will deal with in more detail later in this judgment. I
only mention one pertinent example, being the instance where she authorised
payment for flight tickets for her boyfriend, who had nothing to do with the
business of Core, and then suggested some kind of barter arrangement
where he would pay for some of her flight tickets and she would pay for some
of his. There were further several material contradictions in her testimony,
which I will also deal with later. And lastly, some of the propositions she
offered to contradict the claims by Core were so farfetched or unlikely, that it
could only be palpably false. But even more importantly, Keightly J made a
number of pertinent factual findings in the judgment given on 11 July 2018,

number of pertinent factual findings in the judgment given on 11 July 2018,
which Rooks, despite these factual findings standing, continues to contradict.

[35] Rooks’s amended plea cements her complete lack of credibility. Despite all
the past litigation, she persists in denying the undeniable. She even denies
her employment contract transferred to Core, because Nucleus did not
‘countersign’ it. She contin ues to deny wrongdoing with regard to Windsor
Logistics and the fraudulent alleged sale of furniture issue (discussed below),

17

despite the outcome of the past litigation , where Keightly J pertinently found
that wrongdoing on her part existed in these respects.

[36] Where it comes to the testimony by Core’s witnesses, I am not saying the
testimony by such witnesses were entirely without blemish. There were some
contradictions, but overall, these witnesses fared substantially better than
Rooks. Importantly, these witnesses ’ testimony supported each other in all
material respects, where applicable. And considering the undisputed
documentary evidence, the testimony by Core’s witnesses made sense, and
were supported by these documents.

[37] But it is not just about credibility . 12 It is also essential to consider the
probabilities. The determination of probabilities entails an inference to be
drawn from the evidence as a whole, on the basis of what the Court said in
SA Post Office v De Lacy and Another13, as followings:

‘The process of inferential reasoning calls for an evaluation of all the evidence
and not merely selected parts. The inference that is sought to be drawn must
be 'consistent with all the proved facts. If it is not, then the inference cannot
be drawn' and it must be the 'more natural or plausible, conclusion from
among several conceivable ones' when measured against the probabilities.’

[38] Therefore, where I set out the relevant factual matrix in this matter, as
expanded on below, it is arrived at applying the aforesaid principles relating to
the evaluation and determination of such evidence.

[39] Rooks is a self-made entrepreneur in the transport and logistics sector, and
founded and conducted a business known as Nucleus Chain Store (Pty) Ltd
(Nucleus), where she was a shareholder along with four other shareholders ,
each of them having a 20% shareholding in that business . She also

12 In Stellenbosch Farmers Winery (supra) at para 5, the Court held: ‘…To come to a conclusion on

the disputed issues a court must make findings on (a) the credibility of the various factual witnesses;
(b) their reliability; and (c) the probabilities...’,
13 2009 (5) SA 255 (SCA) at para 35. See also Bates and Lloyd Aviation (Pty) Ltd v Aviation
Insurance Co 1985 (3) SA 916 (A) at 939I -J; Ocean Accident and Guarantee Corporation Ltd v Koch
1963 (4) SA 147 (A) at 159B-D; Govan v Skidmore 1952 (1) SA 732 (N) at 734A-C.

18

concluded a written contract of employment with Nucleus on 20 August 2008,
and effectively ran the business, operationally, as managing director.

[40] At the end of 2014, Value Logistics Ltd (Value) acquired the business of
Nucleus. Value is a substantial business in the transport and logistics sector
and was listed at the time on the Johannesburg Strock Exchange. For the
purposes of the transaction, Core was established to hold the acquired
business. By virtue of the transaction, Value held 80% of the shares in Core,
whilst Rooks remained as 20% shareholder in Core . What was then sold by
Nucleus to Core was the business of Nucleus consisting of an outsource
supply chain partner, specialising in chain store deliveries, including front door
deliveries, same day express, overnight express, bulk loads, cross border
deliveries, inter-branch deliveries and airfreight serv ices. The transaction was
embodied in a written sale agreement signed on 14 December 2014 (the sale
agreement).

[41] In terms of the sale agreement, the other fellow shareholders of Rooks in
Nucleus received a cash payment each for their shares , and then exited the
business. Rooks however remained behind, and her employment was
transferred to Core. In addition, together with the sale agreement, a
shareholders’ agreement was concluded between Rooks and Value as the
two shareholders in Core , on 15 December 2014 (the shareholders
agreement). The shareholders agreement confirmed th at 80% of the
shareholding In Core belonged to Value, and 20% to Rooks. In terms of the
shareholders agreement, Rooks would manage the business of Core to the
best of her ability , exercise her best endeavours in creating value for all
shareholders, and be responsible, subject to the board's overriding control, for
the day-to-day management of Core. She was also required to keep the board
continuously and fully appraised of her actions in managing Core's operations,

continuously and fully appraised of her actions in managing Core's operations,
its results and of any other matter which is, or which is likely to be , material to
Core's business. And lastly, she was expected to ensure that Core complied
with good corporate governance principles.

19

[42] Rooks was appointed as a dir ector of Core under the Companies Act . The
other directors were Steven Gottschalk (Gottschalk), Clive Sack (Sack) and
Mano Padiyachy (Padiyachy), all from Value. Gottschalk was the CEO of
Value. Rooks was also, by virtue of the shareholders agreement, subject to a
36 months’ restraint of trade in the event of her termination of employment
with Core. And as touched on above, her employment contract with Nucleus
was transferred to Core with effect 1 March 2015 . Core started operating the
Nucleus business as from 1 March 2015.

[43] Rooks was having some difficulty integrating into the corporate environment
of being part of the Value group. From her testimony, it appeared she was
quite unhappy about the fact that all her fellow shareholders in Nucleus were
paid out and left, whilst she remained behind, even though she was an actual
party to the transaction. Rooks also explained that Value and Core had
different operating systems, being that Core used Winfreight which Value did
not use. Rooks insisted that the Winfreight system remain operational in Core,
which Gottschalk agreed to. In his testimony, Gottschalk acknowledged the
difficulties Rooks had where it came to operating as part of the group , and he
decided to give her a lot of leeway in running the business of Core without
interference, provided she only operated within the parameters of the clear
operational rules set in the group. Both Rooks and Gottschalk were ad idem
that Core was operationally ringfenced. However, this leeway afforded to
Rooks came with a particular obligation of trust.

[44] When the facts of this matter are overall considered, it is apparent that Rooks
proceeded to manage the business of Core as if it was her own family
business. She transacted with family members without disclosure, when this
was not permitted. She further transacted far in excess of her transacting limit,
without obtaining approval from Gottschalk, as required by the group rules.

without obtaining approval from Gottschalk, as required by the group rules.
Some transactions were simply fraudulent. She further tried to feather her
own nest, in anticipation of securing an exit of Core out of the Value group .
The details of all these transactions and events became apparent in an
investigation conducted from May 2017, as will be set out below.

20

[45] In May 2017, Gottschalk’s suspicions were aroused when he came to know
about what he considered to be substantial commission paid to Sharon Butler
(Butler), one of the proprietors of Expressnet (a service provider to Core), and
another person by name of Gary Rahme (Rahme), who appeared to be some
sort of independent sales agent, out of Core . These commission payments
were all authorised by Rooks. As a result of these suspicions, Gottschalk had
meetings with Butler and Rahme in the course of May 2017, followed by a
meeting with Rooks on 4 June 2017. Added to this, and on 29 May 2017
Gottschalk received an email from Rooks emanating from an unknown email
address reflected as f[...]. This email concerned Gottschalk, as he was
unfamiliar with Windsor Logistics. In the meeting Rooks had with Gottschalk,
she was unable to explain this email address, and when giving her testimony
suggested that it had simply been set up by Butler’s son, Ross, of his own
accord, which is simply unlikely . What emerged from these meetings and this
email caused Gottschalk to initiate an investigation.

[46] It turned out in the course of the investigation that Windsor Logistics reflected
in the email address was a corporate entity called Windsor Logistics
(Windsor), which basically operated the same business as Core. The
evidence shows that Rooks was instrumental in establishing the business of
Windsor. She approached Butler, who conducted the business of Expressnet
which was based only in Kwa -Zulu Natal together with Daryl Ouzman
(Ouzman). Expressnet had no office or presence in Polokwane and
Mbombela, however Rooks proposed to them to open a business identical to
Core in Polokwane and Mbombela. According to Butler and Ouzman, Rooks
informed them that the previous service provider used by Core in these areas
liquidated, opening this opportunity , which business would also then be a
service provider to Core . Rooks, on behalf of Core, would then in essence

service provider to Core . Rooks, on behalf of Core, would then in essence
refer customers that needed services in these areas to Windsor. And worse,
as discussed in more detail below, Rooks would get 50% shareholding in
Windsor. Rooks never disclosed nor reported this transaction to Gottschalk
nor sought approval for it.

21

[47] When giving her evidence, Rooks contended that she never approached
Butler, but it was Butler that approached her, expressing an interest to
establish a business in the areas referred to, however Butler told her she did
not have enough v olumes herself to make it work. According to Rooks, the
idea was then that they would do ‘reciprocal business’. She also said that she
never would get 50% of the business, and only mentioned to Butler that she
would consider a small token shareholding. The problem is that this version
was never put to Butler or Ouzman, when they testified that it was Rooks that
sought to use them to establish the new business and that she would have a
50% share in it, as discussed further below . In President of the Republic of
South Africa and Others v South African Rugby Football Union and Others 14 it
was held as follows:

‘The institution of cross -examination not only constitutes a right, it also
imposes certain obligations. As a general rule it is essential, when it is
intended to suggest that a witness is not speaking the truth on a particular
point, to direct the witness's attention to the fact by questions put in cross -
examination showing that the imputation is intended to be made and to afford
the witness an opportunity, while still in the witness -box, of giving any
explanation open to the witness and of defending his or her character. If a
point in dispute is left unchallenged in cross -examination, the party calling the
witness is entitled to assume that the unchallenged witness's testimony is
accepted as correct. This rule was enunciated by the House of Lords
in Browne v Dunn and has been adopted and consistently followed by our
courts.

It follows that the version offered by Butler and Ouzman as to the
establishment of the business of Windsor, as opposed to any contrary version
of Rooks, must be accepted.

[48] In terms of the proposal made by Rooks, Butler and Ouzman would establish

[48] In terms of the proposal made by Rooks, Butler and Ouzman would establish
Windsor to operate in Polokwane and Mbombela , with Butler and Ouzman
each having 50% of the shareholding in Windsor at th at point in time. This
proposal and discussion occurred at the end of 2016. Ouzman testified that

14 2000 (1) SA 1 (CC) at para 61.

22

he actually told Rooks that he was not interested in getting involved in a
business outside Kwa Zulu-Natal. However, Ouzman was needed to provide
collateral for the bank account of the new business. After discussion, he
relented and agreed that Rooks and Butler could start the Windsor business,
and Rooks could then take over his share in Windsor in due course. Ouzman
further testified that Rooks informed him that she could not take over his
membership interest at that stage , but would be able to do so in the future,
once she acquired the Core business back from Value, which was her
intention. In fact, Rooks admitted that she was in the process of attempting to
buy the Core business from Value. In an e -mail on 17 February 2017, B utler
informed Rooks that as they had discussed, Rooks and Ouzman would sign a
share transfer document to be kept by Butler until Rooks was ready to take
transfer of the shares. In her evidence, Rooks confirmed that she was
negotiating with Gottschalk to purchase Core back from Value at the time, and
there is e-mail correspondence to this effect.15

[49] Ultimately, and because of intervening events, Rooks never took transfer of
the membership interest in Windsor from Ouzman, however she was certainly
instrumental in establishing the business of Windsor, off the back of her
position at C ore, so to speak. First, Rooks implemented the owner / driver
method of operation conducted at Core , which both Butler and Ouzman were
not familiar with. Further, Rooks actively assisted in setting up the business.
She travelled to Polokwane and Mbombela to meet with clients and scout for
premises for the business . Rooks also conceded in her evidence that Core
would pay half the rental for the business premises. She undertook to provide
equipment and furniture from Core to the business . She also utilised the
services of Amy Singh (Singh) and Shona Johnson (Johnson), t wo of the
senior employees in Core, to assist in the setting up of the business. Johnson

senior employees in Core, to assist in the setting up of the business. Johnson
set up the operating program for the business (the Winfreight system). Core
paid for the travel and accommodation expenses of Singh and Johnson in this
regard. And finally, Rooks deployed Lebong Nkwata (Nkwata), another Core
employee, to travel to the two offices of Windsor in order to provide training to

15 The offer by Rooks to purchase the Core business from Value was ultimately declined.

23

the Windsor employees on the Winfreight system. Nkwata spent five weeks
doing his, with Core covering all his costs associated with the same. In the
end, Rooks admitted all the above , but simply answered it was ‘a normal
business transaction’, showing that she was si mply unwilling to accept any
responsibility for her wrongdoing.

[50] It was clear from the evidence that but for the efforts of Rooks and the
deployment of Core resources and staff to assist, the business of Windsor
would never have come about. And as said, all this happened without the
knowledge or consent of the majority shareholder in Core, being Value, and in
particular, Gottschalk . Rooks did offer an explanation for this conduct.
According to her, this entire Windsor transaction, for the want of a better
description, was nothing more than giving effect to a so-called ‘common
practice’ in Core of establishing what she called ‘branches’ in outsourced
service providers of Core. She referred to the example of one Gita Muller
(Muller), which operated as a Core subcontract or in Bloemfontein in the Free
State, where Core resources and equipment, was well as training, were also
deployed. Importantly however, Rooks, even on her own version, was never
involved in setting up this business of Muller at the outset and certainly would
not have shares in it.

[51] Gottschalk testified that he was unfamiliar with any practice in Core where a
branch would be operated in a s ervice providing contractor to Core. There
were instances where Core would conduct operations with in a customer, but
this was not the case with Windsor or even the operations of Muller. He
considered the strategy propagated by Rooks to exist to be questionable. But
in particular, he was dissatisfied that all this happened with him having any
knowledge of it, or it even being reported to him by Rooks, as she was
actually required to do in terms of the shareholders agreement. He considered

actually required to do in terms of the shareholders agreement. He considered
it to be dishonest and a material breach of Rooks’s fiduciary duty.

[52] The aforesaid is not where the issues of impropriety on the part of Rooks,
which came out in the investigation initiated by Gottsch alk, ended. What was
also discovered is that in November 2016, Rooks requested Butler to increase

24

an invoice for commission owed by Core to Butler in the sum of R8 340.75, to
a total sum of R38 340.75, giving an additional R30 000.00 not owing by Core
to Butler at all. Core then paid Butler the sum of R38 340.75 on 11 November
2016. Once the payment was made, Rooks telephoned Butler and asked her
to pay over the additional sum of R30 000.00 into a Nedbank account , which
was in fact the bank account of Rooks’s mother. Butler on 12 November 2016
duly paid the sum of R30 000.00 into the account designated by Rooks. When
this came out in the investigation, Rooks informed Butler not to be concerned,
as she (Rooks) would arrange for her mother to send Butler an invoice for
R30 000.00 for goods ostensibly purchased by Butler from Rooks' s mother,
which Rooks then did. Butler confirmed the invoice was fraudulent, as she
never bought anything from Rooks's mother. In the end, Rooks was unable to
offer a cogent or truthful explanation for this transaction.

[53] The investigation also revealed a variety of travel expenses paid by Core for
various persons, which was authorised by Rooks. This investigation revealed
a number of instances where Rooks had approved travel expenses for Core
employees deployed in terms of the Windsor transaction. There were also
travel expenses that clearly had nothing to do with the business of Core, such
as travel expenses for her boyfriend and mother. She also authorised travel
expenses for Singh which appeared to a holiday for Singh in Cape Town, and
had nothing to do with the business of Core. And finally, there were travel
expenses for Ross, the son of Butler, who was not a Co re employee. A
complete exposition of these expenses will be dealt with later in this judgment.

[54] According to Rooks, all these travel expenses were legitimate and lawfully
approved by her. She explained that the travel expenses incurred relating to
the Windsor transaction was in the normal course of business of Core. She

the Windsor transaction was in the normal course of business of Core. She
also explained that Singh’s travel expenses to Cape Town was because
Singh has be en deployed to substitute at the operations of Core in Cape
Town during the festive season. She suggested that the travel expenses for
her boyfriend was part of some kind of barter arrangement. But some of the
transactions she could not explain. The explanations she did offer will also be
dealt with later in this judgement.

25


[55] As touched on above, one of the first instances that spiked the interest of
Gottschalk was all the commission payments made to Rahme, which
appeared excessive. In fact, and d uring the period 1 March 2015 to 9 June
2017, Rooks authorised payments to be made by Core to Rahme in an
amount of R467 927.59, ostensibly in respect of commissions earned by him .
It turned out that these commission payments were irregular and not
legitimately earned by Rahme.

[56] Johnson testified on behalf of Core. She was involved in the commission
payments to Rahme, on the instruction of Rooks, and she confirmed all these
payments were authorised by Rooks. Despite Rooks contending that Nucleus
had a commission agreement in place with Rahme even before the sale to
Value, Johnson testified that she was instructed by Rooks to prepare a
commission agreement for Rahme in 2017. This agreement was prepared on
a Core letterhead, and then back dated on instructions of Rooks to 1 March
2015. It is apparent that was backdated to coincide with the Nucleus business
being taken over by Core. In terms of th is agreement, it appears that Rahme
earned perpetual commission on a c ustomer, despite him not even making
actual sales to the c ustomer. Rooks did not challenge Johnson on this
evidence she had given, however she stated in her testimony that Rahme had
a contract in Nucleus and that the contract referred to above was just an
‘update’. But this other alleged Nucleus contract was never produced by her.

[57] According to Johnson, there were irregularities where it came to commissions
payable to Rahme. Johnson explained that at the end of every month, she did
the commission calculations for all commission earners, and then generated
invoices for the commissions due. The information for the commission
payments to Rahme came from Rooks. Further, and where it came to three of
the latest invoices for Rahme, they were actually done by Rooks, and not her

the latest invoices for Rahme, they were actually done by Rooks, and not her
(Johnson), which then did not balance to the sales figures. At the instance of
Rooks, Johnson was approached by Jeanine Muller , the finance manager,
and was asked to allocate other sales to the invoices for Rahme, so it could
balance. Johnson however refused. In the course of April 2017, Johnson also

26

did a full account reconciliation for all commissions paid to Rahme. This
reconciliation showed a number of irregularities where it came to commissions
paid to Rahme, which will be dealt with later in this judgment. And finally, the
investigation initiated by Gottschalk revealed that part of these commission
payments made to Rahme found its way back to Rooks, as will also be dealt
with further below.

[58] Next, and during the period of May to September 2016, Rooks authorised the
conducting of renovations purportedly to be carried out at the premises of
Core in Johannesburg and Durban. She appointed MR Property Maintenance
Services (MR) to conduct the renovations. Unbeknown to Value and
Gottschalk, MR is owned by Rooks’s mother. Rooks never reported the
relationship between MR, as a service provider to Core, and her mother
(Mercia Rooks). According to a number of invoices rendered by MR to Core
for supposed renovations and other services , work to the value of R438
042.70 had been carried out. None of these expenses were reported to or
approved by Value, or in particular Gottschalk , despite several invoices being
excess of Rooks’s level of authority. According to Core, what the investigation
revealed is that these invoices were largely fraudulent, and the supposed
renovations were never carried out. But more importantly, according to Core,
such transaction s with a rel ative like Rooks’s mother , was at odds with her
fiduciary duties and at the very least, the appointment of such a service
provider needed to have been specifically brought to Gottschalk’s attention
and approved by him.

[59] Rooks in her evidence disagreed that the renovations were not carried out.
She was adamant that all the work reflected in the invoices were done. She
also could see nothing wrong in utilising the services of MR (her mother), as
she would often use her mother in the past at Nucleus for such kind of
services. However, this was before the acquisition of the business by Core
(Value).

services. However, this was before the acquisition of the business by Core
(Value).

[60] The next instance of impropriety involves an entity known as Infinity Wood
(Pty) Ltd (Infinity). The proprietor of Infinity was the husband of Cindy van Zyl,

27

an employee of Core , being Pieter Van Zyl (Van Zyl) . According to Core,
Rooks caused an invoice to be rendered b y Infinity in May 2016 for work
purportedly carried out and furniture purportedly supplied by Infinity , in the
sum of R80 200.00, when that was never the case. Again, the version of
Rooks was that all this work was carried out as a result of a flood at the office
which damaged furniture. She was adamant the furniture was supplied . This
transaction will be elaborated on later in this judgement.

[61] Core further accused Rooks of ‘stealing’ moveable assets from Core in the
period February 2017 to 9 June 2017 , to the value of R544 290.17. However,
and will be discussed below, there was little evidence to support this claim.
Rooks has explained that it will be impossible for such an amount in assets
disappearing over such a short period, without substantial effort and anyone
noticing. In effect, she said what Core was accusing her of was impossible.

[62] And lastly, Core contends that in September 2016 Rooks informed Johnson
that Core was indebted to an entity known as Eva-Last, in the sum of R40
175,55, and instructed her to prepare a credit note in favour of Eva -Last in the
said sum. Johnson informed Rooks that Eva -Last was not on Core’s system
and there was no amount reflected that was owing. Rooks then gave Johnson
the details of Eva -Last, and instructed her to do a manual credit note, as
Johnson could not process it through the accounting system. It appeared that
Rooks intended to utilize the credit note to pay Eva -Last for a debt owed
personally by her to Eva -Last in respect of wooden decking supplied by Eva -
Last to her.

[63] Following the outcome of the investigation, Rooks was suspended on 9 June
2017. A disciplinary process was instituted against her in which she was
charged with misconduct relating to dishonesty, in respect of all the aforesaid
events. The hearing commenced on 10 July 2017. Rooks however refused to

events. The hearing commenced on 10 July 2017. Rooks however refused to
participate in the disciplinary hearing and resigned with purported immediate
effect on the same date. Nonetheless, Core continued with the disciplinary

28

hearing, as it was entitled to do 16, and Rooks was found guilty o f several
charges against her. Following the conclusion of the disciplinary hearing, she
was then summarily dismissed on 28 July 2017.

[64] With Rooks having been dismissed for misconduct relating to dishonesty,
Value gave effect to a call-option clause in the shareholders' agreement which
entitled it to acquire Ms Rooks's 20% shareholding and loan accounts in Core
for R1 per share . Rooks was duly presented with payment in the sum of
R24.00 for such shareholding, and this issue forms the subject matter of one
of Rooks’s counterclaims, to be further addressed below.

[65] Based on the aforesaid background facts, I will now turn to deciding the
claims brought by Core against Rooks in terms of the amended particulars of
claim, by first dealing with the fiduciary duties owed by Rooks to Core, both
under statute and the common law , especially considering she was a director
and shareholder of Core, and managed the business.

The defendant’s fiduciary duties

[66] Rooks is not an ordinary employee of Core. She was effectively its managing
director, specifically tasked with all aspects of the running of the business . In
addition, she had to specifically answer to the majority shareholder of Core,
being Value. The shareholders agreement between Rooks and Value
specifically provided for her duty not to conduct herself in any manner that
works against the interest of Core and its business, and to fully report to Value
on all her activities. Added to the aforesaid, Rooks was appointed as a
director in terms of the Companies Act.


16 As held in Standard Bank of SA Ltd v Chiloane (2021) 42 ILJ 863 (LAC) at para 22 : ‘ In the
circumstances, where a contract prescribes a period of notice the party withdrawing from the contract
or resigning is obliged to give notice for the period prescribed in the contract. The contract and the

reciprocal obligations contained in it only terminate or take effect when the specified period runs out
… In this matter, the employee’s narration that her resignation was with ‘immediate effect’ was of no
consequence because it did not comply with the contract which governed her relationship with her
employer and the employer was thus correct to read into the resignation a four-week notice period …’.

29

[67] As I have discussed above, it became apparent as the case went along that
Rooks was quite unhappy with having to continue on with the former business
of Nucleus, but now under the auspices of Core, with Value being her majority
partner. She always had a distrust of Gottschalk, who she believed was prone
to working people out of the Value businesses. She appeared unable to come
to grips with how a business must be conducted in a corporate group, and all
the duties of good faith and accounting to a board that went with it. Overall,
she continued to conduct the business as if she was its sole owner, when that
was obviously not the case. This culminated in he r seeking to buy out the
business from Value at about the same time as when she sought to establish
the Windsor business.

[68] Nonetheless, Gottschalk permitted Rooks to operate the business as a 20%
shareholder, believing that she would promote the interests of the Group.
Gottschalk did perceive the difficulties experienced by Rooks where it came to
integrating into Value, and as such, sought to accommodate her by allowing
her a freer rein than normal. But he always expected of her to manage and
conduct the business subject to the prescripts of Value, and keep him
appraised of any material decisions she made. He conceded that she was
allowed to approve expenses and transactions, without seeking his approval,
where it came to the permissible amounts under the Value authorisation
framework. In essence, and considering the approach adopted by Gottschalk
towards Rooks, she had a particular position of trust where it came to the
Core business.

[69] The position of trust clearly occupied by Rooks compelled her not to work
against the interests of Core and her majority fellow shareholder in the
business, Value. This duty flows, in the first instance, from her contract of
employment in terms of which she was effectively employed as the managing
director of the business. I will start with refence to the following apposite

30

dictum in Ganes and Another v Telecom Namibia Ltd 17, where the Court
decided:

‘As an employee of the respondent and in the absence of an agreement to the
contrary the first appellant owed the respondent a duty of good faith. This duty
entailed that he was obliged not to work against the respondent's interests;
not to place himself in a position where his interests conflicted with those of
the respondent … ‘

[70] In Bonfiglioli SA (Pty) Ltd v Panaino 18 the Court applied the aforesaid dictum
in Ganes, and concluded:

‘… at common law, the employee owes the employer a duty of good faith. In
Ganes & another v Telecom Namibia Ltd , it was said that the duty of good
faith entails that an employee is obliged not to work against the interests of
his/her employer and not to place himself/herself in a position where his/her
interests conflict with those of the employer.

And in Sappi Novoboard (Pty) Ltd v Bolleurs19 the Court said the following:

‘… It is an implied term of the contract of employment that the employee will
act with good faith towards his employer and that he will serve his employer
honestly and faithfully … The relationship between employer and employee
has been described as a confidential one … The duty which an employee
owes his employer is a fiduciary one 'which involves an obligation not to work
against his master's interests' …’

[71] The fiduciary duty as aforesaid contemplates that the employee concerned
must not make a secret profit at the employer’s expense, or that the employee
must not place himself or herself in a position that his or her interests is in
conflict with those of the employer. If this happens, it is a violation of the
fiduciary duty. In Robinson v Randfontein Estates Gold Mining Co Ltd 20 the

17 (2004) 25 ILJ 995 (SCA) at para 25. See also Volvo (Southern Africa) (Pty) Ltd v Yssel (2009) 30
ILJ 2333 (SCA) at paras 16 – 17; Stoop and Another v Rand Water (2014) 35 ILJ 1391 (LC) at para
99.
18 (2015) 36 ILJ 947 (LAC) at para 26.

99.
18 (2015) 36 ILJ 947 (LAC) at para 26.
19 (1998) 19 ILJ 784 (LAC) at para 7.
20 1921 AD 168 at 177

31

Court explained what is known, in this context, as the 'no profit ' and 'no
conflict' rules as follows:

'Where one man stands to another in a position of confidence involving a duty
to protect the interests of that other, he is not allowed to make a secret profit
at the other's expense or place himself in a position where his interests
conflict with his duty. The principle underlies an extensive field of legal
relationship. ...’

[72] It is not even necessary to establish fault on the part of the employee where it
comes to the ‘ no profit' and ‘no conflict’ rules, in order to sustain a claim for
damages as a result of the breach of the fiduciary duty. This was explained in
Du Plessis NO v Phelps21 as follows:

‘In my judgment it is correct to state that a breach of fiduciary duties does not
necessarily involve fault. For example, if a director were to obtain a secret
profit, the company could claim such profit from him without alleging fault. An
action of that kind could be described as sui generis. The claim would arise
merely by virtue of the fact that the director, in breach of his fiduciary duty,
obtained for himself a secret profit which he should have obtained for the
company.

Where damages are claimed for a breach of a fiduciary duty, the position is
different. In such a case, even though the claim is not based on fault, it is
necessary for the company to allege and prove the causal connection
between the damages claimed and the breach of a fiduciary duty giving rise
thereto. ...’

[73] The following summary in Grancy Property Ltd and Another v Gihwala and
Others22 is in my view a succinct and apposite exposition of the position
where it comes to the ‘no profit' and ‘no conflict’ rules:


21 1995 (4) SA 165 (C) at 171B-D
22 2025 (2) SA 76 (SCA) at paras 191 – 192. The Court was referring to Phillips v Fieldstone Africa
(Pty) Ltd and Another 2004 (3) SA 465 (SCA) at para 31.

32

‘The no -profit rule and the no -conflict rule were reaffirmed by this court
in Phillips. These are strict rules that allow little room for exception. They
extend to both actual conflicts of interest and to cases in which there is a real,
sensible possibility of conflict. The defences open to a fiduciary who breaches
trust are extremely limited: only the free consent of the principal after full
disclosure will suffice. Once the breach of a fiduciary duty is established, the
fact that the company has suffered no loss or damage, or that the profit was
not made at the expense of the company, is irrelevant.

The term 'profits' in relation to a claim for disgorgement of secret profits does
not refer simply to a financial profit on an investment. Instead, the term is a
'wide one' and 'is not confined to money, but covers every gain or advantage
made by a wrongdoer'. Once the scope of the fiduciary duty and a breach
thereof are established, the wrongdoer will be responsible for disgorgement of
all such profits made within the scope of that duty.’

[74] Turning then to the position of Rooks as a director, with out specific reference
even being made to provisions in the Companies Act (as will be dealt with
below), the Court in Da Silva and Others v CH Chemicals (Pty) Ltd 23
succinctly described the position in the following manner:

‘It is a well -established rule of company law that directors have a fiduciary
duty to exercise their powers in good faith and in the best interests of the
company. They may not make a secret profit or otherwise place themselves in
a position where their fiduciary duties conflict with their personal interests
(Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168 at 177). A
consequence of the rule is that a director is in certain circumstances obliged
to acquire an economic opportunity for the company, if it is acquired at all.
Such an opportunity is said to be a 'corporate opportunity' or one which is the

Such an opportunity is said to be a 'corporate opportunity' or one which is the
'property' of the company. If it is acquired by the director, not for the company
but for himself, the law will refuse to give effect to the director's intention and
will treat the acquisition as having been made for the company. The
opportunity may then be claimed by the company from the delinquent director.

23 2008 (6) SA 620 (SCA) at paras 18 – 19. See also Mthimunye-Bakoro v Petroleum and Oil
Corporation of South Africa (Soc) Ltd and Another 2015 (6) SA 338 (WCC) at para 59, where it was
held: ‘Under common law a director may not place herself in a position in which she has, or can have,
a personal interest which conflicts or possibly conflicts with her duties to the company. …’.

33

Where such a claim is no longer possible, the company may in the alternative
claim any profits which the director may have made as a result of the breach
or damages in respect of any loss it may have suffered thereby
(see Blackman, Jooste & Everingham Commentary on the Companies Act vol
2 p 8-161 to 8-162).

It is of no consequence that in the particular circumstances of the case the
opportunity would not or even could not have been taken up by the company
... Ultimately, the inquiry will involve in each case a close and careful
examination of all the relevant circumstances, including in particular the
opportunity in question, to determine whether the exploitation of the
opportunity by the director, whether for the director's own benefit or for that of
another, gave rise to a conflict between the director's personal interests and
those of the company which the director was then duty -bound to protect and
advance.’

[75] So therefore, there can be little doubt that the conduct of Rooks where it came
to the Windsor transaction was a material violation of her fiduciary duties
towards Core. She was effectively feathering her own nest, in anticipation of
exiting Core from Value. She identified an opportunity for a business identical
to Core in areas that Core was not operating , and used her existing
relationship with Butler (Expressnet) as a service provider to Core to seize
upon such opportunity outside Core . She then utilised the expertise, business
model and modus operandae of Core to assist Butler in establishing a new
business, which did exactly the same as Core, in Mpumalanga and
Polokwane. She deployed Core personnel to assist with this establishment,
covered their expenses out of Core, and even provided equipment and
furniture out of Core to Windsor. Although she did not have actual
shareholding in Windsor when the bomb burst, it was clearly contemplated
that she would simply take over 50% of the shareholding in Windsor from

that she would simply take over 50% of the shareholding in Windsor from
Ouzman when the time was right, because Ouzman made it clear that he had
no interest in operating a business outside Kwa -Zulu Natal. 24 And all the

24 Compare Princess Springs VW (Pty) Ltd v Robert s 2018 JDR 2191 (GJ) at para 55, where the
Court considered the following facts to con stitute a breach of fiduciary duties: ‘The Defendant was an
active participant with Allen in setting up IBP, and Logivest. They attended various seminars together
where the opportunity, which ought to have been created for the Plaintiff or the Princes Group of

34

while, she simply continued to assert that she did what she did in the interest
of Core and was simply giving effect to her duties as the managing director of
Core, when that was clearly not the case . And all the while, she was
bestowed with a particular position of trust and a hands-off approach by
Value, which makes all of this worse. It must follow that all expenditure
incurred by Rooks relating to the business of Windsor falls to be repaid by her
to Core as damages suffered by Core in breach of her fiduciary duties.

[76] The conduct of Rooks has many comparisons with what transpired in Volvo
(Southern Africa) (Pty) Ltd v Yssel 25 . In particular, the following factual
considerations in that case are pertinent, which in the view of the Court
considered a violation of the fiduciary duties of the employee concerned:26

‘Yssel occupied the most senior position in Volvo's information technology
division. That there was no contractual privity between him and Volvo seems
to me to be of little consequence. It was the position to which he was
appointed, rather than the nature of the contractual relationship, that defined
what Volvo could expect of him. He had not been brought into its offices so as
to provide him with an opportunity to hawk his own wares but had been
brought there in the interests of Volvo. That his functions might not have
included recruiting, employing and acquiring staff does not seem to me to be
material. No doubt he could not be compelled to accept instructions to engage
himself in matters of that nature. But the fact is that he did engage himself in
arranging matters between Volvo and its staff. And in doing so he did not
purport to be doing so as a stranger who was conducting his own affairs. He
did so as an incident of his function as manager of the division. Indeed, there
can be no doubt that Yssel was well aware that it was precisely because he
was the manager of the division that Volvo could be induced to 'relax the care

was the manager of the division that Volvo could be induced to 'relax the care
and vigilance it would and should have ordinarily exercised in dealing with a
stranger'.


Companies, was conceived. The Defendant was both shareholder and director of IBP and Logivest.
He did not hold the shareholding on behalf of the Plaintiff. This was done without the written consent
of his employer, the Plaintiff …’.
25 2009 (6) SA 531 (SCA).
26 Id at paras 19 – 20.

35

Yssel was well aware that Van Eeden had made no independent enquiries
relating to the arrangement with Highveld and was acting entirely upon what
she was told by him. That he found it necessary to secure an agreement of
secrecy from Pieterse makes it abundantly clear that he was well aware that
Van Eeden believed that he was arranging matters pursuant to his ordinary
managerial duties and not for his own account. In short, he was well aware
that Van Eeden did not consider herself to be dealing at arm's length with an
independent broker who was arranging matters on his own account, but was
dealing with the manager of the division concerned. It was only because Yssel
was the manager that the transaction came about at all. I have no doubt that
Yssel was in a position of trust when he engaged himself in the matter and
was not entitled to allow his own interests to prevail over those of Volvo. He is
obliged in those circumstances to disgorge his secret commissions.’

[77] I am also convinced that the utilisation by Rooks of her mother’s business
(MR) constituted a conflict of interest and a violation of her fiduciary duty
under common law. 27 The point is that she utilised her particular position in
Core to cha nnel that business to her mother, even accepting it was genuine
business in the first place. Robert Paxton (Paxton) , the group audit manage r
for Value, who testified for Core, explained that the three quote system
applied in the Group, and for work such as t he work purportedly performed by
MR, three quotes was necessary. Despite a belated and obviously false
suggestions by Rooks that she did obtain three quotes, the evidence shows
that Rooks never complied with this. As such, Rooks would equally be liable
to repay these costs as a result of the violation of her fiduciary duty. In Atlas
Park Holdings (Pty) Ltd v Tailifts South Africa (Pty) Ltd 28 the Court desc ribed
‘conflict of interest’, in this context, in the following manner:

‘conflict of interest’, in this context, in the following manner:

‘A director has a fiduciary duty to prevent a conflict of interest arising between
his or her own interests and those of the company's. Conflict of interest is an

27 Compare, for example, Impala Platinum Ltd v Jansen and Others (2017) 38 ILJ 896 (LAC at para
20 where it was said: ‘ … it would be unfair to expect the appellant to retain Jansen in its employ
where Jansen had not only displayed gross misconduct in failing to comply with statutory regulations
but also contravened the duty to act in good faith by promoting his wife’s business to appellant’s
service providers thereby compromising fairness and honesty within the appellant’s business
relationships …’.
28 2022 (5) SA 127 (GJ) at para 66.

36

umbrella term which includes a duty to disclose any interest in a contract with
the company, a duty to account for secret profits, a duty not to improperly
compete with the company and, most importantly for present purposes, a duty
not to misappropriate corporate opportunities.’

[78] This brings me to the Companies Act. First, and in terms of section 76(3), a
director of a company when acting in that capacity, must exercise the powers
and perform the functions of director in good faith and for a proper purpose, in
the best interests of the company and with the degree of care, skill and
diligence that may reasonably be expected of a person in such a position .
Further, and in terms of section 77(2), a director of a company may be held
liable in accordance with the principles of the common law relating to breach
of a fiduciary duty, for any loss, damages or costs sustained by the company
as a consequence of any breach by the director of a duty contemplated in
sections 75, 76(2) or 76(3)(a) or (b). Therefore, the liability Rooks for the
conduct complained of in this case , in terms of the principles discussed
above, is statutorily circumscribed as well. As said in Venator Africa (Pty) Ltd
v Watts and Another29:

‘Section 76(3) imposes duties upon the directors to, inter alia, act in common -
good faith and in the best interests of the company. These are law principles
which have now been entrenched in the Act. These duties are owed to the
company. In the event of a wrong done to the company in terms of any of the
provisions of the section, the company can sue to recover damages.’

[79] Next, Section 75(6) of the Companies Act bears specific mention, and reads:

‘If a director of a company acquires a personal financial interest in an
agreement or other matter in which the company has a material interest, or
knows that a related person has acquired a personal financial interest in the
matter, after the agreement or other matter has been approved by the

matter, after the agreement or other matter has been approved by the
company, the director must promptly disclose to the board, or to the
shareholders in the case of a company contemplated in subsection (3), the

29 2024 (4) SA 539 (SCA) at para 31. See also Hlumisa Investment Holdings Rf Ltd and Another v
Kirkinis and Others 2020 (5) SA 419 (SCA ) at para 50; Sanlam Capital Markets (Pty) Ltd v Mettle
Manco (Pty) Ltd 2014 JDR 1229 (GJ) at para 42.

37

nature and extent of that interest, and the material circumstances relating to
the director or related person's acquisition of that interest.’

[80] In section 75(1)(b) it is provided that for the purposes of section 75, 'related
person', when used in reference to a director, has the meaning set out in
section 1. In turn, and in section 1, it is provided that: ‘ ... related, when used
in respect of two persons, means persons who are connected to one another
in any manner contemplated in section 2(1)(a) to (c)’. Section 2(1)(a) would
be applicable in casu , which reads: ‘ For all purposes of this Act - (a) an
individual is related to another individual if they - (i) are married, or live
together in a relationship similar to a marriage; or (ii) are separated by no
more than two degrees of natural or adopted consanguinity or affinity ...’

[81] From the aforesaid, there can be no doubt that Rooks’s mother is a related
person as contemplated by the Companies Act. As such, by virtue of section
75(3), Rooks was compelled to have disclosed all the transactions between
Core and MR (as her mother’s company) to the board of Core, which would
include Gottschalk. That never happened, and as such, it would be another
violation of her fiduciary duties. In the end, the following summary in Atlas
Park Holdings supra30 is apposite:

‘As indicated earlier, while s 76 includes breaches of a fiduciary duty, its
provisions are directed not only at directors, but also at those who the law has
not previously treated as subject to the identical set of fiduciary duties to
which directors are subject. In my view s 76(2), either independently or with
reference to ss 76(3) and (4), as well as ss 77(2) and (3), covers conflict -of-
interest situations, which are a species of the fiduciary -duty obligations owed
by a director. Section 76(2) (a) is concerned with the misuse of confidential
corporate information which is an asset of the company, not of a director or
shareholder. …

corporate information which is an asset of the company, not of a director or
shareholder. …

Section 76(2)(b) adequately covers situations where information comes to the
knowledge of a director or certain identified members of management who
have a duty to impart that information, provided it is material to the company

30 Id at paras 59 – 60.

38

and is not in the public domain (see the qualifiers). Such information by
definition would include information about a corporate opportunity. The
difference between the way s 75(3) and s 76(3) handle the non -disclosure of
material information is that, in the case of s 75(3), it is elevated to a conflict of
interest by a director resulting in the voiding of a transaction if the director has
a financial interest in it (or knows that a related party has such an interest),
whereas s 76 imposes a duty to disclose which, even though it may amount to
a conflict of interest for purposes of s 75, also constitutes a failure to disclose
a corporate opportunity, thereby rendering the director or member of
management civilly liable under s 77(2) ...’

[82] Everything considered, I have little hesitation in concluding that Rooks, in her
capacity of a director and as an employee of Core, materially breached her
fiduciary duties towards Core. She exploited a business opportunity for her
own benefit and was instrumental in setting up a competing business to Core,
using the business model, resources, funds, personnel and assets of Core to
do so. She did all of this behind the back of the board of Core, who was at all
times entirely unaware of what was happening. And where it came to
transacting with her mother, Rooks had a clear conflict of interest, which she
needed to disclose to the board of Core and seek approval for it. Her failure to
do so is similarly a breach of her fiduciary duties. It is not even necessary to
consider what Rooks’s motives may have been or whether she was at fault. It
must follow that Rooks is liable to repay to Core any expenditure incurred by
Core at the instance of Rooks , where it comes any tr ansactions relating to
Windsor and MR. One can actually do no better than to refer to the following
finding made by Keightly J in the judgement of 11 July 2018:31

‘The applicants have succeeded in establishing that Ms Rooks had an

‘The applicants have succeeded in establishing that Ms Rooks had an
undisclosed personal interest in the establishment of Windsor. Albeit that she had
not yet formally taken transfer of Mr Ouzman's member's interest, Ms Butler
and Mr Ouzman's affidavits establish that this was Ms Rooks' intention. Without
disclosing this interest to her co-directors, she instructed that Core's resources
be used to facilitate the establishment of Windsor, and she participated in the
activities of Windsor by, for example, vetting depots, and meeting potential

31 See para 54 of the judgment.

39

clients. She disclosed, or caused to be disclosed, price lists to Windsor. She did
not disclose to her co-directors any of this involvement, nor did she disclose to
them that Core's resources were being extensively used to support Windsor.
Even after allegations arose with the investigations by the applicants, at the
board meeting on 26 June 2017, Ms Rooks again denied that she had any
interest in Windsor. She attempted to paint them as a ‘pathetic' outfit’, implying
that Core should not be concerned by their activities. This was patently
misleading given her extensive involvement in trying to get Windsor off the
ground. This was conduct amounting to an egregious breach of the fiduciary
duties owed by Ms Rooks to Core and her co-directors …’

[83] I will now turn to each of the individual claims as articulated by Core in the
amended particulars of claim, applying all of the above considerations to such
claims, where appropriate.

Claim A

[84] As I have touched on above, I believe Core has difficulty in sustaining this
claim. This difficulty arises from the manner in which Core itself chose to
plead and bring this claim. In particular, it is pleaded as follows in th e
amended particulars of claim:

‘During at least the period February 2017 to 9 June 2017 (the date of
suspension of Rooks prior to her dismissal), Rooks stole movable assets
belonging to Core to the Value of R544 290.17.’ (emphasis added).

[85] However, Core never presented any testimony that Rooks stole the assets.
There as in fact no evidence at all that establishes a nexus between what
Core considered to be missing assets, and conduct by Rooks. In fact, what
Core did to seek to est ablish this claim was testified to by Paxton. Paxton
testified that as part of the investigation carried out into Rooks, a physical
asset check was done of all of the assets of Core, and a final list of assets
was then produced pursuant to this check. This list of assets found to exist

was then produced pursuant to this check. This list of assets found to exist
was then compared to the list of assets taken over into Core when the sale
agreement was concluded. This take on asset list, at the time when the

40

business was transferred to Core, was verified and confirmed by Rooks
herself at the time , and was thus correct . Based on the comparison between
the final list and the take on list, and also accounting for depreciation, a list of
missing assets was generated . According to Paxton , assets to the value of
R544 290.17 was missing out of a total take on asset value of some R1.1
million. But none of this proves that Rooks ‘ stole’ these assets . At best, it
simply proves that assets are missing.

[86] With regard to this claim , Rooks’s explanation that it would be impossible for
her steal about half the assets of Core without anyone ever noticing , makes
sense. Such a wholescale looting of assets would have been patently
apparent to anyone in the business, and it would take considerable effort to
steal such an amount of assets. As Rooks points out, multiple delivery trucks
would be needed. Added to this, it turned out to be common cause that there
several armed robberies at the premises, where a substantial amount of
assets were stolen, in addition to the customer stock in the warehouse.

[87] I believe that proper asset control in the Core business was lacking. This led
to the movement and / or any loss of assets due to external factors, not being
recorded. Because Rooks was to large extent left to her own devices to
manage the business, this would not be apparent to any loss control
department in Value. Thus, and in the end, the missing assets may have
arisen because Rooks did not carry out her duties properly and did not
manage her employees properly where it came to asset control. But this by no
stretch of the imagination means she stole the assets. That is simply a leap
too far.

[88] But Core has chosen to rely on theft. It has chosen not to plead a case based
on dereliction of duty or negligence on the part of Rooks relating to asset
control and management. If that was Core’s case, it needed to be specifically

control and management. If that was Core’s case, it needed to be specifically
pleaded. However, Core specifically pleaded a case of theft and is bound by

41

such case . 32 The Court in Imprefed (Pty) Ltd v National Transport
Commission33 made the following clear:

‘At the outset it need hardly be stressed that:
'The whole purpose of pleadings is to bring clearly to the notice of the Court
and the parties to an action the issues upon which reliance is to be placed.'
(Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) at 1082.)

This fundamental principle is similarly stressed in Odgers' Principles of
Pleading and Practice in Civil Actions in the High Court of Justice 22nd ed at
113:
'The object of pleading is to ascertain definitely what is the question at issue
between the parties; and this object can only be attained when each party
states his case with precision.' ...’

[89] And in Knox D’Arcy AG and another v Land and Agricultural Development
Bank of South Africa34 the Court said:

‘It is trite that litigants must plead material facts relied upon as a basis for the
relief sought and define the issues in their pleadings to enable the parties to
the action to know what case they have to meet. …’

[90] But overall considered, it can hardly be better said than to refer to the
following dictum in Molusi and Others v Voges NO and Others35:

‘The purpose of pleadings is to define the issues for the other party and the
court. And it is for the court to adjudicate upon the disputes and those
disputes alone. Of course there are instances where the court may of its own
accord (mero motu) raise a question of law that emerges fully from the
evidence and is necessary for the decision of the case as long as its

32 See Naidoo v Minister of Police and Others [2015] 4 All SA 609 (SCA) at para 30; Minister of Safety
and Security v Slabbert [2010] 2 All SA 474 (SCA) at para 11; First National Bank of Southern Africa
Ltd v Barclays Bank PLC and Another 2003 (4) SA 337 (SCA) at para 6; Absa Bank Limited v IW
Blumberg and Wilkinson 1997 (3) SA 669 (SCA) at 681G -H; Roman Catholic Church (Klerksdorp

Blumberg and Wilkinson 1997 (3) SA 669 (SCA) at 681G -H; Roman Catholic Church (Klerksdorp
Diocese) v Southern Life Association Ltd 1992 (2) SA 807 (A) at 816D-F.
33 1993 (3) SA 94 (A) at 107C-H.
34 2013 JDR 1358 (SCA) at para 35.
35 2016 (3) SA 370 (CC) at para 28.

42

consideration on appeal involves no unfairness to the other party against
whom it is directed. In Slabbert the Supreme Court of Appeal held:
'A party has a duty to allege in the pleadings the material facts upon which it
relies. It is impermissible for a plaintiff to plead a particular case and seek to
establish a different case at the trial. It is equally not permissible for the trial
court to have recourse to issues falling outside the pleadings when deciding a
case.'’

[91] Thus, and based on the case as pleaded, Core needed to prove the elements
of theft, in particular that Rooks had actually appropriated the assets and had
done so with the intention to perman ently deprive Core of such assets. As
held in Chetty v Italtile Ceramics Ltd36:

‘... The law requires for the crime of theft —
'not only that the thing should have been taken without belief that the owner ...
had consented or would have consented to the taking, but also that the taker
should have intended to terminate the owner's enjoyment of his rights or, in
other words, to deprive him of the whole benefit of his ownership'’.37

[92] The difficulty is that Core failed in two respects where it comes to the claim
that Rooks stole the assets. First, it never proved that Rooks actually took the
assets. Second, Core did not prove any intention on the part of Rooks to
terminate Core’s benefits arising from its ownership of the assets. As I have
said, what was proven was more akin to a case of Rooks failing to discharge
her duties where it came to management of assets , causing the same to be
lost. The assets could have been taken by other employees over time or have
deployed elsewhere, without it being recorded. Or it could have gone missing
in the robberies. Or it could have been sold or written off. The mere
comparison of an opening assets list to a closing asset list , and then
concluding that assets were lost, falls far short of drawing any inference that it

concluding that assets were lost, falls far short of drawing any inference that it
was Rooks that stole aal these assets. In simple terms, proving assets are
missing does not prove Rooks stole it. Therefore, and overall considered,

36 2013 (3) SA 374 (SCA) at para 10.
37 The Court was referring to R v Sibiya 1955 (4) SA 247 (A) at 257B – D; S v Van Coller 1970 (1) SA
417 (A) at 424G – F.

43

there is insufficient evidence to prove that Rooks stole the assets. By way of
comparison, the Court in Chetty supra , where the claim w as based on
theftuous use ( furtum usus ), decided that theft could not be proven
considering the following facts:38

‘I do not agree that the conduct complained of constituted the use of another's
property. What Mr Chetty did was to post false entries to the accounts to
mislead Italtile. This could well have amounted to fraud, inasmuch as it would
have caused an increase in Mr Chetty's profits, but it is not use of the stock.
Most of the stock, in any event, went missing prior to the false entries so that
no use of it was possible. The question is rather whether Mr Chetty's conduct
was calculated to conceal any unlawful taking of the stock. There is no direct
evidence of theft, nor of Mr Chetty's participation in theft. Nor is such an
inference the most plausible or the most likely one to be drawn from the
proven facts.’

[93] I thus conclude that it was not proven that Rooks stole any of the missing
assets. This claim by Core must therefore fail, and is dismissed.

Claim B

[94] This claim relates to travel and accommodation expenditure incurred by Core
at the instance of Rooks, in the period 24 February 2017 to 15 May 2017 ,
relating to various person s, which expenditure Core contends was unlawfully
incurred by Rooks in contravention of her fiduciary duties. The claim is sought
to be substantiated by a schedule of such travel expenses (with supporting
documents), in the total amount of R91 839.22.

[95] There is substance in most of this claim. First, the schedule reflects travel and
accommodation expenses involving Rooks , Singh and Nkwana, which all
formed part of establishing the business of Windsor. As already discussed in
full earlier in this judgment, this expenditure was incurred by Core and

38 Id at para 12.

44

approved by Rooks in contravention of her fiduciary duties, and as such, she
would be liable to repay the same.

[96] Second, there is expenditure incurred on behalf of several persons that have
nothing to do with the business of Core. One is Ross, who is the son of Butler,
and who was not a Core employee nor involved in the business of Core. Next
is Rook s’s mother, Mercia Rooks, who was also not a Core employee and
equally had nothing to do with the business of Core. Rooks explained that the
payment of her mother’s travel expenses was a ‘system error’ which she gave
instructions to remedy, but the simple answer to this is that if it was true, then
why was such expenses not immediately refunded when the so -called error
was discovered. Also, the expenses for Mercia Rooks were incurred in
February, August and September 2016, and surely all of this cannot be
‘system errors’. Then there Rook s’s boyfriend, Dave Lester (Lester), who is
equally not involved in the Core business at all, and who conducts his own
business of supplying soap to wash trucks. Travel expenses were also
incurred for Sonia Singh, who is the daughter of Singh, but Sonia is not a
Core employee nor was she fulfilling any duties for Core. Rooks’s attempts at
explaining this expenditure for these persons is unsustainable, as it is simply
false. There is simply no legitimate basis for Rooks to have authorised this
expenditure, and she would be liable to repay the same.

[97] There is an instance where Rooks approved travel expenses for one Theresa
Coertzen (Coertzen) , who is a spirit medium not employed by Core. Rooks
explained that she decide d to utilise the services of Coertzen , in fact at the
behest of staff at the Johannesburg and Durban branches o f Core, due to
supernatural happenings at these branches . Coertzen was employed to
conduct what can perhaps best be described as a spiritual cleanse of the
offices. As strange as this may sound, it does not follow that this expenditure

offices. As strange as this may sound, it does not follow that this expenditure
is unlawful. Rooks genuinely believed it was in the interest of the business, as
did her staff, and her approval of the expense fell within the parameters of
what she could approve. The simple point is that unlike all of the other
transactions under this claim, the expenses for Coetzen is not of the same
unlawful character and in breach of fiduciary duty considerations, that were

45

attached to the other items of expenditure. The explanation for this expense is
at least plausible. The conduct is thus not unlawful , albeit strange, and as
such, Core cannot succeed with this part of the claim. It means that s sum of
R6 419.09 must be subtracted from the schedule referred to above.

[98] And lastly, there is travel and accommodation expenditure approved for Singh
and her family, in respect of a trip to Cape Town. There is no legitimate basis
upon which it can be said that Singh had to travel to Cape Town as part of her
duties with Core , especially with her family . It was patently apparent that this
was effectively a Core sponsored holiday for her. Rooks sought to explain that
Singh was deployed to substitute in the Cape Town branch for the festive
season, but not only would there be n o operational need for this, it is also
clear the travel dates were at the end of January 2017 which does not
correspond with the festive season. In any event , this explanation was never
put to any of Core’s witnesses to answer. Thus, Rooks remains liable to repay
these expenses.

[99] I therefore conclude that Rooks is liable, under this claim, to pay Core the
sum of R85 420.13, being the balance of the claim of R 91 839.22, after the
sum of R6 419.09 is deducted.

Claim C

[100] This claim related to Rooks’s holiday residence in Kwa -Zulu Natal known as
‘Lazy Lizzard’. In the amended particulars of claim, it was alleged that during
March and April 2016, Rooks fraudulently claimed payment from Core of an
amount of R3 000.00 (from petty cash), in respect of accommodation for
herself whilst staying at Lazy Lizzard, ostensibly in the course of business of
Core. but in fact it was for her own private purposes. No evidence was
however presented on this claim by any of the witnesses of Core, and it
seems to have been abandoned. This claim is refused.

Claim D

46

[101] The claim in this instance concerns the commission payments to Rahme,
which ha ve been dealt with to some extent above , and involves a total
payment of R467 927.59 over the period 1 March 2015 to 9 June 2017, when
Rooks was finally suspended. In addition to what I have already said, and for
the reasons to follow, I consider that there is force in this claim, and that it
smacks of impropriety.

[102] In my view, the evidence showed that the commission payments made to
Rahme were irregular. In addition to the evidence by Johnson referred to
earlier in this judgment, Paxton testified that when first investigating the issue
of the commission payments to Rahme, no contract with him could be found,
and it was Rooks who later produced the contract purportedly signed in March
2015. Paxton explained that the contract was fraudulent, as the letterhead on
which the contract was produced only came into existence in August 2017,
yet the contract was purportedly dated and signed in March 2015. Paxton also
explained that it did not make business sense to continue to pay commissions
to sales agents for as long as a c ustomer merely places orders, even though
the agent does not make sales. Rooks in answer suggested that there was an
actual earlier agreement with Rahme concluded in Nucleus, in the same
terms contained in the aforesaid agreement, but she was unable to produce a
copy of it. Gottschalk testified that when he interviewed Rahme together with
Sack when this whole matter was investigated, Rahme appeared nervous and
was unable to say exactly what he did that would entitle him to earn the
commissions paid to him.

[103] Paxton further testified that it appeared that some of the commission earnings
of Rahme found its way back to Rooks. He referred to statements of income
and expenses sent by Rooks to Louis Fourie (Fourie) in Value’s loss control
department in May 2017. In particular, the statements from October 2016 to

department in May 2017. In particular, the statements from October 2016 to
April 2017 all reflected monthly payments by Rahme to Rooks, reflected as
‘sundry income ’. In her testimony, Rooks sought to explain this as Rahme
being a family friend, and she assisted him with a new vehicle, which was
being paid off by him. This version was never put to any of the witnesses for
Core, and in particular Paxton, under cross examination. The version further

47

directly contradicts what is contained in Rooks’s plea, where she pleaded that
it was her boyfriend, Lester, that was a friend of Rahme, who le nt Rahme
money because he was struggling financially, and Rahme was paying back
Lester from the income he was earning. The explanation offered by Rooks,
these anomalies and contradictions considered, is obviously false.

[104] Considering the commissions reconciliation schedule of Rahme prepared by
Johnson, Johnson indicated that there was a number of instances where
Rahme was paid a so -called flat rate in commission, without any profit
calculation being made to determine the commission and without there being
any sales reflected. She considered this to be irregular, and testified this was
on instruction from Rooks. Johnson also pointed that the last three invoice s
on the schedule were what she considered to be the fraudulent invoices
created by Rooks, and which she (Johnson) refused to match to other sales to
make it balance, as she was instructed by Rooks to do.

[105] Therefore, three things stand out. The first is the obvious fabrication and back
dating of Rahme’s purported commission agreement, which was done when it
became clear to Rooks that the commission payments to Rahme had become
an issue for Gottschalk, and he was looking for an agreement. The second is
the conduct of Rooks relating to the three invoices of Rahme prepared by her,
and then requesting Johnson to apply other sales to those invoices to make
them balance. And third, there is the clearly false explanation for the monthly
payments by Rahme to Rooks, which certainly required proper explanation.
All of this is simply not forthright behaviour, and simply dishonest conduct.

[106] In her o wn testimony, Rooks suggested that she had in fact explained to
Gottschalk who Rahme was, how his commission payments worked, and that
Gottschalk had in fact approved this arrangement by signing off on it all along.

Gottschalk had in fact approved this arrangement by signing off on it all along.
She even suggested that Gottschalk did a similar ‘deal’ with her previous
partners relating to a customer Heineken. Again, this entire version was never
put to Gottschalk under cross examination when he testified. And if this was
so, why fabricate an agreement to attempt to justify the commission s
payments to Rahme. In any event, I accept the testimony of Gottschalk that

48

he was completely unfamiliar with Rahme and the payments made to him,
which is one of the main reasons why he initiated the investigation in the first
place.

[107] It was clear that Rooks decided on the commissions that were paid to Rahme.
It is clear that Rahme was a close friend, either of her, or of Lester. There was
no evidence of any sales actually made by Rahme to substantiate those
commission payments. Instead, it was apparent, in my view, that Rahme ha d
introduced a few customers to Core in the past , and was then being paid
commissions of 30% calculated on any transactions coming f rom those
customers as infinitum, without Rahme in any manner being involved in the
sales. As Gottschalk explained, this kind of arrangement with an independent
sales agent would simply not make any business sense, and such a
transaction would never be approved . In effect, Rahme did not earn the
commissions at all by way of executing any sales activity . It also cannot be
ignored that Rooks appeared to share in these commissions.

[108] Therefore, I am satisfied that Core has made out a proper case for this claim
to be sustained. What Rooks did with regard to the commission payments to
Rahme is a material violation of her fiduciary duties and simply dishonest .
Rooks is accordingly liable to pay the sum of R467 927.59 to Core.

Claim E

[109] This claim is about Rooks having requested Butler to inflate her commission
invoice by R30 000.00, and the n arranging for payment of this amount to
made into the bank account of Rooks’s mother. This claim also specifically
featured in the earlier proceedings before Keightly J, and the learned Judge
concluded that this transaction constituted ‘strong evidence of fraud
committed by Ms Rooks against Core ’.39 But what makes matters worse is
that Rooks, when this impropriety was discovered, sought to conceal what
happened by having her mother generate a false invoice to misrepresent that

happened by having her mother generate a false invoice to misrepresent that
Butler paid the fund s into her mother’s account for goods purportedly

39 Para 32 of the judgment.

49

purchased by Butler from her mother, which never happened. It may be
added that the false invoice was generated seven months after the fact, when
the payment was queried . Considering this invoice itself, it cannot be ignored
that it was dated 12 November 2016, but only sent to Butler on 29 July 2017,
after the investigation had been initiated. I have little hesitation in concluding
that this entire transaction was fraudulent, and Rooks sought to unlawfully
conceal it.

[110] Rooks has no defence to this claim. Her persistence that it was a genuine
transaction is lamentable. In her testimony, she sought blame Johnson for the
transaction, and suggested that Johnson was to blame and Johnson was just
covering for herself. This explanation is obviously patently false, considering
what happened to the additional R30 000.00 paid to Butler , which is entirely
inconsistent with an eventuality of Johnson just covering for her self. Rooks
even persisted with the version that Butler paid the R30 000.00 to Rooks’s
mother for furniture allegedly bought by Butler fr om her mother, when Butler
made it clear this never happened and the invoice to this effect from Rooks’s
mother was fabricated at the instance of Rooks. Rooks suggested yet another
version to Bu tler under cross examination, suggesting that the invoice of
R8 340.75 was increased as Rooks wanted it to cover both September and
October 2016 commissions due to Butler, which version, despite being denied
by Butler, was obviously false, as the September and October 2016 invoices
was for a total of R17 500.00, and not R38 340.75.

[111] It is my view that with regard to the transaction discussed above, Rooks
clearly committed fraud resulting in Core paying a sum of R30 000.00 which
was never due and owing, and which landed up, due to her efforts, in her
mother’s bank account. Rooks is therefore liable to repay this sum of
R30 000.00 to Core by virtue of this claim.

Claim F

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[112] Where it comes to this claim, the purported services and renovations carried
out by MR at the premises of Core in Johannesburg and Durban in the period
May to September 2016, to the total value of R438 042.70, forms the basis of
the claim. I have already dealt with this claim to some extent earlier in this
judgment.

[113] Paxton testified that where it came to MR, there was no disclosure to the
board of Core that MR was owned by Rooks’s mother. He added that in the
course of the investigation, he could find no service agreement between Core
and MR, despite that being required in terms of applicable procedure . He
added that the three quote requirement was never applied where it came to
the work given to MR by Rooks. In fact, no quotes at all could be found to
substantiate the invoices rendered. And lastly, he pointed out that MR was not
an approved vendor on the group’s systems, which was also required, and
that the general cash account was misused to make the payments to MR,
rather than a specific vendor account. In the end, and to add insult to injury so
to speak, a reconciliation showed that MR was paid R2 000.00 more than
what was actually invoiced in total.

[114] In the course of the testimony by Paxton about these invoices, he stated that
in any event, several of the invoices exceeded the amount limit Rooks would
be able to authorise without approval. In reaction, Rooks put to him that her
limit was R150 000.00 per transaction. Paxton disputed this, and stated that
her authority limit was R20 000.00 per transaction. Rooks ultimately conceded
this, but changed tack and then suggested that Gottschalk had approved all
these invoices. There was however no evidence of such approvals having
been granted by Gottschalk or even that the invoices had been submitted to
him for approval. Once again, Rooks was not being forthright.

[115] In challenging Paxton under cross examination, a nd in giving her own

[115] In challenging Paxton under cross examination, a nd in giving her own
evidence, Rooks suggested that she in fact obtained three quotes for the work
done on the warehouse and offices, and she gave those to the group financial
director, Sack. She stated that Sack and Gottschalk gave permission to her to
proceed with the work. Gottschalk, when he testified, denied this. Added to

51

this, Rooks was unable to produce any of the alleged quotes, and could not
even produce the quote from MR, which is questionable, considering she
could have easily obtained it from her mother . Rooks also suggested that
there was some book that gave details of the work provided, but yet again,
she was not able to produce this book. Rooks was actually unable to produce
any documents to substantiate her version.

[116] As to the question whether the purported renovations / work was even done,
Core sought to lead evidence that the work and / or renovations were never
done, and in particular, no painting happened at the Durban warehouse.
Testimony was given by Sebastian Pretorius (Pretorius), a loss control officer
at Value, who was tasked to investigate whether the work had in fact been
carried out. He stated that he inspected the buildings and compared what he
saw against the invoices by MR, and found that the repairs referred to were
not done. He also interviewed staff, who informed him that they did not have
knowledge of repairs. He also confirmed with the letting agent that no such
work was done.

[117] Rooks disputed the aforesaid , and contended that all the work was indeed
done, and everything on the invoices was supplied. She referred to the fact
that she had evidence of this, but never produced such evidence. I however
do not think it is even necessary, where it comes to deciding Rook’s liability
under this claim , to finally resolve this factual dispute, even though I do
believe that it is certainly in doubt that the work was done.

[118] The invoices themselves, as they stand, are questionable. There is no proper
description of the work done, and as said above, the invoices are not backed
up by quotes, which could perhaps reflect the particulars of the work to be
done. In the end, and that one has, are vague and general references to work
purportedly done.

[119] Overall considered, the fact is that on the basis of all of the materi al and

[119] Overall considered, the fact is that on the basis of all of the materi al and
patent irregularities relating to the transactions with MR, Rooks would be

52

liable to Core. Therefore, she is liable to repay the sum of R438 042.70 to
Core.

Claim G

[120] This claim relates to the Infinity Wood transaction. It appears that there was
an incident in 2016 where the Core offices had flooded, resulting in damage to
some of the office furniture and fittings . In May 2016, Infinity Wood gave a
quote for R103 700.00 for various items of furniture, and was subsequently
paid a sum of R80 200.00 on the authorisation of Rooks for such items of
furniture allegedly supplied to Core.

[121] Paxton testified that when this matter was investigated, it was found that none
of the furniture had in fact been supplied. He stated that the furniture found in
the office s was in fact the original (old) furniture, still bearing the
corresponding asset tags. He was of the view that if this furniture was indeed
provided, it was certainly not provided to Core.

[122] According to Rooks, Sack actually approved the quote by Infinity Wood. But
then she said that Infinity Wood only supplied new couches, and refurbished
the other furniture. Paxton disputed this, stating that the asset tags could not
survive any refurbishment, and the furniture was found with asset tags.

[123] The national loss control officer for Value, being Louis Fourie, testified about
this issue as well. He explained that what he found at the premises were
exactly the same assets as reflected in the asset list of 2015. In particular,
there was no new furniture. He in fact said that he took those assets away
and stored them, as proof that it was the original old assets.

[124] The proprietor of Infinity Wood, Peter Van Zyl (Van Zyl), was called by Rooks
to testify. Ironically, he had little to say about the items of furniture that was
reflected on the quote. He did concede that the server table was not
refurbished, as suggested by Rooks, but was in fact replaced. He could not
explain why, if that was so, the server table still had an original asset tag.

53

Importantly however, he conceded that money has be en paid from the
account of Infinity Woods to Rooks at this time, but he could remember what it
was for. Van Zyl also stated that he did a lot of work on the whole reception
area and reception desk, which work is not reflected on any invoice or quote.
This certainly raises a question mark over the furniture reflected in the quote
as being supplied, and which was what the sum of R80 200.00 purportedly
paid for.

[125] On the grounds as discussed earlier in this judgment, I in any event prefer the
evidence of Paxton and Fourie. It follows that the furniture supplied by Infinity
Wood was either not supplied at all, or certainly not supplied to Core. That
renders Rooks liable to pay the sum of R80 200.00 to Core.

Claim H

[126] This claim related to Rooks allegedly stealing wine belonging to Core and
selling it to a third party. Core elected not to pursue this claim, and led no
evidence on it.

Claim J

[127] There is little to be added to what has already been discussed earlier in this
judgment about this claim, which concerns the credit note to Eva -Last. But
what must be emphasised is that it difficult to understand why C ore would
need to process a credit note for Eva-Last, considering it had no account with
Core, and there was no evide nce about what the transaction that allegedly
needed to be credited was all about. That is why, as Johnson testified, she
had to create a manual credit note. And all this happened on the direct
instruction of Rooks.

[128] Rooks admitted that she purchased product fr om Eva -Last, and offered a
convoluted explanation that she would pay for the truck to offset the product
she purchased. How this relates to the credit note is unclear. Rooks even
went so far as to suggest that she had no idea how Johnson handled the

54

transaction, and Johnson did all this of her own accord, a version never put to
Johnson under cross examination. Considering that it was undisputed that
Eva-Last had no account at Core, and it was Rooks that directly dealt with
Eva-Last, all the information Johnson used to prepare the credit note could
only have come from Rooks. And lastly in this respect, what appears to be an
often repeating pattern, what Rooks pleaded contradicted her version. In her
amended plea, she disputed the credit note per se and said she only asked
Johson to prepare a spread sheet for her for her personal expenses, as she
had actually paid Eva -Last for the products she purchased from it . This
pleaded version is entirely incompatible with the version that came out in
evidence.

[129] I believe that what Rooks effectively did was to, in exchange for her own
personal purchase from Eva -Last, give Eva -Last a credit that it could use to
arrange for the transport of its goods by Core , instead of Rooks paying Eva -
Last for her own purchase . This state of affairs is in my view further apparent
from an e-mail exchange on 10 August 2016, reflecting such scenario. This is
clearly an irregular transaction, which is nothing else but fraudulent. Rooks is
thus liable to pay the sum of the sum of R40 175,55 to Core.

The delinquent director claim

[130] According to Core, Rooks, during her tenure as a director of Core, exhibited a
pattern of serious (egregious) misconduct which is entirely inconsistent with
what is expected of her as a director under the Companies Act. This pattern of
misconduct included setting up a competing business for her own benefit
using the resources of Core, misusing the assets and personnel of Core, and
committing a number of transactions for her own account and benefit which
often was nothing short of fraudulent behaviour. As far as Core is concerned,
Rooks’s misconduct was of a significant magnitude for her to be declared a

Rooks’s misconduct was of a significant magnitude for her to be declared a
delinquent director under the Companies Act , and made application, in terms
of section 162(2), for such an order.40

40 Section 162(2) provides: ‘ A company, a shareholder, director, company secretary or prescribed
officer of a company, a registered trade union that represents employees of the company or another

55


[131] In terms of section 162(5)(c) of the Companies Act:

‘A court must make an order declaring a person to be a delinquent director if
the person- ...
(c) while a director-
(i) grossly abused the position of director;
(ii) took personal advantage of information or an opportunity, contrary to
section 76(2)(a);
(iii) intentionally, or by gross negligence, inflicted harm upon the company or a
subsidiary of the company, contrary to section 76(2)(a);
(iv) acted in a manner-
(aa) that amounted to gross negligence, wilful misconduct or breach of trust in
relation to the performance of the director's functions within, and duties to, the
company; or
(bb) contemplated in section 77 (3)(a), (b) or (c) ...’

[132] If such a declaration of delinquency is made under section 162(5)(c), such
declaration may be made subject to any conditions the Court considers
appropriate, and subsists for seven years from the date of the order, or such
longer period as determined by the Court at the time of making the
declaration.41

[133] Section 162(5) (c) has attracted the attention of the S CA in Gihwala and
Others v Grancy Property Ltd and Others 42. In that case, the factual basis for
seeking to declare director s delinquent had many comparisons to the case in
casu. In particular, it was contended that th ose directors had violated their
fiduciary duties under a n agreement, appropriated benefits for themselves

representative of the employees of a company may apply to a court for an order declaring a person
delinquent or under probation if - (a) the person is a director of that company or, subject to subsection
(2A), within the 60 months immediately preceding the application, was a director of that company; and
(b) any of the circumstances contemplated in - (i) subsection (5) (a) to (c) apply, in the case of an
application for a declaration of delinquency …’.
41 See Section 162(6)(b).
42 2017 (2) SA 337 (SCA).

56

and for their own personal enrichment , and the Court said the following,
having due regard to such case:43

‘This conduct falls squarely within s 162(5) (c) of the 2008 Act. It involved
gross abuses of the position of a director. Grancy was excluded from the
benefits of an investment, which it had substantially financed, while Mr
Gihwala and Mr Manala took those benefits for themselves. In four instances
they sought their own personal enrichment …’

[134] The Court in Gihwala supra then turned to a specific consideration of the
purpose of section 162(5)(c), and held that:44

‘... it is not a penal provision. Its purpose is to protect the investing public,
whether sophisticated or unsophisticated, against the type of conduct that
leads to an order of delinquency, and to protect those who deal with
companies against the misconduct of delinquent directors. What is that
conduct? It is helpful to examine some of the other provisions of the section.
Under ss 5(a) consenting to serve as a director, or acting in that capacity or in
a prescribed office, while ineligible or disqualified from doing so, attracts
delinquency. Under ss 5 (b) acting as a director while under a probation order
in terms of s 162, or the corresponding provision dealing with close
corporations, results in delinquency as both orders are directed at preventing
that very conduct.

Turning to ss 5(c), one starts with a person who grossly abuses the position of
director, conduct of which I have found Mr Gihwala and Mr Manala guilty. We
are not talking about a trivial misdemeanour or an unfortunate fall from grace.
Only gross abuses of the position of director qualify. Next is taking personal
advantage of information or opportunity available because of the person's
position as a director. This hits two types of conduct. The first, in one of its
common forms, is insider trading, whereby a director makes use of
information, known only because of their position as a director, for personal

information, known only because of their position as a director, for personal
advantage or the advantage of others. The second is where a director
appropriates a business opportunity that should have accrued to the

43 See paras 137 – 138 of the judgment.
44 Id at para 142 – 143. See also Smuts v Kromelboog Conservation Services (Pty) Ltd and Another
2024 JDR 4913 (SCA) at para 29.

57

company. Our law has deprecated that for over a century. The third case is
where the director has intentionally or by gross negligence inflicted harm upon
the company or its subsidiary. The fourth is where the director has been guilty
of gross negligence, wilful misconduct or breach of trust in relation to the
performance of the functions of director or acted in breach of s 77(3) (a) – (c).
That section makes a director liable for loss or damage sustained by the
company in consequence of the director having — '(a) acted in the name of
the company, signed anything on behalf of the company, or purported to bind
the company or authorise the taking of any action by or on behalf of the
company, despite knowing that the director lacked the authority to do so; (b)
acquiesced in the carrying on of the company's business despite knowing that
it was being conducted in a manner prohibited by section 22(1); (c) been a
party to an act or omission by the company despite knowing that the act or
omission was calculated to defraud a creditor, employee or shareholder of the
company, or had another fraudulent purpose ...'

[135] In Lewis Group Ltd v Woollam and Others 45 the Court appositely described
what would be serious misconduct as contemplated by section 162(5)(c),
holding that:

‘It follows that for a company or any of its shareholders to succeed in
obtaining a declaration of delinquency in respect of any of the company's
directors or former directors they must demonstrate very serious misconduct
by the person concerned. The relevant causes of delinquency entail either
dishonesty, wilful misconduct or gross negligence. Establishing so -called
'ordinary' negligence, poor business decision -making, or misguided reliance
by a director on incorrect professional advice will not be enough.’

[136] In conducting the aforesaid assessment, the particular circumstances and
responsibilities of the director in the business may be considered, which

responsibilities of the director in the business may be considered, which
includes issues like the particular role of the director, and his or her level of
responsibility. It could further include considering factors like the particular
knowledge the director may have of the business and its operations , as well
as the kind of access the director may have to business information. And

45 2017 (2) SA 547 (WCC) at para 18.

58

lastly, another valid consideration would be what level of operational trust is
bestowed on the director in conducting the operations of the business. This
was made clear in Pillay v Stokes and Others46 where the Court said:

‘It is therefore clear that the court is only mandated to declare a director
delinquent if the evidence establishes conduct that warrants such a finding. It
also follows from the above discussion that the the court may take into
account the individual director’s circumstances including but not limited to his
role, functions, knowledge, access to information and participation in the
company’s business in its assessment of that director’s conduct, the
seriousness thereof and concomitant blameworthiness …’

[137] Once delinquency as contemplated by section 162(5)(c) is established, and of
particular application to the case in casu serious misconduct on the part of the
director is shown to exist, then the Court must grant an order declaring such
delinquency. The Court has no discretion to decide otherwise. In Smuts v
Kromelboog Conservation Services (Pty) Ltd and another 47 the Court held as
follows in this respect:

‘... The term ‘egregious misconduct’ entails serious misconduct. Conduct is
either trivial or egregious. In this regard, once a court finds a misconduct
serious, as described in Gihwala, it has no discretion but to declare a person
to be a delinquent director. There are no degrees of egregiousness that the
court is required to consider.’

[138] And in Pillay supra it was said:48

‘If any of the grounds set out in section 162 are established, a court is obliged
to make an order declaring a person to be a delinquent director, thereby
disqualifying him or her from office. This is made clear by the word ‘must’ in
section 162(5).’


46 2025 JDR 3307 (GJ) at para 56.
47 2024 JDR 4913 (SCA) at para 32.
48 Id at para 42.

59

[139] So, and the above principles considered, what do the facts in casu show? I
believe the answer is straight forward, namely that Rooks committed the kind
of egregious misconduct contemplated by section 162(5)(c) , to substantiate
her being declared as a delinquent director. She completely failed to
discharge the duties of good faith and reporting that was directly bestowed on
her in the terms of her shareholders agreement with Value. Her was position
was effectively the managing director of Core, left to large extent to her own
devices to run the business as she deemed fit, bit always in the interest of all
the shareholders. As such, she occupied a particular position of trust. She had
detailed knowledge of all information relating to the operating of the business
of Core, which is how she identified the lacuna in operations which led to her
seeking to establish the competing business of Windsor, for her own personal
benefit. In then seeking to establish the business of Windsor, she deployed
personnel, resources and assets of Core, all completely without any
knowledge of her fellow directors or Value as the main shareholder. All this
was a material violation of her fiduciary duties. And added to all this, there are
many examples of what was nothing else but unauthorised, fraudulent and
questionable transactions, all designed to benefit her and her family / friends.
If this is not egregious misconduct, it is difficult to understand what would be.
Thus, all the boxes as contemplated by section 162(5)(c) have been ticked.

[140] In Smuts supra , the Court had the opportunity to consider an issue of the
declaration of delinquency of a director, in circumscribes quite comparable to
the case in casu , especially considering that Rooks was the sole director
running the business of Core . The Court came to a finding that such
declarator of delinquency was justified and warranted, based on the following
reasoning:49

declarator of delinquency was justified and warranted, based on the following
reasoning:49

‘The facts outlined above overwhelmingly show that Dr Smuts conducted
himself delinquently. His counsel seeks to suggest that Dr Smuts found
himself in a predicament, because being the sole director of Kromelboog was
inextricably linked to his implementation of the SBBP. This cannot be used as
an excuse. The position of the director is that of trust. The director owes

49 Id at paras 75 – 76.

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fiduciary duties to the company. The conduct of the director in relation to the
affairs of the company is strictly regulated by the Act. If a person commits
serious misconduct of the sort described in Gihwala, that person must be
declared a delinquent director. The court has no discretion in that regard.

Dr Smuts was clearly in a conflicted position. He was a sole director but
rendered to Kromelboog invoices for his personal financial interest without
obtaining authorisation from its shareholder. He demanded documents as part
of the scheme to accept possession of the properties belonging to
Kromelboog shortly before he was removed as a director. He caused
Kromelboog’s bank account to be frozen; used its funds to be paid for legal
fees, while the company was in a dire financial position; he caused a donation
to be paid to Landmark (where he had a personal financial interest) without
the shareholder’s authorisation; and transferred funds belonging to
Kromelboog to Landmark. That conduct clearly amounts to gross abuse of the
position of a director and infliction of harm on Kromelboog as contemplated in
ss 162(5)(c)(i) and (iii) of the Act.’

The comparisons to the case in casu are clear.

[141] In the end, it is my conclusion that Rooks committed egregious misconduct
and a breach her fiduciary duties towards Core and her fellow shareholder
(Value), as contemplated by section 162(5)(c), by grossly abusing her position
as director of Core, taking personal advantage of information or an
opportunity, contrary to section 76(2)(a), and intentionally inflicting harm upon
Core, also contrary to section 76(2)(a), by way of all the irregular and unlawful
transactions discussed in detail in this judgment, above. Further, Rooks also
acted in a manner that exhibits wilful misconduct or breach of trust in relation
to her performing the functions of a director of Core. As such, this Court has
no discretion. Rooks must be declared to be a delinquent director for a period

no discretion. Rooks must be declared to be a delinquent director for a period
of seven years from date of this judgment.

The Counterclaims

[142] I now consider the counterclaims made by Rooks in her amended plea. I can
readily say that none of these counterclaims have any substance at all. In

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fact, very little evidence was led by her on the sa me. But worse still, much of
what she needed to prove to sustain these counterclaims was not proven at
all. I will deal with this in more detail below.

[143] I will first deal with the counterclaim by Rooks relating to the purchase price
for her shares in Core. In this regard, the shareholders agreement between
Rooks and Value speaks for it self. Rooks has never challenged the validity
and application of this agreement, which stands. On the facts, Value sought to
apply the terms of this shareholders agreement and in terms thereof, paid
Rooks an amount of R24.00 for the value of her shares and loan account .
Rooks found this insulting and unacceptable, and did not even cash the
payment. Hence the counterclaim.

[144] According to Rooks, and pursuant to the sale agreement, the agreed purchase
price of the business in 2015 was an amount of R12 673 452.00. Rooks
contends that as 20% shareholder, she would be entitled to 20% of his amount,
being R2 534 690.40. But already in this respect, Rooks faces a considerable
difficulty. The business was purchased in 2015. When the events given rise to
the current case happened, it was two years later. The value of the business
would obviously have changed, especially considering Gottschalk’s evidence
that the business was now either only breaking even or running at a loss. In
order to sustain this claim, Rooks needed to prove the value of the business,
as the shareholders agreement provides that the purchase price for her
shares if a call option is exercised under the agreement is entirely based on
‘fair market value ’ at the time. 50 It follows that Rooks must prove fair market
value, and not just rely on a past purchase price. She made no attempt at all
to establish fair market value. She must thus be non -suited on this basis
alone.

[145] Rooks has another difficulty where it comes to this claim relating to the

alone.

[145] Rooks has another difficulty where it comes to this claim relating to the
purchase price for the shares. The claim does not lie against Core. Core is not
the party that acquired her shares. Her shares were acquired by Value
pursuant to the shareholders agreement. If Value wrongfully and irregularly

50 See clause 15.4.2 of the shareholders agreement.

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determined the purchase price it paid for the shares, which is what Rooks is
contending, then that claim lies against Value , and not Core. As a result, the
claim against Core in this respect is not competent.

[146] But even if the merits of this claim is considered, it was common cause that
Rooks was dismissed for misconduct based on charges relating to
dishonesty, resulting from all the earlier events discussed in this judgment.
She was actually summarily dismissed on 28 July 2017 for this misconduct ,
and that dismissal stands, having never been successfully challenged under
section 191 the L RA. Because Rooks was dismissed, regard must be had to
Clause 15 of the shareholders agreement, which contains a specific definition
of what is called a ‘ Fault Employment Termination Event’. In terms of t his
definition, such an event would be inter alia triggered by a dismissal of Rooks
on the grounds of misconduct , which is exactly what happened in casu. It is
this dismissal of Rooks for misconduct that also constitutes a ‘Trigger Event’
contemplated by clause 15.2 of the shareholders agreement , in terms of
which Value is then entitled , in terms of clause 15.2.1, to acquire Rooks’s
shares. Then, and in the case of a Trigger Event as contemplated by clause
15.2.1, clause 15.4.1 prescribes that the purchase price for her shares and
loan account shall be the sum of R1.00 per share.

[147] On the facts, Value applied clause 15.2.1 as read with clause 15.4.1, and
acquired Rooks’s shares and loan account for the sum of R24.00, as
specifically prescribed in and determined by the shareholders agreement. As
said, this agreement stands , and Rooks has made out no case why it should
not be applied. It follows that Rooks’s counterclaim in this regard, even if the
merits are considered, is entirely lacking in substance.

[148] The next counterclaim i s based upon Rooks being a member of the eFund
Umbrella Pension Fund , administered by Sanlam (the Pension Fund) . In her

Umbrella Pension Fund , administered by Sanlam (the Pension Fund) . In her
counterclaim, Rooks pleads that her interest in the Pension Fund as at June
2022 was a sum of R630 350.35. She then pleads that Core unlawfully
communicated to the Pension Fund that it must not deal with her as she was
accused of theft. She also refers to the fact that Core has under false

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pretences opened a criminal case of theft against her. Based on these facts, it
then Rooks’s case that the Pension Fund refuses to deal with her or even
speak to her whilst the criminal case is ongoing. For these reasons, Rooks
claims her pension benefit from Core.

[149] The pension fund claim by Rooks is still born. She actually led no evidence on
the same. She did not even prov e what her pension benefit was, meaning
there was no evidence to even substantiate the quantum she claimed. She
led no evid ence of any interaction between her and the Pension Fund, and
the reasons why the Pension Fund was not paying out her benefit. In any
event, it is not the case that Rooks would somehow forfeit that benefit, and it
remains due to her by the Pension Fund, and not Core, subject to the legal
processes being completed. The claim will always lie against the Pension
Fund, and claiming this benefit from Core is simply not competent.

[150] I may add with regard to this pension fund claim that Rooks in fact stated in
her counterclaim that Core obtained a ruling from the Pensions Ombudsman
confirming that the Pension Fund was within its rights not to deal with her
whilst the criminal case is ongoing. Even though no evidence on this was
presented, I have difficulty in understand how this fact, considered as it
stands, can sustain any claim against Core. In essence, it is, as pleaded,
destructive of the claim, and it shows the claim does not lie against Core.

[151] Next, Rooks claims for a loss of income over five years as a result of what she
described as unlawful conduct on the part of Core that deprived her of this
income. Yet again, no evidence was led on this claim. Rooks pleads that Core
spread false rumours to her clients and colleagues that she was going to go to
jail for 15 years for fraud. No evidence was led to this effect. There was no
evidence that Core, or anyone on behalf of Core, even made those

evidence that Core, or anyone on behalf of Core, even made those
statements. There is no indication when and by whom these statements were
made. Rooks did not even prove her income or any basis to sustain the
quantum of her claim. In short, there is absolutely nothing in evidence to back
up this claim.

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[152] Rooks further pleads, in substantiation of her loss of income claim, that as a
result of the unlawful conduct of Core, her reputation in the logistics industry
which was built up over 30 has been irreparably harmed and she has been
unable to secure employment in th e industry ever since being dismissed. But
yet again, no evidence was presented by Rooks in support of this contention.
She never establishes any connection between the fact that she may be
unemployed, or unemployable, and any conduct of Core. In short, the claim
was simply never proven.

[153] And finally, based on the same contention that Core allegedly publicly spread
untrue rumours about her, Rooks contends that her reputation and good
name has been defamed , and that the extent of the defamation is such that
she cannot work in the industry ever again. She claims damages in the sum of
R1 000 000.00 for defamation, as a result.

[154] This is however yet another instance of an entirely unproven claim, for which
no evidence was presented at all. Critically, it was never proven that Core
even published false rumours or to wh om it was supposedly published. A
general contention of false rumours ‘in the industry’ is wholly inadequate to
sustain a defamation claim. What the content of these rumours may have
been was also never proven. And lastly, there was no evidence about what
Core may have said about her was in fact defamatory. In Khumalo and Others
v Holomisa51 the Court held as follows:

‘At common law, the elements of the delict of defamation are:
(a) the wrongful and
(b) intentional
(c) publication of
(d) a defamatory statement
(e) concerning the plaintiff. ...’

[155] Properly considered, Rooks fails on all counts. She did not prove the
publication of any statement in the first place. And second, she did not even

51 2002 (5) SA 401 (CC) at para 18.

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prove that any statement that may have been made was defamatory. As held
in Waldis and Another v Von Ulmenstein 52: ‘ ... the point made is that to
defame someone is to make probable one or more of a particular set of
consequences by performing conduct of a particular kind or nature (Fagan at
402). Expressed differently, speech must contain a specific form of assertion
before it can be regarded for the purposes of the law as being defamatory ...’.
Rooks’s defamation claim therefore has zero substance, and th us cannot
succeed.

[156] In summary, and for all the reasons as set out above, all the counterclaims
raised by Rooks must fail. She is not entitled to the purchase price she claims
for her shares, considering the clear terms of the shareholders agreement,
and in any event, she has simply failed to prove the claim and has brought the
claim against the wrong party. Where it comes to her pension fund claim, the
claim also remains entirely unproven, is not competent, and is brought against
the wrong party. The loss of income claim is similarly unsustainable as there
simply exists no evidence to substantiate it. And lastly, the defamation claim
does not even get out of the starting blocks, in t he absence of proving the
existence of the publication of a defamatory statement. The counterclaims
thus fall to be dismissed.

Conclusion

[157] In conclusion, I am satisfied that Core has proven claims B, D, E, F, G and J
as articulated in the amended particulars of claim against Rooks. It follows
that Rooks is liable to pay Core the following amounts in respect of these
claims: (1) claim B the sum of R85 420.13; (2) claim D the sum of R467
927.59; (3) claim E the sum of R30 000.00; (4) claim F the sum of
R438 042.70; (5) claim G the sum of R80 200.00; and (6) claim J the sum of
R40 175.55. This gives a total amount of R1 141 765,97 which Rooks is liable
to pay Core, and judgment will accordingly be given against Rooks for this
total amount.

to pay Core, and judgment will accordingly be given against Rooks for this
total amount.

52 2017 (4) SA 503 (WCC) at para 25.

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[158] Where it comes to the issue of interest, interest accrues from date of
summons to date of payment. Summons was issued on 28 February 2018.
The applicable mora interest rate at that time is 10.25%.

[159] Core did not pursue the claims under claims C and H, and it is my view that
claim A must be refused. Thus, no judgment is given under these claims.

[160] I am also satisfied that Core has made out a proper case for Rooks to be
declared to be a delinquent director for a period of seven years from date of
this judgment, by virtue of section 162(5)(c) of the Companies Act. I see no
reason to deviate from this prescribed period.

[161] And finally, Rooks has failed to prove her counterclaims, which are all
dismissed.

Costs

[162] This only leaves the issue of costs. Core was , overall considered,
substantially successful in its claims. It should thus be entitled to costs, and
nothing has been advanced by Rooks to indicate otherwise. Core has prayed
for costs on scale C. But I do not believe such a costs order is justified. As
held in In Makasi NO and Others v Radebe and Another 53 in comparable
circumstances to the case in casu : ‘ … It is trite that the matter of costs
remains in the discretion of the court. In exercising such discretion, the court
has to weigh carefully the issues, the conduct of the parties and the unique
circumstances of this matter, which may have a bearing on the issue of costs
to ultimately make an order that would be fair, and reasonable. The resources
of the litigants must also be taken into consideration ...’. All considered, and
exercising the wide discretion that I have where it comes to costs, I believe a
costs order on the party and party scale B is justified and fair.

[163] In all the circumstances as set out above, the following order is made:

53 2025 JDR 2274 (GJ) at para 13.3.

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Order

1. Judgment is granted in favour of the plaintiff and against the defendant
in the total amount of R1 141 765.97 (one million one hundred and
fourty one thousand seven hundred and sixty five Rand ninety seven
Cents).

2. The defendant is ordered to make payment to the plaintiff of the
amount of R1 141 765.97 (one million one hundred and fourty one
thousand seven hundred and sixty five Rand ninety seven Cents) within
10(ten) days of date of this order.

3. The defendant is ordered to pay simple interest on the sum of
R1 141 765,97, at the rate of 10. 25% per annum, calculated from 28
February 2018 to date of final payment.

4. The defendant’s counterclaims are dismissed.

5. The defendant is declared to be a delinque nt director under section
162(5)(c) of the Companies Act 71 of 2008 for a period of 7(seven)
years from date of this judgment.

6. The defendant is ordered to pay the plaintiff’s costs, on the party and
party scale B.

_____________________
SNYMAN AJ
Acting Judge of the High Court of South Africa
Gauteng Division, Johannesburg

Appearances:

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Heard on: 11 to 15 August 2025
Heads of Argument: 7 and 19 September 2025

For the Plaintiff: Adv J Kaplan

Instructed by: Ian Levitt Attorneys

For the Defendant: In person

Date of Judgment: 16 February 2026