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IN THE COMPANIES TRIBUNAL OF SOUTH AFRICA
CASE NO: CT02433/ADJ/2025
In the matter between:
GIFT MABASA Applicant
and
Ms. JOSEPHINE MOGOKARE TSHABOENG First Respondent
Mr. LEHLOHONOLO TIM TSHABOENG Second Respondent
_________________________________________________________________________________
Presiding Member H.K Dlepu
Date of Decision: 23rd March 2026
_________________________________________________________________________________
Decision and Reasons
_________________________________________________________________________________
INTRODUCTION
1. This is an opposed application for the removal of a director in terms of section 71(8) of the
Companies Act 71 of 2008 (“the Act”), in which the Applicant, Mr Gift Mabasa, seeks the
following order from the Companies Tribunal:
i) that his unlawful removal by the Respondents as one of the two (2) directors of
Tlhomogo Trading and Projects (Pty) Ltd, as reflected in the CIPC records, being
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unlawful, unprocedural, and prejudicial, and in breach of section 71(8) of the Act,
be reversed;
ii) that he be reinstated as a director of Tlhomogo Trading and Projects (Pty) Ltd;
iii) that Ms Josephine Mogakare Tshaboeng be removed as a director of Tlhomogo
Trading and Projects (Pty) Ltd due to her breach of fiduciary duties, in that she
failed to act with the required care, loyalty, and good faith; prioritised personal
interests over those of the company; acted negligently in conducting the financial
affairs of the company, including the misdirection of funds for personal financial
gain; engaged in wilful misconduct, thereby endangering the company and its
stakeholders; committed acts of theft, fraud, and abuse of power; conducted
reckless trading; and brought the company into disrepute, thereby exposing it to
legal and reputational harm.
2. This application is primarily founded on a plethora of allegations, including unlawful
conduct by the other directors, dereliction of fiduciary duties, fraud, misappropriation of
funds, and reckless trading.
3. The Applicant further alleges that the Respondents committed a series of breaches of
contract. The application is supported by a substantial body of documents and annexures,
many of which are not necessarily relevant to the determination of the issues falling within
the jurisdiction of the Companies Tribunal. The Tribunal, being a creature of statute with
specific powers, is empowered, inter alia, to adjudicate matters relating to the removal of
a director in terms of section 71(8) of the Companies Act 71 of 2008.
4. The Applicant had also included alternative prayers that fall outside the jurisdiction of the
Companies Tribunal. Including such relief in this decision would serve no purpose and
would only dilute the essence of the present application.
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BACKGROUND
The Applicant’s submissions
5. The Applicant alleges that, during or about October 2023, his company, Ingwenya
Properties (Pty) Ltd, was invited by the Respondents who were at the time the directors
and shareholders of Tlhomogo Trading and Projects (Pty) Ltd to acquire a 70%
shareholding in Tlhomogo Trading and Projects (Pty) Ltd.
6. The Applicant further alleges that the company was insolvent at the time he was
approached to recapitalise it by way of a cash injection, in exchange for Ingwenya
Properties (Pty) Ltd acquiring a 70% shareholding and representation in the Respondents’
company as a director. The parties allegedly agreed that the recapitalisation would take
place over a period of 24 months.
7. The Applicant alleges that he provided the required guarantees for the recapitalisation and
was subsequently appointed as a co -director on 22 December 2023, representing
Ingwenya Properties (Pty) Ltd’s interests on the board of Tlhomogo Trading and Projects
(Pty) Ltd, as both a director and a 70% shareholder.
8. The Applicant further alleges that various agreements were concluded between Ingwenya
Properties (Pty) Ltd and Tlhomogo Trading and Projects (Pty) Ltd, which formalised their
relationship in respect of the recapitalisation of the latter.
9. It is further alleged that, by providing the guarantees to the Respondents, the suspensive
conditions forming the subject of the sale of shares agreement were fulfilled within the
agreed period of 24 months.
10. The Applicant submits that the suspensive conditions in terms of the sale of shares
agreement were fulfilled on 18 November 2023, being prior to the due date, and that the
transfer of shares in terms of the said agreement occurred on the same date.
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11. The Applicant has attached a board resolution dated 23 December 2023, reflecting his
appointment as a director of Tlhomogo Trading and Projects (Pty) Ltd, together with a copy
of the CIPC confirmation.
12. The Applicant alleges that, on 16 January 2025, the other director of Tlhomogo Trading and
Projects (Pty) Ltd, Mr Lehlohonolo Tim Tshaboeng, resigned without providing any
explanation, leaving the Applicant and the First Respondent as the only remaining
directors of the company.
13. The Applicant alleges that, on 22 May 2025, he received notification that a certain
individual, namely Ms Lettah Nkomo, had attempted to remove him as a director of
Tlhomogo Trading and Projects (Pty) Ltd without his knowledge. This attempt was
unsuccessful, and further attempts were similarly unsuccessful.
14. The Applicant reiterates that the suspensive conditions in terms of the sale agreement
were fulfilled on 18 November 2023, and that a meeting was convened to address the
fulfilment of those conditions.
15. The Applicant alleges that the Respondents made unlawful attempts to alter the
company’s register of directors without complying with the procedures prescribed in
section 71(8) of the Companies Act.
The Respondent’s Submissions
16. The Respondents allege that, on or about 16 October 2023 and 22 December 2023, they
entered into a Share Purchase Agreement and a Pre- Contract Agreement with the
Applicant, both subject to certain suspensive conditions to be fulfilled within specified
time periods. The salient terms of the Pre- Contract Agreement included, inter alia, the
following:
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i) that a definitive sale agreement was to be concluded within 30 days following a
14-day due diligence period, and that the full purchase price or guarantees were
to be delivered on the closing date;
ii) that a meeting was to be held to agree on the scope and timelines of the
renovations, followed by payment within seven (7) days;
iii) that the Applicant was required to provide proof of the availability of funds for the
proposed recapitalisation; and
iv) that the Applicant was to make timeous construction -related payments as a
demonstrable indication of funding capacity.
18. The Respondents allege that the Applicant failed to comply with the suspensive
conditions of the agreements. A meeting was convened to discuss the way forward;
however, the Applicant allegedly failed to remedy his non-compliance. As a consequence,
the Share Purchase Agreement and Pre- Contract Agreement did not become operative,
and all agreements entered into between the parties lapsed and became null and void.
19. The Respondents further allege that the Applicant, without authority, effected changes to
the CIPC register of directors and fraudulently caused his name to be recorded as a
director of Tlhomogo Trading and Projects (Pty) Ltd.
20. The Respondents state that they attempted to remove the Applicant’s name from the
CIPC records on the basis that such registration was fraudulent and unauthorised by the
lawful directors and shareholders of Tlhomogo Trading and Projects (Pty) Ltd.
21. The Respondents further allege that the Applicant was never authorised to effect any
amendments to the CIPC company records to include himself as a director and
shareholder. Such amendments were allegedly made without the knowledge, consent, or
authority of the existing directors or authorised representatives of the company and are
accordingly unlawful and without legal effect.
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22. The Respondents aver that a Ms Connie Mathebula was, at all material times, the duly
authorised company representative responsible for effecting any changes at CIPC, and
that the impugned changes were not made by her.
23. The Respondents, through their legal representatives, issued a termination and/or
cancellation letter with immediate effect and offered to refund the Applicant any amounts
paid towards the alleged purchase of shares.
24. The Applicant was requested to reverse all alleged unauthorised CIPC entries, to cease
and desist from representing himself as a director or shareholder of Tlhomogo Trading and
Projects (Pty) Ltd, and to engage with the Respondents’ attorneys to arrange for a refund of
any amounts paid within a specified period. The Respondents indicated that, failing
compliance, they would institute civil proceedings and lay criminal charges against the
Applicant.
25. In an effort to regularise the position, the Respondents convened a shareholders’ meeting
to consider the removal of the Applicant as a director in terms of section 71(1) of the
Companies Act 71 of 2008.
26. On 1 August 2025, the Respondents issued a notice convening a shareholders’ meeting in
terms of section 71 of the Companies Act, to consider and, if deemed appropriate, to pass
an ordinary resolution for the removal of the Applicant, Mr Gift Mabasa, as a director of
Tlhomogo Trading and Projects (Pty) Ltd.
27. The meeting was held on 19 August 2025, at which a resolution was adopted to remove
the Applicant as a director of the company. The Applicant attended the meeting and was
afforded an opportunity to make representations as to why he should not be removed.
28. A resolution to remove the Applicant as a director of Tlhomogo Trading and Projects (Pty)
Ltd was passed in his presence, and the CIPC was duly notified, following which the
removal was effected in the CIPC register of directors.
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APPLICABLE LAW
29. Section 71 of the Companies Act 71 of 2008 (“the Act”), which regulates the removal of
directors, is applicable and provides as follows:
“(1) Despite anything to the contrary in a company’s Memorandum of Incorporation or rules,
or any agreement between a company and a director, or between any shareholders and a
director, a director may be removed by an ordinary resolution adopted at a shareholders’
meeting by the persons entitled to exercise voting rights in an election of that director, subject
to subsection (2).
(2) Before the shareholders of a company may consider a resolution contemplated in
subsection (1):
(a) the director concerned must be given notice of the meeting and the resolution, at least
equivalent to that which a shareholder is entitled to receive, irrespective of whether the
director is a shareholder of the company; and
(b) the director must be afforded a reasonable opportunity to make a presentation, in person
or through a representative, to the meeting before the resolution is put to a vote.
(3) If a company has more than two directors, and a shareholder or director has alleged that a
director of the company:
(a) has become—
(i) ineligible or disqualified in terms of section 69, other than on the grounds contemplated in
section 69(8)(a); or
(ii) incapacitated to the extent that the director is unable to perform the functions of a director,
and is unlikely to regain that capacity within a reasonable time; or
(b) has neglected, or been derelict in the performance of, the functions of a director,
the board, other than the director concerned, must determine the matter by resolution, and
may remove a director whom it has determined to be ineligible or disqualified, incapacitated,
or negligent or derelict, as the case may be.
(4) Before the board of a company may consider a resolution contemplated in subsection (3),
the director concerned must be given:
the director concerned must be given:
(a) notice of the meeting, including a copy of the proposed resolution and a statement setting
out the reasons for the resolution, with sufficient specificity to reasonably allow the director to
prepare and present a response; and
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(b) a reasonable opportunity to make a presentation, in person or through a representative, to
the meeting before the resolution is put to a vote.
(5) If, in terms of subsection (3), the board of a company has determined that a director is not
ineligible or disqualified, incapacitated, or has not been negligent or derelict, as the case may
be, the director concerned, or a person who appointed that director as contemplated in
section 66(4)(a)(i), if applicable, may apply within 20 business days to a court to review the
determination of the board.
(6) If, in terms of subsection (3), the board of a company has determined that a director is
ineligible or disqualified, incapacitated, or has been negligent or derelict, as the case may
be—
(a) any director who voted otherwise on the resolution, or any holder of voting rights entitled to
be exercised in the election of that director, may apply to a court to review the determination
of the board; and
(b) the court, on application in terms of paragraph (a), may—
(i) confirm the determination of the board; or
(ii) remove the director from office, if the court is satisfied that the director is ineligible or
disqualified, incapacitated, or has been negligent or derelict.
(7) An applicant in terms of subsection (6) must compensate the company, and any other
party, for the costs incurred in relation to the application, unless the court reverses the
decision of the board.
(8) If a company has fewer than three directors—
(a) subsection (3) does not apply to the company;
(b) in any circumstances contemplated in subsection (3), any director or shareholder of the
company may apply to the Companies Tribunal to make a determination contemplated in that
subsection; and
(c) subsections (4), (5), and (6), each read with the changes required by the context, apply to
the determination of the matter by the Companies Tribunal.
(9) Nothing in this section deprives a person removed from office as a director in terms of this
section of any right that person may have at common law or otherwise to apply to a court for
damages or other compensation for—
(a) loss of office as a director; or
(b) loss of any other office as a consequence of being removed as a director.
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(10) This section is in addition to the right of a person, in terms of section 162, to apply to a
court for an order declaring a director delinquent or placing a director on probation.”
POINTS OF LAW RAISED BY THE RESPONDENTS
30. The Respondents raised the following points in limine at the commencement of the
hearing:
30.1. The Companies Tribunal is a creature of statute, and its jurisdiction is neither
inherent, general, nor discretionary. It may only adjudicate applications
expressly permitted by the Companies Act 71 of 2008 (“the Act”) and may
grant only those remedies specifically contemplated by the Act.
30.2. Regulation 142 is procedural in nature. It regulates the manner in which an
application is brought before the Tribunal; it does not create substantive rights,
expand standing, or confer jurisdiction where none exists under the Act.
30.3. The Respondents submitted that the Applicant’s founding affidavit and the
relief sought reveal that the dispute is, in substance:
i) a dispute arising from a failed and unfulfilled commercial transaction;
ii) a dispute concerning alleged contractual entitlements, repayment of
monies, or a “forced buy-out”;
iii) a dispute permeated by allegations of fraud, theft, and criminal
conduct; and
iv) a dispute in respect of which the Applicant lacks the requisite locus
standi to seek the relief claimed, in that Ingwenya Properties (Pty) Ltd
never acquired any shares in the company due to the non -fulfilment of
the suspensive conditions contained in the Share Purchase Agreement
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(SPA) and the Pre-Contract Agreement (PCA). No shares were issued or
transferred, and the Applicant is neither a shareholder nor a prescribed
officer of the company. The Applicant has brought this application in his
personal capacity, whereas the alleged directorship was not to be in his
personal capacity but as a representative of Ingwenya Properties (Pty)
Ltd. Furthermore, Ingwenya Properties (Pty) Ltd is not a shareholder in
Tlhomogo Trading and Projects (Pty) Ltd.
31. Having considered the Respondents’ submissions together with the Applicant’s papers,
the Tribunal is of the view that only the Applicant’s prayer in terms of section 71(8)
should proceed. The remaining prayers fall outside the jurisdiction of the Tribunal and
cannot be entertained, as they concern issues beyond the Tribunal’s statutory
mandate.
EVALUATION
32. The Applicant’s case is premised on his alleged unlawful removal as a director in
terms of section 71(8) of the Companies Act 71 of 2008 (“the Act”).
33. The Respondents, on the other hand, contend that the Applicant fraudulently procured
his appointment as a director. In the alternative, they submit that, even if the Tribunal
were to find that the Applicant was validly appointed as a director, he was lawfully
removed by the shareholders in terms of section 71(1) of the Act.
34. According to the agreements concluded between the parties, the Applicant’s
appointment as a director was contingent upon Ingwenya Properties (Pty) Ltd
acquiring a 70% shareholding in Tlhomogo Trading and Projects (Pty) Ltd. In my view,
the Applicant failed to adequately address whether Ingwenya Properties (Pty) Ltd
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indeed became a shareholder in the Respondents’ company. The Applicant’s
appointment was not independent, but was intended to be in a representative capacity
on behalf of Ingwenya Properties (Pty) Ltd.
35. The Respondents submit that the Applicant breached the terms of the agreements,
with the result that the agreements lapsed. Consequently, the Applicant could not
have been validly appointed as a director in his personal capacity in the absence of
Ingwenya Properties (Pty) Ltd acquiring the contemplated 70% shareholding in
Tlhomogo Trading and Projects (Pty) Ltd.
36. The Applicant, in his papers, failed to properly address the issue of share acquisition
by Ingwenya Properties (Pty) Ltd, and elected not to link his appointment as a director
to such shareholding. Furthermore, the Applicant did not deal with the shareholders’
meeting which he attended, at which a resolution was adopted to remove him as a
director in terms of section 71(1) of the Act.
37. The Applicant relied on clauses in the agreements as the basis for submitting his
details to the CIPC for appointment as a director, notwithstanding that the agreements
were subject to suspensive conditions. During the hearing, the Applicant contended
that he had fulfilled the conditions by providing guarantees, but failed to demonstrate
that such guarantees satisfied the requirements for the transfer of shares in terms of
the sale agreement.
38. Even if the Applicant were to be regarded as a director, the documents before the
Tribunal indicate that the Respondents complied with section 71(1) of the Act. The
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removal process satisfied the procedural requirements, including notice and the
opportunity afforded to the Applicant to make representations.
39. The resolution relied upon by the Applicant as proof of his appointment appears to
have formed part of agreements subject to suspensive conditions, which were not
proven to have been fulfilled. There is no evidence that the sale of shares was finalised.
The Applicant also failed to provide proof that Ingwenya Properties (Pty) Ltd became a
shareholder in Tlhomogo Trading and Projects (Pty) Ltd. Such proof would have been
necessary to justify his appointment as a director.
40. In the circumstances, one would have expected a stand -alone resolution by the
directors and/or shareholders confirming the Applicant’s appointment, supported by
minutes evidencing the fulfilment of the suspensive conditions. Section 70(3) of the
Act governs the appointment of directors, read together with the Companies
Regulations, which require, inter alia, the filing of a Form CoR39 supported by duly
signed resolutions. No such documentation was properly provided to substantiate the
Applicant’s appointment.
ORDER
In the premises, the following order is made:
a. The Application is hereby dismissed.
HLALELENI KATHLEEN DLEPU
Tribunal Member