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[2026] ZAGPPHC 316
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Green v Companies and Intellectual Property Commission and Others (249566/2025) [2026] ZAGPPHC 316 (25 March 2026)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case number:
249566/2025
Date
of hearing: 13 March 2026
Date delivered: 25
March 2026
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST
TO OTHERS JUDGES:
YES
/NO
(3)
REVISED
DATE
25/3/26
SIGNATURE
In the application
between:
EDWIN
WAYLAND
GREEN
Applicant
and
COMPANIES
AND INTELLECTUAL
PROPERTY
COMMISSION
First Respondent
BELUZI
TRADING (PTY) LTD
Second Respondent
BELUZI
BANANAS LIMITADA
Third Respondent
FIRST
NATIONAL BANK LTD
Fourth Respondent
JUDGMENT
SWANEPOEL
J
:
[1]
This is an urgent application in which the applicant seeks the
following relief:
[1.1]
That the matter be heard as one of urgency;
[1.2]
That the first respondent be ordered to ‘reload’ the
applicant
as a director of the second respondent pending the outcome
of mediation and/or any other application instituted between the
parties;
[1.3]
That the first respondent be ordered to provide all documents
requested by
the applicant on 19 December 2025 in terms of the
Promotion of Access to Information Act, 2 of 2000 (“PAIA”);
[1.4]
That the first respondent be ordered to cooperate in the mediation
process
in accordance with the Mediation Directive, and that Mr. Alan
Nelson SC be appointed as mediator;
[1.5]
That, if the mediation process were unsuccessful, that the applicant
may institute
proceedings within 15 days to have his name restored as
director of the second respondent;
[1.6]
That the first and third respondents be ordered to pay the costs on a
punitive
scale;
[1.7]
Further and/or alternative relief.
[2]
Neither the first nor the fourth respondents opposed the application.
The first respondent,
the Companies and Intellectual Property
Commission, abides the decision of the Court. I shall, for the sake
of convenience, refer
to the second and third respondents
collectively as “the respondents”.
[3]
The applicant is an erstwhile director of the respondents. The third
respondent is
a company registered and incorporated in Mozambique. It
is the sole shareholder of the second respondent. During 2025 the
third
respondent brought an application in Mozambique to remove the
applicant as director, which resulted in a provisional order being
granted in favour of the third respondent, and which caused the
applicant to resign as director of the third respondent.
[4]
On 25 November 2025 the deponent to the founding affidavit, Ms.
Miriam Veloso, addressed
a notice to the applicant on behalf of the
third respondent, in which the applicant was given notice that the
third respondent
had resolved to possibly remove the applicant as
director of the second respondent. In the notice the third respondent
alleged
various incidents of malfeasance, including the
misappropriation of company assets, obstruction of the operations of
the company,
the breach of fiduciary duties, incompetence and the
failure to perform his duties adequately.
[5]
The third respondent gave notice that a virtual meeting would be held
at 10h00 on
10 December 2025 in order to consider the applicant’s
possible removal. The applicant was invited to make a presentation to
the meeting in person or through a representative before the
resolution was put to a vote. He was asked to confirm his attendance
at the meeting by 5 December 2025.
[6]
The applicant did not respond to the notice, he did not make
representations, nor
did he appear at the meeting. Consequently, the
third respondent resolved to remove the applicant as director.
[7]
On 11 December 2025 the respondents submitted a request to the first
respondent (“the
CIPC”) for it to amend its records to
reflect the applicant’s removal as director. As a matter of
course, the CIPC
advised the applicant of the request immediately.
The applicant objected to the request on 12 December 2025. On 17
December 2025
the CIPC advised the applicant that the request had
been rejected. Nonetheless, on 18 December 2025 the CIPC, apparently
pursuant
to a second amended request by the third respondent on 17
December 2025, amended its records to reflect the applicant’s
removal
as director.
[8]
The applicant alleges in the founding affidavit that he had never
received notice
of his proposed removal as is required by the
Companies Act, 71 of 2008 (“the Act”). He says:
“…
I
was not afforded an opportunity to make representations, no proper
meeting took place and no further resolution was passed for
my
removal as a director.”
[9]
The averment that notice was not given is false. Nevertheless, it is
against this
background that the applicant approached the court for
relief on an urgent basis. On 21 December 2025 the applicant launched
this
application, calling upon the respondents to deliver their
answering affidavit by 29 December 2025, in order that the matter
could
be heard on 6 January 2026. When the respondents opposed the
application, the applicant delivered a notice in terms of rule 7 of
the Uniform Rules, challenging Dentons Attorney’s authority to
act for the respondents. In response to the said notice, the
second
respondent delivered a resolution authorizing Dentons to act on their
behalf.
[10]
Before I deal with the merits of the application, it is necessary to
consider the applicant’s
authority challenge, and the
respondents’ averment that the application is not urgent, and
if it is, that the urgency is
self-created.
Rule 7
[11]
Rule 7 (1) of the Uniform Rules provides that:
“
Subject
to the provision of subrules (2) and (3) a power of attorney to act
need not be filed, but the authority of anyone acting
on behalf of a
party may, within 10 days after it has come to the notice of a party
that such person is so acting, or with the
leave of the court on good
cause shown at any time before judgment, be disputed, whereafter such
person may no longer act unless
he satisfied the court that he is
authorized so to act….”
[12]
Ordinarily, a rule 7 notice is intended to elicit proof that an
attorney has been properly authorized
to act for a party to a matter.
The second respondent has attached a resolution to its reply in terms
of rule 7, which confirms
that Dentons is authorized to act on its
behalf. The third respondent has not delivered a resolution, but it
has filed an answering
affidavit which confirms that it has
authorized Dentons to act on its behalf. I am satisfied that the
respondents have authorized
Dentons to act on their behalf.
[13]
However, the actual attack is against the authority of the remaining
director of the third respondent
to instruct Dentons to act on its
behalf, in circumstances where the third respondent’s
memorandum of association require
at least three directors to be
appointed. The same attack is made upon the authority of the second
respondent’s remaining
director to act unilaterally where the
memorandum of incorporation requires a minimum of two directors.
[14]
As far as the third respondent is concerned, article 14 of the
Articles of Association provides that
the company is managed by one
or more director, and article 19 provides that the third respondent
is bound by the signature of
one director. The Articles provide in
various instances that the ”Directors or the Board of
Directors” may represent
the company, which suggests that a
decision by a Board of at least three directors is not necessary to
bind the company.
[15]
As for the second respondent, section 66 (11) of the Act provides
that:
“
(11)
Any failure by a company at any time to have the minimum number of
directors required by this Act or
the company’s Memorandum of
Incorporation, does not limit or negate the authority of the board,
or invalidate anything done
by the board or the company.”
[16]
Consequently, the remaining director of the second respondent was
entitled to request the CIPC to remove
the applicant as director,
and, subsequently, to instruct Dentons to act on the company’s
behalf. I am satisfied that Dentons
was properly instructed to act
for the respondents.
Urgency
[17]
As I have said, the application was brought on an urgent basis, and
was intended to be heard on 6 January
2026. Notwithstanding the fact
that the application was brought on some urgency, and required the
respondents to file their answers
by 29 December 2025, which they
did, the applicant did not reply by 6 January 2026. Consequently, the
matter had to be postponed,
and furthermore, due to the voluminous
papers, the parties had to seek a special allocation.
[18]
The respondents argue, correctly, that the applicant waited from 25
November 2025 until 21 December
2025 to launch the application. There
is simply no explanation for the delay. The applicant seemed to
believe that he could wait
to see what the CIPC eventually decided.
However, he does not explain why he did not take any action for
almost a month after becoming
aware of the proposed removal, before
launching these proceedings. Moreover, the applicant does not explain
why he did not deliver
a reply timeously.
[19]
The applicant alleges that the matter is urgent because he performs
certain crucial functions within
the company. The respondents
vehemently deny this averment. It is alleged that the applicant has
been neglecting his duties for
some years, and that, in fact, it is
the deponent to the second respondent’s answering affidavit who
fulfils the essential
functions in the company. I have no reason to
disbelieve the respondents, and I certainly cannot reject their
version. I am therefore
bound to accept the respondent’s
version.
[1]
[20]
In my view, there is no urgency to the matter, but in any event, any
urgency that there may have been
was self-created. However, in light
of the view I take on the merits, I shall also deal with that aspect
of the case.
Merits
[21]
Section 71 of the Act governs the removal of directors. The relevant
provisions of section 71 are the
following:
“”
71.
Removal of directors
(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 or not
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 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-
(a)
notice of the meeting, including a copy of
the proposed resolution and a statement setting out reasons for the
resolution, with
sufficient specificity to reasonably permit the
director to prepare and present a response; and
(b)
a reasonable opportunity to make a
representation in person or through a representative, to the meeting
before a resolution is put
to a vote.
(5)
…
(6)
…
(7)
…
(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.”
[22]
The applicant’s initial denial that notice was given to him in
terms of section 71 morphed into
an acknowledgement that notice was
in fact given on 25 November 2025. The applicant’s latest
contention is now that:
[22.1]
The respondents called for a virtual meeting without providing a link
to the meeting,
resulting in the applicant not being provided with an
opportunity to join the meeting; and
[22.2]
Due to the respondents giving notice as contemplated in subsection
(3), the provisions
of subsection (8) (b) apply, and that the
respondent was, consequently, obliged to refer the matter to the
Companies Tribunal.
[23]
By virtue of the fact that the second respondent has only two
directors, the provisions of subsection
71 (1) and (2) apply. The
applicant now says that the respondents failed to give proper notice,
because they did not provide a
link to the virtual meeting.
Subsection 71 (2) (b) only requires the respondents to have provided
the applicant with a reasonable
opportunity to participate in the
meeting. All that was required from the applicant was to give notice
that he wished to attend
the meeting, which would have resulted in
the link being provided to him. In my view the notice given by the
respondents was reasonable,
and had the applicant merely responded to
the notice, he would have been able to participate in the meeting. It
was his decision
not to do so.
[24]
The alternative argument, that the second respondent was obliged to
refer the matter to the Companies
Tribunal, is equally without merit.
Subsection 71 (8) (b) is not peremptory. It provides that a director
or shareholder of a company
with less than three directors may refer
the matter to the Companies Tribunal if the circumstances referred to
in subsection 71
(3) prevail. A director or shareholder is not
obliged to do so.
[25]
In my view, prima facie, the respondents complied fully with
subsections 71 (1) and (2). The applicant contends
that the CIPC had
an obligation to consider whether the removal notice was proper. The
applicant’s latest version is that
the notice was inadequate in
that it did not provide a virtual link. In the initial letter of
objection to the CIPC the applicant
initially said that the section
71 (2) notice requirements had not been complied with, in other words
that no notice was given.
[26]
When the notice letter was produced by the second respondent, the
applicant’s version changed,
and whilst he acknowledged that
the notice was sent, he then alleged that the notice did not comply
with the requirements of section
71 (2). I have already rejected that
contention. Therefore, there is no reason to believe that the CIPC
was incorrect in removing
the applicant.
[27]
The applicant seeks an interdict. He is required to show:
[27.1]
A clear right, or at least a prima facie right though open to doubt;
[27.2]
That the applicant would suffer irreparable harm should the relief
not be granted;
[27.3]
No alternative relief;
[28]
The applicant certainly does not show that he has a clear right to be
re-appointed. I have some doubt,
also, whether the applicant has
shown a prima facie right to be re-appointed. It seems to me, that
prima facie, the proper procedure
was followed in his removal.
[29]
As far as irreparable harm is concerned, the applicant’s
original allegation was that the company
would suffer harm in that
the applicant fulfilled essential functions within the company. I
have already rejected that contention.
The applicant also says that
there is inherent irreparable harm in the fact that he is not able to
fulfil his duties as director.
I see no merit to this argument.
[30]
In
City
of Tshwane Metropolitan Municipality v Afriforum
[2]
the
Court said:
“
[55]
Before an interim interdict may be granted, one of the most crucial
requirements
to meet is that the applicant must have a reasonable
apprehension of irreparable and imminent harm eventuating should the
order
not be granted. The harm must be anticipated or ongoing. It
must not have taken place already. . .
[59]
Irreparable implies that the effects or consequences cannot be
reversed or undone. Irreparable therefore highlights the
irreversibility or permanency of the injury or harm. That would mean
that
a favourable outcome by the court reviewing allegedly
objectionable conduct cannot make an order that would effectively
undo the
harm that would ensue should the interim order not be
granted.””
[31]
The harm that the applicant alleges is that the company cannot
function properly or adequately without
him. That is, in my view,
questionable. He also says that he would be deprived of exercising
his powers as director. The applicant
has not said how such
deprivation would harm him.
[32]
Irreparable harm should not be intangible, or as it is put in Tshwane
(
supra
), the applicant is obliged to show that harm that
is not “too complex or mysterious to understand would befall
them
and others should the interim order not be granted.”
[33]
Here below I address the fact that there are alternative remedies to
address whatever concerns the
applicant may have regarding his
removal. In view thereof, I see no irreparable harm in the interim.
[34]
There are alternative remedies available to the applicant. In the
first place, he could have chosen
to take part in the meeting on 10
December 2025, and he could possibly have resolved the matter there.
Moreover, on the applicant’s
own version this is the type of
matter that could (and should) be resolved by the Companies Tribunal.
There is no reason why this
matter could not have been referred to
the Tribunal. The applicant could also have sought an order to set
aside the determination
of the CIPC to remove his name from their
records.
[35]
Finally, even if I believed that the applicant had at least a prima
facie right to be re-appointed,
then one would have to consider the
balance of convenience. The effect of re-appointing the applicant
would be that he would be
cloaked with all the authority of a
director. The allegations against the applicant are of an extremely
serious nature. I cannot,
and I do not express any view as to the
truth thereof. However, even if there were only a kernel of truth to
the averments, more
especially given the apparent conflict of
interest between the applicant’s fiduciary duties and his
alleged relationship
with a major debtor of the company, it would be
inappropriate to re-appoint the applicant for what may only be an
interim period.
Furthermore, the relationship between the applicant
and the deponent has clearly broken down. It would be ill-advised, to
seek
to restore the relationship before there is clarity on the
lawfulness of the applicant’s removal.
[36]
In my view the balance of convenience does not favour the granting of
the relief sought.
[37]
The applicant has also sought relief against the CIPC in terms of
PAIA. The parties are in agreement
that the relief should be granted
and I shall do so.
[38]
Finally, there was an application for the striking out of certain new
material in the replying affidavit.
I pointed out to the parties that
they all came to the matter with hat in hand, in that the respondents
had also sought to admit
supplementary affidavits. It seems that the
parties agree that all the evidence should be admitted, and that no
costs should be
ordered in regard thereto.
[39]
A final issue is that the applicant requires an order referring the
matter to mediation. Mediation
is a voluntary process, save in the
event of there being live litigation pending in the Gauteng High
Court, in which case the Mediation
Directive prescribes compulsory
mediation. Once I have made an order in this case, there is no
remaining live litigation between
the parties, and the Mediation
Directive does not apply. A Court cannot force a party to mediate in
order to resolve a dispute
that is not before the court. For that
reason the order sought by the applicant is not competent.
[40]
Consequently, I make the following order:
[40.1]
The first respondent is ordered to provide all documents requested by
the applicant in terms
of the
Promotion of Access to Information Act
2 of 2000
on 19 December 2025.
[40.2]
In respect of the order in paragraph [36.1] above, there is no order
as to costs.
[40.3]
The application to strike out portions of the replying affidavit is
dismissed with no order
as to costs.
[40.4]
Save for the aforesaid, the application is dismissed with costs on
Scale C.
SWANEPOEL J
JUDGE OF THE HIGH
COURT
GAUTENG
DIVISION PRETORIA
Counsel
for the applicant:
Adv.
S Wagener SC
Instructed
by:
WDT
Attorneys Inc
Counsel
for the second and third respondents:
Adv. W
Bava
Instructed
by:
Dentons
Attorneys
Heard
on:
13
March 2026
Judgment
on:
25
March 2026
[1]
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
[2]
City
of Tshwane Metropolitan Municipality v Afriforum and Another
2016
(6) SA 279
(CC) at para [55]