Mamokebe Investments (Pty) Ltd v Sokhela and Others (2026/039448) [2026] ZAGPPHC 293 (10 April 2026)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA





Case number: 2026-039448

In the matter between:


MAMOKEBE INVESTMENTS (PTY) LTD Applicant

and

SOKHELA, PROTUS FRANCIS MHAWUKELWA First respondent

BEY, INAYAT ALI Second respondent

JORDAAN, JOHANNES PETRUS Third respondent

ADAM, MOHAMED Fourth respondent

COMPANIES AND IP COMMISSION Fifth respondent


Delivered: This judgment was prepared and authored by the Acting Judge whose name is
reflected and is handed down electronically by circulation to the parties’ legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date and time for hand -down is deemed to be 10:00 on 10 April
2026.

Summary: Company law – Mining law – Contract law – Directors – Appointment – Purported
shareholders’ agreement relied upon to justify appointment and CIPC recordal of
directors – Agreement void ab initio for contravening s .11 of the MPRDA –
Purported a greement in any event never implemented in accordance with
Companies Act – Non-shareholder lacking standing to convene shareholders’
meeting – Appointments and recordals null and void – Admissions and
common-cause forgery dispositive – Urgent interim interdict granted restraining
respondents from acting as directors of applicant company.


JUDGMENT

1. REPORTABLE: YES.
2. OF INTEREST TO OTHER JUDGES: YES.
3. REVISED: NO.

SIGNATURE:

F.J. LABUSCHAGNE, AJ


[1] This matter came before me in the Dedicated Insolvency Court as one of
three inter-related urgent applications, set down to be heard together. The
order set out at the conclusion of these reasons was granted on
26 March 2026, with an indication at the time that reasons would follow.
These are those reasons.1

[2] In essence, the order interdicted pendente lite the first, second and fourth
respondents (the opposing respondents) from acting or purporting to act on
behalf of the applicant company.





[3] The essential basis of the application was the allegation that the opposing
respondents were illegitimate directors of the applicant, appointed and
recorded through an unlawful process: unlawfulness in respect of their

1 This matter was heard first, with the winding-up application by an alleged creditor, 2 Seam (Pty)
Ltd, under case number 2026-033992 being postponed sine die. The applicant in the aforesaid
winding-up application served a rule 7 notice in respect of the applicant company herein,
Mamokebe Investments (Pty) Ltd (the respondent in the winding -up application). Ultimately, no
winding-up application could proceed pending the determination of the issues in this application
as the question in the winding -up application would have been, who is entitled to oppose the
relief sought? The deponent to the founding affidavit herein, as director of Mamokebe on the
one hand (sole director on his version) or the persons reflected as the first, second and fourth
respondents herein on the other hand ? In my view, the rule 7 notice filed by 2 Seam would
have impacted its urgency negatively in any event (although I make no finding it th at regard).
Be that as it may, ultimately, absent a ruling as to who may represent Mamokebe proper,
proceeding with the winding-up application would have been premature, and would have
negated audi alteram partem and section 34 of the Constitution of the Republic of South Africa,

1996. The other urgent application, launched by Mamokebe (through the first, second and
fourth respondents herein) under case number 2025-028369 was also postponed sine die as it
could not proceed pending the adjudication of this application and the issues raised herein.

purported election, and fraud in respect of their subsequent recordal with the
Companies and Intellectual Property Commission (CIPC). The allegation of
illegitimacy was premised on the assertion that a non -shareholder convened
and conducted a purported shareholders’ meeting at which resolutio ns were
taken appointing the impugned directors.

[4] It is common cause that the subsequent CIPC recordal of those directors
was tainted by forged signatures of the legitimate directors.

[5] Although the papers are extensive and the factual background complex, the
dispute ultimately crystallises around three interrelated questions:


(a) first, the legal status and effect of the 2016 Alcucento agreement
and the purported shareholders’ meeting of 5 October 2022: in
particular, whether Alcucento ever lawfull y acquired shares in the
applicant and whether the resolutions adopted at that meeting it
purported to convene, validly appointed the impugned directors.




(b) Second, the effect of the order granted by Raubenheimer AJ on 7
March 2025, and whether that order, granted by agreement, had the
consequence of constituting or confirming the composition of the

applicant’s board, notwithstanding the alleged invalidity of the earlier
appointments.

(c) Third, the procedural challe nge raised under Rule 7(1), namely
whether the applicant is properly before court and whether its
attorneys were duly authorised to institute these proceedings in light
of the disputed composition of the board.

[6] The opposing respondents’ opposition is dire cted principally at the second
and third of these issues. They contend that the Rule 7 challenge and the
proper interpretation of the Raubenheimer order are dispositive, and that the
application falls to be dismissed on those grounds without the court reac hing
the merits of the share issuance, the validity of the impugned shareholders’
meeting, or the doctrine of de facto directorship.

Urgency



[7] The applicant is a company regulated by the Companies Act 71 of 2008 (the
“Companies Act”) and the common law.





[8] I held that the matter was urgent as it concerned issues of corporate
governance and unlawfulness, with an ostensible creditor poised to pursue
an urgent winding -up application premised, inter alia, on just and equitable
grounds and allegations that the company was rudderless.

[9] The procedure contemplated in Rule 6(12) is not there for the taking. An
applicant must explicitly set forth the circumstances alleged to r ender the
matter urgent and, more importantly, must demonstrate the absence of
substantial redress at a hearing in due course.


[10] The enquiry into urgency is therefore inseparably linked to whether
substantial redress would be available in the ordinary course.2


[11] In Apleni v President of the Republic of South Africa ,3 Fabricius J held
that where allegations of abuse of power are made (particularly where such
allegations may impact the rule of law ) the relief sought may warrant urgent
consideration.






[12] Section 5 of the Companies Act provides for its interpretation in light of
section 7, which sets out the purposes of the Act. Those purposes include
promoting the Bill of Rights, encouraging transparency and high standards of
corporate governance, and fostering efficient and responsible management
of companies.

2 See East Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite (Pty) Limited
and Others (2012) JOL 28244 (GSJ) at paras 6 and 7 and Mogalakwena Local Municipality
v The Provincial Executive Council, Limpopo and Others (2014) JOL 32103 (GP) at paras
63 – 64.

3 Apleni v President of the Republic of South Africa 2018 1 All SA 728 (GP) para 10.
Although in the context of State conduct, the principle finds application in respect of companies
regulated by the Companies Act as well.

[13] Allegations of ongoing contraventions of legislation that affect corporate
governance and implicate the rule of law may denote urgency, particularly
where such contraventions e ntail the continued usurpation of corporate
control with ongoing prejudicial effect. In such circumstances, substantial
redress will not ordinarily be obtainable in due course, warranting urgent
judicial intervention.

[14] This matter concerns allegations of u nlawful conduct resulting in a
usurpation of corporate control . Such conduct has inevitable external
consequences, potentially prejudicing third parties who engage with the
company in good faith in the commercial sphere.

[15] Although a term such as “corporate hijacking” is sometimes used colloquially
to describe disputes of this nature, it is not a strict legal term. The legal
enquiry turns not on terminology, but on whether the facts disclose an
unlawful or fraudulent assumption of corporate control, or related forms of
misconduct recognised in law.4

[16] For these reasons, and in circumstances where the governance of a
company is allegedly usurped through ongoing illegality, I found that the
matter was urgent, as the applicant would not obtain substantial r edress in
due course absent immediate judicial intervention.

4 If someone improperly assumes control, it may be described as a usurpation of corporate
control or a fraudulent takeover, or corporate control fraud. If the wrongdoing involves misuse
of company assets, it may be characterized as misappropriation, embezzle ment, or asset
stripping.

The role players



[17] The applicant, Mamokebe Investments (Pty) Ltd (“ Mamokebe”), is a
company with its registered address in Centurion, Gauteng.

[18] The deponent to the founding affidavit, Mr Kgaapu Stanley Mphahlele
(“Stanley”), stated that he is the sole director of the applicant and a
shareholder.


[19] The first, second and fourth respondents, Mr Sokhela, Mr Bey and Mr Adam,
opposed the relief sought and contended that they are di rectors of the
applicant. They are referred to herein as the opposing respondents or the
illegitimate directors.

[20] The fifth respondent, the Companies and Intellectual Property Commission
(“CIPC”), did not oppose the relief sought.


[21] The third respondent, a n attorney, resigned as a purported director of the
applicant and likewise did not oppose the relief sought.
Incorporation of the applicant

[22] In corporate matters, it is necessary to consider the incorporation of the
company, its shareholding and any transfer thereof, 5 together with the
resultant appointment of directors, as related but discrete enquiries in order
to ascertain the complete factual position.

[23] Corporate law is inherently complex. In Ex Parte NBSA Centre Ltd ,6
Coetzee DJP emphasised tha t company law is not confined to the statute
applicable at any given time, but has its own internal logic and developed
principles, including aspects of an underlying common law, which must be
understood to properly analyse corporate disputes.


[24] In this matter, a fundamental disregard for established principles of corporate
law, particularly those governing corporate governance and the separate
juristic personality of a company, lies at the heart of the disputes that arose
and the defences that were subsequently advanced.

[25] The applicant was incorporated as Adzam Trading  161  (Pty)  Ltd on 12 
September  2006 as an inactive shelf company. The incorporator,
Mr Stephanus Andries Gouws (“Gouws”), was its sole shareholder.

5 Transfer of shareholding is a legal term. Shareholding in a company can only be obtained
through shares which have been authori sed. Once authorized, shares remain unissued, until
issued. Typically, the incorporator will take up shareholding. In this instance, 1000 authorized
(but unissued) shares were provided for (as par value shares at the time) and of those, the
incorporator, Mr. Gouws allotted himself 100 shares (100 issued authorized shares) with 900
authorized but unissu ed shares remaining). A person can acquire title to shares in one of two
ways. Either directly from the company, which can then allot and issue the shares to him, or
usually by way of purchase, with result that the shares will be transferred. In the former , the
company is a party to the subscription agreement, and in the latter, the company is not a party

as the agreement is one of sale between the holder of the shares and the purchaser (subject to
any rights of pre -emption or other restrictions such as pro vided for in the Memorandum of
Incorporation, or Chapter 4 of the Companies Act).

6 Ex Parte NBSA Centre Ltd 1987 (2) SA 783 (T) at 787.

[26] The applicant’s name was changed to its current name on 7 November 2006.
On 9 November 2006, the entire issued shareholding was transferred by
Gouws, with 49 shares transferred to Stanley and 51  shares to
Ms Motjoadi Ramatsimele Francina (“Francina”).

[27] Stanley and Francina were appointed as directors of the applicant on
14 November 2006.7

The Alcucento agreement

[28] For ten years the status quo in the applicant remained uncontentious. On
13 September 2016, an agreement was concluded between the two
shareholders, Stanley and Francina on the one hand , the applicant as
company on the other hand , and also a third party, Alcucento (Pty) Ltd t/a
Rubicon Consortium Mining, represented by the fourth respondent (the
Alcucento agreement).

[29] The document is described as a shareholders’ agreement. In substance, it
contemplated that Alcucento would acquire a shareholding in the applicant
and exercise shareholder rights.


Alcucento agreement void or voidable?



7 Ms. Motjoadi Ramatsimele Francina has since passed away (her shareholding vesting in her
deceased estate to be dealt with by her executor).

[30] At the time the Alcucento agreement was concluded, the applicant was the
holder of a prospecting right (the mining right was subsequently granted) .
Section 11(1) of the Minerals and Petroleum R esources Development
Act 28 of 2002 (“MPRDA”) provides that a prospecting or mining right, or a
controlling interest in a company holding such a right, may not be ceded or
disposed of without the written consent of the Minister, save in the case of
listed companies.

[31] The Alcucento agreement plainly fell within the ambit of section 11, as it
contemplated the transfer of a controlling interest in a non -listed company.
Notably, the agreement contained no suspensive condition making its
operation subject to mi nisterial consent, and no such consent was ever
obtained.





[32] The applicant contended that the Alcucento agreement is void as it
contravenes legislation. While pacta sunt servanda underpins the
enforcement of agreements seriously entered into, agreements contrary to
public policy will not be enforced.8

8 Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A) where it was held that agreements which are
clearly inimical to the interests of the communi ty, whether contrary to law, or morality, or run
counter to social or economic expedience, will accordingly, on the grounds of public policy, not
be enforced. Usually, an indication that the Legislator intended the agreement to be void
(unless the sanction provides suitable protection against the mischief). If public interest stands
to be protected, it would be an indicator that the legislator intended the agreement to be void. A

[33] Public policy is informed by legislation, the common law, good morals, and
the public interest. In determining whether a statut ory contravention renders
an agreement void, the relevant statute must be interpreted holistically,
having regard to its object, the mischief it is directed against, whether
criminal sanctions are imposed, the protection of individual or public
interests, and the consequences of recognising or invalidating the
agreement.9











[34] Section 11 does not expressly stipulate the civil consequences of
non-compliance, beyond the criminal sanctions in sections  98 and 99.
However, its language is peremptory and couched as a direct prohibition. 10
Section 11(4) further obliges transactions contemplated in subsection (1) to
be lodged for registration within 30 days. The peremptory nature of

balance-of-convenience test is employed that questions whether the nullity of the contract
would cause greater inconvenience and injustice that allowing the illegal conduct to stand. The
following factors usually stand to be considered: the object of the statute and the mischief it is
directed against, whether a criminal sanction is imposed the protection of an individual or public
interest and the consequences of a particular interpretation of an agreement. These factors will
give rise, if present, to an agreement being void ab initio for want of statutory compliance.

9 Metro Western Cape (Pty) Ltd v Ross 1986 (3) SA 191 (A); Absa Insurance Brokers (Pty)
Ltd v Luttig 1997 (4) SA 229 (SCA).

10 Directory language is advisory or procedural in nature whereas peremptory language is
mandatory or compulsory. The purpose of the latter is to protect rights or enforce law whilst the
effect of the former is generally to guide procedure.

section 11 must be interpreted within the broader statutory s cheme and
objects of the MPRDA.

[35] Sections 2, 3 and 4 of the MPRDA emphasise the State’s custodianship of
South Africa’s mineral and petroleum resources for the benefit of all South
Africans, and require that the Act be interpreted in a manner consistent wi th
those objects.11




[36] Section 11 ensures that any proposed acquirer of a prospecting or mining
right, or a controlling interest in a right -holding company, is assessed by the
Minister to confirm compliance with the statutory eligibility criteria.12 Absent
ministerial oversight, the regulatory framework governing the allocation and
retention of such rights would be undermined.

11 Restraints against the transfer, alienation or disposal of prospecting or mining rights also occur
in other mineral law systems. For instance, s imilar prohibitions against assignment, sub -letting
or transfer of mining rights or interests in mining rights without ministerial permission or
approval, occur in the mining laws of some Australian states (section 300 Mineral Resources
Act 1989 (Qld); sec tion 83(1) of the Mining Act 1971 (SA); section 33 Mineral Resources
Development Act 1990 (Vic); and section 83(1)(d) of the Mining Act 1978 (WA)). Before
approval is granted in the state of Victoria, the Minister must be satisfied that the applicant is a
fit and proper person to hold the mining licence, intends to comply with the Act, genuinely
intends to do the work, has an appropriate work programme, and is likely to be able to finance
the proposed work and rehabilitation of the land (section 15(6)) (see PJ Bandenhorst & JJ du
Plessis De Jure 45 Volume 2 2012 pp. 388 – 404 Case Note on Mogale Alloys (Pty) Ltd v
Nuco Chrome Boputhatswana (Pty) Ltd 2011 (6) SA 96 (GSJ): Alienation or disposal of a
“controlling interest” in a prospecting company.)


12 Section 11(2) provides that the consent referred to in subsection (1) must be granted if the

cessionary, transferee, lessee, sublessee, assignee or the person to whom the right will be
alienated or disposed of (a) is capable of carrying out and complying w ith the obligations and
the terms and conditions of the right in question; and (b) satisfies the requirements
contemplated in section 17 (which in respect of a prospecting right, refers to the section 17
requirements).

[37] In Vantage Goldfields SA (Pty) Ltd v Arqomanzi (Pty) Ltd ,13 the Supreme
Court of Appeal held that section 11(1) must be interpreted in light of the
objects of the MPRDA, particularly State custodianship and regulatory
oversight. In Mogale Alloys (Pty) Ltd v Nuco Chrome Boputhatswana
(Pty) Ltd,14 Coppin J explained that ministerial consent is required where a
transaction results in a change of control, even if no single party acquires
that control. These authorities confirm that transactions such as the
Alcucento agreement fall squarely within the regulatory purview of
section 11.






[38] There is an uncommenced amendment to section 11 of the MPRDA (as of
date of this judgment).15 Section 11(5) will provide that any cession, transfer,
letting, subletting, assignment, alienation or disposal of prospecting or
mining right or an interest in a corporation or company made in
contravention of subsection (1) is void. The amendment underscores the
intention of the Legislator in respect of section 11.


13 Vantage Goldfields SA (Pty) Ltd v Arqomanzi (Pty) Ltd (733/2022) [2023] ZASCA 106;
[2023] 3 All SA 667 (SCA) (27 June 2023) [48] and [50]. The objects of the MPRDA in section
2 must be borne in mind and that the provisions of section 2 (a) and (b) are particularly relevant,
which are buttressed by sections 3 and 4. It was further held that the section 11(1) prohibition
seeks to enhance the objects in section 2 (a) and (b).

14 Mogale Alloys (Pty) Ltd v Nuco Chrome Boputhatswana (Pty) Ltd 2011 (6) SA 96 (GSJ).

15 Section 11(5) inserted by section 8(c) of Act 49 of 2008 with effect of date to be proclaimed.

[39] Illegality may render an agreement either void ab initio or merely
unenforceable. Section 11 is directed at th e protection of the public interest,
employs peremptory language, and is reinforced by criminal sanctions for
contravention. In such circumstances, recognising the validity of a
transaction entered into in breach of section 11 would give legal sanction to
the very mischief the Legislature sought to prevent.

[40] It is a fundamental principle of our law, as stated in Schierhout v Minister
of Justice,16 that conduct undertaken in direct contravention of a statutory
prohibition is void. In De Faria v Sheriff , Witbank,17 the court identified
peremptory wording, negative formulation, criminal sanctions, and legislative
purpose as indicators that non-compliance renders an agreement void.


[41] Sutter v Scheepers ,18 confirms that, where a provision is mandatory and
sanctioned, the presumption in favour of mere directory compliance falls
away.


[42] These principles are consistent with Maharaj v Rampersad ,19 where the
Appellate Division held that the decisive enquiry is whether the object of the
statute has been achieved.


16 Schierhout v Minister of Justice 1926 AD 99 109.

17 De Faria v Sheriff, High Court, Witbank 2005 3 SA 375 (T).

18 Sutter v Scheepers 1932 AD 165 173–174.

19 Maharaj and Others v Rampersad 1964 (4) SA 638 (A) at 646C.

[43] Having regard to the objects of the MPRDA and the centrality of ministerial
consent under section 11, the Alcucento agreement could not v alidly achieve
its intended purpose absent compliance with the Act.

[44] It follows that the Alcucento agreement contravened section 11 of the
MPRDA and was void ab initio.


Alcucento agreement never implemented


[45] The applicant also contended that the Alcucento agreement was never
implemented, in that none of the juristic acts required to give effect to the
envisaged transaction were performed, most notably the increase of the
applicant’s share capital and the issuing of shares to Alcucento.

[46] Even if Alcucento had purportedly become a shareholder (which it did not,
for reasons set out below), such shareholding would in any event have been
void, as the underlying agreement itself was void, with the consequence that
the causa for any increase in share capital or issue of shares thereafter
would have fallen away. I deal with what follows on that basis.

[47] Clause 3 of the Alcucento agreement recorded that the “founder members”,
being Stanley, Francina and Alcucento (the latter not being a shareholder ),
would ensure th at the applicant’s share capital was increased to 50 million
ordinary shares of 0.1 cent each, with 10 million shares to be issued to the
founder members in the proportions reflected in annexure A.

[48] It is common cause that nothing whatsoever was done to give effect to these
provisions, with the result that Alcucento never became a shareholder in the
applicant.

[49] Apart from expressly recognising the 100 issued shares held by Stanley and
Francina, the Al cucento agreement failed to provide how the envisaged
transaction would deal with the existing shareholding (apart from “ensuring”
an increase in share capital).20



[50] Where the Alcucento agreement referred to Alcucento as a shareholder, it
referred to an objective impossibility. In terms of section 35(4) of the
Companies Act, authorised shares confer no rights until issued by the board.
No authorised but unissued shares capable of supporting the structure
envisaged in the agreement (being 50 million shares ) existed at the time of
concluding the Alcucento agreement.


[51] Although the Alcucento agreement recognised the shareholding of Stanley
and Francina, it merely recorded an intention that the parties would ensure
an increase in authorised share capital and the issuing of shares to
Alcucento. For that to have occurred, the applicant’s Memoran dum of

20 In an agreement as envisaged, typically there would be a mechanism dealing with the existing
shareholding, especially where there are shareholders, with a third party to enter the fray after
an increase of the authorised (but unissued) shares. It is evident ex facie annexure A to the
impugned agreement that Stanley and Francina’s shareholding will be diminished in terms of
percentage from their shareholding at the time of concluding the impugned agreement.

Incorporation had to be amended, which could only have been done by
Stanley and Francina in their capacities as shareholders and/or directors.


[52] The Memorandum of Incorporation (MOI) of a company must set out the
classes of shares and number of shares of each class that the company is
authorised to issue. 21 This may only be changed (i.e., increased) by an
amendment of the MOI by special resolution or the board if it files a Notice of
Amendment of the MOI.22


[53] It follows that even if the Alcucento agreement was not void for statutory
illegality, it was in any event never implemented. A company cannot issue
shares that are not authorised by its MOI, nor can shareholding arise absent
the required juristic acts of subscription, board allotment, and lawful issue.

[54] It is also evident from the papers that the board as aforesaid never resolved
to issue any authorised shares to Alcucento or to any other party; never
resolved to convert the applicant’s par -value shares as contemplated in
Regulation 31(3); n ever offered authorised shares to existing shareholders

21 Section 36(1)(a) of the Companies Act requires an MOI to specify the classes and number of
authorised shares, which may be altered only by amendment in terms of section 36(2) or (3),
with notice to the CIPC as required by section 36(4). Section 38(1), an unalterable provision,
vests the power to issue authorised shares exclusively in the board, and only within the limits
authorised by the MOI. No resolution was ever taken in terms of section 38(1), nor could on e
validly have been taken, as no amendment to the MOI occurred and Alcucento was not, and
could not have been, a shareholder at the time of the impugned shareholders’ meeting referred
to below.

22 Section 36(2), (3) and (4) of the Companies Act.

as required by section 39(2); and never determined the consideration or
terms upon which any shares would be issued.23


[55] There is, in any event, no evidence that Alcucento or any other party paid for
shares as contemplated in the purported agreement , nor could there be, as
the share capital of the applicant was never increased and the shares
contemplated in the agreement remained a fiction.

[56] Against this statutory and factual backdrop, the attempt by Alcucento and the
fourth respondent to proceed via a purported shareholders’ meeting to obtain
control of the applicant was manifestly unlawful. I deal with the impugned
shareholders’ meeting below.


[57] In respect of implementation, the opposing respondents merely alleged, in
paragraph 6.7 of the answering affidavit, that at a “duly convened Special
General Meeting” the existing shares were converted and the share capital
increased.

[58] The opposing respond ents conveniently did not state when this supposedly
occurred, nor did they attach any agenda or minutes. This omission is
explained by the fact that the allegation is contradicted by the documentary
evidence attached to the founding affidavit in relation to the impugned

23 As a pre -existing company, the applicant was further prohibited by Regulation 31(3)(a) from
issuing par -value shares without prior conversion. In addition, section 39(2) preserved the
shareholders’ right of pre -emption, which was neither waived nor limited by the MOI;
sections 40(1) and (2) required the board to determine adequate consideration and the terms of
any issue; and section 41(3) required shareholder approval by special resolution where the
issue would exceed 30% of voting power. None of these statutory requirements was met.

meeting of 5 October 2022. 24 The version proffered by the opposing
respondents is palpably implausible, far -fetched and untenable. It is thus
rejected.

[59] On 31 March 2018, Stanley and Francina accordingly resolved to cancel the
Alcucento agreement following the unexplained disappearance of the fourth
respondent, described in the resolution as having gone “AWOL” (a military
term denoting an abbreviation of a bsent without official leave). I do not find
that this resolution has any bearing on the matter save to provide contextual
history.






The admission and concession

[60] In respect of shareholding, the opposing respondents contend that Alcucento
acquired no more than an expectation that it would be vested with shares in
the applicant.


[61] There is a clear distinction between a mere spes and the completion of the
requisite jural acts necessary to implement the Alcucento agreement. To that
end, the applicant’s MOI would first have had to be amended to provide for

24 Agenda and minutes in relation to the impugned meeting at annexures SM26 and SM27.

the envisaged shareholding, followed by a resolution of the board authorising
the allotment of shares to Alcucento a gainst payment of adequate
consideration. There is no evidence that any of these steps occurred.

[62] There ought not, in any event, to be any such evidence, as the impugned
directors expressly stated at paragraph 7.5 of their answering affidavit that
Alcucento “expected to be vested with shares and directorships as set
out in the agreement.” This constitutes a formal admission on the record
that no vesting of shares in Alcucento ever occurred.


[63] The legal consequence of such an admission is governed by section 15 of
the Civil Proceedings Evidence Act 25 of 1965, which provides that it is
unnecessary to pro ve, and impermissible to disprove, any fact admitted on
the record.

[64] The admitted fact is that no vesting took place. Absent vesting, Alcucento
could not have acquired shareholder status and therefore lacked standing to
convene or participate in the impugned shareholders’ meeting.

[65] The consequence of a formal admission is that it becomes unnecessary to
prove the admitted fact and that such fact may not be disproved, 25 and the
court is entitled to adjudicate a matter simply on an admitted fact.26

25 Civil Proceedings Evidence Act 25 of 1965, section 15. See also Gordon v Tarnow 1947 3 SA
525 (A) 531.

26 Dinath v Breedt 1966 3 SA 712 (T) 717. See also Gordon v Tarnow supra and Van Deventer
v De Villiers 1953 4 SA 72 (C) 75-76.

[66] Further, the doctrines of estoppel and approbation and reprobation preclude
the opposing respondents from resiling from, or contradicting, that
admission.27


[67] The impugned directors further conceded that Stanley and Francina owned
all of the issued shares in the applicant, 28 albeit attempting to draw a
distinction between ownership of a share and status as a shareholder.

[68] Such a concession is dispositive in respect of share ownership. The
attempted distinction is misplaced in law, 29 and I deal later with the inability
of the opposing respondents (who themselves lacked standing) to mount any
challenge to the shareholding of Stanley and Francina , when I deal with the
opposing respondents’ defence concerning the ostensible invalidity of the
share certificates and the company register.


The impugned “shareholders’ meeting”




27 A party who has adopted a particular legal position, and acted upon it, cannot later adopt an
inconsistent position to the prejudice of another.

See Hlatshwayo v Mare & Deas 1912 AD 242 where the Appellate Division (as it then was)
held as follows: “...the doctrine is based upon the application of the principle that no person can
be allowed to take up two positions inconsistent with one another, or as it is commonly
expressed to blow hot and cold, to approbate and reprobate.”

28 Answering affidavit paragraph 6.26 (CL011-44): “At best, they are the owners of the shares, but
they are certainly not shareholders in Mamokebe Investments. There is a significant difference
between the owner of a share and a shareholder in a company. It is not the same thing.”

29 It is not explained by the opposing respondents. Ostensibly a divide in respect of rights is vied
for in respect of a person who has acquired shares, but who has not yet been recorded in the
register or issued with a share certificate. Such contention is incorrect and misplaced.

[69] Despite these insurmountable hurdles, and six years after the conclusion of
the impugned Alcucento agreement in terms of which it took no further steps,
Alcucento it suddenly purported to act as a shareholder and gave notice of a
shareholders’ meeting in the applicant.

[70] It is trite that, under the Companies Act, a shareholder is not empowered to
convene a shareh olders’ meeting, let alone to conduct company business.
The business and affairs of a company are to be conducted by its board in
terms of section 66(1). A shareholders’ meeting may be convened only by
the board, or by a person authorised in the MOI or the company’s rules, as
contemplated in section 61(1). A shareholder may at most request the board
to convene such a meeting in terms of sections 61(2) and (3).


[71] Alcucento was not a shareholder. Nevertheless, it proceeded to convene a
shareholders’ meeting, propose resolutions, appoint directors, and purport to
convert and increase the applicant’s share capital, doing so as if it were the
board of the applicant.

[72] The purpor ted meeting of 5 October 2022 is common cause, although the
legality of it is not. It was ostensibly convened pursuant to the Alcucento
agreement, which the opposing respondents expressly rely upon.30


30 Answering affidavit paragraph 6.7.

[73] The notice and agenda emanated from the fourth respondent, who described
himself (without any lawful basis) as chair of the applicant and purported to
act on behalf of unidentified “first” and “second” shareholders.


[74] The minutes reflect a meeting of shareholders, not of the board. Alcucento is
recorded as a n ostensible 70% shareholder, yet no basis exists for this
assertion. The notice and agenda further failed to identify the “first” and
“second” shareholders relied upon.

[75] In any event, only Stanley and Francina could lawfully have attended to
shareholder business (had a shareholders’ meeting been validly convened ),
as they were the only shareholders.

[76] To the extent that the resolutions purported to increase or convert the
applicant’s share capital, this was impermissible. Any such change required
an amendm ent of the applicant’s MOI in terms of section 16, read with
section 36 of the Companies Act. No such amendment was evinced, nor was
any proof adduced that notice was delivered to the CIPC.

[77] The unlawfulness was compounded when Alcucento , through the fourth
respondent, caused statutory documents to be lodged with the CIPC
recording the impugned directors. It is common cause that the signatures of
Stanley and Francina on those documents were forged. Despite this, the
opposing respondents did not resign and persisted in holding themselves out
as directors of the applicant.

[78] The opposing respondents’ contention that Stanley was aware of the
meeting and did not object thereto is without merit. No obligation rested upon
Stanley to attend or object to a meeting convened by a non -shareholder. To
hold otherwise would permit any per son to convene a meeting under the
guise of shareholder authority and bind a company merely because the true
shareholders declined to participate, a proposition inconsistent with the
Companies Act and with basic principles of corporate governance.




[79] Even if Alcucento had been a shareholder, the meeting would nonetheless
have contravened the Companies Act . Section 64(3) (a) of the Companies
Act provides that if a company has more than two shareholders, a meeting
may not begin, or a matter debated, unless at least three shareholders are
present.31 In those circumstances, the convenor was obliged to adjourn the
meeting as contemplated in section 64(4). This was not done.

[80] Further, section 65(3) provides that in a company with more than one
shareholder, at least two shareholders are required to propose a shareholder
resolution. The resolutions recorded, including the appointment of directors,

31 The meeting thus, had it been validly convened, had to be adjourned for 7 days, after the
requisite 1 hour waiting time in respect of attendance.

were purportedly proposed by a single “first shareholder” and were t herefore
impermissible.32

[81] The minutes further record that the resolutions purported to equate
electronic signatures with manual signatures, a circumstance that assumes
significance when viewed against the subsequent fraudulent filing of
documents with the CIPC.






[82] At the time of the impugned meeting, the only shareholders of the applicant
were Stanley and Francina (the latter represented by her deceased estate) ,
and Alcucento had no standing to convene or participate in the applicant’s
shareholder governance. The purported shareholder governance processes
at the hands of Alcucento (represented by the fourth respondent) were
therefore unlawful at their inception.

[83] In the absence of any lawful basis to disturb the long -standing shareholding
and directorship which existed for a decade prior to the Alcucento
agreement, and in the face of the opposing respondents’ own admissions
and concessions, the purported shareholders’ meeting of 5 October  2022,
and all resolutions ado pted thereat, were null and void ab initio and of no
force or effect.

32 See the judgment of Vally J in Foxvest Group (Pty) Ltd and Another v Rocky Park Holdings
(Pty) Ltd and Others (2022/2807) [2023] ZAGPJHC 63 (27 January 2023) where a resolution
proposed by one shareholder in a multi -shareholder company was set aside inter alia due to
the fact that the proposed resolution contravened section 65(3) of the Companies Act.

The common cause fraud

[84] I turn to the issues relating to the recordal of directors following the
impugned shareholders’ meeting. It bears repeating that fraud unravels all
within its co mpass. The onus of proving fraud rests on the party alleging it
and is the ordinary civil onus, mindful that fraud is not lightly inferred.33
[85] The essential elements of fraud include a false representation (whether by
commission or omission), knowledge of falsity, intent that the representee
act thereon, and causation in the form of inducement.34

[86] The applicant alleged that Alcucento, acting in a fraudulent manner, caused
the CIPC to record the purported directors of the applicant.

[87] I have already dealt with the patent facts underlying the conclusion that
Alcucento was never a shareholder of the applicant, whether by reason of
the voidness of the agreement or the failure to implement it, and with the
illegality attendant upon both the calling and conduct of the purported
shareholders’ meeting.

[88] Armed with the ostensible outcomes of that meeting, a Form CoR39 (Notice
of Change of Directors) was lodged with the CIPC on 21 October 2022. The

33 Gilbey Distillers & Vintners (Pty) Ltd v Morris NO 1990 (2) SA 217 (SE).

34 If reliance is placed on fraudulent non -disclosure, facts given rise to the duty to disclose must
be set out. It mus t also be shown that the breach of the duty to disclose was deliberate and
intended to deceive.

evidence indicates that it was the fourth respon dent who caused these
recordals to be effected.

[89] It is common cause that Stanley’s signature appears on the Form CoR39
and that he did not sign it. The Form was accompanied by minutes of a
meeting purportedly held on 28 October 2022, ostensibly attended by
Stanley and Francina, which Stanley denied. I further have no reason not to
accept his version.

[90] The founding papers further contain the expert testimony of a handwriting
analyst, Ms Lourika Bukley, who concluded that the signatures of Stanley
and Franci na on both the Form CoR39 and the purported minutes were
forgeries.


[91] Following a criminal complaint laid by Stanley with the South African Police
Service under case number 123/6/2023 (Olifantsfontein SAPS), the fourth
respondent was summoned to provide a statement. Responsibility was
initially shifted to one Mr Thabo Moloto, who was paid to effect the changes
at the CIPC, although the fourth respondent later conceded that Mr Moloto
was the forger and apologised.35


[92] Despite knowledge of the impugned record als, none of the impugned
directors (save for the third respondent) resigned or ceased to hold
themselves out as directors of the applicant.

35 Answering Affidavit para 30 at CL035-15 to 035-16.

[93] In calling for and holding the purported shareholders’ and board meetings,
and in procuring the lodgement of chang es in directorship with the CIPC,
representations necessarily had to be made as to the legitimacy of those
changes.






[94] The fourth respondent, as the representative of Alcucento and the driving
force behind the impugned processes, knew that Alcucento was not a
shareholder and therefore lacked any authority to convene meetings or
procure appointments. Notwithstanding this, representations were made to
the CIPC upon which it acted.


[95] I do not consider it necessary to make a definitive finding on fraud for
purposes of the relief sought, save for the common cause fraudulent
recordal of the impugned directors with the CIPC.

The effect of the voidness and the lack of implementation

[96] The applicant has established a strong prima facie case entitling it to interim
interdictory relief.

[97] The Alcucento agreement was void. Even if it were not void, it was never
implemented in accordance with the Companies Act.

[98] The consequence is that the r ecordal of the impugned directors with the
CIPC pursuant to the Form CoR39 was unlawful, independently of the fact
that it was tainted by the common-cause forgery of signatures.







The rule 7(1) challenge and defences



[99] The opposing respondents raised a rule 7(1) challenge and further defences
concerning the alleged invalidity of the share certificates of Stanley and
Francina, the company register, and alleged contempt of court. I deal with
those defences, insofar as necessary, under the subheadings that follow.


[100] I reiterate that the opposing respondents are precluded from attacking the
shareholding of Stanley and Francina, or any consequent directorship of
Stanley, by reason of their admissions and concessions.

[101] Even ab sent such admissions, the applicant has established a clear case
that Alcucento was never a shareholder, with the result that the opposing
respondents lack standing to raise collateral challenges to the applicant’s
shareholding or governance.

Rule 7(1)

[102] The opposing respondents delivered a notice in terms of Rule 7(1) disputing
the authority of the applicant’s attorneys to act. They contend that no valid
board resolution authorised the institution of these proceedings and that the
deponent, Stanley, lacked authority to represent the applicant.



[103] Rule 7 is not a vehicle for determining the substantive merits of disputes
relating to corporate governance. It cannot convert a procedural challenge
into a forum for adjudicating contested internal disputes where the very
subject matter of the litigation concerns alleged unlawful usurpation of
corporate control.

[104] The opposing respondents’ Rule 7 challenge rests on the premise that the
applicant’s board consists of the respondents and Stanley, and that no
majority resolution a uthorised the litigation. That premise presupposes the
lawfulness of the opposing respondents’ appointment as directors , which is
the very issue in dispute in this application.

[105] A Rule 7 enquiry cannot logically be determined by first assuming the
correctness of the impugned appointments. Where the litigation itself
concerns the alleged unlawful assumption of corporate control, the persons
alleged to have usurped control cannot rely on their contested status to
paralyse the company’s ability to seek relief.

[106] For purposes of Rule 7, the undisputed facts demonstrate that the opposing
respondents’ recordal as directors flowed from a purported shareholders’
meeting convened by Alcucento; Alcucento was never a shareholder of the
applicant; the Form CoR39 lodged with the CIPC bore forged signatures of
Stanley and Francina; and the opposing respondents have conceded that
Alcucento merely “expected” to be vested with shares and did not in fact
acquire them.

[107] On the facts established, the opposing respondents’ appointments were not
defective appointments; they were no appointments at all. A person cannot
derive authority from an act which is void ab initio. In circumstances where a
person asserts that others have unlawfully procured their own appoi ntment
as directors through a void process and forged filings, that person is entitled
to approach court to protect the company’s corporate integrity. To hold
otherwise would mean that a company could be rendered incapable of
protecting itself precisely because control was unlawfully seized.

[108] The enquiry under Rule 7 is therefore whether sufficient facts exist to satisfy
the court that the company itself , and not an unauthorised stranger , is
litigating. I am satisfied that the applicant is properly before c ourt based on
the long -standing and undisputed position from 2006 until 2022 where
Stanley and Francina were the sole shareholders and directors ; t he
opposing respondents’ purported appointment arising from a void and

unimplemented agreement and an unlawfu l meeting; and t he respondents’
recordal with the CIPC being tainted by common-cause forgery.

[109] In these circumstances, Stanley’s authority to act on behalf of the applicant
does not depend on a resolution of a board unlawfully constituted through
void acts. Section 57(3) of the Companies Act provides that where a profit
company has only one director, that director may exercise any power or
perform any function of the board at any time without notice or compliance
with internal formalities.

[110] Even if there were doubt as to the precise composition of the board pending
final determination, it would be impermissible to permit persons whose
authority is impugned as void to rely on majority rule to defeat the company’s
ability to seek judicial protection. The Rule 7 challenge accordingly fails. The
applicant is properly before court and the attorneys were duly authorised to
institute these proceedings.


[111] Locus standi concerns the sufficiency and directness of a party’s interest in
the litigation.36 The onus lies on the party instituting proceedings to establish
standing ex facie the founding papers. 37 The applicant has done so. I am
satisfied that Stanley, as director of the applicant, was duly authorised to

36 Jacobs v Waks 1992 (1) SA 521 (A) p. 534D and Gross v Pentz [1996] 4 All SA 63 (A), 1996
(4) SA 617 (A).

37 Mars Inc v Candy World (Pty) Ltd 1991 (1) SA 567 (A) p. 575 . Kommissaris van
Binnelandse Inkomste v Van der Heever [1999] 3 All SA 115 (A), 1999 (3) SA 1051 (SCA)
para. 10.

represent it, as contemplated in section 57(3) of the Companies Act. No
resolution was required in the circumstances.38

[112] Even if authority had not been established ex facie the founding papers, this
would have been an appropriate case for the lifting of the corporate veil
under section 20(9) of the Companies Act. That provision empowers a court,
where the juristic personality of a company has been unconscionably
abused, to disregard that personality for specific purposes.

[113] The principles articulated in Ex parte Gore NO ,39 Cape Pacific Ltd v
Lubner Controlling Investments (Pty) Ltd ,40 and Atlas Maritime Co SA v
Avalon Maritime Ltd ,41 underscore that reliance on majority rule to
perpetuate illegality and conceal unlawful control constitutes such abuse.
Insofar as it may be necessary, I would lift the corporate veil to determine
authority and locus standi.

[114] The learned authors Cassim et al in Contemporary Company Law ,42
describe that upon company formation a veil is drawn between the company
and its shareholders and directors. When the veil is pierced (or lifted) the

38 Section 57(3) provides inter alia that where a profit company only has one director, that director
may exercise any power or perform any function of the board at any time, without notice or
compliance with any other internal formalities.

39 Ex parte: Gore NO and Others (18127/2012) [2013] ZAWCHC 21; [2013] 2 All SA 437 (WCC)
(13 February 2013) (with appreciation recorded by the court to counsel for the applicants, Mr
Newdigate SC for his assistance provided in the written argument).

40 Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd 1995 (4) SA 790 (A) 804.

41 Atlas Maritime Co SA v Avalon Maritime Ltd [1991] 4 All ER 769 at 779.

42 Cassim et al Contemporary Company Law 3rd Ed. Juta, p. 54.

protection afforded to shareholders and directors is removed and the
substance of the company is examined, rather than the form it has been
cast.43


[115] Courts have shown an acute appreciation that juristic personality is a
statutory creation and that “ their separate existence remains a figment of
law, liable to be curtailed or withdrawn when the objects of their creation are
abused or thwarted.”44

[116] The opposing respondents relied on Tattersall v Nedcor Bank Ltd ,45 which
in fact supports the conclusion reached. That authority confirms that a court
may, on the facts of a given case, investigate whether a company is properly
before it.

[117] Although Rule 7 does not require a court to investigate past acts as a matter
of course, nothing precludes it from doing so. In this matter, it was
unnecessary, as the undisputed facts, admissions, concessions, and patent
illegality established beyond doubt that the applicant was properly before
court and duly authorised to litigate.

43 Ibid 59-60. In Tladi Holdings (Pty) Ltd v Modise (40449/2008) [2015] ZAGPJHC 331 (9
September 2015), para 22, the court acknowledged that it may be necessary in some
circumstances to pierce the veil, but in other cases it will only be necessary to lift it.

44 In ADT Security (Pty) Ltd v Botha and Oth ers [2010] ZAWCHC 563 at paragraphs 16-18, the
court remarked upon what it considered to be the “ generally flexible approach ” indicated in
the Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd and Others 1995 (4) SA
790 (A) judgment as being applicable when piercing of the corporate veil falls to be considered
and determined; an observation illustrated with reference to Scott JA’s remark in Hülse-Reutter
v Gödde 2001 (4) SA 1336 (SCA), at paragraph 20 that “ Much will depend on a close analysis
of the facts of each case, considerations of policy and judicial judgment.”

45 Tattersal v Nedcor Bank Ltd 1995 (3) SA 222 (A) at 228F-H.

Alleged invalidity of share certificates and the company register

[118] The opposing respondents attacked the shareholding of Stanley and
Francina on the basis of alleged defects in the share certificates and
securities register, including the absence of multi ple signatures and
references to par -value conversion.46 These contentions are of no moment.
Based on the admissions and concessions already dealt with, neither
Alcucento nor the opposing respondents have standing to impugn the
shareholding of Stanley and Francina.


[119] The opposing respondents’ reliance on section 94 of the 1973 Companies
Act is misplaced. That Act has been repealed by section 224 of the 2008
Companies Act. In any event, Schedule 5, paragraph 6(4) provides that any
failure by a pre -existing c ompany’s share certificate to comply with
section 51(1) to (4) is not a contravention and does not invalidate the
certificate.47


[120] In terms of section 51(1)(c) of the Companies Act 71 of 2008, a certificate
evidencing a certificated security constitutes prima facie proof that the
named security holder owns the securities, in the absence of evidence to the

46 Share certificates are prima facie evidence in that section 51(1)(c) of the 2008 Companies Act
provides that a certificate evidencing any certificated security of a company is proof that the
named security holder owns the securities in the absence of evidence to the contrary.

47 Section 94 of the 1973 Companies Act dealt with the certificate of shares or securities and is
couched in non -peremptory language. It provided for the certificate to be prima facie proof
where signed by two signatures by directors (unless one signed, authorised as such, or where
there was only one director). Thus, the validity of the share certificates ought not to b e
impacted.

contrary. The relevant share certificates of Stanley and Francina accordingly
constitute prima facie evidence of their shareholding.


[121] The impugned directors’ attack on Stanley and Francina’s shareholding
(framed as allegations of fraud or failure of proof of acquisition ) amounts to
an impermissible attempt to equate a share certificate or securities register
with a negotiable instrument, reflecting a misunderstanding of basic
principles of securities law.48

[122] A share issued is movable property, transferable in any manner pr ovided for
or recognised by the Companies Act or other legislation (an authorised share
as part of the authorised share capital has no rights associated with it until
issued to a person who has subscribed for an allotment of shares).49


[123] A share is a unit of proprietary interest in a company, and a shareholder is
the holder of an issued share entered in the securities register. 50 A share
certificate and the securities register are evidentiary in nature: they evince an
underlying juristic act by which rights of voting and participation in dividends

48 United South African Association Ltd v Cohn 1904 TS 733 [109]: a share certificate is only
evidence on a prima facie basis of shareholding, and is not a negotiable instrument, with
ownership transferred by an agreement. See further JL Yeats et al Volume 1, Juta ( Blackman)
at 2-785 to 787 and Off-Beat Holiday Club v Sanbonani Holiday Spa Shareblock Ltd 2016
(6) SA 181 (SCA) para 11.

49 Section 35 of the Companies Act.

50 Section 1 of the Companies Act. In respect of a shareholder, the definition is subject to section
57(1) which expands the definition to a person entitled to exercise any voting rights in relation
to a company.

are acquired. Sections 50 and 51 of the Companies Act do not constitute
mechanisms by which shareholder status is conferred or denied.51





[124] It is settled law that property in shares transfers by cession and
independently of registration in the securities register ( Farrar’s Estate v
CIR).52 Ownership does not depend on delivery of the share certificate
(Jeffery v Pollak and Freemantle),53 and a court is entitled to go behind the
register to ascertain true ownership ( Standard Bank of SA Ltd v Ocean
Commodities Inc).54


51 In terms of section 38, shares may only be issued by the board from the autho rised shares and
if not, such issuance may be authorised in terms of section 36 within 60 business days after the
issuance. Prior to the issuing of shares, there ought to be a subscription for such shares to be
issued. This is regulated by section 39 with the right of pre -emption provided for in subsection
(2). Section 40 completes the transactional line -up in that authorised shares can only be issued
for inter alia adequate consideration as determined by the board. Section 50 provides for the
securities register as sufficient proof of the facts recorded in it, in the absence of evidence to
the contrary. Section 51 deals with certificated securities and the requirements in respect of
what is to be reflected on a share certificate and that same constitutes pr oof of what is recorded
therein.

52 Farrar’s Estate v Commissioner for Inland Revenue 1926 TPD 50 per Stratford J [508]):
…Apart from the clear doctrine that property in shares passes under the ordinary principles of
cession…registration in the case of shares undoubtedly has important effects on the rights of
the owner in his relation with the company and in relation to all other persons other than the
transferred.

53 Jeffery v Pollak and Freemantle 1938 AD 1 [22]: pe r Stratford JA …Ownership passes by
cession in due form (referring to Innes CJ in Liquidators, Union Share Agency v Hatton 1927
AD 240 at 251).

AD 240 at 251).

54 Standard Bank of SA Ltd v Ocean Commodities Inc 1980 (2) SA 175 (T) at 181 (also in
terms of the rights and obligations of the parties prior to perfecting the cession).

[125] The cumulative effect of the aforesaid is that the opposing respondents are
precluded, by admission, estoppel, lack of proof, and lack of standing , from
challenging the shareholding of Stanley and Francina or asserting any
derivative authority premised on Alcucento’s purported shareholding.


[126] The opposing respondents failed to engage meaningfully with the factual
allegations raised, relying instead on technical formalities that do not
withstand scrutiny. In Botha v Fick ,55 the Appellate Division confirmed that
share certificates are not negotiable instruments and should not be accorded
formalistic significance divorced from underlying substance.


Alleged contempt of court

[127] The opposing respondents contended that Stanley and the Department of
Mineral Resources and Energy (DMRE) were in contempt of the order
granted by Millar J, in which an undertaking was recorded not to pas s
registration and transfer of the applicant’s mining right pending finalisation of
the proceedings under case number 2025-066783.

[128] What was sought to be interdicted in the DMR E urgent application was not
the registration of the mining right itself in the Mining Titles Office (MTO), but
the registration of the cession of the mining right from the applicant to
Mamokebe Colliery.

55 Botha v Fick 1995 (2) SA 750 (A) at [107].

[129] The transfer of a mining right entails a sequential process: first, the
conclusion of a cession agreement; second, an application for ministerial
consent in terms of section 11 of the MPRDA; and third, following such
consent, the preparation and registration of a notarial deed in the MTO.


[130] In terms of section 12(2) of the Mining Titles Registration Act 16 of 1967,
registration is deemed to occur upon endorsement by the MTO, which
endorsement is effected by the Director-General in terms of section 5(1)(c) of
that Act. It was this final act of registration that was sought to be interdicted.


[131] The registration process in respect of the mining right commenced after the
granting of the right in May 2004, in circumstances where section 25(2)(a) of
the MPRDA impo sed a duty on the applicant to effect registration within
60 days.


[132] The applicant explained that this process was protracted and
administratively challenging. When the Millar J order was granted, Stanley
was unaware that the registration process was ongo ing or that the mining
right had subsequently been registered in the MTO on 4 June 2025,
becoming aware thereof only upon obtaining a copy of the registered right in
January 2026.

[133] In any event, this contention does not advance the opposing respondents’
case. Even if the factual assertions relied upon were accepted, they do not
answer the decisive issues in this matter, namely the admissions made by
the opposing respondents, the failure of Alcucento to establish any
shareholding in the applicant, and the c onsequent unlawfulness of the
appointment of the impugned directors. The alleged contempt accordingly
constitutes a collateral issue and does not afford the opposing respondents
any defence to the relief sought.






Litigious background

[134] Considerable reliance was placed by the opposing respondents on the order
granted by Raubenheimer AJ on 7 March 2025 under case number
2025-028369.56 They contend that the order constituted a binding settlement
that created or confirmed an interim board co mprising Stanley and the
respondents, and that the subsequent withdrawal of related proceedings
does not alter that position.

56 The CIPC was ordered, inter alia, to restore pendente lite the records of the appli cant to reflect
the directorships as they appeared on 12 February 2025, inclusive of Stanley’s directorship.
The order operated, in terms of paragraph 11 thereof, as an interim interdict pending the final
adjudication of the applications under case numbers  2023-100053, 2023 -067386
and 2023-071300.

[135] It is correct that the order was granted “by agreement”. A consent order,
once made an order of court, acquires the status of a judicial decree. 57
However, it is equally well -established that a court cannot, by consent,
validate that which is unlawful, nor can parties, by agreement, confer legality
upon acts that are void ab initio.

[136] The interpretation of a court order is governed by the principles articulated in
Natal Joint Municipal Pension Fund v Endumeni Municipality .58
Interpretation requires consideration of the language used, the context, and
the apparent purpose of the order. P aragraph 11 of the Raubenheimer order
expressly provided that certain relief operated pendente lite pending final
adjudication of specified applications. Paragraph 12 further recorded that the
order was not to be construed as a definitive or final pronounc ement on the
disputed issues.


[137] The order restored the CIPC records to reflect the position as at 12 February
2025. Restoration of a public record is an administrative act. It does not
constitute an election of directors in terms of section 68 of the Compa nies
Act, nor does it validate appointments that were void at inception.

[138] The opposing respondents’ submission that the Raubenheimer order
“constituted” the board conflates restoration of record with lawful
appointment. The Companies Act prescribes the exclusive mechanisms by

57 Eke v Parsons 2016 (3) SA 37 (CC).

58 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).

which directors are elected or appointed. A court order restoring a record
cannot substitute for compliance with those statutory requirements.

[139] Importantly, the Raubenheimer order did not determine the validity of the
Alcucento agreement, nor the validity of the purported shareholders’ meeting
of 5 October 2022, nor the legality of the respondents’ appointments. Th ose
issues were expressly left open.


[140] The opposing respondents ostensibly contend that the withdrawal of the
earlier applications transformed the interim order into a final settlement with
enduring effect. That argument cannot be sustained. An interim ord er
granted pending the finalisation of specified proceedings cannot be
converted into a final determination of substantive rights by the unilateral
withdrawal of those proceedings. The withdrawal of litigation does not create
rights; it merely terminates that litigation.

[141] The Raubenheimer order did not and could not: confer shareholder status
upon Alcucento where none existed; validate resolutions adopted at an
unlawful meeting; legitimise forged filings with the CIPC; constitute an
election of directors under section 68.


[142] To interpret the order as having created or confirmed a board
notwithstanding the voidness of the underlying acts would produce an
insensible result and undermine the statutory framework governing corporate
governance. The proper interpre tation of the Raubenheimer order is that it

restored the status quo on a provisional basis pending litigation. It did not
determine, and was not capable of determining, the legality of the opposing
respondents’ appointments.

[143] Counsel for the applicant referred me to Dowjee Co Ltd v Waja ,59 where a
director was appointed by a majority shareholder without the participation of
the minority. The court held that the meeting was not validly convened and
that the resolutions adopted thereat were void. 60 The court further held that
the de facto status of the impugned director did not cure the illegality of the
appointment or confer authority to act.


[144] Although the Companies Act 71 of 2008 does not expressly refer to de facto
directors, the concept remains recognised in our law. 61 A distinction must be
drawn, as explained in R v Mall ,62 between directors whose appointment
suffers from a defect or irregularity, and persons who act without any colour
of authority.63 The latter cannot acquire authority merely by acting.

59 Dowjee Co Ltd v Waja 1929 TPD 66 to 79.

60 Section 26 of the Companies Act 46 of 1926 (the predecessor to the 1973 Companies Act),
same provided that the acts of a director are valid not withstanding any defects that may
afterwards be discovered in his appointment. The court in Dowjee Co Ltd held that the de facto
directorship of the impugned director is not sufficient to cover up the irregularity now known,
and not sufficient to give the attorney authority to continue proceedings. The first South African
company legislation was the Companies Act of 1926, which was based on the Transvaal
Companies Act 31 of 1909 which was in turn based on the British Companies (Consolidation)
Act 1908. The next major South African legislation, following the recommendations of the Van
Wyk De Vries Commission of Enquiry into the Companies Act, was the Companies Act of 1973,
which remained in force until 31 April 2011.

61 Cassim et al Contemporary Company Law 3rd Ed. Juta pg. 546.

61 Cassim et al Contemporary Company Law 3rd Ed. Juta pg. 546.

62 R v Mall 1959 (4) SA 607 NPD.

63 The distinction is drawn by Lord Simmonds in Morris v Kanssen 1946 A.C. 459 at p. 471,
namely: “There is, as it appears to me, a vital distinction between (a) an appointment in which
there is a defect or, in other words, a defective appointment , and (b) no appointment at
all. In the first case it is implied that some act is done which purports to be an appointment but

[145] Similarly, the concept of a presc ribed officer in terms of section 66(10) and
regulation 38 presupposes appointment by the company. 64 An unlawful or
non-existent appointment cannot confer prescribed -officer status or any
derivative authority. The impugned directors accordingly cannot be
characterised as de facto directors or even prescribed officers.



is by reason of some defect inadequate for the purpose; in the second case there is not a
defect, there is no act at all. The sec tion does not say that the acts of a person acting as
director shall be valid notwithstanding that it is afterwards discovered that he was not
appointed a director. Even if it did, it might well be contended that at least a purported
appointment was postu lated. But it does not do so, and it would, I think, be doing violence to
plain language to construe the section as covering a case in which there has been no genuine
attempt to appoint at all. These observations apply equally where the term of office of a director
has expired, but he nevertheless continues to act as a director, and where the office has been
from the outset usurped without the colour of authority .” In S v Vandenberg 1979(1) SA
208 (D&CLD), the Court (per Hefer J as he was) a ccepted that the decision in Mall was
correct. The above distinction is known to English Law. In BMF Assets No.1 Ltd v Sanne
Group Plc [2021] EWHC 3306 (Ch) the Court considered the validity of acts of a Company
taken by a director whose identity could not be verified and who was never appointed by the
Company. In the course of his judgment, Miles J stated the following: “49. The concept of a de
facto director is one that is used in law for a person who actually acts as a director and
participates at the relevant level in the governing structure of a company. It is a label used
when seeking to establish the liability again st such a person, notwithstanding that that

person has not, strictly speaking and formally, been appointed as a director. Although some
of the case law talks of persons assuming the position of a director, that is only part of a
multifactorial test which requires the court to look at what has actually happened, whether that
person has been allowed access to information, whether he or she has been allowed to
take part in meetings or decision making in relation to the company, how tha t person has
been presented by the company, and so forth. The aim is to determine whether in
substance and reality the person is to be regarded as a director. 50. What is entirely clear is
that people cannot make themselves directors of a company simply by saying that they are
prepared to assume that position. It is legally nonsensical to think that a stranger to a
company could – by a unilateral act of saying they are prepared to assume the position -
become a director of a company. It would mean that anyone could become a director of any
company simply by saying so, regardless of the constitutional, regulatory and corporate
governance requirements. That is legally absurd. What it seems to me has happened here
is that the four de facto directors, as they call themselves, are corporate cuckoos, trying
to push themselves into the Issuers and Holdings and forcing out the true directors. There is no
basis in law for that.” (Own emphasis).

64 Regulation 38(1) refers to a person being a “prescribed officer” of the company (denoting lawful
involvement in the company) for all purposes of the Act if that person exercises control or
regularly participates as envisaged in paragraphs (a) and (b). Regulation 38(2) confir ms the
lawfulness requirement in terms of the Legislator using the wording that the regulation applies
to a person irrespective of title given, in respect of an office held by the person; or a function
performed by the person for the company.

[146] Alcucento proceeded to convene the purported shareholders’ meeting and
implement resolutions to which it had no entitlement. The persons
purportedly appointed pursuant thereto likewise lacke d any authority to act.
In BMF Assets No. 1 Ltd v Sanne Group Plc ,65 such persons were
described as “cuckoo directors”, having displaced the legitimate board
without lawful authority. That description is apposite on the facts of this case.

[147] The respondents’ reliance on the Raubenheimer order as a shield against
scrutiny of the legality of their appointments is accordingly misplaced.



[148] Following the withdrawal of the earlier applications, the opposing
respondents launched an urgent applicatio n under case
number 2025-066783, ostensibly on behalf of the applicant, against, inter
alia, the Minister of Mineral Resources and Energy and the Director-General.
That application was brought in circumstances where the impugned directors
attempted to thwart the transfer of the applicant’s mining right to Mamokebe
Colliery, a transaction effected on the applicant’s version by its legitimate
director.

[149] On 12 June 2025, Van Niekerk AJ (as he then was) issued a rule  nisi by
agreement between the parties, pendi ng an internal appeal in terms of
section 96 of the MPRDA, and the withdrawal of the prior applications.

65 BMF Assets No.1 Ltd v Sanne Group Plc [2021] EWHC 3306 (Ch).

[150] The rule was extended to 4 November 2025, when Brand AJ heard the
special motion and reserved judgment without extending the rule.

[151] It is trite that when a rule nisi lapses, the order lapses.66 The rule accordingly
lapsed on 4 November 2025 and was never reinstated.


[152] In these circumstances, the Department of Mineral Resources and Energy
registered the transfer of the mining right to Mamokebe Colliery on
30 January 2026.

[153] The opposing respondents further contended that this matter is lis pendens
by reason of the judgmen t reserved by Brand AJ. That contention is without
merit. Any judgment by Brand AJ could, at most, concern interim relief
relating to the transfer of the mining right in proceedings that are no longer
extant. It could not determine the identity of the lawf ul directors of the
applicant. There is accordingly no lis pendens, particularly having regard to
the relief sought in this matter and the impugned conduct giving rise to the
unlawful usurpation of corporate control.

Requirements for an interim interdict


66 Serva Ship Limited v Discount Tonnage Limited (263/98) [2000] ZASCA 169; [2000] 4 All
SA 400 (A); 2000 (4) SA 746 (SCA) (31 August 2000). See also Fisher v Fisher 1965 (4) SA
644 (W), Kotze AJ (as he then was) stated inter alia that a rule is an order of court to which a
limited operation is afforded . When lapsed, the order lapses. I know that based on Fisher, rule
27 was amended to provide for reinstatement. That is not the issue, the lapsing of the rule and
the effect it has on the order granted is the issue.

[154] The applicant seeks interim interdictory relief. The requirements for an
interim interdict are trite: a prima facie right, even if open to some doubt; a
well-grounded apprehension of irreparable harm if the relief is not granted
and the ultimate relief is eventually obtained; that the balance of
convenience favours the granting of interim relief; and the absence of a
satisfactory alternative remedy.67

[155] It is important to emphasise that, at the interim stage, the court does not
finally determine d isputed rights. The enquiry is whether the applicant has
established a right prima facie and whether interim protection is warranted
pending proper ventilation of the issues in due course.


[156] For the reasons already set out , Alcucento was never vested with shares in
the applicant; the Alcucento agreement was void for non -compliance with
section 11 of the MPRDA; the statutory requirements for increasing
authorised share capital and issuing shares were never met; the purported
shareholders’ meeting of 5 Octobe r 2022 was convened by a
non-shareholder and contravened the Companies Act; the subsequent Form
CoR39 lodged with the CIPC bore forged signatures.

[157] On these facts, the applicant has established, at minimum, a strong prima
facie right to contend that the opposing respondents were never lawfully
appointed as directors and have no authority to act on its behalf.



67 Setlogelo v Setlogelo 1914 AD 221.

[158] Reliance on de facto directorship cannot avail the opposing respondents.
The doctrine does not validate acts where there was no appointment at all,
but only a purported assumption of office without colour of authority. 68 A
person cannot acquire authority by acting in defiance of statutory
requirements.

[159] The Raubenheimer order, properly interpreted, does not create or confirm
authority in circumstances where the underlying appointments are impugned
as void. Restoration of a record does not substitute for compliance with
section 68 of the Companies Act.


[160] The applicant has accordingly established a prima facie right of sufficient
strength to justify interim protection.

[161] The opposing respondents continue to hold themselves out as directors of
the applicant. The harm apprehended i s not speculative. Where there is a
live dispute as to lawful authority, continued representation by persons
whose appointment is prima facie unlawful exposes the company to the risk
of unauthorised transactions; regulatory prejudice; duplication of litiga tion;
reputational damage; and potential personal prejudice to shareholders.


[162] Such harm would not be readily reversible. Once a company is bound to
third parties acting in good faith, the consequences may not be capable of
being undone merely because auth ority is later found lacking. In matters of

68 R v Mall 1959 (4) SA 607 (N); Morris v Kanssen [1946] AC 459.

corporate governance, the continued exercise of contested authority itself
constitutes ongoing prejudice. The law does not require the applicant to
await the consummation of unlawful acts before seeking protectio n. A
well-grounded apprehension of irreparable harm has therefore been
established.

[163] The balance of convenience overwhelmingly favours preserving corporate
integrity pending final determination. The interim relief does not finally
determine the opposing respondents’ status. It merely restrains them from
acting on behalf of the applicant until the lawfulness of their appointment is
properly adjudicated.



[164] If the respondents ultimately establish that they were lawfully appointed, the
interim restraint will have caused no irreparable prejudice. They will simply
resume lawful office. By contrast, if the relief is refused and the respondents
continue to act without authority, the potential prejudice to the applicant may
be extensive and not fully remediable.


[165] Preservation of the status quo ante , being governance by those who were
directors prior to the impugned events is the least intrusive means of
protecting the company pending final adjudication.

[166] The applicant has no satisfactory alternative remedy. A damages claim
would not prevent continued unauthorised representation. An application to
the CIPC to amend its records would not resolve the underly ing dispute of
authority and would not prevent continued misrepresentation in the interim.
Only an interim interdict can effectively prevent the ongoing exercise of
contested authority pending final determination.


[167] The relief granted is strictly interim. The function of the order is limited to
preserving corporate governance integrity and preventing the continued
exercise of prima facie unlawful authority pending that determination. In
these circumstances, all requirements for interim interdictory relief h ave
been satisfied.






Order



[168] I accordingly granted the relief on the aforesaid bases. In the result the order
as granted:

1. Pending the finalisation of the application under case number 2025 -
066783 and/or the finalisation of the proceedings contemplated in
paragraph 2 below, the first, second and fourth respondents are
interdicted and prohibited:

1.1 from acting or purporting to act on behalf of the applicant;
and/or

1.2 from causing any third person to act or purporting to act on
behalf of the applicant; and/or

1.3 from giving themselves out and/or from representing in any
manner whatsoever that they (either individually or as
collective) has authority to act on behalf of the applicant in
any capacity whatsoever.

2. The relief in paragraph 1 shall have immediate interim effect and
shall lapse unless the applicant institutes action, alternatively makes
application, within 30 days from date of this order, wherein the
applicant substantially seeks relief in the following terms:

2.1 The fifth respondent (CIPC) is ordered to amend the records
of the applicant as follows:

2.1.1 by removing and no longer reflecting the first,
second, third and fourth respondents (and/or the
third respondent) as directors of the applicant; and

2.1.2 to reflect STANLEY KGAAPU MPAHLELE as the
applicant’s sole director.

3. The first, second and fourth respondents are to pay the applicant’s
costs herein jointly and severally, the one paying the other to be
absolved on scale C, inclusive of the costs of senior counsel.





_________________________________
F.J. LABUSCHAGNE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA

Electronically delivered and signed.




Date heard: 20 March 2026

Date of order:

Date of reasons:
26 March 2026

10 April 2026


For the applicant: Adv. BC Stoop SC

Instructed by: Hajibey Bhyat Mayet & Stein Inc.


For the 1 st, 2nd and 4th
respondents:

Adv. JG Naudé SC

Adv. FC Lamprecht

Instructed by: Jaffer Inc.