THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case 2026/083440
In the matter between:
THANDAZILE DLAMINI Applicant
and
EWERHARD BRITS Respondent
JUDGMENT
DU PLESSIS J
Introduction
[1] In this urgent application, the applicant seeks interdictory relief against the
respondent, her co-director in MD Dsign Worx (Pty) Ltd (“MD Dsign”). In the
alternative, she seeks relief under section 163 of the Companies Act 1 (“the Act”) on
the basis that the respondent’s conduct is oppressive, unfairly prejudicial to, or unfairly
disregards her interests.
1 71 of 2008.
(1) REPORTABLE: Yes☐/ No ☒
(2) OF INTEREST TO OTHER JUDGES: Yes☐ / No ☒
(3) REVISED: Yes ☒ / No ☐
Date: 02 May 2026
2
[2] The papers tell a story of a deteriorating business relationship, a dispute over
the company's management and financial affairs, and communications from the
respondent concerning closure, “short time,” and liquidation. The difficulty is that the
applicant has shown sufficient grounds for concern about the tenor and effect of some
of the respondent’s conduct, but the relief in the notice of motion is too broad, and the
wider section 163 relief in the alternative is not, on these urgent papers, ripe for final
determination.
Background
[3] The applicant and the respondent are co-directors of MD Dsign, a
manufacturing company. The applicant is the majority shareholder and is responsible
for production, while the respondent is involved in sales and administration. The
respondent’s wife is the minority shareholder in MD Dsign.
[4] This arrangement arose in 2019, when the applicant brought production
expertise and product development knowledge, and the respondent brought his
greater experience in the commercial and administrative running of the business. But
from around 2021, the applicant alleges that the respondent increasingly took
unilateral decisions without her consent and in a manner inconsistent with the
company’s memorandum of incorporation. These included the replacement of
accountants, the transfer of shares to his wife, and the use of the respondent’s own
company, MedDev, to procure work for the company at predetermined prices. All this
resulted in a financially dependent relationship in which MedDev advanced loans and
the respondent exercised increasing leverage over the company’s affairs. This was
described as a “vicious cycle” in which, by then, there was little or no profit in the
company. The respondent provided funding through MedDev and then used his
financial strength to dictate outcomes and place pressure on her when she resisted
his decisions.
[5] This relationship broke down some time ago. There is a pending application in
[5] This relationship broke down some time ago. There is a pending application in
the ordinary course seeking relief on the legality of some of the earlier decisions taken
by the respondent (in terms of section 162 of the Act). However, a recent escalation
triggered this application.
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[6] After the earlier proceedings were instituted, MedDev issued a demand under
section 345 of the Act to MD Dsign for payment. The applicant says she demanded
proof and a reconciliation of the alleged indebtedness, and that the debt remains
disputed. She contends that the respondent thereafter threatened liquidation and
applied commercial pressure to force her to accept a buyout.
[7] Particular reliance is placed on communications in April 2026. The founding
affidavit records that on 7 April 2026, the respondent demanded that staff be notified
of “pending closure” on 24 hours’ notice, that staff stop work from 8 April 2026, and
that other entities be informed that the company would proceed with voluntary
liquidation and would be unable to pay retrenchment packages. The applicant says
there had been no special resolution by shareholders to place the company in
voluntary liquidation, nor had any lawful liquidation process been commenced. She
describes these communications as oppressive and prejudicial, intended to pressure
her into selling her shares.
[8] The applicant’s replying affidavit attaches a memorandum to staff dated 13 April
2026, headed “Implementation of Short Time”, which records that, due to a lack of
orders, the company would implement short time with effect from the following day and
that full payment could not be sustained in the circumstances. The staff list appended
to that memorandum suggests that the communication was, in fact, disseminated
within the company. The respondent objects to this evidence in reply and disputes the
applicant’s broader characterisation of his conduct, but the existence of short-time
messaging to staff does not appear to be merely speculative.
[9] The respondent’s answer is that the company is in genuine financial distress,
that he must be able to communicate that reality, and that the applicant seeks to
transform ordinary commercial and governance disagreements into oppressive
transform ordinary commercial and governance disagreements into oppressive
conduct. He also points out that, on 15 April 2026, through his attorneys, he tendered
compliance with prayers 2 to 4 of the notice of motion by undertaking not to
communicate false or misleading information, not to coerce the applicant into informing
employees that the company is closing, and not to coerce the applicant into selling her
shares. During the argument, it was submitted that the prayers sought are too broad,
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and it remains unclear how he can, at the same time, object that they are too broad
yet give a broad undertaking.
[10] Be that as it may. The principles governing urgent applications are well
established. East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd
2 lays
emphasis on the “substantial redress in due course” requirement in Rule 6(12).
[11] The respondent is correct that not every complaint raised by the applicant is
urgent. Some of the conduct on which the applicant relies dates back to 2021, and
litigation is already pending in the ordinary course concerning the company's
governance and the respondent’s earlier conduct. However, the applicant also relies
on April 2026 communications concerning closure, short time and voluntary
liquidation, together with the broader context of the section 345 demand and the
respondent’s proposal that she sell her shares. The undertaking furnished on 15 April
2026 is relevant, but it does not retrospectively extinguish urgency. At most, it bears
on what relief remained necessary when the matter was heard. I therefore proceed on
the basis that urgency was established in relation to the immediate communications
and the threatened prejudice said to arise from them.
[12] The requirements for final interdictory relief are trite: a clear right, an injury
actually committed or reasonably apprehended, and the absence of a satisfactory
alternative remedy.
3 In motion proceedings seeking final relief, those requirements
must be applied consistently with the Plascon-Evans rule.
[13] The applicant does not, on the papers before me, establish a basis for a wide-
ranging interdict in the terms sought in the notice of motion. The interdict would prohibit
the respondent from communicating “any false or misleading information” to
employees, clients, suppliers or third parties about the company’s operations or future,
or about claims that it is undergoing liquidation. As the respondent submitted, relief
or about claims that it is undergoing liquidation. As the respondent submitted, relief
cast in such broad terms risks operating as a general gag on communications about
the company’s future. In a company that appears to be in commercial difficulty, a
2 [2011] ZAGPJHC 196.
3 Setlogelo v Setlogelo 1914 AD 221.
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director must remain able to communicate truthfully and in good faith with staff,
creditors and other stakeholders about financial distress and available options.
[14] On the other hand, the applicant’s complaint is not merely that the respondent
spoke about financial distress. He also communicated closure and voluntary
liquidation, presenting them as decisions to be implemented despite the absence of a
special resolution to that effect, and despite the debt underlying the section 345
demand remaining in dispute.
[15] In my view, some tailored protection is justified. The applicant has shown a
sufficient right, as co-director and majority shareholder, not to have the respondent
communicate as an accomplished fact that the company is in liquidation or has
resolved to enter voluntary liquidation, when no such formal step has been taken. She
has also shown a basis to restrain pressure to compel her to disseminate inaccurate
closure messaging or to dispose of her shares under threat.
[16] Any order must therefore be carefully confined so as not to prohibit the
respondent from communicating truthfully about the company’s financial position, that
a section 345 demand was served, and that short time is being considered. Lawful
options such as business rescue, restructuring or liquidation should be permitted to be
communicated, provided they are accurate and made in good faith. What it should
prohibit is communication that, as an existing decision or legal fact, represents that the
company is under liquidation or has resolved upon voluntary liquidation where that is
not so, and coercive conduct directed at forcing the applicant to communicate such a
false position or to sell her shares.
[17] I do not wish to venture into the section 163 relief, which was in the alternative,
as I do not consider the urgent court the correct forum to decide those matters on the
papers before me, especially not when there appears to be a factual dispute. It was
also framed in the alternative.
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Remedy
[18] The respondent relied heavily on the undertaking. This undertaking is
significant because it closely aligns with the immediate prohibitory relief sought by the
applicant. The applicant argued that a mere undertaking did not necessarily address
her concern, particularly as the dispute had already escalated to formal litigation and
the undertaking was issued after urgent proceedings had begun. In the circumstances,
the appropriate course is to make the undertaking an order of court, formulated in
terms that are sufficiently precise to be enforceable.
Costs
[19] As to costs, the applicant was justified in seeking urgent relief, but the notice of
motion was framed too widely, and the respondent’s undertaking materially narrowed
the live issues for determination. As a result, and given the mixed outcome, fairness
is best served by directing that each party bear its own costs.
Order
[20] The following order is made:
1. The forms and service provided for in the Rules are dispensed
with, and the matter is heard as one of urgency.
2. The respondent is interdicted from representing to employees,
clients, suppliers or other third parties that MD Dsign Worx (Pty)
Ltd is under liquidation, in liquidation, or has resolved to proceed
with voluntary liquidation, in circumstances where no
shareholders’ special resolution to that effect has been adopted
and no liquidation proceedings have been instituted.
3. The respondent is interdicted from requiring or coercing the
applicant to communicate to employees of MD Dsign Worx (Pty)
Ltd that the company has closed, will close, or will proceed with
liquidation, in circumstances where no lawful decision to that
effect has been taken.
4. The respondent is interdicted from threatening closure,
liquidation, withdrawal of financial support, or comparable
economic pressure for the purpose of compelling the applicant to
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dispose of her shares in MD Dsign Worx (Pty) Ltd to the
respondent or his nominee.
5. Nothing in this order prevents the respondent, acting in good faith
and in his capacity as director, from communicating truthfully
about the company’s financial position or about lawful options
available to the company, including restructuring, business
rescue or liquidation, provided he does not misrepresent that
liquidation has already been commenced or finally decided upon
when that is not so.
6. There is no order as to costs.
____________________________
WJ du Plessis
Judge of the High Court, Gauteng Division,
Johannesburg
Date of hearing:
29 April 2026
Date of judgment:
2 May 2026
For the applicant:
V Sihawu instructed by Mgidlana
Attorneys Inc
For the respondent:
N Brodie from SBL Incorporated.