THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case 2026-077932
In the matter between:
OASAS CONSULTANTS (PTY) LTD Applicant
and
ARWYP MEDICAL CENTRE (PTY)
LTD
First Respondent
ARWYP HOLDINGS (PTY) LTD
Second Respondent
MARK JONATHAN GEORGE
TAYLOR
Third Respondent
DANIEL BARTHOLOMEUS LE ROUX
Fourth Respondent
THE COMPANIES AND
INTELLECTUAL PROPERTY
COMMISSION
Fifth Respondent
ORPHEUS BELEGGINGS CC
Sixth Respondent
AGATHA JANE SMITH
Seventh Respondent
EMMA MARY SHACKLETON Eighth Respondent
(1) REPORTABLE: Yes☐/ No ☒
(2) OF INTEREST TO OTHER JUDGES: Yes☐ / No ☒
(3) REVISED: Yes ☒ / No ☐
Date: 01 May 2026
JUDGMENT
DU PLESSIS J
Introduction
[1] In this urgent application, the applicant seeks final declaratory relief concerning
the appointment of the third and fourth respondents as directors of the first respondent,
Arwyp Medical Centre (Pty) Ltd (“AMC”). The applicant seeks, among the relief, a
declaration that the shareholder resolution dated 11 March 2026, purporting to appoint
the third and fourth respondents as directors of AMC, is null and void ab initio.
[2] The dispute arises against the backdrop of ongoing conflict among the
shareholders of AMC and other related entities, the details of which are unnecessary
for the purposes of this judgment. Suffice it to say that there is animosity among the
parties involved, with multiple proceedings and attempts by one faction to gain control
over the others. This case focuses on the narrow legal question of, essentially,
interpreting section 60 of the Companies Act (“the Act”).
1
Background
[3] AMC has three shareholders: Arwyp Holdings (Pty) Ltd (“AH”), the majority
shareholder with 78,6%; the applicant with 20,4%; and the sixth respondent, Orpheus
Beleggings CC (“Orpheus”), which holds 1%, described as a dissolved closed
corporation. From the return of service, it is evident that the primary member is 89
years old and has dementia. The only active protagonists are, therefore, AH and
Orpheus, and the various directors that control these companies.
[4] On 25 February 2026, notices were circulated convening general meetings of
shareholders for 12 March 2026 (in terms of section 61 of the Act) to consider,
amongst other things, the election of the third and fourth respondents as independent
non-executive directors of AMC.
1 71 of 2008
2
[5] On 11 March 2026, after the applicant objected to the short notice for the
meeting and noted his unavailability, Ms Shackleton (of AH) circulated written
shareholders’ resolutions for adoption under section 60 of the Act. In the covering
email, she asked shareholders to record their votes by completing and signing the
voting table at the end of the resolution and to return the signed document “as soon
as possible and within 20 business days of this email”. The email was sent to the
applicant’s shareholder. It was not sent to Orpheus, the 1% shareholder.
[6] That same evening, she sent a further email attaching a partially signed
resolution reflecting AH’s support for the appointment of the third and fourth
respondents. On 12 March 2026, Ms Shackleton informed the applicant that the
relevant majority had passed the resolutions on 11 March 2026, and that the meeting
scheduled for 12 March 2026 was moot and would not proceed. The third and fourth
respondents were then registered as directors of AMC.
Urgency
[7] The applicant contends the matter is urgent because, if directors are improperly
appointed, it raises liability and corporate governance concerns for the company. The
applicant avers that it has a right to protection, and that, as long as it continues, it is
jeopardised. It avers that it gave the respondents ample time to respond.
[8] The respondents contended that the matter lacked urgency, that there simply
is no anxiety in addressing the issue, citing the delay between 12 March 2026, when
the appointments were made, and the application's launch on 2 April 2026.
[9] Even so, the application concerns the validity of appointments of persons who,
if validly appointed, would immediately exercise the powers and fiduciary functions of
directors in relation to the affairs of AMC. Section 66(1) of the Act makes clear that the
business and affairs of a company must be managed by, or under the direction of, its
business and affairs of a company must be managed by, or under the direction of, its
board. Where the complaint is that the board has been altered by the invalid
appointment of directors, there is an ongoing governance consequence that cannot
be fully addressed by relief obtained in due course. The fairly generous timeframes for
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filing the papers also comply with the guidance set out in Luna Meubels.2 The matter
was also fully argued on the merits, and it is preferable to deal with the merits and
dismiss the application on those grounds, rather than to strike the matter from the roll.
The issues
[10] The applicant initially relied, as its primary argument, on a contention that the
terms of AMC's memorandum of incorporation ("MOI") excluded the use of section 60
of the Act for the election of directors. That argument was not persisted in at the
hearing and was correctly abandoned.
[11] What remains is a question of statutory interpretation: whether the requirements
of section 60 were met on the facts of this case. The applicant advances various
contentions. First, it submits that it should have been given adequate notice before the
resolutions were circulated. Second, it argues that the 20-business-day period in
section 60(1)(b) is mandatory, so that a written resolution cannot be adopted before
that period has elapsed. Third, it argues that section 60(2)(a) requires identifying the
person who may have voting rights at a properly constituted shareholders' meeting
and conferring on them a legal entitlement to participate in the section 60 process. As
a result, a resolution cannot be adopted unless Orpheus and the applicant
participated. Lastly, it contends that section 60(3) required all shareholders to
participate in the poll before the resolutions could be treated as passed. None of these
contentions can be sustained.
Section 60 of the Act
[12] Section 60 of the Act reads:
60. Shareholders acting other than at meeting. —(1) A resolution that could be voted
on at a shareholders meeting may instead be—
(a) submitted for consideration to the shareholders entitled to exercise voting rights in
relation to the resolution; and
(b) voted on in writing by shareholders entitled to exercise voting rights in relation to
the resolution within 20 business days after the resolution was submitted to them.
the resolution within 20 business days after the resolution was submitted to them.
2 Luna Meubels Vervaardigers (Edms) Bpk v Makin 1977 (4) SA 135 (W).
4
(2) A resolution contemplated in subsection (1)—
(a) will have been adopted if it is supported by persons entitled to exercise sufficient
voting rights for it to have been adopted as an ordinary or special resolution, as the
case may be, at a properly constituted shareholders meeting; and
(b) if adopted, has the same effect as if it had been approved by voting at a meeting.
(3) An election of a director that could be conducted at a shareholders meeting may
instead be conducted by written polling of all of the shareholders entitled to exercise
voting rights in relation to the election of that director.
(4) Within 10 business days after adopting a resolution, or conducting an election of
directors, in terms of this section, the company must deliver a statement describing the
results of the vote, consent process, or election to every shareholder who was entitled
to vote on or consent to the resolution, or vote in the election of the director, as the
case may be.
(5) For greater certainty, any business of a company that is required by this Act or the
company’s Memorandum of Incorporation to be conducted at an annual general
meeting of the company, may not be conducted in the manner contemplated in this
section.
[13] Section 60 is a mechanism that enables shareholders to make decisions
without the need for meetings. It permits a resolution that could be voted on at a
shareholder’s meeting to be submitted to shareholders entitled to exercise voting
rights in relation to that resolution, and to be voted on in writing within 20 business
days after submission. Section 60(2)(a) provides that when such a resolution has been
adopted. Section 60(3) deals with the election of a director.
[14] The language of section 60(1)(b) sets a maximum period within which votes
may be cast. It does not create a standstill during which adoption is suspended. The
words “be voted on in writing within 20 business days” support that interpretation.
words “be voted on in writing within 20 business days” support that interpretation.
“Within” is a temporal boundary, an outer limit. In other words, a vote cast after 20
days is out of time.
3 There is no merit in the argument that a company must first wait
for the 20 days to expire before it can treat a resolution as adopted, even if the requisite
voting threshold has already been met. That interpretation would frustrate the evident
3 Henochsberg on the Companies Act 71 of 2008, General Notes on sec 60.
5
purpose of section 60, which is to provide a practical and efficient alternative to a
formal meeting.
[15] Section 60(2)(a) deals with the sufficiency of the voting rights supporting the
resolution. It asks whether those who support the resolution have sufficient voting
rights to pass it at a properly constituted meeting. It relates to voting power, not to the
number of shareholders who have voted. The phrase “properly constituted
shareholders’ meeting” is a reference to the threshold that would have been required
at a meeting. It does not require one to meet all the procedural requirements of a
meeting, including a quorum based on a headcount of shareholders. Henochsberg
4
acknowledges that the phrase is open to two readings. The first reading focused on
the minimum quorum threshold; the other on the majority of all eligible members.
Henochsberg states that the second reading is more logical (with reference to the
English Act). Be that as it may, on both readings, AH's 78.6% holding is sufficient to
pass an ordinary resolution. The applicant's attempt to read a two-shareholder
headcount requirement into section 60(2)(a) finds no support in either the text or the
commentary
[16] Section 60(3) requires that an election of directors be conducted "by written
polling of all of the shareholders entitled to exercise voting rights." This requirement is
intended to ensure that every entitled shareholder receives the written resolution and
an opportunity to participate. It does not require every shareholder to vote. The written
resolutions were submitted to the shareholders, including the applicant, with a polling
table to record each shareholder's vote. The applicant received the document at the
email address it had used to correspond with AMC earlier that same day. The fact that
the applicant had not yet voted when AH's vote was cast does not mean that the polling
requirement was breached. The applicant was included in the poll.
requirement was breached. The applicant was included in the poll.
[17] Whether the resolutions were also transmitted to Orpheus, the 1% shareholder,
is not established with the same clarity in the papers. No email to Orpheus appears in
the documentary record, and the assertion in the answering affidavit that the
resolutions were sent to all shareholders is unsupported by any annexure addressed
4 Henochsberg on the Companies Act 71 of 2008, General Notes on sec 60.
6
to Orpheus. However, any defect in notification to Orpheus does not avail this
applicant for two independent reasons. First, the applicant has no standing to rely on
a procedural defect suffered by a separate shareholder who entered no appearance,
raised no complaint, and sought no relief. Second, and in any event, the defect was
incapable of affecting the outcome: AH held almost 80% of the voting rights, sufficient
on its own to pass even a special resolution. Orpheus's 1%, whether cast for or
against, or not cast at all, could not have changed the result. A procedural defect that
is incapable of affecting the result provides no basis to impugn the validity of the
election in this case.
[18] Henochsberg submits that section 60 is silent on the formal requirements
beyond the voting mechanism, and that the ordinary notice requirements applicable to
meetings apply mutatis mutandis to the submission of a written resolution. He draws
support from CDH Invest NV v Petrotank South Africa (Pty) Ltd,
5 (dealing with section
61) and from the English position that a written resolution must be submitted to all
shareholders at the same time, or to each in turn, but without undue delay. Under this
approach, a shareholder is entitled not merely to receive the written resolution but also
to a meaningful opportunity to consider it before the majority acts.
[19] The facts of this case sit uneasily with that principle. The written resolutions
were submitted to shareholders at 17h57 on 11 March 2026. Within approximately 90
minutes, AH's signed vote was circulated, and the resolutions were declared passed
the following day. The covering email itself indicated the 20-business-day window,
which was effectively redundant almost immediately. There is a real tension between
that conduct and the notice-based approach in Henochsberg and CDH Invest.
[20] I am, however, not convinced that this ultimately supports the relief the
[20] I am, however, not convinced that this ultimately supports the relief the
applicant seeks. The rule in section 60(2)(a) is unambiguous: a resolution is adopted
when it is supported by persons holding sufficient voting rights. It may well be that,
analogous to section 61, the notice requirement is intended to afford shareholders
sufficient time to consider the proposed resolutions. But the Act does not provide that
a resolution meeting the section 60(2)(a) threshold is invalidated because the majority
5 [2018] 1 All SA 450 (GJ) para 71.
7
acted before the minority had time to respond. The notice requirements identified by
Henochsberg and CDH Invest relate to how the resolution must be submitted. They
are not related to the question of when the submission may be treated as adopted. On
the papers before this court, the resolution was submitted to shareholders
simultaneously. The majority voted, and by then the threshold had been crossed.
[21] The minority's remedy, where a majority shareholder uses section 60 swiftly
and strategically, lies perhaps elsewhere, not in an interpretation of section 60 that
would, in effect, give a minority shareholder a 20-business-day veto.
[22] The applicant's real grievance is that the majority shareholder was able to carry
the resolutions before the minority could organise a response. I acknowledge that this
is an uncomfortable feature of the section 60 procedure as it operated in this case. It
is true that the timing of the section 60 process, initiated the day before the scheduled
shareholders' meeting, on the same day the applicant raised short-service objections,
and within hours of a Companies Tribunal referral, invites scrutiny of motive. But once
the applicant correctly conceded that the MOI did not preclude the use of section 60,
the Act provides no basis for invalidating a written resolution that complied with its
requirements simply because it was initiated with a particular strategic purpose in
mind.
[23] The requirements of section 60 were met. The resolutions were submitted to
the entitled shareholders. The polling mechanism was provided. AH held and
exercised sufficient voting rights for adoption. The resolutions were accordingly validly
adopted, and the appointments of the third and fourth respondents as directors of AMC
are valid.
Order
[24] The following order is made:
1. The application is dismissed, with costs, including costs of two
counsel, to be taxed on scale B.
_____________
8
WJ du Plessis
Judge of the High Court, Gauteng Division,
Johannesburg
Date of hearing:
28 April 2026
Date of judgment:
1 May 2026
For the applicant:
WB Pye SC & CB Garvey, instructed by
Cuthebertson & Palmeira Attorneys Inc
For the first to fourth, seventh and
eight respondent:
AE Franklin SC & M Dafel, instructed by
Webber Wentzel
For the seventh respondent: AE Franklin SC & M Dafel Pinsent
Masons South Africa Inc