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IN THE COMPANIES TRIBUNAL OF SOUTH AFRICA
CASE NO: CT02689/ADJ/2026
In the matter between:
JEFFREY GAMA FIRST APPLICANT
PATRICK VUSUMUI SIFUNDZA SECOND APPLICANT
FARADAY INVESTMENT HOLDINGS PTY LTD THIRD APPLICANT
And
ZAKHELE THOKOZANI THANGO FIRST RESPONDENT
WELCOME SHADRACK MABUZA SECOND RESPONDENT
CELUKUTHULA ERICK MBATHA THIRD RESPONDENT
Presiding Member H.K Dlepu
Date of Decision: 18th MAY 2026
Decision and Reasons
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A. INTRODUCTION
1. The First Applicant is bringing this application as a shareholder and a director of
Faraday Investment Holding (Pty) Ltd with registration number 2024/085787/07
(“herein referred to a “FIH”) and is employed by the t hird applicant at 255 Cnr
5th Street and Johannesburg Road, La Rochelle, Johannesburg Gauteng, 2190
2. The Second Applicant is employed by the third applicant as the Bookkeeper at
255 Cnr 5th Street and Johannesburg Road, La Rochelle, Johannesburg 2190
3. The Third Applicant is Faraday Investment Holding ( Pty) Ltd a company duly
incorporated by the Company Laws and regulations of the Republic of South
Africa with registration number 2024/085787/07 with its business address being
255 Cnr 5th Street and Johannesburg Road, Johannesburg, Gauteng, 2190.
4. The First Respondent is Zakhele Thokozani Thango, an adult male South
African, citizen and at all material times a member and executive of Faraday
Taxi Association in Johannesburg, Gauteng.
5. The Second Respondent is Welcome Shadrac k Mabuza an adult male South
African citizen at all material times and at all material times male member and
executive member of Faraday Taxi Association, Johannesburg, Gauteng
6. The Third Respondent is Celukuthula Erick Mbatha an adult male South African
citizen and a member and executive of Faraday Taxi Association,
Johannesburg, Gauteng.
B. REASONS FOR THE APPLICATION
7. The Applicant brought the Application on an urgent basis requesti ng the
Companies Tribunal in terms of Section 180 to 184 of the Companies Act and
Regulation 147 of the Com panies Regulations 2011 to be allowed a reduction
of time for filling of Application documents to be adjudicated by the Companies
Tribunal.
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8. The Applicant fur ther sought the Company Tribunal to adjudicate on an urgent
basis the unlawful appointment of the Respondents as the Directors of the
Third Applicant, Faraday Investment Holdings (Pty) Ltd
9. The Main Application is filed in compliance with procedure as provided for in the
Companies Act of 2008 accompanied by Form CTR 142, wherein the
Applicants seek an order in the terms of Section 71(3) and 71(8) of the
Companies Act on the following terms:
9.1 The declaration that the purported appointment of th e Respondents as
directors of the Third Respondent is unlawful and fraudulent.
9.2 The removal of the said unlawfully and or fraudulently appointed
directors of the Third Respondent with retrospective effect.
9.3 An order directing that the records of the CIPC be corrected to reflect the
true and lawful position, namely that the First Applicant is the sole
Director of the Third Applicant
10. The Third Applicant is incorporated in terms of the company laws of South
Africa and in accordance with the requirements as set out in the Companies Act
71 of 2008, and it is regulated in terms of its Memorandum of Incorporated filed
in the CIPC.
11. The issues to be determined are whether the First , Second and Third,
Respondents are lawfully appointed as the directors of the Faraday Investment
Holding (Third Respondent) in compliance with its Memorandum of
Incorporation, its governance document which was filed in the CIPC
C. BACKGROUND
12. The Applicants submit that on or about February 2026 the R espondents
unlawfully and without any authority or/ alternatively fraudulently caused
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themselves to be reflected as directors of Faraday Investment Holding (Pty) Ltd,
(the Third Applicant) in the Companies Intellectual Property Commission (CIPC)
despite having no legal standing to do so.
13. The urgency of the application was underpinned by the fact that the A pplicants
operate within the transport industry and require a steady cash flow daily to
meet their operational obligations.
14. On the 7 th of April 2026, the Applicants discovered that they were unable to
transact as the authorized signatories on Third Applicants bank account they
then attended to the Third Applicants Bank to make enquiries regarding their
inability to transact on thei r prima ry banking account, the interruption caused
the Applicants in their capacity as authorized signatories unable to transact on
the Third Applicants’ bank account, the debit orders could not be honored and
that position put the Third Respondent (the Company) in an untenable financial
situation and unable to operate..
15. Upon enquiry from the Third Applicants’ Bank manager/employee, about their
inability to transact on the primary account , the bank manager /employee
subsequently informed the A pplicants that it received an email on the 2
nd April
2026 regarding the restriction on the C ompanies primary account, in other
words freezing of the company's bank account which resulted in the Applicant
unable to transact , the freezing of the account had an immediate impact on
Faraday Investment Holdings’ company operations.
16. Due to the reasons above, the Company found itself in an untenable situation.
The Third Applicant is still unable to perform in terms of its financial obligations
to their creditors and employees due to its inability to transact as they could not
access funds to pay salaries and wages to the employees, contribute to the
Compensation fund and could not honor its employees tax obligations . The
unavailability of funds could jeopardize the company’s future dealings with
unavailability of funds could jeopardize the company’s future dealings with
these creditors.
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17. The Respondents, on the other hand, although they had not filed their papers
opposing the application, were present at the hearing and were granted an
opportunity by the Tribunal Member to respond from the bar, the Respondents
raised a point in limine that the Tribunal had no jurisdiction to adjudicate the
matter.
18. Having considered the issues advanced by the Applicants and what the
Respondents had raised from the bar ,the Tribunal was satisfied that the issues
raised by the Applicants warrant thorough ventilation before the Tribunal and that
the Applicants have shown good cause for urgency and that the papers before the
Tribunal did not justify the exclusion of the Tribunal on the basis of lack of
jurisdiction to adjudicate the matter a s the Applicant ’s Notice of Motion clearly
indicated that the Application was brought before the Tribunal in terms of Section
71(3) and 71(8) of the Companies Act .
19. The Tribunal made the following order: -
(i)The Respondents were ordered to file their Answering or opposing Affidavit
by the end of business the 28th of April 2026.
(ii) The Applicants to were ordered to file their Replying Affidavit to advance their
argument on record and in writing by the 29th of April 2026.
(iii) The Applicants were ordered to file their Replying Affidavit by the 29th of April
2026.
(iv)The Applicants were ordered to index and paginate the bundle of the
submissions by the 3rd of May 2026
20. The matter is set down for argument for the 7th of May 2026 at 10h00am virtually.
The parties complied with the directive.
D. THE APPLICANT’S SUBMISSIONS
21. On the 20th of June 2017 Faraday Investment Holding (Pty)Ltd with registration
number 2017/274291/07 was incorporated, The Company was established and
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incorporated by Mr . Gama and Mr. Xaba as initial directors , together with
approximately other (20) twenty additional directors.
22. On the 25th yes December 2021, the company was deregistered, the
deregistration processes arose largely due to the administrative inaction of
having approximately (32) directors which resulted in in action and governance
issues difficulties associated with the large number of directors.
23. On the 20th of February 2024 a new Faraday Investment Company (Pty) was
re-registered with registration number 2024/085787/07 the two incorporators
were Mr Jeffrey Gama and Mr Caiphas Snothi Xaba (who is now deceased) .
Following Mr Xabas ’ passing, Mr Gama remained the sole director and
shareholder of Faraday Investment Holding Company. The Directors and
shareholders adopted and filed its Memorandum of Incorporation with the CIPC.
Directors and shareholders had on material times acknowledged that they
derived their mandate, governance and operations from the Memorandum of
Incorporation (MOI) which was attached to the Applicants affidavit . The MOI
became the sole governance document, in that it sets out the rights, duties and
responsibilities of directors and shareholders.
24. Mr Gama remained the sole director and shareholder of Faraday Investment
Holding (Pty) L td and Mr Gama has been operating on the affairs of the
Company as a sole director and shareholder duly assisted by the Second
Applicant Mr Sifundza the Third Applicants’ Accountant.
25. Historically Mr Gama previously a General Secretary of Faraday Taxi
Association in terms of their C onstitution and he conducted the affairs of the
Association in accordance with its Constitution. He was voted out of his position
on the 9th of October 2025. He alleges that his position as the General Secretary
of the Faraday Taxi Association had no impac t on his directorship at Faraday
Investment Holding the two had always been two separate entities and
Investment Holding the two had always been two separate entities and
operated independently . Faraday Taxi Association and Faraday Investment
Holding have always operated independently of each other and both entities
are governed by their own founding governance documents.
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26. It is alleged that on the 20th of February 2026 the Faraday Taxi Association
appointed the Respondents to be the directors of Faraday Investment Holdings
(Pty) unlawfully and fraudulently , without the First and the Second Applicants ’
knowledge or resolution from and by the Third Applicant or its directors and
shareholders more especially the Fi rst Applicant who at all in turns and
purposes was the sole director and shareholder; a copy of the First Applicant ’s
share certificate was attached to the First Applicants’ affidavit.
27. Faraday Taxi Association was neither a director nor shareholder of Faraday
Investment Holding (Pt y)Ltd .The Applicants became aware that the
Respondents caused themselves to be registered as direct ors of the T hird
Respondent on the 23 rd February 2026 .Following the discovery of the
registration of the three Respondents as directors of the Third Applicant, the
Applicants immediately engaged the CIPC, lodged a dispute with the CIPC and
requested that the fraudulent appointments be reversed and /or removed ,the
attempt was unsuccessful due to the Company profile being frozen at the CIPC,
a dispute was lodged with the CIPC. The Applicants opened a fraud case
28. The Applicants alleges that they were directed by the CIPC to undertake a
process of removal of the Respondents as directors and were advised to make
an application in terms of Notice No 42 of 2019 titled “Processing Requirements
for the Removal of Directors ”, the Applicants proceeded with the prescribed
process while pursuing their objections and appeals with the CIPC.
29. The Applicants then, following the advice of the CIPC, to expedite the process
of the removal, The Applicants called a board meeting to remove illegitimate
directors, the three Respondents. as directors of the Third Applicant .The
meeting was called by the First Applicant in his capacity as the sole director
and shareholder ,the meeting was scheduled for the 20th March 2026, the
and shareholder ,the meeting was scheduled for the 20th March 2026, the
meeting notice was circulated and sent by email to the three Respondents for
purposes of removing the them as they were as unlawfully /fraudulently
appointed as Directors of the Third Applicant, this was done in accordance
with the CIPC Notice 42 of 2019,
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30. The Applicants submitted a further query to the CIPC to challenge the validity of
the appointments of the Three Respondents, and the Applicants called a notice
of a special meeting to remove the Respondents as directors.
31. The shareholder’s meeting was called for the 20 th of March 2026 in terms of
Section 71(1) for the removal of the Respondents as directors of the Third
Respondent, it is alleged that the R espondent failed to attend and thus the
Applicant passed and adopted a resolution for the removal of the First, Second.
Third Respondent as Directors of the Third Applicant. The Applicant submitted
that he followed the procedure as prescribed in terms of Section 71 removal of
Directors by a shareholder.
32. Unbeknown to the Applicant, the Respondents on the other hand issued a
notice of a spe cial meeting to remove the Applicant as a sole Director. On the
27th of March 2026 the Respondents allegedly convened a board meeting
purporting to be the Directors of the Third Applicant to remove a sole legitimate
director of the Third Applicant.
33. All these to all activities resulted in the Applicants being informed by the Third
Applicants bank that the Third Applicants Primary Banki ng account was frozen
and none of the parties could transact on the account until the matter is
resolved. This situation was to the detriment of the employees and creditors.
34. The Applicant submits that the Respondents appointed themselves fraudulently
as they had no capacity to do so , the alleged appointment of Respondents by
as Directors, by Faraday Taxi Association had no basis in law and was invalid .
Faraday Taxi Association as the alleged appointer was not a shareholder nor
had any capacity to interfere with the affairs of the Third Applicant. as they were
never appointed by the sole Shareholder nor the Director of the Third
Respondent. The Applicant brought the application in terms Section 71 (1) and
71(3) of the Companies Act
71(3) of the Companies Act
E. THE RESPONDENTS’ SUBMISSIONS.
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35. The Respondents in their answering affidavit raised a Point in Limine as follows:
35.1. The Respondent contended that the Tribunal lacked jurisdiction in
terms of Section 71 of the Companies Act as it alleges that at the time
when the Application was brought to the Tribunal , Faraday Investment
Holdings (Pty) Ltd had more than 3(three) directors.
35.2. The Respondents further contented that the determination sought
by the Applicants can be only made by order of Court as contemplated
by the provisions of Section 71( 6) of the Companies Act and the
Application ought to be refused.
36. The Respondents proceeded to respond to the Applicants merits that should
the Respondents Point in Limine not be upheld ,the Applicants submitted that
the First Applicant was a member of Faraday Taxi Association ,and that he
was previously elected as a General Secretary of the Executive Committee of
the Association and was voted out of the position in an Annual General Meeting
of the Association on the 9th October 2025.
37. The Respondents contended that the First Applicant was appointed as a
director of the Third Applicant by virtue of his position as a General Sec retary,
and upon his removal he supposed to cease being a director of Faraday
Investment Holding (Third Applicant). The Respondent further alleged that the
Faraday Taxi Association had the authority to appoint directors to Faraday
Investment Holding (Pty) Ltd as it was an investment arm of the Taxi
Association.
38. The Faraday Taxi Association is governed by a constitution, the constitution
was attached to the Respondents ’ affidavit, The Associations’ Constitution’s
described the Associations mandate amongst others as to ;
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40.1 protect, secure and promote the interests of the members of the
Association and to.
40.2 be Effective and be efficient in running the Association and,
40.3 Fostering good working relationships with government, which includes
engaging actively in discussions and negotiations, to make
representations and appeals to various states, provinces, committees,
Composition of the E xecutive Committee local authorities in the interest
of its members.
40.4 Fostering good working relationships with other Associations
39. The Constitution further provides amongst others, to regulate rights and duties
of its members, the membership fees paid by its members, it provides for all the
duties of its Executive Members and compliance with its rules and procedures
of its members, term of office of its Executive Committee, Eligibility, nomination
and election of the E xecutive Committee ,the duties of all the Committees and
names of other committees of the Association which include the F inance
committee comprising of Treasurer and two other members elected at the
Annual General Meeting, Training and Development C ommittee, Disciplinary
Committee, Grievance Committees and all other procedures governing the
relationship between the Association and its members.
40. The Respondents allege that the Third Applicant is the company of the
Association and is entitled to appoint directors.
41. The Respondents submitted that Faraday Investment Holding has always been
the Company of the Association and that the First Applicant was appointed as a
director by virtue of having been the General Secretary of the Association .and
that since the Applicant was no longer a member of the Executive Committee of
the Association he had to cease being a director of the Third Applicant.
42. The Respondents submitted that , they were legally and duly appointed as
Directors of the Third Application by virtue of the office they held, and that the
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Constitution of the of the Association under clause 7.5 provides that upon
expiry of the term of office of any office bearer or in the event that his or her
term of office is terminated for any reason in terms of the Constitution of the
Association, such office bearer must automatically cease to hold such office,
and that the provisions of Section 70(1)(b)(ii)of the Companies Act are
engaged.
43. The Respondents in conclusion stated that as envisaged by Section 70 (1)(b)(ii)
of the Companies Act a vacancy arose on the Board in relation to the
directorship of the First Applicant following the latter ceasing to hold office that
entitled him to be an ex-officio director of the Third Applicant.
F. THE APPLICABLE LAW
REMOVAL AND APPOINTMENT OF DIRECTORS OF A COMPANY
44. Section 71 refers to the removal of directors it is the applicable section of the
Act.
Section 71 of the Act provides as follows:
a. Despite anything to the contrary in a company’s Memorandum of
Incorporation or rules, or any agreement between a company and a director,
or between any shareholders and a director may be removed by an
ordinary resolution adopted at a shareholders meeting by the persons
entitled to exercise voting rights in an election of that director subject to
subsection (2).
b. Before the shareholders of a company may consider a resolution
contemplated in subsection (1).
c. The director concerned must be given notice of the meeting and the
resolution, at least equivalent to that which a shareholder is entitled to
receive, irrespective of whether or not the director is a shareholder of the
company; and
d. The director must be afforded a reasonable opportunity to make a
presentation, in person or through a representative, to the meeting, before
the resolution is put to a vote.
e. If a company has more than two directors, and a shareholder or director
has alleged that a director of the company has become:
i. Ineligible or disqualified in terms of Section 69, other than on the
i. Ineligible or disqualified in terms of Section 69, other than on the
grounds contemplated in Section 69(8)(a); or
ii. Incapacitated to the extent that the director is unable to perform the
functions of a director, and is unlikely to regain that capacity within a
reasonable time; or
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iii. Has neglected, or been derelict in the performance of, the functions of
director, the board, other than the director concerned, must determine
the matter by resolution, may remove a director whom it has determined
to be ineligible or disqualified, incapacitated, or negligent or derelict, as
the case may be.
f. Before the board of a company may consider a resolution contemplated in
subsection (3), the director concerned must be given:
i. Notice of the meeting, including a copy of the proposed resolution and a
statement setting out reasons for the resolution, with sufficient specificity
to reasonable permit the director to prepare and present a response; and
ii. A reasonable opportunity to make a presentation, in person or through a
representative, to the meeting before the resolution is put to a vote.
45. If, in terms of subsection (3), the board of a company has determined that a
director is not ineligible or disqualified, incapacitated, or has not been negligent
or derelict, as the case may be, the director concerned, or a person who
appointed that director as contemplated in section 66(4)(a)(i), if applicable, may
apply within 20 business days to a court to review the determination of the
board.
46. If, in terms of subsection (3), the board of a company has determined that a
director is not ineligible or disqualified, incapacitated, or has not been negligent
or derelict, as the case may be:
(i) any director who voted otherwise on the resolution, or any holder of
voting rights entitled to be exercised in the election of that director, may
apply to a court to review the determination of the board, and
(ii) the court, on application in terms of paragraph (a), may
confirm the determination of the board; or remove the director from office,
if the court is satisfied that the director is ineligible or disqualified,
incapacitated, or has been negligent or derelict.
incapacitated, or has been negligent or derelict.
47. An Applicant in terms of subsection (6) must compensate the company, and
any other party, for the costs incurred in relation to the application, unless the
court reverse the decision of the board.
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48. If a company has fewer than 3 directors:
Subsection 3 does not apply to the company. In any circumstances
contemplated in subsection 3, any director or shareholder of the company may
apply to the Companies Tribunal, to make a determination contemplated in that
subsection; and
49. Subsections (4), (5) and (6), each read with the changes required by the
context, apply to the determination of the matter by the Companies Tribunal.
50. Nothing in this section deprives a person removed from office as a director in
terms of this section of any right that person may have a common law or
otherwise to apply to a court for damages or other compensation for:
52.1 loss of office as a director; or
52.2 loss of any other office as a consequence of being removed as a director.
51. This section is in addition to the right of a person, in terms of section 162, to
apply to a court for an order declaring delinquent or placing a director on
probation.
G. EVALUATION
52. During the hearing the Respondents’ Representative referred the T ribunal to
the decision of the Tribunal in the matter of Xolani Gumede v Baby Mahlangu
case No CT02072ADJ2024 wherein the Presiding Tribunal Member
adjudicated an Application wherein the issue was whether the Applicant in the
matter had a the legal standing to bring the application, and if he did, whether
or not the case has been made for such removal order.
53. The Applicant relied on Section 71(8) and for one to rely on this section, the test
to be applied is whether the Respondents conduct warrant such removal. The
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staring point in this is to assess whether this section “is fit fo r purpose” and
whether the purported directors’ conduct is “serious enough to warrant such
removal such as dishonesty, criminal behavior, breach of fiduciary duty of a
director of the company.”
54. In my opinion the basis of removing Respondents as directors in this ma tter is
justified under this section as they had no legal basis nor have, they
demonstrated the legal basis of their appointment as the directors . The
Association was neither shareholder of the Third Applicant. More so that there
is no documentary proof that is a connection between the Association and the
Company or that the Association was legally entitled to appoint they are not
directors of the Company (Third Respondent). The resolution to appoint them
was taken by an entity which had no legal standing to appoint the directors and
nothing in the Association’s Constitution mentioned any relation to the Third
Applicant. The appointment and removal of director of another entity cannot be
assumed. Company law is regulated by an Act with specific procedural
prescripts and the procedure is well codified . .It cannot be free for all otherwise
Companies will be usurped without justification or just cause .Company law is
the cornerstone of any countries economy that is why the procedural
requirements and its governance is strictly protected and has to be adhered to.
55. Even if one sympathizes with the Association, they should have regularized the
relationship between the two entities by having shareholders agreement in
place alternatively apply to court to set aside the Memorandum of Incorporation.
The Tribunal is a creat ure of statute and cannot adjudicate matters or impose
shareholding on another entity
56. The Respondents also referred to Supreme Court the matter of
Mawerco(Pty)Ltd v Sithole and Others (322/2023[2024]] ZASCA which
analyzed whether Section 71 of the Companies Act 71 of 2008 provides a
analyzed whether Section 71 of the Companies Act 71 of 2008 provides a
mandatory process that ought to be followed in the circumstance where two
directors ,who were appointed by the Companies Board as a representative of
the majority shareholder in terms of the shareholders agreement (the majority
shareholder being a communal Property Association ).The Court was
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approached seeking relief on the basis that Section 71 of the Act provides for
the removal of directors and, the said directors were entitled to the declaratory
relief sought .The SCA found that the two directors served in the Company in
their capacity as the representatives of the Association and because they failed
in their haste to challenge the Association’s resolution(which had the effect of
declaring that they could no longer serve as directors of the Company they had
not laid a basis for the relief that they sought , which was granted by the High
Court. The SCA held that the two directors’ application for a declaratory relief
had to fail because there was no claim for the review and setting aside of a
particular, the Association’s decision to remove the respondents as the two
directors. The SCA found that the provisions of Section 71 of the Act could not
be relied upon in isolation to grant the blanket declaratory relief sought.
57. Unfortunately, this matter does support the Respondents case in that in both
cases there was documentary proof of a relationship between the two entities
for instance in both cases there was a shareholder’s agreement between the
two entities that regulated their relationship. Unfortunately, this was not the
case in the matter being adjudicated
58. The Respondents were appointed by an entity with no legal standing in the
Third Applicants governance and there was no evidentiary relationship between
the two entities. It is evident that the Association had no legal standing to
appoint directors of the Third Applicant therefore the Third Respondents were
unlawfully appointed as directors of the Faraday Investment Holding (Pty) Ltd
and ought to be removed in term of Section 71 of the Companies Act 71 of
2008 and the directive issued by the CIPC as they were unlawfully and illegally
appointed.
59. Faraday Taxi Association must follow proper channels to regularize their
appointed.
59. Faraday Taxi Association must follow proper channels to regularize their
relationship with Faraday Investment Holding (Pty) Ltd as the matter stands
there is no relationship between the two entities that justifies their interference
with the affairs of the Third Applicant as a separate entity.to
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60. Faraday Investment Holding (Pty) Ltd is governed by its Memorandum of
Incorporation. Interestingly the resolution of the Association was signed by the
very Respondents and other members of the Association. Without any
documentary proof to the Tribunal of its locus standi. It is for this reasons that
the Tribunal has no alternative but to give an order declaring that the
Respondents were illegally appointed and issue an order removing the
Respondents as Directors Faraday Investment Company (Pty) Ltd.
H. CONCLUSION
61. The main issue before me is whether the Faraday Taxi Association had
authority to appoint the Respondents as d irectors of another entity which is
incorporated and governed by its Memorandum of Incorporation which
specifically directed how directors of the Company ought to be appointed.
62. These are two entities and ought to be treated as such. Faraday Investment
Holding (Pty) Ltd is a Company incorporated in terms of the Company Laws of
South Africa and Faraday Taxi Association is an Association which is governed
by a detailed Constitution governing amongst others , its right duties and
obligations. Both entities governance documents do not refer to the other and
both entities have been conducting their business independently of each other
for since 2017.The situation could have been dealt with as far back when the
reregistration occurred. The Third Applicant was deregistered and re-registered
again in 2024 without entering into a shareholders agreement alternatively
applying to Court to set aside the Memorandum of Association of the Faraday
Investment Holding (Pty) Ltd ,and seek to regularise their purported relationship
by the other imposing itself on the governance of the other cannot be
acceptable.
63. The two entities are governed by two different instruments that do not refer to
each other. The Respondent rightfully submitted that the Company Tribunal is a
each other. The Respondent rightfully submitted that the Company Tribunal is a
creature of statute and cannot confer to itself powers outside the statute The
Company Tribunal can only adjudicate on issues that fall within its conferred
powers. It can only limit itself to the issues that calls upon it to adjudicate in
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terms of those Sections of the Companies act more especially Section 71 which
relates to the removal of directors who were appointed legitimately in line with
Section 7 0(3) which governs the appointment of a director by a Board
Resolution or shareholders resolution and having complied with the
requirements of the Companies Act , The Company Tribunal cannot condone
nor confer deemed provision of the Act . The Association created its own
misfortune. It ought to appreciate the process es to be followed by the
Association if it regarded the Thid Applicant as its entity.
(i) The Removal of the First Applicant has to be done in accordance with
the procedure as contemplated in the Companies Ac t or MOI of the
Company
64. The respondents relied solely on the provisions of the Constitution to appoint
the directors; however, the Constitution was silent on its relationship with the
Faraday Investment Holding Company, nor did the Respondents offer any
explanation why the Memorandum of Incorporation is silent on the shareholding
of the Faraday Taxi Association.
65. It was evident that the Respondent was determined to exclude the jurisdiction
of the Tribunal from determining the matter, it also failed to prove that the
Tribunal had no jurisdiction, instead it raised all the technical arguments whilst
on the other hand the Applicant cited the relevant sections of the Companies
Act that the Respondent had failed to comply with.
66. The removal of a d irector has been illustrated in various Companies Tribunal
judgements. I also found the High Court Judgem ent of Justices Daffue and
Daniso in the Free State Division of the High Court Case Number 434/2022
in the matter between Michael Nkepe Litabe and Di Thabeng Wholesale
Fuel Supply (PTY) LTD and others delivered on the 9 th October 2023 very
relevant in that it re-emphasised the decision in Steenkamp and Another v
Central Energy Fund S oc Ltd and Others (13599/2017) [2017] Z AWCHC
Central Energy Fund S oc Ltd and Others (13599/2017) [2017] Z AWCHC
107;2018(1)SA 311 (WCC) (22 September section 2017) wherein it was held
that Section 71(1) and 71(2) deal only with shareholder s’ meetings whereas
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71(3) to 71(7) deals with only company’s board of directors in the case where
the company has more than two directors which is not applicable in casu.
67. Unfortunately the Respondent did not do justice to its case and instead in his
quest to exclude the companies Tribunal ‘s jurisdiction confused the relevant
sections he relied on, it interchangeably referred to sections that suited its
narrative to justify its trea tment of the Applicants status in the Company and of
how the events unfolded.
68. The Companies act is very clear in sections that deals with removal of Directors,
it provides that If a company has less than three directors Section 71(8)
applies .In such a case a determination of whether there is cause for the
removal of a director cannot be left to the board, but must be referred to the
Companies Tribunal.
69. My challenge is that the Respondent s failed to advance a coherent and
convincing evidence to support its argument that they complied with the
Companies Act when Appointing the Respondents as directors or that the
Association had any relationship with the Third Applicant..
70. The Respondent was determined at all costs to exclude or defeat the provisions
of the Companies Act in relation to both the removal of the First Applicant and
appointment of the Three Respondents.
71. What puzzled the Tribunal was the non- denial by the Respondent s that the
Applicant was a shareholder of the Third Applicant . Respondent without
explaining why the relationship of the Faraday Taxi Associatio n and Faraday
Investment Holding (Pty) Ltd was never regularised either by amending the
Memorandum of Incorporation of the Third Applicant or entering into a
shareholders agreement between the two entities.
72. The Respondents treated the Memorandum of Incorporation of the Third
Applicant as “non pro scripto “as if it does not exist. But opted to rely on the
Faraday Taxi Associations Constitution which had no relevance to the
Applicants case.
Page 19 of 20
73. Having considered the Applicants’ and the Respondents ’ submissions I am
convinced that the Respondents was deliberately misleading the Tribunal to
believe that the Applicant was lawfully removed.
74. I am further of convinced that without proof of the legitimate or written
connection the Applicants version is the most probable version and must be
upheld and accepted.
75. I am further convinced that the Respondents’ submission is highly improbable
and the conduct of the Respondent s amounted to corporate bullying by
Respondents who hurriedly relied on the Resoluti ons of the Association to
appoint additional directors to exclude the jurisdiction of the Company Tribunal.
I. ORDER
76. I therefore make the following order:
(i) The relief sought by the Applicants is granted.
(ii) The Companies and Intellectual Property Commission is ordered to reinstate
the First Applicant Jeffrey Gama as the sole director a director of FARADAY
INVESTMENT HOLDING (PTY) LTD registration number 2024/085787/07 with
immediate effect upon receipt of this order.
(iii) The Companies and Intellectual Property Commission is hereby ordered to
deregister and remove Zakhele Thokozani Thango and Welcome Shadrack
Mabuza and Celukuthula Erick Mbatha as directors of F ARADAY
INVESTMENT HOLDING (PTY) LTD registration number 2024/085787/07 24
with immediate effect upon receipt of this order.
(iv) The Registrar of the Tribunal is hereby directed to deliver a copy of this order to
the Commissioner of Companies and Intellectual Property Commission within 5
(five) days from the date of handing down this order.
Page 20 of 20
(v) The costs of effecting the reinstatement and deregistration if any shall be borne
by the Respondents.
____________________________
HLALELENI KATHLEEN DLEPU