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IN THE COMPANIES TRIBUNAL OF SOUTH AFRICA
Case no.: CT02318ADJ2025
In the matter between:
Alexis Fotiadis Applicant
and
Glow Hire (Pty) Ltd First Respondent
Glow Studios (Pty) Ltd Second Respondent
PKMB INVESTMENTS (Pty) Ltd Third Respondent
Andreas Demetriou Elia Fourth Respondent
Andreas Demetriou Elia N.O Fifth Respondent
Roberto Jorge Medonca Velosa N.O.
In his capacity as representative of
Best Trust Company (JHB) (Pty) Ltd Sixth Respondent
Fezispot (Pty) Ltd Seventh Respondent
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Presiding member: Nomagcisa Cawe
Date of hearing: 25 November 2025, 17 February 2026 and 2 March 2026
Date of decision: 22 May 2026
DECISION (Reasons and Order)
1. The matter served before the Companies Tribunal “the Tribunal”) on the 25
November 2025, 17 February 2026 and 2 March 2026. The Applicant was
represented by Mr. Steven Sachs, an advocate, and the fourth respondent was
represented by Ms. Ann Milovanovic -Bitter, also an advocate. Both counsel had
filed Heads of Argument. As no relief was sought against the other respondents by
the applicant, I will refer to the fourth respondent simply as “the respondent/Mr.
Elia”).
2. The application is brought before the Companies Tribunal in terms of section
71(8) of the Companies Act 71 of 2008 (“ the Act ”) The applicant, Mr. Alexis
Fotiadis (Mr. Fotiadis), seeks the removal of Mr. Andreas Demetriou Elia
(Mr.Elia) as a director of Glow Hire (Pty) Ltd (“Glow Hire”)
3. The application is centered around allegations of misconduct and dereliction of
fiduciary duty by Mr. Elia. It is brought in terms of section 71(8)( b) read with
section 71(3) of the Act, which provide for the removal of a director where there
are less than three directors on the board of a company. In such circumstances,
an application to the Tribunal is necessitated by the fact that a majority vote
would typically be impossible, unless the director whose removal is sought
essentially resigns voluntarily. Mr. Elia opposes the application. He contends,
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through his representative, that the dispute is a shareholders dispute, as opposed
to a directors dispute.
4. The applicant alleges that Mr. Elia has committed a series of breaches of his
directorial fiduciary duty, and the application is supported by a substantial body of
documentation. These include email correspondence, financial records and
correspondence exploring the possibility of resolving the matter between the
parties through Alternative Dispute Resolution. The representatives deliberated
elaborately on the days the matters was heard.
BACKGROUND
5. At the core of the dispute lies an alleged dereliction of fiduciary duty by Mr. Elia in
as far as it relates to the finances of Glow Hire. Glow Hire carries out the
business of hiring out photographic equipment, studio equipment and studios.
Both Mr. Fotiadis and Mr. Elia are fifty percent directors of the company each.
The two parties formed the partnership in 2014.
6. Giving a background to the relationship of the other six respondents, Mr. Sachs
states that the first respondent, Glow Hire has a shareholder, the light Saver Trust
(“the Trust”), and the applicant. Mr. Elia is not a shareholder in Glow Hire at all,
nor is he a shareholder in Glow Studios or PKNB Investments. The shareholder
in PKNB Investments is the seventh respondent, which is in turn owned by Light
Saber Trust. Mr. Sachs, for the applicant, explained that the issue before the
Tribunal relates to the conduct of Mr. Elia, who has been appointed by the Trust’s
respective shareholder in each of the first three respondents to act as a director
of the companies on behalf of the relevant shareholders and the Trust.
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7. For years responsibilities of the company’s affairs have been split between Mr.
Fotiadis and Mr. Elia, with Mr. Elia, as a director, running the financial control and
booking of the company. On the other hand Mr. Fotiadis has taken charge of the
operational side of the business.
8. Mr. Elia has fronted all negotiations with the banks. The last signed set of
financial statements of the company, in 2019, were signed off by the accounting
company, NWRK, Mr. Mike Reynolds as well as Mr. Elia.
9. Upon coming together in 2014, Mr. Fotiadis and Mr. Elia formed a Joint Venture,
called Penanimix (Pty) Ltd. The name was subsequently changed to Glow Hire
(Pty) Ltd. In the shareholder agreement both Mr. Fotiadis and Light Saver Trust
had fifty percent shares each. Mr. Mike Reynolds from MWK Accountants and
Auditors was appointed company accountant and auditor by Mr. Elia.
10. In making out a case for the removal of Mr. Elia, Mr. Sachs refers to page 10 of
Applicant’s Heads of Argument where it was shown that although Mr. Fotiadis had
a “read only” access to the company’s books and records, he uncovered a
number of irregularities in the entries made by Mr. Elia. According to Mr. Sachs
Mr. Elia put through a number of personal expenses without the prior knowledge
or authorization of his co-director. This is the nub of the applicant’s request to the
Tribunal for Mr. Elia’s removal as a director. It is argued on behalf of the applicant
that Mr. Elia is one of only two directors and, therefore, could not make a decision
on his own about the company’s funds. Worse still, Mr. Elia mis - recorded the
entries in the books as shareholders loan accounts.
11. At some stage Mr. Elia paid his Diners Club card with company funds, stating
that it was a reimbursement for expenses he had incurred on behalf of the
company personally. Mr. Elia, it should be noted, has not provided any proof of
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the expenses he incurred personally for the company. He showed extra expenses
in the company as those of the company whereas they were his. The Applicant
cites this as another reason for the submission that Mr. Elia did not act in the
best interest of the company as claimed. I must mention that the allegations
made by the applicant herein are accompanied by the relevant annexures.
12. Glow Hire went through a difficult period and the two directors of Glow Hire
entered into a side business called Cutting Room. The venture failed. When this
happened Mr. Elia organized for book entries to go into the books of Glow Hire
and the charges to be debited to the applicant’s loan account. Applicant feels that
this was vengeful of Mr. Elia.
13. In conclusion the applicant stresses that his version shows that the present
dispute is about Mr. Elia’s misdemeanors as a director and not a shareholder, as
claimed by the respondent’s representative.
14. Responding to applicant’s submissions Ms. Milovanovic -Bitter sought to prove
that the version of the Applicant is incorrect. Her starting point was the fact that
the application should not be before the Companies Tribunal as it was a
shareholders dispute as opposed to a directors dispute. It is her version that
there is a binding Shareholders Agreement in place and it prescribes how the
shareholders relate to one another and also what is to happen insofar as there
are any disputes amongst the shareholders in respect of the accounts of the
company.
15. Ms. Milovanovic -Bitter submits that Mr. Fotiadis has made the present
application from a point of vengefulness towards the fourth respondent, Mr. Elia.
Her version is that Mr. Fotiadis wants the company for himself. Moreover, Mr.
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Fotiadis lodged the present dispute after receiving a lawyer’s letter informing him
of a pending removal application for his own misdemeanors in the company.
16. As far as Mr. Elia ’s representative is concerned, each and every complaint
raised by the applicant before the Tribunal is in fact a shareholders dispute
relating to book and journal entries in respect of shareholder loan accounts. The
disputes have nothing to do with the directorship appointments made by
shareholders and is inept and inappropriate. In view of this , the respondent will
ask for punitive costs against the applicant.
17. According to Ms. Milovanovic -Bitter even if the director is removed, the Trust
would simply appoint another one in his stead, as it is permitted by the
shareholders Agreement. At this juncture I wish to point out that Ms. Milovanovic-
Bitter seems to be tacitly admitting that her client is in fact a director as opposed
to a shareholder.
18. The respondent believes that the applicant’s objective of seeking relief from the
Tribunal is to achieve some sort of audit in order to ensure that the books of
account are properly presented. The respondent's representative submits that the
removal of a director does not need an audit of the company’s books. In any case
all Mr. Fotiadis’ complaints are historical and should not be considered. Mr .
Fotiadis has never requested an audit. Had he requested it there are provisions
in the Shareholders Agreement which would have been his remedy.
19. After the parties had completed their arguments on 2 March the respondent’s
representative requested to be allowed to submit further papers, as she felt that
the applicant’s representative had given evidence “from the bar”. I duly indulged
her.
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20. Another submission tendered in the papers of 6 March was that the majority of
the disputes which the applicant has referred to the Tribunal have already been
dealt with and settled in the Equalization/Settlement Agreement the very purpose
of which was to deal with and finalize the shareholders disputes then existing. I
wish to point out that no proof of such Settlement was tendered by the
representative, either in the Heads of Argument, during the three hearings or with
the papers submitted on 6 March.
21. Ms. Milovanovic -Bitter, in the further papers, set out that the applicant’s
representative raised issues that concerned the debi ting and crediting of the
shareholders loan account and were, therefore, shareholders disputes which
ought to be determined through the dispute resolution mechanism contained in
the Shareholders Agreement. She goes further to state that if the dispute were to
be taken to arbitration the applicant faced the possibility of being met with a
prescription plea or that the matter had been settled. Respondent’s
representative concludes by stating that the true motivation is not the resolution
of the dispute and/or the protection of any rights, but an attempt by the applicant
to harm Mr. Elia as much as possible. I note that had prescription taken place it
could have been raised at the Tribunal as prescription rules are not reserved
solely for Alternative Dispute Resolution, as Ms. Milovanovic -Bitter seems to
suggest.
22. A further submission was that counsel for applicant maintained that the
Equalization/Settlement Agreement does not constitute an agreement as the
word “settlement” does not appear on the document. Respondent denies that this
is the case.
23. In support of the submission in paragraph 21 above, respondent refers to the
approach adopted by the court in Natal Joint Municipal Pension Fund v
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Endumeni Municipality [2012] 2 SA 262 (SCA ) where it was stated that the
document has to be interpreted having regard not only to the words on the page,
but also having regard to the context and purpose of the document. According to
respondent’s representative the Equalization/Settlement Agreement indicates that
issues between the parties were resolved by Mr. Elia making payments into the
company and the applicant’s accounts. I have observed that no proof of the
alleged repayments was tendered by the representative.
24. The applicant’s representative had brought up the issue of whether Mr. Reynolds,
the accountant appointed by Mr. Elia was qualified to handle the company’s
books. Dealing with the issue of Mr. Reynolds qualifications, as brought up by
the applicant, Ms. Milovanovic -Bitter maintained that only an expert can give
evidence on qualifications. I agree with this sentiment as assumptions of
qualifications are hardly proof that one is qualified or not and would need to be
authenticated by an expert in the same field. However, the qualifications or lack
thereof do not take away anything from the evidence produced by applicant’s
representative as annexures.
25. I have considered all the submissions made by respondent’s representative, from
the Heads of Argument to the submissions of 6 March and will deal with my
findings thereof. From the outset the respondent’s representative has vehemently
stated that the present matter is a shareholders, as opposed to a directors,
dispute. No explanation is given as to the exact duties of “a shareholder”. The
representative repeats that such disputes are regulated by the Shareholders
Agreement without saying why the activities of the respondent are not those of a
director, especially considering that applicant’s representative stated that Mr. Elia
was not a shareholder in Glow Hire. This ground, therefore, fails.
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26. Respondent has raised the point that the application before the Tribunal is
jurisdictionally defective as the dispute is that of shareholders as opposed to
directors. This is a bare statement which is not substantiated by any evidence
other than reference to the Shareholders Agreement. The Agreement does not
stipulate that Section 71 of the Act is irrelevant to disputes arising between the
two parties, who are both directors. This ground also fails as I have not found any
jurisdictional defects in the matter being before the Tribunal as a directors
dispute.
LEGAL FRAMEWORK
27. Section 71(3) of the Act permits the removal of a director by the board or by
shareholders if that director either:
a. has become ineligible or disqualified in terms of section 69, other than on
the grounds contemplated in section 69 (8) (a);
b. has become 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
c. has neglected, or been derelict in the performance of, the functions of a
director (this being the relevant ground for the applicant to establish in the
present case).
28. Where, as here, the company has only two directors, section 71(8) permits
application to the Tribunal for relief. The Tribunal must be satisfied that the
evidence establishes conduct falling within section 71(3), warranting removal.
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29. It is required – in terms of section 71(8)( b) read with 71(4)( b) – that the director
facing removal be given a reasonable opportunity to make a presentation before
the decision is made, and this has been done at the hearing of the matter, and
further opportunity to produce evidence was given thereafter.
DISCUSSION / ANALYSIS
Evidence before the Tribunal
30. Before turning to the merits of each allegation, it is necessary to mention the
evidentiary standard applicable to the present proceedings. The applicant bears
the onus of establishing his case on a balance of probabilities, as confirmed in
Novukuza v Thusi (CT00999/ADJ/2022 COMTRI 33 (27 July 2022), which means
that he must satisfy the Tribunal that it is more likely than not that the grounds for
removal under section 71 of the Act are met, and that Mr. Elia’s conduct justifies
his removal as director of the company, considering the number of transgressions
that have been tabled and proven by applicant’s representative.
31. It must now be determined whether there is evidence to support the applicant ’s
case for the fourth respondent ’s removal. This requires a consideration of each
allegation levelled against the fourth respondent, and in each case, a
determination as to whether the conduct as pleaded occurred and, if so, whether
it amounted to a breach of duty on the evidence presented.
Allegation of misappropriation of company funds
32. The first complaint levelled against the Mr. Elia serves as the central thread
running through the remainder of the allegations. The complaint is that he has, on
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several occasions, made unauthorized expenditure of company funds for his and
his family’s benefit.
33. I have found that the Mr. Elia was not authorized or entitled to withdraw monies
from the company’s bank accounts. He also did not have authority to make
purchases for himself and his family with company funds. This was a breach of
the standards of directors under section 76 of the Companies Act. Whether there
was repayment or not by Mr. Elia, as submitted by his representative, the mere
fact that illicit transactions were made against the company is enough evidence
of the respondent not acting in the best interests of the company. This is made
worse by the fact that no proof of such repayment was produced by the
respondent’s representative.
Refusal of Access to the financial statements of the company
34. Another significant complaint raised by the applicant is directed at the
respondent’s alleged refusal to cooperate in letting the applicant inspect the
financial statements of the company.
35. The respondent disputes this and alleges that the applicant never requested to
inspect the company’s books as the Shareholders Agreement has provision for
the inspection of the books for a number of years. I am, however, not convinced
that applicant would willingly neglect to properly inspect the company’s books.
The company had, therefore, as a result of the respondent’s actions effectively
lost a lot of money and incurred unnecessary debt. Respondent’s actions cast
doubt on the bona fides of his stated intention to fulfil his responsibilities as the
company’s financial director.
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36. Section 76(3) of the Act prescribes the standards of directors’ conduct. A director
must exercise powers and perform functions in good faith and for a proper
purpose; in the best interests of the company; and with the degree of care, skill
and diligence reasonably expected of a person carrying out the same functions
and having the director’s general knowledge, skill and experience. Conduct
contrary to section 76, as displayed by Mr. Elia, can and does constitute the
factual basis for allegations of neglect or dereliction under section 71(3) of the
Act.
37. Considering the number of instances in which it has been shown that
respondent’s actions were negative in the carrying out of his duties, there can be
little room for doubt that the respondent has in fact neglected and/or been
derelict in the performance of the functions of director.
38. The applicant submits that the cumulative effect of the respondent’s conduct has
irreparably destroyed the trust relationship that must subsist between co-
directors. In Visser Sitrus (Pty) Ltd v Goede Hoop Sitrus (Pty) Ltd 2014 (5) SA
179 (WCC) it was held that where mutual trust has broken down beyond repair,
continued co-directorship is untenable . In Pretorius v PB Meat (Pty) Ltd 2013 SA
30 (SCA) it was stated that neglect, dishonesty and breach of trust justify
removal.
39. No proof that Mr. Elia paid back the money to the applicant’s loan account or the
company’s books. The failure to submit proof of payment to the Tribunal is an
unexplained omission on a matter within Mr. Elia and his representative’s
knowledge. This constitutes a gross abuse of directorial position and was
condemned in Grancy Property Ltd v Gihw ala (ZAWCHC 2014) and endorsed in
Grancy Property Ltd 2017 (2) SA 337 (SCA).
FINDINGS
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40. The grounds advanced by the applicant for the removal of Mr. Elia as director of
Glow Hire (Pty) Ltd satisfy the threshold under section 71(3) of the Act. Mr. Elia
has neglected and been derelict in the performance of his duties as director of
the company in the following respects:
40.1 He unilaterally used the company’s funds for his private use without the
knowledge of his co- director, the applicant, constituting dereliction within
the meaning of section 71(3)(b), being the intentional misappropriation of
company funds for his personal benefit and gross abuse of his position as
a director; and
40.2 denied the applicant access to the company’s financial records.
41. The application for the removal of Mr. Elia succeeds on the basis of the
aforementioned grounds.
42. Conversely, none of the grounds advanced by respondent’s representative have
proven that the instant application is a shareholders dispute and that Mr. Elia
was ever a director of Glow Hire. Therefore, respondent’s version is dismissed
in its entirety.
COSTS
43. Respondent’s representative asked for punitive costs against the applicant .
The governing principle is that a successful litigant is ordinarily entitled to a
costs award. This principle was stated as follows by Innes CJ in Texas Co.
S.A) Ltd v Cape Town Municipality 1926 AD 467 at 488: “Now costs are
awarded to the successful party in order to indemnify him for the expense to
which he has been put through having unjustly having to initiate or defend
litigation”. This principle applies with equal force before the Tribunal. An
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admission that Mr. Elia was never at any stage a shareholder of Glow Hire
would have spared the applicant the expense of the present litigation.
Respondent is, therefore, directed to pay applicant’s costs on the party-and-
party costs, including the costs of counsel.
ORDER
44. Accordingly, it is ordered that:
a) Mr. Andreas Demetriou Elia is removed as a director of Glow Hire (Pty) Ltd
with immediate effect.
b) The respondent is directed to provide Mr. Fotiadis with all the financial
records of the company, (including lease and purchase agreements), bank
statements, general ledgers, creditor and debtor schedules, payroll records
and tax returns.
c) The respondent is to provide all records of company assets, insurance
records and share registers.
d) The respondent is to procure unfettered access by the applicant to all
records of the company that are held by third parties - including
accountants, auditors and financial institutions within ten days of receipt of
this order.
__________________________
NOMAGCISA CAWE
Member of the Companies Tribunal