SAFLII Note: Certain personal/privat e details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REASONS
Not Reportable
Case No: 2026/079300
In the matter between:
SOBEGA PROPERTIES (PTY) LTD APPLICANT
and
FAAIEK ABADER T/A WASH QUICK RESPONDENT
Coram: MGENGWANA AJ
REASONS FOR ORDER GRANTED ON 14 APRIL 2026
MGENGWANA, AJ
Introduction
[1] This urgent eviction application served before me on 1 4 April 2026.
The app lication was dealt with in terms of Rule 6(12)(a) of the Uniform
Rules of Court but was dismissed on the merits. A month after the dismissal
thereof, the Court was requested to furnish the parties with reasons for the
dismissal. These reasons follow hereunder.
[2] On 7 April 2026, the Applicant instituted an urgent application in this
Court for an order in the following terms:
(a) Dispensing with the ordinary forms, service , and time periods
provided for in the Rules of this Honourable Court and allowing this
matter to be heard as one of urgency in terms of Rule 6(12)(a).
(b) The respondent and all persons holding by , through, or under it,
are evicted from the leased premises situated at 2[...] L[...] M[...] Road,
Observatory, Cape To wn (the leased premises) , and shall vacate the
leased premises on or before 16 April 2026.
(c) Failing compliance with the order in paragraph (b) above , the
Sheriff or his/her lawfully appointed deputy is authorised and directed
to evict the Respondent and all those occupying the leased premises
by, through, or under it, from the leased premises on or after 17 April
2026.
(d) The Respondent shall pay the costs of this application on attorney
and client scale, alternatively on Scale C in terms of Rule 67A of the
Uniform Rules of Court.
Facts relevant to the reasons for the dismissal of the application
[3] Waleed Ras , who deposed to the Applicant’s founding affidavit,
avers, inter alia, as follows therein:
(a) That he is a male property practitioner , registered as such with the
Property Practitioners Regulatory Authority.
(b) That he deposes to the founding affidavit, in support of the relief
claimed in the notice of motion and reflected in paragraph 2 of this
judgement, on behalf of the Applicant on the strength of a resolution
which was passed by the board of the Applicant on 7 April 2026 (My
underlining).
(c) That the knowledge he attests to, surrounding the content of his
founding affidavit, has been acquired by him through his handli ng of
the property portfolio of the Applicant and which includes the
property which is the subject of these proceedings.
[4] Faiek Abader (Faiek), who deposed to an answering affidavit on
behalf of the Respondent, avers, inter alia, as follows therein:
(a) Faiek and his brother, Ebrahim, are equal shareholders in an entity
called Sobega Equity Holdings (Pt y) Ltd. In turn , Sobega Equity
Holdings (Pty) Ltd is the sole shareholder of all issued class A shares
in Sobega Property Holdings (Pty) Ltd, and Sobega Property Holdings
(Pty) Ltd is the sole shareholder of the Applicant.
(b) Faiek and his brother constitute two-thirds of the board of the
Applicant in that they are two of the three directors of the Applicant.
The only other director of the Applicant is the signatory to the
resolution passed on 7 April 2026 as mentioned paragraph (3)(b) of
this judgement, Salie Adams.
(c) As a member of the board of the Applicant, Faiek never received
any notice of the decision and/or the anticipated resolution authorising
the current application, as prescribed in section 74 of the Companies
Act 71 of 2008 (the Act). The decision to bring this application was
accordingly made with his deliberate exclusion as one of the three
directors and board members of the Applicant.
(d) The lease agreement concluded with Fulela Trade and Invest 83
(Pty) Ltd (Fulela) was itself entered into unlawfully in that the full
board of the Applicant never gave the agent authority to conclude
such agreement on behalf of the Applicant. If some of the board members
did grant the agent such authority, then Faiek, as one of the board
members, was never afforded an opportunity to participate in , or vote
on such a decision. In these circumstances, the decision to conclude
the Fulela lease agreement is invalid and of no force and effect, or
alternatively, it is voidable.
[5] From the Court’s reading of the above averments, it is apparent that
clear that the validity of the resolution authorising the conclusion of the
lease agreement with Fulela and the institution of these proceedings is very
much disputed by Faiek.
[6] In his replying affidavit, Waleed Ras disputes the above by averring,
inter alia, the following:
(a) That Faiek fails to mention that on 14 May 2025, at a board
meeting held by all three directors of the Applicant , which
included Faiek, the Applicant entered into a Rental
Management Agreement (the mandate) with Potere Investment
Properties (Pty) Ltd (the agent). According to this mandate, the agent
was granted the right to institute legal action, defend any legal
action, settle a matter, and evict a tenant at the cost of and on behalf of
the Applicant , provided that the Applicant has given formal written
approval for the agent to proceed with such action (My underlining).
According to the same agreement, the agent was also granted a right
to negotiate a lease agreement and any amendments and extensions
thereof, with the tenant on behalf of the landlord, but subject to the
landlord’s final approval (My underlining) . It is apparent from the
papers filed herein that Waleed Ras acted for the agent at all material
times before and during these proceedings.
(b) That a meeting of the board of directors appointing the agent as
the estate manager of the Applicant with, among other rights, the rights
mentioned in paragraph [6](a) hereof, was held on 25 June 2025 and
the minutes thereof were attached to Applicant’s replying affidavit.
(c) That if recourse is had to the agreement and minutes of the board
meeting held on 25 June 2025 , no resolutions in terms of section
74 of the Act were required for either the agent , on beha lf of the
Applicant, to enter into the Fulela lease agreement on 13 March 2026,
or for authorising the agent to institute the current application for
the commercial ejectment of the Respondent from the premises.
The mandate, signed by Ebrahim on behalf of the Applicant and
adopted through the minutes, clearly authorises the agent to enter
into all lease agreements on behalf of the Applicant and to institute the
current application for the commercial ejectment of the Respondent
from the premises.
Issues for determination
[7] This Court was therefore called upon to make a determination on the
following before considering the merits of eviction application:
(i) whether the agent, Waleed Ras, had the necessary authority to enter into
a lease agreement with Fulela; and
(ii) whether the agent had the necessary authority to institute these urgent
legal proceedings against the Respondent.
Applicable law and legal principles
[8] Section 74(1) of the Act states the following:
‘Except to the extent that the Memorandum of Incorporation of a company
provides otherwise, a decision that could be voted on at a meeting of the
board of that company may instead be adopted by written consent of a
majority of the directors, given in person, or by electronic communication,
provided that each director has received notice of the matter to be decided.’
[9] In Moors and Others v Veldskoen Capital (Pty) Ltd and Others ,
Bhoopchand AJ stated the following:
‘[22] Directors can conduct the business of a company by way of a round
robin resolution under s74 of the Companies Act. Section 74 of the Act
enables “a majority of the directors to pass a round robin resolution to avoid
a formal meeting of directors, provided that, if this is to happen, each director
has received notice of the matter to be decided ”. The proviso enables
directors to make an informed decision on the subject matter contained in
the resolution.
[23] Our courts have emphasised the importance of giving notice to directors
of a meeting so that the participants are aware not only of the existence of a
meeting but of the nature of the business. The purpose of the notice is not
only to inform directors of the date of the meeting, but also the reason. There
can surely be no difference between the importance of a notice where a
board meeting is called in terms of s73 of the Act and a notice when the
provisions of s74 of the Act are invoked.’1
[10] In Msibithi Investments (Pty) Ltd and Others v African Legend
Investment (Pty) Ltd and Others, the Supreme Court of Appeal (SCA)
provided that section 74 ‘does not require notice in advance but simply
notice of the matter to be decided’.2
Application of the law to the facts
[11] There is no dispute with regard to the following:
(a) Before instituting these pro ceedings, a resolution authorising
the agent to institute these proceedings against the Respondent was
1 Moors and Others v Veldskoen Capital Ltd and Others 2025 JDR 2704 (WCC).
2 Msibithi Investments (Pty) Ltd and Others v African Legend Investment (Pty) Ltd and Others 2026 (1) SA
394 (SCA) para 70.
adopted on 7 April 2026 , and such resolution was signed by Ebrahim
and Salie Adams.
(b) That Faiek never received a notice in terms of section 74 (1) of the
Act notifying him that a meeting in which the resolution, as
mentioned above, would be discussed and voted on. The resolution was
therefore adopted in his absence and without his knowledge.
(c) That no resolution authorising the agent to enter into a lease
agreement with Fulela on behalf of the Applicant was ever adopted.
[12] When the agent was called upon to explain the Applicant’s failure to
give Faiek a section 74(1) notice in respect of the resolution adopted on 7
April 2026 and deal with his alleged lack of authority to enter into the lease
agreement on behalf of the Applicant , he averred that he is empowered by
the mandate signed on behalf of the Applicant on 14 May 2025 and the
minutes of the board meeting held on 25 June 2025 to enter into a lease
agreement with Fulela and to institute the current proceedings against the
Respondent. He thereafter reasoned that he did not require any resolution if
he is armed with the mandate signed on 14 May 2025 and the minutes of the
board meeting of 25 June 2025.
[13] These averments are incorrect . Clause 1.3 of the mandate only grants
the agent the right to negotiate a lease agreement and any amendments and
extensions thereof with the tenant on behalf of the landlord (which is the
Applicant), and subject to the landlord’s final approval . Clause 1.3 never
gave the agent the right to enter into any lease agreements on behalf of the
landlord. Even if it did, this right was always made subject to the landlord’s
approval, which, in the context o f the filed papers , was neither sought nor
granted.
[14] Moreover, the agent’s right to institute legal proceedings on behalf of
the Applicant regarding leased properties owned by the Applicant , was also
subject to the Applicant giving formal written approval thereof. The
Applicant sought to give such formal written approval in the form of the
resolution dated 7 April 2026 . However, that resolution was defective in
that it was adopted without complying with the terms of section 74(1) of the
Act as Faiek never received a notice from the Applicant as contemplated in
that section.
[15] This Court therefore f ound that the agent neither had the necessary
authority to enter into a lease agreement with Fulela nor the necessary
authority to bring these eviction proceedings against the Respondent. That
having been found, the application for the eviction of the Respondent from
the leased premises was bound to fail.
[16] Regarding the issue of estoppel, this Court has neither been furnished
with any evidence that Faiek knew of other lease agreements entered into by
the agent on behalf of the Applicant despite having no authority to do so, nor
that Faiek knew that the agent had previously instituted legal proceedings on
behalf of the Applicant without formal written authority to do so and,
despite this knowledge, conducted himself as if he acquiesced to the agent’s
unauthorised conduct. These averments, which were made to fashion a case
based on estoppel , are unsubstantiated. Therefore, the Applicant’s reliance
on estoppel was unsustainable.
Costs
[17] Regarding costs, it is an established principle that costs follow the
results. I find no reason to deviate from this principle in this case . The
Respondent has succeeded in its defence and is therefore entitled to an
award of costs on a party and party scale.
[18] In terms of Rule 67A of the Uniform Rules of Court, counsel’s fees in
the context of party and party costs in the High Court are awarded on Scales
A, B, and C as the case may be, depending on a number of factors set out in
Rule 67A(3) to be considered when setting out a scale of costs. Such factors
include the importance, value, and complexity of the matter , and any other
relevant factors. Given the importance of the matter and the fact that this
was an urgent application, I decided to award counsel’s fees on Scale B.
______________________________
TJ MGENGWANA
Acting Judge of the High Court
APPEARANCES:
For the Applicant : Mr. M. Holland
Instructed by : Parkar Attorneys Inc.
Mr. N. Parkar
For the Respondent: Mr. G. Potgieter
Instructed by : O’Reilly Law Inc.
Mr. J. O’Reilly