Page 1 of 10
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE COMPANIES TRIBUNAL OF THE REPUBLIC
OF SOUTH AFRICA
CASE NUMBER: CT02616ADJ/2026
In the matter between:
NKOSANA NICODEMUS NYAWUZA APPLICANT
and
Hendrik Petrus Van Zyl RESPONDENT
Tribunal Panel: D Terblanche
Date of ruling: 27 May 2026
RULING – DECISION AND REASONS
THE PARTIES
1. The Applicant is Mr Nkosana Nicodemus Nyawuza (ID No: 9[ …] ), an adult male
residing at 5[…] R[…] Street, Sasolburg. He is a director and shareholder of Outbound
Arms Mossel Bay Pty (Ltd) (registration number 2015/257281/07)
2. The Respondent is Mr Hendrik Petrus Van Zyl, who was purportedly appointed as a
director of the same company.
THE APPLICATION
Page 2 of 10
3. This is an application brought in terms of section 71(8) of the Companies Act 71 of
2008 (the “Act”). The Applicant seeks the removal of the Respondent as a director of
Outbound Arms Mossel Bay Pty (Ltd), or alternatively an order declaring the
Respondent’s appointment null and void, and directing the Companies and Intellectual
Property Commission (“CIPC”) to amend its records accordingly.
BACKGROUND TO THE DISPUTE
4. During early November 2025, the Applicant was introduced to a Mr Jonathan
Stephenson through a mutual acquaintance, Mr Eddie Groenewald. Mr Stephenson
expressed interest in establishing a firearm dealership in Mossel Bay and proposed a
business collaboration with the Applicant.
5. The parties reached a verbal understanding that the Applicant would provide his
identity document and company registration documents to Mr Stephenson’s legal
representatives for the purpose of preparing amendments. Critically, this was
conditional upon a formal written agreement first being drafted and signed. It was
expressly agreed that no binding arrangement or changes to the company’s structure
would be made until a written contract had been concluded.
The Unauthorised Appointment of the Respondent
6. On 21 November 2025, Mr Stephenson contacted the Applicant and requested a One
Time Pin (“OTP”) that had been sent to the Applicant by the CIPC via email and SMS.
The Applicant provided the OTP in the genuine belief that it related only to preparatory
administrative work, and that no final changes would be effected without his further
consent and signature.
7. Shortly thereafter, the Applicant discovered that the Respondent had been added as a
director of Outbound Arms Mossel Bay Pty (Ltd). The Applicant had not signed any
board resolution, shareholders’ resolution, mandate, consent to act as director, or any
other document authorising this appointment. He was never consulted about the
appointment, either before or after the fact.
Page 3 of 10
8. A CIPC certificate dated 20 November 2025 confirms that a COR39 (Notice of change
of company directors) was received on that date, giving effect to the appointment of the
Respondent as a new director. The same filing also recorded changes to the Applicant’s
directorship details and the resignation of another director, Mr Enoch Nyawuza.
Subsequent Events and Attempts to Resolve the Matter
9. On 8 December 2025, Mr Groenewald informed the Applicant that he and Mr
Stephenson were in dispute and that criminal charges had been laid against Mr
Stephenson under case number CAS 171/1/12026, alleging fraudulent conduct and a
history of dishonesty. Mr Groenewald advised the Applicant to discontinue all business
dealings with Mr Stephenson.
10. The Applicant thereafter attempted to contact Mr Stephenson to terminate any potential
agreement and to regularise the company’s affairs, specifically by securing the removal
of the Respondent as director. Mr Stephenson refused to cooperate.
11. The Applicant believes, on reasonable grounds, that:
11.1 The Respondent is not an independent or bona fide director;
11.2 He is acting merely as a proxy or representative of Mr Stephenson;
11.3 He does not participate in the management, governance, or decision-making
processes of the company;
11.4 His continued presence as a director exposes the company and the
Applicant to financial, legal, and reputational risks, including the possibility
that the Respondent and/or Mr Stephenson may incur liabilities or enter into
agreements in the company’s name without knowledge or consent.
THE APPLICATION TO THE COMPANIES TRIBUNAL
12 On or about 24 February 2026, the Applicant lodged an application with the Companies
Tribunal seeking the removal of the Respondent as a director. The application was
Page 4 of 10
brought under section 71(8) of the Act because the company has fewer than three
directors and therefore cannot remove a director in terms of section 71(3). The
application was assigned case number CT02616ADJ/2026.
13 The grounds for removal set out in the application are –
13.1 The appointment was irregular, unauthorised, and not compliant with the Act or
proper governance procedures;
13.2 The appointment was induced by misrepresentation and made without the
Applicant’s informed consent;
13.3 The Respondent has not demonstrated the independence, good faith, or fiduciary
responsibility expected of a director;
13.4 His continued directorship undermines transparency, accountability, and sound
corporate governance, and creates a real and ongoing risk to the company’s
financial and legal stability.
SERVICE AND DEFAULT BY THE RESPONDENT
14 In compliance with the Tribunal’s directives, the Applicant caused the complete set of
application documents to be served upon the Respondent. Service was effected
physically through the Sheriff at the Respondent’s chosen or known address. In
addition, electronic service was also made via email.
15 The Applicant submitted proof of both methods of service to the Tribunal. The Tribunal
accordingly proceeded on the basis that service was adequately effected.
16 Despite proper service, the Respondent has failed to file any answering affidavit, notice
to oppose, or any other response within the period prescribed in Regulation 143 of the
Companies Regulations, 2011. The Respondent is therefore in default.
THE RELIEF SOUGHT
Page 5 of 10
17 The Applicant applies for a default order in terms of Regulation 153 of the Companies
Regulations, 2011, requesting that the Tribunal:
17.1 Remove the Respondent as a director of Outbound Arms Mossel Bay Pty (Ltd);
or, alternatively,
17.2 Declare his appointment null and void; and
17.3 Direct the CIPC to amend its records accordingly.
ASSESSMENT AND EVALUATION – LEGAL FRAMEWORK
Jurisdiction of the Tribunal under section 71(8)
18 Section 71(8)(b) of the Act provides that if a company has fewer than three directors,
any director or shareholder of the company may apply to the Companies Tribunal to
make a determination regarding the removal of a director. The Applicant has stated
under oath that the company has fewer than three directors. Accordingly, the Tribunal
has jurisdiction to hear the application, subject to the substantive grounds for removal.
19 The Tribunal may remove a director only on the grounds set out in section 9.
71(3) of the Act, namely:
(a) that the director is ineligible or disqualified in terms of section 69 (other than on
the grounds contemplated in section 69(8)(a)); or
(b) that the director is 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) that the director has neglected or been derelict in the performance of the functions
of director.
20 The Applicant has advanced two main bases for the removal of the Respondent: (i)
invalid appointment (irregular and without consent), and (ii) unfitness for directorship
(failure to demonstrate independence, good faith, or fiduciary responsibility, amounting
to neglect or dereliction). The Tribunal deals with each in turn.
Page 6 of 10
The ground of neglect or dereliction of duties
21 The Applicant contends that the Respondent has failed to participate in the
management, governance, or decision- making processes of the company. The Tribunal
has previously given guidance on what constitutes “neglect” or “derelict” conduct.
22 In Spineco Medical International (Pty) Ltd and Another v Janice Lilian Webb
(CT021NOV2014) at paras 55 and 57, the Tribunal held:
“My understanding of the aforesaid is that ‘derelict’ means either deserting or
abandoning. In fact it has similar meaning to failure or omission to do something
(and dereliction being verwaarlosing or nalatigheid in Afrikaans). However, in
my view, derelict has an element of being deliberate or purposeful or intentional
about it, whereas neglect is more an omission than an act.”
And
“Therefore, understanding the above and applying all that to the context of
section 71(3)(b), a director would be neglecting to perform his or her functions
as a director of a company if he or she had given insufficient attention to his or
her actions. Therefore, when regard is had to the standards of directors’ duties
and fiduciary duties of directors, the particular director would have failed to
adhere to the standards legally required of him, when a reasonable person under
the same circumstances would have acted to the contrary.”
23 In Mtshali v Lefutso (CT00482ADJ2020) [2020] COMPTRI 9 (17 December
2020) at para [13], the Tribunal stated:
“Therefore, it does not suffice to merely state that the one director is looking for
the other. The neglect or derelict in the performance of the functions of a director
has to be established from specific lapses in the conduct of a director, as
envisaged from the provisions of section 71(3)(b). Otherwise, even a purported
value judgment call or sweeping statement by the one director that the other
Page 7 of 10
director is hindering the conduct of the business of the company would not
suffice.”
24 Similarly, in Bussack v Davies (CT007FEB2018) [2019] COMPTRI 66 (11
January 2019) , the Tribunal illustrated its rigorous approach to evidence on neglect
and dereliction claims, requiring specific factual allegations rather than vague
generalities. The Tribunal granted the application only on the basis of the concrete
evidence placed before it. At para [22], the Tribunal stated:
“The process for the removal of a director requires reasonableness and
sufficiency in the allegations made by a director, and affords the impugned
director the right to be heard before a determination is
made.” (referencing Spineco Medical International (Pty) Ltd And Another v
Webb, Janice Lilian).
25 Applying these principles to the present case, the Tribunal finds that the Applicant has
not provided specific factual examples of any lapse or omission by the Respondent. The
Applicant states that the Respondent “does not participate” and that his presence
“exposes the company to risks”, but no concrete instances of neglect or dereliction are
identified. The Applicant has not alleged, for example, that the Respondent failed to
attend a particular board meeting, refused to sign necessary resolutions, or acted in a
manner contrary to the company’s interests. Generalised assertions of non-participation
are insufficient to establish neglect or dereliction under section 71(3)(c). Accordingly,
the application cannot succeed on this ground.
The ground of ineligibility or disqualification
26 The Applicant argues that the Respondent’ s appointment was invalid because it was
irregular, unauthorised, and induced by misrepresentation, and that the Respondent was
never validly appointed. The question arises whether such circumstances render the
Respondent “ineligible or disqualified” within the meaning of section 71(3)(a)(i) read
with section 69 of the Act.
with section 69 of the Act.
27 The Tribunal has previously considered analogous facts. In Siwisa and Another
Page 8 of 10
v Bhimma and Another (CT01094ADJ2022) [2022] COMPTRI 57 (29 August
2022) , the applicant alleged that the respondent had “inserted” himself into the
company’s records without consent or permission, and that the update was fraudulent.
The Tribunal held at para [9]:
“Further, the Tribunal does not have jurisdiction to order the removal of the first
respondent, in circumstances where the first respondent fraudulently, without
authorisation, consent or a resolution of the Board of the second applicant. The
jurisdiction of the Tribunal for the removal of a director under circumstances as
stipulated in section 71(8) of the Act. The applicant is advised to bring this matter
to the attention of the second respondent for further investigation and to possibly
rectify the ‘error’, as alleged by the first respondent, as soon as possible after
receipt of this order.”
The Tribunal ordered that the application be refused on the basis that the Tribunal
did not have the requisite jurisdiction.
28 This Tribunal is bound by the same statutory limitations. Section 71(8) does not clothe
the Tribunal with authority to remove a director solely on the ground that the
appointment was fraudulent or without consent. The Tribunal’s power to remove is
confined to the three grounds in section 71(3). Ineligibility under section 69 refers to
specific disqualifications (e.g., being an unrehabilitated insolvent, being removed from
an office of trust, etc.), not to the irregularity of the appointment process itself. The
proper forum to challenge the validity of an appointment on the basis of fraud or lack of
consent is the High Court, which has inherent jurisdiction to declare an appointment
null and void.
29 This conclusion is reinforced by Kooldip v Singh and Another (CT01059ADJ2022)
[2022] COMPTRI 84 (27 September 2022) , where the Tribunal held that “section
71(8) does not clothe the Tribunal with authority to order Respondents to remove
71(8) does not clothe the Tribunal with authority to order Respondents to remove
Applicant as a director” in circumstances beyond its statutory mandate. The Tribunal is
a creature of statute and cannot exercise powers that have not been expressly conferred
upon it.
Page 9 of 10
30 The Applicant seeks, in the alternative, an order declaring the Respondent’s
appointment null and void. The Tribunal has no power to grant such declaratory relief.
A declaration of invalidity of a director’s appointment falls within the jurisdiction of the
High Court, not the Companies Tribunal. The Applicant’s remedy, if any, lies
elsewhere.
The discrepancy regarding the company name
31 The Tribunal observes that the COR39 Certificate submitted by the Applicant reflects
the enterprise name as NSIMBI SECURITY SOLUTIONS (PTY) LTD, whereas the
application is brought in the name of Outbound Arms Mossel Bay Pty (Ltd)
(registration number 2015/257281/07). The registration number is the same, but the
name differs.
32 The directors listed are NKOSANA NICODEMUS NYAWUZA (appointed 27 July
2015) and HENDRIK PETRUS V AN ZYL (appointed 20 November 2025).
33 This discrepancy raises a fundamental issue: it is unclear whether the entity in respect
of which the Respondent was appointed as director is the same legal person as the
company on whose behalf the Applicant purports to act. The Applicant has not
explained this discrepancy. The Tribunal cannot grant relief in respect of a company
when the official CIPC record shows a different name. This, in itself, is a further
ground for refusing the application.
The prayer to direct the CIPC
34 The Applicant requests the Tribunal to direct the CIPC to amend its records
accordingly. The CIPC is not a party to these proceedings and has not been served with
the application. The Tribunal is not empowered to make any order against a non -party.
That prayer is therefore incompetent.
FINDINGS
Page 10 of 10
35 The Applicant has failed to establish any of the statutory grounds for removal of a
director under section 71(3) of the Act. The allegations of neglect or dereliction are
unsupported by specific factual evidence, as required by Mtshali v Lefutso and Bussack
v Davies. The allegation that the appointment was irregular and without consent does
not fall within the Tribunal’s jurisdiction, as confirmed in Siwisa v Bhimma. The
discrepancy in the company name on the CIPC certificate is unexplained and
undermines the application. Finally, the Tribunal cannot grant an order against the
CIPC as a non-party.
36 The application is therefore dismissed. The Applicant may pursue any appropriate
remedy before the High Court, including seeking a declaration that the Respondent’s
appointment is null and void, and may also consider laying a criminal complaint
regarding the alleged fraudulent use of the OTP.
ORDER
37 The Companies Tribunal hereby orders that:
37.1 The application brought by Mr Nkosana Nicodemus Nyawuza under case number
CT02616ADJ/2026 is refused.
37.2 There is no order as to costs.
Dated at Johannesburg on 27
th day of May 2026.
_______________________
[Signature]
D Terblanche
Member of the Companies Tribunal