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[2026] ZAGPPHC 506
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Janse Van Rensburg v ABSA Bank Limited and Others (085353/2026) [2026] ZAGPPHC 506 (18 May 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO
: 085353/2026
DATE
:
23.04.2026
(1)
REPORTABLE:
YES
/ NO
(2) OF INTEREST TO
OTHER JUDGES :
YES
/ NO
(3) REVISED
18/05/2026
In the matter between:
WILLEM JACOBUS JANSE VAN
RENSBURG
Applicant
and
ABSA BANK LIMITED
First Respondent
(Registration number:
1986/074794/06)
INVICTA KONSTRUKSIE
CC
Second Respondent
(Registration number:
1996/004407/23
PAUL ABRAHAM JANSE VAN
RENSBURG Third Respondent
(SNR)
PAUL ABRAHAM JANSE VAN
RENSBURG Fourth Respondent
(JNR)
WILLEM JACOBUS JANSE VAN
RENSBURG Fifth Respondent
(JNR)
JUDGMENT
COURT
:
In this matter, I am going to give an ex-tempore judgment in
respect of the urgent application that was heard yesterday. The
applicant launched an urgent application against the first
respondent, being Absa Bank, and the second to fifth respondents for
relief set out in the Notice of motion that reads as follows:
[1]
Dispensing with the forms and service provided for in the rules and
hearing the application is a matter
of urgency and is envisaged by
Rule 6(12).
[2]
Pending the final determination of the applicant's application to be
instituted within 30 days of the
order being granted or an order in
terms of section 49 of the Close Corporation Act. In the following
terms:
[2.1]
Resolution passed by the members of Invicta Construction CC on 13
April 2036, supporting
to authorise Invicta Construction CC to enter
into the CP Development Loan Facility for Absa Bank Limited
[BED3002709] in the amount
of R70 million is declared to be unlawful,
invalid and of no force of effect.
[2.2]
The third, fourth and fifth respondents are interdicted and
restrained from precuring
…[indistinct] permitting Invicta
Construction CC to enter into the CP Development Loan Facility with
Absa Bank Limited [DEV3002709]
or any loan or facility or financial
obligation of a similar nature and purpose unless and until:
[2.2.1]
An independent person appointed by agreement between the parties and
failing
agreement within 5 days of this order by the South African
Institute of Chartered Accountants has conducted a solvency and
liquidity
…[indistinct] in respect of Invicta Construction CC
as contemplated and envisaged by section 4 of Act 71 of 2008 and
confirmed
in writing that Invicta Construction CC satisfies the test
of taking into account the proposed loan facility or financial
obligation.
[2.2.2]
A members' meeting of Invicta Construction CC has been convened and
held
with proper notice, at which a resolution to approve the
facility has been passed with the written consent of members holding
at
least 75 percent of the members interests in the Corporation.
[3]
The first respondent, Absa Bank Limited, is interdicted and
restrained from dispersing, advancing, releasing
or any other manner
making available to the second respondent (Invicta Construction CC)
any funds under or pursuant to the CPF
Development Loan Facility
[DEV3002709] in the amount of R70 million or any part thereof.
[4]
The cost of this application to be costs in the main application,
save that in the event of opposition
the opposing party shall be
liable for cost including cost of counsel on Scale C.
The
parties, in particular the applicant, the third, fourth and fifth
respondents are family members, all contracting property development
through the vehicle of the second respondent being the closed
corporation Invicta Construction CC.
The
issue that prompted the applicant to launch this application was a
resolution that was passed on 30 April 2026 by the third,
fourth and
fifth respondents as members of the second respondent and who
collectively hold 65 percent of the members' interest
in the second
respondent, authorising the execution of a R70 million loan
agreement, with the first respondent Absa in the face
of the
applicant's unlimited personal security for debts of Invicta to
ABSA.
The
applicant, having voted against the passing of the resolution, the
applicant holds 35 percent of the members interest in the
Close
Corporation. The first respondent holds 35 percent members'
interest in the Close Corporation, the fourth respondent
15 percent
and the fifth respondent the other 15 percent in the Close
Corporation.
It
is to be recorded that in 2025 and by mutual agreement, arising from
ongoing differences, the applicant ceased participation
in the
day-to-day management Invicta Close Corporation. Negotiations
were entered into to obtain his 35 percent interest
in the agreement
of the Close Corporation.
The
applicant, sometime, signed an unlimited personal suretyship with
Absa, guaranteeing the full repayment of Invicta’s debts
towards the bank without any cap as co-principal debtor.
From
the papers, it is to be gleaned that the initial purpose of the
suretyship was to secure Absa’s claim in respect of the
overdraft facility granted to the Close Corporation. It is
against that background that the applicant seeks this Court's
intervention.
It
is clear from the relief that is sought in this application that the
interdict that is sought against the first respondent is
final in
effect. The first respondent is prohibited from making
available any amount of the facility applied for, being an
amount of
R70 million.
That
interdict is not the subject of any other litigation that stands to
be entered into in due course. It is, after all,
a final
interdict, in terms and in effect. In that regard, the
applicant is thus obliged to prove compliance with the requirements
of a final interdict.
Applicant
is obliged to show that he has a clear right, worthy of protection,
irreparable harm would follow should the relief not
be granted, and
that there is no alternative remedy.
The
applicant’s approach in his heads of argument that the relief
that he sought, particularly against the first respondent,
is
considered to be an interim interdict. It is clear from the
wording of the interdict sought recorded earlier, that the
applicant’s contention is not correct. In no way can it be
considered correct that the Court could assume that it is interim
relief that is sought
.
The second part of the relief
sought in the notice of motion is permitting the applicant to
institute proceedings presumably
in terms of the provision of section
49 of the Close Corporation Act.
The
applicant seeks this Court to assume that the applicant would be
entitled to the relief sought in sub section of section 49,
namely,
that the resolution was passed contrary to the stipulated 75 percent
interest or shareholding agreement in terms of the
Close Corporation
Act.
On
a clear reading of section 46 of the Close Corporation Act, it is
only on a majority vote that the resolution should be passed.
The applicant clearly misinterpreted the provision of section 49.
There is no association agreement between the parties,
other than the
various agreement’s how the affairs of the CC were to be
conducted, and thus the provisions of the Close Corporation
Act apply
in this instance.
Section
49 is clearly misconceived again as the effect of the relief, if it
is not granted, would leave the applicant out in the
cold and face
enormous debt towards the first applicant. On that basis, he seeks to
address the alleged prejudice he would suffer.
This
contention is misconceived. The applicant did not think it fit
to place the suretyship agreement before this Court to
support his
claim that he would be liable as surety for all the debt, including
the debt that would become due under the loan facility.
The
respondent's contentions were that the resolution was passed in the
normal course of business, as the close corporation conducts
the
business of property development. In particular that of a
certain development that is presently underway and the property
development done was in various phases. The last phase of which
stands to be funded by the new or additional financial obligation
that the Close Corporation seeks. It is common cause that 25
percent of the last phase stands to be completed. The
completion would depend on the further funding by the first
respondent through the facility.
It
is also again to be gleaned from the papers that the other phase were
conducted in a similar manner which the applicant did not
object to.
It is contended on behalf of the respondent that the applicant
launched this application for a reason other than
the alleged
exposure to the severe debt to be incurred.
Whether
that is correct or not it cannot be ascertained from the papers
present before Court. However, the applicant has failed
to
establish a clear right to the final interdict against Absa, which
has filed a notice to abide.
The
mere fact that the applicant holds 35 percent of the shareholding in
the Close Corporation, which would then be in the minority
of the
membership shares or the holding percentage. It is clear
from the provisions of section 46 that a mere majority
was required
to pass the resolution. Section 49 does not provide a veto vote to a
minority shareholder in the ordinary course of
business.
On
his own version and on his own explanation, a mere majority would
suffice. It appears to be a disgruntled member who was
unhappy
with the passing of the resolution and now seeks to support his
opposition of the passing of the resolution by a way of
obtaining an
interdict to prevent Absa from providing the particular
facility to the Close Corporation.
It
is clear from the second portion of the relief that the applicant
seeks, as set out in prayer 2 of the Notice of Motion, that
he seeks
to add a certain qualification before he would support the
resolution.
Namely
that an external, independent person is to conduct a solvency
equality investigation. This qualification is nowhere
stipulated
.
It is merely a ‘condition’ that the
applicant seeks to impose upon the third respondent before he would
acceed to the
resolution
.
It
appears from the papers that the facility, if not granted, then the
business of the Close Corporation will suffer enormously.
It
would then be of no advantage to any of the members of the Close
Corporation and the effect would be that the Close Corporation
will
not be in a position to complete its development. Accordingly,
the applicant has failed to prove that he has complied
with the
required requirements relating to the granting of the final
interdict.
Therefore,
the application stands to be dismissed. What is to noted, is
that applicant has not commenced any proceedings under
section 49 and
will only do so sometime in the future.
During
argument, counsel on behalf of the applicant indicated that the Court
could decide whatever period should be allowed for
the institution of
further proceedings. It is not really relevant for determining
whether a proper case has been made for
the initial or the purpose of
the interdict.
Accordingly, I grant the
following order. The application is dismissed with costs.
Such costs would be taxable on Scale
C.
VAN DER WESTHUIZEN J
JUDGE OF THE HIGH
COURT
DATE
:
18 May 2026
TRANSCRIBER’S
CERTIFICATE
I,
the undersigned, hereby certify that
so far as it is audible to
me
, the aforegoing is a true and correct transcript of the
proceedings recorded by means of a digital recorder in the matter
between:
WILLEM
JACOBUS JANSE VAN RENSBURG // ABSA BANK LIMITED + OTHERS
CASE
NUMBER
: 085353/2026
RECORDED
AT
: PRETORIA
DATE
HELD
: 23.04.2026
NUMBER
OF pages
:
10
PROBLEMS
EXPERIENCED WITH RECORDING
Typed
verbatim.
.
DATE
COMPLETED
: 08.05.2026
TRANSCRIBER
:
Annelize van der Spuy