REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number:2020-24661
In the matter between:
RYNHART KRUGER N.O First Applicant
THOMAS JOHN MEYER Second Applicant
MERISE MONTEZ VAN WYK N.O Third Applicant
and
ELECTRO WINNING PRODUCTS (PTY) LTD First Respondent
JOHN TURNER & SONS ENGINEERING SA (PTY)LTD Second Respondent
JOHN KENNETH TURNER Third Respondent
COLIN MICHAEL DE VRIES Fourth Respondent
THE MASTER OF THE HIGH COURT Fifth Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
SIGNATURE DATE
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________________________________________________________________
JUDGMENT
________________________________________________________________
Mfenyana J:
[1] In 2020, the first and second applicants instituted proceedings against the
respondents for a series of relief pertaining, inter alia , to payment of certain
amounts by the first and second respondents. The applicant s further sought an
order interdicting the first respondent from paying any remuneration to the third
and fourth respondents (the respondents), alternatively, until the first respondent
had been authorised by a special resolution of its shareholders.
[2] The applicants further sought an order declaring the third and fourth
respondents delinquent directors , as contemplated in section 162(5) of the
Companies Act (the Act) 1 alternatively, that they be placed under probation in
terms of section 162(7) of the Act. They also sought an order declaring a resolution
of the first respondent, passed in May 2019, removing the second applicant as a
director of the first respondent, void.
[3] The second (JT & Sons) , third (Turner Jr.) , and fourth (de Vries)
respondents oppose the application. The first respondent has chosen to abide by
the court's decision, while the fifth respondent did not participate in these
proceedings.
1 Act 71 of 2008.
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[4] The dispute between the parties relates to two family-run companies,
namely, Electro Winning Products (Pty) Ltd ( EWP) and John Turner and Sons
Engineering SA (Pty) Ltd ( JT & Sons ). Turner Jr. and de Vries are directors of
EWP. Turner Jr. is also the sole director of JT & Sons. Jacquie Meyer was a 10%
shareholder in EWP and a 30% in JT & Sons. EWP was established by the second
applicant ( Meyer) and John Thomas Turner (Turner Sr.) , Turner Jr.’s father, in
2005, whereas JT & Sons was established by Turner Sr. in 1980. Turner Sr. was
Meyer’s father -in-law and both Jacquie Meyer and Turner Jr.’s father. Jacquie
Meyer and Turner Jr. were later appointed as directors alongside Turner Sr. They
were also issued shares in JT & Sons.
[5] Jacquie Meyer and Turner Sr. passed away on 26 March 2019 and 3
August 2019, respectively.
[6] In opposing the application, the respondent, s imultaneously with the ir
answering affidavit, filed a counterapplication for the following orders : (1) that the
second applicant ( Meyer) be ordered to transfer the shares he holds in the first
respondent ( EWP) and the second respondent (J T & Sons ) to the directors
alternatively, the shareholders of t hose companies, (2) that Meyer be ordered to
pay EWP, JT & Sons, Turner Jr. and de Vries , collectively an amount of
R13 220 475.49;3. (3) that the deceased estate of Jacquie Meyer (administered
by the first applicant) is ordered to pay EWP, JT & Sons, Turner Jr. and De Villiers
an amount of R300 000.00
[7] In the answering affidavit, the respondents raised two points in limine. The
first is to the effect that the first and second applicants have no locus standi to
institute the proceedings on behalf of the estate of the late Jacquie Meyer. The
second is that the applicants have not made out a case for the relief they seek ,
and thus, the matter should be referred for oral evidence.
[8] In August 2023, the applicants filed an amended notice of motion in terms
[8] In August 2023, the applicants filed an amended notice of motion in terms
of which the third applicant was joined to the proceedings. The third applicant is
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the executor of the estate of the late Jacquie Meyer, by virtue of letters of
executorship issued by the Master on 30 July 2019.
[9] Prior to the hearing of the matter, the respondents made various
concessions which culminated in an order, granted by agreement between the
parties. Further, the applicants elected not to pursue some aspects of the relief
initially sought. The following order was granted by agreement between the parties:
9.1 “The first respondent is interdicted from paying any remuneration
to the third and fourth respondents.
9.2 The first respondent is interdicted from paying any distribution to its
shareholders, other than in accordance with their proportionate shareholding
in the first respondent and in compliance with the Companies Act 2008
(Companies Act).
9.3 The first and third applicants are granted leave to bring proceedings in the
name and on behalf of the first respondent against the third and fourth
respondents or any related or inter -related person to the third and fourth
respondents (which includes without limitation, any trusts, companies or close
corporations affiliated with the third and fourth respondents ) from May 2019
without making a demand as contemplated in section 165(2) of the Companies
Act without affording the first respondent time to respond to any demand in
accordance with section 165(4) of the Companies Act.
9.4 The shareholders’ resolution of the first respondent, purportedly passed in May
2019, removing the second applicant as a director of the first respondent , is
declared void.
9.5 Costs shall stand over pending the final determination of matters not
conceded.”
[10] Save for the issue of referral to oral evidence, to which I shall revert, none
of the points in limine were canvassed by the respondents at the hearing of the
matter. In particular, the issue of the first and second applicants’ locus standi was
matter. In particular, the issue of the first and second applicants’ locus standi was
obviated by the joinder of the third applicant, the executor of the estate of the late
Jacquie Meyer. Regarding the second applicant, the applicants, in their replying
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affidavits, assert that as a 50% owner in the joint estate at the time of Jacquie
Meyer’s death, by virtue of his marriage in community of property to the deceased,
Meyer continues to have an interest and insofar as the assets and claims against
the former joint estate are concerned.
[11] The only remaining parts of the relief pertain to the declaration of
delinquency against Turner Jr. and de Vries (the respondents), alternatively, that
they be placed on probation as contemplated in section 162 of the Companies Act.
[12] The applicants contend that the respondents have looted both EWP and
JT & Sons since May 2019 , paying themselves exorbitant remuneration without
the approval of the shareholders, in contravention of the provisions of the
Companies Act. In addition, the applicants aver that the respondents have not
been transparent about the management of EWP and JT & Sons and have
effectively cut the shareholders off.
[13] The applicants contend further that EWP has not held a shareholders'
meeting since May 2019 , and as such , no special resolution was passed to
approve the payments the respondents made to themselves. Moreover, no
resolution was passed authorising them to pay themselves the exorbitant
remuneration they have been receiving since May 2019 , all in contravention of
sections 66(8) and (9) of the Act. The same goes for JT & Sons, they add.
[14] Regarding the requirements of section s 20(4) and 163(1)( c) of the
Companies Act, the applicants note that as Jacquie Meyer is a shareholder in both
EWP and JT & Sons,(and her estate is a beneficiary thereof) de Vries’s conduct in
respect of EWP and Turner Jr.’s conduct in respect of JT& Sons amount to them
exercising their powers as directors, in a manner that is oppressive and unfairly
prejudicial and disregards the interests of Jacquie Meyer’s estate as a beneficiary
of Jacquie Meyer’s shares in both companies.
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[15] The applicants aver that the court is enjoined in terms of section 163(2)(a)
of the Act to make an interim or final order, including an order restraining the
conduct complained of. Thus, Jacquie Meyer’s estate is entitled to an order
restraining the respondents from unlawfully paying themselves money from EWP
and JT & Sons until the shareholders of those companies have issued a resolution
approving the payments.
[16] The applicants argue that in terms of section 77(3)(a) and (c) of the Act, ‘a
director of a company is liable for any loss, damages or costs sustained by the
company as a direct consequence of the director having acted in the name of the
company, signed anything on behalf of the company, or purported to bind the
company or authorise the taking of any action by or on behalf of the company
despite knowing that the director lacked the authority to do so’. EWP and JT &
Sons, therefore, have claims against Turner Jr. and de Vries for repayment of the
amounts they unlawfully paid to themselves, they contend.
[17] Because Jacquie Meyer’s estate is a beneficiary in the shares held by
Jacquie Meyer in both EWP and JT & Sons, it is entitled to issue a demand in
accordance with section 165 (2) of the Act to demand that EWP and JT & Sons
commence legal proceedings against both Turner Jr. and de Vries to demand
payment of the amounts unlawfully paid to them.
[18] In invoking the provisions of section 165( 6) of the Act, the applicants
contend that it would be futile to issue a demand against EWP and JT & Sons for
de Vries and Turner Jr. to sue themselves . They argue that the circumstances of
the matter warrant that the applicants be granted leave to bring the proceedings in
the name of the companies without making a demand. They further contend that
both EWP and JT & Sons are suffering significant losses each month, which may
not be fully recovered from Turner Jr. and de Vries. Moreover, Jacquie M eyer’s
not be fully recovered from Turner Jr. and de Vries. Moreover, Jacquie M eyer’s
estate is substantially prejudiced as it is not receiving any benefit from her
shareholding in EWP and JT & Sons, which benefits are paid to Turner Jr. and de
Vries, who are in control of those companies, and will not act against their own
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interests. To protect its interests, and the interests of EWP and JT & Sons, Jacquie
Meyer’s estate, through its appointed representative, in good faith, is entitled to
take the necessary steps to protect its rights , obtain what is due to it and
commence proceedings against the respondents.
[19] Arguing for Turner Jr. and de Vries to be declared delinquent directors, the
applicants aver that their conduct is prohibited in terms of section 163, and in those
circumstances, section 163(2) empowers the court to appoint directors in the place
of or in addition to any directors in office or declare any person delinquent or under
probation as contemplated in section 162 . Notably, the applicants aver that the
conduct of the respondents satisfies the prohibited conduct contemplated in
section 162(5) read with section 77(3) (c) of the Act. In the alternative, and if this
court is not inclined to declare Turner Jr. and de Vries delinquent directors, the
applicants aver that they should be placed on probation as their conduct falls within
the prohibited conduct contemplated in section 162(7) of the Act.
[20] The applicants further aver that the relief they seek is aimed at correcting
the wrongs committed by the respondents and reclaiming the financial benefits
they unlawfully extracted from EWP and JT & Sons.
[21] In the answering affidavit, the respondents deny any wrongdoing . In
particular, they deny that they unlawfully paid themselves any amounts from EWP
and JT & Sons . They aver that EWP was f actually insolvent. In their heads of
argument filed in November 2023, the applicants opted not to proceed with the
relief that EWP and JT& Sons should pay funds into the trust account of van Wyk
Auditors and all relief relating to placing EWP and JT & Sons under business
rescue or liquidation. Given that JT & Sons was subsequently liquidated, the relief
relating to an interdict against JT & Sons and the derivative action against it
became moot.
became moot.
[22] Subsequent to the agreement reached by the parties, JT & Sons did not
play any meaningful role in the proceedings. When the matter was heard, I was
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advised by Mr Dorning, on behalf of the applicants that the attorney acting on
behalf of the liquidators of JT & Sons had advised him that they would be sending
counsel to court on a watching brief and would not take part in the proceedings.
[23] On behalf of the third and fourth respondents, Mr Culhane submitted that
in light of the dispute s of fact, the court should exercise its discretion and place
Turner Jr. and de Vries on probation, as opposed to declaring them delinquent. He
argued that declaring them delinquent directors would amount to the court shutting
the door in their faces in circumstances where there were disputes of fact.
[24] As regards the counter-application filed by the respondents, this relief has
been rendered moot by the concessions made by the respondents , including
Meyer’s reinstatement as a director.
[25] It is essential to, first deal with the issue relating to the referral of the matter
for oral evidence and the condonation application . The application by the
respondents in this regard was delivered two days before the hearing of the matter.
Incorporated in that application is a n application f or condonation for the short
service of the same application. The deponent to the affidavit in support of the
condonation application, Turner Jr., asserts that the reason for the short service of
the application is that he and de Vries were not able to ga ther sufficient funds to
secure the services of counsel, and ultimately, on 22 August 2025, implored their
attorney of record to appear on their behalf despite being out of time.
[26] Notably, Turner Jr. further avers that although he recalls signing the
founding affidavit in respect of an application for referral to oral evidence in 2021,
he was not aware that the application was not filed until he was informed by their
attorney on 22 August 2025. He states that any prejudice which may be suffered
by any of the parties may be compensated by an appropriate costs order.
by any of the parties may be compensated by an appropriate costs order.
[27] Needless to say, the applicants did not file any papers opposing the
application, having received the application a mere two days before the hearing of
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the matter. The notice of motion itself provides no timeframes for the applicants or
any party who wishes to oppose the application to file their papers.
[28] An applicant for condonation s eeks an indulgence from the court . Such
applicant must set out fully and comprehensively the reasons for the delay in
seeking condonation.2 From this, it can be ascertained that condonation will not be
granted for the mere asking.3
[29] The respondents’ explanation sheds no light on what steps they took in
the four years following the signing of the founding affidavit to advance the
intended application for referral to oral evidence . Having failed to do so, the
respondents cannot seek to benefit from their shortcomings by filing this
application, also out of time. The facile explanation by the respondents falls short
of the requirements of rule 27. There is simply no good cause shown for this court
to exercise its discretion in favour of the respondents.
[30] I find it absurd that the respondents contend that any prejudice caused to
any other party may be remedied by an award of costs against them. The glaring
prejudice is that the applicants and any other party ’s right to be heard has been
obliterated by the extreme lateness of the application , with not so much as an
opportunity to file opposing papers if they intended to. No amount of costs can
compensate for such prejudice . The application for condonation has no merit
whatsoever and falls to be dismissed.
[31] Having dismissed the application for condonation, the application for
referral to oral evidence is not properly before this court and stands to be struck
off.
2 Mulaudzi v Old Mutual Life Assurance Company (South Africa) Limited 2017(6) SA 90 (SCA).
3 Uitenhage Transitional Local Council v South African Revenue Service 2004(1) SA 292 (SCA).
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[32] I have already dealt with the relevant provisions of section 162. The
question to be determined by this court is whether Turner Jr. and de Vries should
be declared delinquent directors or placed under probation.
[33] The applicants rely on Lewis Group Ltd v Woollam and Others4, where the
court cited with approval the judgment of the Supreme Court of Appeal in Gihwala
and Others v Grancy Property Ltd and Others5, where Wallis J observed that gross
abuse of the position of director is not a ‘trivial misdemeanour or an unfortunate
fall from grace ’. The learned judge further noted that gross abuse of a director’s
position involves serious misconduct on the part of a director and ‘directors who
show themselves unworthy of that trust are declared delinquent and excluded from
the office of director.’6
[34] Section 162 is therefore aimed at promoting acceptable standards of
corporate governance and protecting the shareholders, investors and the public
from such directors. The courts have been consistent in stating that only gross
abuses of the position of director qualify in terms of the provision.
[35] In addition, section 76(3) outlines the core duties of directors requiring
them to act in good faith, for a proper purpose, in the interests of the company, and
with the care, skill and diligence reasonably expected of someone in their position,
while also ensuring they exercise their powers within authorised limits in line with
their duty of accountability. As such, directors must act honestly, in good faith and
for legitimate company objectives and not for personal gain. Their duty is to the
company and not to themselves, and thus, they have a duty to benefit the collective
interests of the shareholders.
[36] Applied to the facts of the present case, the applicants state that Turner
Jr. and de Vries:
4 2017(2)SA 547 (WCC)
5 2017(3) SA 337 (SCA); [2016] 2 All SA 649; [2016] ZASCA 35.
6 Ibid, para 144.
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36.1 Removed Meyer as a director of EWP without following any lawful
process as contemplated in section 71 (3), which requires a board
resolution and that the affected director must be given notice and an
opportunity to respond. The respondents have conceded this. Given
the manner in which Meyer was removed as a director, the reasons
concocted therefor, as well as the belated concession by the
respondents, it is clear that Meyer’s removal was not only ill-fated but
also a stratagem hatched by the respondents with the sole purpose
of running EWP for their sole benefit and lo oting its assets to the
exclusion of its shareholders.
36.2 They paid themselves exorbitant amounts, which they were not
entitled to in accordance with the provisions of section 66. In terms
of section 66(9), remuneration may only be paid in accordance with
a special resolution approved by the shareholders. Ordinarily,
payments to directors must be preceded by agreement with the
shareholders. Although Turner Jr. and de Vries ’ defence is a bare
denial, they have conceded that no further payments should be made
to them by EWP. The evidence provided by the applicants in the
form of the bank statements of EWP reveals that , despite there not
being a shareholder’s resolution or any justification to do so, between
6 December 2019 and 14 March 2020, Turner Jr. and de Vries made
the following payments to themselves:
a. R4 684 959.91 to Turner Jr.
b. R2 097 500.00 to de Vries
c. R7 729 236.24 to Christo Maritz
36.3 No shareholders' meetings were convened since 2019.
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[37] In Smuts v Kromelboog Conservation Services (Pty) Ltd and Another7, the
SCA noted that o nce a court has found that a person has committed gross
misconduct as envisaged in Gihwala, such person must be declared a delinquent
director. The court has no discretion in this regard.8
[38] As I have stated, the respondents offered a bare denial in defence of their
errant conduct, without much else, and at the same time alleg e that a dispute of
facts exists . On the strength of Plascon Evans 9, the respondents’ version is
untenable and should be rejected. Their actions amount to gross misconduct and
were carried out over an extended period in total disregard of their fiduciary duties
and the harm they inflicted on EWP and JT & Sons, including the shareholders.
[39] I was invited to make a finding of perjury against the respondents, Mr Brian
Wilken (Wilken) , the respondents’ erstwhile attorney and Mr Christo Maritz
(Maritz), a chartered accountant and auditor. This arises from statements made by
Turner Jr. in the answering affidavit, confirmed by de Vries, Maritz and Wilken,
which the applicants aver are untrue. Perjury is a criminal offence that requires
investigation and the presentation of proper evidence before the court can make a
determination. That being so, I am of the view that th is issue is best left to the
relevant authorities for investigation.
Costs
[40] The applicants contend that the conduct of the respondents alone is
sufficient to warrant a punitive cost order on attorney and client scale against the
respondents. They aver that this application could have been obviated, however
the respondents opted to file a meritless counter-application, and in addition, filed
their heads of argument out of time . I agree. While costs are a matter squarely
within the province of the court, the manner in which a litigant conducts themselves
7 (511/2023) 2024 ZASCA 156 (14 November 2024).
8 Ibid para 175.
7 (511/2023) 2024 ZASCA 156 (14 November 2024).
8 Ibid para 175.
9 Plascon-Evans Paints (TVL) v Van Riebeck Paints ( Pty) Ltd(53/84) [1984] ZASCA 51; [1984] 2
All SA 366 (A); 1984 (3) SA 623; (21 May 1984).
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in a matter is of particular relevance. The respondents’ opposition of the application
and their conduct in gener al is nothing short of vexatious and is deserving of
sanctioning by this court.
Order
[41] In the result I make the following order:
a. The third and fourth respondents are declared delinquent directors as
contemplated in section 162(5) of the Companies Act 71 of 2008.
b. The counter-application is dismissed with costs.
c. The third and fourth respondents shall pay the costs of the application,
inclusive of the reserved costs of 1 September 2025.
S Mfenyana
Judge of the High Court
Date of hearing: 01 September 2025
Date of judgment: 21 January 2026
This judgment was handed down electronically by circulation to the parties’
representatives by email and by uploading the judgment onto Caselines. The date
of delivery of the judgment is deemed to be 21 January 2026.
Appearances:
For the applicants:
Counsel: J Dorning
instructed by MJD Law Inc.
For the respondents:
Counsel: GA Culhane
Instructed by Gerard Culhane Attorneys