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
LIMPOPO DIVISION, POLOKWANE
CASE NO.: 3543/2023
In the matter between:
ANITA GRIFFIOEN APPLICANT
AND
GRIFFIES EIENDOMME CC FIRST RESPONDENT
JOHANNES GRIFFIOEN SECOND RESPONDENT
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
_____________________ 09/06/2026
SIGNATURE DATE
DATE………… SIGNATURE:……
GERHARD HEINRICK OLIVIER THIRD RESPONDENT
COMPANIES AND INTELLECTUAL FOURTH RESPONDENT
PROPERTY COMMISSION
ALAN JORDAAN N.O. FIFTH RESPONDENT
JUDGMENT
NGOBENI J
[1] The applicant is Anita Griffioen, an adult female person residing at plot
6[...], P[...] Street, Kameeldrift West, Gauteng.
[2] The first respondent is Griffies Eindomme CC, with registration number
1988/017465/23, a close corporation duly registered in terms of the
Close Corporations Act 69 of 1984, with registered address at site 2[...]
Jejane Private Nature Reserve, Hoedspruit.
[3] The second respondent is Johannes Griffioen, with identity number 4[...],
an adult male, who is the former (ex) husband of the applicant, and they
were married in community of property until 14 August 2015, residing at
8[...] Beckedan Agricultural Holdings X2, Gauteng.
[4] The third respondent is Gerhard Heinrich Olivier, with identity number
6[...], an adult male residing at 1[...] J[...] Street, Fairland.
[5] The fourth respondent is the Companies & Intellectual Property
Commission (CIPC), a commission established in terms of section 185 of
the Companies Act 71 of 2008, with its principal place of business at DTI
Campus, Block F, 7[...] M[...] Street, Sunnyside, Pretoria, Gauteng.
[6] The fifth respondent is Advocate Alan Jordaan, in his official capacity,
being the agreed liquidator of the joint estate of the applicant and the
second respondent. No legal relief is requested against the fifth
respondent, and he is cited in so far as he may have an interest in this
matter.
[7] This is an application for the court to declare that the 10% membership
interest of the third respondent (Gerhard Heinrich Olivier) in the first
respondent (Griffies Eindomme CC) to be in contravention of subsection
15(2)(c) of the Matrimonial Property Act 1 (MCA) and therefore to be
declared null and void. The applicant further applies for declaration that
the second respondent and herself (applicant) as the only two members
of the first respondent (Griffies Eiendomme CC) with each having 50%
1 88 of 1984.
interest. Lastly, the applicant seeks an order for the winding up of the
first respondent in terms of section 49 of the Close Corporation s Act2
(CCA), or alternatively in terms of section 81(1)(d)(iii) of the Companies
Act3 (CA).
[8] Section 49 of the CCA, deals with unfairly prejudicial conduct, and it
allows the applicant as a member of the corporation to make an
application before a court of competent jurisdiction, to allege unfair and
unjust conduct or act of one or more members of the corporation, which
is unfairly prejudicial to that member. Section 81(1)(d)(iii) of the CA
states that if the company or one of its directors applies to the court for
the winding up of the company on the grounds that are mentioned in
subsection (i) and (ii), if it just and equitable for the company to be
wound up, the court must order as such.
[9] The applicant and the second respondent (Johannes Griffioen) were
married to each other in community of property up until their divorce on
15 August 2015. Mr. Alan Jordaan (fifth respondent /liquidator) was
appointed as the liquidator of their joint estate. Prior to the year 2012 all
the members’ interest in the first respondent was an asset in the joint
estate of the applicant and the second respondent. In the process of
liquidation of the joint estate, the liquidator alluded to the fact that the
2 69 of 1984.
3 71 of 2008.
third respondent (Gerhard Heinrich Olivier) allegedly received 10% of the
interest in the first respondent during 2012.
[10] The applicant disputes the validity of the transaction which allegedly gave
the third respondent the 10% member’s interest because she submits
that, the said transaction was made while she was still married in
community of property to the second respondent without her prior
knowledge and consent. That is the reason why the applicant in her
prayers prays for that transaction to be declared null and void.
[11] The third respondent in answering to the application raised two points in
limine. The first point in limine raised by the third respondent is Lis Alibi
Pendens, which simply means that the same litigation that is before court
is pending elsewhere. The third respondent states in his answering
affidavit that during February 2023 he caused summons to be issued
against the first, second and fifth respondents , and the applicant has
already filed her notice of intention to defend al though she has not
pleaded yet. The third respondent submits that in the said summons that
he issued, on paragraph 3 he stated the following:
“It is declared that the plaintiff holds a 10% members interest in the third
defendant”
[12] The third respondent submits that what is claimed in the notice of motion
by the applicant regarding the third respondent’s 10% member’s interest
is the same issue as in paragraph 3 of the summons that he issued in the
High Court of South Africa, Gauteng Division, Pretoria (Gauteng) . The
third respondent further submits that t here is pending litigation against
the same parties. The third respondent requests that prayer s 1 and 2 be
stayed pending the final determination of the action proceedings in
Gauteng.
[13] The second point in limine raised by the third respondent is that the
applicant has no locus standi to deal with the joint estate at this stage
because one Mr Jordaan (liquidator) has been appointed to deal with the
joint estate of the applicant and the second respondent (parties) and the
parties cannot therefore deal with the joint estate because the liquidator
has been appointed to prepare a liquidation and distribution account
regarding the joint estate of the parties.
[14] The second poi nt in limine also relates to the third prayer by the
applicant, which seeks liquidation of the first respondent, and the third
respondent submits that because the joint estate of the parties falls under
the control and direction of the liquidator , neither the applicant nor the
second respondent has the power to divest any asset of the joint estate,
including making an application to liquidate the first respondent.
[15] In issue between the parties is as to whether this court must allow
litigation that had been initiated in Gauteng to be finalised first, and
whether the issues involved in the Gauteng case are the same as the
ones to be adjudicated in this case. The applicant submits that the third
respondent was joined in these proceedings on a peripheral issue, and he
cannot be said to have been joined. Case law gives guidance on how the
issue should be approached. The case number in the Gauteng case is
21744/2023, in which the plaintiff is Heinrich Gerhard Olivier and the first
to fourth defendants are Johannes Griffioen, Anita Griffoen, Griffies
Eindomme CC and Alan Jordaan N.O. respectively.
[16] The case that deals with the doctrine of lis alibi pendens extensively, is
the case of Caesarstone Sdot-Yam Ltd v The World of Marble and Granite
CC4 (Ceasarstone case), and on paragraph 2 of the judgment the
Supreme Court of Appeal (SCA) said the following:
“As its name dictates, a plea of lis alibi pendens is based on the
proposition that the dispute (lis) between the parties is being litigated in
the court in which the plea is raised. The policy underpinning it is that
there should be a limit to the extent to which the same issue is litigated
between the same parties and that it is desirable that there be finality in
4 (741/12) [2013] ZASCA 129 (26 September 2013).
litigation. The courts are also concerned to avoid a situation where
different courts pronounce on the same issue with the risk that they may
reach differing conclusions”
[17] The court went further in the Ceasarstone case, supra, by quoting
paragraph 3 of the judgment, which refers to the Writings of Johannes
Voet on ‘The Exception of Res Judicata’ on the identifying features to
determine if the suit is pending before another court, as follows:
“… Thus the suit must already have started to be mooted before another
judge between the same persons, about the same matter and on the
same cause, since the place where a judicial proceeding has once taken
up is also the place where it ought to be given its ending”
[18] In Nestle (South Africa) (Pty) Ltd v Mars Inc 5 (Nestle case), Nugent AJA
in dealing with the similar aspect said the following:
“… Once a suit has been commenced before a tribunal that is competent
to adjudicate upon it, the suit must generally be brought to its conclusion
before that tribunal and should not be replicated (lis alibi pendens)”.
[19] The third respondent in casu, demonstrated that he instituted an action in
2023, which relates to his alleged 10% member ’s interest in the first
5 2001 (40 SA 542 (SCA).
respondent. Having read the prayers in the notice of motion and
paragraph 3 of the particulars of claim as quoted, I find that the issues
are the same because both refer to the 10% which is the subject of the
dispute in both matters. The parties that are involved in both litigation is
the applicant, the first, second , third and fifth respondents. In my view
the involvement of the third respondent in this application cannot be said
to be peripheral, because that is the crux of prayers 1 and 2 of this
application. In the application at hand although the second respondent is
now deceased, but his portion in the joined estate is still the subject
matter.
[20] I find it prudent that the litigation that was initiated first be dealt with
first. One of the reasons why I find that to be viable is because t he third
respondent in his answering affidavit gave valid reasons as to why he
chose to institute action proceedings instead of application proceedings.
He submits that the matter will be dealt with comprehensively through
the hearing of evidence than just arguing the matter in application
proceedings. That submission by the third respondent is persuasive or
cogent, and I find that the Gauteng matter must be dealt with first ,
because the court is required to decide as to which matter should be
heard first6.
6 Spencer v Memani (675/12) [2013] ZASCA 146 (1 October 2013).
[21] At the time of the institution of the application that is before this court,
the liquidator was still in charge of the joint estate. It is so that all the
powers regarding the joint estate were abdicated to him until he was able
to give account in the form of a liquidation and distribution account. I
therefore find that indeed the parties themselves cannot deal with any of
the assets until the liquidator is finished and gives full account. In the
result the applicant is not competent to deal with the joined estate nor to
bring the liquidation application in relation to the first respondent. The
points in limine are bound to succeed, and the third prayer is bound to
fail.
[22] In the result the following order is made:
(i) the two points in limine are upheld,
(ii) this case 3543/2023, is stayed pending the final determination of
case number 2023 -021744 (21744/2023) in the High Court of
South Africa, Gauteng Division, Pretoria,
(iii) the third prayer in the notice of motion, being the prayer for the
liquidation of the first respondent is dismissed, with costs on party
and party scale, including counsel’s fees on party and party scale B.
____________________________
J.T. NGOBENI
JUDGE OF THE HIGH COURT
APPEARANCES
For the applicant: Adv. W.C. Carstens
Instructed by: Lourens & Schwartz Attorneys Inc.
For the 3rd respondent: Adv. M. Louw
Instructed by: Otto Krause Inc.
For the 1st,2nd, 4th,5th respondents: No appearances
Date heard: 30 April 2026
Date delivered: 09 June 2026