IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2026-082648
DATE: 2 July 2026
In the matter between:
BTW X ECLECTIC (PTY) LIMITED First Applicant
LEBONE SEGOLODI Second Applicant
and
WILLIAM TSEPO SEHONA First Respondent
DIKETO NETWORK (PTY) LIMITED Second Respondent
CHANGU MBULAWA Third Respondent
FIRST NATIONAL BANK Fourth Respondent
RIDWAAN MOHAMED Intervening Party / Fifth Respondent
Neutral Citation: BTW X Eclectic and Another v Sehona and Others (2026-
082648) [2026] ZAGPJHC --- (2 July 2026)
Coram: Adams J
Heard: 19 May 2026
Delivered: 2 July 2026 – This judgment was handed down electronically by
circulation to the par ties' representatives by email , by being
uploaded to CaseLines and by release to SAFLII. The date and
time for hand-down is deemed to be 11:30 on 2 July 2026.
Summary: Civil procedure – applications and motions – urgent application –
application by respondent s for reconsideration of order granted ex parte in
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urgent application in their absence – respondents in its application for
reconsideration entitled to place additional facts and matter before court which
ought properly to have been placed before court when the matter was originally
presented – on reconsideration of matter, court finding that court hearing
original matter would still have granted the order it did even with the information
provided by the respondents in the reconsideration application – the court held
that there are no merit in any of the le gal objections raised to the granting of the
ex parte order – the court exercised its wide discretion against reconsidering
and setting aside the ex parte order –
Reconsideration application in terms of Uniform Rule of Court 6(12)(c)
dismissed.
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ORDER
(1) In terms of Uniform Rule of Court 42(1)(b), the Order of this Court (per
Wright J) dated 14 April 2026 is varied / amended by the deletion in its
entirety of prayer 8 (prayer 9 of the original Court Order ) thereof and by
the substitution thereof by the following prayer: -
‘(8) Prayers 2, 3, 4, 5, 6 and 7 shall operate as a rule nisi, returnable on 19 May
2026 (on the Unopposed Motion Court), for the respondents to show cause
why the provisional relief sought therein should not be made final.’
(2) Mr Ridwaan Mohamed is granted leave to intervene in the se proceedings
under the above case number 2026 -082648 and he be and is hereby
joined as the fifth respondent.
(3) The first, second, third and fifth respondents’ application for a
reconsideration in terms of Uniform Rule of Court 6(12)(c) of the O rder of
this Court (per Wright J) dated 14 April 2026 be and is hereby dismissed,
with costs.
(4) The rule nisi issued by this Court on the aforementioned date be and is
hereby confirmed and prayers 2, 3, 4, 5, 6 and 7 of the said Order (prayers
2, 3, 5, 6, 7 and 8 of the original Order) be and are hereby made final.
(5) The first, second, third and fifth respondents, jointly and severally, the one
paying the other to be absolved, shall pay the first and the second
applicants’ costs of this opposed reconsideration application, including the
costs of the ex parte application, which were reserved by Wright J on 14
April 2026, and Counsel’s costs on scale ‘C’ of the tariff referred to in
Uniform Rule of Court 67A(3), read with rule 69.
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JUDGMENT
Adams J:
[1]. On 14 April 2026 this Court (per Wright J) granted an ex parte order, on
an urgent basis, in favour of the first and the second applicants in effect
preserving the cash and other assets of the first applicant against dissipation by
the first, second and third respondents. Interdictory and other ancillary relief
were also granted. The order reads as follows: -
‘(1) Applicant’s non -compliance with the rules of the Court relating to service and
time periods, including the Practice Manual and Directives of this Division,
particularly as it applies to the enrolment of urgent applications for hearing on
Tuesdays at 10h00 , is condoned, and the application is enrolled on an urgent
basis, in terms of Rule 6(12) of the Uniform Rules of Court.
(2) The first respondent is interdicted and restrained, in his capacity as director of
first applicant, from misappropriating the first applicant’s assets and corporate
opportunities without the express approval of the board of directors until the
return date.
(3) The first respondent is interdicted and restrained from transacting on, disposing
from, dissipating from and transferring from the following bank account held at
the following financial institution: First National Bank Account with Account
Number: 6271 468 7095; Account Holder: Eclectic Projects (Pty) Ltd.
(4) The aforementioned financial institution , at which is held the bank account
referred to in para 3 above, is ordered to provisionally freeze the bank account
with immediate effect pending the launch of an action for recovery of monies.
(5) The first and second respondents are ordered to provide bank statements
relating to the bank account referred to in para 3 above for the period from
1 January 2024 to date.
(6) The applicants are authorized to appoint an independent forensic auditor for the
purpose of quantifying the misappropriated funds, tracing the flow of diverted
revenue and determining the extent of financial prejudice suffered by the first
revenue and determining the extent of financial prejudice suffered by the first
applicant and preparing a report for purposes of recovery proceedings.
(7) The applicants are authorized to approach South African Banks and other
Financial Institutions to ascertain whether the first and the second respondents
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have bank accounts held with them and are authorized to obtain bank statements
for the aforementioned bank accounts.
(8) That prayers 2, 3 and 4 operate as a rule nisi, returnable on 19 May 2026 (on the
Unopposed Motion Court), for the respondents to show cause why the relief
sought therein should not be granted.
(9) Costs of this urgent ex parte application are reserved.’1
[2]. On 22 April 2026 Wright J gave written reasons for the aforesaid ex parte
order granted by him. He also indicated that prayer 5 (prayer 6 in the original
court order ), o rdering the first and second respondents to provide bank
statements relating to the bank account of Eclectic Projects (Pty) Limited, for
the period from 1 January 2024 to date , was erroneously granted in final form
when it should have been granted a s part of the rule nisi, returnable on 19 May
2026. So too, so Wright J held, p rayer 6 (the original prayer 7) , which ordered
the applicants to appoint an independent forensic auditor to Investigate. This
prayer, which was granted as it was against the applicants rather than against
the respondents, was granted as final relief but should have been part of the
rule nisi. Ditto prayer 7 (the original prayer 8), which authorised the applicants to
approach the relevant banks to ascertain whether or not the first and second
respondents have bank accounts and to obtain bank statements. This order
was granted as final relief but , so Wright J held, it should have formed part of
the rule nisi.
[3]. So, in sum, Wright J indicated in no uncertain terms that all of the above
prayers 2, 3, 4, 5, 6 and 7 should have been granted provisionally, and not
finally, as part and parcel of the rule nisi, returnable on 19 May 2026. Wright J
confirmed that the ‘error was [his]’. He was, however, not prepared to vary the
order absent agreement by all of the affected parties. In my view, Wright J’s
order can and should be varied i n terms of Uniform Rule of Court 42(1)(b) and I
order can and should be varied i n terms of Uniform Rule of Court 42(1)(b) and I
therefore intend granting at the very least a variation order to correct the patent
error in the said order.
1 Here the Court Order has been renumbered so that it reads sequentially. In certain parts, the order has
also been reworded from the original order (base d on a draft order provided by the applicants to
Wright J), to correct obvious typographical and grammatical errors.
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[4]. In this urgent application, which came before me in the Urgent Court on
Tuesday, 19 May 2026, the first, second and third respondents apply in terms of
the provisions of Uniform Rule of Court 6(12)(c) for a reconsideration and a
setting aside of the said order. Rule 6(12)(c) reads as follows:
'A person against whom an order was granted in his absence in an urgent application
may by notice set down the matter for reconsideration of the order.'
[5]. The second applicant (Mr Segolodi) and the first respondent (Mr Sehona)
are co-directors of and co -shareholders in the first applicant (BTW x Eclectic).
At some point, they were also co -directors of the second respondent (Diketo
Network), which previously traded as Eclectic Projects (Pty) Limited. However,
Mr Segolodi alleges that he was recently surreptitiously removed as director of
the said company by Mr Sehona , who appointed his wife, the third respondent,
as the new director of the said company. Diketo Network, as will be seen later
on in this judgment, played an important part in the applicants’ cause. The said
company is, by all accounts, controlled by Mr Sehona and used by him, so it is
alleged by Mr Segolodi, to divert from BTW x Eclectic assets and opportunities,
thus severely prejudicing the said company and its shareholders.
[6]. The ex parte order was applied for and obtained on the basis of
allegations by Mr Segolodi that Mr Sehona is unlawfully misappropriating
money from BTW x Eclectic and diverting business opportunities from the said
company to himself or to Diketo Network. In his founding affidavit in support of
the ex parte application and a subsequent supplementary founding affidavit,
substantial detail is provided by Mr Segolodi on all aspects of the matter. About
the aforegoing there appears to be very little dispute even after the first to third
respondents filed their present reconsideration application.
[7]. The first, second and third respondents apply for a reconsideration and a
[7]. The first, second and third respondents apply for a reconsideration and a
setting aside of the ex parte Order of Wright J on the basis of a number of legal
points. The said Order should never have been granted , so it is contended on
behalf of the said respondents, because the applicants failed to make out a
case for ex parte relief.
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[8]. The respondents, in particular, contend firstly that it is clear from the
correspondence between the parties during early April 2026, as well as from the
settlement discussions between the parties during that period, that the first
respondent had already been informed by the applicants that he would need to
repay the allegedly diverted money back to the company. Since the applicants
had communicated this to the first respondent well before the institution of their
application, so the contention goes, there can be no suggestion that giving
notice of the first applicant’s intention to claim those moneys would defeat the
claim it seeks to pursue. In fact, the first and second applicants had already
given such notice to the respondents before launching this application.
[9]. Second, the first respondent had indicated months before the ex parte
proceedings were instituted that he intended to pay the amount found to be due
to the company and would repay it. The first respondent’s conduct in the
months leading up to the ex parte application, so it is argued by the
respondents, suggested that there was no risk that the third respondent would
seek to frustrate or evade any claim the first applicant may have against him in
respect of the allegedly diverted company funds.
[10]. Furthermore, the respondents contend that the applicants did not make
out a case for the anti -dissipation interdict on the evidence. More to the point,
the respondents submit that the founding affidavit does not mention any
intention to dissipate funds to frustrate the claim. Since the founding affidavit
does not support the cause of action relied on by the applicants, the order
granted based on that founding affidavit ought to be set aside.
[11]. The further point raised by the respondents is that the interdictory relief
granted in favour of the applicants is vague and unenforceable and should
never have been granted. Th e relief , so the contention goes, is essentially a
never have been granted. Th e relief , so the contention goes, is essentially a
prohibition on the first respondent from misappropriating the first applicant’s
assets and corporate opportunities. The interdict does not provide any detail on
what is permitted or prohibited, with no clear parameters to help the
respondents and the applicants measure compliance wit h the order. In effect,
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the interdict is simply a restatement of the general prohibition against directors
misappropriating a corporation’s corporate opportunities. That is not an
appropriate way to frame the relief sought.
[12]. Lastly, the respondents argue that the applicants have established no
entitlement to the investigatory relief granted to it. Such relief sought is,
according to the respondents, impermissible. There are also other legal
objections raised to the granting of the ex parte order, to which I return later.
[13]. The issue to be decided in this application is therefore simply whether
there is any merit in any of the legal technical points raised by the respondents
in support of their claim for a reconsideration of the Order of Wright J. That
issue is to be decided against the factual backdrop of the matter and having
regard to the authorities relating to reconsideration applications. In that regard,
the salient relevant facts, as set out later on in this judgment, are by and large
common cause. Importantly, the first, second and third respondents do not
seriously challenge, nay, they do not challenge at all the allegations by the
applicants that the first respondent, through the medium of the second
respondent, has misappropriated the first applicant’s funds and diverted assets
and business opportunities of the company to himself and for his benefit.
[14]. Before I deal with the issues implicated in the matter, I need to address
an interlocutory application by a Mr Ridwaan Mohamed, who applies for leave
to intervene in these proceedings. I now turn my attention briefly to that
application.
[15]. Mr Ridwaan Mohamed , who claims to be a 33.33% co -shareholder in
BTW x Eclectic, applies for leave to intervene in the se proceedings and, on
similar bases as those of the first to third respondents, also applies for
reconsideration and the setting aside of the Wright J Order. In support of his
assertion that he is a shareholder in the said company, he relies on written
assertion that he is a shareholder in the said company, he relies on written
communications from the other two shareholders, notably Mr Segolodi, in which
it is acknowledged that he is indeed a shareholder, having purc hased his
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shareholding from the company directly. The official company registration
documents, however, do not bear this out as, according to the Companies and
Intellectual Property Commission (CIPC), the only two shareholders in the
company are Mr Segolodi and Mr Sehona. Moreover, he was party to the
settlement negotiations during April 2026, when discussions were held between
him and Messrs Segolodi and Sehona, qua shareholders of the company, with
a view to resolving the dispute between the latter two arising from the
misappropriation by Mr Sehona of the company funds.
[16]. Although Mr Segolodi disputes Mr Mohamed’s shareholding, I accept, for
purposes of this intervention application, that he was indeed a shareholder,
which means that the ex parte Order directly affects his rights and interests as a
shareholder. This means that, on the basis of the trite principles relating to the
intervention by a party in proceedings, he is entitled to leave to intervene.
[17]. Uniform Rule of Court 12, read with Rule 6(14), permits a person entitled
to join as a plaintiff or liable to be joined as a defendant to apply, on notice to all
parties and at any stage, for leave to intervene. Rule 6(14) makes Rules 10 to
14 applicable to applications. The Court may make such order and give such
directions as to further procedure as it considers appropriate.
[18]. The standard is whether the applicant has a direct and substantial
interest in the subject matter and the outcome of the proceedings, being an
interest in the right which is the subject of the litigation and which may be
prejudicially affected by the judgment or order. The principle is reflected in the
classic joinder and intervention jurisprudence, including Amalgamated
Engineering Union v Minister of Labour2.
[19]. I therefore intend granting Mr Mohamed leave to intervene in the
proceeding. I also intend ordering him to be joined as the fifth respondent in the
ex parte application.
ex parte application.
2 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A),
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[20]. As I have already indicated, Mr Mohamed also applies for a
reconsideration and the setting aside of the Wright J Order on grounds similar
to those on which the first to third respondents base their application for the
reconsideration and setting aside of the said Order. I deal with those grounds as
part and parcel of the first to third respondents’ reconsideration application.
[21]. That brings me back to the respondents’ reconsideration application, the
authorities relating to reconsideration applications in general and the facts in the
matter.
[22]. This court (per Farber AJ), in dealing with Rule 6(12)(c), held as follows
in ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others3:
'The framers of Rule 6(12)(c) have not sought to delineate the factors which might
legitimately be taken into reckoning in determining whether any particular order falls to
be reconsidered. What is plain is that a wide discretion is intended. Factors relating to
the reasons for the absence of the aggrieved party, the nature of the order granted and
the period during which it has remained operative will invariably fall to be considered in
determining whether a discretion should be exercised in favour of the aggrieved party.
So, too, will questions relating to whether an imbalance, oppression or injustice has
resulted and, if so, the nature and extent thereof, and whether redress can be attained
by virtue of the existence of other or alternative remedies. The convenience of the
protagonists must inevitably enter the equation. These factors are by no means
exhaustive. Each case will turn on its facts and the peculiarities inherent therein.'
[23]. In the same vein, Wepener J in Oosthuizen v Mijs4 held as follows: -
'I am of the view that a court that reconsiders any order should do so with the benefit
not only of argument on behalf of the party absent during the granting of the original
order but also with the benefit of the facts contained in affidavits filed in the matter.'
order but also with the benefit of the facts contained in affidavits filed in the matter.'
[24]. In Ghomeshi-Bozorg v Yousefi 5, Nugent J explained the nature of
reconsideration proceedings as follows:
3 ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others 1996 (4) SA 484 (W) at 487B.
4 Oosthuizen v Mijs 2009 (6) SA 266 (W) at 269I-J.
5 Ghomeshi-Bozorg v Yousefi 1998 (1) SA 692 (W) at 696C-G.
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‘It must be borne in mind too that an order granted ex parte is by its nature provisional,
irrespective of the form which it takes. Once it is contested and the matter is
reconsidered by a court, the plaintiff is in no better position in other respects than he
was when the order was first sought. (Banco de Moçambique v Inter Science Research
and Development Services (Pty) Ltd 1982 (3) SA 330 (T) at 332B -D) and there is no
reason why he should be in a better position in this respect merely because the
defendant was unaware that he was called upon to submit to the court's jurisdiction for
the purpose of an impending action. The court at that stage considers the matter afresh
to decide whether to permit the attachment to continue, and in my view the matter falls
to be decided as if the attachment was first being applied for. If the respondent has by
then submitted to the jurisdiction, I can see no reason why the matter should not be
dealt with in the same manner as if the order was first being applied for.’
[25]. The first to the third respondents contend that there are two separate
reasons why this application should not have been brought and granted on an
ex parte basis.
[26]. First, they say that it is clear from the correspondence between the
parties during early April 2026, as well as from the settlement discussions
between the parties during that period, that the first respondent had already
been informed he would need to repay the allegedly diverted money back to the
company. Since the applicants had communicated this to the first respondent
well before the institution of their application, so the contention goes, there can
be no suggestion that giving notice of the first ap plicant’s intention to claim
those moneys would defeat the claim it seeks to pursue.
[27]. Secondly, these respondents argue that the first respondent had
indicated months before the ex parte proceedings were instituted that he
indicated months before the ex parte proceedings were instituted that he
intended to pay the amount found due to the company and would repay it. The
first respondent’s conduct in the months leading up to the ex parte application
suggested there was no risk that he would seek to frustrate or evade any claim
the first applicant may have against him in respect of the allegedly diverted
company funds.
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[28]. I disagree. The point is that the applicants engaged the respondents with
a view to finding an amicable solution for the dispute which had arisen between
the parties as a result of the discovery by the applicants of the misappropriation
of company funds by the first respondent. During the settlement discussions, it
became apparent to the applicants that the first respondent was not negotiating
in good faith and was not playing open cards. In fact, the indications were that
the first respondent was not being candid during his engagements with the
applicants, which gave rise to the reasonable suspicion that he was simply
buying time to afford himself an opportunity to syphon off the proceeds of his ill -
gotten gains. And it was for this reason that the applicants, reasonably so,
decided to launch the ex parte application on an urgent basis.
[29]. These two objections raised by the respondents therefore lack merit and
falls to be rejected. The aforegoing was also confirmed by the findings on behalf
of the applicants by the Forensic Auditors, whose report confirmed that the first
respondent had all but completely depleted the available funds standing to the
account of the second respondent.
[30]. I also do not accept the contention on behalf of the respondents that the
applicants ought to have brought to the attention of Wright J the aforegoing
facts when they sought the order on an ex parte basis. The applicants indeed
made reference in their supplementary founding affidavit to the settlement
discussions. They were under no obligation to provide every minute detail of the
settlement discussions. The simple point is that they told the Court in the ex
parte application of the fact that the first resp ondent had misappropriated
company funds and thereafter engaged in discussions with a view to settling the
resultant dispute, but it turned out that the discussions were not conducted bona
fide.
[31]. The respondents also argue that the applicants failed to make out a case
fide.
[31]. The respondents also argue that the applicants failed to make out a case
for the anti -dissipation order, which constitutes a Knox D’Arcy -style interdict
which prevents the second respondent from making use of its bank accounts,
as is their ordinary legal entitlement. The reference to Knox D’Arcy is a
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reference to Knox D’Arcy v Jamieson 6, in which the Appellate Division provides
a remedy where an applicant has demonstrated his entitlement to an interim
interdict by establishing : (a) a claim against a respondent; and (b) that the
respondent is concealing or dissipating assets with the intent of frustrating the
claim. The AD also laid down the principle that an applicant claiming an anti -
dissipation interdict must in addition to showing the existence of the debt giving
rise to the claim against the respondent, also demonstrate that the respondent
intends to dispose of the assets in question.
[32]. In casu , the respondents contend that the applicants have failed to
comply with these requirements. In particular, so the respondents submit, the
applicants have not proven that the first respondent is not just concealing
assets but doing so with the intention of evading any claim to be brought
against it by the applicants. The affidavits, so the argument goes, clearly show
that the first respondent, quite apart from not intending to evade any claim, has
indicated a willingness to repay any amount found to be due to the first
applicant. In any event, the affidavits show that the funds in question have been
in the second respondent’s receipt since at least April 2024, as known to the
second applicant. Where more than two years have passed since those funds
were received, it cannot reasonably be argued that an urgent interdict seeking
to restrain the movement of those funds will provide effective relief to the
applicants. Importantly, this fact was not brought to the attention of Wright J
when the ex parte order was sought, and it constitutes a material
misrepresentation of a critical element of the applicant’s case.
[33]. There is no merit in this contention by the respondents. What the first
respondent says and what he does are worlds apart. He purported to be
desirous to settle the dispute with the applicants. However, he failed miserably
desirous to settle the dispute with the applicants. However, he failed miserably
in engaging constructively during the settlement discussions. He, in particular,
was not candid in making disclosure to the applicants of particulars relating to
the amounts misappropriated. The reason for the aforegoing became
6 Knox D’Arcy v Jamieson 1996 (4) SA 348 (A).
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abundantly clear when the applicants’ Forensic Auditor discovered that the first
respondent was in fact depleting on a continuous basis the funds which he had
diverted into the bank accounts of the second respondent.
[34]. This legal point therefore also falls to be rejected.
[35]. There is similarly no merit in the respondents’ claim that the injunctive
relief granted in the order is vague and unenforceable, and it should never have
been granted. In my view, there is nothing vague about the order interdicting the
respondents from misappropriating the first applicant’s assets and corporate
opportunities. The contention that the interdict supposedly does not provide any
detail on what is permitted or prohibited, with no clear parameters to help the
respondents and the applicants measure compliance with the order , is
singularly untenable, if regard is had to the facts which formed the basis of the
ex parte application and the order granted. The simple point is that the
respondents are interdicted from doing what they have been doing, that being to
misappropriate funds which should be going to the first applicant and diverting
business opportunities away from the first applicant for the benefit of the first
respondent – as has been done up to now.
[36]. This objection should therefore also be rejected.
[37]. The respondents furthermore contend that the applicants have
established no entitlement to the investigatory relief granted to it. The applicants
were not entitled to apply on an ex parte basis, for access to certain documents
to help identify and conceptualise their own future claim against the first
respondent. That is not permitted , so the respondents argue. There is,
according to the respondents, no legal basis for such relief.
[38]. I disagree. There has, in recent times, been a development of the
common law relating to the granting of such investigatory relief and disclosure
of documents by third parties before the commencement of litigation. In that
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regard, see Nampak Glass (Pty) Ltd v Vodacom (Pty) Ltd and Others 7, in which
this Court (per Unterhalter J) held that an applicant, in an urgent application,
can and should be granted an order that third parties provide it with information
that could assist it in identifying wrongdoers to enable it to institute an action
against them. At paras 2 and 3, the Court held as follows: -
‘[2] This application is somewhat novel. It seeks the assistance of the courts to gain
access to information, held by third parties, in advance of any litigation having
been instituted, in order to determine the identity of prospective defendants. An
order of this kind does, however, bear a certain family resemblance to the Anton
Piller order that preserves evidence in advance of the institution of substantive
litigation.
[3] It would seem a matter of common sense that there may be circumstances in
which an applicant needs the assistance of the courts, not simply to preserve
evidence, but to obtain information for the purposes of determining the identity of
wrongdoers so that proceedings may be brought against them. But our courts
have not been inclined to grant orders of this kind. Appeals to procedural
pragmatism have not prevailed in the face of the absence of clear authority at
common law that such orders may be granted. Nor do the Rules of Court provide
for the disclosure of information to identify a defendant in advance of instituting
proceedings.’
[39]. On the basis of this authority, I therefore reject this ground for the
reconsidering application.
[40]. There is one other objection to the ex parte order raised in particular by
the intervening party. That relates to Mr Segolodi’s authority to act on behalf of
BTW x Eclectic and the applicable of s 165 of the Companies Act.
[41]. Mr Mohamed contends that Mr Segolodi’s claim is that of the company
and he had to have recourse to s 165 of the Companies Act, relating to
and he had to have recourse to s 165 of the Companies Act, relating to
derivative actions, as he purports to act in the company’s interests and that of
shareholders (the latter of which is a reflective loss claim and the claim of the
company).
7 Nampak Glass (Pty) Ltd v Vodacom (Pty) Ltd and Others 2019 (1) SA 257 (GJ).
16
[42]. He failed to follow the procedure prescribed by s 165, so the contention
goes. Moreover, Mr Segolodi, according to Mr Mohamed, was not authori sed to
act on behalf of BTW x Eclectic as the resolution purporting to authorise him to
act herein on behalf of the said company was wholly defective as it did not
comply with the Memorandum of Incorporation of the company. For this reason
alone, so it is argued on behalf of Mr Mohamed, the ex parte order should be
reconsidered and set aside.
[43]. Section 165 , so the argument on behalf of the intervening party
continues, is the statutory derivative-action mechanism for companies under the
Companies Act 71 of 2008 . I t allows a shareholder or director to cause
proceedings to be brought in the company’s name where those controlling the
company will not act against alleged wrongdoing or misappropriation. It is the
appropriate mechanism because the harm in such cases is ordinarily suffered
by the company, the statute abolishes the common -law derivative action for
companies, and the courts have treated s 165 as the correct, exclusive route
subject to judicial safeguards. Section 165 applies , so the contention goes,
where the company has a cause of action, but the company itself is unwilling or
unable to enforce it, typically because the alleged wrongdoers control or
influence the company’s decision-making.
[44]. This argument on behalf of the intervening party is misguided as it loses
sight of the fact that the second applicant act herein also in his capacity as a
director of the first respondent as well as in his capacity as a shareholder of the
said company. His actions are directed at ensuring that he performs his
fiduciary duties qua director of the company. He also has an interest in his
capacity as a shareholder to protect his interest as such and to ensure that he is
not prejudiced by the conduct of the first respondent, his co-director.
[45]. For this reason, the aforesaid legal objection raised on behalf of the
[45]. For this reason, the aforesaid legal objection raised on behalf of the
intervening party also falls to be rejected.
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[46]. There are other points raised on behalf of the intervening, which, as I
have indicated above, overlap to a certain extent with the points raised by the
first to third respondents. All of these points are singularly without merit and I
reject them all out of hand.
[47]. Moreover, as was held in ISDN Solutions (Pty) Ltd v CSDN Solutions CC
and Others , referred to supra, a court reconsidering an ex parte order has a
wide discretion, and, in exercising that discretion, should have regard to factors
such as whether an imbalance, oppression or injustice has resulted . In the
exercise of my discretion in casu , the one aspect of the matter that weighs
heavily on my mind is the fact that , by all accounts, the first respondent
misconducted himself rather egregiously and breached the fiduciary duty he
owed to BTW x Eclectic by misappropriating the company’s monies.
[48]. For all of these reasons, I am of the view that the respondents’
application to have reconsidered and set aside the ex parte Order of this Court
dated 14 April 2026 should be dismissed. As for costs, the general rule that the
costs should follow the suit should find application.
Order
[49]. In the result, I make the following order:
(1) In terms of Uniform Rule of Court 42(1)(b), the Order of this Court (per
Wright J) dated 14 April 2026 is varied / amended by the deletion in its
entirety of prayer 8 (prayer 9 of the original Court Order) thereof and by
the substitution thereof by the following prayer: -
‘(8) Prayers 2, 3, 4, 5, 6 and 7 shall operate as a rule nisi, returnable on 19 May
2026 (on the Unopposed Motion Court), for the respondents to show cause
why the provisional relief sought therein should not be made final.’
(2) Mr Ridwaan Mohamed is granted leave to intervene in the se proceedings
under the above case number 2026 -082648 and he be and is hereby
joined as the fifth respondent.
19
HEARD ON: 19 May 2026
JUDGMENT DATE: 2 July 2026 – Judgment handed down
electronically
FOR THE FIRST and
SECOND APPLICANTS: Pumezo Vabaza
INSTRUCTED BY: S Matlou Attorneys Incorporated,
Centurion, Pretoria
FOR THE FIRST to
THIRD RESPONDENTS: Suhail Mohammed
INSTRUCTED BY: Laher Attorneys,
Rosebank, Johannesburg
FOR THE INTERVENING PARTY: Yacoob Alli
INSTRUCTED BY: ZI & Co Incorporated, Johannesburg