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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 NO: CT02491ADJ/2025
In the matter between:
ANDRE ROHLANDT APPLICANT
And
MOYNENE BOUCHER RESPONDENT
Tribunal Panel:
K Dlepu - Chairperson
D Terblanche – Tribunal Member
N Cawe – Tribunal Member
Date of decision: 1 July 2026
DECISION AND REASONS – POINTS IN LIMINE
1. THE PARTIES
1.1 The Applicant, André Rohlandt, is a fifty percent (50%) shareholder and a
director of Vape Queen (Pty) Ltd (Registration No. 2018/593516/07) ("the
Company"). He brings this application in his capacity as a shareholder and
director of the Company.
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1.2 The Respondent, Moynene Boucher (de Jager) ID Number: 8 [… ], holds the
remaining fifty percent (50%) shareholding and is the other director of the
Company. She opposes the application in her personal capacity.
1.3 The parties were previously in a romantic relationship for approximately twelve
years. The relationship ended during late 2022 or early 2023. The breakdown of
their personal relationship forms the backdrop to the present commercial
dispute.
1.4 The Company is a private company duly incorporated in terms of the
Companies Act 71 of 2008, with registration number 2018/593516/07. It
operates retail vape stores. The Company is not cited as a party to these
proceedings, although the relief sought directly affects its assets, governance,
and operations.
2. THE APPLICATION AND RELIEF SOUGHT
2.1 The Applicant launched the present application before the Companies Tribunal
on or about 26 November 2025, seeking relief under section 163 of the
Companies Act 71 of 2008.
2.2 The Applicant alleges oppressive and unfairly prejudicial conduct by the
Respondent, including:
2.2.1 exclusion from governance of the Company, including removal from bank
accounts, communication groups, security systems, and the Company's
main computer system;
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2.2.2 unlawful attempts to remove him as a director of the Company without a
valid board or shareholder resolution, in contravention of section 71(2)
and (3) of the Companies Act;
2.2.3 financial mismanagement, including unauthorised personal loans totalling
R1,600,000 taken by the Respondent from the Company on 1 and 2 April
2025; payments totalling R1,377,649 with reference "TM & MM FEES"
without invoices or explanations; and other unexplained payments;
2.2.4 a coercive share purchase offer dated 8 December 2025, which made the
withdrawal of a criminal complaint a condition of the purchase of his
shares;
2.2.5 the Respondent's unilateral conduct in attempting to exclude him from
the financial management and governance of the Company.
2.3 The relief sought by the Applicant includes:
2.3.1 an order directing the Respondent to recognise the Applicant as a director
of the Company and to halt her oppressive conduct;
2.3.2 an order directing the Respondent to grant the Applicant access to all
Company financial records, computer systems, communication groups,
security systems and footage, and bank accounts;
2.3.3 an order restricting the Respondent from making further large
withdrawals, payments, or transfers from Company bank accounts without
the Applicant's consent, by implementing dual authorisation at the bank;
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2.3.4 an order directing the Respondent to repay to the Company the interest
lost on the R1,600,000 loan which was withdrawn without board
authorisation;
2.3.5 an order for the appointment of an independent auditor to audit all
expenses incurred and payments made from October 2024 to the present
date, including the "TM & MM FEES" payments and payments to Queen
Industries;
2.3.6 an order directing the Company to declare and pay dividends to the
shareholders;
2.3.7 an order directing the appointment of an independent valuer to conduct a
fair valuation of the Company;
2.3.8 an immediate interdict against the Respondent from taking any further
steps to exclude the Applicant from the financial management or
governance of the Company.
2.4 The Applicant originally sought urgent relief but subsequently conceded that
the matter could proceed in the ordinary course.
3. BACKGROUND TO THE APPLICATION
3.1 The Applicant was employed by the Company as a manager from October
2020. In November 2024, he was suspended following a sexual harassment
complaint by a female staff member. A disciplinary hearing was scheduled, but
the Applicant, through his attorney, notified the chairperson that he would not
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attend. The hearing proceeded in his absence, and he was found guilty and
dismissed.
3.2 The Applicant referred the dismissal to the CCMA, which found the dismissal to
be both procedurally and substantively fair. The Applicant has since taken the
CCMA award on review to the Labour Court.
3.3 Following the Applicant's suspension and dismissal, the Respondent took over
the day-to -day management of the Company and identified discrepancies
between cash-up sheets signed by the Applicant and amounts deposited into
the Company's bank account. The Respondent identified approximately R93,000
in unaccounted cash over the period January to October 2024. After the
Applicant made partial payments in late November 2024, the Respondent laid a
criminal complaint at the local police station in October 2025.
3.4 The parties attempted to resolve their disputes through attorney
correspondence, including a settlement offer by the Respondent in December
2025, which was conditional on the withdrawal of the criminal complaint. The
Applicant rejected the offer, characterising it as extortionate.
4. PLEADINGS FILED
4.1 The following papers and pleadings have been filed in this matter:
4.1.1 Form CTR 142 (Application for Relief) dated 24 November 2025;
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4.1.2 Form CTR 147 (Application for Condonation) dated 25 November 2025;
4.1.3 Founding Affidavit of the Applicant dated 25 November 2025, together
with Annexures "A" to "O";
4.1.4 Supplementary Affidavit of the Applicant dated 11 December 2025,
together with Annexures "Q", "R", and "S";
4.1.5 Answering Affidavit of the Respondent dated January 2026, together with
Annexures "MB1" to "MB21";
4.1.6 The Applicant's Heads of Argument dated 28 May 2026, together with
Annexures "T" to "BE";
4.1.7 The Respondent's Heads of Argument dated 2 June 2026;
4.1.8 The Applicant's Supplementary Affidavit dated 9 June 2026, together with
Annexures "BF", "BG", and "BH" (relating to Queen Industries);
4.1.9 The Applicant's Updated Heads of Argument dated 17 June 2026;
4.1.10 The Applicant's Confirmatory Affidavit (Annexure Z) filed on or about 26
May 2026.
4.2 The Tribunal notes that the Form CTR 142 and the supporting affidavits are
internally inconsistent regarding whether the Company or the Respondent is
the intended respondent. The Form CTR 142 names the Respondent as the
respondent. The Company is identified only as the "company" in the
"Concerning" section, but it is not cited as a respondent.
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4.3 The Tribunal further notes that the Company's Memorandum of Incorporation
("MOI") is not on the record. This hindered a definitive assessment of the
Company's governance structure, including the composition of its board.
4.4 The Respondent raised various points in limine in opposition to the application.
5. PROCEEDINGS BEFORE THE TRIBUNAL
5.1 The hearing proceeded on 26 June 2026, commencing with the parties’
submissions on the points in limine.
5.2 The Respondent was represented by Advocate Johan Malan, instructed by
Cronje Attorneys Inc. The Applicant appeared in person, self-represented.
5.4 The Tribunal noted that the Form CTR 142 and the supporting affidavits were
internally inconsistent about whether the Company or the director was the
intended respondent. The admissibility of affidavits and the question of proper
citation and jurisdiction remained unresolved at the conclusion of the hearing.
6. POINTS IN LIMINE RAISED BY THE RESPONDENT
6.1 Point in Limine 1: Invalidity of Affidavits
6.1.1 The Respondent submitted that the Applicant's founding affidavit and
supplementary affidavit are inadmissible because they lack the required
oaths and commissioner signatures under the Justices of the Peace and
Commissioners of Oaths Act 16 of 1963.
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6.1.2 The Respondent argued that the commissioning certificate does not
certify that the oath or affirmation was duly administered, nor that the
deponent acknowledged understanding the contents. The Commissioner's
designation and area of appointment are not stated with sufficient
particularity.
6.1.3 The Respondent further submitted that the Applicant's later filing of a
purported "confirmatory affidavit" (Annexure Z) was irregular and could
not cure the original defects. The confirmatory affidavit seeks to confirm
two documents that are not attached to it. A confirmatory affidavit cannot
retroactively supply an oath never administered. Furthermore, it was filed
without leave of the Tribunal.
6.1.4 The Respondent relied on the following authorities:
6.1.4.1 Moskovitz v Commercial Union Assurance Co of SA Ltd (applied
in Dique v Viljoen (14218/2007) [2007] ZAGPHC 206 (14
September 2007)) – The court held that a document which on its
face appears to be an affidavit, but where the deponent had not
taken an oath, had not affirmed its contents, and had not
acknowledged its correctness before a Commissioner of Oaths,
notwithstanding that a Commissioner had signed it, is not an
affidavit in law and is not in substantial compliance with the statutory
requirements.
6.1.4.2 S v Munn 1973 (3) SA 734 (NC) – Non-compliance does not
automatically invalidate an affidavit where there is substantial
compliance with the formalities in such a way as to give effect to the
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purpose of the Act. The Respondent submitted that no such
substantial compliance exists in this case.
6.1.4.3 Nhlanhla Mdakane and Others v Kwadukuza Municipality and
Others (2026/040712) [2026] ZALCD 11 (2 March 2026) – The
Labour Court confirmed that where a founding affidavit is invalid, the
court is left with no evidentiary basis upon which to exercise its
powers. Problems with how an affidavit is witnessed go to the heart
of an application and cannot be dismissed as mere technicalities. The
required sequence—that the deponent signs in the presence of the
Commissioner and that the Commissioner administers the oath
before signature—is not optional.
6.1.5 The Respondent also submitted that the Law of Evidence Amendment Act
45 of 1998 does not assist the Applicant, as it deals with admissibility of
evidence, not the validity of affidavits.
6.2 Point in Limine 2: Wrong Party Cited
6.2.1 The Respondent submitted that the Applicant has cited the wrong party.
The Respondent is cited in her personal capacity, yet every substantive
order the Applicant seeks binds the Company as a juristic person. The
relief sought includes access to company financial records, restriction on
company bank transactions, appointment of an auditor at company
expense, and the declaration of dividends.
6.2.2 The Respondent argued that a director, in her personal capacity, does not
own company assets, does not personally control company bank accounts,
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cannot unilaterally implement governance mechanisms, and cannot be
compelled by personal order to perform acts that vest in the company.
6.2.3 The Respondent relied, amongst others, on the following authorities:
6.2.3.1 Golden Harvest (Pty) Ltd v Zen -Don CC 2002 (2) SA 653 (O) –
This case distinguishes between a misnomer (incorrect description
of the right party, curable by amendment) and the citation of the
wrong party (a fundamentally different legal person, not curable
by amendment). The Respondent submitted that this is a case of
the wrong party, not a misnomer.
6.2.3.2 Pule and Another v Minister of Police (1575/2023) [2025]
ZANWHC 104 (20 June 2025) – The High Court held that the
non-citation of a party against whom an adverse order is sought is
not a matter of form but of substance. It goes to the heart of
everyone's right to defend themselves and to access courts.
Service on an uncited party does not cure the defect. Only proper
citation brings a party before the court.
6.2.4 The Respondent further submitted that section 66(1) of the Companies Act
confirms that the business and affairs of a company must be managed by or
under the direction of its board, which acts on behalf of the company. Orders
affecting governance must be directed at the company itself.
6.3 Point in Limine 3: Jurisdiction under Section 163
6.3.1 The Respondent submitted that the Companies Tribunal lacks jurisdiction
to consider the application and to grant relief the Applicant seeks under
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section 163 of the Companies Act because that section provides that a
shareholder "may apply to a court" for relief.
6.3.2 The Respondent argued that the Tribunal is not a "court" within the
meaning of the Superior Courts Act and does not possess the inherent
jurisdiction or the just-and-equitable remedial discretion that characterises
the High Court under section 21 of the Superior Courts Act. The Tribunal's
powers are confined to those expressly conferred by sections 180 to 195
of the Act.
6.3.3 When questioned by the Tribunal, counsel confirmed that he was
advancing both a jurisdictional objection (that the Tribunal cannot
entertain a section 163 application at all) and a competency objection
(that the Tribunal cannot grant the specific structural relief sought). He
clarified that the two contentions were advanced in the alternative.
6.3.4 The Respondent relied on the following authorities:
6.3.4.1 Technology Corporate Management (Pty) Ltd v De Sousa
and Another [2024] ZASCA 29; 2024 (5) SA 57 (SCA) – The
SCA dismissed an oppression claim brought by a director who
had been dismissed in acrimonious circumstances, whose
CCMA claim had failed, and who alleged systematic exclusion
from management. The Respondent submitted that this case
demonstrates that section 163 relief is not available where the
applicant's exclusion flows from his own conduct.
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6.3.4.2 The Respondent also relied on general principles of statutory
interpretation, submitting that the Tribunal cannot exercise
powers not expressly conferred upon it by the Companies Act.
7. SUBMISSIONS BY THE APPLICANT ON POINTS IN LIMINE
7.1 Submissions on Point in Limine 1: Invalidity of Affidavits
7.1.1 The Applicant acknowledged that the founding affidavit was not signed in
the presence of the Commissioner of Oaths. He conceded that this was an
error on his part.
7.1.2 He asked the Tribunal to accept the affidavit and to waive the
commissioning requirement.
7.1.3 He did not, however, provide any explanation for why the documents were
not properly commissioned. He did not file a formal application for
condonation.
7.1.4 He did not file an explanatory affidavit from the Commissioner. He simply
requested that the Tribunal overlook the defect.
7.1.5 The Applicant also relied on his confirmatory affidavit (Annexure Z) to cure
the defect, but he did not explain how a confirmatory affidavit could
retroactively cure an invalid founding affidavit.
7.2 Submissions on Point in Limine 2: Wrong Party Cited
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7.2.1 The Applicant submitted that he had cited the Company in the Form CTR
142.
7.2.2 He argued that because there are only two directors of the Company, and
because it was the Respondent, not the Company, who blocked his access
to financial information, he did not regard the failure to cite the Company
as fatal to his application.
7.2.3 He submitted that the Company acts through its directors and that
naming the Respondent was sufficient.
7.3 Submissions on Point in Limine 3: Jurisdiction under Section 163
7.3.1 The Applicant submitted that he was self -represented and that he
genuinely believed the Tribunal had jurisdiction over his complaint
because the Company has only two directors, which matters ought to be
dealt with by the Companies Tribunal.
7.3.2 He alleged that when he submitted his complaint to CIPC, he asked for
guidance and was not advised about any jurisdictional issues.
7.3.3 He requested that the Tribunal waive his non -compliance with procedural
requirements.
7.3.4 He submitted that the Tribunal should exercise its discretion in his favour
because he is a layperson who made an honest mistake.
8. ANALYSIS AND ASSESSMENT OF PARTIES' SUBMISSIONS
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8.1 Point in Limine 1: Invalidity of Affidavits
8.1.1 The Tribunal has carefully considered the submissions of both parties on
the validity of the Applicant's affidavits.
8.1.2 The requirements for the commissioning of affidavits are set out in the
Justices of the Peace and Commissioners of Oaths Act 16 of 1963 and the
Regulations promulgated thereunder, in particular Regulation 4 of the
Regulations Governing the Administration of an Oath or Affirmation.
8.1.3 Regulation 4 requires, inter alia, that:
8.1.3.1 the deponent signs the affidavit in the presence of the
Commissioner of Oaths;
8.1.3.2 the Commissioner certifies that the deponent acknowledged
understanding the contents of the affidavit;
8.1.3.3 the oath or affirmation be duly administered; and
8.1.3.4 the Commissioner state clearly his or her full name, designation,
office held, and area of appointment.
8.1.4 In Moskovitz v Commercial Union Assurance Co of SA Ltd (applied in
Dique v Viljoen (14218/2007) [2007] ZAGPHC 206 paragraph 14 (14
September 2007)), the court held that a document which on its face
appears to be an affidavit, but where the deponent had not taken an oath,
had not affirmed its contents, and had not acknowledged its correctness
before a Commissioner of Oaths, notwithstanding that a Commissioner
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had signed it, is not an affidavit in law and is not in substantial compliance
with the statutory requirements.
8.1.5 The distinction is between a defect in the mechanics of commissioning
(which may be curable if substantial compliance is shown) and the
complete absence of oath -administration (which is incurable because
there is nothing to which substantial compliance can attach).
8.1.6 In this case, the re is no commissioning certificate certify ing that the oath
or affirmation was duly administered, nor that the deponent
acknowledged understanding the contents. , true and correct and binding
on his conscience. The Commissioner's designation and area of
appointment are not stated with sufficient particularity. These defects go
to the substance of whether any oath was administered at all.
8.1.7 The Applicant has acknowledged the defect. He did not, however, apply
for condonation, nor did he file an explanatory affidavit from the
Commissioner. He simply asked the Tribunal to "waive" the requirement.
The Tribunal cannot do so. The requirements of the Justices of the Peace
and Commissioners of Oaths Act are peremptory.
8.1.8 The Applicant's later filing of a document styled "Confirmatory Affidavit"
(Annexure Z) does not cure the defect. A confirmatory affidavit cannot
retroactively supply an oath that was never administered. The founding
affidavit of 25 November 2025 and the supplementary affidavit of 11
December 2025 were not valid affidavits when they were filed. A
subsequent affidavit confirming the "truth and correctness" of those
invalid documents cannot convert them into valid affidavits.
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8.1.9 Furthermore, the confirmatory affidavit is procedurally irregular, having
been filed without leave of the Tribunal. The Companies Tribunal Rules
permit only a founding affidavit, an answering affidavit, and a replying
affidavit. Any further affidavit requires prior leave of the Tribunal, which
the Applicant did not obtain.
8.1.10 In Nhlanhla Mdakane and Others v Kwadukuza Municipality and
Others (2026/040712) [2026] ZALCD 11 (2 March 2026) paragraph 18,
the Labour Court confirmed that where a founding affidavit is invalid, the
court is left with no evidentiary basis upon which to exercise its powers.
Problems with how an affidavit is witnessed go to the heart of an
application and cannot be dismissed as mere technicalities.
8.1.11 The Tribunal finds that the Applicant's founding affidavit and
supplementary affidavit are invalid and inadmissible. In the absence of a
valid founding affidavit, there is no application properly before the
Tribunal.
This point in limine is upheld.
On the above ground alone the Tribunal can dismiss the application, however the
engages Tribunal below with the further points in limine the Respondent raised.
8.2 Point in Limine 2: Wrong Party Cited
8.2.1 The Tribunal has considered the submissions of both parties on the
citation of the wrong party.
8.2.2 The law distinguishes three situations that must not be conflated:
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8.2.2.1 Misnomer: an incorrect description of the right party. Misnomers
are curable by amendment: Golden Harvest (Pty) Ltd v Zen -Don
CC 2002 (2) SA 653 (O).
8.2.2.2 Non -joinder: where the correct parties are cited but a necessary
third party has been omitted. Courts may grant joinder or decline
to make orders that would prejudice the absent party.
8.2.2.3 Wrong party: where the entity against whom the substantive orders
must operate is an entirely different legal person from the one
cited. This is the most serious category.
8.2.3 This case falls within the third category. The entity that owns the bank
accounts, employs the auditors, declares dividends, and holds the financial
records is the Company—not the Respondent personally. The Respondent
cannot be ordered to deliver what she does not own and cannot give.
8.2.4 A director, in her personal capacity, does not own company assets, does
not personally control company bank accounts, cannot unilaterally
implement governance mechanisms, and cannot be compelled by
personal order to perform acts that vest in the company.
8.2.5 The High Court in Pule and Another v Minister of Police (1575/2023)
[2025] ZANWHC 104 (20 June 2025) stated the governing principle: the
non-citation of a party against whom an adverse order is sought is not a
matter of form but of substance. It goes to the heart of everyone's right to
defend themselves and to access courts. The court is in no position to
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make an order against a party that was not cited. Service on an uncited
party does not cure the defect. Only proper citation does that.
8.2.6 The Applicant's argument that he "cited the company in Form CTR 142" is
correct, if the Tribunal considers only the CTR 142 form. The Form CTR 142
names the Company as the respondent. In the affidavit in support of the
application the Applicant describes the respondent as De Jager (Boucher).
The complete application consists of the CTR 142 and the supporting
founding affidavit which reflects an inconsistency on the filing.
8.2.7 Furthermore, the Applicant's own submission that it was the Respondent,
not the Company, who blocked his access to information confirms that he
sees the dispute as one with a fellow director, not with the Company as a
separate legal entity. That is a fundamental misunderstanding of company
law. A company is a separate juristic person with its own rights and
obligations, distinct from those of its directors.
8.2.8 Introducing the Company as a respondent now would not be an
amendment; it would be a substitution of one legal entity for a
fundamentally different one. No application for amendment has been
made, and no condonation has been sought. The defect stands uncured.
8.2.9 The Tribunal finds that the Applicant has cited the wrong party. The relief
sought is relief against the Company, not against the Respondent in her
personal capacity. The Company is not properly before the Tribunal. This
defect is fatal.
This point in limine is upheld.
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8.3 Point in Limine 3: Jurisdiction under Section 163
8.3.1 The Tribunal has considered the submissions of both parties on
jurisdiction. This is the most complex of the three points in limine.
8.3.2 Section 163(1) of the Companies Act provides:
"A shareholder or a director of a company may apply to a court for
relief if—(a) any act or omission of the company, or a related person,
has had a result that is oppressive or unfairly prejudicial to, or that
unfairly disregards the interests of, the applicant..."
8.3.3 The Respondent argues that because section 163 refers only to "a court,"
the Companies Tribunal lacks jurisdiction. The Tribunal agrees that it does
not have jurisdiction to entertain a section 163 application or the relief
available to an applicant under section 163. The Tribunal is a creature of
statute and can only exercise the powers and functions explicitly awarded
to it. Section 163(2) describes orders a "court" may make, including
structural orders that go to the determines the circumstances under which
a Division of the High Court may exercise jurisdiction and They are orders
that carry the coercive authority of a court and require the just-and -
equitable remedial discretion that attaches to superior court status under
section 21 of the Superior Courts Act.
8.3.4 The Applicant's reliance on the fact that he is self -represented and that he
was not advised about jurisdictional issues does not assist him. Ignorance
of the law does not excuse non-compliance with procedural requirements.
9. FINDINGS
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9.1 The Tribunal finds that the Applicant's founding affidavit dated 25 November
2025 and supplementary affidavit dated 11 December 2025 are invalid and
inadmissible by reason of non -compliance with the Justices of the Peace and
Commissioners of Oaths Act 16 of 1963. The Applicant has acknowledged the
defect but has failed to apply for condonation or provide an explanation. The
defects cannot be cured by a belated confirmatory affidavit filed without leave
of the Tribunal. In the absence of a valid founding affidavit, there is no
application properly before the Tribunal.
9.2 The Tribunal finds that the Applicant cited the wrong party. The relief sought
lies against the Company, not the Respondent in her personal capacity. Because
the Company is not properly before the Tribunal, the Respondent cannot, as a
director acting personally, be ordered to perform acts that belong to the
Company. This is not a mere misnomer, but the citation of a fundamentally
different legal person. No amendment or condonation has been sought, and
the defect is fatal.
9.3 The Tribunal finds that it lacks jurisdiction to hear the application and has no
power to grant the relief sought under section 163 of the Companies Act.
10. ORDER
10.1 The Tribunal makes the following order:
10.1.1 The Application is dismissed; and
10.1.5 The Applicant is ordered to pay the Respondent's costs.
DATED AT PRETORIA ON THIS 30
th DAY OF JUNE 2026.
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___________________________
D Terblanche
MEMBER OF THE COMPANIES TRIBUNAL
K Dlepu and N Cawe concurring.