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[2026] ZAGPJHC 738
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Zulu and Another v Mohavi Tech (Pty) Ltd and Others (2026/115932) [2026] ZAGPJHC 738 (27 May 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number: 2026-115932
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
27
May 2026
In the matter between:
DR
NOMALADY MILDRED
ZULU
First Applicant
ULTIMATE
GOAL INVESTMENTS
CC
Second Applicant
and
MOHAVI
TECH (PTY)
LTD
First Respondent
SME
MARKETING
CC
Second Respondent
MOHAVI
UGI MINING (PTY)
LTD
Third Respondent
THE
COMPANIES AND INTELLECTUAL PROPERTY COMMISSION
Fourth Respondent
JUDGMENT
CRUTCHFIELD J
[1]
The applicants, Dr Nomalady Mildred Zulu
and Ultimate Goal Investments CC, the first and second applicants
respectively, approach
this court urgently for the following relief,
essentially:
a.
That the first, second and third
respondents be interdicted from proceeding with or giving effect to a
meeting of shareholders of
the third respondent, Mohavi UGI Mining
(Pty) Ltd, scheduled to take place on Thursday, 28 May 2026, at
which it is proposed
to consider and pass a resolution to remove the
first applicant as a director of the third respondent in terms of
section 71(1)
and 71(2) of the Companies Act, 71 of 2008 (“the
Act”), and relief ancillary thereto.
[2]
The respondents, Mohavi Tech (Pty) Ltd and
SME Marketing CC, the first and second respondents respectively (“the
respondents”)
oppose the application both on urgency and in
respect of the substantive relief claimed by the applicants. The
third and fourth
respondents do not oppose or participate in the
application.
[3]
The
applicants rely in respect of the urgency of the application upon the
case of
East
Rock Trading 7 (Pty) Ltd & Another v Eagle Valley Granites (Pty)
Ltd & Others
[1]
.
The applicants submit that they complied with the requirements for
urgency articulated in
East
Rock
.
[4]
The notice in respect of the meeting in
terms of s71(1) of the Act was signed on 19 May 2026 in respect
of the meeting to be
convened on Thursday, 28 May 2026, a date
chosen by the respondents, leaving the applicants with only a short
period of time
in which to take action.
[5]
The applicants submit that the financial
freezing of the first applicant out of the financial affairs of the
company, the third
respondent, ordered by the KwaZulu-Natal High
Court, constrained the applicants’ ability to act sooner than
they did in launching
this application.
[6]
The applicants allege that if the
application is not heard before 28 May 2026, the applicants will
be unable to obtain substantial
redress in due course. In the
circumstances, the applicants contend that the matter is urgent as
envisaged in rule 6(12) of
the rules of this court.
[7]
The first and second respondents deny that
the application is urgent.
[8]
In order for the application to be
determined urgently, the applicants are obliged to demonstrate that
they will not be afforded
substantial redress at a hearing in due
course.
[9]
The first and second respondents seek to
remove the first applicant in terms of s71(1) and (2) of the Act.
There is no argument
that the first and the second respondents have
not complied with the provisions of s71(1) and (2) of the Act, in
terms of which
the shareholders, upon notice to the affected
director, may remove a director at a shareholders’ meeting by
way of an ordinary
resolution, being by way of a simple majority.
[10]
The first applicant has made
representations in advance of the convening of the meeting. Whilst
one does not know what the outcome
of the meeting will be, the Act
requires that the first applicant be permitted to present her case to
the shareholders prior to
the vote at the meeting. Assuming, pursuant
to the submissions of the applicants, that the shareholders’
majority does vote
against the first applicant and thus in favour of
the removal of the first applicant as a director, the first applicant
has remedies
available to her.
[11]
Those remedies include that the respondents
have undertaken to provide reasons after the vote. Thus, the
applicants can approach
this or any other court having jurisdiction,
in order to challenge the outcome of the meeting together with the
reasons of the
shareholders, assuming that there is a legal basis for
the first applicant to do so.
[12]
Secondly, the applicants have statutorily
entrenched remedies available to them in terms of s71(9) of the Act,
in the event that
the shareholders vote for the removal of the first
applicant at the meeting. Accordingly, there is statutorily
entrenched redress
available to the first applicant in terms of
s71(9) of the Act in the event that the vote goes against the first
applicant.
[13]
The
case law
[2]
is clear that an
impugned director is not entitled to reasons for the proposed removal
of the director by the shareholders prior
to the decision being taken
by the shareholders at the meeting.
[3]
In
addition,
Miller
is
relevant to the facts before me in that that court made clear that a
director serves at the behest of the shareholders.
[14]
The shareholders are entitled to remove a
director where they no longer support the director, as is allegedly
the situation in the
matter before me. In this regard, there are
allegations that the first applicant has been selling coal for her
personal benefit,
outside of the provisions of the joint venture
agreement concluded between the parties.
[15]
A director may not insist on remaining as a
director in circumstances where the shareholders, as in the case
before me, no longer
trust that the director can conduct the affairs
of the company as required.
[16]
Accordingly, the shareholders are entitled
in terms of s71(1) and (2) to take the steps provided in the Act for
the removal of the
first applicant as a director. They do not have to
give the applicants reasons in advance of the vote for the decision
to seek
the removal of the director at the meeting.
[17]
The
first applicant is not entitled to insist on remaining as a director
– there is no such right in the contracts before
me. The first
and second respondents are within their rights to proceed in terms of
s71(1) and 71(2) of the Act.
[4]
[18]
Assuming that the shareholders vote in
favour of the resolution for the removal of the first applicant as a
director at the meeting,
that will not result in the exclusion of the
first applicant from the management affairs of the company, This is
because the joint
venture agreement to which the first applicant is
party gives to the first applicant the right to nominate two
directors. Accordingly,
assuming that the the vote goes against the
first applicant and in favour of her removal as a director, that will
not give rise
to the spectre of exclusion of the first applicant from
the company as referred to in
East Rock
.
[19]
McMillan
NO v Pott & Others
[5]
is
distinguishable on the facts of
McMillan
from
the matter before me. Specific facts existed in
McMillan
that
served to preserve McMillan’s position within the company. The
equivalent is not the position in this matter before me.
[20]
Insofar
as the applicants relied on the case of
Mamokebe
Investments (Pty) Ltd v Sokhela & Others,
[6]
that the agreements relevant to this application are void, that is
not the case for determination on the papers before me.
[21]
In the circumstances, I am of the view that
the applicants have not demonstrated that they will not be afforded
substantial redress
in due course and the matter stands to be struck
from the roll for lack of urgency with costs.
[22]
As to the award of punitive costs, I do not
consider that punitive costs are warranted in this matter. However,
the issues are of
some complexity and the costs, including the costs
of counsel, will be on scale C.
[23]
In the circumstances, I grant the following
order:
1.
The application is struck off the roll for
lack of urgency with costs, including the costs of counsel, on
scale C.
CRUTCHFIELD J
JUDGE OF THE HIGH
COURT
JOHANNESBURG
For the Applicants: Adv
Forere instructed by Mthembu Sibanda & Associates.
For
the First and Second Respondents: Adv L Peter instructed by MVMT
Attorneys.
Date
of the hearing: 26 May 2026.
Date of the judgment: 27
May 2026.
[1]
East
Rock Trading 7 (Pty) Ltd & Another v Eagle Valley Granites (Pty)
Ltd & Others
2011 ZAGPJHC 196 (23 September 2011) (“
East
Rock”).
[2]
Miller
v Natmed Defence (Pty) Ltd & Others
2022
(2) SA 554
(GJ) (“
Miller”)
at [39[ and [41].
[3]
Miller
v Natmed Defence (Pty) Ltd & Others
2022
(2) SA 554
(GJ) at [39[ and [41].
[4]
Weir
v Wiehahn Formwork Solutions (Pty) Ltd & Others
2025 (4) SA 637
(WC) (“Weir”) at [30] – [36].
[5]
McMillan
NO v Pott & Others
2011 (1) SA 511
(WCC) at [40].
[6]
Mamokebe
Investments (Pty) Ltd v Sokhela & Others
(2026/039448) [2026] ZAGPPHC 293 (10 April 2026).