REPUBLIC OF SOUTH AFRICA
~
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION, JOHANNESBURG
( l) · REPORT ABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
26/08/2026
In the matter between :
ROGERIO ALBERTO SILVA THOMAZ
and
PAULO ALBERTO SILVA THOMAZ
SERRA HOLDINGS (PTY) LTD
(Registration Number: 2017/665382/07)
SERRA SERVICES (PTY) LTD
(Registration Number: 1994/004872/071
SERRA MANUFACTURING (PTY) LTD
(Registration Number: 2000/020594/07)
Case No: 036057-2025
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
...
..
...
2
SERRA FLOOR COVERING
SOLUTIONS (PTY) LTD
(Registration Number: 2016/303920/07)
SERRAEMPOWERMENTNPC
(Registration Number: 2017/535136/08)
SERRA EMPOWERMENT HOLDINGS (PTY) LTD
(Registration Number: 2017/535204/07)
ALBERTO DOS SANTOS THOMAZ N.O.
(cited in his capacity as a trustee of the
Thomaz Family Trust, IT Number: IT 216/06)
CLARA MARILIA NEVES SILVA THOMAZ N.O.
(cited in her capacity as a trustee
of the Thomaz Family Trust, IT Number: IT 216/06)
PAULO ALBERTO SILVA THOMAZ N.O.
(cited in his capacity as a trustee of the
Thomaz Family Trust , IT Number: IT 216/06)
RUSSELL MURRAY JAMES N.O.
(cited in his capacity as a trustee of the
Thomaz Family Trust, IT Number: IT 216/06)
BRIAN FRANK N.O.
(cited in his capac ity as a trustee of the
Thomaz Family Tru5t, IT Number : IT 21G/06)
ALBERTO DOS SANTOS THOMAZ N.O.
(cited in his capacity as a trustee of the
...
Fifth Respondent
...
Sixth Respondent
Seventh Respondent
""
Eighth Respondent
Ninth Respondent
..
Tenth Respondent
..
Eleventh Respondent
Twelfth Respondent
...
Thirteenth Respondent
3
Thomaz Business Trust, IT Number: IT000632/2021 (G))
PAULO ALBERTO SILVA THOMAZ N.O. FourteenthResponde~
(cited in his capacity as a trustee of the
Thomaz Business Trust, IT Number: IT000632/2021 (G))
BRIAN JOHANN WILKEN N.O. Fifteenth Respondent
(cited in his capacity as a trustee of the
Thomaz Business Trust , IT Number: IT000632/2021 (G))
MIA,J
Introduction
JUDGMENT
[1] This is an urgent application for interim interdictory relief pending the
determination of the applicant's pending application under s 163 of the
Companies Act 71 of 2008. The immediate event is a shareholders ' meeting of
the seventh respondent, Serra Empowerment Holdings (Pty) Ltd (SE Holdings) ,
convened for 1 0h00 on 26 August 2026 to consider an ordinary resolution
removing the applicant as a director.
[2] The applicant and the first respondent are brothers. Their dispute
concerning the governance and control of a group of family entities is already
before the Commercial Court under this case number . The principal issue now
is not whether the applicant has an indefensible right to remain a director. He
does not. It is whether , in the present context, of the pending oppression
proceedings , the proposed removal should be restrained temporarily so that the
court hearing those proceedings is not presented with an altered governance
position and a fait accompli resulting in the removal of the applicant.
[3] For the reasons that follow, I am satisfied that the matter is sufficiently
urgent and that that the substant ive relief be considered
Background
..
..
-
...
4
[4] The sixth respondent, Serra Empowerment NPC (the NPC), is the sole
shareholder of SE Holdings. The applicant is presently a director of both
entities. The first respondent is also a director of the NPC and, according to the
papers, has been authorised to exercise the NPC's shareholder rights in SE
Holdings. The extent and proper use of that authority are disputed.
[5] The applicant instituted the s 163 proceedings during March 2025.
Broadly stated, he alleges a sustained pattern of exclusion from management ,
information and decision-making in the family enterprise. The respondents
deny oppression and contend that the present application concerns an ordinary
and lawful exercise of the sole shareholder's statutory power under s 71 (1 ).
[6] On 11 August 2026 the applicant received notice of the SE Holdings
shareholders ' meeting and the proposed removal resolution. The notice affords
him an opportunity to make representations before the vote. The first
respondent says that the statutory and procedural requirements have been
observed and that the application is an impermissible attempt to entrench the
applicant in office.
[7] The applicant's attorneys wrote a detailed request for information on 14
August 2026. They challenged , among other things , the authority to procure
and vote for the removal, requested identified corporate records, and sought
undertakings that the meeting and removal would not proceed. A deadline of
18 August was stipulated. A follow-up was sent on 19 August. At 15h01 that
day the requested undertakings were unequivocally refused. Once it was
evident that the first respondent refused to furnish information requested, the
application to approach the urgent court was prepared.
[8] The development and trigger for the present application is the notice on
11 August 2026 of tne meeting scneauIea for 26 August 2026. Faper5 were
prepared and issued on the afternoon of 21 August. The matter was enrolled
for 25 August , one day before the meeting.
-
..
.,.
5
[9] The answering affidavit accepts that the first respondent's authority is
broad, but relies upon a written resolution1 as confirming it. The applicant
points out in reply that the resolution had been requested before litigation but
was produced only with the answering affidavit. His mother's presence on the
SE Holdings board does not preserve his own ability to participate , obtain
information and exercise oversight. The minute of the meeting where the
resolution was taken was not furnished. The applicant is unable to ascertain
what was discussed and how the resolution came to be finalised .
Issues
[1 O] The questions for decision are: first, whether the departure from the
ordinary forms, service and time periods should be condoned; and secondly,
whether the applicant has established the requirements for interim interdictory
relief: a prima facie right, though open to some doubt; a reasonable
apprehension of harm; a balance of convenience favouring protection; and the
absence of another satisfactory remedy.
Urgency
[11] The application was not enrolled by the Thursday cut-off ordinarily
applicable to the following Tuesday's urgent roll. It therefore required a case of
extreme urgency and a full explanation for every material period of delay. The
applicant has supplied that explanation.
[12] The trigger was the notice received late on 11 August. The applicant did
not immediately launch proceedings. His attorneys analysed the corporate
material, set out the challenge comprehensively, requested the documents said
to support the first respondent's authority, and sought undertakings that could
have avoided litigation. Those were reasonable steps, not supine inaction.
Once the position was finally known on 19 August, the remaining timetable was
necessar11y compressed .
1 Answering Affidavit, Annexure PT1
6
[13] The approximately one-day interval between the refusal and preparation
of the application is adequately explained. The mistaken procedural approach
to the case-managing judge caused no material prejudice and was corrected
promptly. The respondents filed a substantial answer; the applicant replied; and
the issues were fully argued. The curtailed periods, while severe, were dictated
principally by the date selected for the meeting.
[14] If the applicant is removed before the matter can be heard in the ordinary
course, a later order or damages award cannot recreate the board meetings at
which he was absent, the information not contemporaneously received, the
I
questions not asked, or the oversight not exercised. Reinstatement, if
eventually competent and justified, would operate prospectively. That is why
relief in due course may not be substantial in relation to the period of exclusion.
[15] This conclusion does not depend upon the applicant's more expansive
prediction that removals from other boards will follow. The first respondent
states that no such processes are presently under way. I proceed on that basis.
The imminent and concrete event is removal from the SE Holdings board, and
that event is sufficient for present purposes.
[16] Nor is the urgency self-created. The causa of the immediate urgency is
the convening of the meeting and the refusal to preserve the position pending
judicial consideration . The applicant acted with the expedition reasonably
possible after that refusal. The departure from the rules will accordingly be
condoned.
The relevance of Gelderblom and Lebra
[17] Both sides referred to Ge/derblom and Others v Sandown Bay Fishing
Company (Pty) Ltd and Others2. It is persuasive rather than binding authority in
this Division. Its value lies In me close funct1ona1 analogy , not In treating its
result as a rule that any pending s 163 applicant is immune from removal.
2 (19605/2024 ) (2025] ZAWCHC 210 (19 May 2025)
..
...
...
7
(18] In Gelderblom the court held that proposed board removals were
inextricably linked to pending s 163 relief; that an asserted absence of an
absolute right to remain a director did not answer a prima facie right not to be
treated oppressively or unfairly prejudicially; and that removal before
adjudication risked a fait accompli not readily undone. The applicants' efforts to
resolve the dispute before approaching court were also relevant to urgency.
(19] There are material differences. The present applicant remains a director
of the NPC, and the evidence does not establish an active process to remove
him elsewhere in the group. Those facts narrow the apprehended harm.
Conversely, the proposed resolution concerns the board of SE Holdings itself;
the NPC is its sole shareholder ; and the person said to have initiated the
process will exercise that shareholder's vote. On the respondents' own version,
adoption is therefore highly probable rather than conjectural. The submission
on behalf of the first respondent underscored that the removal in terms of
section 71 (1) was the shareholders prerogative and no reasons need be
furnished .
(20] Gelderblom supports the principled proposition that the statutory
existence of a removal power does not-end the enquiry. A court must examine
the context, purpose and practical effect of its exercise while oppression
proceedings bearing directly on governance are pending. That approach is
consistent with, and does not displace, the ordinary interim-interdict test.
(21] Lebra Development (Pty) Ltd and Others v Bester and Others3 is directly
relevant authority from this Division. It confirms that management under s 66 is
collective ; a director must be included in management to discharge the office's
fiduciary responsibilities ; and exclusion at the time of decision-making is not
cured merely by providing selected information or explanations afterwards. The
court ne1a mat exc1us1on rrom management, ro11owea oy 1naaequate
court ne1a mat exc1us1on rrom management, ro11owea oy 1naaequate
explanations , was prejudicial and unfair.
3 2024 JDR 471 0 (GP)
-
..
..
,.
8
[22] Of particular importance, the court in Lebra rejected the argument that
removing the director after he had instituted s 163 proceedings caused any
oppression toward the director to cease and brought that litigation to an end. It
held that, the timing of, and persistence with, removal after the application had
been instituted and served, cast a cloud on the removers' bona fides. The
present case is at an earlier point in the same sequence: the Court is asked to
intervene before the proposed resolution produces the very consequence
considered in Lebra.
[23] The applicant's removal during a live s 163 controversy is therefore not
a neutral procedural event for the applicant. The meeting scheduled for 26
August is called to remove him. The first respondent called the meeting and will
cast the majority vote. This pending removal changes him from a current
participant in SE Holdings' collective management into an excluded litigant
seeking retrospective restoration; deprives him, meanwhile, of the ability and
responsibility to deliberate , obtain board information and exercise oversight ;
alters the factual terrain on which the pending case must be decided; and risks
perpetuating the very exclusion that the main proceedings allege. It does not,
by itself, prove oppression or bad faith, but its timing and persistence materially
reinforce the prima facie case for preserving the position until the s 163 court
can decide the issue.
Interim interdict
Prima facie right
[24] The applicant does not establish his case by asserting ownership of a
directorship. Section 71 (1) permits shareholders , subject to its terms, to remove
a director by ordinary resolution. A pending s 163 application does not suspend
that power. The relevant prima facie right is narrower: the right to seek effective
protection against conduct alleged, in the main proceedings, to be oppressive
or u nfa ir ly projudioiol, and to hove that oontrovcr::; y adjudlcciled before a closely
or u nfa ir ly projudioiol, and to hove that oontrovcr::; y adjudlcciled before a closely
connected alteration of governance renders part of the claimed protection
hollow. Lebra makes clear that a post-institution removal does not extinguish
the lives 163 controversy.
..
..,
-
9
[25] The main proceedings are !1either fanciful nor dormant. They have been
placed in the Commercial Court, are case-managed , and concern the parties'
governance relationship. The proposed removal would intensify the very
exclusion from board participation and information of which the applicant
complains. It is therefore inextricably connected to the pending dispute, even
though it gives rise to an immediate statutory event not identified when the main
papers were launched.
[26) The first respondent's reliance on a valid legal compliance with s 71 (1)
is weighty but not dispositive. Procedural compliance may establish the
machinery by which a shareholder can act; it does not finally determine whether
the exercise of that power, in this context and for this purpose, is oppressive or
·'
unfairly prejudicial under s 163. That is a matter for the court hearing t_he main
proceedings .
[27) There is also a genuine dispute over the authority under which the first
respondent acts. The annexure attached, Annexure PT1 , may ultimately
answer that dispute. At this stage, however, its breadth, the contest concerning
the 27 July 2026 process, and its late production reinforce the need to preserve
rather than finally determine the governance position. I make no finding that the
first respondent acted in bad faith or that PT1 is invalid.
[28) The timing , persistence and structure of the proposed process
nevertheless raise a prima facie concern. The first respondent is said to be the
NPC's representative, the person advancing the removal, the recipient of the
applicant's representations and the person who will cast the sole shareholder's
vote. The proposal was initiated and persisted with while the s 163 allegations
concerning exclusion remain alive and case-managed. Although those
circumstances are not, without more, unlawful and I make no final finding on
motive , L ebro require:, the court to treat them a:, m aterial. They_ maKe me
motive , L ebro require:, the court to treat them a:, m aterial. They_ maKe me
outcome practically foreseeable and link the process closely to the pending
control dispute.
...
...
""
10
[29] The applicant has accordingly established a prima facie right, although
open to doubt, sufficient for interim protection. Th~ strength of that right must
be assessed together with the remaining requirements and the limited nature
of the order.
Apprehension of harm
[30] The threatened removal is imminent. If the sole shareholder adopts the
proposed resolution, the applicant's office terminates and the practical incidents
of that office cease. The harm relied upon is not merely the loss of title,
remuneration or prestige. It is the loss, during the pendency of the main case,
of contemporaneous participation in decisions , access to board information in
that capacity, and the opportunity to question and oversee management.
[31] These incidents are time-sensitive. Lebra illustrates why after-the-fact
disclosure is not equivalent to inclusion at the time decisions are made. Minutes
or documents supplied later cannot reproduce deliberation as it occurred or the
influence that a director might lawfully have exercised before a decision was
taken. A damages claim cannot value or restore that lost participation with any
confidence . A later challenge may yield reinstatement, but cannot fully reverse
intervening governance.
[32] The fact that the applicant remains a director of the NPC is relevant but
not a complete answer. The two entities have distinct boards, duties, records
and decisions . Participation in the shareholder does not confer the same
statutory access to, or deliberative role on, the board of its subsidiary. As in
Ge/derblom , continued involvement elsewhere is of limited comfort when the
threatened exclusion concerns the particular company central to the dispute.
[33] I therefore find a reasonable apprehension of harm if interim relief is
refused. I do so on the concrete 10:ss associated with GE Holdings alone, not on
speculation about a cascading removal from other entities.
Balance of convenience
...
""
11
[34] If relief is refused, the applicant will immediately lose the governance
incidents described above and the court hearing the main case may confront
an accomplished alteration. If relief is granted, the respondents' prejudice is a
temporary postponement of the sole shareholder's proposed exercise of its
power, not its extinction.
[35] The respondents correctly submit that an open-ended restraint could
interfere materially with corporate autonomy and bind the sole shareholder for
an uncertain period. That risk is addressed by confining the order to the notified
removal process, requiring diligent prosecution and permitting reconsideration
by the court managing the s 163 case on good cause. The order does not
prohibit all future corporate action or confer permanent tenure .
[36] There is no evidence that retaining the applicant as a director for this
limited period will expose SE Holdings to immediate operational danger. The
respondents' complaints about his conduct may be placed before the
Commercial Court and may support an application to vary or discharge the
restraint. On the present papers, the reversible inconvenience of delay is
outweighed by the irreversible quality of the applicant's exclusion in the interim.
[37] The balance of convenience therefore favours preservation of the status
quo, subject to the safeguards contained in the order.
No satisfactory alternative remedy
[38] The applicant could make representations at the meeting and, after
removal, attack the resolution or supplement his s 163 case. Those are legal
remedies, but the question is whether they are satisfactory in the
circumstances. They would operate only after the loss of office and would not
preserve participation in the meantime.
[39J A aamages cIaIm Is st111 Iess aaequate. Tne essenuaI preJuaIce Is nm
readily reducible to money. Nor does the opportunity to make representations
provide effective protection where the first respondent, the proposed remover,
provide effective protection where the first respondent, the proposed remover,
controls the sole shareholder vote and has declined to defer the process
pending adjudication.
...
12
[40] The proposed supplementation of the existing s 163 proceedings is the
appropriate forum for final relief. Interim preservation enables that remedy to
remain effective; it does not supplant it. The applicant has shown the absence
of a satisfactory alternative to temporary interdictory relief.
Discretion
[41] An interim interdict remains discretionary. The order need go no further
than is necessary to meet the demonstrated risk. I shall restrain the
respondents from proceeding with, implementing or registering the applicant's
removal under the notice of 11 August 2026, or any replacement process
substantially directed to the same removal, pending determination of the s 163
proceedings or further order.
I •
[42] Because the main matter is already case-managed , any reconsideration
should ordinarily be sought there. The applicant must promptly take the
procedural steps necessary to place the new event before that court and seek
directions for its expeditious determination. This guards against interim relief
becoming an indefinite substitute for final adjudication.
Costs
[43] The applicant has succeeded in obtaining the protection substantially
sought. The urgency was not self-created and the opposition required
determination of the merits of interim relief. Following the ordinary rule the first
respondent should pay the costs, including the costs of one counsel, on Scale
B. There is no basis on the present papers for a punitive order.
Order
[44] In the result, the following order is made:
1. The forms, service and time periods prescribed by the Uniform
Rules are dispensed w1m to me extent nece55a ry, ana m e
application is heard as one of urgency under rule 6(12).
2. Pending the final determination of the applicant's application
under s 163 of the Companies Act 71 of 2008 in case number
2025-036057 , or further order of the court:
13
2.1 the first, sixth and seventh respondents are interdicted and
restrained from proceeding with the shareholders' meeting of the
seventh respondent scheduled for 1 0h00 on 26 August 2026
insofar as it concerns the proposed removal of the applicant as a
director;
2.2 the first, sixth and seventh respondents are interdicted and
restrained from proposing, voting upon, procuring, adopting or
giving effect to a resolution removing the applicant as a director
pursuant to the notice delivered on 11 August 2026, or pursuant
to a replacement process substantially directed to the same
removal;
2.3 the first respondent is interdicted and restrained from
exercising or purporting to exercise the sixth respondent's
shareholder rights in the seventh respondent for the purpose
identified in paragraph 2.2; and
2.4 the respondents are interdicted and restrained from
implementing , recording or registering such removal, including by
lodging a CoR39 or other notice with the Companies and
Intellectual Property Commission.
3. If, before service or communicat ion of this order, a resolution
contemplated in paragraph 2 has been adopted, its operation and
implementation are suspended on the same terms pending the
event stated in paragraph 2.
4. The applicant shall, within five court days of this order, deliver any
application to supplement the pending s 163 proceedings and
request the case-managing court to issue directions for the
expeditious determination of that relief.
5. Any party may, on reasonable notice and on good cause shown,
approach the case-managing court for the variation or discharge
or paragraphs z to 4 or mis oraer.
6. The first respondent shall pay the costs of this application,
including the costs of one counsel , on Scale B.
..
-
14
SC MIA
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION:JOHANNES BURG
Appearances:
On behalf of the Applicant
instructed by:
On behalf of the Respondent
instructed by
Dates of hear ing
Date of judgm ent
15
Adv. E. Larney
larney@advocatesa.co.za
:_Finnegan & B urg er Inc
fallon@finneganburger .coi\i . , ..
daniella@finneganburger.com
Adv. Kuvashkir Naidoo
knaidoo@advnaidoo.co .za
Brian Frank Inc.
bfrank@brianfrank.co. za
dmoodley@brianfrank.co.za
: 25 Augus t 2026
: 26 August 2026
..