SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 2024-091091
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
In the matter between:
PETER SCHNEIDER APPLICANT
(Identity Number: 4[...])
and
P & G SCHNEIDER FAMILY FIRST
RESPONDENT
HOLDINGS (PTY) LTD
(Registration number: 1984/000823/07)
AFRO GOLF (PTY) LTD SECOND RESPONDENT
(Registration number: 1992/003059/07)
GERDA SCHNEIDER THIRD RESPONDENT
(Identity Number: 4[...])
UWE SCHNEIDER FOURTH RESPONDENT
(Identity Number: 7[...])
P & G SCHNEIDER FAMILY TRUST FIFTH RESPONDENT
(Trust Registration Number: IT338/1984)
___________________________________________________________________
JUDGMENT
__________________________________________________________________
TISANI, AJ
Introduction
[1] The present application is for the dissolution of solvent companies. The main
protagonists are family members (father, mother and son), co – directors of
family companies, and co – trustees of a family trust, and who in the midst of
this application, still reside together at the same homestead together with
grandchildren of the family. The subject matter companies, and the related
family trust, were established several decades ago to protect, further and
advance the wealth and interests of the Schneider family, and their
descendants. The present application, and the underlying dispute, are a
tragedy which this Court has deliberated over at length.
[2] The Applicant, Peter Schneider ( Mr Schneider ) has brought an application in
terms of sections 81(1)(d) of the 2008 Companies Act1 (Companies Act), read
with Section 344(h) of the 1973 Companies Act 2, in terms of which he seeks
the final winding up of both the First Respondent, P&G Family Holdings (Pty)
Ltd (hereafter Family Holdings), and the Second Respondent, Afro Golf (Pty)
Ltd (hereafter Afro Golf).
[3] The legal basis of the application is that Mr Schneider asserts that owing to the
irredeemably broken relationship between himself and the Third and Fourth
Respondents in particular, there is a deadlock in the administration of Family
1 Act 71 of 2008.
2 Act 61 of 1973.
Holdings and Afro Golf, and that it would be just and equitable for the
companies to be dissolved.
[4] Family Holdings, Afro Golf, the Third Respondent, Gerda Schneider ( Mrs
Schneider), the Fourth Respondent, Uwe Schneider, and the Fifth Respondent
P&G Schneider Family Trust (hereafter Family Trust) oppose the relief sought
by Mr Schneider.
[5] Family Holdings, Afro Golf, Mrs Schneider, Uwe Schneider and the Family
Trust (hereafter collectively referred to as the Respondents) oppose the relief
sought on the grounds that the relief sought is predicated on facts that are
materially disputed – on grounds which are more fully set out below – and that
there is neither a deadlock, nor would it be just and equitable for Family
Holdings or Afro Golf to be dissolved.
Issues to be determined
[6] The issues to be determined before this Court are thus the following:
6.1 Condonation for the late filing of the Answering Affidavit;
6.2 Is there a deadlock in the administration of Family Holdings or Afro
Golf within the meaning of s81 (1)(d)(i) and (ii) of the Companies Act,
such that they should be dissolved?
6.3 Are there otherwise just and equitable grounds on which Family
Holdings or Afro Golf should be dissolved within the meaning of section
81(1)(d)(iii) of the Companies Act, read with section 344(h) of the 1973
Companies Act.
Background facts salient to the present application
[7] It should be stated at the outset that most of the material facts appear to be
disputed. In this regard, t he words of Appeal Justice Harms in the matter of
National Director of Public Prosecutions v Zuma3, are prescient:
3 2009 (2) SA 277 at para 26.
‘Motion proceedings, unless concerned with interim relief, are all
about the resolution of legal issues based on common cause facts.
Unless the circumstances are special they cannot be used to resolve
factual issues because they are not designed to determine
probabilities. It is well established under the Plascon -Evans rule that
where in motion proceedings disputes of fact arise on the affidavits,
a final order can be granted only if the facts averred in the
applicant's… affidavits, which have been admitted by the
respondent…, together with the facts alleged by the latter, justify
such order. It may be different if the respondent's version consists of
bald or uncreditworthy denials, raises fictitious disputes of fact, is
palpably implausible, far -fetched or so clearly untenable that the
court is justified in rejecting them merely on the papers’
[8] It is a truism that motion proceedings are ill -suited to the resolution of disputes
of fact, and where disputes of facts are anticipated motion proceedings should
generally be avoided 4. This consideration notwithstanding, the question of
whether a factual dispute actually exists is not a discretionary decision but a
question of fact and a jurisdictional pre -requisite5. The court is enjoined to
examine the alleged disputes of fact and determine whether in truth there is a
real dispute of fact that cannot be satisfactorily resolved with the aid of oral
evidence6. In engaging in th is exercise the court is nevertheless called upon to
adopt a robust common sense approach in separating fictitious disputes of fact,
implausible, fanciful or untenable versions, which can safely be dealt with on
paper7 – from genuine disputes of facts which stand to be referred to oral
evidence and/or trial8.
[9] With respect to the common cause facts , Family Holdings is a private company
with limited liability duly incorporated in accordance with the company laws of
4 Plascon Evans Limited v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
4 Plascon Evans Limited v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
5 Ismael v Durban City Council 1973 (2) SA 362 (N) at 374A – B.
6 Wightman T/A JW Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) at para 13.
7 Truth Verification Testing Centre v PSE Truth Detection CC and others 1998 (2) SA 689 (W) at 698.
8 Standard Bank of SA Limited v Neugarten 1987 (3) SA 695 (W) at 699.
the Republic of South Africa in 198 4. Family Holdings has an issued share
capital of 20 (twenty) preference shares and 1 (one) ordinary share. 10 (ten) of
the preferen ce shares are held by Mr Schneider, and the other 10 (ten)
preference shares are held by Mrs Schneider. The 1 ( one) ordinary share is
held by the Family Trust. Mr Schneider, Mrs Schneider and Uwe Schneider are
the directors of Family Holdings. Family Holdings is a holding company
structured to manage some of the business ventures assets and finances of the
Schneider family and their related companies.
[10] Afro Golf is a private company with limited liability duly incorporated in
accordance with the company laws of the Republic of South Africa in 1992. Afro
Golf is a wholly owned subsidiary of Family Holding. Mr Schneider, Mrs
Schneider and Uwe Schneider are the directors of Afro Golf. The primary asset
previously held by Afro Golf was a lodge known as the White River Lodge. The
White River Lodge was subsequently sold for an amount of R6 000 000 – 00
(six million rand). The circumstances of the sale, and the remaining cash assets
and financial position of Afro Golf, are disputed between Mr Schneider and the
Respondents as will be more fully set out below.
[11] There is a further company, Petrob Projects (Pty) Ltd a private company with
limited liability duly incorporated in accordance with the company laws of the
Republic of South Africa (hereafter referred to as Petrob). Petrob is a wholly
owned subsidiary of Family Holdings. The directors of Petrob are Mrs
Schneider and Uwe Schneider. Mr Schneider who had previously been a
Director of Petrob resigned with effect from 01 October 2019. Petrob owns an
office block in Ferndale Randburg (“the Ferndale Property”). The state of the
physical assets, health of the operations, and financial position of the Ferndale
property and Petrob are disputed between Mr Schneider and the Respondents.
property and Petrob are disputed between Mr Schneider and the Respondents.
[12] Family Trust is an inter vivos trust duly registered as such in terms of the laws
governing the formation of trusts and the management and control of trust
property. Mr Schneider, Mrs Schneider and Uwe Schneider are trustee s of the
trust. Ms Antje Schneider, the biological sister of Uwe Schneider and daughter
of Mr and Mrs Schneider is also a trustee of Family Trust. Ms Antje Schneider
was previously also a director of the Family Holdings prior to her resignation on
04 March 2024. The reasons for Antje Schneider’s resignation are disputed
between Mr Schneider and the Respondents. The fifth trustee of the family trust
is Mr Duncan Fraser, an auditor who serves as the independent trustee on
Family Trust.
[13] Mr and Mrs Schneider were married for approximately 56 years prior to their
divorce on 09 February 2024. Uwe Schneider and Antje Schneider are the
children of the marriage. The marital homestead is owned by Family Trust. Mr
Schneider and Mrs Schneider reside at the marital homestead, albeit no longer
as husband and wife. Uwe Schneider also resides at the marital homestead
together with his two minor children, the grandchildren of Mr Schneider and Mrs
Schneider.
[14] Mr Schneider in his founding and replying affidavit details a plethora of
grievances pertaining to alleged instances of improper conduct by the Mrs
Schneider and Uwe Schneider, namely that with respect to Family Holdings, Mr
Schneider avers that he is being systematically excluded from effective
decision making in the company and that decisions to which he is not in
agreement are routinely taken often in his absence . Mr Schneider has on his
version not received a proper accounting of the finances of Family Holdings
and has only been presented with Financial Statements in their draft form since
2022.
[15] Mr Schneider is in particular ag grieved that he served as Managing Director
and an employee of Family Holdings for which he was being remunerated .
Subsequent to the finalisation of the divo rce between Mr and Mrs Schneider in
2024, Mr Schneider avers that he was dismissed as an employee of Family
Holding pursuant to a disciplinary process initiated by Mrs Schneider and Uwe
Schneider which resulted in his dismissal in absentia on 28 March 2024.
Aggrieved by his dismissal Mr Schneider approach ed the Commission for
Conciliation Mediation and Arbitration ( CCMA) in Johannesburg which resulted
Conciliation Mediation and Arbitration ( CCMA) in Johannesburg which resulted
in an award being granted in his favour on 13 December 2024 in which the
CCMA found that his termination as an employee of Family Holding s had been
both procedurally and substantively unfair. The CCMA ordered the
reinstatement of Mr Schneider , the payment of backpay in the amount of
R133 136 – 97 (one hundred and thirty-three thousand one hundred and thirty-
six rand ninety -seven cents) , and for Mr Schneider to tender his services to
Family Holdings . Rather than accepting the CCMA award or indeed Mr
Schneider’s tender of services, Family Holdings at the behest of Mrs Schneider
and Uwe Schneider have rejected the tender of services and have initiated
review proceedings at the Labour Court.
[16] With respect to Afro Golf , Mr Schneider similarly complains of being
systematically excluded from the governance of the company and to being
sidelined in that decisions to which he does not approve a re routinely taken in
his absence by Mrs Schneider and Uwe Schneider.
[17] Mr Schneider is in particular concerned about the proceeds of the sale of the
White River Lodge which was sold for the amount of R6 000 000 – 00 ( six
million rand). On Mr Schneider’s version approximately R3 100 000 – 00 (three
million one hundred thousand rand) was paid to Family Holdings as a dividend,
and the remaining balance was kep t as cash reserve s within the Afro Golf
account. Mr Schneider avers that he has not received any accounting for how
these cash reserves have been spent, and in particular that he has not received
or signed off on any financial statements in respect of Afro Golf. Worse still, Mr
Schneider avers that monies from the proceeds of the sale of the White River
Lodge have been siphoned off via Family Holdings to subsidise the commercial
activities of Petrob.
[18] With respect to Petrob, Mr Schneider avers that the Ferndale Property is not
being properly maintained, is in a poor physical and operational condition , and
has a vacancy rate of approximately 60% (sixty percent). As a consequence of
these glaring operational and management failures (on his version) Mr
these glaring operational and management failures (on his version) Mr
Schneider avers that Petrob is likely in a very poor financial state and as such
is routinely being subsidised, contrary to his wishes, by Family Holdings. In the
midst of this, is an irregular interest free vehicle loan that Mr s Schneider and
Uwe Schneider authorised in favour of Petrob for the benefit of Uwe Schneider,
contrary to the financial interest s of both Petrob and Family Holdings . Mr
Schneider further avers that there is no proper accounting of Petrob’s financial
position notwithstanding that it is a wholly owned subsidiary of Family Holdings
of which he is a director and shareholder.
[19] With respect to Family Trust, Mr Schneider avers that he is being systematically
excluded from participating in the decision making process of Family Trust, and
that he has not received a proper accounting of its financial affair s. This, Mr
Schneider avers, negates any real opportunity for the trust to resolve the
deadlock in the governance of Family Holdings and Afro Golf.
[20] These are very serious allegations, which merit careful scrutiny and
interrogation – and warrant detailed and comprehensive responses from the
Respondents.
[21] The Respondents raise procedural and substantive defences to the Applicant’s
allegations. From a procedural perspective, the Respondents dispute that there
has been any attempt by Mr Schneider to make use of mediation as required by
Rule 41A of the Uniform Rules of Court. The Respondents further take issue
with the citation of Family Trust, and in particular aver that the trustees have not
been properly cited as Respondents to the application. Finally , the
Respondents aver that there has similarly not been proper service of the
application, and in particular that Antje Schneider and Duncan Fraser have not
been properly served with the application in their capacity as trustees
[22] With respect to the substantive defences to the averments contained in the
founding affidavit, in substance the Respondents aver that with respect to
Family Holdings, the Respondents deny that Mr Schneider is being excluded or
sidelined from the management of the company and instead aver that Mr
Schneider has largely withdrawn, at his own behest, from the active
management of Family Holdings and largely cont ents himself with being
management of Family Holdings and largely cont ents himself with being
informed of , and signing off on , resolutions taken by the active directors of
Family Holdings . Indeed , the Respondents aver that Mr Schneider has not
actively attended any directors’ meeting since 2009.
[23] In so far as the financial statements of Family Holdings is concerned, the
Respondents aver that the financial statements are sent by the auditors directly
to Mrs Schneider in her capacity as the Financial Director of Family Holdings.
Mrs Schneider then in turn forwards such financial statements to all other
directors of Family Holdings, including Mr Schneider.
[24] Finally with respect to the termination of Mr Schneider’s employment, the
Respondents aver that he was dismissed from his employment with Family
Holdings on account of having misappropriated R150 000 – 00 (one hundred
and fifty thousand rand ) from the money market account of Family Holdings,
and subsequently refused to repay the amounts owed notwithstanding its
conversion into a loan account . The termination of Mr Schneider’s employment
(on the version of the Respondents) has no meaningful impact on the
functioning of Family Holdings in that Mr Schneider was in any event not
actively involved the operations of the company.
[25] Most pertinently, the Respondents deny that there could ever be a deadlock in
the administration of Family Holdings in that firstly there has never been a
formal directors meeting called by Mr Schneider to resolve any apparent
deadlock to which any of the other directors have been non -responsive and/or
uncooperative, and secondly there could in any event not be a deadlock of
shareholders in that Family Trust being a shareholder of Family Holdings would
be able to address, vote on and break any deadlock between the other
shareholders of Family Holdings.
[26] With respect to Afro Golf, the Respondents deny that Mr Schneider has been
sidelined or excluded from the governance of the company. In particular, the
Respondents aver that Mr Schneider has never been actively involved in the
day to day operations of Afro Golf, and that he has similarly at his own behest
not actively participated in directors’ meetings of Afro Golf. This averment
not actively participated in directors’ meetings of Afro Golf. This averment
notwithstanding, the Respondents rather incongruously aver that it was Mr
Schneider who was primarily involved in the sale of the White River Lodge . The
Respondents aver that the White River Lodge was valued at R18 000 000 – 00
(eighteen million rand ) but that owing to the onset of the C OVID pandemic Mr
Schneider had a verbal mandate from Mrs Schneider and Uwe Schneider to
negotiate a sale price of R12 000 000 – 00 (twelve million rand). This mandate
notwithstanding Mr Schneider negotiated for a sale price of R6 000 000 – 00
(six million rand). Further exacerbating the situation, the Respondents aver that
Mr Schneider failed to disclose that the sale was achieved though the medium
of an estate agent who subsequently litigated against Afro Golf in order to
recover the agent’s commission. The result was a settlement in the amount of
R276 000.00 ( two hundred and seventy -six thousand rand) which had to be
further deducted from the R6 000 000 – 00 (six million rand) sale price.
[27] The Respondents further aver that Mr Schneider is not approaching the court
with clean hands in respect to Afro Golf in that he has misappropriated monies
from Afro Golf in order to settle legal fees arising out of the divorce proceedings
with Mrs Schneider.
[28] Finally, with respect to accounting the Respondents aver that the financial
statements of Afro Golf are prepared for and provided to all the directors of Afro
Golf in a manner similar to how they are provided to dir ectors of Family
Holdings.
[29] With respect to Petrob , the Respondents aver that Mr Schneider has no active
involvement in Petrob, having voluntarily resigned as a director on 01 October
2019. With respect to the physical state of the Ferndale property, the
Respondents categorically deny that it is in a state of disrepair, and instead
aver that there are long – term tenants who continue to be in occupation of the
premises which would be incompatible with a building in a general state of
disrepair.
[30] With respect to the operational challenges of Petrob, these (on the
Respondent’s version) arise from the dramatic collapse of the commercial
property market during the period of the covid pandemic, and that there has
property market during the period of the covid pandemic, and that there has
only recently been an improvement in the general market conditions. The
Respondents specifically aver that there has been no purchase off er which
realistically reflects the true market value of the Ferndale Property , and that the
financially responsible decision is to remain actively invested in the business in
light of the improving market conditions.
[31] Finally with respect to Family Trust, the Respondents deny that there is any
deadlock in Family Trust in that there are five trustees , two of whom (Ms Antja
Schneider and Mr Duncan Fraser) are independent of any disputes existing
between Mr Schneider Mrs Schneider and Uwe Schneider, and would be able
to resolve any impasse pertaining to the functioning of the trust . Most
pertinently, the Respondents aver that Mr Schneider has not made any
attempts to utilise the trust structures to address any grievance he has with
Family Trust , and more importantly to break any deadlock that is alleged to
exist in the administration of Family Holdings and Afro Golf.
Condonation
[32] The Respondents ’ answering affidavit was due to have been filed by 01
November 2024 in terms of a court order issued by this Court per the
Honourable Acting Justice Rangata on 11 October 2024. The answering
affidavit was filed on 11 November 202 4, six court days late. The grounds of
condonation relied on by the Respondents are a bereavement sustained by
Uwe Schneider occasioned by the untimely demise of his fiancé in late October
2024, and the illness of the Respondents ’ counsel in the week of 01 November
2024. The Respondents further aver that they have strong prospects on the
merits of the matter which would justify this Court exercising its discretion to
grant condonation.
[33] It is t rite that the test for condonation is whether it is in the interest of justice,
which requires the party seeking condonation to address the court on (a) the
nature of the relief sought ; (b) the importance of the issue to be raised (c) the
extent and cause of the delay; (d) the reasonableness of the explanation for the
delay; (e) the effect of the delay on the administration of justice and other
delay; (e) the effect of the delay on the administration of justice and other
litigants; (f) prospects of success9.
9 Grootboom v National Prosecuting Authority 2014 (2) SA 68 (CC) at para 20 – 35.
[34] In the present instance, there is an entirely reasonable explanation for the
delay, which is a delay of only 6 court days , and the delay has not been
materially prejudicial either to the administration of justice or to Mr Schneider.
Furthermore, the issues to be raised go to the very existence of the companies
in question, and as will be more fully set out below there are prima facie serious
and substantive defences to the main application. Condonation is accordingly
granted in respect to the late filing of the answering affidavit.
Applicable law with respect to dissolution of a solvent company by order of court on
grounds of deadlock:
[35] The relevant portion of Section 81 of the Companies Act reads as follows:
‘(1) A court may order a solvent company to be wound up if-
(a)…
(b)…
(c)…
(d) the company, one or more directors or one or more shareholders
have applied to the court for an order to wind up the company on the
grounds that-
(i) the directors are deadlocked in the management of the
company and the shareholders are unable to break the
deadlock, and-
(aa) irreparable injury to the company is resulting, or may
result, from the deadlock; or
(bb) the company's business cannot be conducted to the
advantage of shareholders generally, as a result of the
deadlock;
(ii) the shareholders are deadlocked in voting power, and have
failed for a period that includes at least two consecutive
annual general meeting dates, to elect successors to
directors whose terms have expired…
(iii) …
(e)…’
[36] The Court in Cilliers NO and others v Duin & See (Pty) Ltd 10 articulated the trite
principle that a deadlock can be understood in two distinguishable senses
‘Deadlock in the literal sense – what might be termed 'complete deadlock' –
applies in the case where, because the directors or shareholders are
equally divided, there is an inability to make decisions that are necessary for
the company to function. The wider or looser sense of the concept is
encountered in the context of the so -called 'deadlock principle', which is
applied in respect of the consequences of a breakdown of trust and
confidence between members of a company which, because of its peculiar
character, is in substance akin to a partnership, and thus amenable —
subject to important qualifications — to dissolution as a partnership would
be, if relations between the partners became untenable through no fault of
the partner claiming the dissolution’
[37] In the present instance, the application of the Plascon Evans principle to the
facts do not point to a complete deadlock in the literal sense . A complete
deadlock would of necessity result in the company being completely paralysed
and unable to take any decisions . Viewed objectively, on the Respondents ’
version both Family Holdings and Afro Golf continue to function as corporate
entities in that the directors of the respective entities are able to meet and are
able to take decisions on the conduct of affairs of the respective companies.
Both companies continue to hold assets which assets are utilised in the
operation of the respective companies, at the direction of the directors of these
entities. This version is neither a bald or uncreditworthy denial, nor is it a
palpably implausible farfetched or clearly untenable version such that the court
would be justified in rejecting it merely on the papers. Indeed, even on Mr
10 2012 (4) SA 203 (WCC) at para 5.
Schneider’s version Family Holdings and Afro Golf objectively continue to
operate, albeit at times in a manner contrary to his wishes.
[38] A plain reading of section 81(1)(d)(i) and ( ii) of the Companies Act is clearly
directed at a deadlock in the literal sense in that it undoubtedly describes a
conditional situation in which no progress of activity is possible , and the
presence of a complete standstill or a lack of progress due to irreconcilable
disagreements and equally opposing forces between the directors and/or
shareholders of the entity. Whilst it is trite that that a purposive reading of
legislation forms an integral part of statutory interpretation, the inevitable point
of departure is the language of the provision itself read in context and having
regard to the purpose of the provision11.
[39] I am thus unable to find there a deadlock has been established in the literal
sense in respect to the administration of Family Holdings and Afro Gold within
the meaning of section 81(1)(d)(i) and (ii) of the Companies Act.
Applicable law with respect to dissolution of a solvent company by order of court on
just and equitable grounds:
[40] This is of course by no means the end of the enquiry in so far as deadlock is
concerned. The Supreme Court of Appeal in Thundercats Investments 92 (Pty)
Ltd v Nkonjane Economic Prospecting Investments (Pty) Ltd has held that the
just an equitable grounds which may justify the dissolution of a company under
section 81(1)(d)(iii) of the Companies Act should be given the same b road
interpretation as justice and equity under section 344(h) of the 1973 Companies
Act which postulates a b road conclusion of law, justice and equity based on a
wide judicial discretion12.
[41] The relevant portion of Section 81 of the Companies Act reads as follows:
‘(1) A court may order a solvent company to be wound up if-
(a)…
11 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at para 18.
12 2014 (5) SA 1 (SCA) at para 12 – 15.
(b)…
(c)…
(d) the company, one or more directors or one or more shareholders
have applied to the court for an order to wind up the company on the
grounds that-
(i) …
(ii) …; or
(iii) it is otherwise just and equitable for the company to be wound
up;
(e)…’
[42] The relevant portion of Section 344 of the Companies Act reads as follows
‘A company may be wound up by the Court if-
(a)…;
(b)…;
(c)…;
(d)…;
(e)…;
(f)…;
(g)…;
(h)it appears to the Court that it is just and equitable that the company
should be wound up’
[43] Whilst there is no exhaustive list of what constitutes ‘just and equitable grounds
for the dissolution of a company, five broad categories have emerged 13. These
are (a) disappearance of the company's substratum; (b) illegality of the objects
of the company and fraud in connection therewith; (c) a deadlock in the
management of the company's affairs which can only be resolved by winding it
13 JP Markets SA (Pty) Ltd v Financial Sector Conduct Authority 2022 (4) SA 94 (SCA) at para 31.
up; (d) grounds analogous to those for the dissolution of partnerships; and (e)
oppression.
[44] The disappearance of a company’s substratum describes an instance where
the principal or main object or distinct purpose for which the company was
formed, or which constitutes the foundation of a company , can no longer be
carried out at all or fully, or that such main purpose has failed altogether14.
[45] The court in Emphy v Pacer Properties (Pty) Ltd described three very important
principles pertaining to just and equitable consideration in the context of the
winding up of an otherwise solvent company 15. Firstly, is the deadlock principle
which is founded on the analogy of a partnership and is confined to those small
domestic companies in which because of some arrangement (whether express
tacit or implied) there exists between the members in regard to the companies
affairs a peculiarly personal relationship of confidence and trust similar to that
existing between partners in regard to a partnership business. In essence, if by
conduct which is either wrongful or contrary to what is contemplated by the
arrangement existing between the members, one or more of the members
destroys that relationship, the other members are entitled to claim that is it just
and equitable that the company should be wound up.
[46] Secondly, is that in the context of a domestic company which is in the nature or
akin to a partnership, the court may exercise its discretion to wind up such
company if there is evidence of a justifiable lack of confidence in the conduct
and management of the company’s affairs grounded on conduct of the directors
in regard to the company’s business. Of critical importance is that the lack of
confidence is not justifiable if it emerges merely from dissatisfaction with and/or
being outvoted on the ordinary business affairs of the company. A justifiable
lack of confidence must inextricably point to a lack of probity in the director’s
lack of confidence must inextricably point to a lack of probity in the director’s
conduct of those affairs. Finally, a party who seeks to rely on justice and equity
to wind up an otherwise solvent company must not themselves have been
14 Erasmus v Pentamed Investments (Pty) Ltd 1982 (1) SA 178 (W) at 185.
15 1979 (3) SA 363 (D) at 366 – 367.
wrongfully responsible through their own conduct for the situation which has
arisen.
[47] With respect to oppressive conduct, a party must demonstrate conduct that is
unjust or harsh or tyrannical or burdensome, and which involves firstly at least
an element of a lack of probity and fair dealing, and secondly a visible
departure from such standards of fair dealing and the violation of conditions of
fair dealing of which every shareholder who entrusts his money to a company is
entitled to rely 16. In Louw v Nel the Supreme Court of Appeal held that a party
alleging oppressive conduct cannot content himself with a number of vague and
general allegations but must establish that particular acts or omissions have
been committee or that the affairs of the company are being conducted in the
manner alleged, and that such acts or conduct of the company ’s affairs are
unfairly prejudicial, unjust or inequitable to him or some part of the members of
the company17.
Application to the facts of the case
[48] The determination of whether it is just and equitable for the solvent company to
be wound up fundamentally depends on a careful and detailed analysis of the
allegations of the respective parties and a careful comparison of their
respective conduct 18. In the present matter there are six factors which have
directly impacted on the consideration of justice and equity.
[49] Firstly, there are clearly material disputes of fact between Mr Schneider and the
Respondents on material facts on which this application is based. In the
absence of an application to lead oral evidence on these disputes, alternatively
to refer these disputes to trial, this court is obliged to approach such disputes in
accordance with the Plascon Evans rule. In the present instance the substance
and nature of the Respondent’s version is not of the nature of a bald of
uncreditworthy denial, nor is it so palpably implausible or farfetched as to be
untenable such that it should be rejected on the papers.
untenable such that it should be rejected on the papers.
16 Aspek PipeCo (Pty) Ltd and Another v Mauerberger and Others 1968 (1) SA 517 (C ) at 525H –
526E.
17 2011 (2) SA 172 (SCA) at para 23.
18 Apco Africa (Pty) Ltd and another v Apco Worldwide Inc. 2008 (5) SA 615 (SCA) at para 22 – 30.
[50] Against this backdrop is a second factor which is that neither of the parties has
attached the articles of association or memorandum of incorporation of either
Family Holding or AfroGolf. The significance of this is that whilst the
shareholding is clearly delineated – namely that there are two equal preference
shareholders in Family Holdings (Mr and Mrs Schneider) and an ordinary
shareholder (Family Trust) – it is entirely unclear from the papers what are the
respective voting rights of the respective shareholders who are in a different
class if one has regards to section 37 of the Companies Act and section 194 of
the 1973 Companies Act. This is highly material in the present instance in that
Mr Schneider is asserting the presence of a deadlock which is incapable of
being resolved in circumstances where neither he as the Applicant nor the
Respondents have set out the voting rights of the respective shareholders.
[51] The third consideration is closely linked to this, namely that neither Mr
Schneider nor the Respondents have attached the trust deed to the papers nor
made any submissions concerning the manner in which the trustees of Family
Trust arrive at decisions. It is thus unclear whether the decision making is
based on consensus of all the trustee s or whether there is an internal voting
system in terms of which decisions of the trust are effected. This is particular ly
relevant if one has regard to the fact that the Respondents assert that
irrespective of any dispute that may exist between Mr Schneider, Mrs
Schneider and Uwe Schneider – there are two other trustees, namely Antja
Schneider and Duncan Fraser – who would be able to break such impasse.
[52] The fourth consideration relates to the conduct of Mr Schneider himself as a
director and trustee. Mr Schneider has not provided any particularity in his
founding or replying papers about instances, dates and times when he has
specifically invoked the provisions of the Companies Act to either call for
specifically invoked the provisions of the Companies Act to either call for
meetings of directors or meeting s of shareholders of either Family Holdings or
Afro Golf to which Mrs Schneider , Uwe Schneider and Family Trust have
refused and/or otherwise been obstructive such that the operations and
functions of Family Holdings and Afro Gold have been completely paralysed.
This is an important consideration if one has regards to the fact that
disagreement about management and operations of a company does not lend
itself per se to the conclusion that an entity is either strictly deadlocked or
indeed even functionally deadlocked in the absence of evidence of a lack of
probity of the other directors.
[53] The fifth consideration is linked to this question , particularly as regards to
allegations of oppressive conduct. Section 163 of the Companies Act affords an
aggrieved director and/or shareholder wide -ranging protection from oppressive
or prejudicial conduct that unfairly disregards the interest of such shared holder
and/or director, and further provides protection from abuse from the separate
juristic personally of a company. There is no indication in the present
application that any consideration has been given by Mr Schneider to invoking
the protections under section 163 of the Companies Act. Whilst it is clear that a
shareholder or director is not obliged to invoke the protection s under section
163 of the Companies act as a prerequisite for invoking their rights under
section 81 of the Companies Act it is nevertheless a relevant consideration
from the perspective of the reasonableness of the conduct of the respective
directors. It is a truism that the court should guard against allowing an
application under just and equitable principles to become a launching platform
at the instances of disgruntled individual shareholder for the unwarranted
interference in the bona fide internal management of a company otherwise
acting within its powers19.
[54] The final consideration is that Mr Schneider is seeking the final winding up of
Family Holdings and Afro Golf. It is settled law that in a provisional order only a
prima facie case need be made out 20. In contrast, a party seeking final relief
must demonstrate its entitlement on a balance of probabilities.
[55] Mr Schneider in the present application is effectively going for the proverbial
‘nuclear option’ in which he seeks the final winding up of the Schneider family
‘nuclear option’ in which he seeks the final winding up of the Schneider family
businesses in circumstances where the are material disputes of fact , the
respective voting rights of the parties are unclear, there is no tangible evidence
19 Ibid footnote 14 at 183.
20 Selective Empowerment Investments Ltd v Companies Intellectual Commission 2025 (6) SA 495
(SCA) at para 84.
of the actual steps taken either as a director or trustee to resolve the decision -
making impasse, and non e of the wide ranging alternative interventions in
section 163 of the Companies Act have been explored prior to launching this
application.
[56] In the matter of Senate Electrical Wholesalers Limited v Alcatel Submarine
Networks Limited21 the English Court of Appeal made the following remarks –
which are very apt in the present application – in respect to an award that was
overturned on appeal, on the basis that the plaintiff’s claim was for a very
substantial amount on a complicated basis, and that it was not open to the
judge to adopt an alternative, however modest:
‘The plaintiff cannot complain if, through opening his mouth too wide, he fails
to prosecute a more modest claim….
…. The plaintiff deliberately adopted a high risk policy of aiming at jackpot
damages. We have little doubt that it was part of that policy not to offer the
Judge a much more modest alternative’
[57] This Court is not persuaded that it would be just and equitable for Family
Holdings and Afri Gold to be finally wound up on the strength of the present
application, and I am thus enjoined on the consideration of the cumulative
weight of the above to dismiss the application.
Costs:
[58] The general rule is that costs would normally follow the results. This
notwithstanding it is settled law that costs are in the discretion of the court and
the court exercises same judicially upon the consideration o the facts in each
case, on the basis of fairness to both sides22.
21 [1999] 2 Lloyd’s Rep 423 (CA) on page 425.
22 Ferreira v Levin NO and others : Vryenhoek and others v Powell NO and others 1996 (2) SA 621
(CC) at para 3.
[59] In the present instance there are t hree factors that militate against the costs
following the result. Firstly , and most obviously, the very basis and purpose of
the establishment of the Schneider family businesses and family trust was to
protect further and advance the wealth and interest s of the Schneider family
and their descendants . Saddling the family patriarch and founding member of
each of these entities with costs would be inimical to those objectives.
[60] Secondly, it is of the outmost urgency that members of the Schneider family –
in particular Mr Schneider, Mrs Schneider and Uwe Schneider who still reside
together at the same homestead together with grandchildren of the family – to
actively explore non-litigious methods of resolving what is effectively an internal
family dispute. Adverse cost orders would not advance that process.
[61] Finally, Antja Schneider and Duncan Fr aser who are factually aware of the
present application, and independent of Mr Schneider , Mrs Schneider and Uwe
Schneider have elected , for reasons that are not clear , neither to in tervene in
the current proceeding (to the extent that they assert that they have not bee n
properly cited) nor to take this Court into their confidence by filing explanatory
affidavits in circumstances where it is clearly i ncumbent on them to do so and
from which valuable insights into the origin s and extent of the dispute would
have been made available. In these circumstances it would not be appropriate
for passive litigants to be awarded costs.
[62] I am thus constrained in the interest of justice to order that each party pay their
own costs.
Order
[63] For the above reasons, I make the following order:
1. The Respondents are granted condonation for the late filing of the
answering affidavit.
2. The application is dismissed.
3. Each party to pay their own costs.
SM TISANI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
Caselines. The date of hand – down is deemed to be 25 August 2026.
APPEARANCES:
For the Applicant: Adv JA Van Wyk
Instructed by: Cawood Attorneys Inc.
For the Respondents Adv L Pillay
Higgs Inc