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Case 1

KASOMA TRUST
and
MARSZIM TRUST
and
LEADERSHIP INVESTMENT (PRIVATE) LIMITED
versus
HAYLMA TRUST
and
KENNIAS SIBANDA
and
ANTHONY CHIHIYA
and
BILTRANS SERVICES (PRIVATE) LIMITED

Case 2

AUTO SEAL TRUST HC 1270/21

and
HAYLMA TRUST
and
KENNIAS SIBANDA
and
ANTHONY CHIHIYA
and
JANITA RAMA
and
RASHI D’ ALMEIDA
and
AUTO SEAL ZIMBABWE (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

MUSITHU J
HARARE, 26 October 2021 & 15 March 2023
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Opposed Applications-Declaratur shareholder dispute

Mr T Magwaliba, for the applicants

Mr L Uriri, for the 1st, 2nd & 3rd respondents

MUSITHU J: This judgment is a product of two matters that were consolidated and heard
as one. The issues at stake and the interests of the parties involved herein converge. At the centre
of the dispute in both cases is an Extra Ordinary General Meeting (EGM or the meeting) that dealt
with the business of the fourth respondent in HC 1351/21 (Case 1), and the sixth respondent in HC
1270/21 (Case 2) on 8 February 2021. The applicants in both cases contend that the meeting did
not comply with certain provisions of the Companies and Other Business Entities Act1 (the COBE
or the Act), the shareholders agreements and the Articles of Association of the fourth respondent
and sixth respondents in the two cases. Consequently any resolutions passed thereat were null and
void. Additionally or alternatively, the applicants contend that the manner in which the meetings
were held constituted an oppression of the minorities. The relief sought in Case 1 is captured in
the draft order as follows:
“IT IS ORDERED THAT;-
1. It is declared that the Notice convening the extra general meeting of Biltrans Services (Private)
Limited did not comply with the provisions of section 168 of the Companies and Other Business
Entities Act [Chapter 24:31] and is accordingly set aside.
2. The Extraordinary General Meeting of the members of the Fourth Respondent held on the 8 th of
February 2021 be and is hereby declared null and void and accordingly set aside and all resolutions
passed at the said meeting be and is hereby set aside.
3. Alternatively to 1 and 2 above it is ordered that:
3.1 The resolution for the appointment of the Third Respondent as the Fourth Respondent’s
Company Secretary be and is hereby declared null and void and accordingly set aside.
3.2 The resolution for the appointment of the Second Respondent as “Executive Director” be
and is hereby set aside.
3.3 The resolution for the dissolution of the board of Biltrans Services (Private) Limited dated
the 8th February 2021 be and is hereby set aside.
3.4 That the resolution for the reconstitution of the management team and the Executive
Committee be and is hereby declared null and void and accordingly set aside.
3.5 All documents filed pursuant to the resolutions passed on the 5th February 2021 be and are
hereby set aside and the documents relating to the status of the company and its Directors
in existence of the 8th of February 2021 be and are hereby revived.
4. That the First Respondent be and is hereby ordered and directed to acquire the minority interests in
the Company within ninety (90) days of the date of this order at a value to be agreed to between

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[Chapter 24:31]
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the parties failing such agreement, at a fair market value to be determined in accordance with clause
22 of the Shareholders Agreement between the parties.
5. That the First and Second Respondents pay the costs of this application on an attorney and client
scale.”

The relief sought in Case 2 is also captured in the draft order as follows:
“IT IS ORDERED THAT;-
1. It is declared that the Notice convening the extra general meeting of Auto Seal Zimbabwe (Private)
Limited did not comply with the provisions of section 168 of the Companies and Other Business
Entities Act [Chapter 24:31] and is accordingly set aside.
2. The Extraordinary General Meeting of the members of the Sixth Respondent held on the 8th of
February 2021 be and is hereby declared null and void and accordingly set aside and all resolutions
passed at the said meeting be and is hereby set aside.
3. Alternatively to 1 and 2 above it is ordered that:
3.1 The resolution for the appointment of the Third Respondent as the Sixth Respondent’s
Company Secretary be and is hereby declared null and void and accordingly set aside.
3.2 The resolution for the removal of DAVID EDWIN TANNER and RICHARD ERIC
STENTON as Directors of the Sixth Respondent be and is hereby set aside.
3.3 The resolution for the appointment of the Fourth and Fifth Respondents not having been done
in accordance with the law be and is hereby set aside.
3.4 All documents filed pursuant to the resolutions passed on the 5th February 2021 be and are
hereby set aside and the documents relating to the status of the company and its Directors in
existence of the 8th of February 2021 be and are hereby revived.
4. That the First Respondent be and is hereby ordered and directed to acquire the minority interests in
the Company within ninety (90) days of the date of this order at a value to be agreed to between
the parties failing such agreement, at a fair market value to be determined by a chartered accountant
to be appointed by the Institute of Chartered Accountants in Zimbabwe at the request of either
party.
5. That the First Respondent shall pay the costs of this application on an attorney and client scale.”

I will endeavor to summarise the factual backgrounds in respect of the two cases separately to
the extent that there are some minor differences in their factual matrix. This will not be necessary
in those instances where the circumstances are common cause.
FACTUAL BACKGROUND TO CASE 1
The first and second applicants’ founding affidavit was deposed to by Grant Littleford
(Littleford) in his capacity as a trustee of the first and second applicants. The third applicant filed
a supporting affidavit which was deposed to by Tracey Hunter in her capacity as director of the
third applicant. She associated herself with the deposition made on behalf of the first and second
applicants by Littleford. The fourth respondent is in the business of the transportation of goods
and services in Zimbabwe and within the Southern African region. It operates from premises
owned by a company called Auto Seal Zimbabwe (Private) Limited (the sixth respondent in case
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2). The shareholders of Auto Seal Zimbabwe are the same as those of the fourth respondent. The
first and second applicants are shareholders in the fourth respondent with each holding 10% of the
issued share capital. The third applicant holds 15% of the issued share capital while the first
respondent holds the remaining 65%.
There exists a shareholders agreement between the said parties concerning the management
of the affairs of the fourth respondent. According to the applicant, as at 8 February 2021, the fourth
respondent’s board of directors was made up of Puckson Sibusiso Gumede (Gumede), David
Edwin Tanner (Tanner), Alpa Hasmukial Bhikha (Bhika) and Thabani Mpofu (Mpofu). The day
to day management of the business of the fourth respondent is reposed in Tanner as the Managing
Director, Bhikha as the Finance Director, Archer as the Technical Director and Gumede as the
Operations Director.
Around 23 November 2020, the first respondent made a requisition for an extra ordinary
general meeting of the members of the fourth respondent. No meeting was convened pursuant to
that request. Relying on the provisions of s 168(3) of the COBE Act, the first respondent proceeded
to convene the EGM of members of the fourth respondent. The notice convening the meeting set
out the agenda of the meeting as follows:
 to consider a resolution on the removal of the company secretary Virgin Management
Services;
 the appointment of a new company secretary with immediate effect;
 the appointment of Kennias Sibanda as an Executive Director of the company with
immediate effect;
 accountability by directors of the company’s business;
 accountability by the directors of the company’s losses;
 The termination of the management team, Excom and reconstituting thereof with
immediate effect.

Littleford attended the meeting as a representative of the first and second applicants. Also in
attendance was Mr Nikita Madya who had been given a proxy by Leadership Investments (Private)
Limited/Hurricane Trust on behalf of the third applicant. The meeting was chaired by the second
respondent who also happens to be a trustee of the first respondent. Prior to the meeting, a
document prepared by Hurricane Trust objecting to the holding of the meeting and setting out
several objections had been presented to the chairperson at the commencement of the meeting. The
chairperson nevertheless proceeded with the meeting without considering those objections.
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The chairperson was advised that the minority shareholders were not going to sanitize the
meeting, but were simply staying in order to observe proceedings but not as participants. None of
the applicants participated in the meeting other than to raise the objections that were ignored at the
commencement of the meeting. The third respondent was appointed by the first respondent’s
representatives as the minute taker and subsequently as the company secretary.
THE OBJECTIONS
That the meeting was improperly convened
One of the objections raised on behalf of the applicants was that the notice convening the
EGM did not comply with s 168 of the COBE Act. The applicants contend that the notice
convening the meeting did not comply with the mandatory provisions of s 171(3) of the COBE as
read with Article 52 of the fourth respondent’s Articles of Association. The notice did not
incorporate the statement required that a member is required to appoint a proxy. It also did not
incorporate the form of proxy as required by s 171(3) of the COBE and the Articles of Association.
That omission was fatal.
The applicants also alleged non-compliance with s 168 of the COBE which requires that
resolutions to be adopted at an EGM must be set out clearly. The applicants claim that the notice
contained discussion points and not resolutions to be adopted at the EGM. That omission was
equally fatal. The other point was that the notice was not served on all the shareholders of the
company despite the first respondent’s knowledge thereof. The third applicant was not served with
the notice at its chosen address of service as set out in the shareholders agreement. It only became
aware of the meeting through the first and second applicants.
It was in view of the foregoing anomalies that the applicants argued that the notice calling
for the meeting was improper and that the court should grant the order sought declaring such notice
null and void as well as the meeting held pursuant to it.
In the event that the court upheld the validity of the notice calling the EGM, the applicant
averred that some of the resolutions passed at the meeting should be set aside as they were
improperly passed. The applicant cited the following.
Resolution for the appointment of Antony Chihiya as company secretary
The appointment of Chihiya was alleged to be irregular for the following reasons. In terms
of s 198 of the COBE as read with article 76, the appointment of a company secretary is the sole
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responsibility of the board of directors of the company and not the shareholders. The issue was
raised at the EGM by the applicants’ legal practitioner. It was never considered by the respondents.
Further, the applicants contend that the terms of appointment of the third respondent as company
secretary were also not disclosed in the documents convening the EGM. None were also disclosed
at the EGM. The applicants had been made aware that the third respondent was the personal lawyer
of the second respondent and probably the first respondent as well. The appointment of the third
respondent was therefore meant to serve the interests of the first respondent and not the company.
Having an interest in the matter, the first respondent should not have voted on the resolution.
According to the applicants, the appointment of the company secretary was reserved for
the directors of the company because they would appoint such person on merit and decide the
terms of reference for such appointment. It was intended to avoid what happened in casu where a
shareholder appointed its own person to serve its interests. That resolution was therefore irregular.
The applicants further averred that even assuming the shareholders meeting could appoint
a company secretary, the notice convening the meeting had not proposed a resolution for the
appointment of the third respondent as the company secretary. No name had been proposed ahead
of the meeting to enable minority shareholders to decide on that issue as they were expected to
vote on that matter at the meeting.
The appointment of directors
According to the applicants, the articles provide that no person other than the director
retiring at the meeting shall be eligible for election to the office of director at a general meeting
unless, not less than three (3) days and not more than twenty one (21) days before the date
appointed for the meeting, there shall be left at the registered office of the company a notice in
writing, signed by a member duly qualified to attend and vote at the meeting for which such notice
is given or its intention to propose such a person for election and also notice in writing signed by
that person of his willingness to be elected. No notice in writing signed by the second respondent
of his willingness to be appointed director was deposited with the company at least three (3) days
prior to the date of the meeting. Without such notice, the meeting could not have proceeded to
deliberate on the issue and appoint the second respondent as an executive director as the minutes
reflected.
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Further, no terms of the appointment of the second respondent as executive director were
disclosed either in advance of the meeting or at the meeting. In terms of the COBE and the articles,
the appointment of executive directors was the responsibility of the board of directors and not that
of the shareholders. Shareholders could only appoint a director with no executive authority. As a
result, there was no disclosure to minority shareholders as to what position the second respondent
was going to hold. The company already had the required directors. The applicants also averred
that as a representative of the first respondent and in view of his personal interest in the
appointment as an executive director, the second respondent should not have voted on the
resolution. His vote was therefore disqualified.
According to the applicants, in terms of the shareholders agreement, Thabani Mpofu was
already an appointee of the first respondent, and without him having resigned, the second
respondent’s appointment could not have been made. The applicants allege that there was an
attempt to explain this on the basis that at the time he was appointed, the second respondent was
not yet a trustee of the first respondent and therefore he could not have made the appointment. The
applicants considered the explanation absurd because the second respondent was a beneficiary of
the trust and he gave instructions to the trustees who then acted on the instructions and ensured
that the appointment was done. The appointment was in breach of the shareholders agreement
between the parties.
Reconstitution of the Executive Committee and the Management Committee
The applicants objected to the issue being discussed at the meeting as it was regulated by
the shareholders agreement. The resolution passed therefore sought to amend the terms of the
shareholders agreement without complying with the agreed procedure for the amendment of the
said agreement. The first respondent could therefore not resort to the expedience of an EGM to
amend the provisions of the shareholders agreement. The resolution passed which had the effect
of reconstituting or amending the composition of the Executive Committee and the Management
Committee was therefore invalid.
Dissolution of the Board
According to the applicants, the minutes of the meeting showed that a resolution for the
dissolution of the board was passed at the meeting. A new board made up of the second respondent
and Puckson Gumede was reconstituted for a period of ninety (90) days. Further, according to the
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applicants, the meeting of the fourth respondent closed after the directors had made their
presentation and after the resolution for the reconstitution of the Excom and management teams
had been passed. The meeting of an associate company called Auto Seal Zimbabwe (Pvt) Ltd
commenced immediately thereafter. It dealt with its own business and the meeting was closed.
After its closure, the second respondent who was chairing the meeting then stated that he was
dissolving the board of the fourth respondent. A representative of the third applicant questioned
how it was possible to reconvene a meeting that had already been terminated and finished the
business for which it was convened. There was also no agenda item for the discussion of this
matter. He proceeded to deal with the matter.
The applicants argued that an EGM could only transact business for which it was convened.
In the present matter, the notice convening the EGM did not show that there was a proposal to
dissolve the board and dismiss all the directors of the company. At any rate, even assuming that
the EGM could have dealt with the matter, it was trite that a notice of the passing of such resolution
be given to the company in advance. Each of the directors affected by the resolution was required
to be individually notified of the intention to move such a resolution. The articles specifically
required that special notice of twenty eight (28) days be given of the intention to pass such
resolution. Section 177(2) of the COBE also entitled the director to make representations to the
meeting before the resolution was passed. None of the directors sitting on the board that was
allegedly dissolved was ever given notice or invited to make representations. Such a resolution
was therefore invalid.
According to the applicants, the directors that were being removed were executive directors
who had employment contracts with the company. This was not considered, yet these were matters
that should have been handled by the board. There was also no justification for that act which had
the effect disrupting the business of the company. The applicant construed the conduct of the
majority shareholder as being intended at depriving the minority shareholders of their right to
participate in the running of the business of the company as set out in the shareholders agreement.
The resolution was passed in direct contravention of s 202 as read with s 169 of the COBE.
The applicants averred that following these unlawful acts, and upon realizing that these
shareholder fights were not in the interests of the company, they dispatched a letter to the first
respondent expressing their desire to proceed with litigation and their willingness to exit the
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company if their concerns were not resolved amicably. The response from the second respondent
was a terse “the minority can go ahead as they consider fit”. That kind of response showed no
desire or care to resolve the issues in dispute. The applicants contend that the manner in which the
minorities were ignored at the EGM, the passing of the resolution to dissolve the board in breach
of basic corporate governance tenets, was most telling.
The minutes
The applicants allege that the minutes of the EGM were not reflective of the business that
was transacted at the meeting. A letter was dispatched to the third respondent in which the
applicants expressed their concerns with the minutes. The third respondent did not respond to the
letter. The applicants aver that the failure to respond to their concerns left no doubt that the minutes
were manipulated to reflect the first respondent’s position. The applicants prayed that the minutes
be declared to be not a correct record of the business transacted at the meeting.
Oppression of the minority
According to the applicants, the cumulative effect of the conduct of the first respondent
and its representatives constituted an oppression of the minority. The manipulation of the majority
shareholders’ controlling stake to elbow out the minorities by removing the representatives of the
minorities from the board and the day to day management of the business was contrary to the
expectations of the minorities as set out in the shareholders agreement. The decisions were made
without regard to good corporate governance practices and the law.
First and Second Respondents’ Case
The opposing affidavit was deposed to by the second respondent in his own capacity as
well as being a trustee of the first respondent. The second respondent averred at the outset that the
matter was afflicted by material disputes of fact which were unresolvable on the papers. He pointed
to the applicant’s allegation that the minutes of the EGM did not reflect what actually transpired
at the meeting. On their part, the respondents’ position was that the minutes were an accurate
record of the meeting. The fact that the parties held conflicting positions regarding the status of
the minutes meant that the matter could not be resolved through motion proceedings. The
application ought to be dismissed or referred to trial in order that evidence may be led to ascertain
the correct factual position.
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On the merits, the second respondent denied that Thabani Mpofu was ever a director of the
fourth respondent. He was proposed as director by the first respondent sometime in 2017. He
however requested that an audit of the company be undertaken before he accepted the position.
The results of the audit were not presented and as a result Mpofu never assumed the position.
The first respondent admitted that the company did not convene a meeting. The company
secretary, then Virgin Management Services (Private) Limited (Virgin Management) and the
fourth respondent’s directors deliberately ignored the first respondent’s request to convene a
meeting. The first respondent had a lawful right to call for a meeting being the majority
shareholder. However, the fourth respondent, through the control of the applicants denied the first
respondent that right.
According to the deponent, the first respondent was created in December 2014 as a family
trust. The settlor was the second respondent. The first respondent acquired majority shareholding
in the fourth respondent in 2014. The current beneficiaries of the trust were the second respondent,
Janita Rama and their two children Haley and Mason. At the time of its registration and up until
October 2020, the first respondent’s trustees were Virgin Trust Company (Private) Limited
(hereafter referred to as Virgin Trust) and Virgin Management (as an alternative Trustee).
One of the directors of Virgin Trust is Littleford, who was also a trustee of both the first
and second applicants. The other directors of Virgin Trust are Spencer Harron Murray, Giovanni
Pietro Dionigi Rossi and Barry Anthony Rex Brice who are also directors of Virgin Management
Services. From the time that the first respondent acquired the majority shareholding in the fourth
respondent, Virgin Trust (as trustee of the first respondent) neglected or refused to use the voting
powers attaching to the first respondent’s shareholding in the fourth respondent, to secure and
advance the first respondent’s interests in the fourth respondent. According to the deponent, this
was not surprising seeing as that one of the directors of Virgin Trust was Grant Littleford, who
himself was also a trustee of the first and second applicants herein.
According to the second respondent, the reason why Virgin Management failed to convene
a meeting at the first respondent’s request was because there was a conflict of interest between the
interests of the first and second applicants represented by Littleford as well as the interests of the
first respondent represented too by Littleford, Spencer Harron Murray, Giovanni Pietro Dionigi
Rossi and Barry Anthony Rex Brice. As of 29 October 2020, Virgin Trust Company and Virgin
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Management were removed as Trustees of the first respondent by an order of this court under HC
1218/20.
The second respondent averred that the document containing the objections was handed to
him by Mr Madya who had a proxy from Hurricane Trust. The deponent claims that he was not
aware of Hurricane Trust, which entity was not even affiliated with the fourth respondent.
Hurricane Trust was not a member or a shareholder of the fourth respondent. For that reason, the
deponent claims that he had no basis to consider the said document or address it. He also insisted
that the third respondent was duly appointed in terms of the agenda.
The second respondent argued that the notice convening the EGM complied with s 168 of
the COBE Act. Any omissions alleged, even if proved, were not fatal. The second respondent
averred that while it was admitted that the notice did not incorporate a statement that a member
was entitled to a proxy, that omission did not invalidate the proceedings. This was arguably so
considering that all the shareholders were present at the meeting and thus no conceivable prejudice
was faced by the applicants in respect of the omission.
It was denied that the resolutions were not set out clearly. The document filed in opposition
to the EGM showed that the applicants were aware of the resolutions that were to be sought. There
was therefore compliance with all the relevant sections of the COBE, and where there was alleged
non-compliance, such non-compliance was immaterial and did not prejudice the applicants. That
was no basis for the nullification of the notice.
The second respondent further denied that the appointment of the company secretary was
irregular or illegal. Virgin Management, as the company secretary, along with the directors of the
fourth respondent that were appointed by the applicant, failed to respond to a valid notice to
convene an EGM. That notice was sent by the first respondent sometime in November 2020. That
alone was a contravention of the COBE. For that reason, the first respondent was forced to convene
a meeting itself. The company secretary was not in attendance at the meeting. It had abdicated its
duties. There was also no cooperation from the director of the fourth respondent, leaving the first
respondent with no option but to appoint a company secretary in order that the fourth respondent
could function.
The second respondent denied that the third respondent was his personal lawyer. He further
denied any personal interest in his appointment. It was actually the deponent to the applicant’s
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founding affidavit who had a personal interest in the fourth respondent through his representation
of the first and second applicants, and his association with the directors of the previous company
secretary Virgin Management.
The second respondent claimed that the notice of the meeting clearly stated that the issue
of the removal of the current directors and his appointment would be an agenda item. The notice
therefore provided sufficient time for the applicant to consider his appointment. The second
respondent also denied that a shareholder did not have authority to appoint an executive director.
The second respondent further claimed that the directors that were removed had run the
business to the ground. They had failed to execute their mandates with the diligence and duty of
care expected of them. The company was in serious debt and it was doubtful if at all it would
remain as a going concern. The directors failed to conduct themselves with utmost diligence. They
failed to attend to audits, they failed to explain the financial position of the company when
requested to do so at the EGM. They either refused to answer questions or gave one word answers
when pressed to do so. Their incompetence seriously prejudiced the first respondent as a majority
shareholder.
The second respondent denied the alleged oppression of the minorities. It was the
applicants who had attempted to thwart the first respondent’s rights in the affairs of the fourth
respondent, from the time the first respondent became a majority shareholder. The first respondent
had had no say in the operation of the company from the time it became a majority shareholder.
The second respondent denied that there was a basis to compel the first respondent to
purchase the applicants’ shares in the fourth respondent. The procedure for the sale of shares was
provided in the shareholders agreement. In any case, the first and second respondents did not have
the funds to pay for the shares as a result of years of neglect of the first respondent’s interests in
the fourth respondent. The court was urged to dismiss the application with costs on the punitive
scale for lack of merit.
Third Respondent’s Case
The third respondent associated himself with averments made by the second respondent,
as they pertained to events that occurred at the EGM. The third respondent is a registered legal
practitioner practicing with the law firm Makonese, Chambati and Mataka and based in Kwekwe.
He claimed that the applicants came to the meeting with the intention of frustrating and disrupting
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the meeting. They refused to respond to questions and instead only gave one word answers. In as
much as the applicants portrayed themselves as the victims, the third respondent claimed that they
were actually the aggressors.
The Answering Affidavit
The deponent averred that the opposing affidavit was defective as it was not numbered
consecutively. There was a repetition of para(s) 1,2,3,4 and 5, with the result that they were two
paragraphs identified by the same numbering. That was contrary to o 32 r 227(1)(b) of the High
Court rules. For that reason, the notice of opposition ought to be struck off the roll. I point out at
the outset that this point was not pursued in the applicants’ heads of argument or oral submissions.
I therefore considered it abandoned.
The applicants denied the existence of any disputes of fact as alleged by the respondents.
The alleged dispute of fact was not bona fide, and neither was it material. The respondents were
informed by the applicants that the minutes did not reflect what transpired at the meeting, as far
back as February 2021 following the receipt of the minutes from the third respondent. The
applicants had expressed their concerns on the contents of the minutes through a letter to the second
and third respondents. None of the parties responded to the letter disputing the allegations made
in the said letter. There was no attempt in the opposing affidavit or supporting affidavit to deal
with the issues raised in the said letter. More importantly, in their response to the queries raised in
the applicants’ affidavit regarding the accuracy of the minutes, the respondents merely denied the
allegations and insisted that the minutes were a true representation of what transpired at the
meeting.2
The applicants further highlighted the following matters that were not properly captured in
the minutes. While it was accepted that the document setting out the applicants’ objections was
handed to the parties at the inception of the meeting, that fact was not recorded in the minutes. The
minutes showed that the issue was discussed under general business after all the other business
had been transacted. Further, while the third respondent’s affidavit stated that the applicants were
aggressive and wanted to disrupt the meeting, the minutes did not reflect such aggression or
attempts to disrupt the meeting. Virgin Management Services were represented in the meeting by

2 Paragraph 42 of the second respondent’s opposing affidavit on p34 of the record.

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the deponent. That position was stated in the meeting. The second respondent stated that the third
respondent and the deponent could take the minutes. That was not stated in the minutes.
According to the deponent, annexure J to its founding affidavit highlighted specific
omissions and incorrect additions, which showed that the minutes were an incorrect record of
proceedings. The applicants contended that the preliminary point was raised out of fashion and
without merit, in the absence of a demonstration and reference to the specific matters that were
raised by the applicants in annexure J.
As regards the merits, the applicants observed that throughout the opposing affidavit, the
respondents resorted to bare denials which were not sufficient to defeat the averments made in the
applicants’ case. The applicants denied that the directors of the fourth respondent frustrated the
first respondent’s request for a meeting. The applicants persisted with their averments as set out in
the founding affidavit insisting that a case had been made for the granting of the relief sought.
THE FACTUAL BACKGROUND TO CASE 2
The founding affidavit was deposed to by Littleford in his capacity as a trustee of the
applicant. As already observed in Case 1, the sixth respondent owns Lot 51, Hayden Park, Mount
Hampden, Harare (the premises), which it leases to an associate company, the fourth respondent
in Case 1. The applicant holds 35% of the issued share capital in the sixth respondent. The first
respondent, which also happens to be the first respondent in Case 1 holds the remaining 65% of
the issued share capital in the sixth respondent. As shareholders of the sixth respondent, the
applicant and the first respondent entered into a shareholders agreement. As at 8 February 2021,
the sixth respondent’s board of directors was made up of Richard Eric Stenton (Stenton) and David
Edwin Tanner (Tanner). Tanner was also a director of the fourth respondent in Case 1.
On 23 November 2020, the first respondent made a requisition for an EGM of the members
of the sixth respondent. The sixth respondent did not convene the meeting as requested. According
to the deponent, the directors sought audience with the second respondent as they felt the reasons
for which the meeting was requisitioned did not justify an EGM. They reckoned that whatever
grievances the second respondent had could be resolved amicably. Such overtures were ignored.
There is however no proof on record that the directors sought the alleged engagement with the
second respondent.
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The first respondent proceeded to convene an EGM of the members of the sixth respondent
in terms of s 168(3) of the COBE Act. The notice convening the meeting included the following
amongst the agenda items: the appointment of a person to take minutes of the meeting; to consider
a resolution of the removal of the current company secretary; the appointment of a new company
secretary with immediate effect; the appointment of Janita Rama and Rashmi D’Almeida as
directors and the removal of the current directors of the company with immediate effect;
accountability by the directors of the company’s business; and accountability by the directors for
the company’s losses. The deponent attended the meeting as the applicant’s representative in the
company of the applicant’s legal practitioner. The meeting was chaired by the second respondent.
The third respondent was appointed as the minute taker and subsequently as the company
secretary.
Just as in Case 1, the applicant had a prepared a document outlining its objections to the
holding of the meeting as well as other related issues. The second respondent proceeded with the
meeting without paying any regard to the document. The objections that found the cause of action
in Case 1 are more or less similar to the objections raised herein. They all emanate from the same
meeting. Similarly, the respondents’ responses to the applicants’ founding affidavit in Case 1 are
not materially different from the responses in Case 2. The submissions in respect of Case 1 and
Case 2 will therefore be dealt with simultaneously. Save to note that there are certain objections
which are peculiar either to the fourth respondent in case 1 or to the sixth respondent in case 2.
These will accordingly be dealt with separately.
THE SUBMISSIONS AND THE ANALYSIS
Material disputes of fact
The alleged dispute of fact pertain to the objection made on behalf of the applicants that
the minutes of the EGM held on 8 February 2021, circulated by the third respondent were not a
correct record of what transpired at the meeting. The applicants’ legal practitioners dispatched a
letter to the second and third respondents pointing to those items that were not captured in the
minutes. In the penultimate paragraph of the letter, the applicants’ legal practitioners wrote, “we
hope that you will correct the minutes and send us proper minutes of the EGM. Please, kindly let
us hear from you by the close of business on the 2nd March 2021”. In their opposing affidavits, the
respondents denied that the minutes were not a true record of what transpired at the meeting.
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Mr Uriri for the respondents submitted that the applicants took a calculated risk in
proceeding on motion in the face of the apparent disputes of fact regarding the contents of the
minutes. According to Mr Uriri, the circulated minutes were going to be tabled at the next meeting
where they would be adopted with or without corrections. The minutes were produced by a person
who was acting in an official capacity. They told a story of what transpired. At this stage they were
presumed to be regular until they were set aside. The court could not make a decision on the
accuracy of those minutes in motion proceedings, without hearing the contested versions. The
disputes of fact apparent from the contested minutes were reasonably foreseeable, such that the
court could not even be persuaded to exercise its discretion and refer the matter to trial.
In response, Mr Magwaliba for the applicants argued that the point in limine was so narrow
and could thus not impede upon the resolution of the matter on the papers. The point only related
to the minutes of the meeting, but it did not affect the principal relief sought by the applicants. Mr
Magwaliba further submitted that there could not be a material dispute of fact where allegations
made by the applicants were not denied by the respondents.
In his brief reply, Mr Uriri submitted that the applicants’ complaints were centred on events
that transpired at the meeting of 8 February 2021. The record of that day’s proceedings were the
minutes that the applicants impugned. The entire proceedings were grounded on those minutes and
for that reason the matter could not be dealt with on the papers.
The test for determining the materiality of disputes of fact was set out by MAKARAU JP (as
she then was) in Supa Plant Investments (Pvt) Ltd v Chidavaenzi3 as follows:
“A material dispute of facts arises when material facts alleged by the applicant are disputed and
traversed by the respondent in such a manner as to leave the court with no ready answer to the
dispute between the parties in the absence of further evidence.”

To this end, it follows that the mere allegation of a possible dispute of fact is not conclusive
of its existence. The papers must expose the existence of a bona fide dispute of fact which is
incapable of resolution on the papers without recourse to oral evidence.4 That dispute of fact must
be central or germane to the issue before the court. Put differently, it must be demonstrated that
the issues pending for resolution by the court cannot be resolved without recourse to viva voce
evidence.

3 2009 (2) ZLR 132 (H) at 136F-G:

4 See Muzanenhamo v Officer in Charge, CID Law and Order and 7 Ors CCZ 3/13
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A reading of the draft orders which records the reliefs sought by the applicants shows that
the applicants impugn: the notices convening the EGMs and the resolutions passed at the said
EGMs. The applicants also require the first respondent in both cases to be ordered to acquire the
minority interests in the fourth respondent in Case 1 and the sixth respondent in Case 2. The reliefs
sought are common cause. They are not entirely reliant on the impugned minutes. It is not in
dispute that a meeting was convened. It is also not in dispute that some contentious resolutions
were passed. The contentious issues are legal in nature. They can be resolved independent of the
minutes.
In both cases, the applicants make specific objections to the contents of the minutes, as not
reflecting the actual business of the meeting.5 In both cases, the applicants pray that in the event
that the court upholds the meeting, then the minutes must be declared not a correct record of the
business of the meeting. Thus the fate of the minutes is dependent on the finding the court makes
on the main issues already alluded to above. I must also hasten to observe that both sets of draft
orders do not seek any specific relief on the minutes.
For the foregoing reasons, the court determines that there is no merit in the preliminary
objection. The contentious issues can be resolved independent of the minutes of the meeting.
Whether the EGM was properly convened
Mr Magwaliba submitted that a valid requisition for a meeting of shareholders was a
prerequisite for the accrual of the right to convene an EGM by shareholders. Counsel submitted
that the notice of 23 November 2020 requisitioning the meeting, was directed to the offices of the
company secretary, Virgin Management Services, at No. 7 Normandy Road, Alexandra Park,
Harare. This was not the registered address of the company (Fourth respondent in Case 1 and sixth
respondent in Case 2). The requisition was therefore not directed to the directors of the company
in both instances. It did not require the directors of the company to convene the EGM.
It was further submitted that s 168 (2) of the COBE imposed this requirement in peremptory
terms. Once the directors were served with the notice requisitioning a meeting, they were required
to convene a meeting of the shareholders within 21 days and not less than 14 days’ from the date
of the deposit of the requisition at the registered office of the company. The respondents did not

5
Paragraphs 46 to 48 of the founding affidavit in respect of Case 1, and paragraphs 40 to 42 of the founding affidavit
in respect of Case 2.
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deny that the requisition was not deposited at the registered office of the company. The applicants
contend that the directors were therefore under no obligation to convene the EGM, since the
requisition was never deposited at the registered offices of the companies.
In response, Mr Uriri submitted that it was a basic principle of corporate law jurisprudence
that courts must be slow to interfere with the internal arrangements of the company since the
company must regulate itself in terms of its constitutive documents. Breaches of a technical nature
were not fatal for as long as the majority could sit and arrive at the same conclusion that would
have been arrived at had there been no breach.
It was submitted on behalf of the respondents that the deponent to the applicants’ founding
affidavit, Littleford admitted that both companies did not convene the meetings as per the request.
It was further submitted that there was no averment that the directors of the fourth respondent in
Case 1 were not aware of the meeting. As regards the sixth respondent in case 2, it was submitted
that there was an admission that the directors were aware of the meeting. This was because
Littleford averred in his founding affidavit that the directors had attempted to engage the second
respondent as they felt that there was no need for an EGM. In his answering affidavits, Littleford
alleged that he had received the notices but did not advise the other directors. He also alleged that
the notice was sent to an incorrect address.
In their heads of argument, the respondents argue that s 168(3) of the COBE provided a
remedy to a member where a company sought to deny the member the right to have a meeting
convened. The respondents further argued that in terms of s 198(3) of the COBE, one of the
functions of a company secretary was to ensure that notices of all shareholders meetings, board
meetings and board committee meetings were given in accordance with the Act. Littleford was
therefore legally obliged to ensure that the notice sent by the first respondent was given in
accordance with the COBE. Failure to do so attracted a civil penalty in terms of s 168 (6) of the
COBE.
The procedure for requisitioning of a meeting is set out in s 168 of the COBE Act as
follows:
“168 Convening of extraordinary general meeting on requisition
(1) On the requisition of members of a company holding at the date of the deposit of the requisition not
less than five per centum of such of the paid-up capital of the company as at the date of the deposit
carries the right of voting at general meetings of the company the directors of the company,
notwithstanding anything in its articles, shall, within twenty-one days of the deposit of the requisition,
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issue a notice to members convening an extraordinary general meeting of the company for a date not
less than fourteen nor more than twenty-eight days from the date of the notice:
Provided that if a special resolution is to be submitted the period of the notice shall not be less than
twenty-one days.
(2) The requisition shall state the objects of the meeting and shall be signed by the requisitionists and
deposited at the registered office of the company, and may consist of several documents in like form,
each signed by one or more requisitionists.
(3) If the directors do not within twenty-one days from the date of the deposit of the requisition issue a
notice as required by subsection (1) the requisitionists, or any of them numbering more than fifty or
representing more than fifty per centum of the total voting rights of all of them, may themselves convene
a meeting, stating the objects thereof, on twenty-one days’ notice, but no meeting so convened shall be
held after the expiration of three months from the said date.
(4) Any meeting convened under this section by the requisitionists—
(a) shall be convened in the same manner, as nearly as possible, as that in which meetings are to be
convened by directors;
(b) at an extraordinary meeting, only business within the scope of the notice and agenda previously sent
may be voted on.”

From a reading of that law, the starting point is that directors of a company must on the
requisition of members, issue a notice to members convening an EGM of the company within the
period stated in s 168(1). My understanding of the applicants’ contention in their heads of argument
and submissions by their counsel is that the directors of the two companies were under no
obligation to issue a notice convening the EGM because they were not aware of the requisition by
members. What underpins that submission is the argument that the requisition by members was
not deposited at the registered offices of the two companies. However the submission is at variance
with the applicants’ own case as pleaded in the founding affidavits. In both cases, Littleford does
not make the non-service of the requisition on the two companies an issue. The written objections
submitted at the commencement of the meeting do not make it an issue either. What the applicants
take issue with is the notice issued by the requisitionists consequent upon the failure by the
directors to issue a notice upon request by members.
That the failure to serve notice on the company, and consequently on the directors was not
an issue is clear from the following. In paragraph 24 of his founding affidavit in Case 1, Littleford
makes the following point:
“As Annexure “E” would show, one of the issues that was raised was that the notice issued
convening the EGM was not in compliance with Section 168 of the COBE Act. In particular, the
Directors having failed to convene the EGM following a requisition, the shareholder concerned is
required to convene such a meeting in a manner as nearly as possible to the manner in which such
a meeting would have been convened by the company.”6

6
Page 8 of the founding affidavit in Case 1. See also para 21 on p2 of the founding affidavit in Case 2
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Further in paragraph 3 of their written objections in both cases the applicants state as follows:
“The Notice calling for the EGM was not properly given in compliance with section 168(4) of the
Companies and Other Business Entities Act (“the Companies Act”). In particular, the Notice
Convening the EGM is defective and does not comply with section 168(4)(a) of the Companies
Act……”

Section 168(4) applies to a notice issued by requisitionists in terms of s 168(3) following

the failure by directors to act in terms of s 168(1). What is clear is that the applicants were not at
all concerned about the alleged failure by the shareholders to properly serve the requisition on the
directors. The applicants are therefore estopped from challenging the validity of the requisition of
the meeting by the shareholder, when in their founding affidavits they never made it an issue. In
fact the founding affidavits acknowledge the fact that the directors failed to convene an EGM
following a requisition by the member. For that reason, the court finds that there is no merit in the
objection.
Validity of the Notice Convening the Meeting
None Compliance with section 171(3) of the COBE Act
According to the applicants, following the failure by the directors of the fourth and sixth
respondents to convene the meeting, the first respondent purportedly convened the meeting of the
shareholders in terms of s 168(3) of the Act. The notice itself was defective in that it did not comply
with s 171(3) of the COBE. The respondents had not denied that the notice was defective, arguing
that the alleged irregularity was not fatal. The applicants dismissed the respondents’ contention
that the notice could still be valid without complying with the mandatory requirements of s 171(3).
The applicants further submitted that any conduct that was contrary to the express
prohibition of a statute was unlawful. Reference was made to the authority of Schirhout v Minister
of Justice7.
In response, Mr Uriri submitted that there was nothing irregular about the notice, with the
meeting having been convened as nearly as possible, to a meeting that would have been convened
by directors. In their heads of argument, the respondents denied that there was a contravention of
s 171(3) of the COBE Act. They argued that the duty to comply with the s 171(3) rested with the
officers of the company and not shareholders. The definition of officer in s 2 of the COBE did not
include a shareholder. It was the directors and the company secretary of the two companies that

7
1926 AD 99 at 109
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were in contravention of s 171(3), as they knowingly permitted the default by not advising the first
respondent when it convened the meeting.
It was further submitted on behalf of the respondents that all shareholders of the two
companies duly attended the meeting either in person or by proxy and thus no conceivable
prejudice was encountered by the omission of the proxy forms.
Section 171(3) of the COBE states as follows:
“171 Proxies and voting on poll
(1) ………...
(2) …………..
(3) In every notice calling a meeting of a company and on the face of every proxy form issued at the
company’s expense shall appear, with reasonable prominence, a statement that a member entitled to
attend and vote is entitled to appoint one or more proxies to act in the alternative, to attend and vote and
speak instead of him or her, and that a proxy need not also be a member; and if default is made in
complying with this subsection as respects any meeting every officer of the company who authorizes,
knowingly permits or is party to the default shall be liable to a category 1 civil penalty.”

Section 2 of the COBE defines the terms “officer” and “officer who is in default” as follows:
“officer” in relation to a company, means an officer appointed by the company’s board of directors as
provided in section 221 (“Officers of company”) and includes a director, manager or secretary;
“officer who is in default”, in relation to a civil penalty provision, means—
(a) an officer or employee of a company; or
(b)……………;
who knowingly authorised or permitted the default, refusal, omission or contravention mentioned in the
provision;”

I accept the respondents’ contention that the word officer as used in s 171(3) does not
include shareholders or members of the company. The responsibility to appoint officers of the
company is vested in the board of directors in terms of s 221 of the COBE. The same section also
states that a person may be both a director and an officer. In terms of ss 3 of s 221, “the officers
shall be under the direction of the board of directors and their responsibility shall include
management and operation of current activities of the company or parts thereof, other than matters
within the exclusive competence of the board of directors or the members”. A reading of the entire
s 221 leaves one in no doubt that the person is intricately involved in almost the day to day
management of the company’s affairs. Shareholders tend to be far removed from the day to day
activities of the company as would be required of officers.
Section 171(3) must therefore be interpreted with an understanding of the position of the
officers in a company in mind. It is the court’s view that the level of compliance required of officers
of the company by virtue of s 171(3), and the sanctions attendant upon a default cannot be extended
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to members or shareholders. Section 168(4)(a) immediately comes to mind. It states that any
meeting convened by requisitionists “shall be convened in the same manner, as nearly as possible,
as that in which meetings are to be convened by directors.” The words “as nearly as possible”
are not defined in the COBE, but they can easily be interpreted to mean that the standard by which
a meeting convened by directors and one convened by members should be measured would
obviously be different. The drafters of the law were mindful of the fact that members would not
have the same level of skill and expertise as directors. Some latitude should be allowed in respect
of meetings convened by such requisitionists.
For the foregoing reasons, the court determines that the failure to comply with s 171(3) did
not make the notice irregular. The persons who were required to attend the meeting were indeed
in attendance. The applicants have not pointed to any prejudice suffered as a result of the alleged
non-compliance. The objection is therefore without merit.
Non-compliance with section 168(2) of the COBE
It was also submitted that the notice was defective as it fell foul of s 168(2) of the Act. That
section commands that the objects of the meeting be stated in the notice. An object is a statement
of what is intended to be achieved by the meeting. It was not a statement of issues to be discussed
but the resolutions to be adopted. For instance, the notice only indicated that a new company
secretary would be appointed. The person was not identified and neither were their qualifications
stated. Further, in respect of the fourth respondent in case 1, there was a proposal to appoint the
second respondent as an executive director. The fourth respondent had a full complement of
executive directors. The notice did not give sufficient detail of why the appointment was necessary
and what role he would play.
The notice also referred to accountability by directors of the companies’ losses and
accountability for the companies’ business. The agenda items were too broad and vague. Also
attacked in respect of the notice convening the meeting of the fourth respondent in case 1 was the
item on the termination of the management team and reconstitution of the executive committee.
There was no indication of who would be removed and who would replace the removed persons.
In response, the respondents argued that the purpose of s 168(2) was to ensure that the
receivers of the notice were aware of the goal or purpose of the meeting. A reading of the notices
showed that the first respondent in both cases was clear on the goals and purpose of the meeting.
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It was further argued that at any rate, a contravention of the section would not invalidate the
proceedings. The proceedings could have been postponed to allow the parties to exchange any
information that was required in order for an informed decision to be taken on the resolutions. The
applicants simply did not wish to be subjected to a meeting called by the majority shareholder.
This explained why Littleford made reference to attempts to resolve the issues amicably, and his
failure to convene the meeting. It was further submitted that the respondents were not expected to
know and comply with every single requirement of the COBE when convening a meeting where
directors of the company had failed to do so.
Section 168(2) requires the requisition to state the objects of the meeting amongst other
things. I agree with the respondents’ contention that the infractions alluded to by the applicants in
respect of the non-compliance with s 168(2) are not so grievous as to diminish the significance of
the notice. Further, in view of the import of s 168(4)(a) of the COBE that I have already alluded
to, the defects complained of are not so significant to warrant the setting aside of the notice. A
meeting convened at the instance of requisitionists cannot be benchmarked against a meeting
convened by directors.
Failure to serve the third applicant
The applicants also averred that the notice was not served on all the shareholders. The third
applicant in case 1 was not served, while the first and second applicants received vague and
unhelpful information. In case 2, the applicant averred that it was not supplied with information in
sufficient detail and clarity. The applicants further averred that they had therefore validly protested
against the conduct of the meeting in the face of all these irregularities.
In response the respondents claimed that the third applicant was fully represented at the
meeting. There was a full quorum to allow for the conduct of the business of the meeting.
The objection is devoid of merit. The third applicant claims that it became aware of the
meeting through the first and second applicants. In as much as it was irregular not to serve the
notice of the meeting on all the parties, that irregularity is not serious as to invalidate the
proceedings especially when all the required parties attended the meeting. The third applicant did
not point to any prejudice it suffered as a result of the non-service. Also devoid of merit is the
objection that the second applicant was not supplied with information in sufficient detail. That
anomaly would have been cured by a request for more information or further particulars.
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THE RESOLUTIONS
The Appointment of the third respondent as Company Secretary
Three submissions were made in support of the argument that the appointment was
irregular. First it was averred that there was no proper notice in terms of s 168 of the COBE. While,
the letter of 23 November 2020 proposed the appointment of a new company secretary, it did not
propose the termination of Virgin Management as company secretary. The issue was not raised in
the requisition, and therefore it could not be competently discussed at the meeting. Further, a new
company secretary could not be appointed where there was no vacancy. The second issue was that
a company secretary could not be appointed by shareholders at an EGM. It was the domain of
directors in terms of s 198(2) of the COBE as read with article 76 of the company articles. The
third issue was that the third respondent was conflicted as the personal lawyer for the first and
second respondents. That offended s 198(4)(d) as read with s 198(7)(c) of the COBE.
In response, the respondents denied that the appointment of the company secretary was in
conflict with the law. They argued that s 198(2) imposed an obligation on directors to appoint a
secretary in respect of a public company and not a private company. It did not apply herein and
shareholders were within their rights to appoint one. As regards the absence of a vacancy for the
position, the respondents argued that the previous company secretary, Virgin Management had
failed to convene a meeting when requested to do so by the majority shareholder. The company
secretary did not even attend the meeting and had therefore abdicated its role. There was no
company secretary to speak of. There was therefore a vacancy to be filled and it was filled. On the
question of conflict of interest, it was argued by the applicants that the past company secretary was
equally conflicted. Littleford was a director in Virgin Management as well as a trustee of the first
and second applicants in case 1 and the applicant in case 2.
The court has already expressed itself on the issue of the validity of the notice issued by
the requisitionists in terms of s 168(3) of the COBE. There was substantial compliance with the
law as required by s 168(4)(a) of that Act. In any event, the notice of the meeting of 11 January
2021 clearly stated that the meeting was going to consider a resolution for the removal of the
current company secretary and the appointment of a new company secretary with immediate effect.
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The applicants were therefore aware that the matter of the removal of the secretary and the
appointment of a new one would arise.
The question of the legality of the appointment of a company secretary by shareholders
instead of directors is resolved by the very law that the applicants claim was violated. Section
198(2) of the COBE states as follows:
“198 Company secretary: functions, qualifications and disqualifications
(1) Every company shall have at least one secretary ordinarily resident in Zimbabwe.
(2) The board of a public company shall appoint one or more secretaries, being a person or persons
who are qualified in terms of subsection (4) to be the secretary of a public company, and who must
not also hold another office as an officer of the company.” (Underlining for emphasis)

Article 76 of the articles of association of the fourth respondent in case 1 states that the
“board shall appoint a Secretary who shall be ordinarily resident in Zimbabwe…..”. Article 3 of
the sixth respondent’s articles defines secretary as “any person appointed to perform the duties of
the secretary of the company”. What is clear from a reading of s 198(2) is that the provision applies
to directors of a public company and not a private company. If the intention of the legislature was
that the section ought to apply to every company then then they would have dispensed with the
use of the words “board of a public company”. It is common cause that the two companies at the
centre of the dispute herein are private companies and for that reason s 198(2) is not applicable to
the directors of the two companies.
In the court’s view, it follows that the appointment of a company secretary of a private
company must done in terms of the constitutive documents of the company. In the case of the
fourth respondent in case 1, the appointment of the third respondent ought to have been made by
the fourth respondent’s board in terms of Article 76 of the fourth respondent’s articles. Failure to
comply with that requirement therefore made the appointment of the third respondent as the
company secretary irregular.
As regards the appointment of the third respondent as company secretary of the sixth
respondent in Case 2, one needs to read the articles with the regulations in Table A of the old
Companies Act. This is because the preamble to the sixth respondent’s articles of association
provides that the regulations in Part 1 of Table “A” of the First Schedule of the Companies Act
[Chapter 24:03], shall be the articles of the company, and in the event of inconsistency between
the regulations in Part 1 of Table “A” and the regulations, then the provisions of the regulations
would prevail. Paragraph 111 of the said regulations in Table A provides that “the secretary shall
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be appointed by the directors for such term, at such remuneration and upon such conditions as
they may think fit; and any secretary so appointed may be removed by them.” It therefore follows
that in terms of the sixth respondent’s own constitutive documents, the appointment and the
removal of the company secretary was a preserve for the directors and not shareholders. The
appointment of the third respondent as the company secretary for the sixth respondent was
therefore equally irregular.
The question of conflict of interest was raised in the context of s 198(4)(d) as read with
s198(7)(c) of the COBE. The said sections make specific reference to the qualifications of a
secretary of a public company. In the case of a legal practitioner, the person must be registered or
entitled to be registered as a legal practitioner in terms of the Legal Practitioners Act 8. The cited
section is not relevant to the present case as it specifically applies to the secretary of a public
company. The articles of both entities do not define the qualifications required of a company
secretary and whether one is disqualified by virtue of having some professional relationship with
a shareholder.
The respondents also pointed to the fact that Littleford was a director in Virgin
Management as well as a trustee of the first and second applicants in case 1 and the applicant in
case 2. For that reason they argued that he could not raise the question of conflict when he himself
was in the same position. Given that scenario, the court cannot prescribe who should qualify to be
the company secretary of the two entities.
In view of the foregoing, the court determines that the appointment of the third respondent
as company secretary was therefore irregular in that the appointment was made by shareholders in
violation of both companies’ constitutive documents.
The appointment of the second respondent as director of the fourth respondent in case 1
The appointment is impugned on the following grounds. Firstly, it was averred that the
second respondent did not deposit with the company a notice confirming his acceptance of the
appointment at least three days before the meeting. That was a requirement in terms of the articles
of association. Neither in the oral submissions nor heads of argument did the applicants’ counsel
refer to the article that requires one to signify their acceptance by way of notice three days in
advance. The submission is therefore without substance.

8
[Chapter 27:07]
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Secondly, it was averred that executive directors were appointed by directors and not
shareholders. At any rate it was further averred that the fourth respondent had a full complement
of executive directors, and as such there was no vacancy. Thirdly, it was argued that there was no
disclosure of the material terms of the appointment to enable the applicants to decide whether or
not to vote for or against the appointment. It was further submitted that clause 14.1.5 of the
shareholders agreement entitled the first respondent to one director. The first respondent had
already appointed Mr Mpofu, as its representative and had thus exhausted its quota. The fact that
the appointment was allegedly done by the second respondent before he became a trustee of the
first respondent did not have the effect of invalidating Mpofu’s appointment.
Lastly, it was averred that in terms of clauses 14 and 15 of the shareholders agreement, the
shareholders agreed to place the management of the company under the board of directors, the
management team and the executive committee. It was therefore not open for the EGM to
reconstitute the board of directors or any of the management organs of the company. It was further
submitted that where shareholders entered into a shareholders agreement, that agreement
superseded any rights deriving from the Act. Further, the applicants argued that in terms of clause
25 of the shareholders agreement, in the event of a conflict between the articles of the company
and the agreement, then the agreement would prevail.
In response, the first respondent argued that it was entitled to appoint directors to represent
its interests in terms of clause 14 of the shareholders agreement. It claimed that the appointment
of Thabani Mpofu was never put into effect as it was conditional on him receiving the company’s
audited statements. That condition was never satisfied and the appointment did not materialize.
Article 56 states that the first directors of the company shall be elected at the first meeting
of the shareholders. Article 60 states that where the office of a director falls vacant and is not filled
by the company, the board may appoint a director to fill that vacancy. In terms of article 65, the
board may from time to time appoint a managing director or directors, and any such person as
general or local manager or managers upon such terms as it may think fit. In terms of clause 14 of
the shareholders agreement, each shareholder is entitled, but not obliged, to nominate one director.
The agreement does not state whether such directors are executive or not.
Clause 15 of the shareholders agreement deals with the management of the company.
Clause 15.1 states that both the incoming and existing shareholders undertake that they will all
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continue to run the business of the company in the manner it had always been run as at that point
of signing the agreement. Clause 15.2 states that:
“Therefore, the Board shall delegate the day to day management and operation of the Company, to
the Management team of Richard Stenton, Dave Tanner and Richard Mann, all of whom shall be
executive directors. The decisions of the Management team shall be outlined in Schedule 2.”

Clause 15.3 states that “each of the executive directors are entitled to a salary and benefits
amount per month.” From my reading of the shareholders agreement and the articles, the
management team was responsible for the day to day management functions on the basis of powers
delegated by the board. It follows that the Board of Directors and the executive directors were not
one and the same. These were two independent levels of authority. Any other interpretation would
yield an absurdity. It would mean that the same people constituting the board would metamorphose
into executive directors and enjoy the day to day management of the company on the basis of
powers they delegated to themselves.
In terms of schedule 2 to the shareholders agreement, some of the functions of the
management team include: implementing board decision and initiatives; management and
implementation of company strategy as set out by the board; periodic reporting back to the Board
on all functions. The executive directors could not periodically report to themselves. They could
only be answerable to the board of directors.
It is in this context that the appointment of the second respondent should be considered.
The notice of the meeting dated 11 January 2021shows that one of the agenda items was to consider
the appointment of the second respondent “as an Executive Director of the company with
immediate effect.” By virtue of such appointment, it meant the second respondent was going to be
part of the management team made up of executive directors and answerable to the board. He was
going to enjoy such salary and perks that are a preserve of executive directors. Such an
appointment could only be made by the board of directors and not shareholders. Shareholders
could only make appointments to the board of directors and not executive directors.
For the foregoing reasons, the court determines that the appointment of the second
respondent as an executive director to represent the interests of the first respondent was highly
irregular. It was not done in terms of the company’s articles or the shareholders agreement.
There is no sufficient evidence before the court to confirm that Mpofu was indeed
appointed as a director of the second respondent. The Form C.R. 14 attached to the applicant’s
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founding affidavit is not stamped nor signed by the registrar of companies. It is dated 1 June 2017,
and lists Mpofu as one of the directors, having been appointed curiously, on the same day, 1 June
2017.
What makes the C.R. 14 even more unreliable is that on 1 August 2017, Messrs Mushoriwa
Pasi Corporate Attorneys wrote to the fourth respondent’s managing director on behalf of the first
respondent. The first respondent wished to appoint Mpofu as director in the company. However
Mpofu had requested that the company’s books be audited for his own comfort before he accepted
the appointment. It is not clear whether that audit was then ever conducted. To the extent that the
C.R. 14 predates the letter from the first respondent’s attorneys, it follows that Mpofu could not
have been appointed director before the request for the audit was made, when it was a precondition
for his appointment.
The dissolution of the board of directors and its substitution with a new board of two persons.
According to the applicants in Case 1, one of the resolutions adopted at the EGM was the
dissolution of the fourth respondent’s board and its substitution by a board of two persons for a
period of 90 days. Those two persons were the second respondent and one Puckson Gumede. The
applicants contend that the resolution was irregular for the following reasons. There was no notice
of the intended resolution in the letter of 11 January 2021. There was also no notice of the intention
to adopt a resolution appointing Gumede as a director in the said letter. The notice convening the
meeting could also not have been valid without describing the purpose for which the meeting was
called.
It was further submitted that the dissolution of the board was made after the EGM for the
fourth respondent had been concluded. The termination of the EGM was a juristic act with its own
attendant legal consequences. It could not be reopened to discuss a matter in respect of which no
notice had been given. There was nothing in the affidavits of the second and third respondents
which answered to this irregularity.
In response, the respondents submitted that agenda item number 8 of the Notice convening
the meeting dealt with this matter. That item referred to “the termination of the Management Team,
Exco and reconstitution with immediate effect”. On that score, the respondents argued that the
dissolution and reconstitution of the board was an agenda item and proper notice was given. They
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further argued that the failure to provide information on the proposed new board members did not
invalidate the resolution.
The respondents further submitted that it was oppressive of the applicants to allege that the
management and executive committee put in place by the shareholders could not be reconstituted
when the need arose.
From a reading of the company’s articles, it is clear to me that there was a difference
between the Board and the management team. The management team was constituted by the Board
of directors. Agenda item 8 of the notice convening the meeting referred to “the termination of the
Management Team, Exco and reconstitution with immediate effect”. It did not refer to the
dissolution of the Board and its reconstitution. That the notice had nothing to do with the
dissolution of the board is clear from the last two pages of the maligned minutes. Under the broad
heading “The termination of the Management Team, Exco and reconstituting thereof with
immediate effect”, there are two further subheadings, which are “General Business” and “Results
& Closure”. Under the heading “Results & Closure”, the following is captured:
“The majority shareholders resolved-
1. Removal of Virgin Management Services as Company Secretary.
2. Appointment of Mr. A Chihiya as Company Secretary with immediate effect.
3. Appointment of Mr. K Sibanda as an Executive Director, member of Management Team.
4. Dissolving of the current Board of Directors of BILTRANS SERVICES P/L and appointment
of an interim board for 90 days consisting of Kenias Sibanda and Puckson Gumede.”

From the above it is clear that the agenda item was concerned with the termination of the
management team and its reconstitution. The second respondent was first appointed as an
Executive Director, which automatically made him part of the Management team. The
shareholders then dissolved the company’s board and replaced it with an interim board for 90 days.
I have already determined that there appears to be a difference between the management
team and the board. In the court’s view the notice convening the meeting was concerned with the
termination of the management team and its reconstitution. The item on the dissolution of the board
was the very last item in the minutes. Whether or not the item was discussed after the termination
of the EGM is not stated in those minutes. It forms part of the dispute concerning the regularity of
those minutes.
The court agrees with the applicants’ contention that the dissolution of the board was
irregular seeing as there was no notice that such a resolution would be taken at the EGM.
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The appointment of Janita Rama and Rashmi D’Almeida as directors to the sixth respondent
in case 2
The applicant claims that a resolution was taken at the EGM to appoint new directors for
the sixth respondent. The existing directors were removed from their positions. No requisite notice
was given in terms of the articles of association. The second respondent had not deposited a notice
confirming his acceptance of the appointment at least 3 days prior to the 8 February 2021 notice.
An objection was raised by applicant’s counsel at the meeting, but it was met with an inadequate
response.
The second respondent is alleged to have communicated the dismissal of the sitting
directors and the appointment of Janita Rama and Rashmi D’Almeida. All this was not recorded
in the minutes. By omitting those important matters from the minutes, the third respondent is
alleged to have shown his bias towards the first and second respondent. He did not even address
the allegations in his opposing affidavit.
The applicant also averred that the dissolution of the entire board and its substitution with
a board of two persons also meant that the shareholders representing the applicant were removed
from their directorships. No cogent reason was given for their removal in the notice convening the
meeting. The notice convening the meeting was therefore defective in failing to adequately inform
the applicant and the directors of the reasons and nature of their removal. This was contrary to the
shareholders agreement. The dissolution of the board and the appointment of the new board could
therefore not have been valid.
The respondents did not address this point in their heads of argument nor in the oral
submissions by their counsel. In their notice of opposition, the first and second respondents averred
that the notice of the meeting clearly referred to the issue of the removal of the current directors
and the appointment of the fourth and fifth respondents as directors. They also denied that Tanner
and Stenton were removed as directors. The only resolution passed pertained to the appointment
of the fourth and fifth respondents as directors. They also averred that the first respondent had the
right to appoint directors in terms of the shareholders agreement.
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In its response, the applicant admitted that the appointment of the fourth and fifth
respondents was itemized as an agenda item. It however insisted that the procedure provided for
in the articles of the company was not followed since no notice was deposited with the sixth
respondent of the intention to propose the fourth and fifth respondents for election. No notice was
also signed by the fourth and fifth respondents indicating their willingness to be elected. The
applicant insisted that Tanner and Stenton were removed as directors. They also averred that the
minutes were doctored to create an impression that this did not happen. Having set out to remove
them, what then became of the issue? The records of the company and the minutes had to reflect
what transpired at the meeting.
Item 5 of the notice of 11 January 2021 convening the meeting made reference to the
appointment of the fourth and fifth respondents as directors. It also made reference to the removal
of the current directors of the company with immediate effect. The minutes of the meeting recorded
the issue as follows:
“The Halyma trust according to the SHA appointed Ms. Janita Rama and Ms. Rashmi D’almeida
as Directors of AUTOSEAL ZIMBABWE P/L. NM stated that according to SHA Halyma Trust
could not remove director appointees by the minority, but instead could only add their appointees
for Halyma Trust.”

The words ‘SHA’ refer to the shareholder agreement while ‘NM’ refers to Nikita Madya
the applicant’s counsel. Clause 6.1 of the shareholders agreement provides that the directors of the
company shall consist of not more than five directors. In terms of clause 6.1.1, the shareholders
were expected to nominate directors in writing as follows: Auto Seal Trust (the applicant herein),
was entitled to nominate two directors; Halyma Trust (the first respondent herein) was entitled to
nominate two directors; Chadwick 4 was entitled to nominate one director.
Clause 6.4 of the shareholders agreement states that the “parties record that, except as is
provided for in this clause 6, the Articles of the Company provide for the appointment and removal
of the Directors, the proceedings at meetings of Directors and of the members as well as the rights,
duties and powers of Directors.” As already stated, the preamble to the sixth respondent’s articles
of association provides that the regulations in Part 1 of Table “A” of the First Schedule of the
Companies Act [Chapter 24:03], shall be the articles of the company, and in the event of
inconsistency between the regulations in Part 1 of Table “A” and the regulations, then the
provisions of the regulations would prevail.
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Regulation 94 of Table “A” of the old Companies Act9 states as follows:

“94. No person other than a director retiring at the meeting shall be eligible for election to the office
of director at any general meeting unless not less than three nor more than twenty-one days before
the date appointed for the meeting there shall have been left at the registered office of the company
notice in writing, signed by a member duly qualified to attend and vote at the meeting for which
such notice is given, of his intention to propose such person for election and also notice in writing
signed by that person of his willingness to be elected.”

It is this regulation that the applicant contends was not complied with in the proposed
resolution to appoint new directors of the sixth respondent. The issue was raised in the written
objection that was submitted to the chairperson at the commencement of the EGM.10 It was not
considered at all by the second respondent. The failure by the second respondent to address the
objection made by the applicant at the onset of the meeting made the purported appointments
irregular. In Marting v Van Oordt Russel and Co Ltd11 the court held that where a shareholder
present in a meeting does not protest against an illegality, he cannot subsequently challenge the
proceedings on the basis of the irregularity if the irregularities are such as could have been
corrected. In the instant case, the applicant protested the irregularities, but the second respondent
chose to ignore its concerns. He ought to have addressed the alleged irregularities before
proceeding with the business of the meeting.
What is also not clear from the papers is whether the nominations by the first respondent
were intended to replace the first respondent’s own representatives who were already on the board
or the removal was targeting the applicant’s representatives. This is because the shareholders
agreement only permitted the first respondent to nominate two directors.
I however agree with the applicant’s submission that the shareholders agreement as read
with the articles did not permit any shareholder to remove the other shareholders representatives
on the board. My interpretation of the shareholders agreement is that each shareholder was entitled
to representation at the board level in order to protect its interests in the company. The first
respondent denied that the applicant’s directors were removed. The applicants insisted that its
representatives were removed. No evidence was placed before the court to explain what exactly
transpired. The extract from the minutes merely records that the applicant’s counsel pointed out to
the chairperson that the first respondent could not remove the minority shareholders’

9 [Chapter 24:03]
10
See paragraph 5 of the objection on p 35 of the record in Case 2.
11 1939 CPD 106
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representatives to the board. Whether that then transpired is a matter of conjecture. Be that as it
may, if any resolution for the removal of the minority shareholders representatives on the board
was ever passed, then it was also irregular.
Oppression of minorities
The applicants’ contention in both Case 1 and 2 is that the conduct of the respondents is
oppressive of the minority rights of the applicants. The respondents are accused of trampling upon
the rights of the minorities in complete violation of the shareholders agreement, the articles and
the provisions of the COBE. The relationship between the shareholders had completely broken
down. The applicants in Case 1 gave as an example, the hostile takeover of the management of the
company’s executive functions by the second respondent and the removal of directors representing
minority interests. In Case 2, the applicants cited the hostile removal of directors representing
minority interests and all the matters referred to as part of their complaints.
It was in view of the foregoing that the applicants petitioned the court for an order
compelling the first respondent to purchase their entire shareholding within 90 days of the date of
the court’s order in terms of clause 22 of the shareholders agreement, as read with ss 223 and 225
of the COBE. The applicants further submitted that the court is empowered to grant a variety of
remedies in order to regulate the company’s future affairs.
In response, the respondents argued that while the applicants had alleged oppression, they
had not proved such oppression. The fact that a majority shareholder called a meeting and sought
resolutions did not render such actions oppressive. There was a distinction between being
oppressed and simply not liking a decision that was properly taken. The respondents further argued
that the applicants were at liberty to appoint directors of their choice in the two companies, and
those directors had not been removed. The respondents also argued that the dissolution of the
management teams and the Exco committee constituted a breach of contract capable of resolution
by way of arbitration as provided for in the shareholders agreement.
Section 223 of the COBE provides an avenue through which a member of a company can
approach the court for relief where they allege that the affairs of the company are being conducted
by the majority in a manner which is oppressive or unfairly prejudicial to their interests. The
section states as follows:
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“223 Order on application of member

A member of a company may apply to the court for an order in terms of section 225 (“Powers of High
Court in applications under sections 223 to 224”) on the ground that the company’s affairs are being or
have been conducted in a manner which is oppressive or unfairly prejudicial to the interests of some
part of the members, including himself or herself, or that any actual or proposed act or omission of the
company, including an act or omission on its behalf, is or would be so oppressive or prejudicial.”

Section 225 (1) of the COBE provides that if the court is satisfied that an application under
s 223 is well founded, it may make such order as it thinks fit for giving relief in respect of the
matters complained of. Section 225(2), provides the kind of relief the court may grant. It states as
follows:
“(2) Without prejudice to the generality of subsection (1), the court’s order
(a) regulate the conduct of the company’s affairs in the future;
(b) require the company to refrain from doing or continuing an act complained of by the applicant or to
do an act which the applicant has complained it has omitted to do;
(c) authorise civil proceedings to be brought in the name and on behalf of the company by such person
or persons as the court may direct;
(d) provide for the purchase of the shares of any members of the company by other members or by the
company itself and, in the case of a purchase by the company itself, the reduction of the company’s
capital accordingly.” (Underlining for emphasis)

The court was urged to grant the relief in s 225(2)(d). TURBETT AJ dealt with a provision
similar to s 223 of the COBE in Aspek Pipe Co (Pty) Ltd v Mauerberger12. The court held as
follows:
“It is quite clear, in my view, that an applicant for relief under this section (111) must show that
the affairs of the company are being conducted in a manner oppressive to him as a member, or to
some part of the members of the company as members of that company. In other words the conduct
complained of must be oppressive to the petitioner qua shareholder and member … and not to him
in some other capacity such as a director or servant or employee or agent of the company.”

In the case of Wilds Home Owners Association and Others v Van Eeden and Others13, the
court held that the test is one of fairness and the court noted that there must be evidence “of a
visible departure from the standards of fair dealing and a violation of the conditions of fair play
on which every shareholder who entrusts his money to a company is entitled to rely.”
It is common cause that the applicants’ complaints herein were triggered by events that
occurred at the EGM. It is mostly about the manner in which the meeting was called by the first
respondent, the manner in which the meeting unfolded, and the resolutions passed at the meeting.

12 1968 (1) SA 517 (C)

13 (53643/09) [2011] ZAGPPHC 101 (25 May 2011)
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Littleford, who happens to be the deponent of the applicants’ founding affidavit in both Case 1 and
2 acknowledged that the first respondent made a requisition for the extra ordinary general meeting
of the members of the two companies. That requisition was not complied with for reasons that the
court finds rather unconvincing. From a reading of the founding affidavit, and the reasons given,
one is excused to conclude that the parties that were supposed to convene the meeting were simply
uncooperative. That would probably explain the second respondent’s somewhat abrasive approach
at the meeting as narrated by the applicants. The first respondent was left with no option but to
proceed in terms of s 168(3) of the COBE.
One is also justified to surmise that had the company secretary complied with the
requisition for the EGM by the first respondent, perhaps events would not have unfolded in the
manner they did at the EGM. Battle lines had already been drawn even before the meeting took
off. That kind of rift between the parties, which was triggered by events that occurred at one
meeting can hardly justify the intervention of this court in terms of s 223 of the COBE. I agree
with the respondents’ submissions that there is no sufficient evidence that justifies the relief sought
in terms of s 225 of the COBE.
While the court accepts that the first, second and third respondents may not have conducted
themselves at the meeting in a manner that is consistent with the law, the companies constitutive
documents and the shareholders agreement, the court is not satisfied that it is the sort of conduct
for which the court can be approached under s 223 of the COBE. That section requires an applicant
to show that the company’s affairs “are being or have been conducted” in a manner that the
applicant finds to be oppressive to the interests of the minority. That suggests to the court that the
improper conduct complained of was persistently and consistently repeated.
In the alternative, the applicant is required to show that “any actual or proposed act or
omission of the company including an act or omission on its behalf is or would be so oppressive
or prejudicial.” That alternative wording suggests to me that even a single act or omission may
justify an approach to the court for the relief sought herein. But the considerations do not just end
there. The conduct complained of can be corrected by the court without the need to resort to the
more drastic measure provided in s 225(2)(d). The remedies provided in s 225(2)(a)-(c) can be
granted by the court without the need to resort to the remedy in s 225(2)(d), which should be
considered as a last resort. Put differently, from my reading of s 223 and the remedies provided in
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s 225(2)(a)-(d), the conduct complained of by the minority shareholders should be so grave so as

to leave the court in no doubt that only the remedy provided under s 225(2)(d) must resorted to in
order to arrest an untenable state of affairs in the company. The remedy provided under s 225(2)(d)
comes with many consequences that the court must be alive to. It has serious financial implications
on the part of the majority shareholder, and yet the court does not have sufficient information to
determine whether its order will be complied with.
I have already highlighted that the infractions complained of by the applicants in both cases
emanate from certain procedural flaws in the manner in which the EGM was convened, as well as
the manner in which certain resolutions were taken at the same meeting. In the applicants’ papers,
it was not suggested that such infractions have been ongoing. They appear to have been confined
to the EGM. What is clear to me is that there is some serious mistrust between the majority and
minority shareholders going by the accusations that were traded by either side. It all boils down to
accountability, with the second respondent accusing the management teams of not having been
transparent in the manner they have been running the affairs of the two companies.
It is a simple principle of corporate law that those reposed with the duty of superintending
over the affairs of the company on a day to day basis must do so cognizant of their duties to the
shareholders of the company. Going by the accusations exchanged by the parties, those simple and
basic tenets of company management appear to have been missing. These can be fixed within the
boardroom without resort to the measures provided for in s 225(2)(d). I agree with the respondents’
contention that some of the disputes are easily resolvable in terms of the parties’ shareholders
agreement. That’s what a shareholders agreement stands for. The courts should always be slow to
interfere in the affairs of the company by prescribing the kind of relief prescribed in terms of s
225(2)(d), unless the circumstances are so grave to justify such intervention. Companies must be
left to regulate their affairs in terms of their constitutive documents. The court finds no merit in
the relief sought by the applicants.
The fate of the minutes
Earlier in the judgment, the court resolved that the fate of the minutes could be determined
independent of the main complaints raised by the applicants. The draft orders in both cases do not
seek specific relief regarding the minutes. It is in the board of the affidavits that the applicants
stated that in the event that the court upholds the meeting, then the minutes should be declared not
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to be a true record of what transpired at the EGM. It is common cause that the minutes of a meeting
are only proposed and adopted as a correct record of what transpired at the meeting, in the next
meeting. They are circulated in advance to afford attendees an opportunity to go through and make
corrections if need be. Such corrections will be formerly adopted at the next meeting where the
minutes will then be adjusted accordingly before being accepted as a true record of the earlier
meeting.
Section 180 of the COBE which provides for minutes of meetings of members only speaks
of the need to prepare minutes of meetings promptly at least within 20 days after the meeting. It
also makes reference to the matters that should be captured in those minutes.14 That provision does
not provide much guidance on how disputes concerning the correctness of minutes must be
resolved. In my view, any dispute concerning the correctness of the minutes is matter that should
be dealt with by the meeting itself. The parties that are dissatisfied with the contents of the minutes
must do so within the parameters that permit the correction of minutes of a company generally.
Although the third respondent did not respond to the applicants’ concerns as regards the
correctness of the minutes, it is the court’s view that those concerns must be dealt with at the next
meeting. The court cannot substitute itself as the chairperson of the meeting in order to determine
whether the minutes correctly reflect the business of the meeting. It is purely an internal
administrative matter that should be resolved by the company itself.
CONCLUSION
In conclusion, the court determines that the notice convening the EGM of the two
companies issued by requisitionists, in terms of s 168(3) and (4) of the COBE was not as deficient
as to render it fatal. The EGMs of the two companies were convened in a manner that was as nearly
as possible to an EGM convened by directors. The court further determines that the resolutions
passed at the EGMs were not passed in terms of the companies’ constitutive documents and the

14“180 Minutes of meetings of members

(1) A record of each meeting of members shall be prepared as promptly as possible but not later than twenty (20) days after the
meeting, and shall be signed by the chairperson and any secretary of the meeting, who shall be responsible for its completeness and
accuracy.
(2) The minutes shall include the date, time and place of the meeting, the name of the chairperson and any secretary of the meeting,
in the case of a private company, the names of the shareholders present, the agenda, the number of shares and votes represented
both in person and by proxy, the ballot or other procedures used for voting, the issues voted on and the number of votes “for,”
“against” or abstained on each issue, a summary of speeches and discussions, and a list of the decisions actually made at the
meeting.
(3) The minutes shall be retained by the company and made available to any shareholder for inspection and copying at his or her
expense during normal business hours.”
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law thus rendering them null and void. The resolutions must be set aside. The court also resolved
that there was no sufficient justification to order and direct that the majority shareholder in both
companies must acquire the minority shareholders’ interests in terms of s 225(2)(d), as read with
s 223 of the COBE.
COSTS OF SUIT
The general rule is that the successful party is entitled to costs on a scale which must be
determined depending on the nature of the case and the manner in which litigation was conducted.
While the applicants portrayed themselves as the aggrieved parties herein, and were to a larger
extent successful, their conduct was not entirely without blame. It was the applicants’ failure to
call for the EGM in line with the requisition by the first respondent in both matters that triggered
the litigation that could probably have been avoided. The court considers it befitting in the
circumstances that each be ordered to bear its own costs of suit.
DISPOSITION
Resultantly it is ordered that:
In respect of HC 1351/21:
1. The resolution for the appointment of the Third Respondent as the Fourth Respondent’s
Company Secretary be and is hereby declared to be null and void and accordingly set aside.
2. The resolution for the appointment of the Second Respondent as Executive Director is
hereby declared null and void and accordingly set aside.
3. The resolution for the dissolution of the board of Biltrans Services (Private) Limited dated
the 8th February 2021 is declared null and void and it is hereby set aside.
4. That the resolution for the reconstitution of the management team and the Executive
Committee be and is hereby declared null and void and accordingly set aside.
5. All documents filed pursuant to the resolutions passed on the 8th of February 2021 be and
are hereby set aside and the documents relating to the status of the company and its
Directors in existence prior to the 8th of February 2021 be and are hereby revived.
6. That each party shall bear its own costs of suit.

In respect of the HC 1270/21:

1. The resolution for the appointment of the Third Respondent as the Sixth Respondent’s
Company Secretary be and is hereby declared to be null and void and accordingly set aside.
2. The resolution for the removal of DAVID EDWIN TANNER and RICHARD ERIC
STENTON as Directors of the Sixth Respondent is declared to be null and void and it is
hereby set aside.
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3. The resolution for the appointment of the Fourth and Fifth Respondents not having been
done in accordance with the law and the company’s constitutive documents is declared to
be null and void and it is hereby set aside.
4. All documents filed pursuant to the resolutions passed on the 8th of February 2021 be and
are hereby set aside and the documents relating to the status of the company and its
Directors in existence prior to the 8th of February 2021 be and are hereby revived.
5. Each party shall bear its own costs of suit.

Wintertons, applicant’s legal practitioners

Tanaka Law Chambers, first & second respondents’ legal practitioners