Langeni and Another v South African Women In Mining Association and Others (27669/2022) [2023] ZAGPJHC 1309 (10 November 2023)

Langeni and Another v South African Women In Mining Association and Others (27669/2022) [2023] ZAGPJHC 1309 (10 November 2023)

The court found that the removal of the applicants as directors of SAMIWA was unlawful and invalid. The board failed to establish any substantive grounds for removal as required by section 71(3) of the Companies Act, such as dereliction of duty, incapacity, or serious misconduct. The alleged conduct of the applicants—attending meetings and purportedly taking sides—did not amount to a breach of fiduciary duty or justify removal. Furthermore, the board did not comply with procedural requirements, as notice was not properly given prior to the meeting where the removal was resolved, and the subsequent notice was an attempt to circumvent statutory requirements. The court held that internal...

Citation
[2023] ZAGPJHC 1309
Parties
Applicant: Noluthando Langeni; Applicant: Katlego Rathebe-Mathole; Respondent: South African Women in Mining Association; Respondent: Victoria Sehako; Respondent: Masikini Sithole; Respondent: Patricia Mahiwa; Respondent: Fezeka Mavuso; Respondent: Mabel Phooko; Respondent: Innocent Mathonsi; Respondent: Fasken Attorneys
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
10 November 2023
Case Number
27669/2022
Procedural Posture
Review Application / Opposed Motion for Review and Reinstatement
Outcome
Application granted; removal of applicants as directors set aside and applicants reinstated.
Judges
ML Senyatsi
Legal Topics
Removal of Directors, Fiduciary Duties, Companies Act Section 71, Procedural Fairness, Board Resolutions
Commercial and Corporate Civil Procedure Removal of Directors Fiduciary Duties Companies Act Section 71 Procedural Fairness Board Resolutions

Case Brief

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Parties

Noluthando Langeni

Applicant

Katlego Rathebe-Mathole

Applicant

South African Women in Mining Association

Respondent

Victoria Sehako

Respondent

Masikini Sithole

Respondent

Patricia Mahiwa

Respondent

Fezeka Mavuso

Respondent

Mabel Phooko

Respondent

Innocent Mathonsi

Respondent

Fasken Attorneys

Respondent

Procedural Posture

Review Application / Opposed Motion for Review and Reinstatement

Legal Issues

  1. 1 Whether the removal of the applicants as directors of SAMIWA was lawful and valid under section 71(3) of the Companies Act.
  2. 2 Whether the board complied with procedural requirements for removal, including notice and opportunity to respond.
  3. 3 Whether the applicants' alleged conduct constituted dereliction of duty, incapacity, or serious misconduct justifying removal.

Ratio Decidendi

The court found that the removal of the applicants as directors of SAMIWA was unlawful and invalid. The board failed to establish any substantive grounds for removal as required by section 71(3) of the Companies Act, such as dereliction of duty, incapacity, or serious misconduct. The alleged conduct of the applicants—attending meetings and purportedly taking sides—did not amount to a breach of fiduciary duty or justify removal. Furthermore, the board did not comply with procedural requirements, as notice was not properly given prior to the meeting where the removal was resolved, and the subsequent notice was an attempt to circumvent statutory requirements. The court held that internal...

Court Disposition

Application granted; removal of applicants as directors set aside and applicants reinstated.

Orders

  • The decision of the board of directors of the first respondent taken at the meeting on 2 December 2022 purporting to remove the applicants as directors is set aside.
  • The applicants are reinstated as directors of the first respondent with immediate effect.