Briers and Another v Dr J Bruwer and Associates No 78 Inc and Others (19726/2023) [2025] ZAWCHC 223 (27 May 2025)

[6]       
The claim that the applicants lack the locus standi to seek relief
under section 163 of the Companies Act, is based on the notion that
the applicants are no longer shareholders of the first respondent as
the termination of their consultancy
agreements triggered a forced
sale of their shares.

 

[7]       
As to the merits, the respondents’ case is that the consultancy
agreements with
the applicants were lawfully terminated in accordance
with the provisions contained therein and that the applicants have
not provided
evidence in support of their claim that the fourth
respondent acted in a manner that was oppressive and unfairly
prejudicial to,
and/or that unfairly disregarded their interests.

 

[8]       
It is necessary to provide a brief factual background before
considering the dispute
between the parties and to which I turn.

 

Factual background

 

[9]       
The first respondent was incorporated for the purposes of conducting
a medical practice
at the premises situated at 95 Blaauwberg Road,
Table View, Cape Town. Its shareholding is limited to practitioners
who are registered
in terms of the Health Professions Act No 56 of
1974 (Health Professions Act) and who practice the profession of a
medical practitioner,
dentist, psychologist or a supplementary health
service contemplated in section 32 of the Health Professions Act. In
terms of its
Memorandum of Incorporation (MoI), it has a maximum of
1000 (One Thousand) ordinary shares with a par value of R1.00 each.

 

[10]     
A practitioner who desires to acquire shares in the first respondent
is required to first conclude
a consultancy agreement with the first
respondent. The consultancy agreement regulates the acquisition and
loss of shares in the
first respondent under certain circumstances.  

 

[11]     
The terms of the consultancy agreement that is concluded with each
practitioner are similar.
Of relevance to these proceedings are
clauses dealing with the subscription for shares, the duration and
termination of the consultancy
agreement as well as some of the
consequences of termination of the consultancy agreement. These are
clauses 4, 5.1 and 5.3.4,
respectively in the consultancy agreement
concluded with the first applicant and clauses 5, 6.1 and 6.4.4
respectively in the consultancy
agreement concluded with the second
applicant. These clauses are identical, and I only set out the ones
contained in the consultancy
agreement that was concluded with first
applicant.

 

[12]     
Clause 4 provides that ‘The Consultant hereby subscribes for 1
(One) ordinary share in
the share capital of the Company at the par
value thereof and the Company hereby agrees to allot and issue to the
Consultant as
soon as possible after the signature of this agreement
and in any event prior to the payment of any consideration by the
Company
to the Consultant.’  

 

[13]     
Clause 5.1 deals with the right of each party to terminate the
consultancy agreement and reads
‘Notwithstanding the date of
signature hereof this Agreement shall be deemed to have commenced on
the effective date and
shall continue in full force and effect
indefinitely subject to the right of either party to terminate this
agreement by giving
to the other party 30 (Thirty) days written
notice of termination.’

 

[14]     
Clause 5.3.4 which deals with some of the consequences of the
termination of the consultancy
agreement reads ‘On termination
of this Agreement the Consultant shall forthwith be deemed to have
sold his/her share in
the Company to any other shareholder nominated
by the director/s of the Company for a purchase price of R1.00 (One
Rand). For the
purposes of the sale, the Consultant hereby nominates,
constitutes and appoints any director of the company, with the power
of
substitution, to be his/her lawful attorney and agent in his/her
name, place and stead to sign any document necessary to procure
the
transfer of the share including but not limited to the signature of a
share transfer form.’

 

[15]     
The acquisition of shares in the first respondent was regulated as
follows in respect of its
first shareholders: the first respondent
concluded a sale and purchase agreement with each practitioner in
terms of which the first
respondent sold to each practitioner what is
referred to as ‘the drawing power’ in the first
respondent’s business.
The drawing power includes goodwill, a
patient base, reputation and a practice site. The conclusion of the
sale and purchase agreement
was followed by the conclusion of the
consultancy agreement with each practitioner. As already stated, the
terms of the consultancy
agreement are, to a large extent, the same.
The conclusion of the consultancy agreement was followed by allotment
of shares in
the first respondent.

 

[16]     
A practitioner who terminates the consultancy agreement is able to
sell the drawing power subject
to certain conditions that are not
relevant to this application. In that event, the practitioner
receives payment from the purchaser
of such drawing power and the
first respondent’s obligation is to conclude a consultancy
agreement with the purchaser of
such drawing power. Importantly, the
purchaser of the said drawing power pays no consideration to the
first respondent for the
acquisition of the 1 (One) share that is
allotted to him or her pursuant to concluding the consultancy
agreement.

 

[17]     
In the event of death of a practitioner, the executor/executrix of
his or her estate is also
able to sell the drawing power that had
been purchased by the deceased practitioner, also subject to certain
conditions not relevant
for the present purposes. Similarly, the
executor/executrix receives payment from the purchaser of such
drawing power and the first
respondent’s obligation is to
conclude a consultancy agreement with the purchaser of such drawing
power. Also, the purchaser
of the said drawing power pays no
consideration to the first respondent for the acquisition of the 1
(One) share that is allotted
to him or her pursuant to concluding the
consultancy agreement.     

 

[18]     
The first applicant concluded a sale and purchase agreement with the
first respondent on 11 October
2007 in terms of which he purchased
the drawing power from the first respondent for the sum of R210
000.00 and further undertook
to enter into a consultancy agreement
with the first respondent. In line with the aforesaid undertaking, he
signed the consultancy
agreement on 27 February 2008 pursuant to
which he was allotted 1 (One) ordinary share in the share capital of
the first respondent.
The first applicant paid the sum of R210 000.00
in respect of the purchase of the drawing power to the first
respondent. He paid
no separate consideration in respect of the
allotment of the 1 (One) ordinary share in the share capital of the
first respondent.

 

[19]     
The second applicant concluded a sale of practice agreement with an
executrix of the estate of
the late Doctor Pierre Rossouw (the late
Dr Rossouw) on 5 February 2021. The late Dr Rossouw, during his
lifetime, was one of the
first respondent’s shareholders and
consultants. In terms of this sale of practice agreement, the second
applicant acquired
the drawing power that had been purchased by the
late Dr Rossouw from the first respondent. The purchase consideration
was the
sum of R300 000.00 which the second applicant paid to the
executrix of the estate of the late Dr Rossouw. Thereafter, the
second
applicant concluded the consultancy agreement with the first
respondent on 24 August 2021, and pursuant thereto he was allotted
1
(One) ordinary share in the share capital of the first respondent.
The second applicant paid no consideration to the first respondent

for the allotment of the 1 (One) ordinary share.  

 

[20]     
On 1 March 2022, the first respondent’s board of directors
resolved to allot 9 (Nine) ordinary
shares to each of its consultants
including the applicants. As the fourth respondent explains in the
answering affidavit, this
was done for administrative purposes. This
would, for example enable the first respondent to allocate the shares
of a practitioner
who had terminated his consultancy agreement to the
remaining practitioners.   

 

[21]     
The consultancy agreement concluded with the second applicant made
provision for him to be remunerated
on a sliding scale based on the
aggregate monthly fees charged by the first respondent in respect of
medical services he rendered
to the first respondent’s
patients. In terms of this remuneration structure (the original
remuneration structure) the second
applicant was to be remunerated as
follows:

 

21.1   
35% of the aggregate monthly fees that are less than R114 080.94; or

 

21.2   
40% of the aggregate monthly fees that are equal to or more than R114
080.94 but less than R136 897.56; or

 

21.3   
45% of the aggregate monthly fees that are equal to or more than R136
897.56 but less than R180 251.36; or

 

21.4   
48% of the aggregate monthly fees that are equal to or more than R180
251.36 but less than R228 164.10; or

 

21.5   
50% of the aggregate monthly fees that are equal to or more than R228
164.10 but less than R319 430.61.

 

21.6   
60% of aggregate monthly fees in excess of R319 430.61.

 

21.7   
50% of the first respondent’s gross monthly profit in respect
of materials, consumables and injections
used by the second
applicant,

 

21.8   
70% of aggregate monthly fees in respect of theatre procedures
conducted in a Medicross registered theatre,
and

 

21.9   
50% of the aggregate monthly fees in respect of theatre procedures
conducted in other registered theatres

 

[22]     
The original remuneration structure was amended when the applicant
and the first respondent concluded
an addendum on the same date of
the signature of the consultancy agreement. In terms of the amended
remuneration structure, which
was to apply until 28 March 2022, the
second applicant was to be remunerated at a flat rate of 50% of the
aggregate monthly fees
charged by the first respondent in respect of
medical services he rendered to the first respondent’s
patients. The second
applicant’s remuneration would revert to
the original remuneration structure from 1 March 2022.

 

[23]     
The second applicant’s remuneration, however, continued based
on the amended remuneration
structure beyond 28 February 2022.
According to the first applicant, the second applicant’s
remuneration and that of Doctor
Nizaam van der Schyff (Dr van der
Schyff) were amended to a less favourable sliding-scale structure
which differs materially from
the remuneration structure that applied
to the other shareholders. This is, however, denied by the fourth
respondent who points
out that the remuneration of the second
applicant was not amended during 2023 but that it was agreed upfront
that the second applicant
would be remunerated on a sliding-scale
other than for the period that the amended remuneration structure
applied, that is until
28 February 2022.

 

[24]     
Further, according to the first applicant, the amendment of the
remuneration structure applicable
to the second respondent was a
unilateral decision that was made by the first respondent through the
fourth respondent. And that
this was notwithstanding the fact that
the second applicant had negotiated an addendum to his consultancy
agreement which had the
effect that he was remunerated on a scale
equal to the other shareholders. Again, this is denied by the fourth
respondent who points
out that the original remuneration structure
was agreed upfront and was to apply from 1 March 2022, as per the
addendum to the
consultancy agreement.

 

[25]     
When the first respondent became aware of the oversight relating to
the remuneration of the second
applicant during June 2023, the second
applicant was advised that his remuneration would revert to the
original remuneration structure.
According to the first applicant,
the second applicant queried the motives and reasons for his and Dr
van der Schyff’s remuneration
structure being less favourable
than the other shareholders but was told not to ask questions.

 

[26]     
According to the first applicant Dr van der Schyff terminated his
consultancy agreement and sold
his shares in the first respondent to
a third party for an amount of R800 000.00 and that this was because
of the oppressive behaviour
by the first respondent. The fourth
respondent, however, denies that Dr van der Schyff sold any shares he
held in the first respondent.
Instead, Dr van der Schyff terminated
the consultancy agreement in terms of its provisions and sold his
participating drawing power
as he was entitled to after having
terminated the consultancy agreement. In short, his exit was done in
compliance with the provisions
of the consultancy agreement.

 

[27]     
According to the first applicant, he together with the second
applicant realised that an Annual
General Meeting (AGM) of the first
respondent had not been called. Notwithstanding this, the fourth
respondent had circulated minutes
of an AGM ostensibly held on 31
March 2023. This is disputed by the fourth respondent who states that
the AGM was conducted by
way of a round robin process due to the
conduct of the second respondent.

 

[28]     
On 13 August 2023, TS Law Inc attorneys, acting on behalf of the
applicants, addressed a letter,
to Medicross Healthcare Group (Pty)
Ltd and the first respondent raising a number of issues that were of
concern to the applicants
and suggested a meeting for the purposes of
attempting to resolve the aforesaid issues.

 

[29]     
The letter referred to above raised the following issues relating to
the second applicant:

 

29.1   
that the second applicant had received an email on or about 1 August
2023 from the first respondent claiming
that the second applicant was
owing some monies;

 

29.2   
that the second applicant placed on record that the agreed
remuneration structure had been unilaterally changed
despite the
initial understanding and agreement that the amended remuneration
structure would apply;

 

29.3   
that the second respondent had made various attempts to have the
issue of the remuneration structure remedied
so that the amended
remuneration structure continues to apply;

 

29.4   
that the second applicant had been paid R20 000 short for the period
between June and July 2023, without
any valid reason;

 

29.5   
that the first respondent had advised that it did not remunerate the
consultants uniformly and that it had
failed to accede to the second
applicant’s requests to have the remuneration of the
consultants standardised;

 

29.6   
that the second applicant was of the view that the remuneration
structure is designed to disadvantage only
certain shareholders which
the second applicant considered to be highly unethical; and

 

29.7   
that the second applicant intended to institute a claim to recover
all monies that were due to him by the
first respondent.

 

[30]     
The letter also raised some issues relating to Dr Gouws, who it
appears, was employed by the
first applicant as a locum. The first
applicant was concerned with the first respondent’s attempts to
employ Dr Gouws essentially
poaching Dr Gouws away from him.

 

[31]     
According to the first applicant, the second applicant attempted, on
16 August 2023, to discuss
the matter with the fourth respondent who
refused to engage meaningfully other than indicating that he would
terminate the second
applicant’s consultancy agreement. 

 

[32]     
On 18 August 2023, the second applicant was served with a thirty-day
notice of the termination
of the consultancy agreement and was
advised that the effective date for the termination of the
consultancy agreement would be
17 September 2023.

 

[33]     
On 8 September 2023, Lizette Smit (Ms Smit) of Parker Attorneys
addressed a letter to the respondents’
legal representatives
requesting the first respondent’s MoI as well as the resolution
in terms of which the consultancy agreement
with the first respondent
was terminated. The letter further requested an extension of the
effective date of the termination of
the consultancy agreement in
order to afford the second applicant time to consider his rights so
that he could make an informed
decision.

 

[34]     
The respondents’ attorneys responded on 11 September advising
that the second applicant’s
tenure would not be extended and
that a ‘forced sale of shares’, a reference to clause
6.4.4 of the consultancy agreement
concluded with the second
applicant, had been triggered through the termination of the
consultancy agreement.

 

[35]     
Ms Smit responded on 13 September 2023 advising that the second
applicant would not accept payment
of R300 000, a reference to the
amount that the second applicant had paid when he purchased the late
Dr Rossouw’s drawing
power. Instead, Ms Smit advised that the
second applicant would accept payment of the sum of R800 000, an
amount based on what
Dr van der Schyff, who had also been one of the
first respondent’s consultants and shareholders, had sold his
drawing power
in the first respondent.

 

[36]     
In response, the respondents’ attorneys advised that (a) the
first respondent had made
no offer to pay R300 000, (b) the
counter-offer of R800 000 by the second applicant was rejected, (c)
the consultancy agreement
provides that R1.00 is payable upon
termination, and (d) the first respondent did not consent to the
second applicant finding an
alternative consultant to acquire his
share from him.

 

[37]     
On 3 October 2023, the applicants’ attorneys of record
addressed a demand for a shareholders’
meeting in terms of
section 61(3) of the Companies Act to the respondents’
attorneys. The demand listed the following issues to be deliberated
upon at the said meeting; namely:

 

37.1   
the different classifications of the current issued share capital of
the Practice and the consequences for
shareholders;

 

37.2   
the inconsistencies between the deeming provisions in the Practice’s
MoI and consultancy agreements
pertaining to termination and deemed
offer and/or sale of shares;

 

37.3   
the appointment of an independent valuer to obtain the value of each
shareholder’s shareholding in
the Practice, to determine the
purchase price when a shareholder’s consultancy agreement is
terminated;

 

37.4   
the amendment of the MoI by special resolution to classify the
Practice as having one class of ordinary non-par
value shares to
bring it consistent with the Practice’s conduct and in
compliance with the Companies Act;>

 

37.5   
the amendment of the MoI by special resolution to allow a shareholder
to appoint any other person as a proxy
as provided for in the
Companies Act; and

 

37.6   
the amendment of the MoI by special resolution to provide for the
Practice to have at least 3 (Three) directors
who are also
shareholders and practitioners of the Practice           

 

[38]     
On 19 October 2023, the first applicant was served with a thirty-day
notice of the termination
of the consultancy agreement and was
advised that the effective date of the termination of the consultancy
agreement would be 18
November 2023.  

 

[39]     
On 1 November 2023, the applicants’ attorneys wrote to the
respondents’ attorneys
following up on the demand for a
shareholders’ meeting. The respondents’ attorneys
reverted on the same day advising
that the provisions of the
consultancy agreement relating to forced sale had been triggered and
that the first applicant no longer
had a legal standing to insists
upon any shareholder meetings. The applicants’ attorneys were
also requested to provide the
banking details into which to pay the
amounts due to applicants.

 

[40]     
The above response from the respondents’ attorneys prompted the
present application which
had two parts. Part A was an urgent
interdictory relief which was heard on 17 November 2023 and which was
directed at preventing
the respondents from implementing the decision
to terminate the consultancy agreement with the first applicant as
well as implementing
the ‘forced sale of shares’
triggered by the termination of the consultancy agreements concluded
with the applicants,
pending the relief sought in Part B. Part A of
the application was dismissed, and it is Part B that came before me.
There were,
however, some interlocutory proceedings that took place
before the hearing of Part B that I need to deal with.

 

Litigation history

 

[41]     
As already stated, the application was launched
during November 2023 for hearing of Part A on 17 November 2023. The
relief sought
in Part A was refused and the respondents filed their
supplementary answering affidavit on 11 April 2024.

 

[42]     
On 18 April 2024, the applicants filed an application for leave to
amend the notice of motion
which was opposed by the respondents. The
application for leave to amend came before Cloete J on 24 April 2024
who delivered her
judgment on 30 May 2024 granting the first
applicant leave to amend the notice of motion and refusing it in
respect of the second
applicant.

 

[43]     
On 14 June 2024, the applicants filed an amended notice of motion as
well as an application for
leave to appeal. On 25 July 2024, the
first applicant filed an application in terms of Rule 10 (5) of the
Uniform Rules of Court
to separate the hearing of his application
from that of the second applicant (separation application).

 

[44]     
The respondents opposed the separation application and was set down
for hearing on 20 November
2024. On 5 November 2024, Cloete J made an
order granting the second applicant leave to amend and this appears
to have been based
on an agreement between the parties.

 

[45]     
On 6 November 2024, the first applicant withdrew the separation
application with costs standing
over for later determination. Thus,
one of the issues to be determined in this application are the costs
in relation to the separation
application.        
 

 

The Applicants’
case

 

[46]     
The applicants say that they have approached the Court as minority
shareholders each holding
10% of the issued shares in the first
respondent. They contend that the fourth respondent has abused his
position as the sole director
of the first respondent, and has
thereby acted, and carried on the business of the first respondent,
in a manner that is oppressive
and unfairly prejudicial to, and/or
that unfairly disregards their interests as minority shareholders.
The remaining shareholders,
so the argument goes, have largely
enabled and/or supported the fourth respondent’s conduct.

 

[47]     
The applicants argue that their rights to practice as consultants in
the first respondent in
terms of their consultancy agreements, were
unilaterally terminated by the first respondent under the control and
on the initiative
of the fourth respondent, upon thirty days’
notice. At the heart of the relief sought they seek, is their
contention that
such termination followed as a direct result of their
querying the treatment of the second applicant, as well as their
requests
and demands addressed to the fourth respondent to hold an
annual general meeting and/or shareholders’ meeting in order to

re-elect a director for the first respondent and to address certain
concerns regarding the fourth respondent’s autocratic

governance of the first respondent. They argue that they were not
given an opportunity to defend themselves and make representations
in
an effort to avoid their membership of and participation in the first
respondent being voided. The unilateral and summary termination
of
their consultancy agreements, it was submitted, constitutes glaringly
oppressive and prejudicial conduct.

 

[48]  Regarding the
termination of the second applicant’s consultancy agreement,
the applicants argue that his consultancy
agreement was unilaterally
amended during 2023 by way of an addendum, which in effect introduced
a six-month period during which
his commission structure was set at a
less favourable sliding-scale structure than applicable to other
shareholders. They point
out that the respondents’ explanation
for this, that was intended to afford the second respondent six
months to “find
his feet” and that it was negotiated with
him, does not detract from the fact that he was treated differently.

 

[49]     
The other factor relied upon by the applicants, is the response that
the second respondent received
when he queried the motives and
reasons for the unilateral amendment of his remuneration structure,
namely that he was told not
to ask questions. The applicants then
refer to the case of Dr Van der Schyff who terminated his consultancy
agreement as a result
of similar treatment that he received and sold
his right to practise in the first respondent for an amount of R800
000.

 

[50]     
The applicants then refer to the failure to hold an annual general
meeting of which notice was
given for 31 March 2023 to other
shareholders but not to them, which prompted the second applicant to
request the convening of
a formal shareholders meeting in order to
raise their concerns which the fourth respondent refused to do.
Regarding the fourth
respondent’s response, the applicants
argue that the fourth respondent does not address the averment that
the applicants
were not notified of the meeting and it was submitted
that this conduct was not only patently unfair, but in fact unlawful.

 

[51]     
With regard to the reasons provided for the termination of the second
applicant’s consultancy
agreement, it was submitted that it is
abundantly evident that the reason for terminating the second
applicant’s right to
practise in the first respondent, was his
dissatisfaction with the remuneration structure as recorded in his
consultancy agreement
as well as the various other issues which he
had sought to raise with the first respondent and its administrator.
Astonishingly,
it was emphasised, the decision to terminate the
second applicant’s consultancy agreement was taken at a meeting
to which
he was not invited and without affording him an opportunity
to protest or defend himself.

 

[52]     
Lastly, the applicants refer to the fourth respondent’s
response, in his answering affidavit,
wherein he confirms that the
decision to terminate the second applicant’s consultancy
agreement was arrived at during the
meeting between shareholders,
followed by the following remark:

 

‘I
confirm that the termination is in terms of clause 6.1 of that
consultancy agreement and that such termination has been fulfilled.

To this end, no further engagement on this issue is required.’      
                       

 

 

 [53]    
The applicants accept that it is so that clause 5.1 of first
applicant’s consultancy agreement
and clause 6.1 of the second
applicant’s consultancy agreement provide for the “right
of either party to terminate
this agreement by giving to the other
party 30 (thirty) days written notice of termination”. However,
so it is submitted,
such right to termination by the first respondent
is subject to the legal principles relating to section 163 of the
Companies Act, and the principles of good faith in the law of
contract.

 

[54]     
The conduct of the fourth respondent, it was submitted, was
exacerbated by the first respondent’s
refusal to extend the
termination period with an additional month to enable the second
applicant to consider his rights and make
an informed decision and
the intransigent stance that a “forced sale of shares had been
triggered”. A “…
lack of probity or fair dealing,
or a violation of the conditions of fair play on which every
shareholder is entitled to rely”,
to use the words of Gamble J
in Omar aptly describes the fourth respondent’s conduct,
ratified by the remaining shareholders, in terminating the second
applicant’s
consultancy agreement without giving him the
opportunity to make representations in this regard.

 

[55]     
Regarding the termination of the first applicant’s consultancy
agreement, the applicants
point out that the first applicant started
practising as a consultant and shareholder of the first respondent in
2007. He became
acquainted with the second applicant during 2021, and
they became dissatisfied with the way in which the fourth respondent
conducted
the affairs of the first respondent.

 

[56]     
The applicants refer to a partners’ meeting which was called by
the fourth respondent (to
which the second applicant was not invited)
which was held on 9 October 2023. At the meeting the first applicant
learned that his
request for a shareholders meeting had not been
communicated to other shareholders, and he proceeded to hand the
notice in terms
of section 61 (3) of the Companies Act to the other
shareholders.

 

[57]     
As already stated he was served with the notice of termination on 19
October 2023, and the applicant
argue that the reasons contained in
the termination notice are significant:

 

‘We
record that the stakeholders of the company had a meeting on the 19^th
October 2023, to discuss your dissatisfaction with the contracting of
a locum as well as various other issues which you have continuously

sought to raise with the company and its administrator.

You are hereby notified
that during the meeting on the 19^th October 2023 the
Company has resolved to terminate your consultancy agreement, as it
is entitled to do in terms of clause 5.1 of
the agreement.’

 

[58]     
The applicants contend that at the root of the first respondent’s
behaviour, is the fourth
respondent’s (who is in de facto
control of the first respondent) misconceived conception that the
shares issued to applicants, hold no value and that the issuing
of
shares to a shareholder, is nothing more than a mere administrative
endeavour undertaken by the first respondent in order to
conform to
the prevailing legislation which governs an entity within the medical
professional realm. This, the applicants contend,
is incorrect,
contrived and not only in conflict with the provisions of the first
respondent’s MoI but disregards the provisions
of the Companies
Act relevant to the rights and obligations of shareholders of a
company registered in terms of the Companies Act in South Africa.

 

[59]     
The applicants further regarding the first respondent’s stance
that the applicants are
not entitled to find consultants to replace
them to be further manifestation of the oppressive conduct. This,
they say, is contrary
to the provisions of their consultancy
agreements which entitles them to do so.

 

[60]     
Lastly, the applicants rely on what is stated by the first applicant
but denied by the fourth
respondent that “It has always been
the understanding of the first and second applicants that they would
be allowed to continue
working as partners of the first respondent
until such time as they made themselves guilty of gross misconduct”
in support
of their argument that the conduct complained of is in
violation of mutual understanding among the shareholders of the first
respondent.
Ultimately it was submitted that all of the above conduct
is manifestly prejudicial, oppressively unfair, unreasonable and
unjust
and liable to be remedied in terms of section 163 of the
Companies Act.