De Wit NO and Another v Smit and Others (Leave to Appeal) (19076/2024) [2025] ZAWCHC 481 (21 October 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Western Cape High Court, Cape Town South Africa: Western Cape High Court, Cape Town You are here: SAFLII >> Databases >> South Africa: Western Cape High Court, Cape Town >> 2025 >> [2025] ZAWCHC 481 | Noteup | LawCite sino index ## De Wit NO and Another v Smit and Others (Leave to Appeal) (19076/2024) [2025] ZAWCHC 481 (21 October 2025) De Wit NO and Another v Smit and Others (Leave to Appeal) (19076/2024) [2025] ZAWCHC 481 (21 October 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAWCHC/Data/2025_481.html sino date 21 October 2025 IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) ### Reportable Reportable ### CASE NO: 19076/2024 CASE NO: 19076/2024 In the matter between: TOERIEN DE WIT N.O. FIRST APPLICANT PHILLIP RALL N.O. SECOND APPLICANT and JAKOBUS GERT SMIT FIRST RESPONDENT MARYKE SMIT SECOND RESPONDENT GASVOORSIENERS BOLAND (EDMS) BPK THIRD RESPONDENT JACOBUS GERT SMIT N.O. FOURTH RESPONDENT MARYKE SMIT N.O. FIFTH RESPONDENT ETIENNE BOSHOFF N.O. [Fourth to Sixth Respondents cited in their capacities as the trustees for the time being of the Maryke Smit Family Trust] SIXTH RESPONDENT LENETTE JANSE DE WIT N.O. (in her capacity as trustee for the time being of the Elbert de Wit Familie Trust] SEVENTH RESPONDENT WORCESTER GAS (PTY) LTD EIGHTH RESPONDENT THE COMPANIES AND INTELLECTUAL PROPERTY COMMISSION NINTH RESPONDENT Coram : MOOSA AJ Heard :                      14 October 2025 Delivered :                21 October 2025 (delivered via email to the parties) ORDER The First, Second, and Third to Sixth Respondent’s application for leave to appeal is dismissed with costs, including costs for two counsel where so employed. Senior counsels’ fees shall be allowed on tariff scale C; and tariff scale B for his junior. L iability for costs is joint and several, the one party paying and the other to be absolved. JUDGMENT (LEAVE TO APPEAL) Moosa AJ: [1]        This judgment relates to an application (“the petition”) for leave to appeal to the Supreme Court of Appeal filed by the First, Second, and Third to Sixth Respondents (“the Respondents”) in respect of paragraphs 2(b) and 5 of my order issued on 15 August 2025 (“the orders”). My judgment is reported sub nom De Wit NO and Another v Smit and Others (19076/2024) [2025] ZAWCHC 348 (15 August 2025) (“the principal judgment”) . Since appeals lie against court orders rather than the reasons that underpin them, I do not discuss the reasons for the orders (except where necessary). [2]        For convenience sake, the parties are referred to as in the principal judgment. [3]        The Applicants filed an application for leave to cross-appeal. It is, however, conditional on the Respondents succeeding in their bid for leave to appeal. In view of the outcome of the petition, it is unnecessary to decide the conditional application. [4] The orders sought to be appealed reads as follows: ‘ 2.   Conse quent on the order in 1 above, final relief is granted pursuant to the provisions of section 163(2) of the Companies Act 71 of 2008 as follows: … b)  In accordance with s 163(2)( h ), every loan agreement concluded between the Third Respondent and the trustees of the Maryke Smit Family Trust (MSF Trust) and every loan advance giving rise to its indebtedness to the Third Respondent in the sum of R8 954 024,41 (Eight Million Nine Hundred and Fifty-Four Thousand Twenty Four Rands and Forty One Cents) is set aside. The trustees for the time being of the MSF Trust is directed to compensate the Third Respondent by payment to it of the sum of R8 954 024,41 with interest at the prescribed legal rate computed from the date of this order until the date of final payment, both days included, which monies shall be paid in full by no later than 31 August 2026; … 5)   Costs in the main application and counter-application is awarded to the Applicants as against the First, Second, Fourth, Fifth, and Sixth Respondents, including cost for two counsels (senior counsel’s fees are allowed on scale C; his junior on s cale B), such liability to be joint and several, the one paying the other to be absolved.’ [5]        The Respondent’s application is rooted in the grounds of appeal recognised in s 17(1)( a ) of the Superior Courts Act 10 of 2013 (“the SC Act”). These are: ‘ (i) the appeal would have a reasonable prospect of success; or (ii)        there is some other compelling reason why the appeal should be heard … ’ . [6]        The appeal of paragraph 2(b) of my order is sought on two discrete, but inter-related, grounds. The first is that I erred and misdirected myself in granting an order under s 163(2)( h ) of the Companies Act 71 of 2008 (“the Act”) for the setting aside of the loan agreements concluded between Gasvoorsieners and the MSF Trust. The Respondents contend that the impugned loan agreements, and payments thereunder, occurred in contravention of s 45 and/or s 75(3) of the Act and were, therefore, void ab initio. Consequently, so the petition avers, there was nothing that could be set aside. [7]        Although the petition was framed to include s 75 of the Act, Mr Manca SC, for the Respondents, disavowed any reliance on this aspect of the petition. He stated that the Respondents accept the correctness of my interpretation of the Act at paragraphs [139] to [141] and paragraphs [144] to [146] of the principal judgment. As such, the petition is based on s 163(2)( h ) allegedly being inapplicable owing to voidness of the loan agreements under s 45, and on the basis of the second ground of appeal. [8]        The second ground locates itself in s 165. The Respondents contend that the remedy for restitution of monies lent and advanced under the allegedly void loan agreements lay with Gasvoorsieners, the Third Respondent. They also assert that reasonable prospects exist that another court would find that the Applicants should have used their derivative remedy conferred by s 165(2) and s 165(5) of the Act. [9]        The intended appeal against the costs order is dependent on leave being granted to appeal paragraph 2(b) of my order. If not, then the costs order stands. [10]      Mr Van Eeden SC, for the Applicants, argued that reliance on s 45 is misplaced. He pointed out that the Applicants did not bring their case under s 45. Rather, their case was based, and thus decided, on the fact that Gasvoorsieners’ directors contravened 75(3) and (5) of the Act in a manner that was consistent with s 163(1)( c ). [11]      With regards to the second ground of appeal, Mr Van Eeden SC contended that an argument similar to that advanced by Mr Manca SC failed in Parry v Dunn-Blatch and Others (394/2022) [2024] ZASCA 19 (28 February 2024). [12]      On these bases, Mr Van Eeden SC submitted that an appeal in respect of paragraph 2(b) of my order lacks reasonable prospects of success; and there is no compelling reason to grant leave to appeal. For the reasons given below, I agree. Applicable legal principles [13]      In any petition for leave, the merits remain a vital consideration. It was held in Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) para 2 that: ‘ In order to be granted leave to appeal in terms of s 17(1) (a) (i) and s 17(1) (a) (ii) of the Superior Courts Act an applicant for leave must satisfy the court that the appeal would have a reasonable prospect of success or that there is some other compelling reason why the appeal should be heard. If the court is unpersuaded of the prospects of success, it must still enquire into whether there is a compelling reason to entertain the appeal. A compelling reason includes an important question of law or a discreet issue of public importance that will have an effect on future disputes. But here too, the merits remain vitally important and are often decisive. Caratco must satisfy this court that it has met this threshold.’ (underlining for emphasis) (footnotes omitted) [14]      Granting leave is not about giving a litigant a second chance to possibly achieve a different outcome. With regards to s 17(1)( a )( i ) of the SC Act, the intended appeal should have reasonable merits so that a different result would be attained. In the context of s 17(1)( a )( i ), the word ‘would’ has the effect that the party seeking leave must demonstrate that an appellate court will (not might) find differently on key issues of fact and/or law so that a different outcome ‘would’ follow. See MEC for Health, Eastern Cape v Mkitha and Another [2016] ZASCA 175 (25.11. 2016) paras 16 - 17. [15] That another court might (not ‘would’) come to a different conclusion on key issues of fact or law; or that the case raises arguable points; or that the case for appeal is not hopeless, is insufficient for granting leave. The test under the old Supreme Court Act, 1959 no longer applies. The new test for leave is more stringent. See Notshukovu v S (157/2015) [2016] ZASCA 116 para 2. For purposes of s 17(1)( a )( i ), a judge must, based on proper grounds, opine that there is a reasonable (not remote) prospect of success. This requires a dispassionate analysis of the facts and the law applicable to the issues sought to be appealed. See S v Smith 2012 (1) SACR 567 (SCA) para 7. [16]      Given that the merits of the Respondents’ case remain relevant in an enquiry under s 17(1)( a ) of the SC Act, leave can only be granted if, on a sound, rational basis, I opine that there is a realistic chance (i.e., a real prospect) that an appellate court would decide differently the outcome of the issues that the Respondents seek to appeal on the grounds adduced by them in the petition. See Ramakatsa and Others v African National Congress and Another [2021] ZASCA 31 (31 March 2021) para 10. Application of s 17(1)( a )( i ) and ( ii ) of the SC Act to the facts in casu (a) Paragraph 2(b) of the order: the first ground of appeal [17]      The Applicants did not plead their case for relief under s 163(2) on the basis of a violation of s 45 that produced results which are oppressive or unfairly prejudicial to their shareholding interests. The Applicants’ case was predicated on the First and the Second Respondents, as directors of Gasvoorsieners, contravening s 75 in ways that caused oppressive and/or unfair prejudice to the Applicants’ interests as shareholders. [18]      Consequently, the Respondents did not oppose the Applicants’ case on the basis that there was (or was not) a breach of s 45; nor did they raise the defence that relief under s 163(2)( h ) was not competent owing to a violation of s 45(2) or (3). The First and the Second Respondents denied that they acted in violation of the Act. [19]      Reference to s 45 first appeared in the heads filed by the Applicants’ counsel (at paras 113 - 119). The Respondents’ counsel replied with brief submissions on s 45 in their heads (at paras 28 - 29). At the main hearing, when I pointed out to Mr Van Eeden SC that the Applicants’ case is not grounded in s 45, he conceded. He then confined the Applicants’ case to that made out in their founding papers. The effect of his concession was that Mr Manca SC did not need to, nor did he, advance the arguments made in his heads in relation to s 45 (read with s 77(3)( e )) of the Act. [20]      For these reasons, the principal judgment did not determine the Applicants’ case through the lens of s 45. A reading of my judgment reveals the following: (i) it did not examine whether s 45 was contravened; (ii) nor did it determine that the impugned loan contracts are void under s 45; (iii) nor did it determine that the Applicants are entitled to relief under s 163(2) due to oppressive or unfairly prejudicial conduct arising from a contravention of s 45; (iv) nor did I set aside the impugned loan contracts under s 163(2)( h ) by reason of a finding of voidness arising from a violation of s 45. [21]      In these circumstances, there is no plausible basis for the Respondents to ground an appeal on the strength of the following averment: ‘ 1.        The court erred and misdirected itself in one or more of the following respects: 1.1 The loan agreements and payments made to the third to fifth respondents (“the MSF Trust”) were made in contravention of section 45 … of the Companies Act 71 of 2008 (“the Act”); 1.2 As such there was no agreement which was capable of being set aside under section 163(2)(h) of the Act ’ . [22]      Furthermore, although the order sought to be appealed in paragraph 2(b) (see quote in [4] above) was granted under s 163(2)( h ) of the Act, it is not predicated on any determination of voidness of the impugned loan contracts. Paragraphs [139], [140], [141], [145] and [146] of the principal judgment make it clear that my order was based on a finding that the contracts were voidable by reason that s 75(3) and s 75(5) of the Act were breached (not s 45) in ways that fell within the purview of s 163(1)( c ). [23]      In the premises, I find that a sound, rational basis does not exist to justify a finding that the first ground of appeal adduced would have reasonable prospects of success on appeal. I am fortified in this view based on the ensuing further reasons. [24]      First, the Respondents seek to ground their appeal on a factual basis that was not pleaded by them (nor by the Applicants). No reliance was placed on s 45. This is clear from the pleadings viewed as a whole. Moreover, the Respondents seek to appeal paragraph 2(b) of my order on the basis that I misdirected myself in setting aside contracts under s 163(2)( h ) which were, so they contend, void for non-compliance with s 45. Factually, this is incorrect. I did not find that s 45 was breached; nor did I find that the agreements were void. I expressly held that the loan agreements were voidable and, as such, capable of being set aside by court order. [25]      Secondly, at paragraphs [75] to [83] of the principal judgment, I interpreted the provisions of s 163(2) and the circumstances under which relief thereunder may be granted. My interpretation is not challenged. At paragraph [84], I held as follows: ‘ For these reasons, I conclude that even if the impugned loan agreements with, and the loan advances to the MSF Trust, or any of them, are void under the Companies Act, then this would not preclude an equitable interim or final remedy being granted in the exercise of this Court’s wide discretionary powers under the aegis of s 163(2). This is so provided that I am satisfied that the jurisdictional requirements of s 163(1) are met. It is to this factual issue that I now turn my attention.’ [26]      My conclusion in this quoted extract forms the basis for the following statement at paragraph [153] of the principal judgment: ‘ Finally, if I am wrong in my interpretive conclusions outlined in paragraphs [140] and [146] above and the relevant contracts concluded in breach of s 75(3) and/or (5) are actually void ab initio, then, for the reasons given in paragraphs [75] to [82], the Applicants would still be entitled to equitable relief as fashioned by me. In such event, I would have granted them the same compensatory relief as framed in the relevant order below, save that I would not have granted it pursuant to s 163(2)( h ), nor would I have ordered a setting aside of the relevant loan contracts because they would be void. [27]      In the absence of a challenge to my interpretation of s 163(2) and my finding that its provisions empower a court to grant a just and equitable remedy even when contracts are void, the Respondents have no realistic prospect of succeeding in an appeal predicated on a contention that voidness of the loan contracts could not be remedied by the exercise of a court’s wide discretionary powers conferred by s 163(2). [28]      Thirdly, Mr Manca SC argued that the impugned loan agreements are void because the directors’ resolutions authorising them contravened s 45(2) as envisaged by s 45(6). He submitted that, on this basis, Gasvoorsieners had a remedy to sue the MSF Trust. He submitted further that the Applicants should have used the remedy in s 165. This argument has no realistic prospect of success on appeal. [29] Section 45(7) provides that where a company resolution contravenes s 45(2) , or a provision of financial assistance by the company contravenes s 45 , then the company director(s) who is/are responsible for the voidness envisaged by s 45(6) ‘is liable to the extent set out in section 77(3)( e )( v )’. On this legal basis, the case which the Respondents seek to make on appeal, namely, that the Applicants should have pursued a derivative claim against the MSF Trust for repayment, does not hold water. [30]      It seems odd that the First and the Second Respondent would seek leave to present a case at the SCA that the loan contracts concluded by them as directors of Gasvoorsieners with the MSF Trust, and the loan advances effected from Gasvoorsieners to the MSF Trust, are void as envisaged by s 45(6) , thereby creating against themselves, under s 45(7) (read with s 77(3)( e )( v )), potential claims for personal liability of the R8 954 024,41 dealt with in paragraph 2(b) of my order. However, when the prescription provision in s 77(7) is considered, then the absence of any potential risk of personal liability is stark. [31]      Fourthly, in his heads of argument filed in the main case (at paragraph 28), Mr Manca SC pointed out, correctly so, that s 45(6) does not render void a board of director’s decision made in contravention of s 45(2) ; nor does s 45(6) render contracts concluded pursuant to an impugned resolution to be void. This flows from s 77(5)( a ) expressly stipulating that an application may be made to court ‘for an order setting aside the decision of the board’. Section 77(5)( b )( ii )( aa ) empowers courts ‘to rectify the decision, reverse any transaction, or restore any consideration paid or benefit received by any person in terms of the decision of the board’. In law, none of these orders would be possible if the director’s decision to enter into a contract is void. The same position applies to any impugned contract and any payment made thereunder. [32]      Consequently, the Respondents have no realistic prospect of succeeding on appeal to show that a resolution taken in violation of s 45(2) had the effect of rendering void ab initio the First and the Second Respondents’ decision as directors to give loans to the MSF Trust; nor rendered void any of the impugned contracts and loan advances. [33]      Fifthly, Mr Manca SC argued that the Applicants erroneously pursued the recovery of the monies loaned to the MSF Trust via a just and equitable remedy. He submitted that the voidness of the contracts gave rise to a claim for restitution in the hands of Gasvoorsieners. Owing to s 77(5)( b )( ii )( aa ) (discussed by Mr Manca SC at para 28 of his heads in the main case), his submission as to the voidness of the loan contracts lacks merit. I opine that it’s prospects for success are remote, at best. [34]      In terms of s 77(5)( b )( ii )( aa ), a court may ‘reverse any transaction, or restore any consideration paid or benefit received by any person in terms of the decision of the board’ if it is ‘just and equitable’ to do so where s 45 has been breached. Accordingly, the remedy pursued by the Applicants is similar to that in s 77(5)( b )( ii )( aa ). [35]      Sixthly, s 45(2) provides that ‘the board may authorise the company to provide direct or indirect financial assistance’ to a related third party, unless the Memorandum of Incorporation (“the MOI”) of the relevant company prohibit such loans. The contents of the MOI for Gasvoorsieners was not traversed in the pleadings. Accordingly, there is no factual basis to contend, nor for a court to justify a finding, that the financial assistance to the MSF Trust contravened the MOI of Gasvoorsieners. [36]      Consequently, I opine that there is no sound, rational basis to justifiably conclude that the Respondents have reasonable prospects to persuade an appellate court (i) that a contravention of s 45(2) occurred when the directors authorised the loan to the MSF Trust; and (ii) that any such contravention led to voidness of the loan contracts and the loan advances; and (iii) that Gasvoorsieners has an enforceable claim under s 77(5)( b )( ii )( aa ) which could validly form the basis of a derivative action under s 165. Any such claim, if it did exist, would be hit by prescription under s 77(7). [37]      Seventhly, the Respondents do not challenge my finding that the Applicants established oppressive and/or unfairly prejudicial conduct of the kind envisaged by s 163(1)( c ). Consequently, they do not challenge my finding that this Court’s equitable jurisdiction under s 163(2) was triggered. Importantly, the Respondents do not challenge the exercise of my wide discretion under s 163(2). For e.g., they do not assert that my discretion was exercised injudiciously and, as such, that reasonable prospects exist that the orders would be set aside on appeal. [38]      As stated in paragraph [7], the Respondents do not seek to appeal my finding that it is just and equitable to set aside the loan contracts; nor do they seek to appeal my order to that effect. That order addresses and/or cures the oppressive and unfairly prejudicial conduct which I found was proved. My order is catered for in s 163(2)( h ). [39]      When the application for leave is properly understood, then it is evident that the Respondents, in fact, seek to appeal the compensation awarded to Gasvoorsieners, being R8 954 024,41 . However, the petition does not challenge the exercise of my discretion to award compensation. Given that the Respondents do not seek to appeal the exercise of my equitable discretionary authority to award compensation in the form and/or amount that I awarded, I opine that a sound, rational basis is lacking on which a conclusion can be drawn that reasonable prospects exists that the compensation award would be set aside on appeal on any grounds recognised in law. [40]      I pause to observe that it is surprising that Gasvoorsieners and its current director and former director (namely, the First and the Second Respondent) seek to appeal paragraph 2(b) of my order. It benefits Gasvoorsieners. This observation lends support to my view that the petition is ill-considered and ill-fated. [41]      In the premises, I conclude that the first ground of appeal adduced does not pass the test in s 17(1)( a )( i ) of the SC Act. I now address the second ground of appeal. (b) Paragraph 2(b) of the order: the second ground of appeal [42]      The nub of the second ground of appeal is summarised in paragraph [8] above. That ground is intertwined with the first. The Respondents contend that reasonable prospects exist that another court would find the loan contracts with the MSF Trust are void for want of compliance with s 45 so that a claim for restitution of monies advanced on loan lay with Gasvoorsieners. On this basis, and relying on Business Doctor Consortium v Old Mutual Finance (RF) 2022 JDR 2891 (WCC) para 104, the Respondents contend that reasonable prospects exist that an appellate court would hold that the Applicants’ remedy for the recovery of the loans lay in a derivative action under s 165, and that they lack locus standi under s 163 for purposes of that recovery. [43]      Mr Manca SC acknowledged that the First Respondents' answering affidavit addressed the locus standi issue as a point in limine; however, they chose not to pursue it during at the main hearing. For this reason, that issue was not dealt with in the principal judgment. Mr Manca SC argued that the locus standi issue can form the basis of an appeal as that point was not abandoned. For present purposes, I assume (but without deciding) that this submission is sound in law. [44]      The kernel of Mr Manca SC’s argument is that the locus standi point is good in law and that reasonable prospects exist that an appellate court would find that the Applicants could not use s 163(2)( h ) to recover the monies loaned to the MSF Trust in terms of contracts which were void under s 45(6). For the ensuing reasons, I hold that the second ground of appeal does not pass muster under s 17(1)( a ) of the SC Act. [45] First , the locus standi challenge as formulated for purposes of the petition is not the same point in limine that was raised in the First Respondent’s answering affidavit at paragraphs 7 to 13 under the sub-heading ‘Locus standi’ which, in turn, appears under the main heading ‘Preliminary defences’. At paragraph 10 of that affidavit, reference is made to the fact that the Applicants’ claims in paragraphs 1.1 to 1.5 and 1.11 of their Notice of Motion are based on alleged non-compliance with s 37, s 75(3), and/or s 76(2)( a ) of the Act. In the answer, the Respondents averred: ’ 12.      It appears that the Trust [the Applicants] may be aware of the effect of section 165 of the Companies Act and has accordingly sought to pigeonhole these claims under the rubric of section 163 of the Companies Act. This is impermissible. 13.       The Applicants therefore lack the necessary locus standi in respect of these claims. ’ In formulating the locus standi challenge, no reference was made to s 45. This is because the Applicants’ papers did not allege any non-compliance with this provision. [46]      During the hearing of the petition, I informed Mr Manca SC that s 45 was not a component of the Applicants’ case, nor did it form part of the Respondent’s case. I pointed out to him that reliance on s 45 for purposes of the locus standi challenge surfaced for the first time in the petition. Mr Manca SC conceded this. However, he then cited Moroka v Premier, Free State Province and Others (295/20) [2022] ZASCA 34 (31 March 2022) para 36 as authority for his proposition that it is permissible for the Respondents to introduce a new point of law in an appeal. [47]      The locus standi challenge is not a new point. It was pertinently pleaded. The new element raised are new facts, namely, alleged contraventions of s 45(2) as envisioned by s 45(6) , which new facts are sought to be used to lay the foundation for the contention that the loan contracts with the MSF Trust are void and that, in this factual matrix, Gasvoorsieners (and not the Applicants) has been harmed and that Gasvoorsieners has a claim against the MSF Trust for repayment of the loan monies, which claim the Applicants should have enforced using a derivative action under s 165. [48]      The introduction of a new factual basis to ground the locus standi challenge is impermissible. It offends notions of fairness that underpin our system of appeals. In Provincial Commissioner, Gauteng South African Police Services and Another v Mnguni [2013] 2 All SA 262 (SCA) para 27 , this salutary principle was expressed as follows: ‘ It is indeed open to a party to raise a new point of law on appeal for the first time, with the provision that it does not result in unfairness to the other party; that it does not raise new factual issues and does not cause prejudice.’ [49]      Apart from the fact that no reasonable prospect exists that the s 45 basis for the locus standi challenge would be permitted on appeal, I have explained elsewhere above that the pleaded facts viewed holistically do not make a case for breach of s 45. [50] Secondly , the Respondents’ reliance on Business Doctor Consortium v Old Mutual Finance supra is misplaced. That case is factually distinguishable in material respects. There, Wille J held (at paras 149 - 150) that the applicants failed to prove the particular species of oppressive or unfairly prejudicial conduct that they had alleged. On that factual matrix, he concluded that the jurisdictional pre-requisites for the invocation of the court’s jurisdiction under s 163(2) were not met. [51]      I concluded in the principal judgment that the Applicants discharged the onus to prove the jurisdictional facts laid down in s 163(1)( c ) as pre-requisites for equitable relief under s 163(2) of the Act. This is materially different to the facts before Wille J. [52] Thirdly , in Business Doctor Consortium v Old Mutual Finance supra paras 104 - 114, Wille J held that the applicants in that case were not entitled to any remedy under s 163(2). However, they had access to a derivative action through s 165 which could, and should, have been utilised. Wille J held that the remedy permitted by s 165 was available because the harm was done to the company (not to the shareholders). [53]      The latter finding in Business Doctor Consortium v Old Mutual Finance supra also renders that case factually distinguishable from the present case in a material respect. In the principal judgment, I held that the Applicants were victims of oppressive and unfairly prejudicial conduct caused by Gasvoorsieners’ directors, namely, the First and the Second Respondent. On the facts before me, I held further that the Applicants’ interests in Gasvoorsieners were harmed by the oppressive and unfairly prejudicial conduct within the contemplation of s 163(1)( c ) and that they are entitled to just and equitable relief under s 163(2). None of these factual findings and conclusions of law are sought to be challenged on appeal. Therefore, they will remain intact in any appeal. [54]      Accordingly, I opine that no sound, rational basis exists to justify a conclusion that an appellate court would hold that the Applicants lack locus standi under s 163. [55] Fourthly , the Respondents contend that the loan contracts are void owing to an alleged contravention of s 45(2) as envisaged by s 45(6). On this basis, they argue that Gasvoorsieners was harmed and that it has a claim for restitution of monies from the MSF Trust. I have, in relation to the first ground of appeal, already shown that the contention that a contravention of s 45 leads to voidness of the loan contracts is bad. [56]      On the case sought to be presented at the SCA, any claim envisioned by s 45(6) that arises from an alleged contravention of s 45(2), if such a contravention was capable of proof on the pleaded facts, would lie against the First and the Second Respondent personally. This stems from the operation of s 45(7) and s 77(3)( e )( v ). [57]      However, any claim against the First and the Second Respondent, and the associated just and equitable claim against the MSF Trust under s 77(5)( b )( ii )( aa ), are hit by s 77(7). Given that a remedy must be effective, objectively implementable, and available (see Basson v Hugo and Others (968/16) [2017] ZASCA 192 (01 January 2018) para 12), there is no sound, rational basis to conclude that, on appeal, the Applicants would be non-suited under s 163 in favour of an alternative equitable derivative remedy that was, seemingly, hit by prescription. Such a result would also be inimical to the notions of justice and equity embraced by s 163 and s 77(5)( b )( ii ); and would defeat the objectives sought to be achieved by the Companies Act (such as, delicately and fairly balancing the interests of shareholders and directors, and the companies in which they have such interests). See Parry v Dunn-Blatch and Others 2024 JDR 0864 (SCA) para 36; Technology Corporate Management (Pty) Ltd and Others v De Sousa and Another (613/2017) [2024] ZASCA 29 (26 March 2024). [58] Fifthly , the remedy fashioned by the legislature in s 77(5)( b )( ii )( aa ) does not provide a definitive claim against the MSF Trust for the recovery of monies advanced to it pursuant to loan agreements concluded in violation of the prescripts of s 45. In a substantially similar vein to s 163(2)( h ), a court may, if it is just and equitable in the circumstances to do so, grant an order against the MSF Trust to restore any benefit received by it under an impugned loan agreement which the court may set aside if it decides to reverse a transaction concluded by the board of directors in breach of s 45. [59]      The remedy in s 77(5)( b )( ii )( aa ) is only available if an application is made to court by the relevant company or its directors who seek an order setting aside the impugned decision(s) of the board. Gasvoorsieners did not pursue any such steps. On the facts before me, there is no factual basis to justifiably conclude that s 45 was breached so that the claim in s 45(7) read with s 77(3) ensues. Consequently, there is no real prospect of an appellate court finding that the Applicants could have viably used s 165 to compel Gasvoorsieners to take the steps envisaged by s 77(5)( b )( ii )( aa ) (assuming the claim thereunder did not prescribe pursuant to s 77(7)). [60] Sixthly , on the locus standi challenge, the Respondents contend that reasonable prospects exist that an appellate court would non-suit the Applicants under s 163 and hold that they should have invoked a derivative remedy under s 165. In Parry v Dunn-Blatch supra paras 25 - 31, 36, the SCA rejected a similar contention. Accordingly, I opine that there exists no reasonable prospect that the SCA would, on appeal, non-suit the Applicants under s 163 in favour of a remedy in s 165. The Applicants proved the jurisdictional facts stipulated in s 163(1)( c ) for their entitlement to seek just and equitable relief under s 163(2). My finding in the principal judgment that the Applicants proved those jurisdictional facts will be unchallenged in any appeal. [61]      In an attempt to ease the pinch of the decision in Parry v Dunn-Blatch supra, the Respondents’ counsel argued that the SCA’s decision on this issue was obiter and, therefore, non-binding. This argument lacks merit. A reading of the SCA judgment reveals that the court dealt with the issue of locus standi as part of its ratio decidendi. The SCA held that the lower court was wrong to uphold the locus standi challenge. That finding then paved the way for the SCA to consider whether the applicant established oppressive conduct, and/or unfairly prejudicial conduct, and/or unfairly disregardful conduct envisaged by s 163(1). The SCA held that none was proved. [62]      Even if the locus standi decision in Parry v Dunn-Blatch supra is obiter, then it remains a ruling laden with persuasive value. It has been applied in this Division (see Briers and Another v Dr J Bruwer and Associates No 78 Inc and Others (19726/2023) [2025] ZAWCHC 223 (27 May 2025) para 73) and in other Divisions too (see Cossadianos and Others v Nel and Others (2024-104634) [2025] ZAGPPHC 284 (17 March 2025) paras 23 - 26). The Respondents’ counsel advanced no basis which would justify an opinion that reasonable prospects exist that, on appeal, the SCA would revisit and overturn its decision in Parry v Dunn-Blatch supra on the issue of standing. [63]      The locus standi challenge also does not raise any compelling reason for leave to appeal within the contemplation of s 17(1)( a )( ii ) of the SC Act. The same applies to the first ground of appeal dealt with elsewhere above. In the petition, the Respondents contend that leave ought to be granted under s 17(1)( a )( ii ) as this case deals with a novel issue, namely, a determination of whether a contract concluded by a company pursuant to a violation of s 73(3) and s 73(5) renders the contract, and any transaction thereunder, void or voidable. In the petition, the Respondents contend that this issue constitutes a compelling reason for the granting of leave to appeal. I disagree. [64]      As a general principle, merely because a judgment engages with a novel question of law does not per se establish a compelling reason for the granting of leave to appeal. For purposes of the more stringent test established by s 17(1)( a ) of the SC Act, something more would be required than a novel legal issue. If this were not so, then cases would be eligible for leave even in circumstances where, for e.g., the prospect of another court differing with the decision reached on the novel legal question is remote. Such a de jure position would undermine s 17(1)( a ) in its current formulation, and would be at odds with the jurisprudence that has developed thereon. [65]      In this regard, I align myself fully with the sentiments expressed in Van Niekerk v MV "Madiba 1" (AC13/2018) [2022] ZAWCHC 152 (15 August 2022) by Binns-Ward J in the following extract: ‘ But the fact that an obviously bad point has not previously been raised and rejected does not afford a compelling reason for the court of first instance to grant leave to appeal when such a point is first raised and predictably rejected. ’ (para 12) [66]      As appears from paragraph [7] above, the novel issue relied on in the petition has fallen away. Therefore, it can, in any event, not form a basis for an appeal here. Mr Manca SC conceded that when the legislature confers authority on a court, as it does in s 75(7) and s 75(8), to declare acts performed and contracts executed in contravention of s 75(3) and s 75(5) to be valid, then logic dictates that the lawmaker does not intend to visit a nullity on them. The same reasoning must apply equally to s 45. Owing to the judicial powers conferred by s 77(5)( a ) and ( b ) (discussed in paragraphs [33] to [36] above), logic dictates that the legislature does not intend to render void those director decisions and company transactions that are tainted fruits of a procedural violation of s 45, or other non-compliance with s 45. This conclusion bolsters my view that the petition for leave in this case is bad and falls to be dismissed. Costs [67]      There is no reason to deviate from the usual rule that costs follow success. Both sides used senior and junior counsel for purposes of the application for leave to appeal. Therefore, both sides must be taken to be satisfied that cost of two counsel is justified. I agree. During the hearing, it also became necessary for the junior counsels to conduct research on points of law which emerged at the hearing, and for them to be consulted by their respective seniors. As such, I am satisfied that the use of two counsels were necessary for purposes of the appeal proceeding. Order [68]      In the result, t he First, the Second, and the Third to the Sixth Respondents’ application for leave to appeal is dismissed with costs, such costs to include the costs for two counsel (where employed). Senior counsels’ fees shall be allowed on tariff scale C; and tariff scale B shall be used for his junior. L iability for costs is joint and several, the one respondent party paying and the other to be absolved. F. MOOSA ACTING JUDGE OF THE HIGH COURT Appearances For Applicants:                                P van Eeden SC (with P Gabriel) Instructed by:                                  Marais Muller Hendricks (J Grobbelaar) For the Respondents:                      B Manca SC (with MM van Staden) (First, Second, Third to Sixth Respondents) Instructed by:                                   Mostert & Bosman Attorneys sino noindex make_database footer start