ALERT CORPORATE & COMMERCIAL - Cliffe Dekker Hofmeyr
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23 JUNE 2021
CORPORATE
& COMMERCIAL
ALERT
Proxies: The power is in
the mandate
In the Supreme Court of Appeal (SCA) case of
Malatji v Ledwaba No and Others (1136/2019)
[2021] ZASCA 29 (30 March 2021), the court
considered whether a general meeting of the
Mamphoku Makgoba Community Trust (Trust)
was convened in compliance with an order
handed down by the SCA in 2018 and the trust
deed of the Trust.
IN THIS ISSUE >
Not every faulty Bluetooth should When the tribe has not spoken:
have its day in court – a discussion How to handle dissenting minority
of consumer protection in Motus shareholders
Corporation (Pty) Ltd and another v In the television show Survivor, the jury consists
Wentzel of a group of eliminated castaways that return
to witness the remaining castaways at the Tribal
Robin Hood proponents will be disappointed to Councils. The information they take in from
learn that the purpose of the protections contained these visits is supposed to help them decide who
in the Consumer Protection Act 68 of 2008 (CPA) to vote for to win the ultimate cash prize and
is not simply to “take from the rich and give to the title of Sole Survivor at the end of the game at
poor”. The Supreme Court of Appeal (SCA) recently the Final Tribal Council. The Final Tribal Council
made clear as much, when it overturned a ruling by can be likened to an annual general meeting
the Gauteng High Court ordering Renault to refund (AGM) of a company because some of the most
a consumer the full purchase price of a Renault critical corporate actions are approved at such
Kwid plus finance charges payable by the consumer a meeting and much like some jury members,
to a third party. disgruntled shareholders tend to use their
leverage to vote down certain resolutions.
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CORPORATE & COMMERCIAL
Not every faulty Bluetooth should
have its day in court – a discussion
of consumer protection in Motus
Corporation (Pty) Ltd and another v
Wentzel
Robin Hood proponents will be Ms Wentzel relied on sections 55(2)
disappointed to learn that the purpose and 56(2)-(3) of the CPA for her relief. We
In Motus Corporation of the protections contained in the explain these provisions below, which deal
Consumer Protection Act 68 of 2008 with breaches of warranty and refunds
(Pty) Ltd and another v
(CPA) is not simply to “take from the for defective goods. In summary, the
Wentzel, the SCA found rich and give to the poor”. The Supreme relevant facts of Ms Wentzel’s claims were
that the High Court Court of Appeal (SCA) recently made as follows:
misdirected itself both in clear as much, when it overturned ∞ On 7 December 2017, Ms Wentzel
a ruling by the Gauteng High Court
the interpretation of the ordering Renault to refund a consumer
purchased the motor vehicle
from Renault.
CPA and in the remedy the full purchase price of a Renault Kwid
∞ On 11 December 2017, Ms Wentzel
ultimately granted. plus finance charges payable by the
reported a strange ticking noise in
consumer to a third party.
the motor vehicle and mentioned
The purpose of the CPA is to “promote that her air conditioning was on
and advance the economic welfare of occasion faulty.
consumers” to the extent provided for in its ∞ On 27 December 2017, Ms Wentzel
provisions. This means that any consumer took her motor vehicle to Renault for
who invokes the protections provided an inspection and repairs were carried
for in the CPA must be able to show that out at no charge.
the supplier in question has breached the
∞ On 23 January 2018, Ms Wentzel again
relevant provisions of the CPA, properly
took her motor vehicle for inspection,
interpreted. In Motus Corporation (Pty)
reporting issues with her brakes, the
Ltd and another v Wentzel, the SCA found
windows rattling and sound issues with
that the High Court misdirected itself both
her Bluetooth system. Repairs were
in the interpretation of the CPA and in the
again carried out at no charge.
remedy ultimately granted.
∞ On 23 February 2018, due to the
Factual background motor vehicle reportedly making an
In the High Court, Ms Abigail Wentzel unbearable noise, Ms Wentzel took the
sought (and was granted) a refund in the motor vehicle back to Renault for a
amount of R256,956.84 in respect of a service. A motor vehicle “health check”
Renault Kwid motor vehicle purchased was carried out by one of Renault’s
from Renault. The actual price of the employees, who stated on affidavit that
vehicle was R176,400. However, the court every problem Ms Wentzel had raised,
ordered Renault to refund Ms Wentzel the had been properly attended to.
amount of R256,956.98 which included
the costs associated with financing the
motor vehicle through a third party.
2 | CORPORATE & COMMERCIAL ALERT 23 June 2021
CORPORATE & COMMERCIAL
Not every faulty Bluetooth should
have its day in court – a discussion
of consumer protection in Motus
Corporation (Pty) Ltd and another v
Wentzel...continued
∞ On 14 March 2018, Ms Wentzel Judgment
escalated the matter to Renault’s
The High Court made short shrift of
The High Court made principal dealer (Petzer), due to
Renault’s defences. It held that “the courts
the alleged persistent problems. In
short shrift of Renault’s must take a robust approach towards the
response, Petzer offered to take her
defences. It held that “the motor vehicle back and trade it in for
economic giants such as [Renault], who
can flex their financial muscle to bully
courts must take a robust a Renault Clio. Ms Wentzel declined
unsuspecting consumers to accept flawed
approach towards the the offer.
goods…”. To drive its point home, the
economic giants such as ∞ In the interim, Ms Wentzel had lodged court a quo ordered Renault and Renault
a complaint with the Motor Industry
[Renault], who can flex Ombudsman of South Africa (MIOSA)
South Africa (being the group company),
to jointly and severally refund the full
their financial muscle and was subsequently (and incorrectly) purchase price of R256,965.84.
to bully unsuspecting advised that MIOSA did not have
jurisdiction regarding the matter, On appeal, the SCA briefly considered
consumers to accept the special pleas raised by Renault before
given that legal action had already
flawed goods…”. been instituted by one of the parties. proceeding to deal with the facts of the
At that stage, no legal action had matter. In spite of the fact that the SCA
been instituted. did not hear the full argument in relation
to the issue of internal remedies, it made
∞ On 16 May 2018, Ms Wentzel launched
a number of remarks about restricting
an application in the High Court
a consumer’s right to approach the
alleging a breach of, among others,
court, given that this right is specifically
sections 56(2)-(3) of the CPA.
entrenched in the Constitution, suggesting
∞ Renault opposed the application. It that it would likely have found that a failure
contended that all of Ms Wentzel’s to exhaust internal remedies does not
complaints had been attended to, and oust the High Court’s jurisdiction. The
that the remaining complaint regarding SCA declined to deal with the remaining
the Bluetooth system was due to the special pleas.
noise from the motor vehicle being
driven at high speeds. Additionally, The SCA concluded that there were two
Renault raised four special pleas, mutually destructive factual versions
including that Ms Wentzel had failed to before it: on the one hand Ms Wentzel
exhaust her internal remedies provided claimed that the motor vehicle and
by section 69 of the CPA, and that she particularly the Bluetooth system remained
should not have proceeded by way of faulty and had not been properly repaired,
motion proceedings given the material whilst on the other hand Renault insisted
disputes of fact in the matter. that it had attended to all of the alleged
defects and denied that the Bluetooth
system was faulty at all. In this regard
it held that the High Court erred in not
applying the Plascon-Evans test (i.e. where
a dispute of facts arises on affidavit, a
final order can only be granted if the
facts presented by both parties (although
contradictory), justify such an order).
3 | CORPORATE & COMMERCIAL ALERT 23 June 2021
CORPORATE & COMMERCIAL
Not every faulty Bluetooth should
have its day in court – a discussion
of consumer protection in Motus
Corporation (Pty) Ltd and another v
Wentzel...continued
The SCA also conducted an analysis of the made complaints alleging that repairs had
consumer rights contained in section 55(2) not been performed properly. Although
The SCA found that a of the CPA and which are protected by the wording of the CPA refers to the term
section 56. Section 55(2) provides that “discovered” in relation to further defects,
Bluetooth system was
every consumer has a right to receive the SCA held that the reporting of these
merely an accessory to goods that are free from any defects defects is necessary in order to enforce the
the motor vehicle, and and which are useable for a reasonable protection contained in that section. As
a deficiency in relation period of time, having regard to the such, the three-month period contained in
normal use of the goods. Section 56(3) the CPA had come and gone by the time
thereto did not render allows a consumer to return goods after Ms Wentzel brought the matter before the
the motor vehicle less a supplier has repaired any part thereof, High Court.
acceptable. and within three months from the date of
The SCA ultimately held that Ms Wentzel
such repair, if the defect is not remedied
had failed to make out a case under
or a further defect is discovered. At the
section 56(3) of the CPA, especially having
heart of both of these sections lies the
regard to the serious factual disputes
definition of the word “defect” as set
which arose on the papers. Insofar as the
out in section 53(1)(a) of the CPA, which
dispute could be determined on the papers
relates to either (i) a material imperfection
regarding the nature of the defects and the
rendering the goods less acceptable than a
repairs made by Renault, the SCA held that
person could reasonably expect; or (ii) any
such dispute ought to have been resolved
characteristics of the goods that renders
in favour of Renault on the ordinary
it less useful than one would reasonably
approach to disputes of fact on motion.
expect. The SCA held that clearly not every
small fault constitutes a defect as defined. Conclusion
Although no evidence had been led This case is a testament to the fact that
in court regarding the reasonable the CPA should not simply be brandished
expectations of motor vehicle purchasers, as a blunt weapon with which to pursue
the SCA found that a Bluetooth system every consumer grievance. Whilst the CPA
was merely an accessory to the motor serves to protect consumers and promote
vehicle, and a deficiency in relation their economic welfare, it is important
thereto did not render the motor vehicle that consumers make sure their grievance
less acceptable. The SCA expressed falls within the scope of the protections
a similar sentiment regarding the contained in the CPA, and that they pursue
other deficiencies complained of, but the available remedies expediently and in
nevertheless proceeded to the second the legally correct manner. This judgment
part of the enquiry, namely whether should also be a caution to lower courts to
Ms Wentzel was entitled to a refund in stay within the bounds of the CPA and not
terms of section 56. Here the SCA found be overzealous in seeking to vindicate the
that from 28 February 2018 Ms Wentzel rights of consumers.
had not reported any further defects or
Justine Krige and Kara Meiring
4 | CORPORATE & COMMERCIAL ALERT 23 June 2021
CORPORATE & COMMERCIAL
Proxies: The power is in the mandate
In the Supreme Court of Appeal (SCA) was to take place ‘in accordance with the
case of Malatji v Ledwaba No and Others relevant provisions of the Trust Deed’,
On appeal, the SCA (1136/2019) [2021] ZASCA 29 (30 March which enjoined the trustees to hold a
2021), the court considered whether general meeting for the purpose of such
declared that the general
a general meeting of the Mamphoku election by beneficiaries present and
meeting of the Trust was Makgoba Community Trust (Trust) entitled to vote in terms of the Trust Deed.
unlawful and interdicted was convened in compliance with an The provisions of the Trust Deed require
the trustees elected at the order handed down by the SCA in 2018 of a beneficiary to be both present at the
(2018 Order) and the trust deed of the meeting and not younger than 21 years old
meeting from acting as Trust (Trust Deed). in order to qualify to vote.
trustees of the Trust.
In terms of the 2018 Order, the SCA The respondents argued that ‘present
ordered the independent trustees of at such meeting’ should be interpreted
the Trust to convene and hold a general to include ‘present by proxy’. It was
meeting for purposes of nominating contended that on a proper interpretation
and appointing a new board of trustees. of the Trust Deed, the beneficiaries
A meeting was subsequently held, and named in the register are not the sole
a new board of trustees was appointed. repositories of benefits under the Trust,
Thetele Joseph Malatji (Malatji), who was but rather they are representatives of a
both a beneficiary and a trustee of the household and where a beneficiary had
Trust, applied to the High Court to have died, an individual, properly authorised,
the election set aside. Malatji argued that was entitled to continue to represent
the election process was flawed in that, the household. The respondents further
inter alia, the independent trustees (i) made submitted that the approach taken by the
provision in the notice convening the independent trustees to allow voting by
meeting for voting by way of ‘proxy’ where proxy through mandated representatives
the particular beneficiary was deceased; was entirely consistent with the scheme of
and (ii) permitted absent beneficiaries to the Trust Deed.
vote by proxy; in circumstances where no
The SCA rejected this argument and held
provision therefor was made in the Trust
that a proxy is simply a form of mandate. It
Deed or in the 2018 Order. The application
requires a mandate to be extended by the
was dismissed by the court a quo.
principal to his or her agent to exercise the
On appeal, the SCA declared that the vote to which the principal was entitled
general meeting of the Trust was unlawful at the meeting. Clearly, a deceased
and interdicted the trustees elected at beneficiary is unable to extend a mandate
the meeting from acting as trustees of and as such, the procedure adopted by
the Trust. In arriving at its decision, the the independent trustees in regard to
court noted that the nomination and the deceased beneficiaries is unrelated
appointment of the new board of trustees to proxies.
5 | CORPORATE & COMMERCIAL ALERT 23 June 2021
CORPORATE & COMMERCIAL
Proxies: The power is in the
mandate...continued
In respect of the beneficiaries who were The court held that being ‘present at the
absent and represented by ‘proxy’ at the meeting’ meant being physically present
The court held that being meeting, the SCA found that ‘…where a and thus the acceptance of votes by ‘proxy’
person is required by statute to perform an on behalf of absent beneficiaries was in
‘present at the meeting’
act involving the exercise of his discretion breach of the Trust Deed.
meant being physically in a matter in which another has an interest
This case highlights the importance
present and thus the he may not, by common law, delegate
of ensuring that a trust deed (or a
acceptance of votes by his power. Thus, a citizen is not entitled
Memorandum of Incorporation, as
to vote by proxy in a public election. No
‘proxy’ on behalf of absent reason in logic commends itself to hold
applicable) contains a proxy construct
beneficiaries was in breach otherwise where a trust deed entitles
which expressly allows for the
appointment of proxies. There is no
of the Trust Deed. beneficiaries under the trust to vote for the
common law right to vote by proxy and
appointment of trustees. Voting by proxy
unless the applicable document provides
could therefore only have been permitted
for voting by proxy, or a statute permits
if the trust deed provided for it. It did
you to appoint a proxy (e.g. in terms of
not do so expressly and Mr McNally was
section 58 of the Companies Act 71 of
unable to refer to any other provisions in
2008 in respect of shareholders), you
the trust deed which might be indicative
cannot appoint a proxy.
of an intention to permit voting by proxy’.
Christelle Wood and Devon Clarke
2020
2020 1st by M&A Deal Flow.
Cliffe Dekker Hofmeyr Cliffe Dekker Hofmeyr 2020 1st by BEE Deal Flow. CDH wins Single Deal Local
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6 | CORPORATE & COMMERCIAL ALERT 23 June 2021
CORPORATE & COMMERCIAL
When the tribe has not spoken:
How to handle dissenting
minority shareholders
In the television show Survivor, the should be applied. In addition, in terms of
jury consists of a group of eliminated the Companies Act, resolutions approving
Given that the castaways that return to witness the directors’ remuneration and financial
remaining castaways at the Tribal assistance remain valid for up to two
resolutions approving the
Councils. The information they take in years from the date on which they were
directors’ remuneration from these visits is supposed to help passed. To be clear, the conventional
and the provision of them decide who to vote for to win thinking is that executive pay falls outside
financial assistance are the ultimate cash prize and title of Sole of section 66(8) and (9) of the Companies
Survivor at the end of the game at the Act, as such remuneration is qua employee
often passed at the Final Tribal Council. The Final Tribal and not qua director, and thus one is more
AGM, companies face Council can be likened to an annual concerned in this context with fees paid to
the risk of minority general meeting (AGM) of a company the non-executive directors. The executive
shareholders taking an because some of the most critical pay policy is however submitted by JSE
corporate actions are approved at such listed companies to their shareholders for
activist approach by a meeting and much like some jury a non-binding advisory vote.
pooling their votes in members, disgruntled shareholders
The difficulty that the Companies Act
order to vote against tend to use their leverage to vote
introduced is that directors’ remuneration
down certain resolutions. This article
these resolutions, and and the provision of financial assistance
discusses the growing tendency of
their motives for doing minority shareholders voting against,
must be approved by way of a special
resolution (supported by at least 75% of the
so, whilst varied and at and in some instances having enough
voting rights exercised on the resolution).
times controversial, are power to vote down, important special
The threshold for a special resolution may
resolutions such as those for directors’
legally irrelevant. remuneration (in terms of section 66(9)
be adjusted upwards or downwards in
the memorandum of incorporation of the
of the Companies Act 71 of 2008
company, provided that there is always
(Companies Act)) and intra-group
at least a 10% margin between the lowest
financial assistance resolutions (in terms
threshold for passing a special resolution
of section 45(3)(a)(ii) of the Companies
and the highest threshold for passing an
Act) at AGMs, and how companies can
ordinary resolution. But not for JSE listed
address or mitigate this going forward.
companies: for these companies, the
Shareholders hold shares as their private adjustment cannot go downwards from
property and, unlike board members, 75%. Given that the resolutions approving
they do not participate in the day-to-day the directors’ remuneration and the
management of the company and do provision of financial assistance are often
not owe a fiduciary duty to the company. passed at the AGM, companies face the
Shareholders may exercise the voting risk of minority shareholders taking an
rights attached to the shares as they please activist approach by pooling their votes in
and in accordance with their personal order to vote against these resolutions, and
interests. Resolutions approving directors’ their motives in doing so, whilst varied and
remuneration and the provision of financial at times controversial, are legally irrelevant.
assistance to related companies are The risk of minority shareholders defeating
particularly important corporate actions these resolutions is particularly acute for
that require shareholder approval prior to listed companies because of the often
implementation. Naturally, shareholders poor attendance at AGMs, which increases
are more scrupulous in their consideration the voting weight of the activist minorities
of these resolutions because they are who do happen to be present (in person or
deciding on how the company’s resources by proxy).
7 | CORPORATE & COMMERCIAL ALERT 23 June 2021
CORPORATE & COMMERCIAL
When the tribe has not spoken:
How to handle dissenting
minority shareholders...continued
As a means to prepare for minority any prohibition or requirement
shareholder dissent on key special established by or in terms of an
One may probably accept resolutions, the natural starting point is unalterable provision of this Act,
that companies need to embrace the other than a provision that falls within
that only exceptional
stakeholder inclusive approach in the the jurisdiction of the Panel.”
circumstances would King Report on Corporate Governance.
The Companies Tribunal may issue an
justify an order under In practice, such a stakeholder inclusive
exemption order if it is satisfied that: (i) the
this section, and it would approach can entail companies engaging
arrangement serves a reasonable purpose
with discontent shareholders on issues
be required that the of director remuneration and financial
and does not defeat a requirement
company has exhausted all assistance in advance of passing the
established by an unalterable provision of
the Companies Act, and (ii) it is reasonable
other avenues. resolutions so that they are able to
and justifiable for the Companies Tribunal
anticipate the type of concerns or
to grant the exemption in light of the
demands shareholders are likely to raise.
purposes of the Companies Act and all
Another mitigating strategy that companies
relevant factors. To date, the use of this
should consider taking to address this
provision in the context of a company
issue is to ensure that special resolutions
being hamstrung by its dissenting minority
approving directors’ remuneration and
shareholders is unprecedent, and it is
financial assistance remain valid for
unclear what the likely outcome would
the maximum period of two years (as
be of an application in this regard. One
prescribed by the Companies Act) and not
may probably accept that only exceptional
a shorter self-imposed period, such as
circumstances would justify an order
from one AGM to the next. This buys the
under this section, and it would be
company vital time to regroup and assess
required that the company has exhausted
its position after such resolutions fail at the
all other avenues.
AGM, and enables the company to at least
pay its directors and provide much-needed Whilst the votes of shareholders can
intra-group financial assistance for another never be absolutely predicted, companies
year. Alternatively, and perhaps as a last need to take steps to ensure that they are
resort, companies may consider invoking practising good corporate governance
the provisions of section 6(2) of the and are proactively participating in
Companies Act which states that: the appropriate level of shareholder
engagement. Failure to do so may leave
“A person may apply to the
the company exposed to shareholder
Companies Tribunal for an
disapproval in respect of some the most
administrative order exempting
critical matters that require a high level of
an agreement, transaction,
shareholder assent.
arrangement, resolution, or provision
of the company’s Memorandum
Melissa Mtolo and Yaniv Kleitman
of Incorporation or rules from
8 | CORPORATE & COMMERCIAL ALERT 23 June 2021CORPORATE & COMMERCIAL
2020 CONSISTENT LEADERS IN M&A LEGAL DEALMAKERS
2020 2019 2018 2017
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2021 RESULTS
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CORPORATE & COMMERCIAL | cliffedekkerhofmeyr.comOUR TEAM
For more information about our Corporate & Commercial practice and services in South Africa and Kenya, please contact:
Anita Moolman Verushca Pillay Megan Rodgers Roxanna Valayathum
Director Director Sector Head Director
T +27 (0)11 562 1376 T +27 (0)11 562 1800 Director T +27 (0)11 562 1122
M +27 (0)72 252 1079 M +27 (0)82 579 5678 Oil & Gas M +27 (0)72 464 0515
E anita.moolman@cdhlegal.com E verushca.pillay@cdhlegal.com T +27 (0)21 481 6429 E roxanna.valayathum@cdhlegal.com
M +27 (0)79 877 8870
Jerain Naidoo David Pinnock E megan.rodgers@cdhlegal.com Roux van der Merwe
Director Joint Sector head Director
T +27 (0)11 562 1214 Director Ludwig Smith T +27 (0)11 562 1199
M +27 (0)82 788 5533 Private Equity Director M +27 (0)82 559 6406
E jerain.naidoo@cdhlegal.com T +27 (0)11 562 1400 T +27 (0)11 562 1500 E roux.vandermerwe@cdhlegal.com
M +27 (0)83 675 2110 M +27 (0)79 877 2891
Francis Newham E david.pinnock@cdhlegal.com E ludwig.smith@cdhlegal.com Charl Williams
Executive Consultant Director
T +27 (0)21 481 6326 Allan Reid Tamarin Tosen T +27 (0)21 405 6037
M +27 (0)82 458 7728 Sector head Director M +27 (0)82 829 4175
E francis.newham@cdhlegal.com Director T +27 (0)11 562 1310 E charl.williams@cdhlegal.com
Mining & Minerals M +27 (0)72 026 3806
Gasant Orrie T +27 (0)11 562 1222 E tamarin.tosen@cdhlegal.com
Cape Managing Partner M +27 (0)82 854 9687
Director E allan.reid@cdhlegal.com
T +27 (0)21 405 6044
M +27 (0)83 282 4550
E gasant.orrie@cdhlegal.com
BBBEE STATUS: LEVEL TWO CONTRIBUTOR
Our BBBEE verification is one of several components of our transformation strategy and we continue to seek ways of improving it in a meaningful manner.
PLEASE NOTE
This information is published for general information purposes and is not intended to constitute legal advice. Specialist legal advice should always be sought in
relation to any particular situation. Cliffe Dekker Hofmeyr will accept no responsibility for any actions taken or not taken on the basis of this publication.
JOHANNESBURG
1 Protea Place, Sandton, Johannesburg, 2196. Private Bag X40, Benmore, 2010, South Africa. Dx 154 Randburg and Dx 42 Johannesburg.
T +27 (0)11 562 1000 F +27 (0)11 562 1111 E jhb@cdhlegal.com
CAPE TOWN
11 Buitengracht Street, Cape Town, 8001. PO Box 695, Cape Town, 8000, South Africa. Dx 5 Cape Town.
T +27 (0)21 481 6300 F +27 (0)21 481 6388 E ctn@cdhlegal.com
NAIROBI
CVS Plaza, Lenana Road, Nairobi, Kenya. PO Box 22602-00505, Nairobi, Kenya.
T +254 731 086 649 | +254 204 409 918 | +254 710 560 114 E cdhkenya@cdhlegal.com
STELLENBOSCH
14 Louw Street, Stellenbosch Central, Stellenbosch, 7600.
T +27 (0)21 481 6400 E cdhstellenbosch@cdhlegal.com
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