IN THE HIGH COURT OF SWAZILAND
In the matter between: Case No.203/2015
MBUSO E. SIMELANE Applicant
PETER GEORGE 1st Respondent
SUSAN HESKETH 2nd Respondent
THE ATTORNEY GENERAL 3rd Respondent
THE REGISTRAR OF COMPANIES 4th Respondent
ELANGENI ESTATES (PTY) LTD 5th Respondent
CYNTHIA NZIMA 6th Respondent
Neutral citation: Mbuso E. Simelane v Peter George and Others (203/2015)  SZHC 137 (15th June, 2018)
Coram : M. Dlamini J
Heard : 4th March, 2018
Delivered : 29th June, 2018
Deceased estate - will – interpretation thereof - the intention of the testator is important. In determining the intention of the testator, the terms of the will must be read as a whole. Further the interpretation of each clause must not be irreconcilable with other clauses of the will
Company - A company is not an agent of its shareholders, directors and members. The converse is also not true.
Summary: The applicant, an executor dative, demands the removal of 1st and 2nd respondents as directors of 5th respondent; a reversal of 200 shares from the 1st respondent to the estate late George Craddock and an ejectment order against 1st respondent. The 1st respondent has contended that the prayers by applicant are a vitiation of agreements and claims concluded by the late George Craddock and approved by the testamentary executor respectively, a position which ought not to be countenanced by law.
- The applicant is the executor dative who has taken over the administration of the estate late George Craddock (the estate) after the executor testamentary, Jan Borrel following his resignation on 16th November, 2007. The 1st and 2nd respondents are directors of 5th respondent. The late George Craddock (deceased) was also a shareholder and director in 5th respondent before his demise.
- The 5th respondent is a company duly registered in terms of the company laws of the kingdom of eSwatini. The 6th respondent is the sole legatee subject to a usufruct in the will executed by the deceased. The 3rd respondent is the legal advisor of the 4th respondent who is the Registrar of Companies.
Prayers by applicant
- The applicant has prayed as follows:
“1. The 1st Respondent be ordered to hand over the keys of the padlocks he has placed on the gate leading to the home of the late George Craddock situate at EKUPHELENI CHIEFDOM in the ELANGENI ESTATE.
2. Granting the Applicant or anyone under his authority the right to remove any padlock, locks or locking mechanism placed on the gate as above described that have been placed and or fitted by the 1st Respondent.
3. The 1st Respondent be ejected by the Deputy Sheriff from the portion allocated to the late George Craddock as defined in the USE AGREEMENT dated 15th August 1990 entered into by the deceased with the 1st Respondent within 6 months of grant of the Court Order.
4. The 1st Respondent be compelled and ordered to transfer back 200 shares of 5th Respondent (R7/2293) to the ESTATE OF THE LATE GEORGE CRADDOCK EH 247/2001 presently held by him and same be registered in the name of Applicant in his official capacity as executor thereof.
5. The 1st and 2nd Respondent be removed as Directors of 5th Respondent.
6. The applicant be registered as a Director of 5th Respondent in his official capacity as executor in the estate of George Craddock.
7. The applicant be authorized to file the FORM C and J to give effect to prayer 4, 5 and 6 above.
8. The 4th Respondent be ordered to endorse the changes as described in prayer 4, 5, 6 and 7 in his records.
10. In the event there be a dispute of fact that issue under dispute be referred to oral evidence.”
 Prayers 1 and 2 were dealt with amicably between the parties. What is left for my determination is the rest of the prayers.
 In support of his prayers, the applicant has referred the court to two agreements. I shall refer to them as Shareholders’ Agreement; Use agreement and Agreement of Area Ownership (1998 Agreement).
 The deceased during his lifetime acquired 200 shares in 5th respondent. In terms of the Shareholders’ Agreement, for a party to be eligible to become a director in 5th respondent, he had to hold shares not below 200. A party wishing to sell its shares must first make such an offer to the other shareholder.
 5th respondent owned immovable property measuring 38.5511 hectares. In terms of the 1998 Agreement, the deceased was to occupy the upper portion of the area while 1st respondent the lower. At the time of conclusion of the 1998 Agreement, the 1st respondent’s homestead was located in the upper portion. The parties agreed that 1st respondent would relocate to the lower portion. However, 1st respondent has failed to relocate on the basis that he has a number of claims against the estate. 1st respondent further claims that the 6th respondent ceded her rights to him. Applicant contends that 1st respondent has failed to substantiate his claim against the estate. Although 1st respondent lodged an application in this court under case number 878/13, in this regard, he subsequently withdrew it upon resistance to the effect that any agreement entered outside the executor were void.
 On the prayer to have the 200 shares registered under his name, the applicant contends that it was unlawful for the 1st respondent to transfer the 200 shares belonging to the deceased estate following that acquisition of the shares by 1st respondent transpired in 2003 after the demise of the deceased in 2001.
 Had 1st respondent not transferred the 200 shares to himself, he would not be eligible to be a director following that he would hold shares below the threshold of 200 in 5th respondent, applicant contended further on his demand for the removal of 1st respondent as the director of 5th respondent.
The 1st, 2nd and 5th respondents
 The respondents had raised a point in limine to the effect that the application serving before court is fraught with serious dispute of facts. The respondents contend further that the applicant lacked the necessary mandate to cancel agreements and reject claims concluded and approved by the executor testamentary.
 On the merits, the respondents denied the share certificate attached in favour of deceased. 1st respondent disputed any holding of shares less than 200. He contended that there were a number of agreements entered into subsequent to the Shareholders’ Agreement. These latter agreements were between the 1st respondent, the executor testamentary and the 6th respondents. 1st respondent then referred to the 1998 agreement wherein the deceased and 1st respondent agreed to exchange the portions of land. In the 1998 Agreement, the portion where his house was located was incorporated as his piece of land. At any rate in terms of the 1998 Agreement, the 1st respondent was specifically exempted from vacating the area where his house was constructed.
 The 1st respondent has referred this court to a number of agreements, justifying his actions. He pointed out further that he has lodged a number of claims against the estate. The executor testamentary did approve his litany of claims. He contended that some of the claims were settled by the transfers of shares to his name. He also deposed that he had filed new claims against the estate as a result of interest accrued to him and maintenance cost together with damages arising from theft by the deceased against his property. He asserted that applicant had refused to hold a meeting with him where he could substantiate his claims against the estate. He denied ever felling gum trees from the deceased portion and asserted that on the contrary it was the deceased and 6th respondents who had done so in his portion.
 It is not disputed that the three agreements referred to by the applicant in his founding affidavit were entered into by the deceased and the 1st respondent. The sale of shares agreement effectively pertained to 1st respondent selling his 200 shares to the deceased, who eventually acquired the same.
 It is common cause that there was a transfer to the 1st respondent of 200 shares after the demise of the deceased who during his lifetime held 200 shares in 5th respondent. It is not in issue that the deceased left a will.
 It is common cause that the parties entered into the 1998 Agreement. This agreement was concluded between the deceased, the 1st respondent.
 The crisp questions for determination are:
- Does this matter justify a trial? If not, the following questions would flow.
- Whether there was a subsequent sale of shares from the deceased’s estate to the 1st respondent. If the answer is to the positive, the next question is whether that transfer of shares after the demise of the deceased is valid in law;
- What about the 1998 Agreement?
 I must point out from the onset that in as much as the respondents have raised a point in limine to the effect that the applicant’s application is fraught with dispute of facts, it is my considered view that the matter can be decided on the papers as they stand. I say this because a cursory glance on the averments at the instance of the applicant and the respondents reveal that the merits depend merely on the application of the law to the facts which are common cause. I shall fully demonstrate this in the proceeding paragraphs.
Sale of shares
 In support of the prayer for reversal of the transfer of shares from the 1st respondent to the estate, the applicant has asserted:
The deceased CRADDOCK had during his lifetime bought 200 shares belonging to 1st Respondent from 6th Respondent for 124 000.00 on 15th August 1990.”
 In answer to the above averments, the 1st respondent has deposed:
“10.1 The contents of this paragraph are admitted. However, I wish to submit that the Application of clause 2.3 of the Shareholders Agreement has to be read together with the other agreements that were signed subsequent to the 1990 agreement.”
 In support of the attestation cited above, the respondents have referred the court to a memorandum of agreement which reads:
“A memorandum of agreement dated 18 October 2002 made between J Borrel as an Executor of the Estate late G Craddock and P George as claimant was considered unacceptable by Ms C Nzima, who is the beneficiary of the Estate.
We the undersigned now wish to record that we have reached an agreement, which is acceptable to both of us, and the original agreement should be changed to show that:
- P George now takes only approximately 8(eight) hectares of the land as shown on the attached diagram as XYZGFE outlined in red. C. Nzima to retain approximately 30 (thirty) hectares in place of the 9 (nine) hectares, which was unacceptable to her, coloured in blue.
- P George to transfer an extra 70 (seventy) shares to himself in place of the land that is not to be transferred.
- P George to supply two copies of the diagram mentioned, coloured to show the areas described.
Signed as read, understood and agreed
PW GeorgeCD Nzima
 Following the above memorandum of agreement, the testamentary executor then authored the following document:
“I, J. Borrel, being the executor of the estate of the late G. Craddock, have examined an agreement entered into between P. George, a claimant against this estate and C. Nzima, a beneficiary of this estate. This agreement was witnessed by Mr. Mnisi of Robinson Bertram Attorney and signed by all three parties on 19th March 2004.
I am satisfied that this agreement constitutes an acceptable settlement of a claim made against the estate by P. George in an earlier document dated 18 October 2002.
I am informed by P. George that the matter of approximately fourty thousand survey poles removed without authorization by Craddock and Nzima is not covered by the above mentioned agreement.
Signed : …………………………………….
DATED : 5 Aug 05
AT : Hawane”
 Now that I have demonstrated that there is an agreement subsequent to the Shareholders’ Agreement entered between the deceased and the 1st respondent in 1990. This subsequent agreement was however, not between the initial parties viz., the deceased and the 1st respondent. It was as evident from the date of signature in 2004, after the demise of the deceased in 2001. What is also glaring from the 2004 agreement is that it dealt with both the shares and the land. It is further clear from this agreement (2004 Agreement) that there was a prior agreement. The court was urged during submission that that prior agreement, concluded after the demise of the deceased transferred all the shares held by the deceased to the 1st respondent. This agreement was concluded in 2002 (2002 Agreement). Now the question confronting this court is whether the 2002 and 2004 Agreements are valid.
 In determining whether the 2002 and 2004 Agreements entered into between the 1st respondent and the 6th respondent are valid, one must first resort to the will. It is common cause in this matter that the deceased executed a will before his demise. In the said will, Jan Borrel of Timbutini Motshane was nominated as the executor. George Edwin Craddock (deceased) bequeathed his properties. The will reads in this regard:
“3. I hereby nominate Cynthia Delisile Nzima, to be the sole heiress of all my estate, property and effects, whether the same shall be movable or immovable and wheresover situate at the time of my death, and whether in possession, reversion, remainder or expectancy, nothing whatsoever excepted.
Upon her death all my estate property and effect will be passed to my sons Dean Craddock and Lee Craddock of Gillingham (Kent) England.
 I am mindful of the canons of interpretation pertaining to contracts and wills. The intention of the testator is important. In determining the intention of the testator, the terms of the will must be read as a whole. Further the interpretation of each clause must not be irreconcilable with other clauses of the will.
 From a careful reading of the will as captured above, it is clear that 6th respondent in as much as she was defined as a “sole heiress” of the deceased properties and effects, in terms of the will, as per the wording, “Upon her death all my estate property and effect will be passed to…..,” the testator bestowed upon her the right of a usufruct over the estate of the deceased. In brief, by the last sentence under paragraph marked 3 of the will, the 6th respondent did not acquire the right to alienate or dispose of the assets of the estate. She had to enjoy the fruits of the assets of the estate only. To permit her to dispose of the estate as it was so done under the 2002 and 2004 Agreements, would be to vitiate completely the intention of the testator in that the deceased sons would have nothing to inherit upon 6th respondent’s death. For this reason alone, the 202 and 2004 Agreements or any other agreement seeking to alienate the assets of the deceased during the lifetime of the 6th respondent cannot stand.
 The position of the law that the 2004 agreement was of no force did operate in the mind of the 1st and 5th respondent. This view is demonstrated by a correspondence attached to the pleadings by the 1st, 2nd and 5th respondent. The correspondence authored by 5th respondent under the hand of the 1st respondent reads at its paragraph 3:
“As you can see, I am faced with two possible courses of action. I can apply to the courts to have the 2004 agreement ratified, which will result in my recovering my losses by way of sale of the land and shares; or I can continue to search for an agreed settlement with yourself. Obviously, the second course of action will benefit all concerned, whereas the first will not.”
 The above was authored on 7th January, 2014. No application to “ratify” the 2004 agreement was made in the courts. It is therefore not clear as to why the respondents seek to rely on the 2004 agreement which in their own words had to be ratified in order to be effective and was not so ratified. In other words, the 2004 agreement cannot be of any force and effect until ratified by the courts, if that view by the respondents is anything to go by.
 I have taken time to peruse the file from the Master of the High Court’s office which was submitted during hearing of this matter. Glaring correspondences, documents and minutes of meetings held at the Master’s office, reflect that the deceased’s estate had been dealt with by all parties concerned as if the only legatee in the estate is the 6th respondent. This has serious repercussion on the rights of the deceased’s sons who are entitled to inherit from the deceased’s estate in terms of the will. The Master’s attention is drawn in this regard. What exacerbates the position herein is that the 5th respondent owns land. This land has tree plantations in it. From the various correspondences contained in the Master’s file and the pleadings, it is evident that both 1st and 6th respondents have each been selling timber from the immovable. It is not clear why proceeds from the sale of timber could not be utilized to settle justifiable debts for and by the 5th respondent. Why should the shares be interfered with, thereby jeopardising the rights of the legatees. Freedom of testation is paramount in this jurisdiction.
Use of land
 The court was referred to two agreements in regard to the right of use of the land. These are the Use Agreement and 1998 Agreement. It is common cause that 5th respondent is a company. Ramodibedi JP, Ota AJA and Annadale AJA cited Salomon v Salomon and Co. Ltd (1897) AC 22 (HL) as follows:
“Once the company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself, and …the motives for those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are.” (My emphasis)
 The court in Salomon also pointed out:
“The company is at law a different person altogether from the subscribers to the memorandum, and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers.” (My emphasis)
 Their Lordships referred to Innes CJ who having cited Solomon’s case proceeded to state:
“That results follows from the separate existence with which such corporations are by statute endowed, and the principle has been accepted in our practice. Nor is the position affected by the circumstance that a controlling interest in the concern may be held by a single member. This conception of the existence of a company as a separate entity distinct from its shareholders is not merely an artificial and technical thing. It is a matter of substance; property vested in the company is not and cannot be regarded as vested in all or any of its members.”(My emphasis)
 The Use Agreement provides that the 5th respondent as a company entered into a contractual relationship with the deceased. This is reflected in the heading and also the definition clause (i.e. 1) where ii reflects that the company refers to 5th respondent and the member to George Craddock, his successors and assigns.
 Clause 2 of the Use Agreement reads:
“With effect from the effective date the member shall enjoy the right for as long as he continues to hold the shares and complies with the provisions of this agreement:
2.1 To the exclusive use and enjoyment of the landshare.”
 The “landshare” is defined as, “[T]he portion of the property designated by blue boundary lines on the annexed plan (and excluding those portions designated by red shading).” The property is, “Portion A of Portion 1 of Land Concession Farm No. 30P, Motshane District, Swaziland.” The effective date of the Use Agreement was the date of signature which is reflected as 15th August 1990.
 From the above reading of the Use agreement which was between the 5th respondent as a distinct entity, separate from both the deceased and 1st respondent, it is clear that the company endowed the deceased in his personal capacity with the right to use and enjoy the landshare or the area marked with blue boundary lines. This agreement in as much as it excludes the deceased to use and enjoy the property marked with red shading, does not mean that the 1st respondent has any right to use that red shading area. In other words, use and enjoyment of the area shaded in red was for the 5th respondent as a company whose sole business was described in the Shareholders’ Agreement as investment. The reason is that the agreement as demonstrated above, described a member as the deceased. The clause endowing right of use and enjoyment refers to the member who is the deceased, his successors and assignees. The 1st respondent is not mentioned in the agreement except that he appeared on behalf of the company when the agreement was concluded. The heading and the signature pages bear testimony to this position of the law. He therefore has no rights over the enjoyment of the property defined as “Portion A of Portion 1 of Land Concession Farm No. 30P, Motshane District, Swaziland” under the Use Agreement.
 Turning to the 1998 Agreement, it is apposite that I quote it verbatim in its entirety. It reads:
“ELANGENI ESTATE (PTY) LTD
An agreement entered into between Mr. and Mrs. P. George as joint owners of fifty percent (50%) of the shares in Elangeni Estate (Pty) Ltd and Mr. G Craddock as owner of the remaining fifty percent (50%) of shares in the afore said estate.
For the purposes of this agreement drawing SG/S 86/53 and map AA7. Scale 1:500 Reference. The North West and of the farm, beacon ‘A’ on SG/S 86/53 shall be referred to as the “Top End” of the farm while the South East end of the farm shall referred (sic) to as the “Bottom end” beacon ‘C’.
Concerning the use of the mentioned land areas:-
From the date of signing of this document the area of land known as the “Bottom Area” which is equal to half of the total land area of the farm, less the area occupied by Mr. P. George’s house, shall be considered to be for the sole use of Mr. P George and is to measured (sic) form (sic) point ‘C’ at the “Bottom End” of the farm extending up to the stream along “X-Y” marked in red and beyond the stream towards to “Top Area” to from a rectangle X, U, V, W also marked in red. The total area occupied by Mr. George not to exceed 38,5 hectares or half the total area of the farm being 77 hectares including the house area. Rights of way for both parties over each other’s roads as now.
Concerning Gum trees:-
The area of trees shaded in Blue which will be allowed to grow to maturity over a period of 5 years from the date of signing of the agreement. The trees will be harvested by Mr. P George and the profits of the sale is going to him, Mr. P. George solely. Then after the harvest the land will be handed to Mr. Craddock and as agreed will be cleared within 2 years of signing this agreement.
To off set the cost of replanting Mr. G Craddock agrees to loan his tractor free of charge to Mr. P. George until the planting is competed.(sic) Mr. G Craddock agrees to pay Mr. P. George the sum of E10 000 (Ten thousand Emalangeni) towards the cost of replanting approximately ten thousand gum trees.
Mr. G Craddock will fence along the line ‘Y’, ‘W’, ‘V’, ‘U’ in what ever manner he wishes.
Mr. P George will assist with security where main access road passed through his forest, by clearing as required.
Mr. P. George will assist with costs towards rehabilitation of bridge at present in a bad state of repair.
This agreement shall come into effect as soon as both parties have signed their names and Mr. G Craddock has paid the agreed sum to Mr. P. George. (My emphasis)
 The above quoted agreement was signed by both parties, namely 1st respondent and his witness and the deceased and his witness on 1st and 2nd September, 1998 respectively. The respondents have attested in regard to this agreement:
“I humbly submit that the 1990 agreement (the Use Agreement) with its drawings clearly shows my house area and in the 1998 agreement, being Annexure “E1” (The Agreement of Ownership Area) clearly allows for the retention of ownership of the area occupied by my house.”
I wish to submit and clarify that in 1990 when Mr. Craddock bought the shares, he took occupation of the south or the bottom of the farm and I took the north part.
Thereafter in 1998 as per Mr. Craddock’s request we signed Annexure “E1” which reversed the 1990 agreement in that I took the south part of the farm and Mr. Craddock took the north part. Such exchange did not affect the land on which our houses were built on. It was agreed between the parties that Mr. Craddock was to bulldoze all the timber that I had planted on the north part after I had harvested as I am timber farmer and Mr. Craddock only wanted an arable land. By virtue of such agreement I had to start afresh in ploughing my timber hence in terms of Annexure “E1” it was agreed that: ….
 The 1st respondent continued to depose that it was agreed that the deceased would loan him a tractor and pay him a sum of E10 000.00. What is glaring from the 1998 Agreement is that the parties thereto were the 1st respondent and the deceased. It is common cause that the property, “Portion A of Portion 1 of Land Concession Farm No. 30P, Motshane District, Swaziland” is the same property described under the 1998 Agreement as “drawing SG/S 86/53 and map AA7. Scale 1:500 Reference. The North West and of the farm, beacon ‘A’ on SG/S 86/53 shall be referred to as the “Top End” of the farm while the South East end of the farm shall referred (sic) to as the “Bottom end” beacon ‘C’.” From the Use agreement, the 1998 Agreement and the pleadings together with the oral submissions, it is common cause that this property is the asset of the 5th respondent.
 I have already demonstrated that from the first paragraph of the 1998 Agreement, the parties are the deceased and the 1st respondent as the shareholders of the 5th respondent. It is trite that the 5th respondent is a company. Now a company being a legal persona distinct from its shareholders and directors, it is clear that for the shareholders to deal with the property of the 5th respondent without the 5th respondent was a legal misnomer. If the parties intended to use the property of the 5th respondent, 5th respondent ought to have been a party to the contract. They could not conclude a contract which involved the asset of the 5th respondent among themselves to the exclusion of the 5th respondent. A company is not an agent of its shareholders, directors and members. The converse is also not true. In the result the 1998 agreement is of no force and effect. It is not binding upon the parties by virtue of its illegality. This court therefore cannot consider it as it was so urged.
 It is not clear why the parties did not draw a similar agreement as the Use agreement if they intended the 1st respondent to enjoy the use of the 5th respondent’s property. The answer though lies in the submission contended on behalf of applicant that the 1st respondent considered 5th respondent as synonymous with him. Unfortunately, the position of the law is that the 5th respondent is a legal persona with the rights to acquire and dispose of its assets. The shareholders lack the necessary capacity to do so.
 On perusal of the deceased’s file from the Master’s office, minutes of a meeting held at the Master’s office on 31st July, 2017 reflects, “These minutes are recorded by P. George and may not be the opinion of all concerned”. It is recorded by the 1st respondent in the said minutes that the Deputy Master who presided over the meeting on the 31st July, 2017 rejected the 2004 agreement and queried the reason the 1st respondent acquired all 200 shares belonging to the deceased estate. 1st responded recorded his answer as, “George stated that he had done so to prevent the illegal sale of the Estate, which both the Executor and Nzima had attempted.” The minutes further reflect under the hand of the 1st respondent, “Ms Magagula (Deputy Master) then said “I thinks (sic) I see the matter clearly now. Mr. George tricked Ms Nzima into signing the 2004 document and is now bragging that he holds all 200 shares”.
 From the above, it is not clear why 1st responded insisted before the Master on the 31st July, 2017 that he held all 200 shares belonging to the deceased estate in terms of the 2004 agreement. I have highlighted in this judgment that before the 1st and the 6th respondents concluded the 2004 agreement, there was a 2002 agreement which reflects that 1st respondent acquired all 200 shares. The 2004 was concluded because the 6th respondent reported that she was compelled to sign the 2002 agreement. The 2004 agreement was meant to amend the 2002 agreement in that 6th respondent retained some of the deceased’s estate shares.
 However, glaring from the minutes of 2017, the 1st respondent insisted that he had acquired all 200 shares from the estate. I only allude to the minutes of the 31st July, 2017 for the reason that the applicant herein prayed, “The 1st Respondent be compelled and ordered to transfer back 200 shares of 5th Respondent (R7/2293) to the ESTATE OF THE LATE GOERGE CRADDOCK EH 247/2001 presently held by him and same be registered in the name of Applicant in his official capacity as executor thereof.” In other words, it is justiciable why the applicant prayed in this manner as the 1st respondent, despite the wording and the evident intention of the 2004 agreement, still insisted on having acquired all 200 shares. I have already indicated my findings on both the 2002 and 2004 agreements.
 According to Form J, the 1st respondent holds 344 shares in 6th respondent. Following that the 2002 and 2004 agreements must be set aside for want of legality, when one subtracts the 200 shares belonging to the deceased’s estate from the 344 shares held by 1st respondent as per Form J herein, 144 shares are left to 1st respondent. His balance shares of the initial 200 which he held in conjunction with his wife, one Thandi George in 1990 when the Shareholders’ Agreement was concluded were sold to various persons reflected in Form J filed with the 4th respondent as at 5th August 2013 as borne by the Registrar’s date stamp. In fact the total shares sold to various persons including Mwiya sum to 52 shares. I guess the balance after adding 52 plus 144 of 4 shares in order to make 200 shares for the 1st respondent is still retained by 1st respondent’s wife. Now 144 of 1st respondent’s shares plus 4 of 1st respondent’s wife equals 148 shareholding in 5th respondent. Clause 6 of the Shareholders’ Agreement provides:
6.1 The First Shareholders (i.e. 1st respondent and his wife Thandi George) shall be entitled to remain as directors of the company (5th respondent) so long as they jointly hold fifty per cent (50%) of the issued shareholding of the company.
6.2 So long as the Second Shareholder holds fifty per cent (50%) of the issued shareholding of the company, he and one person nominated by him shall be entitled to appointment as directors of the company.(My emphasis)
 From clause 6 above therefore, it is clear that the 1st respondent together with his wife do not hold 50% of the shareholding in 5th respondent. He is therefore disqualified from the office of the directorship in 5th respondent.
 The first respondent attached annexure marked “PG 16”. This document as originally typed reflects that 25 shares were sold to Mr. Melvern M Mwiya and Mrs. Ellen Simatimbe Mwiya joints by the 1st respondent. Both 1st respondent and the deceased appended their signatures on this document referred to as a resolution of the Board of Directors of 1st respondent of 3rd March, 1999. However, there is a hand cancellation of the purchaser and the seller of the twenty five shares. There is a handwriting entry reflecting that 16 shares were sold by the deceased to Pheli Shabangu. There is no counter signature against the handwriting entry on this crucial documents. No court of law can accept such a document. However, this document is evident that the 1st respondent did sell to Mwiya and his wife a total of twenty five shares. This is confirmed by Form J filed herein bearing the 4th respondent’s date stamp of 5th August, 2013 as the name of Mwiya is reflected as one of the shareholders . At any rate, even if the court were to accept that the deceased sold 16 shares belonging to him in 1999 to Pheli Shabangu, 1st respondent would not have transferred to himself a total of 200 shares in 2002 as per the 2002 agreement and would not have insisted in the meeting of 2017 before the Master that he transferred to himself 200 shares belonging to the deceased’s estate in order to ensure that the applicant and the legatee did not alienate it. After all it appears that Pheli Shabangu was never registered in the 4th respondent’s records as a shareholder in 5th respondent. He does not even appear in the Form J filed by 1st respondent on 5th August 2013 after demise of the deceased. In brief this document is not consistent with the events that transpired on the ground before and after the demise of the deceased. It was so attached by the 1st respondent as an attempt to show that even deceased did not hold 200 shares and therefore his executor and nominee could not be directors. Unfortunately that is not the turn of events as so demonstrated.
 The applicant referred the court to case No. 878/2013 and alleged that the 1st respondent failed to substantiate his claim against the estate. In the founding affidavit under case No. 878/2013, the 1st respondent who was applicant therein referred to the 2004 Agreement and pointed out that he received 70 shares from the deceased’s estate and then deposed:
“These shares I then donated to the Applicant.”
 Applicant in those proceedings was cited as Elangeni Holdings (Pty) Ltd. If this averment is anything to go by, it means therefore that 1st respondent did not accumulate the said shares to himself after the 2004 Agreement as he donated them to another company known as Elangeni Holdings (PTY) Ltd. This fortifies further the averment by the applicant herein that 1st respondent holds less than 200 shares and therefore is disqualified to be a director of 5th respondent. From Form J of 2013 however, it turned out that the averment on donation of the shares to Elangeni Holding (Pty) Ltd is incorrect.
 Before I state the orders herein, I must mention that it is not clear how the 2nd respondent was joined by the applicant in this matter following that the three agreements presented in the pleadings herein do not reflect her name. Neither the share certificate nor Form J attached on behalf of 1st respondent herein reflect her substitution. I must also point out that there was no counter claim filed by the 1st respondent following that he asserted several times in his answering affidavit that he has a counter claim against the estate.
 In the above analysis, I enter the following orders:
- Applicant’s application is hereby granted;
- 1st Respondent is hereby ejected from the portion allocated to the late George Craddock as defined in the Use Agreement within 6 months from the date of this judgment;
- 1st respondent is hereby ordered to transfer back 200 shares held by him to the estate late George Craddock under file No. EH 247/2001 and that the applicant is authorised to register the said shares in his name as the executor dative;
- 1st and 2nd respondent are hereby removed as directors of 5th respondent;
- The applicant as executor dative is granted the right to register as director of 5th respondent;
- Applicant is hereby authorized to file Form C and Form J with the 4th respondent to give effect to the orders herein;
- 4th respondent is ordered to endorse the amendments described herein;
- The Royal eSwatini Police are hereby authorized to effect the orders herein;
- No order as to costs.
M. DLAMINI J.
For Applicant : M. MBUSO SIMELANE FOR MBUSO E. SIMELANE & ASSOCIATES
For Respondent : K. S. SIMELANE FOR CLOETE/HENWOOD-ASSOCIATED
 Annexure “PG 4” at page 138
 Raubenheiner v Raubenheiner & Others (560/2011)  ZASCA 97 at para 22
 Theart v Scheibert & Others (630/11)  ZASCA 131 at para 16
 Annexure “PG10” at page 148
 Swaziland Hotel Catering Allied Workers Union and Another v SwaziSpa Holdings Ltd (06/12) 2012 [SZICA] 3 (4th October, 2012) at page 9 paras 17 and 18
 Dadoo Ltd and Others v Krugersdrop Municipal Council 1920 AD 530 at 550-1
 See clause 1.1 at page 39
 S v De Jager 1965 (2) SA 616 [A] at 625
 See preamble of said minutes
 See para 10 of the founding affidavit