IN THE HIGH COURT OF ESWATINI
Held at Mbabane Case No.: 953/2017
In the matter between
NANDI BUSISIWE FUPHE N.O. 1ST Applicant
NATASHA SIPHIWE TSHABALALA N.O 2ND Applicant
DR BUTARE RUKUNDO 1st Respondent
SIYANAKA ACUTE CARE HOSPITAL (PTY) LTD 2ndRespondent
Neutral Citation: Nandi Busisiwe Fuphe & Another Vs Dr Butare Rukundo & Another (953/2017)  SZHC 167 ( 11th September 2019)
Coram: Hlophe J.
For the Applicant: Mr. M.B. Magagula of Magagula & Hlophe Attorneys,
For the Respondent: Advocate J.M. Van Der Walt instructed by Henwood & Company
Date Heard: 18th June 2019
Date Judgement Delivered: 11thSeptember 2019
Company Law – Confirmation that the applicants are respectively Director and Alternate Director in the second respondent, representing the interests of their mother who was Director and shareholder in same, sought – Also sought is a declarator that the estate of the late Thembeka Ruth Shabalala is a shareholder in the Second Respondent and is entitled to equal control of the management of the Second Respondent including the right to appoint an equal number of Directors in the Second Respondent’s Board – Whether a case made for the reliefs sought – Respondents contend that applicants not entitled to the reliefs sought inter alia because their names did not appear in the register contrary to the provisions of the articles of association which required that a person in the position of the applicants should first have their names entered in the register kept by the Registrar of Companies – Whether the failure to have the applicants names registered is fatal in a case like the present – Contended that the respondents had already treated and accepted the applicants respectively as shareholder and Directors in the Second Respondent – Contended further that the treatment and acceptance of the applicants aforesaid amounted to unanimous assent including what the effect of this principle is in law – Whether or not a case made for the reliefs sought.
 This is an application in terms of which the applicants approached this court seeking an order in the following terms:-
1.1. The appointment of the 1st Applicant as Director of the 2nd Respondent and of the 2nd Applicant as the alternate Director, by the requisitioned General Meeting of the 24th September 2015 be and is hereby confirmed;
1.2. An order declaring that the Estate of the late Thembeka Ruth Tshabalala, Master’s Reference No.EH65/2013, as holder of the shares in the 2nd Respondent, is entitled to equal control of the management of the 2nd Respondent including the right to appoint an equal number of Directors into the 2nd Respondent’s Board;
1.3. An order declaring that the applicants as shareholder representatives of the estate of the late Dr Tshabalala are entitled to participate equally in the management of the affairs of the 2nd Respondent;
1.4. The applicants be and are hereby empowered to appoint a Forensic Auditor to conduct a forensic investigation, examine the 2nd Respondent’s books of accounts, financial statements and management affairs of the 2nd Respondent for the period covering the 2013, 2014, 2015, 2016 and 2017 financial years of the second Respondent.
1.5. The 1st Respondent be and is hereby directed to deliver and facilitate the delivery to the Applicants or the forensic auditor of all management, accounting records and information of the 2nd Respondent as may be requested by the applicants or the forensic auditor for purposes of conducting the forensic investigation, examining the books of accounts and the financial and management affairs of the 2nd Respondent;
1.6. The 2nd Respondent and its employees be and are hereby directed to deliver and facilitate the delivery to the Applicants or forensic auditor of all management, accounting records and information of the 2nd Respondent as may be requested by the Applicants or the forensic auditor for purposes of conducting the forensic investigation, examining the books of accounts and the financial and management affairs of the 2nd Respondent;
1.7. The Respondents be and are hereby directed to cooperate with the applicants and the Forensic auditor and to grant them full access to all records information and documents as may be required whilst conducting the forensic investigation, examining the books of accounts and the financial and management of the 2nd Respondent;
1.8. That the Respondents be and are hereby ordered and directed to pay to the Estate of the late Dr Ruth Tshabalala within 10 days from the date of the order, the shareholder payments discontinued by the 1st Respondent, such payments to be with effect from August 2015 to date and to continue the payments for as long as the shareholder agreement still subsists.
1.9. Directing the 1st Respondent to pay the costs of the requisitioned General Meeting held on 24th September 2015;
1.10. Directing the 1st Respondent to pay the costs of this application on the scale between attorney and client;
1.11. Granting the applicants such further and alternative relief as this Honourable Court deems fit.
 The applicants are biological daughters of the late Dr Ruth Thembeka Tshabalala, who it is common cause passed away on the 1st March 2013. It is not in dispute that during her lifetime the said Dr Tshabalala together with the First Respondent, Dr Butare Rukundo, established the company cited herein as the 2nd Respondent. This, it is common cause, they did for purposes of establishing a specialist care hospital for women and children. It was therefore established to give specialist and intensive care to these particular members of the public.
 Otherwise the two were medical doctors in their own right, with the 1st Respondent being a pediatrician (a children’s Doctor) whilst the late Dr Tshabalala was a Public Health Doctor said to have had a passion in women health matters. The Hospital established under the auspices of the 2nd Respondent started operating on the 1st November 2011. Soon or sometime after its establishment, the 2nd Respondent paid to each one of its shareholders a sum of E65000-00 per month. The applicants contend it was a shareholder payment in the stead of dividends but the First Respondent contends otherwise. He claims it was a payment to the Directors of the company for work done. One of the issues in this regard is about a determination on what that amount was paid for, and whether or not it should continue being paid to the estate of the late Doctor Tshabalala (now said to be represented by the applicants) together with its arrears. Whether or not the applicants are the representatives of the estate concerned is one of the issues I am called upon to determine hence my having had to say what I have just said.
 After the late Doctor Tshabalala had passed away on the 1st March 2013, her estate was reported and registered with the Master of the High Court. Both applicants, (the biological children of Dr Tshabalala) were appointed co-executrixes in the estate of their late mother. The applicants contend that as the Executrixes of the Estate of their late mother, they are entitled to enter into her shoes and act as the shareholder representatives of the company for her 50% of the shares. It was a development from this that they had at some point, requisitioned a meeting of the members of the company to be held whereupon one of them, was to be appointed the Director in the 2nd respondent company whilst the other one was to be appointed an alternate Director.
 It is common cause that sometime before her death, Dr Ruth Tshabalala, appointed the First Applicant as the Director in the 2nd Respondent in her stead. This position had continued even after Dr Tshabalala’s death. In fact, after her death, the applicants held themselves out as shareholders and were treated as such by the 1st Respondent for some time. The Respondents, acting through the 1st Respondent, continued to hold the applicants as shareholders in the 2nd Respondent including paying them or to the estate of their mother the sum of E65000-00 per month. The same thing applies with regards the first applicant’s being accepted or treated as a Director in the second Respondent.
 The facts reveal that whereas the First Applicant had started acting as a Director during Doctor Tshabalala’s lifetime, the same position had been formally confirmed on the 8th July 2013. There later developed a misunderstanding between the First Respondent and the applicants. Sometime in February 2015, the First Respondent sought and obtained a legal opinion which advised that the hitherto Directors had been appointed illegally, irregularly and in a defective manner. It had concluded that they were henceforth not directors. The First respondent had relied on this opinion to discontinue treating these hitherto directors, who included the First Applicant, as such. The 2nd Respondent, under the direct control of the 1st Respondent, had continued paying the E65000.00 per month to the estate of the late Dr Tshabalala. The 1st Respondent discontinued this on the 15th August 2015, some six or so months after the termination of the First Applicant’s directorship in the Second Respondent.
 Whereas the 1st Respondent had sought an order of court to confirm that the First and Second Applicants were not Directors in the Second Respondent in line with the Legal opinion referred to above, that application was later withdrawn after the applicants had filed their opposing papers in which they had strongly contended that the current First Respondent had abused the court process in so far as he had allegedly tried to legitimize his usurpation of the control of the company.
 It was after years of the First Respondent’s having run the company all by himself including having assumed individual control of it that the applicants say they sought advice on the propriety or legality of the said takeover of the company. They said that the advice they obtained was to the effect that it was inappropriate and even illegal for the First Respondent to have the sole control of the company to the total exclusion of the other shareholder in the form of the estate of the late Doctor Tshabalala. It was argued in this regard that the position of the law in a company like the Second Respondent was that both shareholders had equal rights to its administration and control such that it was not proper for the First Respondent to administer and control the company all by himself to the total exclusion of the applicants as the representatives of the other shareholder. They were also advised, they claimed, that both shareholders had a right to appoint an equal number of Directors in the company so as to maintain an equilibrium in its control. They were advised that they could call for a meeting to appoint such directors failing which they could rely on section 158 of the Companies Act and requisition a general meeting to achieve that end.
 Before terminating the payment of the E65000 per month to the estate of the late Doctor Tshabalala, the Applicants had, on the 10th June 2015, written to the First Respondent informing him that as Executrixes in the estate of the late Doctor Tshabalala, they were nominating themselves respectively as the Director and Alternate Director representatives in the 2nd Respondent representing the estate of the late Dr Tshabalala. To give effect to their decision, they requested that the First Respondent calls a general meeting for purposes of their appointment as the Directors aforesaid.
 The First Respondent did not comply with the Applicant’s request. He instead issued a notice for a meeting with a different agenda to that raised by the applicants. Following a failure by the First Respondent to call the requested meeting, the applicants requisitioned a meeting in terms of Section 158 of the Companies Act. The First Respondent responded by issuing a notice for a meeting set for the 11th September 2015. The purpose of this meeting by the First Respondent was not for appointing the Directors as requisitioned in terms of Section 158 of the Companies Act. It instead set out the purpose of the meeting as being to consider the proposal to appoint additional directors in the company.
 The First Respondent was advised that the meeting he was requested to call was in terms of the requisition filed in accordance with Section 158 of the Act and that the one he was calling was not the requisitioned one as it had a different agenda. The First Respondent, on the 12th August 2015, issued another notice of a meeting still meant for the 11th September 2015. It was now couched in the following terms:-
“We hereby give notice that a shareholders’ meeting of Siyanaka Acute Care Hospital (PTY) LTD will be held at the La Cassarole Restaurant Board Room, Mbabane on the 11th September 2015 at 16.00 PM and that the agenda for that meeting is as follows-
1. Welcome remarks by the Chairman.
2. Appointment of Futhi Thembi as a Director.
3. Appointment of Mvuselelo Fakudze as a Director..
4. Appointment of Nandi Busisiwe Fuphe as a Director.
5. Appointment of Natasha Freda Siphiwe Tshabalala as an alternate Director to Nandi Busisiwe Fuphe.”
 Contending that the First Respondent had failed to call the requisitioned meeting the applicants, claiming to be empowered by Section 158 (3) of the Companies Act 2009, called a meeting for the 24th September 2015. On that day, the Applicants held the requisitioned meeting in the absence of the other shareholder, the First Respondent, who had not attended despite the notice that informed him of the meeting. The First Applicant was appointed the Director while the 2nd Applicant was appointed the alternate Director. A Form J effecting these changes was later filed with the Registrar of Companies.
 The appointment of the First Applicant and Second applicant as respectively the Director and alternate Director in the 2nd Respondent was not recognized by the First Respondent who it is contended continued to exercise exclusive contral over the company both as a single shareholder and as a single Director to the total exclusion of the applicants who at that time considered themselves as shareholder representatives and as Director and alternate Director in the company.
 This according to the applicants has led to them being completely marginalized in the affairs of the company such that they for all these years do not know what has been happening hence their prayer there be appointed a Forensic Auditor so as to enable them know what has been going on since their exclusion from the affairs of the company. The applicants were faced with that situation when they filed the current application proceedings. In these proceedings they seek the reliefs set out at the beginning of this judgement.
 The Respondents have opposed the application. Except that the material facts are not in dispute, part of the Respondent’s case is, in a nutshell, that in the absence of proof that the letters of administration issued by the Master of the High Court to confirm the appointment of the Applicants as Executrixes in the estate of the late Dr Tshabalala, are still valid, it may well be that they have no locus standi to bring the proceedings to court. They were thus challenged to prove the validity of the letters in question.
 Otherwise the thrust of the Respondent’s case is that whether or not the applicants were executrixes in the estate of their late mother, that did not mean they had automatically become shareholders in the Second Respondent company. It was not automatic for an executor or executrix in the estate of a late person to assume membership in a company where the deceased was a shareholder. For one to so become, his name had to be registered and entered into the Register held by the Registrar of Companies. It was argued that the applicants had never been registered as members in the said Register. Reference was made to Section 97(3) of the Companies Act 2009 as read with Articles 28, 29 and 30 of the company’s articles of Association.
 It was disputed that the deceased and the First Respondent had formed a joint venture company as the applicants had wanted to put it. It was instead argued that they had formed what is known as a quasi-partnership, which only envisaged its membership being opened only to the two Doctors as medical Doctors and to no one else. This argument was used to justify the position why the First Respondent considered himself or handled himself out as the only Director in the Second Respondent and why he was the only shareholder which it was argued was permissible in the Companies Act. It was further argued that any other person could only become a member and Director because the First Respondent would have allowed it given that the Articles allegedly gave a person in the latter’s position the power to approve that assumption of membership and Directorship in the company.
 It was argued further that in the present matter the First Respondent would not approve the membership and Directorship of the applicants because they were firstly not doctors as was the case between the founding members and also because they had also allegedly been oppressive to him. This it was contended, was proved by the fact that the applicants had entered the hospital of the 2nd Respondent and there at bullied all those found there working including the 1st Respondent himself.
 In their replying affidavit the applicants maintained that they were entitled to institute the proceedings and seek the reliefs they did as executrixes in the estate of their late mother. They contended that their Letters of Administration were up to date. Whatever the position with regards the Registration of executrixes in the Register kept by the Registrar of Companies before they could assume membership, such did not apply in their case because of the principle of unanimous assent. In terms of this principle, “any intra vires act which can be authorized by the company in [a] general meeting can also be authorized by the informal unanimous assent of all the shareholders.” This extract is from the Book: Hahlo’s South African Company Law Through The Cases, A Source Book, 6th Edition, Juta and Company, 1999 at page 235.
 It was argued in support of this principle that the Respondents could no longer, as at that point, challenge the membership and directorship of the Applicants in the Second Respondent because they had in the past been treated by the First Respondent as both shareholder representatives and directors in the second Respondent. It was argued this position had purportedly come to an end when the First Respondent, acting on behalf of the Second Respondent, had purported to terminate the membership and Directorship of the applicants in the Second Respondent Company. This was despite the fact that the First Respondent had already accepted the applicants respectively as shareholder representatives, Director and Alternate Director in the 2nd Respondent. In fact this position had persisted until such time that the First Respondent had purported to alter it through reliance on the opinion he had unilaterally sought and implemented which sought to justify his actions. It was argued it was unlawful for the First Respondent to have purported to unilaterally alter that position. In so far as he had done it the First Respondent had allegedly committed a wrong from which he could not benefit according to law.
 It was further argued that they were entitled to the other reliefs sought because it was the First Respondent who had unilaterally dealt with all the resources of the 2nd Respondent without bothering to keep the 2nd respondent informed on what was happening in the company, when they should not have been excluded in the first place or when their exclusion was done illegally with the First Respondent remaining at large to deal with the asserts as he pleased.
 During the hearing of the matter, the objection based on the applicant’s being able or unable to produce valid letters of administration was quickly and prelimarily resolved when the applicant’s counsel Mr Magagula produced a relevant copy of the letters of administration showing that same had been renewed by the Master of the High Court. This leaves out the issue whether or not the applicants needed to be registered first in the circumstances of the matter before they could be treated as members or shareholders.
 It cannot realistically be disputed that in a company of two members who each hold 50% of the shares, it is important that they are entitled to its equal control. This is to say as shareholders they are entitled to participate in managing its affairs proportionate to the shares they each hold in it. The same thing applies in sharing in its dividends. Section 70 confirms that the business of a company is to be managed by its Directors. These Directors should be appointed in a General Meeting according to Section 64 of the Companies Act. All these sections point to the need for the shareholders to maintain an equilibrium of power in the management of the company. The case of Kirsh Holdings Vs Swaziland Industrial Development Company Appeal Case No.35/2006 is instructive in this regard just as is that of Gohlke & Schneider V Westies Minerals BPK 1970 (2) SA 685 (A) page 692.
 The effect of these principles in the matter at hand is that both shareholders in the Second Respondent were entitled to participate equally in the management of its affairs, particularly because they each held 50% of the shares. It would ordinarily not be appropriate for the First Respondent to take individual control of a company like the Second Respondent, in its decision making.
 Although the Applicants as Director and alternate Director would have ordinarily had to be appointed as such at a General Meeting, it is clear from the circumstances that same was not possible because the First Respondent who had assumed individual control of the company was not calling such a meeting. In the circumstances it stood to reason that the only way in which Directors representing the interests of the other shareholder could be appointed so as to ensure the maintenance of a power equilibrium in the company would have had to be through the procedure established by Section 158 of the Companies Act. I have no hesitation that the appointment of the applicants as Director and alternate Director respectively through applying the provisions of Section 158 of the Act was appropriate and was the only alternative available to the Applicants in the circumstances of the matter.
 The Respondent’s argument that the Applicants’ said appointment could not stand because they were not shareholder representatives in so far as their names had not been recorded or registered in the Company Register held by the Registrar of Companies has two major problems. Firstly, immediately after the death of Doctor Tshabalala, the two applicants were recognized by the First Respondent as Shareholder Representatives in the company in line with their appointment as executrixes in her estate. Recognizing this position, the facts revealed, that the First Respondent, held meetings with them in that capacity including going on to pay to them the shareholder fees. That these monies were paid in that capacity, is confirmed by the fact that they continued being paid same even after their then recognized directorship had been terminated.
 I am convinced that these monies as paid to the estate of the late Doctor Tshabalala via the applicants, were shareholder payments because the reason suggested by the First Respondent on why they were paid cannot stand. It cannot stand because the reason he gives as having paid them is fanciful and unrealistic in my considered view. The reason he puts forward is that it was payment for work done but no proof of such work done is alleged let alone being proved. Further still this reason cannot stand because although no work had been done after the death of Doctor Tshabalala, the applicants were paid same on behalf of her estate and it even persisted well after their Directorship had been terminated, proof that it was not paid for work done by the Directors. It puts it beyond doubt that it was a fixed amount as it stood at E65000-00 every month which made it look unreal to be viewed as fees for work done as one would have expected payment for work done to vary according to the specifics of the particular work done in that month or period.
 Once the applicants had been recognized and treated as shareholders, it was no longer opened to the First Respondent to insist on them having to assume membership in the company after having been registered with the Registrar of Companies. I agree that by recognizing them as the Representatives of the shareholder or member of the Second Respondent company; it was no longer open to the First Respondent to insist on their being Registered as such with the Registrar of Companies. Their having been treated and recognized as the Representatives of the shareholder or member of the company automatically led to the invocation of the principle of unanimous assent. See in this regard; Hahlo’s South African Company Law Through The Cases, Sixth Edition, Juta and Company at Page 235; Golke And Schneider V Westies Minerale (Edms) BPK 1970 (2) SA 685 (A); Dublin V. Diner 1964(1) SA 799(D).
 This means that in so far as it was wrong for the First Respondent to terminate the membership or directorship of the applicants in the manner he did, he cannot be allowed in the same vein to continue to exclude them from being shareholders as he would no doubt be enhancing his position by wrongful means if he was so allowed.
 I therefore agree with the applicant’s counsel that in so far as they had at one point been recognized as shareholders, the Applicants had, through the principle of unanimous assent, been recognized as the Representatives of the member concerned in the 2nd Respondent. The Respondent cannot therefore ignore his having recognized the applicants as the shareholder representatives in the Second Respondent.
 Clarifying why unanimous assent is accorded the status it is in law the Court had the following to say in Gohlke and Schemeider Supra at 692 F – H:-
“The articles therefore merely have the same force as a contract between the company and each and every member as such to observe their provisions ( see Hickman V Kent or Rommey Margh Sheep breeder’s Association 1915 IC.H.D 881 the locus classics of the point, and de Villiers V Jacobsdal Saltworks (Michaelis and de Villiers) (PTY) LLTD 1959(3) SA 873 (O) at page 867-7.
Now that contract is not made immutable indefeasible by the ordinance in any respect relevant here. Consequently I can see no reason why, as with any other contract, it cannot be departed from by a bona fide agreement concluded between the company and all its members to do something intra vires of the Company’s Memorandum but in a manner contrary to the articles and why that agreement should not bind them, at least for as long as they remain the only members.” (underlining has been added)
 I agree as well that the following extract from the Gohlke and Schmeider Judgement (Supra) at page 692 paragraphs F-H, to which I was referred by applicants counsel Mr Magagula in his heads of argument completes the picture on how the principle of unanimous assent applies:-
“But the articles neither require that nor prohibit the power from being exercised by their unanimous assent achieved otherwise than at such a meeting. After all, the holding of a general meeting is only the formal machinery for securing the assent of members or the required majority of them, and, if the assent of all members is otherwise obtained why should that not be just as effective? Thus in the case of Salomon Vs Salomon and Co. LTD 1897 A.C.22, one of the questions that arose was whether the agreement whereby the company purchased the vendor’s business was valid since there had been no independent board of directors to render the company bound. No general meeting of members of the company has been held to approve the agreement, but according to the evidence they all knew of its terms and accepted them. At page 57 Lord Davey said:-
“I think it an inevitable inference from the circumstances of the case that every member of the company assented to the purchase, and the company is bound in a matter intra vires by the unanimous agreement of its members.”
 The argument is further that in so far as he tried to annul the recognition of the applicants as shareholders or shareholder Representatives in the company by saying that they had not been registered, it was no longer open to the applicant not to recognize them as by doing so he was benefitting from his own wrong. I agree with the Applicants’ contention in this regard. I further agree that this principle as expressed in Swaziland Electricity Board and Another V Malesela Technical Services (PTY) LTD Civil Case No.1183/2005, is applicable.
 This principle is expressed in the sense that our law does not allow a person to benefit from his own wrongdoing. It was captured in the following words in Wimbledon Lodge (PTY) LTD VS Gore N.O. and Others (2003) 5 SA 315 as cited in the Malesela Techical Services matter mentioned above:-
“It is a fundamental principle of law that no one should be allowed to improve his own position from his own wrong doing.”
Schulz JA had the following to say in that case :-
“ Can this situation be countenanced? I think not. I am content to start with Roman Law. In D18.104.22.168 Ulpian tells us “Nemo ex delicto meliorem suam conditionem facere potest.” Rendered in Watson translation as “No one is allowed to improve his own condition by his wrong doing.”
 A lot was said about the applicants having no locus standi to bring these proceedings because they were not registered as such with the Registrar of Companies. Whatever merit there is in such argument it is overshadowed by the assent given by the Respondents earlier on. It therefore cannot arise as an issue at this point.
 On the issue of the forensic audit sought, I agree that the question for consideration is whether same is being sought bona fide and not for chicanery purposes. I have tried the best I could to assess whether or not the applicants meet this requirement, and I have failed to find doubt it was done for bona fide purposes. If the First Respondent ran the company all by himself including handling its resources as such without accounting to the other shareholder, it would be difficult to find that this remedy is being sought in bad faith. See in this regard the case of Countertrade Establishment (PTY) LTD V EBN Trading (PTY) LTD 1995(1) SA 762.
 As regards the costs of requisitioning the meeting, it seems to me that these should be borne by the 2nd Respondent who appears to be a company capable of shouldering same with little difficult if the contents of the papers filed of record are anything to go by. I am not prepared to go to the extent whether such fees should be recoverable from anyone. It suffices that the company seems capable to shoulder such and that it should be ordered to bear same therefore. I say this being fully alive to the provisions of Section 158 (3) of the Act.
 I notice that the parties in this matter still require each other for the sake of their investment and in the best interests of what appears to be an essential service they are offering through the Second Respondent. This requires as less acrimony as possible. Consequently I should order that the costs of the applicants are to be paid by the 1st and 2nd Respondents at the ordinary scale, jointly and severally one paying the other to be absolved.
 Consequently, I for the foregoing reasons order that:-
1. The applicants’ application succeeds and it is granted in terms of Prayers 1, 2, 3, 4, 5, 6, 7 and 8.
2. Prayer 4 shall cover the period meant for the audit up to the present.
3. The costs for the requisitioned General meeting are to be borne by the 2nd Respondent.
4. The costs of these proceedings are to be borne jointly and severally by the 1st and 2nd Respondents at ordinary scale.
N. J. HLOPHE
JUDGE – HIGH COURT