Summary – Soweto Community Television NPC v Mzimukhulu and Others
The applicant (Soweto TV) sought to declare a meeting where the respondents were purportedly elected as directors of the applicant, null and void. The meeting was apparently held by members of the Soweto community on 12 May 2021. The applicant sought to interdict the respondents from (a) misrepresenting themselves to be the directors or officers of the applicant; (b) giving unlawful land unauthorized instructions to the staff of the applicant; (c) unlawfully engaging the stakeholders of the applicant; (d) using the intellectual property of the applicant and/or any resources of the applicant, including the applicant’s logo; (e) making any public announcements concerning the applicant; (f) interfering with the legitimate process of the applicant to recruit members and the board nomination process for the planned special annual general meeting (AG’), and (g) disrupting the planned AGM of the applicant.
In a nutshell, central to the determination of this matter is the outcome of the complaint laid in October 2020 with the Complaints and Compliance Committee of ICASA (CCC) in October 2020. The complaint, at its heart, was against the board of directors. It alleged that the board was not properly constituted. The CCC found that the board was not properly appointed.
The CCC held that, inter alia, a special meeting of members for the election of directors be held within 60 days. In this Court, the applicant argued that it is still within the 60-day period but is prevented from holding this election or special meeting to elect the directors because its attention lay elsewhere. Also, the COVID regulations prevented it from doing so. The applicant also argued that the respondents have been purporting to act as the directors of Soweto TV and have to this extent terminated the contract of MVM. The applicant state that it did not want the respondents to continue interfering with the workings or the business of Soweto TV.
The respondents argued that the interests of the applicant are not being served by the current board of directors and the company secretary. In this regard, they also pointed to the fact that there were no audited financial statements for the past few years. They alleged further that it was in the financial interests of the applicant that an interim board of directors be appointed, pending a special members’ meeting to manage the financial affairs of the applicant.
The Court found that the applicant has not taken any steps to implement the judgment of the CCC. Further, there was nothing preventing it from recruiting members from the broader Soweto community. The Court stated that the current board of the applicant is improperly constituted. Hence the CCC’s recommendations need to be implemented. The Court further found that, similarly, the election of the respondents as directors of the Soweto TV wasn’t proper and stands to be nullified.
The Court held that an interim board of directors consisting of two directors to be nominated and appointed by the respondents’ attorney, two directors to be nominated and appointed by Mr Gcayi and one director to be nominated and appointed by the Chairperson of the Johannesburg Society of Advocates be appointed pending the election of a board of directors at a special meeting to be held by no later than Saturday the 28 August 2021.