The Factual Matrix: A Collapsing Marriage, Business Tensions, and Alleged Oral Agreements
At the heart of the dispute in W.M.T v M[…].T[…] .9[…] (Pty) Ltd and Others (D6021/2023) [2025] ZAKZDHC 19 (7 May 2025) lies a breakdown in both personal and commercial relationships. The applicant and the third respondent were married out of community of property with the accrual system, but their marriage had disintegrated by October 2021. Although physically separated and embroiled in divorce proceedings, they remained entangled as co-directors and shareholders in two private companies—the first respondent, trading as “V[…] S[…] B[…]” from the Shelley Centre, and the second respondent, operating under “V[…] 4[…]” from the South Coast Mall, both situated in Shelley Beach, KwaZulu-Natal.
The third respondent managed the administrative and financial functions of both entities, while the applicant had formerly been the operational face of the businesses. Following the deterioration of their marriage, the applicant ceased active involvement in the companies but asserted that an oral agreement had been concluded between himself and the third respondent, purportedly on behalf of both companies, during or about late October to early November 2021.
According to the applicant, this agreement provided that he would remain a director but retire from operational duties, and continue to draw his existing salary and company benefits for as long as he retained his beneficial shareholding.
Initially, the applicant sought payment of R2 179 748.36 and R715 500 from the first and second respondents, respectively. These claims included alleged underpayments and amounts said to be due in terms of the oral agreement. However, the third respondent highlighted a critical error in the applicant’s calculations, namely that incorrect financial statements had been used. Upon revising the figures, the applicant reduced his claims to R1 013 862.90 and R654 000, acknowledging that he had not been underpaid prior to his withdrawal from the businesses.
Despite the applicant’s assertion that the oral agreement was not in dispute, the opposing papers extended across six volumes and included seven affidavits from the applicant alone—some filed without leave in contravention of Uniform Rule 6(5)(e). The court remarked upon this procedural irregularity and questioned the credibility of the applicant’s claim that there was no factual dispute.
The correspondence relied upon by the applicant to evidence the alleged oral agreement—primarily WhatsApp and email exchanges—painted a picture of ambiguity and discord rather than mutual consensus. The so-called “smoking gun emails” of 4 and 5 November 2021, in which the third respondent appeared to confirm the applicant’s continued remuneration despite retirement, stood in contrast to a litany of messages expressing doubt, anger, and a withdrawal of any such offer. Notably, one message from the third respondent referred to the applicant’s behaviour as “tantamount to thievery,” referencing his use of the company credit card for a R50 000 personal trip to Cape Town.
The totality of the communications suggested not a concluded oral contract, but an unsettled negotiation process unfolding amid personal acrimony. While the applicant insisted that a binding agreement had been formed, his own messages indicated otherwise, stating, for example, that “nothing is final until the i’s are dotted and the t’s are crossed.” This equivocation, coupled with the absence of details such as the date, location, or presence of witnesses to the alleged oral agreement, led the court to question whether any consensus ad idem had in fact been reached.
Legal Analysis: Disputes of Fact, the Smoking Gun Emails, and the Plascon-Evans Rule
The court was tasked with determining whether the matter could be resolved on affidavit or whether the dispute called for oral evidence. The applicant maintained that the facts were not in dispute and sought final relief in motion proceedings. However, the court disagreed, finding that the opposing affidavits raised material disputes of fact, particularly regarding the existence and terms of the alleged oral agreement.
The applicant relied heavily on electronic communications, including WhatsApp messages and two emails—referred to as the “smoking gun emails”—to demonstrate consensus. These communications, dated 4 and 5 November 2021, were authored by the third respondent and appeared to support the applicant’s version. However, they were not included in the founding affidavit but only surfaced in a supplementary replying affidavit. This procedural lapse ran afoul of the principle reaffirmed in Business Partners Ltd v World Focus 754 CC 2015 (5) SA 525 (KZD), which holds that an applicant must make out a complete case in the founding papers.
The respondents challenged the existence of the oral agreement and contextualised the “smoking gun” emails within a broader narrative of acrimonious exchanges. They submitted that there had been no consensus, noting the implausibility that one party would agree to shoulder the burden of running both companies while the other drew full remuneration without any corresponding obligation.
The court adopted the approach in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), which dictates that in motion proceedings for final relief, where disputes of fact arise, the matter must be determined on the facts alleged by the respondent unless such denial is not bona fide or is clearly untenable. Applying this principle, the court found that the version advanced by the respondents could not be dismissed as implausible or manufactured.
Ultimately, the court concluded that the factual dispute was both real and bona fide. The conflicting interpretations of the communications, the applicant’s shifting positions on the terms of the agreement, and the lack of evidentiary clarity necessitated a referral for oral evidence in terms of Uniform Rule 6(5)(g), rather than a final order on the papers.
Consequences and Implications: Motion Proceedings, Oral Evidence, and Lessons for Shareholder Litigants
The judgment offers instructive guidance for litigants who seek final relief through motion proceedings where disputes of fact are foreseeable. Mossop J’s referral of the matter to oral evidence underscores the importance of anticipating whether material disputes may emerge and, if so, whether application proceedings are appropriate in the first place. In this case, the applicant’s insistence on proceeding by way of motion—despite the complexity and emotional temperature of the dispute—was found to be misguided.
The decision illustrates the caution courts must exercise in determining whether there has been a genuine meeting of the minds in the context of alleged oral agreements, particularly in cases where communications reflect emotional volatility and a deteriorating personal relationship between the parties. The court was not prepared to make conclusive findings based on fragmented and contradictory correspondence. Instead, it required viva voce evidence from the protagonists to assess credibility, context, and intention—especially where the factual enquiry concerned matters such as the conclusion of an agreement, its precise terms, and the interpretation of language exchanged informally via WhatsApp and email.
Importantly, the court rejected the respondents’ plea to dismiss the application outright, holding that the two early emails may have reasonably led the applicant to believe that consensus had been reached. However, because those communications were later contradicted or clarified, the court found it would be more just to resolve the matter through oral evidence rather than embark on a trial or dismiss the claim. This balanced approach is consistent with the discretion afforded under Uniform Rule 6(5)(g), which allows a court to make an order best suited to achieve a just and expeditious resolution.
For company directors and shareholders involved in closely-held companies—particularly where familial or spousal relationships exist—the judgment stands as a cautionary tale. It warns of the risks of informally restructuring business roles or entitlements without executing clear, written agreements. It also affirms the necessity of observing procedural rules in motion proceedings, especially regarding the framing of a cause of action in the founding affidavit and the permissible scope of reply. Failure to do so can result not only in delay and additional cost, but in reputational harm when the case proceeds to oral evidence under judicial scrutiny.
Questions and Answers
What was the central legal dispute in the case of W.M.T v M[…].T[…] .9[…] (Pty) Ltd and Others?
The core legal dispute concerned whether an oral agreement was concluded between the applicant and the third respondent, acting on behalf of the first and second respondents, which entitled the applicant to continue receiving salary and benefits despite no longer rendering services.
Why did the applicant choose to bring the matter by way of application proceedings?
The applicant contended that the facts were not in dispute and that the matter could be adjudicated solely on affidavit, which he believed justified seeking final relief in motion proceedings.
Did the court agree with the applicant’s assertion that the facts were not in dispute?
No, the court found that significant and material disputes of fact existed, particularly around the alleged oral agreement and its terms, which could not be resolved on the papers.
What legal principle governs the resolution of factual disputes in motion proceedings for final relief?
The court applied the rule in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), which states that in such cases, the respondent’s version must prevail unless their denial is not bona fide or is clearly untenable.
How did the court view the applicant’s reliance on WhatsApp messages and emails to prove the oral agreement?
The court acknowledged the relevance of these communications but found that they were contradictory and did not provide conclusive proof of a binding agreement. The tone and content suggested ongoing negotiations rather than a meeting of the minds.
What were the so-called ‘smoking gun emails’ and how did they affect the case?
These were emails dated 4 and 5 November 2021, sent by the third respondent, in which she appeared to acknowledge an agreement allowing the applicant to receive ongoing payments. However, their weight was diminished by subsequent correspondence and the fact that they were only disclosed in reply.
Did the applicant comply with the procedural requirements for application proceedings?
Not entirely. The applicant filed multiple supplementary affidavits, including some without the leave of the court, in breach of Uniform Rule 6(5)(e), and failed to make out a complete case in his founding affidavit.
How did the court assess the relevance of the parties’ acrimonious communications?
The court observed that the nature and tone of the communications, particularly the hostility and personal insults, cast doubt on the possibility that any clear or enforceable agreement had been reached.
What discretion does the court have under Uniform Rule 6(5)(g) when a dispute of fact arises?
The court may dismiss the application, refer the matter to trial, or direct that oral evidence be heard on specific issues to ensure a just and expedient resolution.
Why did the court opt to refer the matter to oral evidence instead of dismissing the application?
The court considered that the emails of 4 and 5 November 2021 could have reasonably led the applicant to believe that an agreement was concluded. Given the narrow scope of the issues, referral to oral evidence was deemed more just and efficient than dismissal or a full trial.
Did the court find the respondents’ version of events to be bona fide?
Yes, the court concluded that the respondents’ denials of the oral agreement were genuine and supported by evidence, and could not be dismissed as implausible or contrived.
What must a party do if they wish to call additional witnesses in a hearing following a referral to oral evidence?
In terms of the order, any party wishing to call a witness (other than the applicant or respondents themselves) must serve a statement of that witness’s evidence within a specified timeframe, unless the court permits otherwise.
What effect did the applicant’s own admissions have on the court’s decision?
The applicant’s messages, in which he conceded that no final agreement had been concluded, undermined his assertion that the oral agreement was binding and contributed to the finding that there was a genuine dispute of fact.
What lesson does the case offer regarding the conduct of litigation between parties with a personal relationship?
It demonstrates the difficulty of relying on informal, emotionally charged communications as proof of a contract, especially where the parties’ personal relationship has collapsed and there is no clear documentary record of consensus.
What is the significance of the judgment for future disputes involving shareholder-directors and informal agreements?
The case serves as a warning that directors should avoid informal arrangements regarding remuneration or retirement from companies without executing written agreements, especially in the context of family-owned or closely-held businesses.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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