THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 512/2022

In the matter between:
GRANCY PROPERTY LIMITED FIRST APPELLANT
MONTAGUE GOLDSMITH AG SECOND APPELLANT
(IN LIQUIDATION)
and
DINES CHANDRA MANILAL GIHWALA FIRST RESPONDENT
LANCELOT LENONO MANALA SECOND RESPONDENT
SEENA MARENA INVESTMENTS (PTY) LTD THIRD RESPONDENT
DINES CHANDRA MANILAL GIHWALA NO FOURTH RESPONDENT
SHANTI GIHWALA NO FIFTH RESPONDENT
KANTIELAL JERAM PATEL NO SIXTH RESPONDENT
NARENDRA GIHWALA NO SEVENTH RESPONDENT
KIRAN GIHWALA NO EIGHTH RESPONDENT

Neutral citation: Grancy Property Limited and Another v Dines Chandra
Manilal Gihwala and Others (Case no 512/2022) [2024]
ZASCA 144 (23 October 2024)
Coram: SCHIPPERS, HUGHES and GOOSEN JJA and COPPIN and
BLOEM AJJA
Heard: 25 and 26 March 2024

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Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The time and date for hand -down is deemed to
be 11h00 on 23 October 2024.
Summary: Contract – breach – failure to acquire additional shares – disposal of
shares – quantification of damages – whether highest intermediate value principle
should apply – non-payment of dividends and interest – disgorgement of secret
profit – whether in duplum rule should be developed – whether contempt of court
proved.

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________________________________________________________________
ORDER
________________________________________________________________

On appeal from: Western Cape Division of the High Court , Cape Town
(Wragge AJ, sitting as court of first instance):
1 The appeal succeeds in part.
2 The order of the High Court dated 18 August 2021 , in relation to the
Spearhead proceedings (WCC case no: 15757/2007), in terms of which it
dismissed the appellants’ claim for the disgorgement of the secret profit made in
respect of the unauthorised investment in Strand Property Investments or Scarlet
Ibis Investments 52 (Pty) Ltd, is set aside and replaced with the following:
‘The first defendant and the Dines Gihwala Family Trust, and the second
defendant are declared liable, jointly and severally, to pay to the first
plaintiff the sum of R3 million (R3 000 000.00), plus interest thereon at the
rate of 15.5% per annum from 5 April 2007 to date of payment.’
3 Paragraph B1(a) of the High Court’s order dated 18 August 2021, in relation
to the Scharrig proceedings (WCC case no: 10547/2008), is set aside and replaced
with the following:
‘1. The first defendant and the Dines Gihwala Family Trust , are declared
liable, jointly and severally, to pay the following to the first plaintiff:
(a) The full economic benefit of one half of the Scharrig additional option
shares, namely 3 679 754 shares at a price of R5.75 per share, minus the cost
of these shares (R2.2918 per share) and any amount to which the first
defendant and the Dines Gihwala Family Trust are entitled in terms of the
Scharrig agreement;
(b) Interest on the amount referred to in paragraph (a) at the rate of 15.5%
per annum from 25 January 2006 to date of payment.’

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4 Save as aforesaid, the appeal is dismissed.
5 The first, second, and the fourth to eighth respondents shall pay 50% of the
costs of the appeal, jointly and severally, the one paying the others to be absolved,
which costs shall include the costs of two counsel.
6 The first and fourth to eighth respondents shall pay 50% of the costs of the
appeal, jointly and severally, the one paying the others to be absolved, which
costs shall include the costs of two counsel.
7 The cross-appeal by the first and the fourth to eighth respondents, is dismissed
with costs, jointly and severally, the one paying the others to be absolved, which
costs shall include the costs of two counsel.
8 The cross-appeal by the second respondent is dismissed with costs, which
costs shall include the costs of two counsel.

________________________________________________________________
JUDGMENT
________________________________________________________________
Schippers JA (Hughes and Goosen JJA and Coppin and Bloem AJJA
concurring)

Introduction
[1] The first appellant, Grancy Property Limited (Grancy), is a company
incorporated in the British Virgin Islands with its principal place of business in
Lichtenstein. Grancy is an entity used for investment purposes by Mr Karim
Mawji, a Kenyan national who resides in the United Kingdom. The second
appellant, Montague Goldsmith AG (Montague) , is a Swiss company (in
liquidation) which acted on behalf of Grancy in respect of two black economic
empowerment (BEE) investments.

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[2] The first was an investment in linked units in Spearhead Property Holdings
Ltd (Spearhead), which was subsequently merged with Redefine Income Fund
Limited (the Spearhead investment). The second investment was the purchase of
shares in Scharrig Mining Limited (Scharrig), previously Sentula Mining Limited
and now called Union Capital Partners Limited (the Scharrig investment).

[3] The first respondent, Mr Dines Chandra Manilal Gihwala, through the
Dines Gihwala Family Trust (DGFT), participated with others in the Scharrig and
Spearhead investments . The second respondent, Mr Lancelot Manala, a
businessman and an associate of Mr Gihwala, was a participant in the Spearhead
investment. The third respondent, Seena Marena Investments (Pty) Ltd (SMI), is
a company in which the DGFT and Mr Manala held equal shares prior to Grancy’s
involvement in the Spearhead in vestment. The fourth to eighth respondents are
the trustees of the DGFT. Where appropriate, I refer to Mr Gihwala and the DGFT
as ‘the Gihwala defendants’.

[4] This appeal is the culmination of some 16 years of continuous litigation by
Grancy against Mr Gihwa la, the DGFT and Mr Manala (the respondents) , to
obtain an accounting from them showing how its investments were utilised and
to quantify its claims against them. Mr Gihwala is a former acting judge, attorney,
and chairman of a law firm, Hofmeyr Herbstein and Gihwala (HHG). He has
since been struck from the roll of attorneys . The court in his striking -off
application held that Mr Gihwala was ‘guilty of numerous acts of serious
misconduct, committed over a period of many years’ . These included theft, the
abuse of funds entrusted to him to enrich himself, various acts of dishonesty, and
breaches of integrity and his fiduciary duties.1


1 Cape Law Society (formerly the Law Society of the Cape of Good Hope) v Gihwala [2019] ZAWCHC 1; [2019]
2 All SA 84 (WCC) para 91.

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[5] This Court has found in relation to the Spearhead investment, that
Mr Gihwala and Mr Manala committed the ‘most egregious’ and ‘fundamental’
breaches of the ‘principles of trust and good faith on which the investment
agreement rested’.2 They paid themselves millions of Rands to which they were
not entitled to the prejudice of Grancy ;3 breached their duties as directors for
years;4 and diverted funds, including funds to repay Grancy’s loan account, to
speculate in secret investments. 5 The inescapable conclusion , this Court foun d,
was that Grancy’s funds and the entities housing the investments were treated as
the ‘personal piggy banks’ of Mr Gihwala and Mr Manala.6

[6] This appeal and cross-appeals, with the leave of the Western Cape Division
of the High Court, Cape Town (the High Court), concerns the second stage of a
two-stage accounting and debatement procedure envisaged in this Court’s order
in Grancy Property Limited and Another v Seena Marena Investments (Pty) Ltd
and Others (the 2014 debatement order). 7 The first stage of the accounting
involved an examination of the respondents before the court regarding the
adequacy of the accounts that they furnished. In the second stage, the accounts
were to be debated, to determine their accuracy and whether any amounts were
due to the appellants.8

[7] The first stage of the accounting and debatement procedure took place in
the High Court before Traverso DJP in August 2015. On 26 February 2016 that
court delivered judgment and made an order declaring that the accounts furnished
by the respondents were inadequate (the February 2016 order) . Mr Gihwala (in

2 Gihwala and Others v Grancy Property Ltd and Others [2016] ZASCA 35; [2016] 2 All SA 649 (SCA); 2017
(2) SA 337 (SCA) (the 2016 SCA judgment) para 64.
3 Id para 70.
4 Id para 134.
5 Id paras 65, 66 and 71.
6 Id para 69.

3 Id para 70.
4 Id para 134.
5 Id paras 65, 66 and 71.
6 Id para 69.
7 Grancy Property Ltd and Another v Seena Marena Investment (Pty) Ltd and Others [2014] ZASCA 50; [2014]
3 All SA 123 (SCA).
8 The 2014 debatement order fn 3 paras 27 and 28.

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his personal capacity and in his representative capacity as a trustee of the DGFT)
was directed to furnish detailed accounts in relation to the Spearhead and Scharrig
investments. Mr Man ala was directed to furnish an account in relation to the
Spearhead investment. The costs of the adequacy stage of the proceedings were
reserved for later determination.

[8] On 31 May 2016 Mr Gihwala delivered two separate further accounts
pursuant to the February 2016 order, in respect of the Scharrig and Spearhead
investments. Mr Manala did not deliver any accounting.

[9] Pursuant to Mr Gihwala’s further accounting, the appellants initiated the
second stage of the procedure envisaged in the 2014 debatement order. This was
a debate of the accuracy of the accounts with which the High Court was seized.
The appellants claimed various amounts relating to the Scharrig and Spearhead
investments. They also sought an order declaring that Mr Gihwala, Mr Manala,
and the DGFT were in contempt of the February 2016 order. Mr Gihwala and the
DGFT raised special pleas of prescription to the appellants’ claims , as well as
substantive defences on the merits.

[10] The High Court (Wragge AJ) handed down its judgment and order in the
accuracy stage of the debatement on 18 August 2021. The order was subsequently
amplified and corrected on 12 January 2023. The court upheld some of the
appellants’ monetary claims with costs on a party and party scale, and dismissed
others. It declined to grant an order that the respondents were in contempt of the
February 2016 order. It awarded the appellants the reserved costs in relation to
the February 2016 order, on an attorney and client scale.

[11] As set out in their notice of appeal, the appellants appeal against:

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(a) the High Court’s refusal to grant the relief sought in prayers 1.13, 1.14,
1.15, 1.16, 1.20, 1.21, 1.22, 1.23 and 1.27 of the particulars of claim, which
are monetary claims pertaining to the Spearhead investment;
(b) the High Court’s monetary award, in the sum of R5 401 908.51, in respect
of the Scharrig investment (the appellants seek an award in the amount of
R82 423 109.81, plus interest);
(c) the High Court’s refusal to hold Mr Gihwala and Mr Manala in contempt
of the February 2016 order; and
(d) the High Court’s refusal to award costs on a punitive scale in the accuracy
stage of the debatement.

[12] The Gihwala defendants cross-appeal against the principal monetary award
(in the sum of R5 401 908.51) in respect of the Scharrig investment and most of
the monetary orders in respect of the Spearhead investment. They also appeal
against the High Court’s costs order in respect of the proceedings before Wragge
AJ; and the costs order relating to the proceedings before Traverso DJP ins ofar
as Wragge AJ granted those costs on the attorney and client scale.

[13] Mr Manala cross-appeals against the order of Wragge AJ on the basis that
the doctrine of res judicata in the form of issue estoppel should be relaxed, and
that he should not be bound by the 2016 SCA judgment. He also appeals against
certain monetary orders relating to the Spearhead investment, and the order by
Wragge AJ directing him to pay the costs of 6 December 2019.

THE SCHARRIG INVESTMENT
The participants and their shareholding
[14] In 2004 Mr Allan Joffe, a senior manager at Coronation Capital (Pty) Ltd
(Coronation), identified a BEE investment opportunity in Scharrig , a listed
mining company. Scharrig wanted to partner with empowerment individuals or

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companies, because one of the objects of the Mining Charter published in August
2004 was black equity empowerment of 15% within a period of five years.

[15] Mr Gihwala testified that Mr Joffe had found the Scharrig deal; that he was
the architect of the transaction and ‘was integrally involv ed in the actual
mechanics of the purchase and the sale of the shares and the allocation to the
various participants’. In short, Mr Joffe drove the process.

[16] Mr Joffe approached Mr Wayne Brett and Mr Avram Levy whom he knew
had empowerment connections. Th ey introduced Mr David Brouze, a
businessman, who in turn was connected to Sir Sam Jonah, a Ghanaian mining
magnate of international repute. Messrs Brett and Levy introduced Mr Gihwala,
a member of a previously disadvantaged group, as the empowerment investor.

[17] Mr Gihwala introduced Grancy to the transaction. An initial investment
structure was proposed which Grancy’s Mr Mawji rejected. Mr Gihwala then
approached Grancy with his own offer, after which the terms of the proposed
investment and relationship w ere agreed between him and Mr Mawji (the
Scharrig agreement). In terms of that agreement Mr Gihwala and the DGFT were
in a multifaceted fiduciary relationship with Grancy, referred to as ‘the
Partnership’ in the particulars of claim. The terms of the Scharrig agreement are
summarised below.

[18] Various investors participated in the Scharrig transaction. These were:
(a) the Interactive Consortium, comprising Mr Gihwala (through the DGFT),
Mr Avram Levy through the Jacob Levy Trust, and Mr Wayne Brett
through the Wayne Brett Trust;
(b) the Coronation Consortium, represented in the transaction by Mr Allan
Joffe; and

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(c) the Jonah Consortium, comprising Sir Sam Jonah and his son, Mr Richard
Jonah, through the GYE Nyane Trust (the Nyane Trust), and Mr David
Brouze through the David Brouze Trust.

[19] It is common ground that the shares forming part of the Scharrig
investment were acquired in two tranches. The first tranche consisted of
22 million shares at R2.25 per share, allocated on the basis of the participant s’
financial contributions. Grancy and the DGFT contributed R1 million each,
acquired 888 000 shares (4% of the first tranche) and each held an interest in
444 000 shares (or 2%).

[20] The second tranche comprised 34.38 million shares. The participants in the
Scharrig transaction had to exercise an option to acquire these shares by 8 July
2005. Between April and June 2005, Mr Joffe, acting for all the participants ,
prepared a schedule showing the share allocations and who was entitled to what
shares (the Joffe Schedule). It records that the DGFT and the Nyane Trust were
each entitled to 9 621 900 shares (as at July 2005), on the evidence to bring the
DGFT’s shareholding to parity with that of the Nyane Trust, so that each trust
would have an equal share of the 15% empowerment holding in Scharrig. A
central issue in the Scharrig investment is the appellants’ claim that the Gihwala
defendants failed to acquire 50% of the 9 621 900 shares for Grancy, in breach of
the Scharrig agreement.

An empowerment transaction
[21] The Scharrig Investment unquestionably was a BEE transaction. This is
reflected in a contemporaneous note of an investment meeting held on 12 March
2005, which records that Scharrig was ‘keen to bring in a BEE sharehol der to
comply with the Mining Charter’. An investment memorandum dated April 2005,

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on the evidence probably compiled by Coronation, highlighted the Mining
Charter requirements as objectives sought to be met through the transaction.

[22] Mr Gihwala knew that the 15% target was the starting point for the Scharrig
transaction. In the proceedings before Wragge AJ he testified as follows:
‘Transformation at the time was generally very topical . . . and I think one of the sectors that
was lagging behind was the mining sector and there was a lot of agitation in order to get into it
and the big issue was, what would be the threshold starting point which was then at 15%
growing progressively over a period of time, so that black people could get a meaningful stake
in the mining industry. But the entry level was 15% and going upwards.’

[23] Thus BEE was essential to the Scharrig investment from the outset, the
basis on which it was pitched to the sellers, and why a discounted share price was
offered. Grancy was aware that thi s was an empowerment transaction attracting
an empowerment discount, and that Mr Gihwala would be contributing his
empowerment credentials.

[24] The transaction was presented to the market by way of a Stock Exchange
News Service (SENS) announcement by Scharrig on 22 April 2005. It was
stressed that it was a BEE consortium that would take up the Scharrig shares, led
by Mr Gihwala and Mr Richard Jonah; and that the introduction of the BEE
consortium as a strategic shareholder in Schamin would ‘provide Sch amin with
the requisite BEE shareholding to comply with relevant empowerment charters’.
This rationale for the transaction was affirmed in a SENS announcement by
Scharrig dated 18 July 2005:
‘The BEE consortium has become a strategic shareholder in Schamin in cognisance of the
relevant empowerment charters governing the Company and industry in which it operates.’

[25] Scharrig’s own documentation also records the centrality of the BEE nature
of the transaction and Mr Gihwala’s role as one of two empowerment investors.

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Scharrig’s 2006 annual financial report, authored by Mr Gihwala, its Chairman,
states:
‘BEE Initiative and Group History:
As a first landmark, a year of negotiations culminated in April 2005 in a partnership with a
BEE consortium led by Richard Jonah and myself . . . The conclusion of the broad-based BEE
transaction on 22 April 2005 . . .’

[26] The fact that a 15% empowerment shareholding was the target of the share
allocation is also confirmed by the Joffe Schedule. It identifies what number of
shares constitutes 15% of Sharrig’s issued shares and links this figure to ‘BEE
shareholding’. The 15% shareholding is then split equally between the Nyane
Trust and the DGFT.

[27] In addition, Mr Levy also understood the 15% to relate to BEE
shareholding and the Mining Charter target. Both he and Mr Joffe confirmed the
empowerment nature of the transaction, and that the purpose of the reallocation,
which occurred after the option was exercised, was to ensure that the DGFT was
allocated the same number of shares as the Nyane Trust, so that between them,
they would hold 15% of the Scharrig shares.

[28] Despite this overwhelming evidence, the Gihwala defendants argue that
the parties knew that Mr Richard Jonah did not qualify for a BEE transaction; that
there was no disproportionate allocation to grant Mr Gihwala an equal share of
the 15% empowerment; and that the Scharrig structu re and shareholding was
designed to ‘give the impression that it was BEE transaction’, when in truth it
was not.

[29] This argument is opportunistic and baseless. It can be dealt with briefly.
First, the Gihwala defendants ignore the evidence. Mr Levy conceded that he and
Mr Brett asked Mr Joffe for an additional allocation of shares to Mr Gihwala,

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solely on the basis of his empowerment credentials. He also conceded that the
participants in the Scharrig investment understood that Mr Richard Jonah was a
BEE par ticipant and that he and Mr Gihwala were Scharrig’s empowerment
partners who would hold 15% of its shares. That was the message communicated
to the commercial world through the SENS announcements. And Mr Joffe
testified that there were two BEE shareholders in the Scharrig investment:
Mr Gihwala and Mr Richard Jonah.

[30] Second, at no stage in the litigation before 25 March 2019 when they gave
notice of their intention to amend their plea, did the Gihwala defendants suggest
that Grancy was not entitled to be a llocated Scharrig shares, on the grounds that
such allocation constitutes ‘fronting’ (that the BEE component of the Scharrig
investment did not in fact consist of historically disadvantaged South Africans);
or that it is contrary to public policy and viol ates the par delictum rule (the rule
that the law should discourage illegality and not aid those who defy the law). On
the contrary, Mr Gihwala gave effect to the Scharrig agreement in the allocation
of the first tranche of shares, without demur, and benef ited from that allocation.
It does not now lie in his mouth to assert that the structure of the Scharrig
investment is illegal and unenforceable.

[31] The High Court, rightly in my view, dismissed the application for the
amendment, inter alia, on the grounds that the proposed amendment to invoke the
par delictum rule does not give rise to a triable issue, and that the appellants would
be prejudiced. Their main witnesses had already given evidence, and the case had
to be brought to finality.

[32] Third, the argument is inconsistent with the SENS announcements as well
as Scharrig’s 2006 annual report. T hat report, authored by Mr Gihwala in his
capacity as Chairman of the Board, states:

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‘As a first landmark, a year of negotiations culminated in April 2005 in a partnership with a
BEE consortium led by Richard Jonah and myself.’

The terms of the Scharrig agreement
[33] In the proceedings before Traverso DJP, Mr Gihwala accepted that the
terms regulating the relationship between the DGFT and Grancy in the Spearhead
transaction were essentially replicated in the Scharrig transaction. In terms of the
Spearhead agreement, Mr Gihwala, Mr Manala and the DGFT were in a multi -
faceted fiduciary relationship with Grancy, akin to a partnership.

[34] The salient terms of the Scharrig agreement between the Gihwala
defendants and Grancy, were these:
(a) Grancy would participate equally with the DGFT in acquiring any shares
in Scharrig, and in taking up any additional Scharrig shares which became
available to the DGFT or Mr Gihwala. Grancy would acquire these shares
on the same terms as the acquisition by the DGFT or Mr Gihwala.
(b) Practically, Mr Gihwala, on the joint behalf of the DGFT and Grancy,
would take up as many Scharrig shares that became available. Grancy
would be entitled to the economic benefit of half the shares acquired by the
DGFT, provided that Grancy paid its share of the purcha se price of such
shares. The DGFT or Mr Gihwala was entitled to the other half. In sum, it
was a single investment with Grancy’s shareholding being a ‘mirror image’
of the DGFT’s shareholding.
(c) Mr Gihwala and the DGFT owed Grancy duties of confidence, trus t and
the utmost good faith, and were obliged to act in the best interests of
Grancy.
(d) Grancy’s participation would not be disclosed to the other participants in
the Scharrig investment. This was at the request of Mr Gihwala or the
DGFT.

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[35] Grancy had no direct connection to its shareholding. Its shares were held
by Mr Gihwala and if Grancy wanted to do anything with those shares, it had to
instruct him to do it . Grancy thus relied on Mr Gihwala to secure shares as and
when they became available; to manage the shares for their joint benefit; to
account to Grancy; and to pay to Grancy any amounts owing under the Scharrig
investment.

The issues
[36] The particulars of claim state that on 8 July 2005, a further 7 359 508
Scharrig shares (the additional option shar es) were available to be acquired as
part of the Scharrig investment, by Mr Gihwala or the DGFT. Grancy was entitled
to the full economic benefit of one half of the additional option shares, ie
3 679 754 shares, in terms of the Scharrig agreement. In breach of that agreement,
Mr Gihwala or the DGFT failed to secure for Grancy and pay over to it, the full
benefit of one half of the additional option shares. As a result of this breach,
Grancy suffered a loss in an amount of R18 018 263,17.

[37] The Gihwala defendants deny that the 7 359 508 additional option shares
were available to be acquired as part of the Scharrig investment. They say that
apart from 880 000 initial shares and 1 375 200 option shares, no shares were
available to be acquired on 8 July 2005, under the Scharrig agreement. They plead
that the DGFT held 1 131 600 shares for Grancy’s benefit and that it paid Grancy
R 2 764 188.24, being the full economic benefit of those shares, which it
accepted.

[38] The appellants’ claim to the 7 359 508 additional option shares is based on
the DGFT’s entitlement to the allocation of 9 621 900 shares, in accordance with
the Joffe Schedule. Consequently, there are two core issues raised by the Scharrig
investment:

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(a) Was Grancy entitled to 50% of the 9 621 900 shares, or only 50% of the
‘bonus pool’ shares with which Mr Gihwala ultimately exited from the
Scharrig transaction?
(b) When would Grancy probably have sold it shares and at what price?

Was Grancy entitled to 50% of the additional option shares?
[39] The High Court held that Grancy was entitled to 50% of the value of any
shares allocated to the DGFT, and that in July 2005 the DGFT had been allocated
9 621 900 shares to bring it to parity with the Nyane Trust. The court concluded
that Rosedane Investments (Pty) Ltd (Rosedane), which held the shares to effect
this parity, did so ‘for the general benefit of all of the Interactive Consortium
participants’ (and thus not for the DGFT specifically); and that those shares were
allocated only after an internal agreement at the end of 2006 among Messrs Brett,
Levy and Gihwala.

[40] It was only after conclusion of the internal agreement, the court found, that
Grancy’s rights to the option shares vested. On that basis the court ruled that
Grancy’s entitlement was limited to what Mr Gihwala/the DGFT received in late
2006, and not the shares to which they were entitled in terms of the share
equalisation exercise in July 2005.

[41] The appellants submit that the option shares were allocated o n a different
basis from the initial allocation of shares, so that the DGFT and the Nyane Trust
would each acquire an equal share of the 15% empowerment holding in Scharrig.
Consequently, the DGFT was entitled to the additional option shares and Grancy
to half of those shares, in terms of the Scharrig agreement. The Gihwala
defendants breached that agreement by failing to secure those shares and paying
the appellants the economic benefit of half those shares.

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[42] The case of the Gihwala defendants is that the option shares were allocated
to the participants in proportion to the number of shares they held in the first
tranche, or the amount of their monetary contribution. The DGFT, they say, was
never entitled to 9 621 900 shares in the Joffe Schedule, because Messrs Levy
and Brett had deceived Mr Joffe into believing that those shares would be taken
up in that way. But they were not.

[43] Instead, so the Gihwala defendants contend, the 9 621 900 shares were
taken up by Rosedane, as reflected in the option exercise notice and Scharrig’s
share register. It did not hold the shares on behalf of particular members of the
Interactive Consortium. Subsequently 3.5 million of the shares that Rosedane
held were allocated to the DGFT when Messrs Levy and Brett parted ways wit h
Mr Gihwala in 2006. These shares, together with the 1.5 million shares which the
DGFT sold to Coronation in January 2006, are the only shares to which the DGFT
was entitled and which it acquired.

[44] There are two irreconcilable versions on this issue. The High Court was
therefore required to make findings on the credibility of the witnesses, in
particular, Messrs Mawji, Joffe, Levy and Gihwala , their reliability , and the
probabilities.9

[45] There was no challenge to Mr Joffe’s credibility, role or calculations.
Mr Gihwala described him as a person of integrity, an ‘extremely bright fellow’;
‘infinitely more experienced’ than he in these matters; ‘a thorough gentleman, a
very competent man’; a nd ‘a quality human being’. Mr Levy agreed with this
description.


9 Stellenbosch Farmers’ Winery Group Ltd and Another v Martell Et Cie and Others [2002] ZASCA 98; 2003 (1)
SA 11 (SCA) para 5.

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[46] Mr Gihwala accepted the accuracy of Mr Joffe’s calculations and conceded
that as a matter of logic, the shares had to be taken up in accordance with the Joffe
Schedule. It establishes that the DGFT was entitled to 9 621 900 shares.
Moreover, Mr Gihwala indicated in his accounting that he was not in a position
to gainsay the first -hand knowledge of Mr Joffe. Indeed, Mr Gihwala relied on
this knowledge when in 2016 he wrote to Mr Levy and Mr Joffe and requested
them to provide certain information to assist with his accounting.

[47] The evidence makes it clear that Mr Joffe was a reliable witness. It is
common ground that before the participants in the Scharrig transaction exercised
their option to purchase the remaining 34.38 million Scharrig shares, Mr Gihwala
requested Mr Joffe to approach all the participants to sacrifice some of the shares
to which they were entitled, to bring the DGFT shareholding to parity with that
of the Nyane Trust, so that together they would hold 15% of Scharrig shares and
thus meet the Mining Charter target. Mr Joffe denied this request.

[48] Subsequently, Messrs Levy and Brett successfully approached Mr Joffe
with the same request. Mr Levy testified that the shares were req uested for the
DGFT on account of Mr Gihwala’s empowerment credentials. He was playing an
important role in the company as Mr Richard Jonah; they wanted Mr Gihwala to
chair the company; and it was unsatisfactory that he had a much smaller
shareholding than Mr Jonah. Messrs Levy and Brett told Mr Joffe that the 9.6
million shares would be given to the DGFT in accordance with the Joffe
Schedule, which Mr Joffe accepted.

[49] Mr Joffe then approached the other participants in the Scharrig investment
to give up some of their shares. They were initially reluctant and agreed to do so
only after he assured them that the shares were ‘definitely going to Mr Gihwala’.
Mr Joffe testified that they wanted Mr Gihwala and Mr Jonah to have 15% of the

19


total shares in Scharrig, or 15% empowerment. As Mr Joffe put it, ‘[t]hat is
9 621 900. So we wanted to equalise the two. We wanted to make them both have
7½ or roughly 7½% of the equity’. Mr Joffe went on to say that he and the other
participants would never have allocated the additional option shares to the
Interactive Consortium.

[50] There is no question that the Joffe Schedule is reliable. Mr Levy confirmed
that the Schedule accurately reflect s the share allocation and funding for the
DGFT, Wayne Brett Primary Trust and Jacob Levy Trust, in relation to the first
tranche of 22.2 million shares. The Joffe Schedule also accurately records the
exercise of the option resulting in the total allocatio n to the DGFT of 7½% of
Scharrig shares – 9 621 900, in a manner not pro rata to the initial investment
made by each consortium member. Mr Levy also confirmed that Mr Gihwala was
aware of the disproportionate allocation of the option shares; that he was
informed that they had been allocated for BEE purposes; and that Mr Gihwala
had the same knowledge as Messrs Levy and Brett in this regard.

[51] The unchallenged evidence that Mr Joffe had convinced the other
participants in the Scharrig investment to part with option shares, and that these
shares were allocated so that the DGFT and Mr Jonah could have 15% of the total
shares in Scharrig, is destructive of Mr Gihwala’s version. That version –
advanced in every accounting – that the option shares were allocated i n
proportion to the number of shares held in the first tranche or the amount of the
participants’ monetary contribution, can therefore safely be rejected.

[52] What is more, on his own showing, Mr Gihwala knew that 7.5 million
shares had been allocated to him for BEE credentials – a fact he withheld from
Grancy. In the proceedings before Traverso DJP, he said:

20


‘. . . everybody got the shares that they were supposed to get in terms of their capital
contribution. I was then asked to go and ask for more shares, wh ich I did. There was then
according to Avi [Mr Levy], 7.5 million shares given for BEE credentials and I got that about
a year and a half later at a time when we were exiting and I purely per chance raised it.’

[53] Further, in a letter to the attorney acting for Messrs Levy and Brett dated
25 June 2010, Mr Gihwala admits that Mr Levy informed him that they got 7.5
million shares, which corresponds to a rounding -up of the additional shares in
fact allocated. Mr Gihwala thus knew, before the exercise of the opt ion, that the
DGFT had been allocated 7.5 million shares over and above the 2.2 million shares
proportionally allocated, totalling 9.7 million shares (rounded up). That is why
Mr Gihwala declared a shareholding of 9 622 708 shares in Scharrig’s March
2006 annual report. Importantly, both Messrs Levy and Joffe confirmed that they
did not provide this figure to Mr Gihwala, who must have sourced it
independently.

[54] In fact, Coronation was on the look -out for the declaration of the 9.6
million shares in Scharrig’s 2006 annual report. Mr Joffe said that they wanted to
see that Mr Gihwala indeed got the shares. The report confirmed that he did.

[55] So, the contemporaneous documents, which are of the utmost importance
on this part of the case, namely the Joffe Schedule ; Scharrig’s 2006 annual
financial statements; the 2006 annual report on shareholder information; and the
Scharrig share register, independently prove the allocation of 7½% of Scharrig
shares to the DGFT.

[56] The share register shows that after the option wa s exercised and as at 29
July 2005, the Interactive Consortium held 22 386 572 shares. This shareholding
comprised 6 808 074 shares held by BVI 977 (Pty) Ltd (BVI 977) and
15 578 498, by Rosedane – 421 shares more than the figure in the Joffe Schedule.

21


Thus, the accounts given by the witnesses concerning the allocation of 9 621 900
additional option shares to the DGFT, were tested by reference to
contemporaneous documents.

[57] These documents contradict Mr Levy’s evidence that the 9 621 900 shares
were not in fact allocated to the DGFT by the participants in the Scharrig
investment, but is a fiction, based on his deception of Mr Joffe that those shares
would go to the DGFT. Consequently, Mr Levy’s evidence on this aspe ct may
also be rejected as implausible. His admission that he lied to Mr Joffe about the
shares going to Mr Gihwala, casts serious doubt on Mr Levy’s credibility on this
score. And Mr Levy’s evidence is unsustainable on the evidence, and inconsistent
with the overall probabilities.

[58] Further, it i s highly probable that Grancy’s transfer of R10 million to
Mr Gihwala in the latter part of June 2005, shortly before the exercise of the
option, was for the purchase of the 7.5% of the additional option shares ie
9 621 900 shares. Mr Gihwala’s version is that the transfer of R10 million was
speculative: he did not tell Grancy how much more it could invest in Scharrig; it
arbitrarily sent the amount of R10 million to him.

[59] This version too, is false, for three reasons. First, in evidence Mr Gihwala
acknowledged that in the latter part of June 2005, Grancy sent him R10 million
‘to take advantage of the option’. And it is not coincidental that R20 million was
almost exactly the cost of the further shares allocated to the DGFT in terms of the
Joffe Schedule (t he actual amount was R20 016 660 of which Grancy’s share
would be fractionally over R10 million). Second, Mr Gihwala admitted that he
informed the DGFT’s bank manager that he had asked Grancy to send over
R10 million to assist with the funding of the optio n shares. Third, Grancy was
entirely removed from the investment and could not have speculated that R10

22


million (a tenfold increase on its initial R1 million investment) would be required.
And this, when it was unaware of the allocation of the additional option shares.

[60] So, on the facts – which are common ground – by July 2005 there was a
disproportionate allocation of 9 621 900 million shares to the DGFT, consistent
with the Joffe Schedule and the purpose of that allocation. The allocation to the
DGFT, together with the 9 621 900 shares of the Nyane Trust, totalled 19 243 800
shares, comprising 15% of the issued share capital of Scharrig. These calculations
appear in the Joffe Schedule.

[61] Once that allocation was made, Grancy was entitled to half the value of
those shares in accordance with the Scharrig agreement. The fact that the DGFT
shareholding comprising 9 621 900 shares was housed in BVI 977 and Rosedane,
could not, and did not, affect Grancy’s entitlement to those shares.

[62] What is more, Rosedane did not hold Scharrig shares in its own right, but
as a special purpose vehicle (SPV) and an agent for the DGFT, Mr Levy and
Mr Brett. Indeed, Mr Levy confirmed this. He said:
‘. . . in the documentation earlier we referred to Rosedane as, operating as a SPV for the purpose
of the Scharrig transaction, and the shares that were held in Rosedane were attributable to
members of the interactive consortium and accordingly weren’t recorded in the financials of
Rosedane.’

[63] It is thus not surprising that no investment in Scharrig appears as one of the
investments listed in as Rosedane’s annual financial statements for the years 2005
to 2008. Likewise, Rosedane did not record any sales, proceeds or profits in
relation to Scharrig shares: it was never the beneficial owner of those shares.

[64] For the above reasons, Mr Gihwala breached the Scharrig agreement: he
knew that 7.5% of the Scharrig shares had been allocated to him for the purpose

23


of BEE, but he denied Grancy the opportunity of participating in that allocation.
Instead, he participated in a ‘reallocation’ of shares from a ‘bonus pool’ when the
Interactive Consortium came to an end. But shares were never allocated to any
bonus pool – they were always allocated directly to the DGFT. And the evidence
is clear: the participants in the Scharrig investment would never have allocated
any additional option shares to the Interactive Consortium.

[65] It follows that the High Court was correct to hold that in July 2005, the
DGFT had been allocated 9 621 900 shares to bring it to parity with the Nyane
Trust. However, it erred in holding that those shares were for the benefit of all of
the Interactive Consortium participants. Grancy is entitled to th e economic
benefit of one half of the value of the 7 359 508 additional option shares.

When would Grancy probably have sold its shares and at what price?
[66] In the particulars of claim, the appellants allege that the Gihwala
defendants breached the Scharrig agreement by disposing of the initial investment
comprising 1 131 600 Scharrig shares acquired on Grancy’s behalf (which I shall
refer to as claim 1) and the DGFT’s failure to secure for the appellants the benefit
of one half of the additional 7 359 508 option shares (claim 2).

Claim 1: The sale of the initial investment
[67] The following facts are common ground on the pleadings:
(a) On 15 April 2005 the DGFT purchased 444 000 shares for Grancy (the
Grancy initial shares) and 444 000 for itself at R2.25 per s hare. This was
part of the initial 22.2 million Scharrig shares.
(b) On or about 8 July 2005 the DGFT acquired an additional 687 600 shares
(the Grancy option shares) for Grancy and the same amount for the DGFT.
These shares were part of the option to acq uire 34.38 million Scharrig
option shares.

24


(c) On 25 January 2006 the DGFT sold the Grancy initial and option shares
for R5.75 per share in an off -market transaction. The market price of
Scharrig shares on 25 January 2006 was R6.60 per share.

[68] The appellants allege that the sale of Grancy’s initial and option shares on
25 January 2006 was a breach of the Scharrig agreement. They claim that (a) the
sale took place without their knowledge or authorisation; (b) the sale price of
R5.75 per share was below the prevailing market price of Scharrig shares; and (c)
they would only have authorised Mr Gihwala to sell the combined Grancy shares
at R25.00 per share; alternatively, at the market price of R6.60 per share on 25
January 2006. The Scharrig shares reached a market price of R25.00 per share on
24 October 2007.

[69] The appellants claim the difference between the market value of R25.00 or
6.60 and the sale price of R5.75, minus Mr Gihwala’s 25% profit share
entitlement under the Scharrig agreement and the amount of R2 764 118.24
already paid by the DGFT to the appellants. The claims were accordingly for
R18 018 263.17 (calculated on the basis of a market price of R25.00 per share)
or R2 006 123.17 (calculated at a market price of R6.60 per share), plus interest.

[70] The appellants thus pleaded, as one of the two alternative grounds for their
claim, that they would have sold their shares for R6.60 on 25 January 2006. This
reflects the normal measure of damages, calculated with reference to the value of
the shares as a t the date of the alleged breach. However, in their heads of
argument, the appellants submit that the highest intermediate value principle used
in the United States of America supports Grancy’s damages claim. I revert to this
aspect below.

25


A sale without Grancy’s knowledge or authorisation?
[71] The High Court found that Grancy had agreed or would have agreed to an
arrangement which enabled it to exit from the Scharrig transaction, but that it
would not have done so at a discounted price of R5.75 per share, when the shares
were trading at R6.60 in January 2006. Grancy had therefore established a breach
of the Scharrig agreement and was entitled to damages, calculated as the
difference between the market value of the shares on the date of their disposal
(R6.60) and the price at which they were sold (R5.75 per share).

[72] The reasons for this finding are the following. Grancy would not have
agreed to the sale of its entire shareholding at a discounted price two months after
indicating that it wished to retain its in terest in the Scharrig shares. Grancy’s
agreement to sell its shares was probably based on a belief that the shares could
not be traded directly on the open market because of a lock -in agreement or a
similar bar to selling, but no such lock -in or bar exist ed. If Mr Mawji accepted
the proceeds of the sale of the shares, he did so without knowing that there was
no need for the sale at a discounted price, and that Grancy’s interest in the
Scharrig option shares was greater than what it had been told.

[73] The appellants submit that there is no explanation nor any evidential basis
for the High Court’s conclusion that Grancy would have wished to exit from the
transaction in January 2006, and that it would have done so at a price of R6.60
per share. They contend that Grancy had rejected an initial offer by Mr Gihwala
to exit at R4.00 per share in August and November 2005, which was the last word
on any exit from the transaction. The date of disposal, the appellants say, was not
determined by agreement, but because Mr Gihwala needed to sell shares to help
Messrs Brett and Levy reach their necessary disinvestment level to appease Sir

Messrs Brett and Levy reach their necessary disinvestment level to appease Sir
Sam Jonah. Mr Gihwala then sold all the shares which he said he was holding for
Grancy, without its consent.

26


[74] The appellants further submit that had Grancy acquired the additional
option shares for their full economic benefit, it would have disposed of its entire
shareholding (of 4 810 950 shares) around 24 October 2007 at the prevailing
market price of R25.00, R22.50 or R21.50 per share . This submission is
essentially based on Mr Mawji’s evidence that Grancy would have exited from
the Scharrig transaction when the share price reached a figure ten times its initial
value; and that this exit strategy would have been informed by factors such as the
performance of the shares and where Grancy believed the market would move.
Grancy, so it is submitted, is a long -term investor; and would have waited until
the time was right to dispose of its shares, and adopted a similar strategy to that
of sophistic ated commercial investors, such as Coronation and the Jonah
Consortium, which exited from the Scharrig transaction at R21.75 per share.

[75] The Gihwala defendants submit that Grancy agreed to the disposal of its
initial shares in January 2006. Consequently, it failed to establish a breach of the
Scharrig agreement and Claim 1 should have been dismissed.

[76] The evidence shows that Mr Mawji knew on 29 March 2006 that the sum
of R 2 764 118.24 was going to be paid to Grancy for the sale of its initial shares.
Six days before, Mr Anil Narotam, Montague Goldsmith’s Chief Operations
Officer, in an email sent on 23 March 2006, had informed the appellants’
representatives that funds of R2.7 million would be paid by Mr Gihwala ‘for the
return of investment in Scharrig p lus profits’. When asked in cross -examination
what the R2.7 million was for, Mr Mawji replied: ‘It was the calculation from the
Gihwala schedule of what he told us we were entitled to for the sale of shares that
we were aware of at that point in time’. How ever, in response to questions from
the court, Mr Mawji confirmed that he was aware that the shares had been sold

the court, Mr Mawji confirmed that he was aware that the shares had been sold
and that Grancy had received the funds relating to that sale. He also confirmed
that he was aware as to how the amount of R2.7 million had been calculated.

27


[77] One would expect that if Grancy’s initial and option shares were sold
without its knowledge and authorisation, and at a price which did not meet with
its approval, Mr Mawji would have expressed surprise at or objected to the sale.
He did neither. This is astounding, particularly given the allegation that Grancy
is a long-term investor and would have adopted a similar strategy to Coronation
or the Jonah Consortium. It is unlikely that Mr Mawji would have kept silent
about the sale of Grancy’s shares, if this happened without its authority.

[78] Mr Mawji was evasive as to why he never challenged Mr Gihwala
concerning the sale without Grancy’s consent. He said that he had asked for
further information – from whom, he did not disclose – on which to base his
decision on how to proceed . This explanation is inherently improbable, and
contrived. The appellants were on the horns of a dilemma: if they would have
sold the Scharrig shares only in October 2007 at R25.00 per share, then they had
to explain why Mr Mawji agreed to the sale of Grancy’s shares in January 2006
at R5.75. Conversely, if they agreed to the sale in January 2006, then the
appellants could not claim that they would only have disposed of their entire
shareholding in October 2007.

[79] When the shares were sold in January 2006, Mr Mawji knew how the sum
of R2.7 million had been calculated. And Grancy accepted the proceeds of the
sale of its shares, without any qualification or reservation of its rights. What is
more, at the time of the sale Mr Mawji never asked for further information from
the Gihwala defendants, and nothing happened in terms of a request for an
accounting until the letter of demand by the appellants’ attorneys – almost a year
later. Mr Mawji’s evidence that he ‘immediately aske d for an accounting’ must
therefore be rejected.

[80] The evidence accordingly shows that Mr Mawji was aware that Grancy’s
shares had been sold at R5.75 per share, how the amount which it received had

28


been calculated, and that he did not at any stage object t o the sale. This is
confirmed by his subsequent conduct and his evidence in other proceedings, and
is consistent with the known and probable facts.

[81] Mr Narotam prepared the schedule calculating the amount due to Grancy
pursuant to the sale of the initial investment, which was annexed to the affidavits
in the application proceedings relating to the Scharrig investment (the Scharrig
application). Tellingly, Mr Mawji made no mention of this schedule in his
founding affidavit in the Scharrig application. When asked why he had not
disclosed it, Mr Mawji said that this was a mistake on his part. He acknowledged
that had he done so, it would have shown the correlation between the calculation
and the R2.7 million paid to Grancy for the sale of its shares.

[82] After receipt of the funds, Mr Mawji, Mr Narotam and Mr Ian D’Costa (an
associate of Mr Mawji) were allocated their share of the profits. At Mr Mawji’s
request, his company, Rattan, was repaid the R1 million it had made available for
the Scharrig investment. Mr Gihwala had a meeting in May 2005 with Mr Mawji
in Johannesburg (Mr Narotam and Mr D’Costa were also present), concerning an
unrelated investment. Mr Mawji raised no concerns about the sale of Grancy’s
shares without its consent. Neither did he do so in sub sequent telephonic
discussions with Mr Gihwala.

[83] The letter of demand to Mr Gihwala by the appellants’ attorneys dated
5 February 2007 – almost a year after the sale of the shares – which sets out in
some detail Grancy’s claims in relation to the Scharrig investment, also says
nothing about Grancy’s shares having been sold without its knowledge and
authority. Mr Mawji attemp ted to avoid answering this simple proposition in
cross-examination, but was driven to concede it after he asked to read the letter
of demand.

29


[84] Likewise, in the Scharrig application, Mr Mawji did not in his affidavits
say that the sale of Grancy’s shares w as without his knowledge and consent.
Neither did he deny the allegation that Grancy’s shares were realised at his
request. Given the nature and extent of Grancy’s claim based on the alleged
unauthorised sale of its shares – some R82 million – for this not to have been
included in the letter of demand nor the Scharrig application, could not have been
due to a mere omission or inadvertent oversight. In my judgment, it can only be
the result of a decision by the appellants to opportunistically extract the maximum
benefit from the failure of the Gihwala defendants to give them the additional
option shares. This, as is shown below, is buttressed by the fact that their
exorbitant claim finds no support in the evidence.

[85] In his evidence in these proceedings, Mr Mawji acknowledged that he had
been informed that Grancy’s shares were sold at R5.75 and that this was reflected
in the calculations done. This, of course, is inconsistent with Grancy’s pleaded
case that its initial and option shares were sold without its knowledge.

[86] Moreover, in the disciplinary proceedings before the Cape Law Society
against Mr Gihwala (the CLS proceedings), in response to a question from the
pro forma prosecutor, Mr Mawji testified that he would have been satisfied with
exiting the Scharrig transaction at R5.75 per share:
‘MR ROGERS: And had the question been raised with you at that time, are you satisfied with
an exit at 5.75? Is that something for which you had actually given authority, or not?
MR MAWJI: Well, the 5.75 would be somethi ng that I would have agreed to, no doubt, but
we didn’t have the full details of how, and proof of how everything had been arrived at,
especially some of the deductions that were taking place.
MR ROGERS: Well, what I'm asking is, do you actually recall hav ing agreed to a disposal at
5. 75 or not?
MR MAWJI: Yes, I would have.’

30


[87] This evidence, Mr Mawji said in these proceedings, is correct and that he
stands by it. Nothing could be clearer. In the CLS proceedings, Mr Mawji
obviously did not say that Grancy would only have sold its initial and option
shares at R25.00 or R6.60 per share. This too, he confirmed in these proceedings.
However, he sought to explain it away by saying that he had not been asked about
a sale at R25.00 or R6.60. But that begs the question. If a sale at R25.00 in
October 2007 were indeed true, that would have been the natural and obvious
answer to the prosecutor’s question. But that was not Mr Mawji’s evidence.

[88] In an attempt to avoid the obvious significance of Mr Mawji’s evidence in
the CLS proceedings, the appellants have variously tried to ‘contextualise’ his
evidence; to attribute his unequivocal statement that he would have agreed to the
disposal of the shares at R5.75, to the poor quality of the video link; and to rely
on Mr Mawji’s subsequent efforts in the High Court proceedings to qualify his
evidence. However, the record shows that those parts of the evidence dealing with
the sale of the initial investment were not impacted by the quality of the video
link at all, and that the Gihwala defendants properly contextualised his evidence.
Further, the appellants cannot rely on Mr Mawji’s subsequent efforts to qualify
the unequivocal evidence that he had given previously.

[89] The evidence outlined above contradicts Mr Mawji’s claim that Grancy
would have retained the Scharrig shares until they got to ten times their value,
and that it would have exited from the Scharrig transaction around October 2007
at some R25.00 per share. This claim is based on hindsight: it is insupportable on
the evidence.

[90] In addition, and on his own version, Mr Mawji never took an investment
decision to hold the Scharrig shares until they reached ten times their value. He
stubbornly refused to concede this, but eventually did so on questioning by the

stubbornly refused to concede this, but eventually did so on questioning by the
court. When it was put to him i n cross -examination that his approach was

31


arbitrary, Mr Mawji replied that it is neither justifiable, nor ‘explainable to
somebody’. He said, ‘[i]t’s our internal opinion of where we think the market is
going’. Then he said that in all investments ‘[w]e do n’t take premeditated
decisions . . . we assess why we bought the asset and where it is going to go’. On
this version, Grancy’s investment strategy cannot be objectively ascertained;
neither does Mr Mawji’s account provide any details of any assessment of the
performance of the Scharrig shares, nor what it believed the fair value of the
shares to be.

[91] There is no documentary evidence, nor evidence upon which probable
reliance can be placed for Grancy’s investment strategy. There is also no evidence
to show that Grancy is a long -term investor; nor for its claim that it would have
adopted a similar strategy to that of commercial investors, such as Coronation
and the Jonah Consortium. And Mr Narotam’s note of the meeting at which the
prospect of the Scharrig investment was discussed in March 2005, which states
that the time frame for the realisation of the investment would be two to three
years, also has no foundation in the evidence. In short, the claim that Grancy
would have exited from the Scharrig transaction in October 2007 at some R25.00
per share, is based on Mr Mawji’s say-so, by which no store can be placed.

[92] Rather, the evidence points the other way. Mr Mawji knew that the shares
had been sold, and received the calculations at R5.75 which showed the net profit
and the amount of R2.7 million that was going to be remitted, and that was in fact
remitted to Grancy. Mr Mawji at no stage raised any objection to the sale of
Grancy’s shares, nor the price at which they had been sold. The reliability of
Mr Mawji’s evidence is undermined yet further by the fact that the allegation that
Grancy would only have been prepared to sell at R25 .00 was raised for the very
first time in the particulars of claim: it was never suggested in the Scharrig

32


application, and it i s directly at odds with Mr Mawji’s evidence in the CLS
proceedings.

[93] Apart from this, the appellants ignore the presumption that a trial court’s
factual findings – including that Grancy would have disposed of all its shares in
January 2006 – are correct i n the absence of demonstrable error. To overcome
this presumption, the appellants must convince this Court on adequate grounds
that the trial court’s factual findings, and its evaluation of those facts and the
inferences to be drawn from them, are plainly wrong.10

[94] What all of this shows, is that the appellants failed to prove that the disposal
of the initial investment took place without their knowledge or authorisation. The
High Court correctly concluded that Grancy would have agreed to the disposal of
its initial and option shares. This is consistent with the appellants’ alternative
claim that they would have sold their shares on 25 January 2006, albeit at R6.60
per share. No other conclusion is sustainable on the evidence.

The share price
[95] The High Court found that Grancy did not agree to dispose of its shares at
a discounted price. Consequently, it held that Grancy had established a breach of
the Scharrig agreement, and was entitled to damages calculated at the difference
between the market price of the Scharrig shares and the price at which they were
sold.

[96] These findings are erroneous for two main reasons:
(a) First, the evidence outlined above shows that Mr Mawji would not only
have agreed to a disposal of the shares, but also that he would have done
so at a price of R5.75 per share.

10 R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705 -706; Sanlam Bpk v Biddulph 2004 (5) SA 586 (SCA)
para 5; Bee v Road Accident Fund [2018] ZASCA 52; 2018 (4) SA 366 (SCA) para 46.

33


(b) Second, these findings are inconsistent with other findings in the High
Court’s judgment. In paragraphs 303 and 313.3 of the judgment, the court
found that there was no reason why Grancy would have agreed to the
disposal of the initial investment at a discount. But paragraph 313.4 states:
‘Grancy’s agreement to sell its shares at a discounted price was probably
based on a belief that the shares could not be traded directly.’ The court
therefore found both that Grancy would not have agreed to the sale at a
discounted price, and that it had in fact agreed to do so, based on a belief
that the shares could not be traded directly.

[97] The evidence unquestionably shows that Mr Mawji would have agreed to
the sale of the shares at a price of R5.75, below the market value. Grancy’s
agreement to do so was not based on a wrong belief that the shares could not be
traded directly. But even if there was a prohibition on the trading of the shares,
this was not the appellants’ pleaded case. They di d not plead that the agreement
by Mr Mawji or Grancy to dispose of the shares, was vitiated by Mr Mawji’s lack
of knowledge or that his consent to the sale was not informed consent. The
appellants simply alleged that the sale took place without their knowl edge or
authorisation. These allegations, as shown above, are not supported by the
evidence.

[98] The High Court’s finding that Grancy’s agreement to sell its shares at a
discounted price was probably based on an incorrect appreciation of the ability to
trade Scharrig shares, since there ‘was no evidence of any lock-in or restriction’,
is also insupportable on the evidence. Mr Joffe was taken to an offer made by the
Interactive Consortium to Mr Tony Scharrighuisen in a letter dated 7 February
2005, in which that Consortium agreed that if it disposed of any shares within a
three-year lock -up period (until 31 March 2008), Mr Sharrighuisen would be
permitted to sell the shares he had undertaken to retain during the lock-up period.

34


The undertaking by the Interactive Consortium served as a restriction on the
disposal of Scharrig shares by the purchasers.

[99] In addition, the Scharrig shares were housed in BVI 977 of which
Mr Gihwala was not a director. The sale of the shares was consequently not
within his exclusive control. The Gihwala defendants’ disposal of shares in
Scharrig would also have had an impact upon the BEE status of the transaction
and how it was perceived in the market.

[100] However, the High Court was correct in holding that Grancy would not
have sold it shares at R25.00, R22.50 or R21.75 when the share price was near its
peak in 2007. The evidence that Grancy would have sold its shares at R25.00 is
speculative and contrived. The Scharrig share price reached a high of 25.80 on
29 October 2007. Mr Mawji opportunistically contended that Grancy would have
sold at the top of the market a few days before then.

[101] In this regard, the following remarks of Schutz JA in De Klerk are
apposite:11
‘[A]lthough this case is concerned with the past, in reality wh at is being looked at is the
unpredictable future as it appeared in 1988 and thereafter. And what would particularly have
bedevilled any evidence given by De Klerk was the fact that he had the benefit of hindsight. It
would be nice if one could place one's bet after the race has been run. How much content or
weight his evidence would have had is questionable. In the case of most persons I do not think
that an honest plaintiff could have said, other than in general terms, what he would have done.’

[102] Mr Mawji specifically states that Grancy would have sold its Scharrig
shares at R25.00, because its investment horizon was two to three years, and it
would only have sold the shares when the value had reached ten times the
purchase price. These statements are incon sistent with his evidence in the CLS

11 De Klerk v Absa Bank Ltd and Others 2003 (4) SA 315 (SCA) para 40.

35


proceedings, and inherently implausible. They conveniently coincide with the
height of the market.

[103] Grancy expressed its desire to exit the Scharrig investment much earlier
than the two to three-year horizon, when the shares were trading at R4.20 – less
than a fifth of the value now claimed. This was just over four months after Grancy
had made the investment and about two to three weeks after the exercise of the
option. Mr Mawji could not satisfactorily explain why Granc y wished to exit at
that stage. What it does show, is that Grancy was prepared to exit the investment
at a much earlier stage and at a time when the shares were trading at about twice
the purchase price. As explained above, Grancy agreed to the sale of the initial
and option shares at R5.75 per share.

[104] Further, the Spearhead transaction is an indicator of Grancy’s exit strategy.
Mr Mawji wished to exit that investment at R30.00 per unit, when the acquisition
cost was R15.50 – a healthy return, and consider ably less than the 1000%
Mr Mawji said would be satisfactory. The appellants’ contention that the
Spearhead investment was ‘subject to its own unique facts and circumstances’,
does not explain how that investment was unique and why Grancy’s exit
consideration would have been different in the Scharrig transaction.

[105] As stated, Mr Mawji was forced to concede that he had never taken a
decision to dispose of the Scharrig shares when they reached ten times their
acquisition costs. This allegation was made for the first time in the particulars of
claim. And Mr Mawji conceded on more than one occasion that Grancy may very
well have been satisfied with a sale of the shares at a different time and for a
lesser amount.

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[106] The appellants’ contention that because Mr Mawji is an ‘astute
businessman’, he would have sold the shares at a similar high price to the price
at which the Coronation Consortium and the Jonah Consortium sold their shares,
is obvious hindsight, and is insupportable on the evidence. The appellants say that
Coronation embarked on an ‘accelerated book -build’ to sell its shares in March
2008 (before the market dropped) at R21.75 per share, and suggest that Grancy
would have joi ned in the book -building process. This, of course, ignores
Mr Mawji’s evidence that he would have agreed to the sale of Grancy’s shares at
R5.75 in January 2006. It is also inconsistent with Grancy’s own case: it cannot
simultaneously claim that it would have sold its shares in October 2007 and that
it would also have sold its shares in March 2008. The appellants also ignore the
fact that Mr Gihwala was excluded from the book-building-process, as a result of
which Grancy would necessarily have been excluded, since it held its investment
through the DGFT.

[107] The appellants thus failed to prove that Grancy would have disposed of its
shares in October 2007 at the prices alleged, whether on account of an investment
horizon or because the shares would have reached ten times their initial value.
Their claim that Grancy would have sold its shares at the optimal time and price
is nothing more than an attempt to place their bet after the race had been run. It is
opportunistic speculation with the benefit of hindsight.

Claim 2: The additional option shares
[108] I have concluded that the additional option shares became available to the
DGFT over and above its initial and pro rata entitlement (and consequently, that
it was entitled to one half of the additional option shares, i e 3 679 754 shares);
and that the High Court erred in holding that the DGFT’s entitlement was limited
to 5 million shares. The remaining issue is when they would have sold the
additional option shares and at what price.

37


[109] As shown above, the appellants fai led to prove that they would have sold
Grancy’s entire shareholding in October 2007 at the prices they claim. Mr Mawji
made no decision to retain the shares until they reached ten times their initial cost.
Grancy was entitled to an allocation of 3 679 754 additional option shares on
8 July 2005. In an email sent on 3 August 2005 – some four months after making
the investment – Grancy indicated that it wished to exit the Scharrig transaction
‘at the earliest available opportunity’. At that time the shares were valued at R4.20
– some 80% more than what they cost.

[110] The appellants, however, say that this was the last word on an exit from the
Scharrig investment. Equally, and as already stated, the facts show that there was
an exit from the investment in January 2006, to which there was no objection at
the time, nor thereafter. And the appellants ignore Mr Mawji’s evidence that if a
suitable opportunity presented itself, Grancy would have exited early from the
Scharrig investment, rather than waiting two to three years, and that he took no
decision to exit at any predetermined price.

[111] Mr Mawji was happy to dispose of all Grancy’s initial and option shares at
R5.75 per share in January 2006, when they were trading at about twice their
initial cost. The appellants’ alternative claim that they would have disposed of the
shares in January 2006, is thus not surprising . There is no evidence that the
number of shares was a consideration when they were sold. On the contrary, the
probabilities indicate that the 3 679 754 additional option shares would have been
an even greater incentive to sell in January 2006. Apart from Mr Mawji’s say-so,
there is no evidence that is inconsistent with this conclusion.

[112] In my view, the issue as to the price at which Grancy would have disposed
of the additional option shares is simpler than the submissions on behalf of the

38


appellants would suggest. It is this. What inference as to when Grancy would
have sold its shares, can be drawn from the proven facts?

[113] In Ocean Accident and Guarantee Corporation12 Holmes JA approved the
following dictum in Govan v Skidmore:13
‘. . . in finding facts or making inferences in a civil case, it seems to me that one may, as
Wigmore conveys in his work on Evidence, 3rd ed., para. 32, by balancing probabilities select
a conclusion which seems to be the more natural, or plausible, conclusion from amongst several
conceivable ones, even though that conclusion be not the only reasonable one.’

[114] The natural and plausible inference to be drawn from the proven facts, is
that Grancy would have disposed of its entire shareholding, ie its initial and
option shares as well as the additional option shares, at R5.75 per share in January
2006.14 In addition, this inference accords with the evidence, considered globally
and holistically, and the inherent probabilities. In my opinion, there are no factors
that point away from this conclusion.

[115] By reason of the conclusion to which I have come, it is unnecessary to
consider in any detail, the appellants’ argument that the High Court erred in
applying the ordinary measure of damages for breach of contract – that the
innocent party should be placed in the position it would have been had the
contract been properly performed, so far as this can be done by the payment of
money and without undue hardship to the defaulting party.15

[116] The appellants, however, contend that the High Court should have applied
a flexible approach to the calculation of damages, more specifically, the ‘highest

12 Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 159C, affirmed in Kruger v
National Director of Public Prosecutions [2019] ZACC 13; 2019 (6) BCLR 703 (CC) para 79.
13 1952(1) SA 732 (N) at 734C-D.

13 1952(1) SA 732 (N) at 734C-D.
14 Govan v Skidmore fn 13, approved in AA Onderlinge Assuransie -Assosiasie Bpk v De Beer 1982 (2) SA 603
(A) at 614G.
15 Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) at 687C.

39


intermediate value’ adopted by the courts in the United States, to assess the
measure of damages in conversion cases where the property in question fluctuates
in value. 16 In this regard they rely on Galigher17 in which the United States
Supreme Court said:
‘It has been assumed in the consideration of the case tha t the measure of damages in stock
transactions of this kind is the highest intermediate value reached by the stock between the time
of the wrongful act complained of and a reasonable time thereafter, to be allowed to the party
injured to place himself in the position he would have been in had not his rights been violated.
This rule is most frequently exemplified in the wrongful conversion by one person of stocks
belonging to another. To allow merely their value at the time of conversion would in most cases
afford a very inadequate remedy, and in the case of a broker holding the stocks of his principal
it would afford no remedy at all. The effect would be to give to the broker the control of the
stock, subject only to nominal damages. The real injury sustained by the principal consists not
merely in the assumption of control over the stock, but in the sale of it at an unfavorable time
and for an unfavorable price.’ (Emphasis added.)

[117] This is another instance of an opportunistic attempt by the appellants to
unjustifiably extract the maximum benefit out of the breach of contract by the
Gihwala defendants. The argument based on the highest intermediate value rule
was not pressed with any conviction before us, and it can be disposed of in three
short points.

[118] First, the rule is completely inapposite. The foreign cases upon which the
appellants rely concern the ‘wrongful conversion’ of shares and include lost
profits as a result of the wron gful conduct.18 Conversion is an intentional tort
which occurs when a party takes the chattel (personal or movable) property of
another with intent to deprive them of it.19 This is a case of breach of contract in

another with intent to deprive them of it.19 This is a case of breach of contract in
which it has been found that the appellants w ould have disposed of Grancy’s

16 The appellants cite Galigher v Jones 129 US 193 (1889).
17 Galigher fn 16 at 129 para 200.
18 Galigher fn 16; Schultz v Commodity Futures Trading Commission 716 F.2d 136 (1983), 140.
19 https://www.law.cornell.edu>Wex; Jones (ed) Clark and Lindsell on Torts 21 ed (2014) at 17-06 ff and 18 Am
Jur 2d, Conversion § 1-8.

40


entire shareholding in January 2006. Moreover, the appellants have neither
pleaded nor proved any claim for lost profits.

[119] Second, the highest intermediate value rule is foreign to South African law
and conflicts with settled principles relating to causation, remoteness and
quantification of damages for breach of contract in our law . The Constitutional
Court has cautioned against the use of ‘ost ensible analogies’ in foreign
jurisdictions ‘without a thorough understanding of the foreign systems’; and the
‘blithe adoption of alien concepts or inapposite precedents’. 20 A claim for
damages for a lost chance or opportunity is in principle recognised in our law.
Where a party can prove that it has lost an opportunity of making a profit as a
result of a breach of contract, the court will apply the principles for quantifying
the loss of opportunity caused by the breach .21 The court then determines
damages by estimating the chances of earning a particular profit.

[120] Finally, the appellants’ reliance on the highest intermediate value rule was
all but abandoned, when in the replying argument Grancy’s counsel submitted
that the court must do the best it can to determine when Grancy would have sold
its shares, and then apply a contingency. No such case was pleaded nor proved.
The appellants’ attempt to develop their case in this way on appeal, is
impermissible. The prejudice to the respondents is self -evident. And as stated,
this is not a delictual but contractual claim.

Conclusions on the Scharrig Investment
[121] In July 2005 , the participants in the Scharrig transaction allocated 9 621
900 additional option shares to the DGFT to bring it to parity with the Nyane
Trust, so that these entities had a combined 15% shareholding in Scharrig. In

20 Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) paras 132 and 133.

20 Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) paras 132 and 133.
21 De Klerk fn 11 paras 27-33; G B Bradfield Christie’s Law of Contract in South Africa 8 ed (2022) at 682.

41


terms of the Scharrig agreement, Grancy is entitled to the economic value of one
half of the additional option shares as alleged in the particulars of claim , ie
3 679 754 shares.

[122] Grancy failed to prove that the DGFT defendants breached the Scharrig
agreement, by selling its initial and option shares without its knowledge or
authorisation. Grancy would have sold its entire shareholding at R5.75 per share
in January 2006, including the 3 679 754 additional option shares.

THE SPEARHEAD INVESTMENT
The terms of the Spearhead agreement

[123] The material terms of the Spearhead agreement are summarised in the 2016
SCA judgment, as follows:
‘(a) Mr Gihwala (through the vehicle of the Trust), Mr Manala and Grancy would participate
in the Spearhead BEE transaction and thereby invest indirectly in Spearhead linked units.
(b) The investment would be undertaken using SMI as a corporate vehicle with each
participant (Grancy, the Trust and Mr Manala) holding one-third of the shares in SMI.
(c) The parties would make their investment contributions by way of subscription for shares
in and the making of loans to SMI on the basis set out in Mr Gihwala's email of 21
February 2005, which included the making of loans to Mr Manala to enable him to lend
his share of the amount required by SMI.
(d) SMI would use the funds so acquired to subscribe for 58% of the shares in Ngatana,
which was the corporate vehicle that would hold the 3,5 million Sp earhead linked units
acquired in terms of the BEE transaction, and lend money to Ngatana to enable it to take
up these Spearhead units.
(e) The investment would be directly managed by Messrs Gihwala and Manala, who would
be the directors of SMI and SMI's nominees as directors of Ngatana.
(f) Unless otherwise agreed by the investing parties, the investment by Ngatana would be
restricted to an investment in the 3,5 million Spearhead units and SMI's investment

restricted to an investment in the 3,5 million Spearhead units and SMI's investment
would be restricted to its investment in 58% of the shares of Ngatana.

42


(g) In the management of the investment Messrs Gihwala and Manala, the Trust and SMI
owed Grancy a duty to exercise good faith and to account fully for their stewardship of
Grancy's investment. Their relationship with Grancy was a fiduciary one.
(h) Grancy would be entitled on request to be given access to all books and records of SMI
relating to its affairs and Grancy's investment in it.
(i) The two directors would procure that the net income accruing to Ngatana from t he
investment, after servicing the Standard Bank loan and paying its administrative
expenses, would be distributed to shareholders, first by repaying shareholder loans and
then as dividends.
(j) The net income accruing to SMI after paying its administra tive expenses would be
distributed to shareholders, first by repaying shareholder loans and then by way of
dividends.
(k) The investors would be treated equally so that in the allocation of benefits arising from
the investment no investor would be treated less favourably than another and no investor
would secure for himself or itself a benefit that was not afforded to the other investors. I
refer to this as the principle of parity of treatment.’ 22

[124] The appellants appeal against the High Court’s refusal to grant them the
relief sought in prayers 1.13 to 1.16; 1.20 to 1.23; and 1.27 of the particulars of
claim. In what follows I refer to this relief as claims 13 to 16, 20 to 23, and 27.
The respondents cross-appeal against most of the High Court’s monetar y orders
in respect of the Spearhead transaction, save for those relating to the Prescient
management fees (claims 19 to 25).

[125] Initially the Gihwala defendants denied certain terms of the Spearhead
agreement in their plea. However, in evidence Mr Gihwala a dmitted that those
terms are covered in the above summary of the terms of the Spearhead agreement,
and thus form part of that agreement.



22 2016 SCA judgment para 58.

43


The second respondent’s liability
[126] Mr Manala denies each of the pleaded terms of the Spearhead agreement.
In amplification he pleads that he did not enter into any agreement with Grancy,
save for a loan advanced by the appellants to enable Mr Manala to purchase his
interest in SMI. He persisted with that version in evidence. He contends that the
High Court erred in refusing to relax the doctrine of issue estoppel in his favour,
and to depart from the findings in the 2016 SCA judgment, in terms of which this
Court held that Mr Gihwala, the DG FT and Mr Manala were each liable in
solidum (for performance of the whole obligation) to Grancy. Mr Manala asserts
that the High Court failed to consider material evidence in the proceedings before
Traverso DJP in 2015, and in these proceedings.

[127] In the event that this Court does not depart from the High Court’s findings
regarding issue estoppel, Mr Manala says, then he joins the Gihwala defendants
in their cross -appeal concerning the Spearhead investment, and asks that the
orders granted against him be set aside. Mr Manala also cross-appeals the orders
of the High Court in respect of Spearhead claims 23 to 25 and claims 16 to 18,
granted in favour of Grancy.

[128] The answer to Mr Manala’s claim that he is not a party to the Spearhead
agreement, is short and co nclusive. This Court found that Mr Manala, together
with Grancy and the DGFT, participated in the Spearhead transaction through
SMI, in which he held one -third of the shares; 23 that he was in a fiduciary
relationship with Grancy; 24 and that he is liable, joi ntly and severally with
Mr Gihwala and the DGFT, for the breaches of the Spearhead agreement.25


23 2016 SCA judgment fn 2 para 58 (a).
24 2016 SCA judgment fn 2 para 58 (g).
25 2016 SCA judgment paras 102 to 106.

44


[129] As to Mr Manala’s reliance on issue estoppel, this defence remains one of
res judicata (a matter which has been determined by judicial decision). The
defence is available where a dispute which has been brought to an end, is again
litigated between the same persons, regarding the same thing and on the same
cause.26

[130] The appellants raised the defence of res judicata , specifically that the
proceedings before Four ie J in the Western Cape High Court, involving the
consolidated hearing of two actions brought mainly against Messrs Gihwala and
Manala, (the consolidated action), 27 which resulted in the 2016 SCA judgment
and this case, involve the same persons.28 The consolidated action was based on
the same thing or relief – Mr Manala’s liability to Grancy under the Spearhead
agreement.29 And it is founded on the same cause of action – in the present
proceedings the complaint is based on the Spearhead agreement and involves the
adjudication of the appellants’ contractual claims in terms of that agreement, as
was the case in the consolidated action.30

[131] The High Court rightly held that the grounds for the claims against
Mr Manala in the case before it, were the same issues decided in the consolidated
action, more particularly, who the parties to the Spearhead agreement are, and
whether that agreement was breached and in what respects. Further, in the
proceedings before Fourie J, Mr Manala (and Mr Gihwala) chose not to testify,
and the evidence of Mr Mawji in the consolidated action stands uncontradicted.
Mr Manala should have disputed his participation in the Spearhead agreement,
and advanced the basis of that claim, in those proceedings. He chose not to do so.


26 18 Lawsa 3 ed paras 32 and 75.
27 The consolidated action is also referred to as ‘the 2010 and 2011 actions’.
28 Lawsa fn 26 paras 65 to 67.
29 Lawsa fn 26 paras 70 and 71.
30 Lawsa fn 26 paras 72 to 75.

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[132] Mr Manala cann ot, as the High Court indeed found, simply ignore the
consolidated action, let alone on any ground of equity and justice. Moreover, as
the court correctly observed, Mr Manala’s stance is contrary to that which he
adopted in earlier proceedings. In those proceedings he accepted that Mr Gihwala
was authorised to represent him at the February 2005 meeting, which formed part
of the conclusion of the Spearhead agreement.

[133] Although Mr Gihwala may have made the decisions in relation to the
Spearhead agreement in the progress of the investment, Mr Manala accepts – as
he must – that the SCA judgment finds that he was party to the relevant
transactions. Consequently, he cannot be excused from any misconduct in
relation to decisions by Mr Gihwala, and is thus part y to the breaches of that
agreement. The same applies to breaches of the agreement by Mr Gihwala that
give rise to the claims in these proceedings.

[134] Finally, on this issue, Mr Gihwala’s accounting in these proceedings
confirms that Mr Manala is a party to the Spearhead agreement, is subject to its
terms, and is jointly and severally liable with Mr Gihwala and the DGFT for the
obligations under the agreement. For these reasons, his cross-appeal must fail.

Overview of Grancy’s claims
[135] Spearhead claims 1 to 11 relate to amounts arising from Grancy’s
entitlement to a one third shareholding in SMI, confirmed by this Court. In the
consolidated action, Grancy claimed an amount based on a 31% shareholding in
Spearhead. In the proceedings bef ore Wragge AJ, Grancy claimed amounts due
based on its additional 2.33% shareholding in SMI, which it did not claim in the
consolidated action and were thus not addressed in the SCA 2016 judgment.

46


[136] Grancy contends that the following further claims are due to it pursuant to
the debatement:
(a) Interest on the initial payment of R1.8 million made by Grancy for
purposes of the investment (Spearhead claim 12). It appears that this is an
error. Grancy claimed interest in the amount of R42 041.10 in paragraph
35.5 of the particulars of claim. Messrs Gihwala and Manala and the DGFT
were ordered to pay this amount to Grancy (paragraph A1(l) of the High
Court’s order dated 18 August 2021).
(b) Interest on amounts held in the HHG trust account that were not required
to be utilised immediately for the investment (Spearhead claims 13 to 15).
(c) Claims arising from an unauthorised loan from SMI to Ngatana (Spearhead
claims 16 to 18). This is also an error. The defendants in the Spearhead
case were ordered to pay the re levant amo unts to Grancy (paragraphs
A1(m) to (o) of the High Court’s order of 18 August 2021).
(d) Claims in relation to unlawful Prescient management and administration
fees (Spearhead claims 19 to 25).
(e) A claim concerning the secret profit made in respect of an auth orised
investment in Strand Property Investments (Spearhead claim 26).
(f) A claim for declaratory relief in relation to the secret profit made in the
Cape Gannet investment (Spearhead claim 27).

Prescription
[137] Before dealing with the claims under the Spearh ead agreement, it is
necessary to briefly address the contention by the Gihwala defendants that most
of those claims have prescribed. They say that the appellants have been aware of
the identity of the debtors and the facts from which the debts arise, as
contemplated in s 12(3) of the Prescription Act 68 of 1969 (the Prescription
Act).31 For example, as regards Spearhead claims 1, 2 and 3, the Gihwala

31 Section 12(3) of the Prescription Act provides:

47


defendants contend that the dates upon which Grancy alleges that it should have
received dividend payments are 17 October 2008, 26 March 2009 and 12
February 2010. The process to interrupt prescription – a notice in the form of
particulars of claim – was served on 15 July 2016, more than three years after the
claim arose. Consequently, so it is contended, claims 1, 2 and 3 have been
extinguished by prescription.

[138] But that is not so. The notice entitled ‘Particulars of Claim’ did not initiate
a cause of act ion. Instead, the initial Spearhead application launched on
5 November 2007 and served on the respondents, in which the debts owed to
Grancy were claimed, interrupted prescription in terms of s 15(1) of the
Prescription Act.32 That application gave rise to the order dated 9 March 2009
(the March 2009 order) by Traverso DJP. In terms of that order, the respondents
were directed to render a full account in relation to the Spearhead investment,
after which they were required to debate the account and to pay the appellants the
amounts due to them upon the debatement.

[139] The proceedings that followed dealt with the procedure utilised in the
debatement of the account. Thus, in terms of the 2014 debatement order, the
appellants were required to deliver a written notice in the form of particulars of
claim.33 The High Court rightly concluded that questions of prescription do not
arise and that the defence of prescription in relation to claims 1, 2 and 3 could not
succeed.


‘A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the
facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could
have acquired it by exercising reasonable care.’
32 Section 15(1) of the Prescription Act provides:
‘The running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the

debtor of any process whereby the creditor claims payment of the debt.’
33 Grancy v Seena Marena Investment fn 7 Annex A para 14.1.

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[140] Given that the Gihwala defendants’ cross-appeal against most of the High
Court’s monetary orders, it is convenient to deal with the Spearhead claims in
numerical order.

Spearhead claims 1 to 11: claims based on a one-third shareholding
[141] The 2016 SCA judgment confirmed that in terms of the Spearhea d
agreement, Grancy was entitled to a one third shareholding in SMI. This Court
construed the March 2009 order granted by Traverso DJP, as follows:
‘In November 2007 Grancy launched an application in the Western Cape Division of the High
Court claiming aga inst Messrs Gihwala and Manala, SMI and the Trust delivery of a 31%
shareholding in SMI. Although this was less than the one -third share originally agreed upon,
Mr Mawji explained in his founding affidavit that this was being accepted on the basis of a
concession by Messrs Gihwala and Manala, whilst reserving Grancy's position to make further
claims after receiving a proper account of its investment. In addition to the registration of that
shareholding in its name, it sought an accounting in respect of its original investment in SMI.’

[142] A number of Grancy’s claims in the current proceedings is based on its
entitlement to the benefits associated with an additional 2.33% shareholding in
SMI, being the difference between the 31% granted in the consolidated action
and its overall entitlement to a one third shareholding in SMI.

[143] The March 2009 order that gave rise to the consolidated action was based
on Grancy’s acceptance of a concession by the Gihwala defendants that SMI had
acquired 630 000 Spearhead units on behalf of Grancy, which was equivalent to
a 31% shareholding in SMI. However, the court order encompassed a claim for a
full statement of account in relation to the use of Grancy’s funds of R4 040 250,
of which R3 040 250 was used for the Spearhead investment and R1 000 000, for
the Scharrig investment, including an accounting for any shortfall in SMI shares

the Scharrig investment, including an accounting for any shortfall in SMI shares
acquired on Grancy’s behalf, the debatement of that account, and payment of any
amounts due to Grancy from the debatement.

49


[144] The High Court found that the 2016 SCA judgment placed the terms of the
Spearhead agreement beyond doubt, and made clear what the effect of the March
2009 Spearhead order was. Implicit in that order, the court said, was the
reservation of Grancy’s rights to claim further amounts once further information
was revealed in the debatement process, and that Grancy’s claims were based on
its entitlement to a 33.33% interest in SMI. Consequently, the High Court upheld
Grancy’s claims based on its contention that it was entitled to 33.33%
shareholding in SMI, and awarded Grancy the difference between the amounts it
had received as a 31% shareholder and what it would have received had it held
33.33%.

[145] The Gihwala defendants, however, contend that Grancy has waived its
right to any claim arising from a shareholding of 33.33%. They say that Grancy
knew that it would receive dividends equating to only a 31% shareholding when
it agreed to the March 2009 order; that the order required the respondents to
account for the use of the appellants’ funds and a debatement of that account; and
that the High Court overlooked the nature of the settlement resulting in the March
2009 order.

[146] The Gihwala defendants are mistaken. The March 2009 order which gave
rise to the consolidated action, was based on Grancy’s acceptance of the Gihwala
defendants’ concession that SMI had acquired 630,000 Spearhead units on behalf
of Grancy, which was equivalent to a 31% shareholding in SMI. Grancy never
accepted that it was entitled to only a 31% shareholding. The order encompassed
a claim for a full statement of account in relation to the use of the entire
R3,040,250, which Grancy had invested in Spearhead (and R1,000,000, utilised
in the Scharrig investment), and to pay to Grancy any amounts due after the
debatement of that account. Information arising from the debatement can form
the basis for additional monetary claims, which includes the additional

50


shareholding to which Grancy was entitled. In fact, the March 2009 order
provides that pursuant to the debatement, Grancy may claim ‘such amount, if any,
as may be due’ to it.

[147] There is nothing in the consolidated action that supports the conclusion that
Grancy waived its right to claim any benefits arising from the additional 2.33%
shareholding. Mr Gihwala chose not to testify in those proceedings, and this
Court has held that in terms of the Spearhead agreement, Grancy is entitled to a
one third shareholding in SMI.

[148] For his part, Mr Manala persisted in his denial that Grancy was entitled to
any shareholding in SMI. He pleaded that the settlement agreement reflected in
the March 2009 order was made as a compromise on the strength of a false
representation by Mr Gihwala to the effect that the order would bring an end to
and settle the dispute between the parties. Mr Manala asserts that he relied on this
misrepresentation, in good faith and to his prejudice.

[149] However, the alleged misrepresentation is a matter between Mr Manala
and Mr Gihwala. It does not affect any claim by Grancy against Mr Manala based
on the Spearhead agreement. Mr Manala cannot now contend that Grancy must
look to Mr Gihwala for the satisfaction of its claims under that agreement, since
Traverso DJP in the first stage of the accounting process, and this Court, have in
effect concluded that Mr Gihwala and Mr Manala acted in concert in relation to
everything that was done under the Spearhead investment. Moreover, in the
consolidated action, Mr Manala chose not to adduce any evidence in relation to
his version of events, nor the circumstances surrounding th e issuance of the
March 2009 order.

51


Claims 1 to 3: non-payment of dividends due
[150] Grancy’s entitlement to dividends not yet received is a matter of
straightforward calculation, based on the additional 2.33% shareholding. The
dates and amounts have been a dmitted by Mr Gihwala. Mr Manala pleaded no
knowledge of these amounts and accordingly denies them. To the extent that
Mr Gihwala’s decisions constituted a breach of the Spearhead agreement and are
the foundation of Grancy’s claims, Mr Manala is equally re sponsible, and
likewise liable.

[151] Grancy received only 31% of the dividends, but should have received
33.33% by virtue of the Spearhead agreement. Mr Gihwala admits that Grancy
received 31%, but denies that it is entitled to receive the additional 2.33% of the
dividends declared by SMI.

[152] The benefit of 2.33% of the dividends declared by SMI went to Mr Gihwala
and Mr Manala in breach of the Spearhead agreement. It caused Grancy loss in
an equal amount.

Claims 4 and 5: late payment of dividends
[153] SMI paid dividends of R10 000 000 on 27 May 2010, and R10 000 000 on
8 April 2011. However, Ngatana had declared and paid dividends sufficient to
cover these amounts on 26 March 2009 and 12 February 2010, and was in
possession of the required funds. At that time, both Mr Gihwala and Mr Manala
were directors of SMI, responsible for declaring and paying dividends to
shareholders, without delay.

[154] Despite this, Mr Gihwala and Mr Manala paid out dividends to SMI
shareholders only on 27 May 2010 and 8 April 2011. They furnished no reasons
for the late payments.

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[155] The quantification of the losses to Grancy is a matter of simple calculation.
Grancy is entitled to interest at 15.5% on 31% of the dividends it received, from
the date that the funds were available for distribution until the date that the
dividends were paid. That amount, in turn, attracts interest until the date of
payment.

[156] The Gihwala defendants submit that the High Court erred in holding that
SMI was obliged to pay dividends immediately upon receipt of funds from
Ngatana, because this is inconsistent with the statutory duty to verify the profits
available for distribution, taking into account SMI’s administrative expenses.

[157] But as the High Court found, no evidence of any administrative expenses,
statutory annual returns, or tax liabilities had been placed before it; and no reasons
were given why the payment of these expenses should have delayed the payment
of dividends to SMI shareholders. It follows that the appeal against paragraphs
426 A1(d) and (e) of the High Court’s judgment, cannot succeed.

Shortfall in other distributions
[158] There are other distributions for which Grancy received benefits based on
only a 31% shareholding in SMI. These distributions were recognised as due to
Grancy in the 2016 SCA judgment. On the basis of being entitled to 33.33% of
the shares, Grancy is entitled to the additional 2.33% of each of these
distributions. The calculation of these amounts is set out in the particulars of
claim, and the report and evidence by the appellants’ expert, Mr Hilton
Greenbaum.

[159] The High Court thus correctly granted the relief sought under claims 1 to
11 (prayers 1.1 to 1.11 of the particulars of claim). Consequently, the cross-appeal
against these claims is dismissed.

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Claim 12: interest on the initial Ngatana payment
[160] On or about 16 February 2005, without its knowledge, R1.8 million of
Grancy’s funds was transferred f rom the HHG trust account to Ngatana for the
purchase of SMI’s portion of the first tranche of shares purchased by Ngatana.

[161] To the extent that R1.8 million was required by Ngatana from SMI, each
shareholder of SMI had to contribute one third of that amoun t, ie R600,000,
subject to Grancy and the DGFT each contributing one half of Mr Manala’s share.
Thus, Grancy and the DGFT should each have contributed R900,000. Grancy
suffered loss in that its funds were used, without its knowledge, to finance the
other shareholders’ financial obligations to Ngatana for the period 16 February
2005 to 6 June 2005.

[162] The loss suffered is the interest on the Gihwala and Manala portion of the
amount funded by Grancy, being R900,000, from 16 February 2005 to 6 June
2005. The loss of interest suffered is thus R42,041.10. Grancy is also entitled to
interest on that amount, at the applicable statutory rate of 15.5% per annum, from
6 June 2005 to date of payment.

[163] Mr Gihwala denies Grancy’s entitlement to this claim on the basis either
that Mr Narotam, acting on behalf of Grancy, had authorised the transfer of the
R1,800,000 to Ngatana on 16 February 2005, or that Grancy is estopped from
denying such authority. In the alternative to the estoppel defence, Mr Gihwala
and the DGFT contend that Mr Narotam had ostensible authority to represent and
bind Grancy.

[164] The High Court found that there was no acceptable evidence that
Mr Narotam was aware that Grancy’s funds were being used to fund
Mr Gihwala’s and Mr Manala’s contributions for th e relevant period. The court

54


referred to Mr Gihwala’s evidence that Mr Mawji made financial decisions on
behalf of Grancy and that one would have expected Mr Gihwala to obtain written
authority for the transfer.

[165] However, the Gihwala defendants submit that the High Court overlooked
Mr Narotam’s affidavit evidence in the Spearhead proceedings, in which he stated
that he gave permission to Mr Gihwala to pay the R1.8 million to fund SMI’s
portion of the shares purchased by Ngatana. The High Court was correct i n
finding that this evidence was not credible. It is at odds with the inherent
probabilities. As the court found, there was no reason why Grancy would have
agreed to finance the financial obligations of the other shareholders, and it was
not suggested that Mr Gihwala (or Mr Manala) did not have the funds to effect
the transfer at the time that it was requested.

[166] Consequently, the High Court was correct in finding that there was no
evidence to show that Mr Narotam was aware that the amount of R1.8 million
had been used. It follows that the cross-appeal on this aspect must fail.

Claims 13 to 15 – interest on amounts held in HHG’s trust account
[167] Grancy transferred R3.5 million to the HHG trust account on 11 February
2005 and R540,200 on 16 May 2005. Mr Mawji testified that at the time of the
investment, there was a sense of urgency in Grancy deciding whether to pursue
the investment.

[168] Mr Mawji conceded that Grancy did not give any specific instruction to
Mr Gihwala that the funds should be placed in any interest -bearing trust
investment account. Mr Mawji explained, however, that in accordance with a
practice in the United Kingdom, to which he is accustomed, funds are placed on
deposit whenever they are transmitted to a lawyer; and he presumed that a similar
practice was followed in South Africa. He also confirmed that he was not familiar

55


with the nature of a s 78(2)(a) account in terms of the Attorneys Act 53 of 1979
(the Attorneys Act).34

[169] Grancy contends that the following amounts were not required for the
Spearhead investment for the relevant periods and should have been placed in an
interest-bearing account for its benefit : R1 million of the R3.5 million
contribution for the period 11 Feb ruary 2005 to 14 April 2005; R700,000 of the
R3.5 million contribution, for the period 11 February 2005 to 6 June 2005 (6 June
2005 being the date that the funds were paid over to Ngatana); and a contribution
of R540,250, for the period 16 May 2005 to 6 June 2005 (6 June 2005 being the
date that the funds were paid over to Ngatana).

[170] The relevant interest rates which were applicable to a s 78(2)(a) account at
the relevant times were 5.4% per annum from 1 January to 19 April 2005 and
5.1% per annum from 20 April to 31 July 2005, compounded daily.

[171] The High Court refused Grancy’s claims. Its reasons may be summarised
as follows. Mr Gihwala required a written authorisation under the Attorneys Act
and in terms of HHG’s internal procedures, for funds to be deposited in a s 78(2A)
account. Nobody gave Mr Gihwala such an instruction. It is not a requirement
under the Spearhead agreement. According to the evidence, the Spearhead
transaction was urgent and the funds for that investment would have been
required almost immediately. Neither Mr Mawji nor Mr Gihwala contemplated
that Grancy’s funds would be held in trust for any length of time. No claim for
interest for the failure to deposit Grancy’s funds in an interest -bearing trust
account had been advanced in the 2010 and 2011 actions. The evidence of the

34 Section 78(2)(a) of the Attorneys Act provides:
‘Any practitioner may invest in a separate savings or other interest -bearing account opened by him with any

banking institution or building society any money deposited in his trust account which is not immediately required
for any particular purpose.’

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appellants’ expert regarding the rate of interest that would have applied to HHG,
was unsatisfactory.

[172] The appellants contend that the duty to invest the unused funds, arises from
the duties of confidence, trust and t he utmost good faith under the Spearhead
agreement. The appellants miss the point. Mr Gihwala received no instruction to
deposit the funds in an interest -bearing account, and the funds were required
almost immediately. And Mr Mawji’s assumption that funds handed to a lawyer
in South Africa should be placed on deposit, as in the United Kingdom, cannot
found a claim that the funds should have been deposited in an interest -bearing
account.

[173] The High Court was accordingly correct to dismiss these claims. Grancy’s
appeal against this part of the judgment fails.

Claims 16 to 18: SMI loan to Ngatana
[174] Ngatana purchased a total of 3.5 million Spearhead units. The contribution
that Ngatana was required to make (taking into account the Standard Bank
funding) was R2.75 per unit. When financing and transaction costs are taken into
account, the cost was R2.852 per unit. Ngatana was required to pay R9 981 900,
in respect of the 3.5 million units. These facts are admitted by Mr Gihwala.

[175] Grancy contends that SMI was liable for 58% of such payment, being
R5,788,980.00 for 2,030,000 units. SMI in fact contributed an amount of
R6,657,673.00 to Ngatana. This constituted an overpayment of R868,693.00,
which would have purchased an additional 304,387 units, or an additional 8.67%
shareholding in Ngatana.

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[176] Mr Gihwala denies that SMI was liable for only 58% of the amount that
Ngatana was required to pay Spearhead, as SMI was also required to contribute
towards Ngatana’s transactional costs and other expenses. This denial is
inconsistent with his admission that the financing, transactional and unit costs
were included in the R9 981 900.00 figure.

[177] Mr Gihwala accepted that more was paid by SMI than was required for the
purchase of its 2,030,000 units. However, he testified that there was an agreement
that minority shareholders would be funded and that the overpaid amount would
be utilised to fund them. But the Spearhead agreement does not permit the use of
SMI funds in this way. And Mr Gihwala did not plead, neither could he produce
any evidence for the existence of any agreement, nor a variation of the Spearhead
agreement in this regard.

[178] Mr Gihwala does not take issue with the calculations of the dividends that
Grancy contends it should have received. The High Court held that the use of
SMI funds to fund minorities is a breach of the Spearhead agreement, and Grancy
is entitled to one third of the benefits of the overpayment. Grancy is thus entitled
to one third of 8.67% of the dividends paid by Ngatana, being:
(a) R262,727.27, plus interest at the rate of 15.5% per annum from 15 October
2008 to date of payment;
(b) R1,734,000.00 plus interest at the rate of 15.5% per annum from 26 March
2009 to date of payment;
(c) R558,665.75 plus interest at the rate of 15.5% per annum from 12 February
2010 to date of payment.

[179] The Gihwala defendants, however, submit that these claims assume that
SMI should have had a larger shareholding in Ngatana and would have received
additional dividends as a result; and that the High Court took as an incorre ct

58


starting point, the fact that the respondents had admitted the appellants’
calculations. That admission, the respondents say, does not take into account the
transaction costs at the Ngatana level which are unrelated to the purchase price
for the Spearhead units.

[180] But that is not so. The Gihwala defendants ignore the evidence.
Mr Gihwala accepted that SMI had overpaid the amount for its shareholding of
58%. His explanation was not that this was on account of transaction costs, but
rather to fund minority sharehold ers – which was impermissible under the
Spearhead agreement. And Mr Gihwala agreed that the amount of R9 981 900
covered transaction costs, which included, inter alia, legal and accounting fees
and tax and bank charges.

[181] The High Court thus correctly uphe ld claims 16 to 18. The cross -appeal
against these claims falls to be dismissed.

Claims 19 to 25: Prescient management and administration fees
[182] The High Court found that some of the management fees that Ngatana paid
to the various Prescient entities were properly incurred and fell within the
ordinary scope of its business, but that other management fees were not properly
explained. The High Court accordingly upheld some of Grancy’s claims, but
dismissed others.

[183] The respondents do not cross -appeal against the claims the High Court
upheld, which included the largest claim for R387,463.20. The issues on appeal
therefore concern the claims totalling R164,138.62 which the High Court
dismissed.

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[184] The appellants contend that the High Court ought to have upheld all its
claims for three main reasons. First, Ngatana was to be a SPV that was not
authorised to make any investments other than the investment in Spearhead linked
units; and Grancy’s consent was required before Ngatana could incur any
additional obligations, including management fees. Second, they contend that this
Court in the 2016 SCA judgment found that Ngatana’s affairs would require little
by way of active management, and consequently that the High Court’s order is
inconsistent with that finding. Third, the management fees required the consent
of SMI under the Ngatana shareholders’ agreement because they were not fees
incurred in the ordinary course of business.

[185] These contentions, however, are unsustainable for the following reasons:
(a) The appellants did not plead that Ngatana could only incur additional
expenses with Grancy’s consent. They pleaded that Messrs Gihwala and
Manala were obliged to ensure that ‘all proceeds of the Spearhead
investment received by Ngatana were promptly and fully distributed to
SMI, less any necessary costs and expenses ’.35 Their pleaded case
consequently acknowledged that Ngatana would incur necessary expenses,
and did not require Messrs Gihwala or Manala to seek Grancy’s consent
before they were incurred.
(b) The appellants’ reliance on this Court’s findings in the 2016 SCA judgment
is misplaced. The High Court had before it significantly more evidence
regarding Ngatana’s activities than was available in the trial before
Fourie J. The High Court properly concluded that Presc ient managed
Ngatana’s loan from Standard Bank, prepared its financial ledgers and
submitted its tax returns and, consequently, that it rendered ‘services
generally associated with a business’.

35 Emphasis added.

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(c) The appellants have not established any sustainable basis for their
contention that the management fees – to the extent that the High Court
found them to have been properly incurred – were not incurred by Ngatana
in the ordinary course of its business.

[186] Consequently, the appeal against the High Court’s (limited) dismissal of
the appellants’ claims pertaining to Ngatana’s management fees, falls to be
dismissed.

Claim 26: The secret profit made in Strand Property Investments
[187] Grancy pleaded that under the Spearhead agreement, SMI would make no
investments other than the Spearhead investment, unless otherwise agreed
between the shareholders, including Grancy. The particulars of claim state that
Mr Gihwala, the DGFT and Mr Manala were in a multi -faceted fiduciary
relationship with Grancy and thus owed Grancy duties of confidence, trust and
good faith. These duties are part of the material terms of the Spearhead agreement
determined by this Court in the 2016 SCA judgment.

[188] In April 2007, Messrs Manala and Gihwala made an unauthorised
investment, through SMI, of R2 mi llion in Strand Property Investments. This
investment was not authorised by Grancy and none of the proceeds was paid over
to Grancy.

[189] The DGFT and Mr Gihwala profited through the Strand investment by
receiving an amount of R3 million on 5 April 2007. Mr Gi hwala admits that the
investment was made, that neither he nor Mr Manala sought approval from
Grancy, and that the DGFT received R3 million from the investment on 5 April
2007.

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[190] In Robinson v Randfontein Estates Gold Mining Co Ltd,36 Innes CJ stated
the ‘no profit’ rule and the ‘no conflict’ rule as follows:
‘Where one man stands to another in a position of confidence involving a duty to protect the
interests of that other, he is not allowed to make a secret profit at the other’s expense or place
himself i n a position where his interests conflict with his duty. The principle underlies an
extensive field of legal relationship . . .’

[191] The no profit rule and the no conflict rule were reaffirmed by this Court in
Phillips.37 These are strict rules that allow little room for exception. They extend
to both actual conflicts of interest and to cases in which there is a real , sensible
possibility of conflict. The defences open to a fiduciary who breaches trust are
extremely limited: only the free consent of the principal after full disclosure will
suffice. Once the breach of a fiduciary duty is established, the fact that the
company has suffered no loss or damage, or that the profit was not made at the
expense of the company, is irrelevant.38

[192] The term ‘profits’ in relation to a claim for disgorgement of secret profits
does not refer simply to a financial profit on an investment. Instead, the term is a
‘wide one’ and ‘is not confined to money, but covers every gain or advantage
made by a wrongdoer’.39 Once the scope of the fiduciary duty and a breach thereof
is established, the wrongdoer will be responsible for disgorgement of all such
profits made within the scope of that duty.40

[193] Mr Gihwala denies that the R3 million which the DGFT received is a
secret profit liable to disgorgement, or that it was secured using SMI’s funds. He
testified that the Strand investment required him to raise R6.4 million. He says

36 Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168 at 177.

36 Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168 at 177.
37 Phillips v Fieldstone Africa (Pty) Ltd and Another 2004 (3) SA 465 (SCA); Farouk H I Cassim, M F Cassim,
R Cassim et al Contemporary Company Law 3 ed (2021) at 725.
38 Phillips fn 37 paras 31 and 32.
39 Robinson v Randfontein Estates Gold Mining Co Ltd 1923 AD 155 at 159.
40 Phillips fn 37 para 33.

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that he raised this amount through SMI (R2 million) and other sources (R4.4
million). He alleges that, due to the structure of the Strand investment, the amount
of R3 million represented repayment of the capital plus his profit . However, he
cannot deny that R2 million of the funding came from SMI and that the return
(whether it includes the capital or not) went directly to the DGFT.

[194] The amount received by the DGFT from the unauthorised investment by
SMI was therefore R3 million . This is an amount which it would not have
received had the Gihwala defendants or Mr Manala not misused Grancy’s funds.
A secret profit of R3 million was thus made by the DGFT.

[195] Despite pleading no knowledge of the investment, Mr Manala testified that
Mr Gihwala had informed him about the Strand investment, which involved
R2 million being invested by Mr Gihwala through the vehicle of SMI, which
amount was going to be repaid in no more that 18 to 24 months with a 50% return.

[196] Contemporaneous correspondence from Mr Manala reveals that the
R2 million which they used to invest in the Strand investment through SMI was,
in fact, Grancy’s R2 million. In an email which Mr Manala sent to Mr Gihwala
on 15 March 2009, he states:
‘You will recall that when we all recei ved our shareholders’ loans from Ngatana, I suggested
that [Grancy’s] loans be repaid. After the DGFT loans including interest for funding my deal
were paid, you then suggested that we should instead take the R2m and place same in the Strand
Development and guaranteed that we would get back 50% return in 24 months. We placed the
money in the development based on this undertaking.’

[197] It is common ground, and it was confirmed by this Court, that Grancy never
agreed to its funds being used for this investment. The R2 million was Grancy’s;
it should have been repaid to Grancy, but instead was used by Messrs Manala and

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Gihwala to engage in an unauthorised investment, pursuant to which the DGFT
was paid out R3 million.

[198] Mr Manala testified that he did not receive any amount from the proceeds
of R3 million paid to the DGFT, and that at the time of the investment, he was of
the view that only he and DGFT were shareholders in SMI. This does not assist
Mr Manala. As this Court held, and as Mr Manala conceded, any decisi ons by
Mr Gihwala were made on his behalf and any breach of the Spearhead agreement
by Mr Gihwala would also constitute a breach by Mr Manala.

[199] The High Court accepted Mr Gihwala’s contention that the R3 million
repayment was part of a different transactio n (between the DGFT and Strand
Junction Development), for the repayment of a series of loans made to Strand
Junction Development. Central to the court’s reasoning was its finding that the
Scarlet Ibis loan of R2 million was dealt with in the 2010 and 2011 actions, and
that Grancy had claimed and obtained repayment of its contribution in the amount
of R2,051,833.34.

[200] Consequently, the High Court found that the amount of R3 million was not
paid to the DGFT as a profit on the Scarlet Ibis transaction, but was rather
payment of an agreed return in accordance with a separate transaction, and that
Grancy had already been paid the amount improperly used by Messrs Gihwala
and Manala for the Scarlet Ibis investment.

[201] The High Court erred. Grancy’s claim was for the d isgorgement of the
R3 million profit. The fact that it was repaid the amount of R2 million used in the
Scarlet Ibis investment is irrelevant. The High Court’s conclusion is tantamount
to a finding that Grancy is not entitled to disgorgement of the profit of R3 million
because it suffered no loss. But this disregards the rationale for the no profit and

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no conflict rules: to underpin the fiduciary’s duty of undivided loyalty to the
principal. In the leading case of Regal (Hastings) Ltd ,41 approved in Phillips,42
Lord Wright said:
‘[I]f a person in a fiduciary relationship makes a secret profit out of the relationship, the court
will not inquire whether the other person is damnified or has lost a profit which would
otherwise he would have got. The fact is in its elf a fundamental breach of the fiduciary
relationship.’43

[202] An undisclosed profit which directors obtain as a result of the execution
of their fiduciary duties belongs to the company. It follows that Grancy’s appeal
in respect of claim 26 must succeed.

Claim 27: The Cape Gannet Investment
[203] This investment stands on a different footing from the Strand Property
Investment, and can be dealt with briefly. As was stated in Phillips, a claim for a
secret profit arises where the fiduciary’s duty in acquiring the profit amounts to a
conflict of interest between their own interests and those to whom they owe duties
of trust.44

[204] The High Court dismissed the Cape Gannet secret profit claim principally
on the basis that Messrs Gihwala and Manala’s interests were aligned with those
of Grancy. Consequently, there was no conflict of interest (which Grancy was
required to prove to succeed with its claim). Grancy, Mr Manala and the DGFT
were all shareholders in SMI who stood to benefit (or indeed to make a loss) from
Ngatana’s investment. Further, there is nothing secret about the investment. It
was a public transaction about which the appellants had known for many years,
and from which they had benefited (and continue to benefit).

41 Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134.
42 Phillips fn 37 para 31.
43 Regal (Hastings) Ltd fn 41 at 154F.
44 Phillips fn 37 para 32.

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[205] The appellants pleaded that the Cape Gann et investment was contrary to
the Spearhead agreement. More specifically, they alleged that in breach of the
agreement, Mr Gihwala consented to the investment on behalf of SMI. But
Grancy, through its shareholding in SMI, has earned and will continue to ea rn
substantial profits from the Cape Gannet investment. Yet the appellants seek a
disgorgement of an alleged secret profit. As the appellants would have it, Grancy
is entitled to all the profits earned by SMI from the Cape Gannet transaction – the
benefit of profits that it earned (and continues to earn) by virtue of its
shareholding, as well as the profits that would accrue to the DGFT and Mr Manala
by virtue of their shareholding. And this, when Grancy, since it became aware of
the Cape Gannet transaction , has neither objected to it, nor demanded that
Ngatana dispose of the units acquired through that transaction.

[206] This is untenable, and runs counter to the no conflict rule – the consent to
the investment by SMI did not place the respondents in a conflic t between their
personal interests and those of Grancy – the core duty of a fiduciary. Neither was
there a breach of the corporate opportunity rule: the appellants do not, and cannot,
claim that the Cape Gannet investment was an economic opportunity that
properly belonged to Grancy, which the respondents had usurped or diverted for
themselves.45 Instead, they contend that the ‘conflict of interest is inherent in the
fact that Grancy was not informed of the investment and the investment was not
authorised’. These facts self -evidently do not give rise to a conflict of interest.
And the fact that Grancy may not have been informed of the investment and did
not consent to it, does not mean that its interests diverged from those of
Mr Manala and the DGFT.


45 Da Silva and Others v CH Chemicals (Pty) Ltd [2008] ZASCA 110; 2008 (6) SA 620 (SCA); [2009] 1 All SA

216 (SCA) para 18.

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[207] For these reasons, the High Court rightly dismissed the appellants’ claim
in relation to the Cape Gannet investment. Consequently, their appeal against this
order fails.

Conclusions on the Spearhead investment
[208] Mr Manala was a party to the Spearhead agreement. Th e terms of the
Spearhead agreement have been finally determined by this Court. In the
consolidated action before Fourie J, Messrs Gihwala and Manala chose not to
give evidence and thus conceded the terms of the Spearhead agreement. These
terms cannot be re visited by resort to issue estoppel. Mr Manala associated
himself with the accounting of the Gihwala defendants. He stands or falls by that
accounting.

[209] The High Court rightly granted Grancy’s claims based on its full 33.33%
shareholding in SMI (claims 1 to 11). Consequently, the cross-appeal against
paragraphs 426 A1(a)-(k) of the High Court’s order fails.

[210] The High Court was correct in holding that there was no acceptable
evidence that Mr Narotam was aware that Grancy’s funds were being used to fund
the other shareholders’ contributions in the purchase of the first tranche of
Spearhead units by Ngatana. Therefore, the cross -appeal against paragraph 426
A1(l) must fail.

[211] The High Court correctly dismissed the appellants’ claim for interest on
amounts held in the HHG account (Spearhead claims 13 to 15). Consequently,
Grancy’s appeal against this part of the judgment fails.

[212] The High Court rightly held that the use of SMI’s funds to fund minorities
without Grancy’s consent, was a breach of the Spearhead agreement and that

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Grancy was entitled to the amounts sought under claims 16 to 18. Therefore, the
cross-appeal against paragraphs 426 A1(m) to (o) of the High Court’s order fails.

[213] The High Court correctly found that some of the management fees that
Ngatana paid to the various Prescient entities were properly incurred and fell
within the ordinary scope of its business, but that other management fees were
not properly explained. Consequently, the cross -appeal against this part of the
judgment fails.

[214] The High Court erred in refusing Grancy’s claim for the disgorgement of
the secret profit of R3 million in respect of the unauthorised investment in Strand
Property investments. Grancy’s appeal against this part of the judgment therefore
succeeds.

[215] Concerning the Cape Gannet investment, the High Court rightly held that
the appellants failed to prove that Mr Gihwala and Mr Manala obtai ned a secret
profit, or that they had placed themselves in a position where their interests came
into conflict with Grancy’s interests. Consequently, the declaratory order sought
under claim 27 is refused, and Grancy’s appeal against this part of the judgm ent
fails.

The issues relevant to both investments
Interest
[216] The High Court found that the interest payable by the Gihwala defendants
and Mr Manala on the debts in respect of which it granted judgment was subject
to the in duplum rule (interest on a debt s tops running when the total amount of
the unpaid interest is equal to the unpaid principal debt). 46 It rejected the

46 Nedbank Ltd and Others v National Credit Regulator and Another [2011] ZASCA 35; 2011 (3) SA 581 (SCA);
[2011] 4 All SA 131 (SCA) para 49.

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appellants’ argument that the common law should be developed to allow for the
suspension of the rule between the period when an account is due and the date on
which an adequate account is rendered.

[217] The appellants argue that the in duplum rule should not apply in this case.
This is yet another example of their attempt to extract the maximum benefit out
of the respondents’ failure to comply wit h their contractual obligations. The
argument is opportunistic and artificial. It was, understandably, not pressed
before us.

[218] The argument fails at the first hurdle, for the following reasons. First, the
appellants failed to plead that the common law sh ould be developed. Their
attempt at this development at the end of the trial is impermissible. Basic
procedural fairness dictates that a party is entitled to know what case it has to
meet before it presents its own case. Further, litigants are obliged to r aise
constitutional arguments in litigation at the earliest opportunity, to ensure that the
jurisprudence under the Constitution develops reliably and harmoniously. 47
Second, it is undesirable for an appellate court to develop the common law as a
court of f irst and last instance; it must consider whether it would be unfair or
prejudicial to do so, based on the pleaded and established facts. 48 This is such a
case: a development of the in duplum rule would prejudice the respondents. And
third, it is the Legisla ture and not the courts which has the major responsibility
for law reform.49

[219] The in duplum rule is a settled principle of South African law that has
stretched back centuries into Roman Dutch and Roman law. 50 It has been

47 Carmichele v Minister of Safety and Security and Another 2001 (4) SA 938 (CC) para 41.
48 Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd [2011] ZACC 30; 2012 (1) SA 256 (CC),

2012 (3) BCLR 219 paras 27 and 31; Mighty Solutions t/a Orlando Service Station v Engen Petroleum Ltd and
Another [2015] ZACC 34; 2016 (1) SA 621 (CC); 2016 (1) BCLR 28 (CC) paras 43 -44.
49 Carmichele fn 47 para 36.
50 Ethekwini Municipality v Verulam Medicentre (Pty) Ltd [2006] 3 All SA 325 (SCA) para 23.

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carefully and deliberately developed by the Legislature and the courts. The
developments for which the appellants contend would involve a complex reform
of the law, which the Constitutional Court has held, is best left to Parliament.51

[220] In any event, the appellants’ submissions regarding the development of the
in duplum rule, do not withstand scrutiny. They contend that the rule should not
apply to a debatement of account until the party receiving the account has
received an adequate, accurate account which allows it to formulate its claim; that
their claims are for unliquidated debts and a court has a discretion under s 2A(5)
of the P rescribed Rate of Interest Act 55 of 1975 (the Interest A ct), to fix any
interest rate and starting date which is just;52 and that there should be two different
interest regimes in a claim for an accounting. According to this argument, interest
should be regarded as running from the date that payment was due until the order
requiring an accounting; thereafter, that amount (capital and interest) ‘takes on
the form of a due debt’ on which interest starts to run anew.

[221] This case demonstrates that the contention that a creditor cannot advance
its claim without an adequate accounting, is unsustainable. The appellants
launched the 2010 and 2011 actions while the debatement procedures were
ongoing. They were also in a position to advance most of their claims in this case
before proceedings were instituted. They did not need an accounting. The
developments for which the appellants contend would enable a creditor to fend
off the application of the in duplum rule, by contending that it requires an
adequate accounting in circumstances where it has the necessary information to
pursue a claim, but elects not to do so.

51 Carmichele fn 47 para 41; MEC for Health and Social Development, Gauteng v DZ obo WZ [2017] ZACC 37;
2017 (12) BCLR 1528 (CC); 2018 (1) SA 335 (CC).

2017 (12) BCLR 1528 (CC); 2018 (1) SA 335 (CC).
52 Section 2A(5) of the Prescribed Rate of Interest Act 55 of 1975, provides:
‘Notwithstanding the provisions of this Act but subject to any other law or an agreement between the parties, a
court of law, or an arbitrator or an arbitration tribunal may make such order as appears just in respect of the
payment of interest on an unliquidated debt, the rate at which interest shall accrue and the date from which interest
shall run.’

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[222] All the appellants’ claims (save for the declaratory order sought in relation
to the Cape Gannet transaction) are f or liquidated amounts, as the High Court
rightly held. These claims were either quantified in the particulars of claim, or
capable of prompt and speedy ascertainment. 53 Interest which accrues on an
unliquidated debt, ordinarily will be arrear interest. 54 Section 2A(2) (a) of the
Interest Act states that interest runs ‘from date on which payment of the debt is
claimed by the service on the debtor of a demand or summons’. This simply
means that interest which accumulates on an unpaid unliquidated debt will be
arrear interest. It would in any event not be just to award interest from the date of
the loss until final payment in this case. Much of the delay has not been as a result
of any party’s conduct, but rather the ordinary course of litigation.

[223] The appellants, unsurprisingly, have cited no authority for the application
of a bifurcated interest regime. The contention conflicts with the settled rule that
interest only starts running again on a date (where the interest has already reached
the capital) after the date that the judgment debt becomes due and payable. When
Traverso J and Dlodlo J issued their orders, there was no judgment debt against
the respondents that was due and payable.

[224] It follows that any interest payable in terms of s 2 and s 2A of the Interest
Act will be capped by the in duplum rule, as it is arrear interest. The appellants
have not made out a case for the development of the common law.

Contempt of Court
[225] The appellants sought an order declaring that Mr Gihwala, Mr Manala and
the DGFT were in contempt of the February 2016 order; and that they should be
imprisoned for 30 days, alternatively, sentenced to a fine. The High Court found

53 Blakes Maphanga Inc v Outsurance Insurance Co Ltd [2010] ZASCA 19; 2010 (4) SA 232 (SCA); [2010] 3
All SA 383 (SCA) para 15.

All SA 383 (SCA) para 15.
54 Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd [2014] ZASCA 16; [2014] 2 All SA 527 (SCA);
2014 (4) SA 253 (SCA) para 17.

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that the accounting contained a wealth of detail dealing with each paragraph set
out in the order and that the respondents had bona fide attempted to comply with
it. Further, the accounting was sufficient to allow the appellants to pursue their
claims as is evidenced by the particulars of claim which they delivered.

[226] The law on contempt is well -settled. All court orders must be obeyed on
pain of contempt. The appellants bear the onus to prove the existence, service and
breach of the order. Once those requisites are established, wilfulness is presumed
and the burden shifts to the respondents to disprove the element of intention.55

[227] The appellants did not identify the respects in which they contend that the
accounting is deficient and fails to comply with the order. Indeed, the appellants
did not during the course of the examination and cross-examination of the parties’
witnesses address the particular respects in which the Gihwala defendants are
alleged to have breached the February 2016 order. Mr Mawji was asked during
cross-examination to provide particulars of the alleged non-compliance with the
order, but could not do so.

[228] It is hard to see how the Gihwala defendants breached the February 2016
order, let alone that they wilfully defied it. They delivered two sets of
comprehensive accounts pursuant to that order, spanning 395 pages in the case of
the Scharrig investment (including 29 pages of narrations addressing each
individual paragraph of the order), and 301 pages in the case of the Spearhead
investment (containing 31 pages of detailed narration which also addressed each
paragraph of the February 2016 order).


55 Secretary, Judicial Commission of Inquiry into Allegations of State Capture v Zuma and Others [2021] ZACC
18; 2021 (9) BCLR 992 (CC); 2021 (5) 327 (CC) paras 40-43, affirming Fakie NO v CCII Systems (Pty) Ltd 2006
(4) SA 326 (SCA) para 41.

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[229] In addition, Mr Gihwala testified that he did not put together or negotiate
the Scharrig or the Spearhead investments. The Scharrig investment was driven
by Messrs Joffe, Levy and Brett, and the Spearhead investment was put together
by Mr Manala and Mr Brodie.

[230] The appellants’ sole contention concerning the alleged failure by the
Gihwala defendants to comply with the February 2016 order, is that Mr Gihwala
tried to conceal relevant information concerning the Scharrig investment and that
he ‘carried on to the last day to deny in his account the receipt of any additional
Scharrig shares’. But this complaint goes to the accuracy of Mr Gihwala’s
account, not the wilful breach of an order. The very purpose of this stage of the
accounting was to assess its accuracy, to test the correctness of the propositions
contained in the accounting and to determine whether any amounts were
outstanding.

[231] Recognising that they failed to establish a breach of the February 2016
order, the appellants submit that the High Court ought to have had regard to the
respondents’ conduct prior to the February 2016 order, and suggest that they
should be found to be in contempt of the earlier orders of Binns -Ward J and
Dlodlo J. Then it is submitted that there is nothing in the February 2016 order that
precludes Grancy from bringing a contempt application in respect of the non -
compliance with the orders of Binns-Ward J and Dlodlo J.

[232] The short answer to these submissions is that the appellants rely solely on
the February 2016 order for their claim that the respondents should be held in
contempt. That was the case the respondents had to meet. No claim for contempt
of the orders of Binns-Ward J and Dlodlo J is foreshadowed in the particulars of
claim; it was for this reason not traversed in the evidence; and the appellants’
claim for contempt of those orders is therefore impermissible.

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[233] The High Court found that Mr Manala failed to comply with the February
2016 orde r in that he did not furnish an account regarding the Spearhead
investment, as required in terms of paragraph 27.3 of that order. However, the
court held that Mr Manala did not act mala fide or wilfully. He testified that he
genuinely believed that there was no need for him to submit an account; and that
he considered Mr Gihwala’s account to be adequate and had nothing further to
add. The High Court was correct in coming to this conclusion.

[234] For these reasons, the appeal against the High Court’s order declining to
hold the respondents in contempt of the February 2016 order, fails.

Costs
[235] The High Court ordered costs on an attorney and client scale in relation to
the proceedings before Traverso DJP. The respondents submit that this is
erroneous since their c onduct in those proceedings did not warrant a punitive
costs order, and the appellants have not furnished adequate reasons for that order.

[236] In Public Protector v SARB 56 the Constitutional Court affirmed the
principle that an appellate court doe s not lightly interfere with the exercise of a
true discretion, which applies to an award of costs de bonis propriis and costs on
a punitive scale. Interference is warranted only where the discretion is not
exercised judicially; or where it is based on the wrong principle, or upon a wrong
view of the facts; or where it is exercised in the absence of sufficient legal
grounds; or the decision could not reasonably have been reached by a court
properly directing itself to the relevant facts and principles.57

56 [2019] ZACC 29; 2019 (9) BCLR 1113 (CC); 2019 (6) SA 253 (CC).
57 Public Protector v SARB paras 107 and 226.

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[237] The appellants, in reliance upon US Legal Aid Clinic58 submit that the costs
order relating to the proceedings before Traverso DJP should be set aside because
the High Court was influenced by a wrong principle – that there is no distinction
between costs on an attorney and client scale, and costs on an attorney and own
client scale;59 and that the costs order should be replaced by an order on the latter
scale. The submission is unsound. It is clear from the judgment that Wragge AJ
intended to grant an order for costs on an attorney and client scale, and the reasons
for the costs award in paragraphs 1 and 2 of the order dated 12 January 2023,
cannot be faulted.

[238] As regards the costs of the proceedings before Wragge AJ, the appellants
submit that the High Court was wrong not to award punitive costs. They accept
that the court exercised a true discretion and that this Court has limited scope for
interference, but say that it is at large to interfere where the court a quo was
influenced by wrong principles or a misdirection on the facts.

[239] The appellants contend that Wragge AJ failed to take into account the
egregious misconduct by Messrs Gihwala over many years; that Mr Manala
persistently denied the terms of the Spearhead agreement; that there was ‘nothing
benign about the defences’ put up by Mr Manala and Mr Gihwala; and that
Grancy was put to unnecessary cost and expense in litigating this matter over
some two decades. They ask that the costs order of Wragge AJ be replaced with
an order for costs on an attorney and own client scale.

[240] The appellants’ submissions, in effect, come down to this. The respondents
should pay punitive costs simply because of their egregious conduct over many

58 University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and
Others [2016] ZACC 32; 2016 (6) SA 596 (CC); (2016) 37 ILJ 2730 (CC); 2016 (12) BCLR 1535 (CC) para 8

and fn 5.
59 Wragge AJ referred to Aircraft Completions Centre (Pty) Ltd v Rossouw and Others 2004 (1) SA 123 (W) in
which it was doubted whether an order is competent in circumstances other than those where attorneys seek to
recover costs from their own client.

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years, despite the following facts. The respondents were entitled to defend the
claims against them, and the order sought for their imprisonment for contempt of
court. They achieved some success in the High Court.

[241] In these circumstances, it cannot be said that Wragge AJ, in the exercise of
his discretion, could not reasonably have made the c osts order that he did. And
Mr Manala’s claim that the court erred in holding him solely liable for the
appellants’ costs of 6 December 2019, has no merit. Consequently, there is no
basis to interfere with the costs orders in paragraphs 3, 4 and 5 of the High Court’s
order of 12 January 2023.

[242] As to the costs of this appeal, the appellants have achieved substantial
success. There is no reason why costs should not follow the result. By contrast,
the success which the first and fourth to eighth respondents have achieved in their
cross-appeal, is insignificant. The second respondent’s cross -appeal was
unsuccessful, apart from limited success on the issues in which he made common
cause with the Gihwala respondents. Fairness dictates that he should not be held
liable for all the costs of appeal, since his participation in the appeal is limited to
the Spearhead investment.

The order
[243] The order which I make is as follows:
1 The appeal succeeds in part.
2 The order of t he High Court dated 18 August 2021, in relation to the
Spearhead proceedings (WCC case no: 15757/2007), in terms of which it
dismissed the appellants’ claim for the disgorgement of the secret profit made in
respect of the unauthorised investment in Strand Property Investments or Scarlet
Ibis Investments 52 (Pty) Ltd, is set aside and replaced with the following:

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‘The first defendant and the Dines Gihwala Family Trust, and the second
defendant are declared liable, jointly and severally, to pay to the first
plaintiff the sum of R3 million (R3 000 000.00), plus interest thereon at the
rate of 15.5% per annum from 5 April 2007 to date of payment.’
3 Paragraph B1(a) of the High Court’s order dated 18 August 2021, in relation
to the Scharrig proceedings (WCC case no: 10547/2008), is set aside and replaced
with the following:
‘1. The first defendant and the Dines Gihwala Family Trust are declared
liable, jointly and severally, to pay the following to the first plaintiff:
(a) The full economic benefit of one half of the Scharrig additional option
shares, namely 3 679 754 shares at a price of R5.75 per share, minus the
cost of these shares (R2.2918 per share) and any amount to which the first
defendant and the Dines Gihwala Family Trust are entitled in terms of the
Scharrig agreement;
(b) Interest on the amount referred to in paragraph (a) at the rate of 15.5%
per annum from 25 January 2006 to date of payment.’
4 Save as aforesaid, the appeal is dismissed.
5 The first, second, and the fourth to eighth respondents shall pay 50% of the
costs of the appeal, jointly and severally, the one paying the others to be absolved,
which costs shall include the costs of two counsel.
6 The first and fourth to eighth respondents shall p ay 50% of the costs of the
appeal, jointly and severally, the one paying the others to be absolved, which
costs shall include the costs of two counsel.
7 The cross -appeal by the first and the fourth to eighth respondents, is
dismissed with costs, jointly a nd severally, the one paying the others to be
absolved, which costs shall include the costs of two counsel.

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8 The cross-appeal by the second respondent is dismissed with costs, which
costs shall include the costs of two counsel.



_____________________
A SCHIPPERS
JUDGE OF APPEAL

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Appearances:

For appellants: P B Hodes SC and J P V McNally SC
Instructed by: Webber Wentzel, Johannesburg
Symington & De Kok Attorneys, Bloemfontein

For first, fourth to eighth
respondents: L A Rose-Innes SC and G G M Quixley
Instructed by: Adriaans Attorneys, Cape Town
Honey Attorneys Inc, Bloemfontein

For second respondent: C Bollo
Instructed by: Biccari Bollo Mariano Inc, Cape Town
Van Der Merwe & Sorour Attorneys,
Bloemfontein