THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 61/2024
In the matter between:

HARALAMBOS PROKAS N O FIRST APPELLANT
FOTINI PROKAS N O SECOND APPELLANT
PRINIA INVESTMENT CAPITAL (PTY) LTD THIRD APPELLANT

and

ZOVIFLO (PTY) LTD RESPONDENT

Neutral citation: Haralambos Prokas N O and Others v Zoviflo (Pty) Ltd
(61/2024 ) [2025] ZASCA 18 (13 March 2024 )
Coram: MEYER , MATOJANE and KOEN JJA and BLOEM and MODIBA
AJJA
Heard : 19 February 2025
Delivered : 13 March 2025
Summary: Contract – interpretation of – whether Joint Venture Agreement (JVA)
and Nominee Shareholders Agreement (NSA) concluded on the same day are inter-
dependant – formation of contract – offer and acceptance – offer contained in written
document signed by one party – whether revoked before acceptance – whether on
proper application of test in Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd valid JVA and NSA e stablished.

2

ORDER

On appeal from: Gauteng Division of the High Court, Johannesburg (Twala J
sitting as a court of first instance):
1 The appeal is upheld with costs, including the costs of two counsel where so
employed.
2 The order of the high court is set aside and substituted with the following:
‘The application is dismissed with costs, including the costs of two counsel
where so employed .’

JUDGMENT

Koen JA (Meyer and Matojane JJA and Bloem and Mo diba AJJA concurring):

Introduction
[1] This appeal con siders whether the respondent, Zoviflo (Pty) Ltd (Zoviflo) ,
established its claim to ownership of 80% of the issued shareholding in the third
appellant, Prinia Investment Capital (Pty) Ltd (PIC). The Gauteng Division of the
High Court, Johannesburg (the high court) found that it did . It declared Zoviflo to
be the owner of the shares and directed PIC to issue a share certificate to it and to
take all steps to effect registration of its ownership in PIC’s security register. It
directed the first and second appellants, Haralambos Prokas NO (Mr Prokas) and
Fotini Prokas NO, in their capacity as trustees of the Prinia Heritage Trust (the trust) ,
to pay the costs of the application , such costs to include the costs of two counsel .
The appeal is against that order with the leave of this Court.

Zoviflo’s version
[2] In the founding affidavit Mr Jabulani Christopher Mepha (Mr Mepha), who
states that he is the sole director of Zoviflo , alleges that following discussions over


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an extended period involving Mr Prokas, Zoviflo and a Mr Andrea Zissimides (Mr
Zissimides ), a joint business venture was to be created to acquire, maintain, develop,
let and alienate properties, or rights in properties . Although he does not identify the
person who represented Zoviflo, it could only have been a Mr Nic Georgiou (Mr
Georgiou). What was envisaged was that t here would be a holding company with a
wholly owned subsidiary , which would be the administrative hub of the group and
the operating company . It, in turn , would hold shares in various companies hous ing
different projects .

[3] Mr Mepha has no personal knowledge of the discussions but was informed of
the broad outline thereof. He alleges that the parties were advised by an attorney, Mr
Mario Kyriacou (Mr Kyriacou), who had personal knowledge of the discussions. A
confirmatory affidavit by Mr Kyriacou was filed.

[4] Later, to give structure to the venture , a Joint Venture Agreement (the JVA)
and a Nominee Shareholders Agreement ( the NSA) were prepared . Copies of these
documents are annexed to the founding affidavit. The parties to the JVA were the
trust, Zoviflo and ZJ Purchase Assist (Pty) Ltd (ZJ) . ZJ was at all material times
represented by Mr Zissimides. The parties to the NSA were the trust and Zoviflo.

[5] The place where and the date when Mr Mepha’s signature was allegedly
affixed to the JVA and NSA are not recorded on the documents but were left blank.
His signature was also not witnessed . He however alleges that he signed both the
JVA and NSA on behalf of Zoviflo on 26 March 2020.

[6] The JVA bears the signature of Mr Prokas on behalf of the trust. It is dated 9
March 2020 and reflects the place of signature as Rosebank. It bears the signature of
a single witness to his signature , which apparently is that of a Ms Phoebe Malan (Ms


4
Malan) . The copy of the JVA also bears the signature of Mr Zissimides , on behalf
of ZJ. His signature is dated 26 March 2020, and the place of signature is reflected
as Fourways. The signature of Ms Malan similarly appears as the sole witness to his
signa ture.

[7] The copy of the NSA annexed to the founding affidavit bears the signature of
Mr Prokas and Joalette Prokas on behalf of the trust,1 but the place of signature and
the date are left blank. None of the signatures on the NSA is witnessed.

[8] Zoviflo’s application before the high court , in the words of Mr Mepha, ‘in
particular concerns the Nominee Shareholders Agreement’ . The express terms of the
NSA include the following:
‘1. The De Facto Owner is the beneficial owner of ordinary par shares in [PIC] (“the
Company”) representing 80% of the entire issued ordinary share capital of the Company ( “the
Subject Shares”). The Nominee warrants that it is the actual owner of shares, which represent 15%
of the issued share capital in Company.
2 The De Facto Owner does not wish to be reflected in the share register of the Company as the
De Facto Owner of the Subject Shares . To this end, the Nominee has agreed to hold the Subject
Shares as nominee for and on behalf of the De Facto Owner.’2

[9] Further provisions appearing in the NSA include that: the trust acknowledged
that notwithstanding the registration of the shares into its name, it had no beneficial
interest in and to the shares ; the trust would not be entitled to receipt of any dividends
or any other distributions ; the trust confirmed that Zoviflo was the de facto , true and
beneficial owner of the shares ; the trust agreed to deliver to Zoviflo the share

1 The trustees authorised by the Master to act as trustees of the trust are Mr Prokas and his mother, Fotini Prokas, the
second appellant. It does not appear that she had signed any of the agreements. At the time of signature of the NSA it
was wrongly belie ved that Mrs Joalette Prokas, the wife of Mr Prokas had been authorised to act as a trustee, when
she had not. The trust has not raised th e lack of involvement by Mrs Fotini Prokas as a ground to deny the authority
of Mr Prokas to have represented the trust. A copy of the trust deed and who was authorised to represent the trust has
not featured as an issue either before the high court, or in the appeal.
2 The aforesaid two paragraphs are quoted because of the reliance placed upon them by Zoviflo, particularly in
argument.


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certificates in respect of the shares together with a share transfer form duly signed
but blank as to the date and name of the transferee , and authorised Mr Kyriacou to
sign any transfer form of the shares out of the name of the trust . The NSA agreement
constituted the entire agreement between the parties with regard to the matters dealt
with therein and no representation, terms, conditions or warranties express or
implied not contained in the written agreement would be binding on the p arties
thereto.

[10] The terms of the JVA annexed to the founding affidavit include the following :
‘2.1 “the/this Agreement” means this Agreement together with any Annexures hereto;
2.2 “Annexures” means all and any documents attached to and referred to in this Agreement,
the contents of which will be deemed to be incorporated herein;
2.3 “Commencement Date” mean s the date on which the last of the Parties signs this
Agreement;
2.4 “The Holding Structure” means the structure as set out in appendix “A” hereto, which shall
regulate the corporate structure to be utilised to build the Portfolio;
2.5 “the identified Company’s ” mean [PIC], HJA Prinia (Pty) Ltd, Oaktree Investments (Pty)
Ltd, Moxicorp Investments (Pty) Ltd, and HJA Prinia Office Parks (Pty) Ltd ;
2.6 “Joint Venture” means the Joint Venture established in terms of this Agreement for the
express purpose of acquiring and developing the Portfolio as well as any other property which the
Management Committee may from time to time decide is to form part of the Portfolio;
2.7 . . .
2.10 “the Portfolio” means the property portfolio to be built by the JV through the acquisition
of the Identified Company’s, the SPV as well as such other entities as might be acquired to give
effect to this Agreement;
2.11 “SPV” means [PIC] . . . acquired with a view to housing properties acquired or to be
acquired and which will fo rm part of the Portfolio;
2.12 “Participating Interest” means the percentage interest representing an undivided ownership
interest by [the trust], Zoviflo and ZJ, as applicable, in the relevant assets and all property acquired
for the purposes of the Joint Venture;
. . .
3 RECORDAL


6
The Parties record that they jointly wish to initially acquire the Identified Company’s and
subsequently such other entities and properties, as the JV may elect to, for the purpose of building
the Portfolio.
4 . . .
5 HOLDING STRUCTURE
5.1 The Parties hereby agree that the Portfolio will be built in accordance with the Holding
Structure.
5.2 It is agreed that the Participating Interests of the Parties shall be such that their entitlements
shall vest in the SPV as well as each of the Companies , as set out in the Holding Structure
or otherwise, irrespective of the actual registered shareholding .
5.3 The parties undertake to, simultaneously with the conclusion of this Agreement, to:
5.3.1 conclude the Nominated Shareholders Agreement ; and
5.3.2 constitute the Management Committee envisaged in clause 6 below.
6 MANAGEMENT COMMITTEE
6.1 . . .
6.2 The Parties agree that the Management Committee shall comprise of no less than 3
(THREE) directors . . .
7 PARTICIPATING INTEREST
Upon formation of the Joint Venture the Participating Interest of the Parties will be:
7.1 [The trust] – 15% (FIFTEEN PERCENT);
7.2 Zoviflo – 80% (EIGHTY PERCENT);
7.3 ZJ – 5% (FIVE PERCENT).
. . .
13 PROFIT SHARING
The Parties agree that [the trust] will be responsible for providing the financing for all and any
acquisitions undertaken and that once Zoviflo has been reimbursed for the actual reasonable costs
associated with the propert ies provided to enable [the trust] to procure funding and once all
expenses have been paid relating to such acquisitions that all and any profits will be distributed
amongst the Parties in accordance with their respective shareholding.’ (Emphasis added)

[11] The JVA also provided that it is the entire agreement between the parties. No
appendix ‘A’ was annexed to the copy of the JVA . The date on which Mr Mepha


7
supposedly signed the JVA is left blank – which is significant , as it was a term of
the JVA that it would only come into operation on the date on which the last of the
parties signed it . On the evidence of Mr Mepha, this would be on 26 March 2020
which is when he says he signed the JVA and NSA.

The trust ’s version and its contentions
[12] The version advanced by Mr Prokas on behalf of the trust is that the total
issued shareholding in PIC at all material times was wholly owned by the trust. He,
on be half of the trust, had dealings with Mr Geor giou since 2018 with a view to
creating a private property fund as an investment venture (the fund) . The fund would
acquir e various properties , and/or the shares in property owning companies , such as
Moxicorp Investments (Pty) Ltd , Oaktree Investments (Pty) Ltd and HJA Prinia
Office Parks (Pty) Ltd . The shares in these companies would be held by Prinia Asset
Management ( PAM ), a company whol ly owned by PIC.

[13] Mr Zissimides, representing ZJ, became involved in the discussions regarding
the fund during January to March 2019 . By the l ater stages of 2019 , there was still
no formal structure in place to regulate this business venture . It became an issue of
important discussion .

[14] Mr Prokas pressed M r Georgiou for an agreement to reg ularise and formalise
the relationship between Mr Georgiou , the trust and ZJ going forward. Mr Prokas
and Mr Zissimides were in broad terms agreeable to an 80/20 split of the
shareholding in favour of Mr Georgiou , if the latter introduced further
unencumbered properties to the envisaged fund . Mr Georgiou had access to such
properties through his son, Mr Michael Georgiou. As Mr Prokas also wanted Mr
Zissimides to be part of their business dealings going forward , ZJ would acquir e 5%


8
of the shareholding of the company, referred to as the s pecial purpose vehicle , which
would control the fund.

[15] Mr Prokas was subsequently invited by Mr Kyriacou to the latter’s offices
where he was handed a draft of the JVA. That was the first time Mr Prokas saw the
JVA. He had not instructed Mr Kyriacou to prepare any agreement, and he had not
discussed the terms thereof with Mr Kyriacou . He and Mr Georgiou had however
previously discussed using a S pecial Purpose Vehicle ( SPV) to house the envisaged
fund. PIC w as to be that vehicle.

[16] Mr Prokas had never heard of Zoviflo before . Zoviflo was mentioned for the
first time in the JVA. He required more details thereof , including details of its
shareholding and directorship. No mention was made of Mr Mepha . Mr Prokas did
not know of a Mr Mepha at all.

[17] Mr Prokas was dissatisfied with various ter ms of the JVA and very reluctant
to sign it. Mr Kyriacou was however insistent and strongly urged him to sign . Mr
Prokas was at that stage financially exposed via various entities including the trust
to Mr Georgiou for vast sums of money . He was concerned that if he did not sign
the JVA it would create further stumbling blocks in formalising the envisaged
Portfolio and hinder him in realising a return on the money he had invested . His
signature was not witnessed .

[18] Mr Kyriacou made a copy of the JVA signed by Mr Prokas. Thereafter Mr
Prokas left with the original JVA which he had signed . Having expressed his
dissatisfaction with several terms of the proposed JVA, Mr Prokas said he had no
reason to believe that Mr Kyriacou would provide th e copy of the JVA to any other
parties to sign , to create an agreement .


9

[19] Mr Prokas immediately drove to Mr Georgiou’s offices where he confronted
him with the terms of the JVA which did not correctly capture the terms he had
discussed with Mr Georgiou . Mr Prokas viewed the JVA as a working document. At
that stage the JVA had not been signed by any other part y thereto .

[20] The objectionable terms of the proposed JVA included, amongst others : the
inclusion of Oaktree , where as Mr Georgiou had agreed to take Oaktree back and
refund the trust ; and it provided that the parties would be entitled to appoint a director
to the management committee for each 5% participating interest held , which had not
been agreed . Mr Prokas told Mr Georgiou that he was not proceeding with the JVA.

[21] Mr Georgiou assured Mr Prokas that the various objections he had to the JVA
would be ‘sorted out ’. Mr Georgiou promised him that the terms would be revised
to address his concerns . They parted on the basis that Mr Georgiou would revert to
him, as promised .

[22] Mr Prokas was contacted by Mr Zissimides on 26 March 2020 and told that
he had been contacted by Mr Georgiou , who told him that he, Mr Prokas , had signed
the JV A, and that he, Mr Zissimides, should sign as well. Mr Prokas was horrified
to learn that Mr Zissimides had gone to Mr Georgiou’s office in Fourways on 26
March 2022 and signed the JVA. According to the copy of the JVA annexed to the
founding affidavit, both Mr Zissimides’ signature and that of Mr Prokas had
allegedly been witnessed by Ms Malan . Ms Malan h ad not been present when Mr
Prokas signed the JVA in the office of Mr Kyriacou . She could not have witness ed
his signature to the JVA in his presence .



10
[23] Mr Prokas r ecorded the objections and concerns which he had conveyed to
Mr Georgiou in an email addressed to Ms Malan on 30 March 2020 . Ms Malan was
Mr Georgiou’s personal assistant . In the email he requested that various amendments
be affected to the JVA . He also requested that the NSA, referenced in clause 5.2 of
the JVA and required to be concluded simultaneously with the conclusion of the
JVA, be drafted by a lawyer.

[24] Ms Malan responded to Mr and Mrs Prokas and Mr Zissimides per email some
six weeks later on 12 May 2020 . She attached a redrafted JVA (the second JVA) . A
copy thereof is annexed to the answering affidavit of Mr Prokas . It contain s various
amendments including , for example, the omission of Oaktree as an identified
company , as Mr Prokas had required. Ms Malan asked the addressees of her email
to read through t he second JVA a nd confirm that all changes had been made to their
satisfaction. This second JVA was signed by the trust and ZJ at Fourways on 12 May
2020 . No version thereof signed by Zoviflo has been produced . Indeed, the second
JVA was not mentioned in the founding affidavit at all .

[25] None of the terms of the first JVA was carried out and none of the shares was
transferred, nor were any of the properties acquired by PIC as envisaged. Mr Prokas
had never dealt with Mr Mepha. He was never advised of the signature of the NSA
by Zoviflo (or anyone on its behalf) . He learnt of the supposed signature thereof by
Mr Mepha only when the NSA was served on him together with an Anton Pillar
order more than two years later during 2022 . Mr Georgiou did not honour any of his
promises as contemplated in the first JVA and never introduce d further potentially
lucrative properties .

[26] On or about 6 October 2020 Mr Prokas, his wife, and Mr Zissimides met at
Mr Prokas’ home . They passed a resolution , which was signed by all present, that


11
the joint venture contemplated in the second JVA too was, for a variety of reasons,
null and void . The minutes of the meeting to that effect were delivered by Mr Prokas
to Mr Georgiou personally on the same day . He explained to Mr Georgiou that the
trust and ZJ no longer wanted to proceed with the envisaged joint venture fund.

[27] Mr Georgiou at first was somewhat hostile and taken aback but ultimately
conceded to Mr Prokas that the agreement was null and void and that nothing had
come of it . They ‘ left it at that ’.

[28] At that stage neither the first JVA , nor the second JVA , nor the NSA which
was based on the first JVA had been signed , with the result that none of these
agreements had come into existence. From that point onwards Mr Prokas and Mr
Georgiou parted ways . Mr Georgiou thereafter took over the management of the
properties and control led payments to the municipality and service providers .

[29] Mr Georgiou passed away on or about 10 September 2021. After his death,
his son, Mr Michael Georgiou represent ing Zoviflo , attempted to engage with Mr
Prokas regarding ‘the creation of a new closed fund’ . Mr Michael Georgiou at no
point made any mention of Mr Mepha or any other representative of Zoviflo. During
late October 2021 Mr Prokas expressly told Mr M ichael Georgiou that there was no
agreement in placed between his late father, the trust and ZJ.

[30] According to the records filed in the office of the Companies and Intellectual
Property Commission Mr Mepha was appointed as a director of Zoviflo on 20
January 2022. Mr Mepha has however not provide d any evidence as to how and in
what circumstances he was appointed as a director of Zoviflo .



12
[31] Mr Prokas denies that the trust and Zoviflo agreed that Zoviflo would be the
beneficial owner of the shares in PIC independently of the conclusion of a binding
JVA, because the NSA is an ancillary agreement to , and entirely dependent on , the
formation of the joint venture , and that never happened.

[32] The NSA was signed by Mr Prokas and his wife on behalf of the trust .3 This
was at some stage after March 2020 and before May 2020 ( Mr Prokas could not
remember precisely when ). The NSA had , to his knowledge , not been prepared yet
by 30 March 2020. It was only prepared by Mr Kyriacou after March 2020. This
allegation was not pertinently disputed.

[33] Mr Prokas signed the NSA in contemplation of a legally binding and
enforceable JVA, that could be implemented , being concluded . Once concluded and
implemented the trust would in terms of the NSA continue to hold 80% of the shares
in PIC, but beneficially for Mr Georgiou or a company of his . Their rights would
therefore derive from the NSA. But it was always understood that the terms and
conditions of the NSA would require to be concluded together with the JVA being
concluded. The NSA would have no force and effect unless a valid JVA w as
concluded.

[34] The trust and PIC contend that the NSA was inextricably linked to and
dependent on the successful implementation of the JVA and as the JVA was
incomplete and ultimately not implemented, the NSA lapsed and could not be
enforced. Further, that the authenticity and authority of Mr Mepha to sign the
agreements were disputed: as regards authority, that he had not been appointed as a
director of Zoviflo at the time he allegedly signed the NSA, and that no proper basis
was advanced in support of his alternative co ntention that his conclusion of the

3 It was mistakenly believed at the time that she was a trustee of the trust when she had not yet been authorised to act
as a trustee.


13
agreements on behalf of Zoviflo was ratified subsequently. Finally, the trust
contended that the agreements lacked clarity on their enforceability as standalone
contracts, particularly as the parties were still engaged in further negotiations, which
were eventually withdrawn and abandoned.

[35] The trust accordingly contends that as no valid and binding JVA was
concluded, and as a result of it not being implemented, Zoviflo was not entitled to
the relief claimed based on the NSA. The transfer of the shares was entirely
dependent on there being a joint venture in the first place , and it would be linked to
a valid JVA.

In the high court
[36] The high court found : that the NSA and JVA alleged to be concluded on 26
March 2020 were valid ; that there was no merit to the argument that the JVA was
merely a working document; that the JVA was reduced to writing and signed by the
parties concerned; that the failure to successfully conc lude and implement the
addendum to the JVA had no bearing on the NSA ; that the NSA and the JVA were
concluded on the same day; that the y are separate free standing agreements which
meant that the NSA stood independent from the JVA ; that the two agreements were
not interrelated; that the enforceability of the terms of the NSA was unaffected by
the absence of the JVA or the lack of the implementation thereof ; and that the
contention that Mr Mepha was not authorised to have concluded the NSA and JVA
was without merit .

The issues
[37] The following issues arise for determination :
(a) whether the NSA was enforceable independent ly of the conclusion and
implementation of the JVA ;


14
(b) whether , assuming that they were inter dependent , a binding and enforceable
JVA was nevertheless concluded and implemented , and ancillary thereto,
whether the NSA was validly concluded ; and
(c) whether the alleged conclusion of the NSA and JVA by Mr Mepha on behalf
of Zoviflo was properly authorised.

Discussion
[38] It is important at the outset to be reminded what evidence the high court should
have had regard to. Mr Mepha was not a party to the original discussions. He has not
stated when and how he became associated with Zoviflo , other than that he is now
its sole director . Nor has he disclosed when he gained personal knowledge of the
fund, the workings thereof , and when and how he came into possession of copies of
the JVA and NSA signed by Mr Prokas , which he then signed . To the extent that he
dealt with factual issues not within his personal knowledge, his evidence constitutes
inadmissible hearsay except to the extent confirmed by a person with personal
knowledge of the events.

[39] But even to the extent that h is evidence is confirmed by others , or was based
on his personal experience , where disputed , the version of the trust and PIC must
prevail in accordance with the trite principles established in Plascon -Evans Paints
(Pty) Ltd v Van Riebeeck Paints (Plascon -Evans ).4 Zoviflo had elected to argue the
matter on the affidavits. Motion proceedings resolve disputes on common cause
facts. Where the facts are not common cause, they cannot be resolved on
probabilities.5


4 Plascon -Evans Paints (Pty) Ltd v Van Riebeeck Paints 1984 (3) SA 623 (A).
5 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR 361
(SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) para 26 .


15
[40] Turning then to the issues that have been identified for determination, I deal
first with the issue of the interdependence of the NSA and the JVA based on the
assumption that they are valid and binding agreements . I do so for reasons of
convenience, as Zoviflo pursued the relief which was granted by the high court ‘in
particular’ based on the NSA as a free -standing agreement . It is only if the NSA is
not enforceable as a separate agreement, that the validity of the JVA , which Zoviflo
argued was concluded an d implemented, would arise . In that context too , certain
conclusions will be expressed as to the existence and validity of the NSA, which
would provide an additional basis upon which the appeal should succeed. If the
conclusions reached on the first two issues dispose of the appeal, then the third issue
relating to the authority of Mr Mepha would only be of academic interest,
unnecessary to decide, and it will not be considered in this judgment .

Is the NSA independent o f the conclusion of the JVA ?
[41] The case presented by Zoviflo, which the trust and PIC had to meet, was that
it had concluded two valid, binding and legally enforceable agreements , namely the
JVA and NSA on 26 March 2020. It was however with ‘primary reliance ’ on the
NSA , as a separate self -standing agreement , that Zoviflo sought to claim the transfer
of the shareholding . It relie d on the wording of the NSA which has already been
alluded to in more detail above , for its contention that it is the de facto beneficial
owner of 80% of the p ar shares in PIC . It place s much reliance on the provision of
the NSA that it constitutes the entire agreement between the parties with regard to
the matters dealt with therein and that no representations, terms, conditions or
warranties express or implied not contained in the agreement would be binding on
the parties. It relies inter alia on Sonarep SA (Pty) Ltd v Motorcraft (Pty) Ltd6 and
Alfred McAlpine and Son (Pty) Ltd v Transvaal Provincial Administration .7


6 Sonarep SA (Pty) Ltd v Motorcraft (Pty) Ltd 1981 (1) SA 889 (N).
7 Alfred McAlpine and Son (Pty) Ltd v Transvaal Provincial Administration 1977 (4) SA 310 (T) at 328E.


16
[42] The version of the trust which is to the effect that the two agreements were
interlinked and interdependent has also been detailed above . The JVA expressly
required the simultaneous conclusion of the NSA and the provisions of the two
agreements show an interdependence in that the NSA owes its existence to the
conclusion and implementation of the JVA, without which it had no purpose.

[43] The issue of whether the NSA and JVA would be interrelated depends on an
interpretation of the two agreements. That r equires that regard be had holistically to
the text, context and purpose of the agreement s.8 Interpretation begins with the text
and its structure , which have a gravitational pull that is important. Context is crucial ,
and together with purpose may be used to elucidate the text.9 The language used
should not be overridden by extraneous contextual factors , unless ambiguity exists.
A contrario (to the contrary) where ambiguity exists , regard should plainly be had
to the context.

[44] Our courts, as explained in The City of Tshwane Metropolitan Municipality v
Blair Atholl Homeowners Association ,10 have navigated away from a restrictive
narrow peering at words and considering words in a document in isolation . They
have , correctly , stressed that a restrictive consideration of words without regard to
context is to be avoided . Following from this, and as an inevitable corollary, the
distinction between context and background circumstances has been jettisoned.

[45] Examining firstly the express wording of the documents : The JVA expressly
requir ed the simultaneous conclusion of the NSA . It defined the ‘agreement ’ to
include the annexures, and annexures to include documents referred to therein . It

8 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13 ; [2012] 2 All SA 262 (SCA); 2012
(4) SA 593 (SCA) para 18.
9 Capitec Bank Holdings Ltd v Coral Lagoon Ltd [2021] ZASCA 99; [2021] 3 All SA 647 (SCA); 2022 (1) SA 100
(SCA).
10 The City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners Association [2018] ZASCA 176; [2019]
1 All SA 291 (SCA); 2019 (3) SA 398 (SCA) para 61 .


17
further deemed the contents of the NSA , being a document referred to in the JVA,
to be incorporated in to the JVA.

[46] Those provisions alone would make the contractual arrangement governing
the establishment and conduct of the joint venture, although physically embodied in
two documents, a single all-encompassing agreement . It is difficult to envisage
agreements ostensibly dealing with different subject matter becoming and being
more interdependent and forming a single wholly contained vinculum, than the terms
of the one being expressly incorporated into the other. The deem ed provision s will
impose aspects of reciprocity in respect of the parties’ agr eement. Being deemed to
be incorporated into the JVA , any failure or material breach of the terms of the JVA
would impact on the deemed conjoined agreement .

[47] The JVA and N SA are expressly and inextricably linked by the wording of
not only clause 5.2 and 2.2 of the JVA, but also contextually and purposefully , based
on the evidence of Mr Prokas . Mr Mepha was in no position to contradict the
evidence of Mr Prokas . Various other provisions also demonstrably point to their
interdependence, which must be viewed in the light of the parties ’ intention and the
context overall .11

[48] At worst for the trust, contrary to what is set out above, it might be contended
that the wording of the two agreements is vague and does not make it clear whether
they are interdependent. Such a vagueness would permit and indeed require that
extraneous contextual factors be taken into account to remove any such ambiguity .12


11 Novartis SA (P ty) Ltd v Maphil (Pty) Ltd [2015] ZASCA 111; 2016 (1) SA 518 (SCA); [2015] 4 All SA 417 (SCA).
12 Capitec Bank Holdings Ltd v Coral Lagoon Ltd [2021] ZASCA 99; [2021] 3 All SA 647 (SCA); 2022 (1) SA 100
(SCA).


18
[49] Although the separate JVA and NSA documents sought to address different
aspects , they relate to the same prospective purpose , namely shareholding in and
establishing the corporate structure which was to acquir e and develop the Portfolio.
If it was not for the JVA , having as its purpose to build up the Portfolio , there would
be no reason and purpose for the NSA to be concluded.13

[50] It was never contemplated that the parties wanted to hold shares in PIC, with
an 80:15:5 shareholder split , merely for the sake of creating a corporate structure in
isolation. PIC already existed with the trust as its sole shareholder. It would continue
to do so in that form, if there was no JVA. The shareholding w as to be changed
simply to accommodate the aspirations to be achieved in PIC implementing the joint
venture.

[51] The two agreements were clearly interdependent. Without the joint venture
there would be no purpose to have a special purpose vehicle , that is PIC, to
administer the Portfolio.

[52] More significantly, ex facie the JVA , the undivided ownership of the parties
in and to the relevant assets and property to be acquired, would not necessarily
follow the shareholding split provided in the NSA. It was to be regulated by their
participating interest. Without the JVA there would be no agreement on the
Participating Interest of the trust, Zoviflo and ZJ . The provisions of the JVA in this
regard accordingly potentially modified the consequence that one might expect if
only the NSA was to be imple mented. The concept of a participating interest is a
matter of importance because it would determine the undivided ownership shares of
the parties in the relevant assets and all property acquired for the purposes of the
joint venture .

13 Cf Cash Converters Southern Africa (Pty) Ltd v Rosebud Western Province Franchise (Pty) Ltd 2002 (5) SA 494 .


19

[53] The percentage shareholdings in PIC , as partially regulated in terms of the
NSA , would also not afford carte blanche to the shareholders to utilize any corporate
structure , as might normally be the prerogative of shareholders through the ir elected
directors to decide , and which would apply if the NSA was an entirely separate
instrument . The corporate structure to be adopted by PIC was not what the
shareholders would determine, but would be the Holding Structure, as defined in the
JVA and set out in what should have been appendix ‘A’ thereto .

[54] The fact that appendix ‘A’ was not annexed makes the JVA incomplete . But
more significantly in the present context is that it does not remove the fact that the
corporate structure in PIC was prescribed (or to be prescribed) and imposed on PIC.
The parties intended that the NSA had to be applied subject to, or dependent on these
provisions of the JVA.

[55] If there is no valid JVA then the common underlying assumption on the basis
of which the parties contracted with each other fell away. Consensus on all the terms
of their agreement would be lacking, and the NSA c ould not be enforced separately .

[56] Without a binding and enforceable JVA for the express purpose of acquiring
and developing the Portfolio , as well as any other property which the Management
Committee may from time to time decide to form part of the Portfolio, there would
be no need for an SPV, or to regulate the shareholding in PIC . The conclusion of a
valid NSA was an imperative only in relation to the conclusion of a valid JVA.
Absent a valid and binding JVA, there is no need for the NSA. It is the successful
simultaneous conclusion of a valid and binding JVA and NSA that was contemplated
and which the parties intended .



20
[57] The NSA also sought to preclude the trust from disclosing trade secrets of
PIC. Having regard to the range of potential trade secrets listed ,14 these could only
arise on the conclusion and implementation of a binding and enforceable JVA. That
too points to the two agreements being interdependent and inextricable linked.

[58] To seek to enforce the one agreement when the other has failed would be
unconscionable and contrary to what the purpose of the agreements had been in the
context in which they were negotiated.

Was a valid and binding JVA concluded
[59] Accepting that the NSA and JVA are inter -linked, and that the NSA cannot be
enforced unless there was a valid and binding JVA , the issue for determination
becomes whether a valid and binding JVA was nevertheless concluded . Zoviflo
maintains that the first JVA was legally valid and binding, and that it was
implemented.

[60] The issue is not whether whatever joint endeavou r Mr Georgiou and the trust
might have pursued prior to the preparation of the JVA, even if it was anticipated
that they might become part of the Portfolio contemplated in the JVA, had been
implemented. The issue is whether the first JVA relied upon by Zoviflo , which was
to have led to the creation of the Portfolio , was concluded . In answering that question
the version of the trust again must prevail wherever there are material factual
dispute s.

[61] The NSA and JVA do not reflect the date on which Mr Mepha allegedly
signed them. He has alleged that both were signed by him on 26 March 2020 . If that

14 The secrets listed relat ed to customers, contractual arrangements, financial relationships, financial details, names of
prospective clients, financial structures and operating results and remuneration paid to employees , all only capable of
arising from the implementation of the JVA.


21
is so, then Mr Mepha’s signature would be the last to complete all the signatures to
the two agreements. If both the N SA and JVA were finally signed and thus
concluded on the same day, the contemporaneity requirement in clause 5.2 of the
JVA would ostensibly be satisfied. But the NSA and JVA could not have been signed
by Mr Mepha on 26 March 2020.

[62] Mr Mepha could not have signed the original of the first JVA , because it was
in the possession of Mr Prokas who had removed it with him when he left the office
of Mr Kryciou. The uncontroverted evidence of Mr Prokas was that he viewed the
JVA he had signed after pressure from Mr Kryciou, as a work in progress . It was n ot
signed with the intention for the trust to be bound by its terms.

[63] But even a ssuming, on the basis of caveat subscriptor (let the signer beware) ,
that Mr Prokas’ signature to the first JVA should be construed as binding the trust15
to the terms contained in the first JVA, the JVA thus signed simply contained an
offer , being the terms on which the trust would be prepared to contract with Zoviflo
and ZJ. Th at offer could be revoked , in accordance with general contractual
principles, at any stage prior to acceptance , by the revocation being conveyed to the
offeree, in this instance Mr Georgiou representing himself and Zoviflo.

[64] Mr Prokas did revoke the offer contained in the first JVA before any other
party could have signed it . After leaving Mr Kryciou’s office he met with and made
it clear to Mr Georgiou that he was not happy with its terms. Only Mr Georgiou
could have represented Zoviflo at that stage. Represented as such, Zoviflo agreed
that the terms of the JVA would still be ‘sorted out ’. Neither Zoviflo nor ZJ , at that
stage, had accepted the JVA. The offer in the first JVA signed by Mr Prokas could

15 Whether Mr Prokas as one of two co -trustees of the trust , acting alone where the other trustee had not signed,
depending on the terms of the trust deed could bind the trust has not been considered. Any possible lack of authority
to bind the trust was not raised and has not been considered.


22
therefore be revoked and his conduct is consistent only with it having been revoked
and it being understood to be revoked . There was nothing left which was capable of
acceptance by Zoviflo , or Mr Mepha on its behalf . Up to t hat stage t here had been
absolutely no involvement by Mr Mepha. Mr Prokas did not even know of his
existence. And this has not been disputed.

[65] The subsequent conduct of the parties is also consistent with the offer
contained in the first JVA having been revoked and an acceptance by Zoviflo that
the first JVA could no longer g ive rise to a binding agreement on the terms contained
therein . Consistent with his attitude that the terms of the first JVA were
unacceptable, not open for acceptance and still needed be revised and agreed, Mr
Prokas on 30 March 2020 , four days after the NSA and JVA on Zoviflo’s version
had allegedly been signed by Mr Mepha supposedly giving rise to enforceable
agreements, sent an email to Ms Malan raising the various points of objection he had
raised with Mr Georgiou. In addition , he requested that the nominee shareholders
agreement referred to in the JVA be drafted by a lawyer. That is consistent with Mr
Prokas’ direct evidence that at that stage no JVA had been concluded, and the NSA
did not exist. As the NSA still had to be drafted, as requested on 30 March 2020, it
could not possibly have been signed by Mr Mepha on 26 March 2020.

[66] Mr Prokas stated that he could not remember exactly when but admits that he
and his wife (the latter erroneously) signed the NSA after March 2020, ( which would
be consistent with the contents of his email of 30 March 2020) and before May 2020 .
That is the best he could recollect. He explained why they had signed. It was in
contemplation of a valid and acceptable JVA being concluded. That is what Mr
Georgiou had undertaken would happen. It has not been suggested, that when Mr
Prokas signed the NSA, it had al ready been signed by Mr Mepha. Mr Mepha would
still have to sign the NSA.


23

[67] If the JVA and NSA had been signed by 26 March 2020 , as alleged by Mr
Mepha, then on e would have expected Ms Malan and Mr Georgiou on receiving the
email of 30 March 2020 to have responded that the offer in the JVA signed by Mr
Prokas was still considered as a valid and extant offer , that i t had not been revoked ,
and more importantly: that the first JVA had been accepted by Mr Mepha four days
earlier by signing th e JVA ; that a NSA had previously been prepared (and signed by
Mr P rokas and his wife) ; that there accordingly was no need to have an NSA
prepared b y an attorney ; and that the NSA had already been duly signed by Mr
Mepha on behalf of Zoviflo on 26 March 2020 .

[68] After all, apart from being Mr Georgiou’s assistant and no doubt acting on his
instructions, on Zoviflo’s version , Ms Malan had allegedly witnessed the signatures
of Mr Prokas on behalf of the trust and Mr Zissimides on behalf of ZJ on 9 March
2020 and 26 March 2020 respectively. Her immediate and expected response would
have been that the a greements were complete , having been signed by all the parties
thereto four days before the email . But that was not her response.

[69] Instead, consistent with the trust’s version , Mr Georgiou and Ms Malan
entertained Mr Prokas’ objections to the JVA . On 12 May 2020, almost six weeks
after Mr Prokas’ email, Ms Mala n replied per email, attaching a revised JVA,
referred to as the second JVA in the answering affidavit . The email read:
‘Guys, Please read through this again and confirm that all changes as discussed was made to your
satisfaction. Once everyone confirms, we can print and get it signed .’ (My emphasis .)

[70] Plainly, not only had it become accepted that whatever offer by the trust
contained in the first JVA signed by Mr Prokas had been revoked and was no longer
open for acceptance, but the re was a further or counteroffer contained in the second
JVA. The second JVA which was sent under cover of Ms Malan’s email of 12 May


24
2020 varied the terms of the first JVA. Although signed su bsequently by the trust
and ZJ, the second JVA was never signed by Zoviflo . It remains incomplete and
unenforceable . Zoviflo did not even refer to it in its founding affidavit.

[71] Whatever offer s to conclude any JVA and NSA that might still have existed ,
were finally revoked by the resolution adopted by the trust and ZJ on 6 October 2020
that the joint venture would not be proceeded with. This decision was delivered and
communicated to Mr Georgiou. Mr Prokas’ evidence was that on 6 October 2020
the first JVA, the second JVA and the NSA had not been signed with the result that
not only had the JVA not come into existence, but the NSA had also not come into
existence .

[72] When the resolution of th at meeting was communicated to Mr Georgiou, he
conceded to Mr Prokas that the agreement was null and void , and that nothing had
come of it . It was left at that . It is not surprising then that Zoviflo contends that ‘[t]he
present application in particular concerns the Nominee Shareholder’s Agreement’ .
That is because th ere is no binding JVA (and indeed also no valid NSA) . Mr Mep ha’s
version that the JVA and the NSA had been signed by him on 26 March 2020 falls
to be rejected .

[73] Again, Mr Prokas’ evidence that Mr Georgiou accepted , having received the
resolution of 6 October 2020 from him, that the agreements had all come to an end,
is supported by the subsequent conduct of Mr Georgiou . Mr Georgiou took no steps
to enforce any of the agreements during the remainder of his life . On the contrary,
Mr Georgiou took over the management of the properties and had control over the
payments due to the municipality and service providers in respect thereof , as if there
was no joint venture . This is further indicative of the fact that the joint venture had
failed.


25

[74] Mr Mepha would not have known that Mr Georgiou, after October 2020 had
accepted that the entire deal was off. The signing of the incomplete NSA and JVA ,
signed by the other parties , but not by Zoviflo because the offers contained therein
had be come withdrawn, was opportunistic of Zoviflo and/or Mr Mepha or the person
at whose behest Mr Mepha appended his signature. It sought to isolate and enforce
the terms of the NSA without any regard to the terms of the JVA , the context and
the interdependence of the NSA and the JVA , and the dealings the parties had .

[75] To summari se, Zoviflo has not established that there was a valid NSA or JVA
which could be enforce d. Accordingly, it is not necessary to consider the only
remaining issue being Mr Mepha’s authority to have signed the agreements on behalf
of Zoviflo at the time when he alleged he did so.

The alternative argument
[76] Mr Louw SC , on behalf of Zoviflo , maintained that the appeal fell to be
dismissed on an alternative basis. He argued that Zoviflo owned the 80% shares even
prior to any of the agreements being signed , and that the NSA recognised that the
shareholding was owned by Zoviflo . Thus, Zoviflo always was and remained the
true owner of the shares and as no formalities , such as a share certificate or document
evidencing rights of ownership is required ,16 if the JVA and/or the NSA are invalid ,
Zoviflo’s ownership remained. It was therefore simply vindicating its shares.

[77] That argument cannot succeed. Zoviflo has provided no factual basis for its
contention that it had already become the owner of the 80% shares before the NSA
was purportedly concluded. The acknowledge ment in the NSA that Zoviflo was the
de facto and beneficial owner is insufficient to discharge the onus of establishing

16 Standard Bank of SA Ltd and Another v Ocean Commodities Inc and Others 1980 (2) SA 175 (T).


26
ownership. Ownership is a conclusion of law and is not established by a mere
assertion but by pleadings the facts to establish ownership .

[78] The basis for ownership advanced in support of this alternative argument was
also not the basis on which the delivery of the shares was claimed . Further, the
version of the trust, which must prevail, is that the shares in PIC were held and
owned by the trust. But mo st significantly , the argument that Zoviflo before the
conclusion of the NSA was already vested with the ownership of the shares , and that
the NSA acknowledged that as a fact, contradicts the direct evidence of Mr Mepha.

[79] Mr Mepha stated under oath that Zovifl o is ‘the holder’ of 80% of the issued
shares of PIC, on the basis that ‘this position has obtained since the parties
concluded the [NSA ] in that the shares, being personal rights of the Trust against
[PIC] were there and then ceded to Zoviflo ’. (Emph asis added) On its own version,
Zoviflo thus claim s its right of ownership on the strength of the NSA and if it has
any rights of ownership these could only be derived from the NSA ,17 not any
antecedent transaction. This is also consistent with Mr Mepha’s statement elsewhere
that ‘[the NSA] read with the [JVA] moreover contemplates the registration of
Zoviflo as shareholder to the value of 80% in PAM and the special purpose vehicles,
the subsidiaries of PAM’ . (Emphasis added .)

[80] At best for Zoviflo, it was the NSA which contemplated delivery of ownership
of the shares by some form of delivery, possibly constitutum possessorium , meaning
that 80% of the shares owned and until then held by the trust would , in terms of the
NSA , thereafter continue to be held by the trust , but henceforth as nominee of
Zoviflo as the true owner.


17 Ownership of shares involves rights that may be ceded or held beneficially without registration – Standard Bank of
Southern Africa Limited v Ocean Commodities Inc 1983 (1) SA 276 (A) at 180H.


27
[81] It is not necessary to consider this alternative argument further. As the
entitlement to ownership of the shares would , on Zoviflo’s version , derive from the
NSA, absent a valid NSA, Zoviflo ha d not established that it is the owner of the 80%
shares.

Conclusion
[82] The appeal accordingly succeeds . The costs of the appeal must follow the
result of the appeal . The high court should have dismissed Zoviflo’s application with
costs. Both sides employed two counsel. It is appropriate that the costs orders include
the costs of two counsel where so employed .

[83] The following order is granted:
1 The appeal is upheld with costs, including the costs of two counsel where so
employed.
2 The order of the high court is set aside and substituted with the following:
‘The application is dismissed with costs, including the costs of two counsel
where so employed .’




__________________________
P A KOEN
JUDGE OF APPEAL






28
Appearances

For the appellant: M P van der Merwe SC (with him C Skerp)
Instructed by: Couzyn Hertzog & Horak, Johannesburg
Van der Merwe & Sorour, Bloemfontein

For the respondent: P F Louw SC
Instructed by: Mayet & Associates Inc., Johannesburg
Mayet & Associates Inc., Bloemfontein.