SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case Number: 2024 -085397
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: YES
(3) REVISED.
DATE : 2025 -04-23
SIGNATURE:
In the matter between:
IBEX INVESTMENT HOLDINGS LIMITED First Applicant
SIHPL PROPRIETARY LIMITED Second Applicant
SAHPL PROPRIETARY LIMITED Third Applicant
IBEX RSA HOLDCO LIMITED Fourth Applicant
AINSLEY HOLDINGS PROPRIETARY LIMITED Fifth Applicant
and
THE SOUTH AFRICAN RESERVE BANK First Respondent
LESETJA KGANYAGO N.O. Second Respondent
NOMFUNDO TSHAZIBANA N.O. Third Respondent
TSUMBEDZO CHARLES NEVHUTANDA N.O. Fourth Respondent
DION NANNOOLAL N.O. Fifth Respondent
THE MINISTER OF FINANCE Sixth Respondent
FIRSTRAND BANK LIMITED Seventh Respondent
THE STANDARD BANK OF SOUTH AFRICA LIMITED Eighth Respondent
This judgment was prepared and authored by the Judge whose name is reflected
and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for handing down is deemed to be 23 April 2025.
JUDGMENT
POTTERILL J
[1] The applicants, to whom I for ease of reference will collectively refer to as
Ibex Investment Hol dings [Ibex], the successor company of Steinhoff International
Holdings N.V. [Steinhoff] has for 7 years through restructuring and settlements
attempted to minimise the extreme harm caused by Steinhoff that was exposed in
December 2017. The first to fifth respondents to whom I collectively will refer to as
the South African Reserve Bank [SARB] approved, where necessary, the
externalisation of funds for purposes of restructuring or paying stakeholders outside
of South Africa. The seventh respondent, FirstRan d Bank Limited [FirstRand] and
the eight respondent, The Standard Bank of South Africa Limited [Standard Bank]
are authorised dealers to deal in foreign exchange and Ibex is required to deal with
the SARB through these dealers pertaining to the exchange co ntrol applications. No
relief is sought against them and they did not participate in the proceedings. The
sixth respondent, the Minister of Finance, did not participate in the proceedings.
[2] Ibex sought permission for foreign exchange payments from the SARB
referred to as the 0443 application [0443]. The purpose of the 0443 was summarised
as "Permission to expatriate funds received in future by the Ibex group in respect of
South Africa assets to settle foreign commitments as previously authorised." The
purpose of 0443 was to implement Ibex's obligation to implement a restructuring plan.
The transactions contemplated in the WHOA Restructuring Plan [the Netherlands
settlement] were submitted to the Reserve Bank as part of obtaining approval for the
delisti ng of SIHNV form the JSE in 2023. In order to implement the WHOA Ibex
needed to expropriate funds. The detail of how this would be achieved was depicted
as a flow diagram using the face value of the various loans, the relationship between
the Topco, RSA Ho ldco, Ibex Investments, SIHPL, SAHPL, Newco 2A, the Newco2A
Loan, the RSA Holdco Loan, the Ibex Investments Loan, the S133 Settlement loan,
the Titan Receivable and the South African Assets and the flow of the funds were set
out in 0443. The SARB approved Payments 1 -5 as the 0433 in April 2024.
[3] The primary asset of Ibex is its shareholding in Pepkor Holdings Limited
[Pepkor]. Ibex would realise from the sales of this shareholding funds and these
funds would be transferred within the Ibex Group to SIHPL and Ibex Investments to
pay its financial creditors in the 0443.
[4] On 11 April 2024 the SARB authorised the payments as requested as follows:
Payment 1: EUR 212,486,869 under loan reference number 1[...] for the
Newco2A loan note
Payment 2: EUR 122 million under loan reference 1[...]2 under the RSA
Holdco loan note
Payment 3: EUR 473,778,870[ amount could vary] under loan reference
number 1[...]3 payment of the section 155 settlement note;
Payment 4: EUR 1,632,287,754 as a dividend payment to RSA Holdco
Limited, but this amount could vary dependant on the Pepkor share pr ice,
operating expenses and the Rand/Euro exchange rate;
Payment 5: "With regard to the request to settle the remaining obligations of
SIHPL Proprietary Limited (SIHPL), including for example the S155
Settlement Note without further reference to the South African Reserve Bank
(SARB)(except for reporting on a quarterly basis), we note that this amount is
included in payment 3 above of EUR473 778 870 with the Titan Receivable,
valued at 2024 -01-31 determined at EUR 65 900 362 of the EUR 65 900 362
of the EUR 473 778 870. Kindly note that such remaining obligations are to be
placed on record with the Financial Surveillance Department and that prior
written approval be obtained as and when SIHPL intends to implement
settlement of same.
Furthermore, it should b e noted that the payments now approved above may
not be made by utilising any of the blocked funds,
Finally, we require to be updated on the processes and external payments as
and when same are being implemented, during the entire period."
[5] After the SARB gave 0443 approval for payment to be made in terms of 0433
Ibex realised funds by selling 500 million Pepkor shares in a process followed on 24
and 25 June 2024, raising ZAR 9 billion. Ibex had approached investment banks to
on behalf of Ibex ensure t he shares are sold in a commercial window to realise the
best price. The investment banks did this through an accredited book build. The
SARB was informed of this sale. Ibex consequently requested FirstRand and
Standard Bank to make the payments in terms o f the approved 0443.
[6] On 26 June 2024 FirstRand informed Ibex that it may not make any payments
under 0433 without further permission from the SARB. It was also conveyed that the
SARB sought a summary of the planned payments. It is common cause the SAR B
had at the time that approval was sought been provided with extensive detail of the
planned payments. Ibex on the same day provided such summary. On 28 June 2024
Standard Bank informed Ibex it could not proceed with any payments as the SARB
had queried t ypographical errors in the 0433. These typographical errors had been
corrected on 23 April 2024 via FirstRand. There was incorrectly referred to "sections
83B(ii) and (vi) of the Authorised Dealers Manual" instead of 83(B)(ii) and l.3(B)(vi) of
the Authori sed Dealers Manual.
[7] On 2 July 2024, the day that the majority of the payments were to be made to
the expectant offshore recipients FirstRand informed Ibex that the SARB had
instructed it not to make payments and sought information detailing the source s of
the funds to be externalised, financial statements, as well as information on the
identities of the purchasers of the Pepkor shares. This information had to be supplied
on the same day, 3 July before close of business. Ibex complied and provided the
information to FirstRand on 3 and 4 July 2024.
[8] Ibex on 8 and 16 July 2024 by means of letters set out the prejudice it was
suffering by being hindered to make the payments in terms of the approved 0443
and that the actions of SARB would force Ibex to a pproach a court for relief. The
SARB's attorneys answered that Ibex had not sufficiently informed the SARB of the
implementation of the 0443 Approvals; the sale of the Pepkor shares needed specific
approval and the funds that were being expatriated were in nature capital that
required specific approval from the SARB. It is common cause that not one of these
reasons are now submitted as reasons for the prohibition of the withdrawal of funds
in SARB's answering affidavit to this application.
[9] On 25 July 2 024 the attorneys for the SARB attached blocking orders issued
by the SARB as a "response" to Ibex's communications. Three sets of blocking
orders over funds in Ibex's accounts were issued in terms of Regulation 22A(1)
and/or 22C(2):
R53,105,570.19 in res pect of Ainsley;
R572,554,084.02 in respect of SAHPL;
R3,075,213,477.00 in respect of Ibex in respect of Ibex Investment;
RS,497,686,532 in respect of SIHPL.
[10] Ibex then launched this application on an urgent basis in a nutshell seeking a
review, a declaration of invalidity and setting aside of the decisions of the SARB
under Regulation 22 A(1) and/or 22C(2) of the Exchange Control Regulations
[Regulations] of the prohibition of the withdrawal of fun ds in the accounts standing to
the credit of Ibex for the payments as approved in 0443. Furthermore, that the
blocking orders be lifted. The other relief sought will be addressed later on in the
judgment. This application will be referenced as the "main ap plication."
[11] Pursuant to a meeting held between the legal representatives of the parties a
settlement agreement was reached that was made an order of court on 19
September 2024. The settlement agreement provided that the payments in terms of
Payments 1 and 2 of 0443 be settled in full. In terms of payment 3 of 0443 a
substantial portion could be implemented but not in its entirety. In terms of payment
4 of 0443 ZAR 3,075,200.000 could be paid but not the balance of EUR 1,63 billion.
[12] The settlemen t agreement provided that the blocking orders issued to Ainsley,
Ibex Investment and SIHPL be uplifted. The settlement agreement also provided that
certain funds held by SAHPL in the blocked account be released, but that an amount
of R200 million plus accr ued interest would remain blocked in the SAHPL account. In
clause 13 it is recorded that "The Reserve Bank shall not issue any further
attachment or blocking orders in terms of Regulation 22A or Regulation 22C of the
Regulations in respect of the funds rel eased from the Blocking Orders in terms of
this Agreement and which shall be used for purposes of making payments in
accordance with this Agreement."
[13] Only during counsel's argument on behalf of the SARB was the concession
made that payment 3 could b e settled as worded in 04333, i.e. the amount is subject
to variability and that the anomaly between the wording in 04333 and the settlement
can be settled as the wording as set out in 04333. There is accordingly no further
dispute pertaining to payment 3 of 0443.
[14] The SARB filed a counterclaim to the main application. In a self -review it is
seeking this Court to review, declare invalid and set aside the permission(s) granted
on 11 April 2024 by Mr Johan Kruger [Kruger], a functionary of the Financial
Surveillance Department [FinSurv] of the SARB pursuant to the submission by
FirstRand Bank of 0433. Alternatively, reviewing, declaring invalid and setting aside
of the permission granted in respect of Payment 4 in the 0433 approval. The basis
for this rel ief is that Kruger did not have the authority to grant permission for 0433.
The counterclaim is to be read as the defence to the main application.
Lack of authority
[15] I find it prudent to first address the issue of the lack of authority of Kruger.
This is simply so because this is also the sole defence raised to the issue of payment
4 in the main application. I also entertain it as the alternative to prayer 1 as set out in
prayer 2 of the counterclaim because payments 1 -3 of 0433 are moot.
[16] I star t of by setting out the relevant Regulations. The Regulations [GNR.1111
of 1 December 1961] made under the Currency and Exchanges Act,1933 sets out
the default position that no foreign exchange transaction may be entered into except
with the permission of Treasury. In terms of Regulation 22 E(1) of the Regulations
the Minister of Finance may delegate any power or function conferred upon the
Treasury under the Regulations to any person. In terms of a delegation dated 29
March 2023 the Minister of Finance del egated as follows:
"2. All powers and functions conferred, and duties imposed on the Treasury
by Regulations 22A(1)(c),22A(2),22A(3),22B,22C(1),22C(3) and 220 to -
2.1 the Head of the Financial Surveillance Department of the South African
Reserve Bank;
2.2 a Divisional Head of the Financial Surveillance Department of the Bank;
or
2.3 any official of the Bank who in terms of the internal rules or
authorisations, or both of the Financial Surveillance Department of the Bank is
an authorised signatory of the Financial Surveillance Department of the
Bank ... "
[17] The SARB has internal rules contained in a document titled "Limits for signing
official s for the period 2024 -04-01 to 2025 -03-21". It is marked confidential and it is
thus common cause that that it is an internal governance document not published
externally containing internal signing limits. The heading of this document contains
the followi ng:
"NB! - Associate/Analyst staff should note that having an application with a
transaction value in excess of R10 billion (as explained in this document) you
would be required to draft a submission to the DG and where the transaction
value exceeds R15 b illion a submission to the GEC must be drafted, both
documents must be submitted to your signing official/manager."
[The DG is the Deputy Governor and the GEC is the Governor's Executive
Committee.]
[18] The signing limits also references respective job levels. Alongside the job
levels are different processes for different categories of signing officials; "FC3", "M2"
or "M3" and "M1'. The SARB avers that Kruger has a M1 designation. The process
set out for an M1 official is as follows:
"1. Transaction va lue not to exceed R10 billion at time of application.
2. In excess of R10 billion review submission to DG.
3 In excess of R15 billion review submission to GEC and give/send to
Divisional head."
The evidence of the SARB in the counter -application and rep ly.
[19] It is set out in the affidavit of Mr Nevhutanda, the Acting Head of FinSurv, that
he "noticed during the course of the current litigation, that certain amendments had
been made by Kruger to the 0433 pertaining to payments 1 -3. These "amendments
were not communicated to the management of FinSurv by the designated
functionary." When he investigated this it "became apparent that Kruger did not have
the authority to grant permission, as one composite approval, in respect of Payments
1 to 4, in terms o f the applicable signing limits referred to above." And "According to
the signing limits the designated official did not have the authority to approve an
application the value of which exceeded ZAR 10 billion, and in instances where an
application and/or t he transaction value exceeds ZAR 10 billion a submission needs
to be submitted to the responsible DG for approval. Applications and/or transaction
values which exceed ZAR 15 billion need to be submitted to the Governor's
Executive Committee (GEC) for appro val."
[20] Payment 4 on its own also "exceeded the designated official's signing limit in
terms of the applicable signing limits." The approval of Payment 4 required the
designated official to refer it to the GEC, but he did not.
[21] This is the only ev idence set out in the founding affidavit bar the content of
0443, the content of the settlement agreement and the relevant legal framework.
SARB's reply
[22] It was submitted that Kruger's decision stands, even if the senior management
was aware or became aware 0443 was granted by Kruger, until set aside by a court.
It could not be expected of Kruger to file an affidavit as he is suspended pending an
investigat ion by an independent third party relating to this matter.
[23] The GEC did not approve the transactions contained in the 0443 and
therefore no valid permission existed in terms of the SARB's internal protocol. There
need not be evidence put up by the SAR B pertaining to the flow of applications to
FinSurv because the issue is the approval by the GEC. There was no subsequent
endorsement or ratification of 0433 and therefore there can be no trail of evidence.
The lack of authority is an inference that needs to be drawn by the Court and the
evidence therefore lies in the documents before the Court.
[24] The person who signed the 0443 approval is identified by a person's signature.
Attached to the reply is then attached 0433 with a signature, not the same docu ment
as attached to the founding affidavit. The other approved applications were granted
at GEC level and communicated to Ibex also as "obo Division Head", as on the 0443,
but that is "no more than co -incidental."
[25] It is denied that Kruger only had to escalate 0433 to the OH, it was required to
be escalated to the executives of the SARB. It is submitted that the Excon
Delegation delegates powers and functions, inter a lia, to the Head, a OH or
authorised signatories in acting on the strength of the Exco n Delegation. "However,
in this regard the Head of Department, the Divisional Head and Mr Kruger had no
authority to approve the 0443 Application, and it would have to be referred to the
required duly authorised level for approval and the grant of permissi on." The GEC is
only a committee that advises and makes recommendations to the Governor or a
Deputy Governor who then makes a decision.
[26] It was denied that it would not be just and equitable to set aside the decision
as Ibex could just approach the S ARB for the approvals again. There is no prejudice
to Ibex. The review was brought as soon as possible and a Court would be slow to
let an unlawful administrative action stand due to some measure of delay.
Ibex's answer to the counter -application
[27] In the answering affidavit it is set out that the SARB, as an organ of state
seeking to review its own exercise of public power, has failed to set out sufficient and
full disclosure to establish that Kruger had no authority.
[28] The full extent of the fact s set out by the SARB is that it received 0443 in
February 2024 and the approval was granted in April 2024. Not a single fact is set
out as to who received or considered it. The SARB did not tell the Court who sought
clarification and no supporting evidenc e of such clarification request is attached. The
SARB did not set out the conduct of Kruger to enable a determination of what he did.
The averment that Kruger granted the approval is not supported by a single
document, least of all by Kruger himself. The i dentity of the OH is not identified and
no evidence is forthcoming from the OH on whose behalf 0433 was issued. The
deponent to the answering affidavit, Mr Nevhutanda [Nevhutanda], the acting Head
of Department of Finsurv, does not say that that he was una ware of 0443. There are
no affidavits from Kruger, the unidentified OH and any of the members of the GEC to
confirm that they had no knowledge of 0443. There are no supporting affidavits from
the 1st, 2nd, 3rd or 5th respond ents to support the version of Nevhutanda.
[29] In the letter of 11 July 2024 from FirstRand setting out the reasons why
payment in terms of 0443 was prohibited there is no indication that the relevant
senior officials were unaware of the approved 0443. T his was five months after the
application was sent in for approval and three months after it was approved. It was
argued that it was improbable that senior management did not know or approved
0443 and that Kruger, as a senior official, was on a frolic of h is own.
[30] It was submitted that the self -review must be evaluated against the SARB's
refusal to deliver a record for its self -review despite requests, an undertaking and its
obligations to do so. The SARB had in fact in the settlement agreement agreed to file
a record if it was to bring a self -review.
[31] On 25 October 2024 the SARB delivered documents with the heading
"Record." It included the settlement agreement and the Court Order recording the
settlement. As well as the 0443 application with the SARB reply to the 0443
application. The delegation in terms of the Exchange Control Regulations and the
FinSurv limits for signing officials for the relevant period and a letter dated 4 March
2024 from Ibex to the SARB. When Ibex sought a full and proper r ecord from the
SARB on 4 November 2024 SARB through its attorneys submitted that the self -
review is brought in terms of a legality review, not PAJA and therefore Rule 53 is not
applicable and the documents attached to the founding affidavit constitute the record.
[32] On 13 November 2024 the SARB then changed its stance submitting that it
was not obliged to file a record and the documents provided as the "Record" were in
fact just annexures to the founding affidavit. In the replying affidavit the SARB agai n
flip flopped averring that the documents under the "Record" do constitute the
"record that befits the self -review," but do not "address the merits of the 0443
Application and the facts that were considered by Mr Kruger in granting the 0433
Approvals wit hout the required authority."
[33] It was argued that the documents that the SARB had not provided are the
documents that are in law required to be produced. Ibex submitted that the decision
to issue the 0443 approvals was valid and the record of that dec ision must be
provided. In LNG Scientific (Pty) Ltd v Special Investigating Unit and Another 2024
JDR 2618 (GP) at para [53] the Full Court found that:
"There can be no doubt that a respondent is entitled to the record in self -
review applications. A refus al of the record impinges on the procedural rights
of the respondent. The fact that a state organ initiates a legality review of its
own decision, cannot limit a respondent's right to a record. It is of no comfort
to be advised that the Rule 53 discovery i s the applicable procedure for
access to documents in self -review applications."
The Constitutional Court has found that: "The current position in our law is that - with
the exception of privileged information - the record contains all the information
relevant to the impugned decision or proceedings. Information is relevant if it throw s
light on the decision -making process.1
[34] The argument went that there must be documents that served before the
person or persons granting the 0443. In the founding a ffidavit no document was
provided that Kruger granted the approval. All of a sudden in reply a copy of the
0433 approvals is attached onto which an electronically scanned unidentified
signature has been affixed. No explanation is provided as to why this wa s not
attached to the founding affidavit, why it differs from the 0443 attached to the
1 Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC) para [17]
founding affidavit and the approval that Ibex received. There is not a single
document supporting the contention that the approval was granted without authority
by Kruge r or the DH. There are no internal emails, no minutes of meetings or any
document attached that Kruger granted the 0433 and in a rogue manner. There is no
explanation provided as to why senior management, when aware of the 0433
approval, allowed it to be t aken without authority and why the lack of authority was
only discovered during this litigation. There is simply silence as to who then raised
the queries on 0433 and how those concerns could have been raised if the 0443
where unauthorised at source. Nevhu tanda's sayso is not confirmed by anybody
with direct knowledge, because it is important to remember that he denies that; "I as
Acting Head of the Department and the executive management of the SARB knew
about, approved of, or had been involved in the, gr anting of the 0433 Approvals."
[35] In the replying affidavit Nevhutanda makes a new allegation that in fact the
senior officials at FinSurv did know by whom the 0433 approvals were given. It was
argued if they knew that Kruger gave the approval then it s howed a complete
absence of subterfuge on the part of Kruger. Yet in the replying affidavit is also now
averred that Kruger knew he did not have the authority to grant the approvals.
Moreover that Kruger could not make an affidavit where he has "been suspe nded
pending an investigation by an independent third party into this matter." It was
argued this can only mean that Kruger disputes Nevhutanda's version of events and
it is not stated that Kruger refused to make an affidavit.
[36] Also contradictory is N evhutanda stating that: "It is denied that I as Acting
Head of the Department and the executive management knew about, approved of, or
had been involved in, granting of the 0443 approvals." How is it possible to know that
Kruger granted the 0433, but did n ot know of the 0433 approval? If they did not know,
it was surely to have been raised when in June/July 2024 0433 was sought to be
implemented.
[37] It was also submitted that the gaps in the evidence must be evaluated against
the extensive engagements be tween the SARB and Ibex over the last seven years.
This includes the high profile investigation into Steinhoff, with blocking orders and
forfeitures being granted. Kruger was a senior official who attending many meetings
between SARB and Ibex and he was we ll aware of the heightened scrutiny of
SARB's approach to Ibex. It was improbable that the 0443 with vast amounts would
have been approved by someone lacking authority. It cannot be ignored that the
SARB first tried to block the implementation of 0433 for completely other reasons
and only when the urgent application was launched did the lack of authority arise.
[38] On behalf of Ibex it was argued that the SARB had not made out a case that
the 0433 was granted by a person lacking authority. The Court must decide whether
the 0443 approval was granted ultra vires . A DH had the authority, without
referencing any other procedure, to grant an approval of a transaction of any value. It
was submitted that upon a reading of the delegation with the signing limits document
a manager with an M1 designation has the power to gran t approval over R15 billion.
The only requirement is that it must sent to either the DG or the GEC and DH
dependant on the amount. This interpretation must be correct because, it is
conceded that the GEC is not granted any power to approve. The SARB confir med
that the signing limits document does not prevent Kruger from "purporting to grant
the 0433 Approval." The GEC only gives their blessing to Kruger's approval. The
signing limits does not grant any power it simply caters for an internal process.
[39] Ex facie the 0443 it is granted "o.b.o the Divisional Head." The 0443 was
addressed to the DH by Ibex and the authorised dealer. The queries and answers
thereto were addressed to and answered by the DH. Yet, the DH, who is unidentified,
has provided no evid ence. Nevhutanda in reply avers that he and the executive
management of the SARB did not know of the 0433, but did not say the DH did not
know. There is no evidence as to whether Nevhutanda was the acting DH at that
time or who the DH was when 0433 was gra nted. Nowhere is the allegation made
that the submission in terms of the signing limits document was not sent to the DH.
The only inference is that the DH was aware of 0433.
[40] Reliance was also placed on the presumption that acts that occur regularly o r
routinely are presumed to have followed a regular routine or course [ omnia
praesumuntur rite esse acta ]. It was submitted the SARB did not with this in mind
prove the unlawfulness of the 0433.
Decision on lack of authority
[41] The SARB, an organ of s tate, is bringing an illegality review based thereon
that the official that granted the 0443 did not have the authority to do so. The SARB
thus has the onus to prove that 0443 was granted unlawfully, is invalid and must be
reviewed and set aside. It has th is duty in the counter -application as well as in the
main application simply because the approval stands until set aside.2 There can
accordingly be no duty on Ibex to prove that the approval was lawful. I only mention
where the onus lies in response to argument from counsel for the SARB, who argued
that Ibex has the onus. However, in motion court proceedings the question of onus
does not arise and the approach in Plascon -Evan s3 is applicable irrespective where
the legal or evidential onus lies.4 It may be that the SARB as the respondent in the
main application and, as the applicant in the counter -application, attracts different
approaches in term of the Plascon -Evans principle, but that is questionable as the
defence to the main application is on ly set out in the counter -application where the
SARB is the applicant.
[42] To be successful in the self -review the SARB must set out a full account of
the facts before the Court. In Public Protector v South African Reserve Bank 2019 (6)
SA 253 (CC) in pa ra [152] the Court expressed this requirement as follows:
"The Constitution requires public officials to be accountable and observe
heightened standards in litigation. They must not mislead or obfuscate. They
must do right and they must do it properly. Th ey are required to be candid and
place a full and fair account of the facts before a court."
[43] I make little of the SARB's argument that although 0443 is termed an
"approval" it is in fact a permission and the Court must draw a distinction between
the two; it is seeking the setting aside of the permission and not the approval.
Permission was sought and 0443 was approved and nothing turns thereon; if the
permission is set aside the approval is set aside and the permission falls away.
2 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA)
3 Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
4 Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) para [27]
[44] The SARB in it s self -review is seeking to review its own decision and is called
upon to in its founding affidavit set out fully and satisfactorily why its own written and
communicated 0443 approval was invalid. In SARB's founding affidavit the only facts
relating to a l ack of authority is summarised as follow:
- The SARB received ECA0443;
- The four payment applications' details are set out [I do not find it necessary
to repeat it as it has been set out];
- FinSurv requested further clarifying information that Ibex fu rnished in a letter
dated 4 March 2024. The information related to payments 3 and 4 and the
details thereof are set out;
- The details of the approved 0443 is set out;
- During the course of this litigation Nevhutanda, as acting HO, discovered
that certa in amendments to 0443 were made by Kruger in relation to
payments 1 to 3 whic h were not communicated to the management of FinSurv
by the designated functionary. Upon investigating this incident it became
apparent that Kruger did not have the authority to grant permission. Kruger
holds the position of a M1[manager] in FinSurv.
- He did not have authority to approve as one composite approval, Payments
1- 4 in terms of the applicable signing limits. Kruger did not have the authority
to approve an application that exceeded ZAR 10 billion. In such instances a
submission needs to be subm itted to the responsible DG for approval.
Applications that exceed R15 billion needed to be submitted to the GEC "for
approval."5
5 Para 20 of founding affidavit
- Payment 4 on its own also "exceeded the designated official's signing limit in
terms of the applicable signing limits." The approval of Payment 4 required the
designated official to refer it to the GEC, but he did not.
[45] Since I need not deal with 0433 a s a composite application [payments 1 -3
being moot], the only grounds for setting aside payment 4 is thus that the designated
official exceeded the signing limits in terms of the signing limits document and
payment 4 required the designated official to ref er it to the GEC which he did not do.
[46] There are no confirmatory affidavits from the first, second, third, or fifth
respondents. There is no affidavit from the DH at the time of approval of 0433. There
is no affidavit from any member of the GEC at the time.
[47] The documents filed as a "record" is of no help to this Court. It consists of the
0443 application, the approval of 0443, the delegation in terms of the Exchange
Control Regulations and the FinSurv limits for signing officials for the relevant period.
Also included is a letter dated 4 March 2024 from Ibex to the SARB. From these
documents I cannot determine whether Kruger granted the application. There is no
document from the DH or the GEC stating that it did not receive any referral from the
designated official.
[48] This Court is left in the dark as to how this process of approval flows. I don't
know to whom this application was allocated when received. In the words of the
Constitutional Court6 "no light is thr own on the decision -making process" and I don't
know if it was Kruger who raised the queries on 0443. SARB is completely silent on
who the unidentified DH is. It is not anywhere averred if the approval of payment 4
landed on Kruger's desk what his next ste p should have been. This is not a legal
interpretation, it is a factual enquiry based on Mr Nevhutanda's assertion it should
have been sent to the GEC for approval. Yet, it is common cause that the GEC
cannot approve it because the GEC is only a committee that advises and gives
recommendations to the Governor or OG. This is confirmed by Mr Nevhutanda's
6 Helen Suzman matter para [17]
replying affidavit with Nevhutanda contradicting himself by therein conceding that the
escalation to the GEC is only for consideration, not approval.
[49] The argument on behalf of the SARB that because there was no approval
there will be no evidence to put before this Court, is rejected. It would have been a
simple exercise to obtain affidavits from the DH and a member of the GEC to confirm
that in terms of the signing limits documents Kruger had not referred it to the DH or
the GEC; Kruger was on a frolic of his own. I also find it difficult to accept that there
is no -email, minute, written enquiry, a telephone note, a WhatsApp or any scrap of
paper from Nev hutanda as the acting DH querying the authority of Kruger when he,
as averred, during this litigation discovered that Kruger approved the 0443. There is
simply no key supporting evidence of the process and that the permission was
granted without authority. On the Plascon -Evans principle this version of SARB in
the main application as a defence is bald and uncreditworthy and the version put up
by Ibex in the counter application is to be accepted.
[50] Even leaving facts aside, on a legal interpretation the lack of authority claim
falls short. I accept that the first document one has to turn to is the Delegation and
that the signing limits document does not give a person power to grant permission, it
is an internal process regulating the different categories of people to sign -off a
particular approval. The case made out in counter -application is specifically that the
0443 "exceeded the designated official's signing limit in terms of the applicable
signing limits." There is no reliance on the delegation, but o n the signature limits
document. The approval of Payment 4 required the designated official to refer it to
the GEC, but he did not. It is not their case that the Kruger did not have authority in
terms of the delegation. The case thus revolves around the he ading of the signing
limits document with the following instruction: "where the transaction value exceeds
R15 billion a submission to the GEC must be drafted, both documents must be
submitted to your signing official/manager."
[51] It was argued on behal f of SARB that the designated official's signing limit
was exceeded because it was above R15 billion. If it was above R15 billion he
simply could not entertain it, end of story. The oral argument went Kruger had the
delegated power, but it was only to R10 billion and so to speak had to get it off his
desk, and pass it on to a designated official with authority. Kruger cannot give
permission and then send to the GEC. He has no power to grant approval. The Court
must apply a purposeful interpretation and ther e must be a purpose to send to the
GEC and the reason is it was above Kruger's pay -grade. This last argument is
contrary to the SARB's own case that the GEC cannot give approval. The case is
never made out that it was not sent to the DH at the time.
[52] This procedure of Kruger having to pass it to another official and who this
official must be, is not on the papers. This argument is also contrary to the plain
reading of the delegation with the instruction that a M1 official in fact has the power
to grant a R15 billion transaction but, must adhere to the instruction by drafting a
submission to the GEC; he cannot do that if the application is off his table. Upon an
interpretation of the instruction he could not approve it without sending it to the GEC
and t hen both documents to the signing manager. The signing limits document does
not even require "approval" from the GEC or for that matter from the DH. The version
put up by the SARB in the counter -application is palpably implausible and Ibex's
version on the Plascon -Evans principle is to be accepted.
[53] The document attached to the founding affidavit as the permission is unsigned
"o.b.o. DH." It is not denied that Ibex received all other approvals unsigned with
"o.b.o DH " identical to 0433, but this is ma de off as co -incidental. However, this
Court can in terms of Plascon -Evans use it a common cause fact from which an
inference can be drawn. It in fact shows that 0443 was granted by a person with
authority, the DH. In the reply Nevhutanda makes the new bald statement: "The
Excon Delegation delegates powers and functions, inter a lia, to the Head, a
Divisional Head or authorised signatories in acting on the strength of the Excon
Delegation. However, in this regard th e Head of the Department, the Divisional Head
and Mr Kruger had no authority to approve the 0443 Application, and it would have
had to be referred to the required duly authorised level for approval and the grant of
permission." No reason is provided for th is and no identification of this duly
authorised level is provided.
[54] It is common cause that in June/July 2024 when Ibex sought to implement
0443 the SARB raised three objections as to why the 0443 could not be
implemented. None relating to lack of au thority and those reasons have been
abandoned with no explanation for this change in stance. The argument on behalf of
SARB that there is nothing controversial about Nevhutanda stating that he knew
nothing of 0443 because payments 1 and 2 were within Kruge r's authority. Payment
4 was not yet on the table, just like it is not now on the table, it's only planned for
2026. Only when the urgent application came and payment 4 featured did the SARB
realise that Kruger had no authority to grant permission for paym ent 4. This
argument is untenable because payments 1 -4 were applied for at the same time and
approved at the same time. It matters not that the execution would take place later.
In fact, the whole purpose of payment 4 was future payments.
[55] Nevhutanda in the founding affidavit says he was not aware of the
amendments to the 0443 and that Kruger had not conveyed the amendments to
0443. He does not say that he did not know of the 0443 application and approval, he
specifies that the amendments to the 0443 t riggered the investigation to lack of
authority. In the replying affidavit he then admits that the senior officials at FinSurve
knew by whom the 0443 approvals were given, but then does not divulge if this was
from the inception, or at what stage. In the r eply for the first time it is also divulged
that Kruger knew that he did not have the authority to grant the 0443 permission with
no factual basis to support this allegation. If the senior management knew that
Kruger had granted it, then the question remai ns why his lack of authority was not
raised earlier.
[56] The approval attached to the replying affidavit differs from the approval that
was attached to the founding affidavit in that it now reflects an illegible electronic
signature. Not a single word in the reply as to whose signature this is, where this
now co mes from, or why it was not attached to the founding affidavit, but the SARB
was attempting to make out a case in reply. This Court must have regard to the
principle that the more serious an allegation and its consequences the stronger the
evidence must be before I can find the allegation is established.7 There is no doubt
that now seeking a selfreview of permission granted has serious consequences for
7 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) para [27]
the process Ibex has fo llowed to pay its creditors and the SARB has not put up any
evidence, let alone strong evidence.
[57] Counsel for the SARB submitted that if the Court cannot decide the factual
dispute pertaining to the lack of authority the matter must be referred to ora l
evidence. Contrary to Ibex's addressing this issue in its papers this relief now sought
by the SARB was not addressed or sought in the SARB's papers or heads of
argument.
[58] Rule 6(5)(g) of the Unfirm Rules provides that:
"Where an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as it deems fit with a view to
ensuring a just and expeditious decision. In particular, but without affecting
the generality of the aforegoing, it may direct that or al evidence be heard on
specified issues with a view to resolving any dispute of fact and to that end
may order any deponent to appear personally or grant leave for such
deponent or any other person to be subpoenaed to appear and be examined
and cross exa mined as a witness or it may refer the matter to trial with
appropriate directions as to pleadings or definition of issues, or otherwise."
[59] It is well -established that if the material facts are in dispute and there is no
request for the hearing of ora l evidence, a final order will only be granted on notice of
motion if the facts as stated by the respondent together with the facts alleged by the
applicant that are admitted by the respondent, justify such an order unless, the court
is satisfied that the respondent's version consists of bald or uncreditworthy denials,
raises fictitious disputes of fact, is so far -fetched or so clearly untenable or so
palpably implausible as to warrant its rejection merely on the papers. If in such a
case the court is satis fied as to the inherent credibility of the applicant's factual
averment, it may proceed on the basis of the correctness thereof and include this
fact among those upon which it determines whether the applicant is entitled to the
final relief sought.
[60] As general rule an application for the hearing of oral evidence must be made
in limine and not once it becomes clear that the applicant is failing to convince the
court on the papers. The circumstances must be exceptional before a court will
permit an appli cant to apply in the alternative for the matter to be referred to
evidence should the main argument fail.
[61] I cannot define a real, genuine and bona fide dispute of fact better than the
Supreme Court of Appeal:
"[13] A real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise the dispute has in his
affidavit seriously and unambiguously addressed the fact said to be disputed.
There will of course be instances where a bare denial meets th e requirement
because there is no other way open to the disputing party and nothing more
can therefore be expected of him. But even that may not be sufficient if the
fact averred lies purely within the knowledge of the averring party and no
basis is laid f or disputing the veracity or accuracy of the averment. When the
facts averred are such that the disputing party must necessarily possess
knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true or accurate but, in stead of doing so, rests his
case on a bare or ambiguous denial the court will generally have difficulty in
finding that the test is satisfied. "8
[62] When I consider the SARB's counter -application taking into account the
paucity of facts, the lack of supporting evidence and documents, the contradictions
between the founding and relying affidavits toget her with the common cause facts,
together with the facts set up by Ibex no bona fide dispute of fact exists. I am
satisfied that there is no genuine bona fide dispute of fact raised that needs to be
solved by means of viva voce evidence and the application for referral to oral
evidence is dismissed.
8 Wightman t/a JW Construction v Headfour (Pty) Ltd and Another (66/2007) [2008] ZASCA 6; [2008]
2 All SA 512 (SCA); 2008 (3) SA 371 (SCA) (10 March 2008)
[63] Upon finding that there is not a bona fide factual dispute the only conclusion is
that I should approach the applications u pon the assumption that Ibex's account of
the permission granted is substantially true and correct, in the main application and
accept their version in the counterclaim.9 I accordingly find on the merits that there
was no lack of authority and that the 0443 was granted with authority by the DH. Ex
facie the 0443 it is granted "o.b.o the Divisional Head." The 0443 was addressed to
the DH by Ibex and the authorised dealer. The queries and answers thereto were
addressed to and answer ed by the DH. The unidentified DH knew of 0443 and
nowhere is the averment made 0443 was not sent to the DH. The previous approvals
were also signed as "o.b.o the Divisional Head".
[64] This matter is urgent, comprehensive, complex, consisting of 5 lever -arch files
with Counsel arguing for two solid days requiring judgment to be speedily delivered.
In view of these factors and my finding pertaining to the lack of authority, I find it is
unnecessary to address the delay pertaining to the self -review or whet her it would be
just and equitable to set aside the 0443. I also do not address the estoppel argument,
except to obiter remark that where the SARB itself relies on the signing limits
documents as not being adhered to, this internal document not falling wit hin the
knowledge of Ibex, it was entitled to assume that all internal requirements had been
satisfied. Ibex acted on the 0443 by realising the funds with a meticulously planned
strategy to achieve the best value and to realise its assets in an optimal way before
June 2026. With payment then refused, prejudice followed and estoppel would find
application.
[65] In finding that payment 4 was granted with authority there is no basis in fact or
law to prevent payment 4 and the decision is reviewed and set aside.
Must the blocking order over R200 million plus interest in the SAHPL account be
reviewed and set aside?
[66] The reason provided by the SARB for the blocking order reads as follows:
9 Wightman supra para [23]
"on reasonable grounds suspect[s] the Respondent [i.e.SAHPL] to have
committed a contravention or failure to act or omission as provided for in in
Regulation 22A.(1) and/or 22 C.(1) of the Regulations, read with Regulations
2,3,6,10,14,19 and/or 22.5." Th e contravention or omission was not identified.
Mr Nannoolal [Nannoolal] issued and signed the blocking order.
The facts and argument on behalf of Ibex
[67] It was submitted that even if one reads all the quoted Regulations, the
information in the blocki ng order and the affidavits before Court, it is impossible to
determine on what basis any reasonable suspicion was formed by Nannoolal. He
has not filed an affidavit and accordingly no reasons are before the Court as to what
was suspected to be contravened and what requirements were not met. The letter
from Bowmans, attorneys for the SARB, that accompanied the blocked orders,
informed that the blocking orders flowed from the communications regarding the
implementation of 0443, however, this is not explained . When the settlement
agreement was concluded no reason was forwarded as to why the SARB insisted to
continue with this blocking order despite the other blocking orders being uplifted. In
the answering affidavit filed after the settlement agreement was con cluded no reason
for this blocking order is given. It is common cause that the decision to issue a
blocking order is administrative action, but no reasons for the decision is set out in
the answering affidavit.
[68] In the SARB's answering affidavit the only vague statement is that the
blocking order related to: "suspected or known contraventions of the entity in
question at the time", and the blocking of the funds was not inexplicable or arbitrary.
In the replying affidavit it is stated that SAHPL itself "has admitted having
contravened, the Regulations to the extent of at least ZAR 4.5 billion." No
explanation is given and no supporting evidence is provided. The only averment is: "I
submit that it seems that Ibex, notwithstanding extensive engagement wit h the SARB
in relation to its investigation pertaining to alleged contraventions of the Regulations,
wants to distance itself therefore under the guise of 'new Management' whilst not
accepting responsibility for the conduct of Steinhoff as an entity. They furthermore
seem to ignore the SARB's mandate and obligations to act under the Regulations in
respect of contraventions therefore which are in the region of ZAR600 billion."
[69] The only inference Ibex can make is that it referred to alleged historic
contraventions, but is common cause that the SARB had investigated the alleged
historic contraventions and issued blocking orders of approx. R6 billion based on
these findings. It informed Ibex that it considered to forfeit the funds subject to the
initial bl ocking orders and on 19 July 2024 made a final determination to forfeit R6.2
billion of these contraventions. The SARB was aware of all the asserts of the Ibex
Group in South Africa prior to issuing these blocking orders. The Regulations do not
permit for multiple forfeiture decisions in respect of the same contraventions, but
even if it did, it would be unreasonable to do so.
[70] The forfeiture of 19 July 2024 constituted a final decision as to the censure of
Ibex for the historic contraventions. The functus officio doctrine is accordingly
applicable because Ibex cannot be a continuous moving target; the SARB had
discharged its office in relation to those contraventions. It is unlawful for the SARB to
a week, after the forfeiture decision, to block furthe r funds for historic contraventions.
[71] On behalf of Ibex it was argued that the SAHPL blocking order must be set
aside as it falls short of the standards set out by all three of these frameworks. Not in
any of the affidavits of the SARB are any of the se bases displaced.
[72] The SARB in the affidavit sets out that the that the reasons set out in the letter
of 11 July 2024 are not the reasons for the blocking order; Ibex's failure to comply
with its reporting obligations in terms of 0443; any contraven tion of the Regulations
pertaining to the acquisition and disposal of controlled securities by the current
management; the funds being externalised being of a capital nature for which
specific prior approval was required.
[73] The SARB baldly denied that its conduct was unlawful and this is done by
Nevhutanda who did not issue the blocking orders. The SARB only answered one of
the reasons set up by Ibex denying that it had to give a party an opportunity to make
representations before the blocking orders we re issued. With no reasons provided
Ibex submitted that the blocking orders were issued solely for the unlawful purpose
of thwarting the implementation of 0443. It was argued that the purpose of issuing
the 0443 blocking order on the day the SARB knew an u rgent application was to be
served enforcing the 0443 was to prevent exactly that. The SARB has put up no
cognisable defence to the relief sought pertaining to the setting aside of the blocking
order.
The facts and argument on behalf of SARB.
[74] The facts set up in the answering affidavit pertaining to the blocking order was
that at the time that the SARB issued this blocking order, an amount of ZAR R200
million in excess of the ZAR R9 billion proceeds of the sales of the Pepkor shares
were also b locked in respect of contraventions of the Regulations suspected to have
been committed by SAHPL. The attachment of money by the SARB is in terms of
Regulation 22 A(1)(a) and or Regulation 22C(1) and the prohibition from withdrawing
or causing to be withdr awn any money to the credit of SAHPL is done in terms of
Regulations 22A(1)(b) and/or 22C(2). These orders by the SARB are generally
known as blocking or attachment orders.
[75] Once the monies have been blocked the blocking or attachment remains in
place for 36 months for FinSurv to conclude an investigation. Suspicion is a state of
conjecture and the investigation is to obtain prima facie proof. The suspicion is on
reasonable grounds that in future it will become necessary to recover the shortfall in
respect of the contraventions committed by SAHPL. It is denied that the blocking
orders were issued for an obstructive purpose to impede this application, or the 0433
payments.
[76] The blocking orders were lawful, reasonable and procedurally fair. A
designated functionary need not provide reasons for the blocking orders. An entity
that has been blocked can ask reasons in terms of Promotion of Administrative
Justice Act 3 of 2000. It is denied that the letter of 11 July 2024 formed the basis of
the blocking order, it informed the reasons for the delay in processing the
transactions.
[77] The blocking of the additional funds was not arbitrary as it related to
suspected or known contraventions of SAHPL at the time. SAPHL had admitted to
contravening the Regulations to the extent of at least ZAR 4.5 billion. The fact that
some of the funds may not have been earmarked to be exported was not a releva nt
concern at the time. It is denied that the financial creditors were entitled to have been
given an opportunity to make representations before the blocking orders were issued
because to give notice would defeat the purpose of a blocking order, i.e. to pr eserve
the funds or assets.
[78] In the written heads of argument of SARB nothing more is said. In oral
argument much was made of the fact that it was not common cause that the
investigations surrounding Steinhoff had been finalised and that the Court can take
note from the newspapers that SARB had recently gained access to further
documents from Jooste; this is not on the papers. I was referred to a few paragraphs
out of voluminous submissions made by Ibex to the SARB, not referenced in the
papers before Court, suggesting that there were new contraventions with SAPHL
admitting it had contravened to the amount of 4.5 billion and on that basis the SARB
could never let billions go out of the country. A blocking order is not a penalty but a
recovery and the SA RB has duty to ensure recovery. The global approval did not
absolve the group from contraventions.
Decision on whether the blocking order must be set aside.
[79] It is common cause that the blocking order relates to SAPHL, unrelated to
0443 and is in exc ess of the proceeds of the PPH shares. The blocking order is
sought to be set aside in terms of PAJA and also in terms of Regulation 22D read
with section 9(2)(d) of the Act which provides that an aggrieved person may bring an
application to a competent co urt for the review of blocking orders.
[80] I am well aware of the extremely important function the SARB has to fulfil in
South Africa relevant to these applications before me:
"Here we are dealing with exchange control legislation. Its avowed purpose
was to curb or regulate the export of capital from the country. The very historic
origins of the Act, in 1933, were in the midst of the 1929 Great Depression,
pointing to a necessity to curb outflows of capital. The Regulations were then
passed in the afterm ath of the economic crises following the Sharpeville
shootings in 1960. The domestic economy had to be shielded from capital
flight. Regulation 1D's very heading is 'Restriction on Export of Capital'. The
measures were introduced and kept to shore up the c ountry's balance of
payments position. The plain dominant purpose of the measure was to
regulate and discourage the export of capital and to protect the domestic
economy [T]he exchange control system is designed to regulate capital
outflows from the count ry. The fickle nature of the international financial
environment required the exchange control system to allow for swift
responses to economic changes... Exchange control provided a framework for
the repatriation of foreign currencies acquired by South Afr ican residents into
the South African banking system. The controls protected the South African
economy against the ebb and flow of capital. One of these controls, which we
are here dealing with specifically, served to prohibit the export of capital from
the Republic (unless certain conditions were complied with.)"10
[81] To achieve some of its objectives the SARB has draconian powers to ensure
compli ance with its purpose, mandate and Regulations. I also understand that the
Ibex group's actions stand to be scrutinised. However, I am mystified that an organ
of state, when confronted with reviews in terms of PAJA and s22 of the Regulations
relating to it s approvals and blocking order, sets out none of the required facts to
enable a Court to decide whether these decisions were lawful, procedurally fair and
should not be reviewed and set aside. An organ of state is not above the law and a
Court can only dec ide on what is on the papers before it. I cannot be persuaded by
emotive statements from the bar that pensioners and businesses lost 90% of their
investments; it is not on the papers. I cannot make findings on snippets of a "report"
that was not before the Court in the papers. The attitude of the SARB was displayed
by a remark from the SARB's Counsel in open Court that if the SARB did not set up
enough facts, then the Court dismissed their version on a lack of facts, not on the
merits, and they will just co me back to Court. But, it is trite law that in application
10 South African Reserve Bank and Another v Shuttleworth and Another 2015 (5) SA 146 (CC) paras
[53] and [54]
proceedings the notice of motion and affidavits define the issues between the parties
and the affidavits embody evidence. If an issue is not cognisable or derivable from
these sources, there is lit tle or no scope for reliance on it. If the facts of the case are
not sufficiently clear to indicate what a party is relying on that party's version is
rejected on the merits. Where a respondent alleged bald facts without any
substantiating facts Ibex's ver sion on the Plascon -Evans Rule must be accepted
because the SARB had not set up a bona fide defence:
"[23] In Wightman t /a J W Construction v Headfour (Pty) Ltd and another
[2008] ZASCA 6; 2008 (3) SA 371 (SCA) paras 11 to 13, I had occasion to
consider t he adequacy of allegations in answering affidavits in the context of
the rule. What I said there applies with equal force to a respondent who
endeavours to raise a special defence as here. See also National Director of
Public Prosecutions v Zuma [2009] ZAS CA 1; 2009 (2) SA 277 (CC) para 26.
The alleged knowledge of the respondents concerning the long lease was
averred without reference to any detail as to when, where and how the
information was communicated to them. Such facts being peculiarly within the
knowledge of the first appellant, his silence on the matter is inexcusable and
explicable only by the inference that the bald allegation was false or not
capable of substantiation. As I have pointed out the defence was not raised in
the magistrate's court pr oceedings, a fact which is unexplained and merely
strengthens the inference. In these circumstances it cannot be concluded that
a bona fide defenc e has been made out by the appellants founded on the
respondents' knowledge of the existence of a long lease."
[82] The SARB cannot get past the first hurdle; on what was the suspicion based?
The person who formed the suspicion is completely silent thereon; no affidavit from
Mr Nannoonal. There is a vague submission that the suspicion is on reasonable
grounds that in fu ture it will become necessary to recover the shortfall in respect of
the contraventions committed by SAHPL. This averment is not substantiated by any
fact, what contravention and what shortfall? The further vague statement is that the
blocking of the addit ional funds was not arbitrary as it related to suspected or known
contraventions of SAHPL at the time. The Court is again not told what contraventions
and at what time. Ibex then takes the position that it could only relate to historic
contraventions. This is not denied !n the answering affidavit, however, in oral
argument, it is denied that the investigation on historic contraventions is finalised.
[83] Pertaining to the averment of the self -admitted R4.5 billion contravention there
is no supporting evide nce or document to show this. In oral argument the Court is
handed up a voluminous document [RA1 submissions to GEC], not referenced in the
answering affidavit, and with no context, with facts not set up in the answering
affidavit and is of no help to the Court. It was argued on behalf of Ibex if one has
regard to the whole report it is 100% against the submission by the SARB in that it
acknowledges that there has to be a balancing act between protecting the economy
and the payments that Ibex must make. The SARB averring contraventions of up to
amount of R6 billion being bantered about is outlandish and not substantiated.
[84] The SARB has not set out a single fact as to why the blocking order was
issued, why it is lawful and why it should not be set aside. These facts are peculiarly
within their own knowledge and their silence thereon is inexcusable. It can only be
concluded that there is not a reasonable suspicion and the blocking order is to be
reviewed and set aside. The SARB did not observe it heightene d standards required
of it in litigation. The SARB was not candid and did not place a full and fair account
of the facts before Court.
[85] The remedy sought to set aside the blocking order is in terms of PAJA. The
decision to block was not rationally con nected to the reasons set up by the SARB
and there is no basis set up in fact or law for the decision -maker to block the funds
[section 6]. As the review will be granted in terms of PAJA I need not address the
application in terms of Regulation 22 D read wi th section 9(2)(d) of the Act which
provides that an aggrieved person may bring an application to a competent court for
the review of blocking orders. The grounds for the setting aside are that the person
who took the decision did not act in accordance wit h the relevant provisions or did
not have reasonable grounds to make such decision or the grounds for making such
decision did no longer exist. I only need to reiterate that with no facts placed before
the Court by SARS the only assumption is that there we re no reasonable grounds to
make such a decision.
Can this Court grant prayers 5.2 and 5.3?
[86] The remainder of prayer 5 in the main application relates to directing the
SARB to permit Ibex to make any further payments in terms of the 0443 Approval
subject only to Ibex complying with their reporting obligations under the 0433
Approval to update the SARB on the processes and external payments as and when
same are being implemented. Furthermore, the SARB are to take no steps to
prevent Ibex from making fu rther payments, including issuing an attachment and/or
blocking order under Regulation 22A or 22C of the Exchange Control Regulations.
Directing that the seventh and eighth respondents [FirstRand Bank Limited and the
Standard Bank of South Africa Limited] are permitted to take such necessary steps
to effect and implement these payments.
Ibex's facts and arguments
[87] On behalf of Ibex it was argued that the facts set up for such an order is the
pattern the SARB had followed in this application. It set ou t that the SARB's actions
to stop the implementation of the 0433 and the subsequent issue of the blocking
order must be seen not in isolation. In mid -July 2024 whilst Ibex was seeking to
engage the SARB on the implementation of the 0443 the SARB forfeited the initial
blocked funds amounting to R6.2 billion. The forfeiture took place while the SARB
left Ibex's letters and applications pertaining to the 0443 unanswered.
[88] On 18 July 2024 at 14:30 the SARB's attorneys wrote a letter to Ibex
indicating that the SARB is taking a decision to forfeit the blocked funds and that the
decision would be communicated in due course. The attorneys for Ibex immediately
responded that the SARB had given the following undertaking:
"It is our instruction to inform you tha t our client hereby undertakes to provide
your clients reasonable prior notice, via your office, of any intended
administrative action that our client may take against your clients after
consideration of the written representations provide by your client."
The very next day, 19 July 2024 the forfeiture decisions were published in the
Government Gazette, despite the undertaking. The undertaking was given at the
time that Ibex threatened an urgent application to prevent forfeiture in circumstances
where the review pertaining to the blocking was pending. It was argued that the letter
stating that a decision would still be made can only be incorrect because the
decision must already have been made when forfeiture was published less than 24
hours later. The only reply to seeking the undertaking to be adhered to was a letter
attaching the forfeiture notices. It was submitted that the SARB acted mala fide .
[89] The funds were blocked [prior to the blocking orders in this matter], despite
the SARB approving the res tructuring and settlement process after six years of
engagement with Ibex. The SARB forfeited no matter that Ibex had launched a
review against the blocking orders and this was not yet decided. A date for this
review has now been procured. Ignoring the pen ding review against the blocking
order and just forfeiting the money can only be mala fide .
[90] Similarly, in this application, 0443 was granted and acting thereon Ibex sold
the Pepkor shares and kept the SARB updated of the process. Contrary to its own
approval it prevented the implementation of 0443 and then issued the blocking
orders. In the settlement the blocking orders were lifted bar the order against SAPHL.
No reasons have ever been provided why these blocking orders were issued, or why
it was not lifted.
[91] In the light of this pattern of unreasonable and unlawful conduct of the SARB
Ibex fears that there is a real risk that the SARB will use it s draconian powers to
prevent Ibex from making approved payments in 0443 in the future. The SARB's
exercise of its powers in this manner constitutes an abuse; by denying the payments
in terms of its own approvals.
The SARB's facts and arguments
[92] It was submitted that the review application pertaining to the forfeiture is not
relevant to this matter before this Court and by introducing these irrelevant
considerations in this application it may unduly influence the Judge who may well
hear all these matt ers. It would not be wise for a Court to make a finding of mala
fides.
[93] It denied that the SARB acted unlawful or untoward and the facts set up by
Ibex are noted in the context of the subsequent settlement agreement made an order
of Court.
[94] The SARB denied that it had to take any steps before issuing the blocking
order and specifically that the financial creditors were entitled to have been given an
opportunity to make representations before the blocking orders were issued keeping
in mind that a blocking order can be defeated if notice is given thereof.
[95] Ibex does not take responsibility but merely blames all of its woes on
"previous management." Pertaining to forfeiture the SARB has in the past fulfilled its
legal obligation to allow for leg al representations pertaining to forfeiture. There is no
ground for an apprehension by Ibex that the SARB would not continue to do so.
[96] In oral argument it was submitted that the relief sought in prayer 5.3 is a
blanket permanent interdict against the exercise of public power authorised in terms
of the Regulations. If such an order is granted the Regulations will be amended by a
final Court Order. It would result therein that Ibex need not seek permission from
anybody. The flow of funds will end with S IHPL and Ibex Investments to make
payments but in the chain as set out nobody in that chain has permission or can be
immunised from seeking permission. The SARB would not have objection to prayer
5.3 being granted if amended to leave the second applicant o ut [because payment 3
is now settled] and that the entity in prayer 5.3 be limited to Ibex Investments, then
the prayer would not be too wide.
[97] SAPHL does not have permission from the SARB. A Court can set aside the
blocking order, but it cannot order that SAPHL need not obtain permission. It was
submitted that the day after the Court sets aside the blocking order the SARB can
obtain a new blocking order.
Decision on whether this Court can grant prayers 5.2 and 5.3
[98] A Court when reviewing an adm inistrative action may grant any order that is
just and equitable, including orders:
"(1) The court or tribunal, in proceedings for judicial review in term sof
section 6(1), may grant any order that is just and equitable, including orders –
(a) directing the administrator –
(i) to give reasons; or
(ii) to act in the manner the court or tribunal requires;
(b) prohibiting the administrator from acting in a particular manner;
(c) setting aside the administrative action and -
(i) Remitting the matter for reconsideration by the administrator,
with or without directions; or
(ii) In exceptional cases –
(aa) substituting or varying the administrative action or
correcting a defect res ulting from the administrative action; or
(bb) directing the administrator or any other party to the
proceedings to pay compensation;
(d) declaring the rights of the parties in respect of any matter to which the
administrative action relates;
(e) granti ng a temporary interdict or other temporary relief; or
(f) as to costs.
(2) The court or tribunal, in proceedings for judicial review in terms of
section 6(3), may grant any order that is just and equitable, including orders –
(a) directing the taking of the decision;
(b) declaring the rights of the parties in relation to the taking of the decision;
(c) directing any of the parties to do, or to refrain from doing, any act or
thing the doing, or the refraining from the doing, of which the court or tribunal
considers necess ary to do justice between the parties; or
(d) as to costs."
[99] In terms of section 8 of PAJA a Court can thus order the SARB to permit the
approved payments to be made in terms of 0443 [s8(a)ii)] and in terms of 8(b)
prohibit the SARB from blocking the funds again if just and equitable to do so.
[100] Permission was sought in terms of 0443 and was granted. Payment 4's
permission was sought as future payments and granted as future payments, thus not
having to again, in future, seek permission from the S ARB. Permission was
necessary so that Ibex could realise funds to fulfil the future payments sought and
approved. The flow of the funds to achieve this was set out in detail to the SARB and
the SARB was kept informed of the bookbuild and the intended payme nts. Upon a
reading of the approved 0443 the only interpretation is that Ibex would sell South
African assets to expatriate the proceeds to repay its foreign debts without further
approval from the SARB. The SARB had in the 0443 itself expressed that the
amount to be paid would depend on "the underlying Pepkor share price, operating
expenses and the Rand/Euro exchange rate', acknowledging the future payments
upon realising of the assets.
[101] In the 0443 granted there is no express requirement for prior w ritten approval
for payments 1 -4, contrary to the wording in payment 5. The only requirement
pertaining to payments 1 -4 were that the SARB needed to be updated "on the
processes and external payments as and when same are being implemented, during
the entir e process." It is common cause that this was done.
[102] In directing the SARB to permit Ibex Investment Holdings and SIHPL to make
any further payments in terms of the 0443 Approval subject only to the entities
complying with their reporting obligations under the 0433 Approval to update the
SARB on the processes and external payments as and when same are being
implemented, the Court is not fulfilling or usurping the duty of the SARB. The SARB
had already granted permission for the future payments. This C ourt is only directing
the SARB to act in accordance with their own permissions granted.
[103] The next question is whether the Court can direct the SARB not to take any
steps to prevent Ibex Investment Holdings and SIPHL from making further payments,
including issuing an attachment and/or blocking order under Regulation 22A or 22C
of the Exchange Control Regulations.
[104] It was made clear by counsel for the SARB that the SARB could render an
order for payment of the 0443 by this Court worthless by issu ing a blocking order the
day after this Court issued its order. In terms of the SARB's functions and powers
this is true, but a Court has to ensure that its own order is obeyed, and if it is not
going to be obeyed, that there is means to ensure compliance. This is especially so
where this Court has found that the SARB has not been candid in these applications
and the blocking order issued was unlawful. A blocking order's purpose is not to
prevent payments that the SARB had approved. If a further blocking is issued as a
means to prevent the payment that the SARB had approved it is not the Court
usurping the powers of the SARB, but the SARB abusing its powers.
[105] Of further relevance is that in the settlement order the SARB had agreed to:
"The Reserve Bank shall not issue any further attachment or blocking orders in terms
of Regulation 22A or regulation 22C of the Regulations in respect of the funds
released from the Blocking Orders in terms of this Agreement and which shall be
used for purposes of making p ayments in accordance with this Agreement." The
prayer sought is thus in line with the upliftment of the other blocking orders with
payment to follow the upliftment and agreement that no further blocking orders would
be issued. I see no reason why where th e blocking order is found to be issued
unlawfully the same principle should not apply here. Paragraphs 5.2 and 5.3 should
be granted.
Costs
[106] Both parties in their written heads of argument sought the costs of three
counsel. In argument on behalf of Ibex this was persisted with but counsel for the
SARB submitted that this Court should only allow the costs of two counsel. I am
satisfied that the costs of two counsel should be allowed.
Other issues
[107] The fact that I did not address all the issues raised does not mean that I did
not consider same. The only other issue raised on behalf of the SARB was that the
Treasury was not a party because o nly Treasury can approve or block. Yet, the
counterclaim is not brought by Treasury and the upliftment of the blocking orders and
the payments in the settlement agreement is made by the SARB and not Treasury.
made little of this argument.
Order
[108] [108.1] This application is enrolled as an urgent application, dispensing with
the forms and service provided for in the Uniform Rules of court and it is directed that
the matter be heard as an urgent application in terms of Rule 6(12) of the Uniform
Rules of Court.
[108.2] The decisions of the first and/or fifth respondents are reviewed,
declared invalid and set aside under Regulation 22A(1) and/or 22C(2) of the
Exchange Control Regulations, as set out in the following orders:
108.2.1 the "order with regard to the prohibition of the withdrawal
of funds in terms of the provisions of Exchange Control Regulation
22A(1) and/or 22C(2)" issued to the third applicant on 25 July 2024,
attached as "FA5" to the founding affidavit; and
108.2.2 the "order with regard t o the prohibition of the withdrawal
of funds in terms of the provisions of Regulations 22A(1) and/or 22C(2)
of the Exchange Control Regulations" issued to the first and second
applicants on 25 July 2024, attached as "FA6" to the founding affidavit.
[108.3 ] It is declared that the payments set out in Payments 1 to 4 of the 0433
Approval are capable of implementation without further approval required by
the first respondent;
[108.4] The first to fifth respondents are directed to:
108.4.1 permit the first a nd second applicants to make any further
payments in terms of the 0433 Approval ("the further payments"),
subject only to the applicants complying with their reporting obligations
under the 0433 Approval to update the first respondent on the
processes and external payments as and when same are being
implemented; and
108.4.2 take no steps to prevent the first and second applicants
from making the further payments, including issuing an attachment
and/or blocking order under Regulation 22A or 22C of the Exchange
Control Regulations.
[108.5] It is directed that the seventh and eight respondents [FirstRand Bank
Limited and the Standard Bank of South Africa Limited] are permitted to take
such steps as are necessary to effect and implement these payments.
[108.6] The first to fifth respondents are to pay the costs of this applica tion,
including the costs of two counsel on scale C.
S. POTTERILL
JUDGE OF THE HIGH COURT
CASE NO: 2024 -085397
HEARD ON: 12 and 13 February 2025
FOR THE APPLICANTS: ADV. M. VAN DER NEST SC
ADV. D. WIID
ADV. E.A. VAN HEERDEN
INSTRUCTED BY: Webber Wentzel
FOR THE 1ST-5TH RESPONDENTS: ADV. N.G.D. MARITZ SC
ADV. T. GOVENDER
INSTRUCTED BY: Bowman Gilfillan Inc.
DATE OF JUDGMENT: 23 April 2025