SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 15691/2023
RYNETTE PIETERS N.O. Applicant
In her capacity as the liquidator of King
Financial Holdings Ltd , formerly Biz Africa
1332 (Pty) Ltd (in liquidation)
and
DEON JOHAN PIENAAR First respondent
Identity number 6 [...]
1[...] V[...] B[...] Road, Parow North
Married out of community of property to:
ELSABE ELISABETH PIENAAR Second respondent
Identity number 6[...]
Case number: 16769/2023
RYNETTE PIETERS N.O. First a pplicant
In her capacity as the liquidator of King
Financial Holdings Ltd , formerly Biz Africa
OFFICE OF THE CH I EF .I USTICE
REPUBLI C OF SOUTH AFRICA
1332 (Pty) Ltd (in liquidation)
STEPHEN MALCOLM GORE N.O. Second applicant
KEVIN KIEWITZ N.O. Third applicant
In their capacities as the joint liquidators of Midnight
Storm Investments 386 Ltd (in liquidation)
BRYAN NEVILLE SHAW N.O . Fourth applicant
SUMAIYA ABDOOL GAFAAR KHAMISSA N.O. Fifth applicant
In their capacities as the joint liquidators of Purple
Rain Properties No. 15 (Pty) Ltd (in liquidation)
and
DEON JOHAN PIENAAR Respondent
Case number: 13665/2016
DEON JOHAN PIENAAR Applicant
and
KING FINANCIAL HOLDINGS LTD (in liquidation) First respondent
STEPHEN MALCOLM GORE N.O. Second respondent
FINANCIAL SECTOR CONDUCT AUTHORITY
(formerly the Financial Services Board) Third responden t
GERMAN EMMANUAL ANDERSON Fourth respondent
In his former capacity as the Deputy Chief Executive
Officer of the Financial Services Board
NICOLAAS GERHARDUS WESSELS DUVENHAGE Fifth respondent
THE MASTER OF THE HIGH COURT, WESTERN CAPE,
DIVISION, CAPE TOWN Sixth respondent
THE NATIONAL PROSECUTING AUTHORITIES Seventh respondent
and
ADRIAN WARREN KING First interested party
STEPHEN ROBERT KIN G Second interested party
THE SOUT H AFRICA N POLICE SERVICE (DPCI/CCIU) Third interested party
THE FINANCIAL INTELLIGENCE CENTRE Fourth interested party
THE SOUTH AFRICAN RESERVE BANK Fifth interested party
THE PRUDENTIAL AUTHORITY Sixth interested party
NEDBANK LTD Seventh interested party
PRICEWATERHOUSECOOPERS INC. Eighth interested party
THE DEPARTMENT OF TRADE AND INDUSTRY Ninth interested party
THE PUBLIC PROTECTOR Tenth interested party
THE HUMAN RIGHTS COMMISSION Eleventh interested party
_____________________________________________________________________
JUDGMENT DELIVERED ON 27 FEBRUARY 2025
VAN ZYL AJ :
INTRODUCTION
1. There are three applications before this Court:
1.1 The first is an application1 by Mr Deon Johan Pienaar to set aside ,
inter alia , the liquidation of all the entities in the so -called King
Group of companies , as well as Mr Justice Binns -Ward's order of
14 December 20122 and Mr Acting Justice Sievers' judgment of 30
November 2018.3 I shall refer to this application as the “second
rescission application”.
1.2 The second is an application4 by the liquidator of King Financial
Holdings Ltd (formerly Biz Africa 1332 (Pty) Ltd) (in liquidation)
("KFH") to sequestrate Mr Pienaar’s estate.
1.3 The third is an application5 by the liquidators of various companies,
namely KFH, Midn ight Storm Investments 386 Ltd (in liquidation)
("Midnight Storm") and Purple Rain Properties No. 15 (Pty) Ltd (in
liquidation) ("Purple Rain") , to declare Mr Pienaar a vexatious
litigant under the provisions of section 2(1)(b) of the Vexatious
Proceedings Act 3 of 1956 (“the vexatious litigant application”) .
2. The papers exchanged in the course of all of these proceedings are
voluminous but the issues, properly considered, are fairly delineated . I
commence with the consideration of the vexatious litigant application,
because the background to all three applications is well-illustrated in that
matter. It gives some insight into why the parties have found themselves
in a legal quagmire which vies with the one chronicled by Dickens in Bleak
1 Under case number 13665/2016.
2 Under case number 18127/2012 (“the Binns -Ward judgment”) . Written reasons for the order were
given on 13 February 2013.
3 Under case number 13665/2016 (“the Sievers judgment”) .
4 Under case number 15691/2023.
5 Under case number 16769/2023.
House .6
THE VEXATIOUS LITIGA NT APPLICATION
The applicable principles
3. Section 2 of the Vexatious Proceedings Act provides as follows:
"Powers of court to impose restrictions on the institution of
vexatious legal proceedings
(1) (a) If, on an application made by a State Attorney ......
(b) If, on an application made by any person against whom
legal proceedings have been instituted by any other
person or who has reason to believe that the institution
of legal proceedings against him is contemplated by any
other person, the court is satisfied that the said person
has persistently and without any reasonable ground
instituted legal proceedings in any court or in any inferior
court, whether against the same person or against
different persons ,7 the court may, after hearing that
person or giving h im an opportunity of being heard,
order that no legal proceedings shall be instituted by him
against any person in any court or any inferior court
without the leave of the court, or any judge thereof, or
that inferior court, as the case may be, and such le ave
shall not be granted unless the court or judge or the
inferior court, as the case may be, is satisfied that the
proceedings are not an abuse of the process of the
court and that there is prima facie ground for the
proceedings.
6 Chapter 1: “ Jarndyce and Jarndyce drones on. This scarecrow of a suit has, over the course of
time, become so complicated, that no man alive knows what it means . …Scores of persons have
deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why;
whole families have inherited legendary hatreds with the suit. ”
7 Emphasis added.
(c) An order under paragraph (a) or (b) may be issued for an
indefinite period or for such period as the court may
determine, and the court may at any time, on good
cause shown, rescind or vary any order so issued.
(2) Any proceedings under subsection (1) shall be deemed to be
civil proc eedings ....
(3) The registrar of the court in which an order under subsection (1) is
made, shall cause a copy thereof to be published as soon as possible
in the Gazette.
(4) Any person against whom an order has been made under
subsection (1) who institutes a ny legal proceedings against any
person in any court or any inferior court without the leave of that
court or a judge thereof or that inferior court, shall be guilty of
contempt of court and be liable upon conviction to a fine not
exceeding one hundred pou nds or to imprisonment for a period
not exceeding six months. "
4. The Act accordingly authorises the Court to prohibit legal proceedings -
including future legal proceedings not yet instituted at the time of the
application8 - by any person who has persistently and without any
reasonable ground instituted legal proceedings against the same person
or against different persons.
5. South Africa has a constitutional dispensation , and a ccess to justice is a
hallmark of democracy. T hat is why section 34 of the Constitution of the
Republic of South Africa, 1996, provides that “ everyone has the right to
have any dispute that can be resolved by the application of law decided in
a fair public hearing before a court or, where appropriate, another
8 Under the c ommon law the High Court has always had the inherent power to regulate its own
procedure and to curtail frivolous and vexatious proceedings brought before it. The promulgation
of the Act has not done away with this power : see Department of Co-Operative Govern ance and
Traditional Affairs v Maphanga 2021 (4) SA 131 (SCA) at paras [25]-[27].
independent and impartial tribunal or forum ”.
6. The Act has nevertheless passed constitu tional muster :9
“[15] … This purpose is “to put a stop to persistent and ungrounded institution of
legal proceedings.”1 The Act does so by allowing a court to screen (as opposed
to absolutely bar) a “person [who] has persistently and without any reasona ble
ground instituted legal proceedings in any Court or inferior court”. This screening
mechanism is necessary to protect at least two important interests. These are
the interests of the victims of the vexatious litigant who have repeatedly been
subjecte d to the costs, harassment and embarrassment of unmeritorious
litigation; and the public interest that the functioning of the courts and the
administration of justice proceed unimpeded by the clog of groundless
proceedings .
[16] The effect of section 2(1) (b) of the Act is to impose a procedural barrier to
litigation on persons who are found to be vexatious litigants. This serves to
restrict the access of such persons to courts. … T he barrier which may be
imposed under section 2(1)(b) therefore does limit the right of access to court
protected in section 34 of the Constitution. But in my view such a limitation is
reasonable and justifiable. …
[17] … a restriction of access in the case of a vexatious litigant is in fact
indispensable to protect and secure the right of access for those with meritorious
disputes. … the court is under a constitutional duty to protect bona fide litigants,
the processes of the courts and the administration of justice against vexatious
proceedings. Section 165(3) of the Constitution requires that “[n]o person or
organ of state may interfere with the functioning of the courts.” The vexatious
litigant is one who manipulates the functioning of the courts so as to achieve a
purpose other than that for which the courts are de signed. …
[18] …
[19] While such an order may well be far -reaching in relation to that person, it is
9 Beinash and another v Ernst & Young and others 1999 (2) SA 116 (CC) at paras [15] -[20].
Emphasis added.
not immutable. There is escape from the restriction as soon as a prima
facie case is made in circumstances where the judge is satisfied that the
proceedin gs so instituted will not constitute an abuse of the process of the court.
…The applicant’s right of access to courts is regulated and not prohibited. …
The procedure which the section contemplates therefore allows for a flexible
proportionality balancing to be done, … to protect the interests of both applicant
and the public.
[20] Requiring the potential litigant under these circumstances to discharge this
evidentiary burden is not unreasonable. … Having demonstrated a propensity to
abuse the process of the courts, it hardly lies in the mouth of a vexatious litigant
to complain that he or she is required first to demonstrate his or her bona fides.
In this respect, the restriction is precisely tailored to meet its legitimate purpose .”
7. In the present application, the liquidators seek an order in terms of section
2(1)(b) of the Act that Mr Pienaar may not institute any legal proceedings
against the persons and entities (including the liquidators ) listed on
annexures A1, A2 and A3 to the notice of motion ("the targeted parties")
without the written consent of a High Court judge. The targeted parties are
all related to or part of the King Group or the Realcor Group . They seek
orders, further, t hat should such permission be granted , Mr Pienaar w ould
be obliged to provide security for costs . This is because the targeted
parties have been on the receiving end of protracted, mostly unsuccessful,
proceedings instituted by Mr Pienaar over the years since the liquidation
of the companies within these Groups had begun.
8. The liquidators also seek interdictory relief, namely that Mr Pienaar be
interdicte d from taking any further steps in relation to the second
rescission application, and that he be interdicted from instituting and
conducting private prosecutions against any of the targeted parties.
9. To obtain the relief they seek under the Act or the common law in relation
to vexatious litigation , the liquidators must show that Mr Pienaar has
persistently instituted legal proceedings without reasonable grounds.
There is a "stringent onus" upon them.10
10. They must also establish th e requirements for a final interdict to obtain the
interdictory relief sought.
The liquidation of the companies in the King and Realcor Groups
11. The relevant facts as far as the vexatious litigant application is concerned
– in particular, the litigation instituted by Mr Pienaar and the repeated
unsuccessful outcome s thereof - are essentially common cause. The
"disputes" on the papers arise from Mr Pienaar's own interpretation of
events (his narrative, as he refers thereto) , which will be referred to in
more detail in the context of the second rescission application .
12. The applicants are liquidators of related companies in the King Group and
the Realcor Group, which we re property syndication schemes. Briefly
stated, v arious companies in the se Groups had solicited investments in
commercial and residential property in South Africa from members of the
public, who w ould supposed ly benefit from the income generated by the
properties. These property syndication schemes , despite attracting the
investment of hundreds of millions of rands , became hopelessly insolvent ,
not least because they operated like pyramid schemes . They left
thousands of investors out of pocket, some of them losing their life
savings .
13. All of this started as follows: In about 2004 three brothers, Messrs Adrian,
Paul, and Stephen King, set up a group of companies which came to be
known as the King Group. The brothers used the companies to market
investments in commercial and residential immovable property. As
indicated, they did so by soliciting funds from investors in the form of
share purchases and compulsory loans. In all, about R671 million in
investme nts were made by thousands of investors in 41 companies in the
King Group. KFH was the overall holding company.
10 Department of Co -Operative Governance and Traditional Affairs v Maphanga supra at para [26] .
14. The core assets and business in the Realcor Group was an immovable
property known as Erf 1 [...], Blaauwberg, Milnerton, owned by Midnight
Storm, and upon which the Blaauwberg Beach Hotel was being
constructed. During December 2007 Purple Rain, acting as promoter,
began soliciting investments from members of the public to raise capital
for this hotel development. The services of various brokers, who
concluded agreements with Purple Rain, were used for this purpose.
15. Prior to its collapse, the Realcor Group raised in the region of R640 million
from about 3 000 members of the public in this manner to fund the
operations of the Realcor Group, particu larly the hotel development. The
investment companies involved in turn lent the money to Midnight Storm
to finance the construction costs of the hotel development.
16. Purple Rain's only source of income was a construction contract
concluded between it and Midnight Storm, and the "promoter's fees"
payable to it by the individual investment companies. The scheme was
doomed to fail. The liquidators of Purple Rain and Mid night Storm11 are of
the view that the soliciting of funds from the public to fund the hotel
development and the manner in which the scheme was conducted was
reckless and carried out with the intent to defraud creditors.
17. The hotel development was never co mpleted in the Realcor Group, but
had to be sold in 2013 by the liquidators of Midnight Storm. Mr Pienaar
and one Mr Van Zyl attempted to interdict the sale, but their application
was dismissed on 20 May 2013, the Court finding that they lacked locus
stand i, and had not established the requirements for an interim interdict.
18. The companies in the group went into liquidation (a series of liquidation
applications had been brought and granted between 2009 and 2011),
leaving a shortfall in Purple Rain and Midnig ht Storm of some R92 million.
19. Going back in time, i n early 2008 the activities of the Group attracted the
11 The second to fifth applicants in the vexatious litigant application.
attention of the then Financial Services Board (FSB”).12 It conducted an
inspection of the records of the Group an d prepared a report which
indicated widespread irregularit ies in the way in which the business of the
Group was conducted. These are best described in the Binns -Ward
judgement13 as follows:
“….the affairs of the group were in material respects conducted in a
manner that maintained no distinguishable corporate identity between the
various constituent companies in the group. The entire group was
operated, in effect, as one entity through the holdi ng company. Funds
solicited from investors were transferred by the controllers of the holding
company between the various companies in the group at will, with no
effectual regard to the individual identity of the companies concerned, and
with grossly inade quate record -keeping. The investigations bore out the
admission by the King brothers that they 'treated all their companies as
one'”.'14
20. During 2009 one of the investors, a Mrs Zera, instituted proceedings in
this Court for the liquidation of KFH.15 She w as a retired woman who had
invested all of her savings, amounting to R1.4 million, in the King Group.
In her founding affidavit the basis for her application was expressly stated
to be the inability of KFH to meet its financial commitments to its creditors .
She made the allegation that KFH was insolvent, or in any event
commercially insolvent, and unable to pay its debts. Five other applicants
joined in her application.
21. Mrs Zera's application was supported by the FSB. At the time Mr
Anderson16 of the FSB deposed to an affidavit , which Mr Pienaar has
placed before this Court in the present proceedings . In the affidavit Mr
Anderson referred to a letter dated 3 July 2009 addressed to investors by
the attorneys then representing the King Group. Mr Anderson pointed out
12 As it was then called. The FSB is t he third respondent in the second rescission application.
13 Delivered in 2013.
14 That the King brothers themselves admitted that they had treated the companies as one is borne
out by the transcript of an interview which had been conducted as part of the FSB investigation.
15 Under case number 12756/2009.
16 The fourth respondent in the second rescission applicat ion.
that the letter states that , if the Group was to be liquidated , it would have a
negative asset value of approximately R650 million. Mr Anderson also
referred to the inability of the Group to pay its creditors as a result of a
monthly deficit of R3.3 million. He stated that the FSB had concluded that
there was no hope of resuscitating the financial services business of the
King Group , and that the appointment of a curator to such business would
not be appropriate. He concluded his affi davit by stating that the FSB
supported the liquidation application in the circumstances .
22. The Court granted the application, and KFH was liquidated. It goes
without saying that Mrs Zera had satisfied the Court that KFH was
insolvent and unable to pay its debts. It was for this reason, and no other ,
that KFH was placed in liquidation.
23. The liquidation of KFH led to the liquidation of all of the 40 subsidiary
companies in the group. The liquidators of these companie s were faced
with an intractable problem. I t was difficult, because of the chaotic
administration of the affairs of the Group, for the liquidators to identify the
companies against which individual creditors had claims. The affairs of the
companies were so intermingled that it was impossible to sep arate them.
24. To solve this problem, 38 applicants, being the liquidators of the 41
companies which constituted the King Group, obtained an order on 14
December 2012 under case number 18127/2012 (the Honourable Justice
Binns -Ward presiding) in terms of sect ion 20(9) of the Companies Act 71
of 2008.17 Reasons were given on 13 February 2013. The effect of the
judgment was that all the companies in the King Group were deemed not
to be juristic persons in respect of any obligation owed by them to
17 A “piercing the corporate veil” provision:
“(9) If, on application by an interested person or in any proceedings in which a company is
involved, a court finds that t he incorporation of the company, any use of the company, or any act
by or on behalf of the company, constitutes an unconscionable abuse of the juristic personality of
the company as a separate entity, the court may -
(a) declare that the company is to be deemed not to be a juristic person in respect of any right,
obligation or liability of the company or of a shareholder of the company or, in the case of a
non-profit company, a member of the company, or of another person specified in the
declaration; and
(b) make an y further order the court considers appropriate to give effect to a declaration
contemplated in paragraph (a).”
investors. Th is meant that, after the payment of secured and trade
creditors, the surplus funds in each entity were pooled with those of the
other companies in the Group to generate a dividend for all investors
across the Group.
25. Given the admission made by the King br others about the fact that they
had treated all of the companies in the King Group as one , the order was
undoubtedly correctly made.
26. As will become clear when I address the second rescission application, in
seeking to rescind inter alia the Binns -Ward and Sievers judgments in that
application, Mr Pienaar is in truth seeking to overturn the liquidation of
these comp anies, which commenced in 2009, and which would have been
finalized by now but for the repeated institution of litigation by Mr Pienaar.
This is despite the fact that a ll of the liquidation proceedings proceeded
pursuant to court orders validly and lawfully obtained.
27. In this regard, the final business of KFH in liquidation is the finalisation
and confirmation by the Master of t he High Court of a seven th liquidation
and distribution account. The liquidators are unable to proceed until such
time as the litigation with Mr Pienaar has been finalized (in particular the
second rescission application, which seeks to undo a swathe of
liquidations). They submit that Mr Pienaar's ability freely to institute
further litigation in frustration of the liquidation process must be curtailed.
This will also put an end to the running up of millions of rands in unpaid
costs orders against him .
28. The liquidators submit further that they are entitled not to have their
professional reputations being impugned recklessly and without cause in
the court papers delivered by Mr Pienaar. It is clear from the reams of
affidavit delivered that Mr Pienaar pou rs onto paper exactly what is in his
mind. The liquidators face, in addition, constant threats of criminal
prosecution made by Mr Pienaar against them .
29. The liquidators’ case is amply supported by the papers before this Court.
Mr Pienaar’s litigation track record
30. Over the years, Mr Pienaar has immersed himself fully into the circle of
those formerly in control of the King and Realcor Groups . He previously
made a livelihood by being a broker or promote r for the property
syndication schemes involved in these proceedings , and with whose
liquidators he has been at loggerheads for years .
31. Mr Pienaar himself explains how he took up the cudgels:
"When I read to see what happened to Brokers who had marketed Krion
financial products, and read in the media, that the same was going to
happen to Brokers who had marketed PSPC [property syndication
schemes] investments, I knew I had to investigate the truth myself.
It was here that I realised, that nobody was going to defend me, and I
would have to do so myself I would have to do my investigations myself
as well.
I knew, I had given all my clients the same advice, and if I was guilty of
being negligent for one, the same would apply for all the others. If th is
was to be established, I knew I would not be able to repay all my
investors, and for this reason I realised no matter what, I had to establish
the real causation of PSPC implosions.
This I could not do, as an independent Broker, and soon it started tak ing
up all my time. "
32. Mr Pienaar is no longer employed, and his living costs are wholly funded
by his wife and from donations that he solicits from former investors. He
writes regular newsletters or circulars in relation to the liquidation and
related pro cesses, and has asked the investors to pay donations in
support of his services directly into his bank account. In return for these
donations, he speaks on the investors’ behalf in the litigation that he
instigates.
33. His activities have led to him being d eclared a vexatious litigant under
section (2)(1)(b) of the Act in respect of PriceWaterhouseCoopers
(“PwC”), including PwC employees and related parties. In a judgment
delivered18 on 10 September 2021 ( the Honourable Acting Justice19
Nziweni presiding) t his Court recorded that PwC had incurred legal costs
against Mr Pienaar of more than R12.5 million since 2014, all of which had
gone unpaid. The Court found that Mr Pienaar had litigated with impunity,
running up cost orders against him exceeding R50 mill ion on his own
version.
34. Mr Pienaar does not deny this, and has not been deterred As counsel for
the liquidators in the present matter put it: “ Pienaar flogged property
syndication investments to members of the public; in full knowledge of the
damage don e and that he himself may be liable for some of the damage
done, he nevertheless accepts donations from hapless investors in order
to pursue various litigious proceedings and to fund his own livelihood; in
so doing, he has run up millions of rands in legal costs without suffering
any consequence; and he has no standing in the litigation he brings ”.
35. In email correspondence addressed to the then Acting Judge President of
this Division during 2023 , Mr Pienaar attached a list of the matters in
which he had bee n involved, entitled " Litigation where I incurred costs in
order to show actions and conduct of SARB / FSB unlawful and ultra vires,
but without success ".
36. The list is telling. It shows 17 separate civil cases from 2013 onwards ,
most of them launched by Mr Pienaar , and each one "without success " as
far as he is concerned . The cases relate mainly to Realcor and the King
Groups.20 These cases , comprising more than 37 000 pages of
documents, have resulted in 23 orders or judgment s. On Mr Pienaar’s
own version, i n the course of these cases an estimated R50 million in
legal fees have been incurred. He has laid c riminal charges in six
different cases in volving inter alia Realcor and King companies .
18 Under case number 1845/2021 (“the Nz iweni judgment” ).
19 As she then was.
20 A few cases relate d to the Sharemax and Amatenda property syndication schemes.
37. Mr Pienaar has, in addition, furnished this Court with a comprehensive
chronology, carefully setting out details which include the rise and fall of
the Group s and the liquidation applications brought, as well as his own
litigious activities. The history is impressive.
38. Having had regard to the papers filed of record in all three of the
applications before this Court , I agree with the submission made by
counsel for the liquidators that, b y his own admission, Mr Pienaar has
litigated without any substantive success whatsoever . He is litigating
vexatiously and without reasonable grounds :21
"In its legal sense vexatious means frivolous, improper: instituted without
sufficient ground, to serve solely as an annoyance to the defendant ….
Vexatious proceedings would also no doubt i nclude proceedings which,
although properly instituted, are continued with the sole purpose of
causing annoyance to the defendant; abuse connotes a mis -use, an
improper use, a use mala fide, a use for an ulterior motive. "
39. In the Nz iweni judgment22 to which I have referred earlier, the Court
remarked as follows:
“[50] … the first respondent [Mr Pienaar] views the courts with impunity.
He further takes the courts as his playground.
[51] The repeated attempts by the first respondent to have findin gs
against him set aside failed dismally, yet, he was barely fazed or deterred
by that. The first respondent is showing no appetite for stopping the
litigations against the applicants and SARB, even though he loses every
case he throws against the applica nt. Instead, the first respondent
demonstrates determination in his quest. His assertion that he will
continue until the cause of his action is recognised further demonstrates
his unyielding determination.
21 Boost Sports Africa (P ty) Ltd v South African Breweries (Pty) Ltd 2015 (5) SA 38 (SCA) at para
[17].
22 At paras [50] -[54].
[52] Another vexing aspect about the litigation of the first respondent is
that it knows no boundaries, and he does not accept defeat. Interestingly,
the first respondent states … that it is time for the court to see how these
Masters of manipulation misrepresent the Court. The following assertion
by the respondent also plainly illustrates the point:
‘The court cannot expect him just to roll over and pretend to be dead.
It is the view of the first respondent that the court has made no
attempt to adjudicate the merits and for this reason there is still a
scope for much litigation if the applicant and SARB continue to
misrepresent the court with diversions.’ (my own emphasis and
underlining.)
[53] Under the circumstances, it is quite bizarre that the first respondent
who has been unsuccessful with his applications in the past; keeps on
filing further proceedings against the applicant. The persistence of the
first respondent to litigate against the applicant is highly illuminating. I get
the distinct impression that the first resp ondent harbours a strong view
that in his quest of incessant litigation, he is only losing the battles but he
will ultimately win the war because of his persistence. Accordingly, to the
first respondent the ends justify the means. Unfortunately, when regar d is
had to the history of litigation between the parties, this belief by the first
respondent is deeply flawed and short -sighted and happens to be very
costly.
[54] Gleaning from the papers, it appears that the first respondent has
self-proclaimed himse lf as a champion for fighting the causes of other
citizens’ in the so -called Property Syndicate Schemes. I am however, not
convinced that the litigation by the first respondent is motivated by just
cause. ”
40. This Court can but echo these sentiments. The history of litigation set out
in the Nziweni judgment and in the affidavits filed of record illustrate s that
Mr Pienaar is not deterred by losing in court. In fact , his inability to accept
defeat is well-illustrated by his conduct in instituting the second rescission
application.
The second rescission application as an example of vexatious litiga tion
41. In the "first” rescission application, issued on 1 August 2016, Mr Pienaar
attempted, inter alia , to have the Binns -Ward judgment rescinded , to
declare the actions of the FSB in relation to their investigations into the
King Group unlawful , and to obtain a declaration that " all liquidation and/or
sequestration applications of the Consolidated KFH be nullified and that
all unlawful proceeds that persons have benefitted from as a result of
these unlawful benefits form part of the Restitution process as prescribed
by Chapter 6 of POCA ."
42. The first rescission application was dismissed on 30 November 2018 , the
Honourable Acting J ustice Sievers presiding. The Court found that, while
Mr Pienaar purported to act on behalf of shareholders and investors , he
was not entitled as a lay person to do so . On the facts, he did not act in
his own interest or seek to protect or enforce his own rights; and he did
not represent others as contemplated in section 38 of the Constitution .23
The Court found further that the application for rescission was wholly
without merit. Proper cases had at the relevant times been made out for
the liquidation of the companies in the Group, and no basis w as
established to set aside the BinnsWard judgment .24
43. The Court remarked that Mr Pienaar had impugned the integrity of the
respondents in the first r escission application in his heads of argument,
and in court, without any legitimate basis to doing so . This was a
vexatious abuse of process , and his application was dismissed with costs
on a punitive scale .25 Leave to appeal was refused. Applications for
leave to appeal to the Supreme Court of Appeal and the Constitutional
Court suffered the same fate, inter alia on the basis that there was no
reasonable prospect of success on appeal.
23 At paras [ 26]-[27].
24 At para [28].
25 At paras [34] -[36].
44. In the face of these rejections Mr Pienaar launched the second rescission
application in March 2021 . As will be dealt with in more detail below, t he
effect of the relief sought in that application would be to reverse the
winding -up of the King Group through the rescission of all liquid ation and
sequestration " orders/judgments/determinations " that placed the Group
and its controllers (or the estates of its controllers) in liquidation or
sequestration approximately 14 years ago, and the rescission of the
Binns -Ward and the Sievers judgmen ts. Mr Pienaar wants to set the clock
back to 2009, when the liquidation of the King Group began.
45. Mr Pienaar denies that this is the case, but the second rescission
application a ims to re -litigate the first rescission application (dealing as it
does with identical issues and the same parties , albeit casting a wider
net). Additionally, he now seeks the rescission of the Sievers judgment ,
and asks for relief under the Financial Intelligence Centre Act 38 of 2001
(“FICA”) and the Prevention of Organised Crime Act 121 of 1998
(“POCA”) . He has joined eleven "interested parties" to the litigation,
including the South African Reserve Bank , the Prudential Authority,
Nedbank, PwC, the Department of Trade and Industry, the Public
Protector , and the Human Rights Commission.26
46. The first and second respondents in t he second rescission application
delivered their answering affidavit in April 2021, and Mr Pienaar replied in
May 2021. The ap plication was therefore ripe to be set down for hearing.
Yet, Mr Pienaar failed to prosecute the application for more than three
years. He alleged that the second rescission application could not be
enrolled because the F SB (one of the respondents who had initially
indicated that it was opposing) failed to delivered an answering affidavit.
47. The failure of a respondent to deliver an answering affidavit of course
does not prevent the applicant from setting the matter down. The second
rescission applicati on therefore lurked in the background until it was set
down for hearing together with the sequestration and the vexatious litigant
26 None of these parties have taken part in these proceedings.
applications.27
48. The inference to be drawn from this conduct is that Mr Pienaar was not
bona fide in proceeding with the seco nd rescission application . As
counsel for the liquidators remarked , “one may appreciate his dilemma: he
relies on ‘investors ’ to simultaneously fund his litigation and his living costs
- so it simply does not avail him to have hopeless applications finali sed,
for if he gets to the end of that road, he comes to the end of his source of
income ”.
The denigrating statements made in the papers
49. As indicat ed, the Sievers judgment commented on Mr Pienaar’s
unjustified attacks on his opponents ’ reputations . In his answering
affidavit in the present application, Mr Pienaar a ccuses the applicants as
liquidators, and the second applicant (Mr Gore) in particular , of being
guilty of the following offense s or misconduct :
49.1 Fraudulent misrepresentation ;
49.2 Concealment of court documents;
49.3 The liquidators' personnel benefited from the unlawful proceeds of
crime;
49.4 The liquidators unlawfully captured the King Group;
49.5 Mr Gore illegally sold assets forming part of the liquidation;
49.6 Mr Gore obstructed the proper application of the law;
49.7 Mr Gore failed to adhere to his fiduciary duties;
27 On application by the first and second respondents in the second rescission application, and by
subsequent agreement with Mr Pienaar.
49.8 Mr Gore is a corrupt liquidator, and not the only one;
49.9 Collusion between Mr Gore and the South African Reserve Bank;
49.10 Mr Gore lacks independence;
49.11 Fraudulent enquiry summonses were issued;
49.12 The liquidators and other persons are corrupt;
49.13 Money -laundering by the liquidators and by others;
49.14 Recklessness justifying criminal charges , including by the legal
fraternity;
49.15 Perjury; and last but not least,
49.16 Extortion .
50. These are serious allegations , not to be laughed off . Neither Mr Pienaar's
answering affidavit nor any of his other affida vits filed of record in the
matters before this Court contain any facts that either constitute these
offences or that show that the liquidators have acted wrongfully. The
allegations are plainly defamatory.
51. Mr Pienaar also attacks various civil bodies , and is contemptuous of them.
Of particular concern are his attacks on the courts:
51.1 He has complained that there have been " all these ambiguous
orders and judgments, where the courts merely rubber stamp
unopposed applications ", and " The courts failure to dea l fairly with
my cases, is the reason as to why this litigation cannot reach
finality ''.
51.2 He accuse s the Honourable Deputy Judge President Traverso , now
retired, of being influenced by the media and not by the merits of
the case before her.
51.3 He has labelled the Nziweni judgment a "vexatious judgment ...
made without considering the facts ", and has made a complaint
against the Honourable Justice Nziweni at the Judicial Conduct
Committee for "a total unfair bias judgment, which will be rescinded
soon ".
51.4 Regarding this Court having declared him a vexatious litigant in
relation to PwC , Mr Pienaar states : "The court was reckless to
allegedly protect PwC against me. It is in fact, all the victims of this
crime, that need protection against the criminal, inter alia PwC ”.
52. Mr Pienaar does not trust the Court :
52.1 "The court has become a draconic platform to violate citizen's
Constitutional rights ".
52.2 "Our fraud in the legal system in South Africa have
fraudulently omitted to listen to my side of the story, and as a
result of their own bias, allowed all this litigation to follow ”.
52.3 "Sievers J makes a mockery of my whole application, by
justifying his unlawful conduct by accusing me of filing a
confusing NOM ”.
52.4 "I cannot think of a more bias and unfair Judge than Sievers ",
and stating that the Sievers judgment is an “ unfair ” judgment.
52.5 "I have placed all the Judges w ho had any say in my Realcor
proceedings, before the JSC ."28
53. These statements were made in answer to the vexatious litigant
28 All of these complaints have been dismissed by the Judicial Conduct C ommittee.
application . - even the fact that such an application was contemplated had
not given Mr Pienaar pause for thought. His allegations are defamatory
and contemptuous, and devoid of supporting f acts. They demonstrate
that Mr Pienaar does not care about substantiating his emotive responses
to the repeated ly unsuccessful outcomes of his court cases . Those cases
were unsuccessful because they, too, were unsubstantiated.
The criminal charges brought , and threatened, by Mr Pienaar
54. Mr Pienaar does not confine his activities to the civil court , but has also
laid criminal charges against the second applicant, Mr Gore . The charges
included perjury , obstructing the course of justice , failing in his fiduciary
duties , and collusion . They were all un substantiat ed.
55. Mr Pienaar has since obtained the representations made to the National
Prosecuting Authority (“NPA”) on Mr Gore’s behalf, and has been advised
that Mr Gore will not be prosecuted. Th at is not the end of the road for Mr
Pienaar. In the answering affidavit in the vexatio us litigant application he
states that he intends to institute fresh criminal proceedings against Mr
Gore, notwithstanding the NPA's decision not to prosecute . He plans,
further, to obtain nolle prosequi certificates to enable him to bring private
prosec utions against " all of the accused adversaries ". It is these
threatened private prosecutions which the liquidators seek to interdict.29
Mr Pienaar’s defence to the relief sought in the vexatious litigant
application
56. It is difficult to discern Mr Pienaar's defences to the relief sought against
him from his 317-page answering affidavit .30 The issues are unfortunately
clouded by a myriad of irrelevant and wide -ranging extraneous
information , cast in emotive language. Throughout the affidavit he labels
the winding up of the King and Realcor Groups and the conduct of the
liquidators , the courts , and other parties as corrupt, abusive, criminal, and
29 The interdictory relief sought is dealt with in more detail below.
30 Not counting the annexures.
fraudulent . These allegations do not serve as a defence . On the contrary ,
they emphasise the need for the grant of the relief sought. Mr Pienaar
views himself as a "whistle -blower" , probably in an attempt to overcome
the hurdle that - as the Sievers judgment found – Mr Pienaar had no locus
standi in the first rescission appli cation .31
57. Mr Pienaar ’s central defence to the vexatious litigant application is that he
submits that his narrative will be proved to be correct through the
evidence of an investigator at the Companies and Intellectual Properties
Commission (“CIPC”) by the surname of Zwane. According to Mr Pienaar,
he is await ing a report from Mr Zwane , which report would endors e Mr
Pienaar's allegations of malfeasance committed by the various authorit ies,
the courts, and the liquidators of the property syndication schemes. He
says that his narrative, including the Zwane report, contains information
which undoes a series of court orders granted since 2009, and that this
Court must consider whether “ with this information, the sword of
Damocles can be held over my head with the sequestration and vexatious
applications should [sic] continue. This will amount to extortion ”.
58. According to Mr Pienaa r, Mr Zwane has already published a 26 -page
report on 25 July 2022 . That report is not attached to any of Mr Pienaar’s
affidavit s in the proceedings before this Court , and its content is unknown .
Mr Pienaar is expecting another report from Mr Zwane.
59. Mr Zwane ’s involvement in the matter came about when he took up a
complaint lodged by Ms Deonette De Ridder, the founder of the Realcor
property syndicat e. Having considered the complaint, Mr Zwane felt that it
had some merit, and decided to investigate the activ ities of the South
African Reserve Bank (“SARB”) prior to 2012 in relation to the Realcor
Group.
60. There are several problems with Mr Pienaar’s Zwane defence. The first
and overall issue is that CIPC, Ms De Ridder, and SARB, and their historic
relationship with one another, are irrelevant to the applications presently
31 The respondents in the second re scission application have again raised the issue of locus standi .
before this Court . These parties are not before the Court as respondents,
and much of what is complained about by Ms De Ridder constitutes res
judicata , having been dealt with by the courts over the years since 2012.
61. The second issue is that Ms De Ridder's complaint and CIPC's letter in
reply to her , specifically, are irrelevant to the present applications. Mr
Pienaar is correct in stating that Mr Zwane wrote a letter on 10 October
2023 , which does form part of the papers, in reply to Ms De Ridder's
complaint , and that the tone of the letter is a positive one. Mr Zwane
appears to have concluded that there may be something in the complaint ,
and he notifies her that he intends to undertake further investigat ions. He
cites section 41 of the Constitution, 1996, which provides that organs of
State must co -operate with one another , and indicates that a preliminary
and a final report from ClPC will be published after CIPC has consult ed
with the relevant bodies .
62. Mr Pienaar says in his answering affidavit that, as soon as th is substantive
CIPC report is to hand, he will put it before the Court , thus promising more
litigation . In a “circular ” addressed to his “clients” and follow ers, he
predict s what the report will say:
"To us this report will be as good as a court order/ judgment. ... The
findings of this report, I believe will show that the SARB BSD and/or FSB
and/or others had acted unlawfully, ma/a tides, ultra vires and
unconstitutionally. If we get this verdict, it will confirm all the merits I had
asked the courts to confirm, over the past few years, but which they all
failed to do.
This independent report will be enough to show that the Courts were
biased; the WC NPA were corrupt not to investigate my a llegations earlier;
that the legal fraternity deliberately misled the courts; and that prior to
now, the FIG had never been taken seriously.
I cannot think of a bigger case of corruption being exposed in South
Africa's histo ry, and the good part is, that the State will help us get
restitution and compensation. "
63. According to Mr Pienaar's circular, Mr Zwane's investigations were well
underway and the inter -regulatory meetings between the organs of state
like CIPC and SARB that he appeared to think were the nub of the matter,
were expected to take place from January 2023 to March 2023. Two years
later there is still nothing more from Mr Zwane.
64. It is, in my view, highly improbably that a substantive report will be
produced by CIPC that can serve to reverse the decade -old history of the
liquidation of the companies in the property syndication schemes. Having
regard to the details set out in the papers regarding the financial state of
the King and Realcor Groups, it appears that the companies forming part
thereof were hopelessly insolvent, and fell to be wo und up as a matter of
law to pay creditors and salvage a dividend for investors. Whether organs
of State duly consulted one another at the relevant time in terms of section
41 of the Constitution is plainly irrelevant to the financial implosion of the
groups.
65. It follows that Mr Zwane is not the saviour that Mr Pienaar makes him out
to be, and his pending report - whether eventually published or not - is
irrelevant to these proceedings.
66. The third issue is that , even if what Mr Pienaar says could remotely be
correct , none of this assists him in the present applications. He has no
locus standi in Ms De Ridder's complaint. Even if the final CIPC report
was overwhelmingly in support of Ms De Ridder and it appeared (bearing
in mind that such allegations would still have to be proved ) that, in the
opinion of ClPC, she was entitled to damages of some sort from SARB for
their conduct in investigating the Realcor Group, Mr Pienaar would not be
entitled to any such damages personally , nor would he have the
necessary locus standi to claim them on behalf of anybody else.
67. Mr Pienaar has accordingly not raised a sustainable defence to this
application.
Conclusion on the relief sought under the Vexatious Proceedings Act
68. It is clear from what is set out above that Mr Pienaar has persistently
instituted proceedings without having reasonable grounds for believing
that they would meet with success. The bases upon which he litigates are
without merit , bad in fact and in law. The litigation is obviously
unsustainable as a certainty, not merely on the probabilities.32 No case is
made out in any of his papers, which comprise of densely -composed
conspiracy theories and defamatory allegations against everyone who
does not agree with him, including the courts .
69. As indicated ea rlier, t he Constitutional Court in Beinash stated33 that there
are two categories of persons who f all to be protected in this type of
matter . The first are the victims of the vexatious litigant , who are
subject ed to costs, harassment , and embarrassment in pleading . The
second category is the public interest in having unimpeded a ccess to
functioning courts. The present case has an overlapping interest group
that ought to be protected , namely the members of the public from whom
Mr Pien aar continues to solicit funds to keep his livelihood and his
litigation going.
70. As indicated at the outset of this judgment, an application for the
sequestration of Mr Pienaar's estate has now been brought .34
Sequestration will not, however, prevent him f rom launching or
progressing further spurious litigation. In terms of section 23(6) of the
Insolvency Act 24 of 1936, an insolvent may sue in his own name in
matters that do not affect his estate. The applications which Mr Pienaar
has launched, and the con templated criminal proceedings, do not affect
his estate but concern the affairs of the Realcor Group and King Group. A
sequestration order would no t be an impediment to continued litigation in
these respects.
32 Department of Co -Operative Governance and Traditional Affairs v Maphanga supra at para [25] ,
discussing the common law position: “ It had to be shown that the respondent had ‘habitually and
persistently instituted vexatious legal proceedings without reasonable grounds. Legal proceedings
were vexatious and an abuse of the process of court if they were obviously unsustainable as a
certainty and not merely on a preponderance of probability. ”
33 Beinash supra at para [15].
34 The sequestration application is considered below.
71. In all of these circumstances, I am of the view that a clear case has been
established against Mr Pienaar , whether under section (2)(1)(b) of the Act
or the common law , and that he falls to be declared a vexatious litigant.
Security for costs
72. The liquidators additionally seek an order that , should Mr Pienaar be given
permission to litigate, he would be obliged to provide security for costs. In
Boost Sports Africa (Pty) Ltd v South African Breweries (Pty) Ltd35 the
Supreme Court of Appeal endorsed the requirement of security for costs
in litigation by vexatious litigants as follows:
"In Western Assurance Co v Caldwell's Trustee (1918 AD 262) this court
laid down that a court of law had inherent jurisdiction to stop or prevent a
vexatious action as being an abuse of the process of the court; one of the
ways of doing so is by ordering the vexatious litigant to give security for
the costs of the other side , and I know of no reason why the court below
should not have [exercised] such an inherent jurisdi ction. "
73. Mr Pienaar litigates using other people's money , being that of the
investors from whom he solicits funds . Considering the audience in court
on the day of the hearing of this application, he has a committed group of
followers who adhere to his adv ice and who believe in his powers as
litigator . He has run up millions of rands in costs orders that he does not
and cannot pay . It appears that he is proud of the fact that he owes
millions of rands in unpaid costs orders. It would, in my view, be in t he
interest of justice for this Court to e xercise its inherent jurisdiction in
ordering that Mr Pienaar must provide security for costs should he be
granted permission to litigate. This will be reflected in the order granted at
the end of this judgment.
The interdictory relief sought by the liquidators
74. Apart from relief under the Act, the liquidators see k interdictory relief
35 2015 (5) SA 38 (SC A) at para [15].
against Mr Pienaar , to the effect that he be prohibited from taking any
further steps in relation to the second rescission application; and further
that he be interdicted from instituting and conducting private prosecutions
against any of the targeted parties.
75. Mr Pienaar's past conduct suggests that should th is Court decide the
second rescission application against him, this will not deter him – he will
seek to have the judgment rescinded or to apply for leave to appeal
against it. Given the conclusion to which I have come in the vexatious
litigant applicatio n, however, I do not think that interdictory relief is
necessary in this respect . Mr Pienaar will have to comply with the terms
of the order that declares him a vexatious litigant should he wish to pursue
any further litigation , including the taking of fu rther steps in respect of the
second rescission application .36
76. The threatened private prosecutions are on a different footing. In Zuma v
Downer and another37 the Supreme Court of Appeal remarked:
“The mere decision to prosecute can have a far -reaching impact on an
accused person’s life. It should not be lightly made, because even if an
accused is ultimately acquitted, the harm already suffered could prove to
be irreparable. As Howie P pointed out in S v Western Areas Ltd and
Others: ‘A criminal trial cuts across a number of an accused person’s
fundamental rights. Attendance at the trial, even if on bail, limits freedom
of movement and even the right to liberty is curbed to an extent .’”
77. An application to interdict a private prosecution is competent in law.
Where a prosecutor undertakes a prosecution with an ulterior purpose,
and not with the object of having justice done, such prosecutor is able to
harass the accused and fraudulently defeat their rights, allowing the courts
to be used for the oppression of an adversary. In the context of a private
prosecution, the question is thus whether the prosecution is instituted for
some collateral purpose, rather than with the object of having crimina l
36 Reference has been made earlier in this judgment to the fact that the High Court has long had the
inherent power to stop frivolous and vexatious proceedings pending before it.
37 2024 (2) SA 356 (SCA) at para [24].
justice done.38
78. The S upreme Court of Appeal in Zuma confirmed39 that a civil court will
grant an interdict to set aside a private prosecution if it amounts to an
abuse , or is vexatious or irregular . The Court has th e power - and the duty
- to prevent ab use of its process. I agree with the liquidators that , given
the background to this saga, Mr Pienaar's charges against Mr Gore are
patently without substance. There is no reason to think that his other
contemplated prosecutions will have merit. It would be vexatious and an
abuse of process to allow the institution of proceedings that are obviously
unsustainable as a certainty.40
79. The requirements for a final in terdict are well -established :41
79.1 The liquidators and other targeted parties have a clear right to
protect their reputations from criminal proceedings vexatiously
launched . They have the right not to suffer the indignity of facing
criminal charges and the t hreat of criminal charges.42
79.2 There i s ongoing reputational harm inherent in the threat of private
prosecution, especially given the blatantly defamatory manner in
which Mr Pienaar frames his affidavits and other communications in
his quest to prove his narrative . His constant interventions hamper
the liquidators in the proper execution of their work, to the
determinant of creditors and other stakeholders.
79.3 The liquidators have no alternative remedy available to stop the
threatened private prosecutions.
80. Once the requirements for a final interdict are met, the Court nevertheless
has a discretion ( to be exercised judicially) to refuse such relief .43 In
38 Zuma v Downer and another supra at para [26].
39 At para [31].
40 Zuma supra at para [28].
41 Laskey and another v Showzone CC and others 2007 (2) SA 48 (C) at para [41].
42 Zuma supra at paras [23] -[24].
43 See Laskey supra at paras [41] -[45].
considering the matter, I do not think that there is scope for the refusal of
the interdict against private prosecution sought in the present matter . Mr
Pienaar has engaged in persistent and vexatious litigation over many
years, without success . He has used other people's money , and has
never pa id a costs order . The NPA has refused to prosecute the criminal
charges already brought, as those charges were without substance. Mr
Pienaar intends to resurrect those charges by way of his planned private
prosecutions.
81. I accordingly find that the liquidators have met the requirements for final
interdictory relief in relation to the threatened private prosecutions, and
that such relief should be granted against Mr Pienaar.
82. I turn , against this background, to consider the second rescission
application.
THE SECOND RESCISSION APPLICATION
The nature of the second rescission application
83. As would by now be clear, Mr Pienaar’s second rescission application is
so called because he had previously instituted a "first” rescission
application . In that application , issued in August 2016, Mr Pienaar
attempted inter alia to rescind the Binns -Ward judgment, to declare the
actions of the F SB44 in relation to their investigations into the King Group
unlawf ul, and to obtain a declaration that " all liquidation and/or
sequestration applications of the Consolidated KFH be nullified and that
all unlawful proceeds that persons have benefitted from as a result of
these unlawful benefits form part of the Restitutio n process as prescribed
by Chapter 6 of POCA ."
84. The first rescission application was dismissed on 30 November 2018 by
the Sievers judgment. An application for leave to appeal was denied by
the High Court as well as, subsequently, by the Supreme Court of A ppeal
44 As it was then ca lled.
and the Constitutional Court Despite these dismissals, Mr Pienaar
instituted the second rescission application in March 2021 .
85. He describes45 the purpose of his resurrected application as follows: “ My
rescission application is brought primarily to declare that the court was
fraudulently misrepresented in court cases in the past, and that my
adversaries had acted unlawfully, ultra vires and mala fides. As a result,
the court must establish the correct facts and law to establish the corr ect
narrative, and grant applicant the relief sought, for this fraud, corruption
and money laundering of his adversaries” .
86. This description gives some idea of the scope of Mr Pienaar’s argument ,
and the goal that he has in mind . I have anxiously consider ed Mr
Pienaar’s affidavits and his extensive heads of argument , and listened to
the oral argument presented, to discern any basis upon which this Court
should, or could, come to his assistance. None presented itself .
87. The striking feature of the second re scission application is that it is a
rescission application brought by the party who was the applicant in the
original application (against parties who are cited in the present
application) , who attended at the hearing of the matter – a hearing that
was regular in every respect - and who had his application dismissed, with
costs. Rescission of judgment is not a remedy available to such an
applicant. He had a ppeal remedies, but he has exerc ised all of them, and
failed.
88. Mr Pienaar is intent upon recycling his narrative. For example, i n the
founding papers in the second recission application he makes scandalous
and unsubstantiated remarks about the conduct of the FSB and of Mr
Anderson. Stri pped of the emotive verbiage, Mr Pienaar contends that the
inspection of KFH conducted by the FSB was unlawful, and that the
affidavit deposed to Mr Anderson in support of Mrs Zera's liquidation
application contributed to the unjustified demise of the King Group.
45 In a practice note dated 29 October 2024.
89. These allegations are for the most part a repetition of those made against
the FSB by Mr Pienaar in the first rescission application. The allegations
were fully answered in that application, and were found by the Sievers
judgment to be without merit. This is clear from the comments made by
that Court in support of the punitive costs order he granted against Mr
Pienaar:
"[34) Another unsatisfactory aspect is that [Mr Pienaar] impugned the
integrity of the Respondents in his affidavits, his heads of argument and in
argument before the court without any legitimate basis for doing so.
[35) This constitutes a vexatious abuse of process of court. "
90. The FSB respondents have again answered the allegations made by Mr
Pienaar and have set out the legislative framewor k within which their
investigation and subsequent report had been conducted. There is
nothing far -fetched or untenable in the ir version , and the disputes of fact
between their version and Mr Pienaar's narrative therefore fell, and fall, to
be decided on t he version put up by the FSB respondents, in accordance
with the Plascon -Evans rule. Mr Pienaar’s extensive, but contested,
allegations of fraud against the FSB and other persons should in any
event not be determined on motion .46
91. Mr Pienaar is persistent in his contention that the present application is
not a n attempt to revisit the previous one because of the fact that he has
incorporated additional relief (including relief under POCA and FICA) to
the original relief requested , and by citing various “interested parties ” in
addition to the original respondents. He must also now apply not only for
the rescission of the BinnsWard judgment, but for the rescission of the
Sievers judgment for any of this to make sense.
92. I am of the view that the dre ssing up of the original application by the
incorporation of addition al relief is a transparent abuse of process in the
particular context of this litigation. T he second rescission application is
46 Prinsloo NO and others v Goldex 15 (Pty) Ltd and another 2014 (5) SA 297 (SCA) at paras [18] -
[19].
nothing but an appeal pretending to be something else , the legitimate
avenue to appeal having already been closed. It is an attempt to relitigate
the first rescission application. A party cannot seek to invoke the process
of rescission to obtain a re -hearing on the merits.47 These machinations
alone constitute a basis upon which to dismiss the second rescission
application.
93. The notice of motion serves as a stark illustration of the situation. Mr
Pienaar seeks an order declaring the following:48
“1.1 the Court has fraudulently been misrepresented in WCHC case
13665/201649 and others to believe that the Respondents were
doing a bona fide and intra vires administrative inspection of the 1st
Respondent and ‘related’ persons and entities; and/ or
1.2 the 3rd and 4th Respondents (collectively referred to as the FSB
Respondents) had in fact conducted an autocratic criminal
investigation with effect from 18 December 2008 without adhering
to the rule of law; and/ or
1.3 the FSB Respondents must be duly joined and severally liable, with
the necessary resolution and authorities, confirming that they
support the actions and conduct of the nomine officious cited and/
or their predecessors nomine officious, should they deny the
allegations made by Applicant in this application; and/ or
1.4 The FSB Respondents and/ or oth ers ‘related’ to this investigation,
fraudulently concealed and misrepresented all other interested
parties that it had acted according to the rule of law, albeit that they
had in fact obstructed the course of justice and applied their own
law; and/ or
47 Zuma v The Judicial Commission of Inquiry and o thers 2021 (11) BCLR 1263 (CC) at para
[68].
48 Mr Pienaar’s numbering, spelling , and use of grammar have been retained.
49 That is, the Sievers judgment.
1.5 Applicant has provided an investigation founding affidavit with
regards to these fraudulent and unlawful actions and requests the
court to confirm that the actions of these FSB Respondents, are in
fact a criminal offences; and/ or
1.6 That the 7th Respond ent and the 3rd and 4th Interested Parties can
use this investigation in order to prepare the necessary Application
in terms of Chapter 6 of POCA; and/ or
1.7 The prosecuting authorities, cited and provided with the evidence of
these applications, are comp elled in terms of their mandate to
consider the fraud and corruption placed before it, and in the
interest of justice and public interest, consider prosecuting the 2nd
to 5th Respondents for their role in this money - laundering collusion;
and/ or
1.8 Appli cant wants to make sure that in the interest of the public, that
criminal investigations are not delayed further, as the investors
have been waiting for ten years for answers. The causation of the
First Respondent (and related companies) implosion, which has
prejudiced so many victims, can be determined by the evidence
before court in these proceedings; and/ or
1.9 Should the 7th Respondent and the 3rd and 4th Interested Parties
wish not to prosecute against the persons identified in this
investigations affidavit, that Applicant be provided with the
necessary nolle prosequi in order to take further actions; and/ or
1.10 As a result of the fact all ‘related’ ord ers/ judgments/ determinations
related to Kings have been based on fraudulent misrepresentation
which has been based on illegality, Applicant seeks the Court to
rescind all related orders/ judgments/ determinations to be declared
void ab initio; and/ or
1.11 Applicant has joined and/ or cited as many of the dominant
interested parties as possible in these proceedings, as prescribed
by Rule 42 of the rules of Court; and/ or
1.12 The Court accepts the interested Parties joined as sufficient insofar
they are t he only interested parties that are duly legally represented
and should understand this complex saga; and/ or
1.13 That should the Court appoint a curator via the actions of the
NDPP, that the curator be directed to coordinate all future
proceedings with t he Applicant; and/ or
1.14 Further and/ or alternative relief, which may include: -
14.1 Declaring that the 4th Interested Party (FIC) is hereby notified
of this suspected unlawful conduct by the FSB Respondents
and should intervene with the necessary Supe rvisory bodies.
The merits have already been placed before them in this
case.
14.2 Declaring that the NDPP (7th Respondent) should intervene
and apply FICA and POCA to these proceedings, namely
filing for a preservation order and restituting the captured
fixed properties to the victims of this corruption and crime via
the Asset Forfeiture unit.
14.3 Declaring that should the NDPP not wish to intervene, based
on the merits placed before it and/ or with further
investigations, that they issue a nolle proseq ui in terms of the
charges against the FSB respondents, without further
delaying this matter.
14.4 Declaring that should a nolle prosequi be obtained, that
Applicant may apply private prosecution.
1.15 Directing that costs of the case be considered in terms of the Bio
watch principle.
C. … as a result of the Respondents’ patent errors, ambiguities and
omissions of fact and law, apparently fraudulently misleading the court,
Applicant has prepared this Application in terms of Rule 42 for a
rescission of the judgment in WCHC case no 13665/2016. ”
94. The formulation content of this relief speaks for itself.
95. The first and second respondents oppose , in particular, the relief sought in
prayers 1.1, 1.7, 1.1 0, and paragraph C of the notice of motion, which is
the relief that directly applies to them insofar as it seeks a rescission of the
Sievers judgment , and relief that is dependent upon the rescission of the
Sievers judgment . It appears that the relief soug ht in prayers 1.1 to 1.5 of
the notice of motion pertain s to the third and fourth respondents .
96. These respondents are all agreed that no case has been made out for any
of the declaratory relief sought.
97. As indicated, I have considered the affidavits delive red in support of the
relief sought . They rely heavily upon interpretations of the provisions of
the Constitution and other legislation. These are weaved amidst
allegations of ineffectiveness and criminality of the administrative
authorities involved, and Mr Pienaar’s inability to get redress because of
the corrupt nature of the legal profession and the various institutions of
justice, including the judges who have presided over his cases .
98. It is clear, sadly, that Mr Pienaar has been and will be dissatisfied with any
finding made against what he perceives as the truth and as justice. He
appears in this application to be “litigating” his allegations against
whomever he can reach in the hope that it would give him a fu rther bite at
the cherry. He is frustrated with the law, and the way that the legal
system operates.
Mr Pienaar’s lack of locus standi
99. A further fundamental problem with the second rescission application is
that Mr Pienaar clearly has no locus standi to act on behalf of the persons
that he purports to represent. This issue was deal t with in detail in the
Sievers judgment in 2018. The Court found that Mr Pienaar did not have
locus standi in the litigation he had allegedly undert aken on behalf of the
former investors. This was because he had no direct and substantial
interest in the relief sought . He had been a broker of the property
syndication schemes; not an investor who, having lost money, had a claim
in the liquidation of the group. He had no authority to represent thousands
of investors, as he is a layman and therefore not entitled to represent
other parties.
100. This situation persists in the second rescission appli cation. Mr Pienaar
states in his notice of motion that “ the application is made by the Applicant
on behalf of thousands of investors in terms of Section 38 of the
Constitution as a result of the fact that they have had their Rights
prejudiced and/ or infr inged in terms of Sections 1(c), 8, 9, 22, 25, 32, 33,
34, 35 and 39 of the Bill of Rights. Constitutional matter has also been
infringed regarding Sections 41, 165, 167(4), 172, 173, 178, 195, 205 and
223 to 225 of the Constitution” .
101. Simply invoking the Constitution does not clothe one with locus standi .
There is no substantiation on the papers for Mr Pienaar’s contention that
he falls within the categories provided for in section 3850 of the
Constitution in relation to those he represents , or for the c ontention that he
is acting the public interest .51
102. Nowhere in Mr Pienaar's extensive founding affidavit does he set out how
his rights are impacted by the KFH liquidation. On his own version he acts
50 “Anyone listed in this section has the right to approach a competent court, alleging that a right in
the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief,
including a declaration of rights. The persons who may approach a court are -
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members. ”
51 See Ferreira v Levin NO and others 1996 (1) SA 984 (CC) at pa ra [233].
only "on behalf of thousands of investors". This is not sufficient:
“In terms of s 19(1)(a)(iii) of the Su preme Court Act 59 of 1959, an
applicant for a declarator must show that he has an interest in an existing,
future or contingent right. The right must attach to the applicant and not be
a declaration of someone else's right. … In the present case the right
upon which a declarator is sought is that of the oil company and the
applicant has only a derivative interest. The fact that the applicant is
affected both commercially and financially does not convert his derivative
interest into a legal right. See Unite d Watch & Diamond Co (Pty) Ltd and
Others v Disa Hotels Ltd and Another 1972 (4) SA 409 (C) at 417B; …” 52
103. Mr Pienaar purports to act on behalf of other persons but is not a legal
practitione r. Section 33 (1) of the Legal Practice Act 28 of 2014 provides,
in relevant part, as follows:
“(1) Subject to any other law, no person other than a practising legal
practitioner who has been admitted and enrolled as such in terms of this
Act may, in expectation of any fee, commission, gain or reward -
(a) appear in any court of law or before any board, tribunal or
similar institution in which only legal practitioners are entitled to
appear; or
(b) draw up or execute any instruments or documents relating to or
required or intended for use in any action, suit or other
proceedings in a court of civil or criminal jurisd iction within the
Republic .”
104. Mr Pienaar is in blatant contravention of these provisions. By his own
admission he lives off the funds that he obtains from the persons whom he
purports to represent.
52 Unicorn Lines (Pty) Ltd v Commissioner of Customs and Excise and another 1997 (1) SA 369 (D)
at 375C -E.
105. He has not obtained the leave of the Court to represent these “clients”
despite his status as a layperson . In Manong & Associates (Pty) Ltd v
Minister of Public Works and another 53 the Supreme Court of Appeal held
as follows in relation to the High Court’s inherent powers to regulate its
own process:
“[14] I have expressly refrained from formulating a test for the exercise of
the court's inherent power as I believe that such cases can confidently be
left to the good sense of the judges concerned. Lest this be misconstrued
as a tacit or general licence to unqu alified agents, it needs be emphasised
that in each such instance leave must be sought by way of a properly
motivated, timeously lodged formal application showing good cause why,
in that particular case, the rule prohibiting non -professional representation
should be relaxed. Individual cases can thus be met by the exercise of the
discretion in the circumstances of that case. It would thus be
impermissible for a non -professional representative to take any step in the
proceedings, including the signing of ple adings, notices or heads
of argument … without the requisite leave of the court concerned first
having been sought and obtained .
[15] This approach, in my view, is consistent with the right enshrined in s
34 of the Constitution, which provides that everyone has the right to have
any dispute that can be resolved by the application of law decided in a fair
public hearing before a cour t, or, where appropriate, another independent
and impartial tribunal or forum. Emphasising that the courts have a duty to
protect bona fide litigants and the importance of untrammelled access to
the courts, the right enshrined in s 34 has variously been de scribed by the
Constitutional Court as 'fundamental to a democratic society that
cherishes the rule of law', 'of cardinal importance . . . that requires active
protection', foundational for 'the stability of an orderly society', and a right
that 'ensures t he peaceful, regulated and institutionalised mechanisms to
resolve disputes, without resorting to self help' and serves as 'a bulwark
against vigilantism, and the chaos and anarchy which it causes'.”
53 2010 (2) SA 167 (SCA) at para s [14]-[15]. Emphasis added.
106. It does not assist Mr Pienaar to say that he, as a lay person, was not
aware of his lack of standing . The issue was raised squarely in the first
rescission applicatio n, as well as in an application for security for costs54
that preceded the first rescission application. The Sievers judgment dealt
with the ma tter in no uncertain terms , concluding that :
''[17] The Applicant [Mr Pienaar] was made aware of the need for such an
application [leave from the Court for a layman to represent another] in an
interlocutory judgement handed down by Ndita J on 28 July 201 7. He
nevertheless failed to bring any such application. The present application
must accordingly fail on this ground alone. "
107. As indicated, Mr Pienaar’s applications for leave to appeal against the
Sievers judgment w ere dismissed, three times. It follows that Mr Pienaar
has not demonstrated the requisite locus standi to seek any of the relief
(insofar as the grant of such relief may be competent) set out in the notice
of motion.55 The second rescission application stand s to be dismissed on
this basis alone.
Rescission of the Sievers judgment
108. The issue of locus standi aside, w hen the requirements for the rescission
are met, the Court may exercise its discretion in deciding whethe r it is in
the interests of justice to rescind a judgment.56 There is no general
discretion to rescind a judgment.
109. The second rescission application fails at the first hurdle. There is no
factual basis discernable from Mr Pienaar’s papers to fulfil the
requirements of any of the subrules of Rule 42.
109.1 The Constitutional Court has confirmed that "absence" is an
54 Under case number 13665/2016.
55 Mr Pienaar was questioned on this issue by the Court at the hearing. He relied on the argument
that he had “peculiar knowledge of the matter” as a basis for locus standi .
56 Zuma supra at para [50].
essential requirement of Rule 42(1)(a).57 It is common cause that
Mr Pienaar was present at the hearing of his application before
Acting Justice Sievers , and no judgment or order was erroneously
sought or granted in Mr Pienaar’s absence .
109.2 There is no support for the contention that the Sievers judgment
contains an ambiguity or a patent error or omission as
contemplated in Rule 42(1)(b).
109.3 There is also no basis to hold that the Sievers judgment was
granted as a result of a mistake common to the parties, as provided
for in Rule 42(1)(c).
110. It is not clear whether Mr Pienaar also seek s rescission under the
common law but there is, in any event, no scope for such relief . The
Supreme Court of Appeal has set out the relevant principles .58 The
guiding principle of the common law is the certainty of judgments. Once
judgment is given in a matter , it is final. It may not thereafter be altered by
the judge who delivered it. He or she becomes functus officio and the
court may not ordinarily vary or rescind its own judgment. That is the
function of an appeal court.
111. There are exceptions. After evidence is led and the merits of the dispute
have been determined, rescission is permissible only in the limited case
of, firstly, a judgment obtained by fraud or, exceptionally, iustus error.
Secondly, rescission of a judgment taken by default may be ordered
where the party in default can show sufficient cause .59 There are , thirdly,
certain exceptions which do not relate to r escission as such but to the
correction, alteration and supplementation of a judgment or order.
112. None of these grounds apply to the facts of the present matter. In
particular, and despite Mr Pienaar's allegations, the Sievers judgment was
not obtained by fraud or any error (iustus or otherwise) on the part of the
57 Zuma supra at para [61].
58 Colyn v Tiger Food Industr ies Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) at para [4].
59 Colyn supra at para [11].
Court . In this regard, Mr Pienaar frames his case for rescission as follows
in his founding affidavit:
112.1 "The Court was fraudulently misrepresented to believe the correct
legal application of law had been applied' .
112.2 "Criminal proceedings should have been dealt with before
proceeding with the civil actions" .
112.3 "Lifting of the corporate veil judgment [i.e. the Binns -Ward
judgment] should have preceded the unopposed liquidation
applications" .
112.4 "... reliance on the state to apply the rule of law"; and
112.5 An argument that the Court should provide restitution.
113. The second and third reasons above are not legally sustainable
propositions - there is no set order in which the various court actions and
applications had to proceed. Propositions four and five are vague legal
statements and the contentions advanced under those headings in the
affidavit do not provide grounds for rescission of judgment.
114. That leaves Mr Pienaar's co ntention that Acting Justice Sievers was
"fraudulently misrepresented to" .
115. A judgment may be set aside, at common law, on the grounds of fraud
and iustus error for the good reason that a judgment procured by the fraud
of one of the parties, whether by for gery, perjury or in any other way such
as fraudulently withholding material documents, cannot be allowed to
stand.60 The successful party must have been privy to the fraud.61
116. Although Mr Pienaar alleges that this Court ( and all of the courts that he
60 J.A.N v N.C.N [2022] ZAECMKHC 14 (17 May 2022) at para [30].
61 Fraai Uitzicht 1798 Farm (P ty) Limited v McCullough and others [2020] ZASCA 60 (5 June 2020)
at para [17].
wishes to implicate in the relief that he seeks) was "fraudulently
misrepresented to" it is apparent that the hearing before Acting Justice
Sievers was regular in all respects . The Court duly had regard to and
weigh ed Mr Pienaar's case , including the allegati ons of fraud and
corruption raised at that stage . There was no fraud or mistake or other
irregularity in relation to the hearing itself , and Mr Pienaar has not alleged
any. All of this was confirmed by the fact that his applications for leave to
appeal were unsuccessful. There was no fraud or iustus error .
117. In the circumstances, an application for rescission under the common law
- if in fact such relief ha s been sought - must fail.
The declaratory relief sought
118. The declaratory relief sought in prayers 1.1, 1.7 , 1.10, and elsewhere in
the notice of motion is dependent upon the rescission of the Sievers
judgment . It is on ly upon rescission that Mr Pienaar would be entitled to
bring a fresh application in which to make out his case for the declaratory
relief sought . Absent rescission, the declaratory relief is sought in a
vacuum.
119. As to the third and fourth respondents, in prayer 1.1 of the notice of
motion Mr Pienaar seeks an order declaring that these respondents (the
FSB respondents) made fraudulent misrepresentations to Acting Judge
Sievers in the first rescission application (and other unidentified matters).
In prayers 1.2 and 1.4 Mr Pienaar seek a declaration that the investigation
conducted by the FSB respondents in 2008 was “an autocratic criminal
investigation" conducted fraudulently and in violation of the rule of law. In
prayer 1.3 Mr Pienaar asks for an order de claring that the FSB
respondents must be "joined and severally liable" . He clearly means
“jointly” and severally, but no detail is given in relation to what the FSB
respondents must be held liable for , or how such liability is to be
determined. In prayer 1.5 Mr Pienaar seek s an order declaring t hat he
(Mr Pienaar ) has provided "an investigation founding affidavi t' and that the
conduct of the FSB respondents is a criminal offence.
120. However, nowhere in Mr Pienaar' s founding affidavit of almost 600 pages ,
his 52-page supplementary affidavit, or his 132 -page replying affidavit , are
there facts which support the relief he seek s.
121. Declaratory relief may be granted in terms of section 21(1)(c) of the
Superior Courts Act 10 of 2013. A High Court may enquire into and
determine any right notwithstanding that the applicant cannot claim any
relief consequential upon such determination. However, such declaratory
relief may only be claimed by an interested person with an identifiable
right and courts will not decide abstract, academic , or hypothetical
questions.62
122. The Supreme Court of Appeal recently reiterated the test f or the grant of
declaratory relief:63
“In terms of s 21(1)(c) of the Superior Courts Act 10 of 2013, a High Court
may, in its discretion, and at the instance of any interested person,
enquire into and determine any existing, future or contingent obligatio n,
notwithstanding that such person cannot claim any relief consequential
upon the determination. The applicant who seeks declaratory relief must
satisfy the court that he or she is a person interested in an 'existing, future
or contingent right or obli gation' and then, if satisfied on that point, the
court must decide whether the case is a proper one for the exercise of the
discretion conferred on it. The question must be examined in two stages. "
123. As to the first stage of the enquiry , it cannot be said that Mr Pienaar is a
person interested in an "existing, future or contingent right or obligation"
on the papers. It has already been found that he has no locus standi or
interest in the matter . This was the finding, too, in the Siever s judgment.
124. Second, e ven if the Court were satisfied that Mr Pienaar had locus standi ,
62 Association for Voluntary Sterilization of South Africa v Standard Trust Limited and others
[2023] ZASCA 87 (7 June 2023) at paras [7]-[14].
63 Pasiya and others v Lithemba Gold Mining (P ty) Ltd and others 2024 (4) SA 118 (SCA) at
para [46]. Emphasis added.
this would not be a proper case for the exercise of the Court's discretion.
The aim of Mr Pienaar's bid to overturn the Sievers judgment in the
present application is to open the way to overturning the Binns -Ward
judgment , and in turn the other liquidation applications that had been
brought in the King Group. These matters were all determined f rom about
2009 onwards , and are res judicata.64 Mr Pienaar will therefore not be
able to achieve what he hopes to achieve via the rescission of the Sievers
judgment.
125. In this regard, the present matter is similar to the situation in Pasiya :65
“… this was not a case where the court ought to exercise its discretion in
favour of granting the declaratory order sought. This was so, reasoned the
High Court, because the appel lants unduly delayed in approaching the
court for their relief which they sought. The appellants only sought the
court's intervention in 2020, imploring it to 'turn the wheels back to the
position prevailing in 2009'. It found that whilst the appellants di d nothing
to vindicate their rights, LM and other shareholders proceeded to organise
their lives, planned and conducted the business in accordance with the
position after the dilution of the shares, and a number of decisions had
been made since 2009. relying upon resolutions which the appellants
belatedly sought to be declared unlawful. "
126. Mr Pienaar’s attempt to undo more than 1 5 years of litigation through the
declaratory relief sought is a non -starter. At this juncture the practical
difficulties in setting aside and attempting to reverse the liquidation of the
King Group are insurmountable. Courts do not make orders which cannot
be enforced.
127. Third, t here is, in any event, and apart from Mr Pienaar’s narrative, no
suggestion that any of the liquidati on applications or the Binns -Ward
judgment were improperly decided . There is no dispute that the
companies in the King Group were hopeless ly insolven t, and that they fell
64 See Board of Governors of Mitchell House School and others v Maluleke [2025] ZASCA 15 (25
February 2025) at para [8].
65 Pasyia supra at paras [47] -[48]. Emphasis added.
to be wound up as a matter of law. The relief sought in relation to the first
and s econd respondent s can therefore not be granted.
128. Fourth, I have already indicated that, in respect of the FSB respondents,
no case is made out for the relief sought in the notice of motion . The
complete lack of a factual basis for the relief sought makes the issues
raised by Mr Pienaar abstract and nebulous, and militates against the
exercise of this Court's discretion to grant any of the declaratory relief
sought .
129. Fifth, Mr Pienaar has fail ed to join various parties who have an obvious
legal interest in the relief that he seeks. The issue of non -joinder was
raised in the first rescission application, and was expressly considered in
the Sievers judgment: “ Persons who may be directly or indir ectly affected
by the relief sought have not been joined and they have thus not had an
opportunity to present evidence and argument to the court. ”
130. Parties interested in the outcome of the application include all the
investors and creditors who have receiv ed dividends from the companies
in liquidation over the years, third parties who purchased assets from the
liquidators, and the liquidators of all the subsidiaries of KFH themselves.
Given the wide -ranging nature of Mr Pienaar’s allegations, there are man y
more interested parties.
131. These are all reasons why this Court is not a position to grant any of the
declaratory relief sought. The second rescission application falls to be
dismissed.
The application for a referral to oral evidence
132. In his heads of argument Mr Pienaar asks that, if the Court cannot decide
“to grant me the relief sought”, the application be referred to oral evidence
under Rule 6(5)(g) . He foresees the giving of oral evidence by a virtually
open -ended array of persons who were involve d in the saga over the past
decade , on all of the aspects in relation to which his narrative deviates
from the current status of the litigation history .
133. The factual disputes in the present matter were obviously glaringly
foreseeable. Apart , moreover, from the obvious practical problems that
may be encountered in a referral to oral evidence on the facts of this
matter, t he fact remains that the second rescission application does not
meet the requirements for rescission , whether under Rule 42 or the
common l aw. This, as well as Mr Pienaar’s lack of locus standi and the
issue of res iudicata , has been dealt with above. That is the end of the
matter. There is no point in referring any of the multitude of (and
undefined) disputes of fact and other problematic issues on the papers to
oral evidence. 66
THE COSTS OF THE VEXATIOUS LITIGANT APPLICATION AND THE
SECOND RESCISSION APPLICATION
134. It is necessary to deal with the issue of costs in the vexatious litigant
application and the second rescission application in some detail. Mr
Pienaar was unrepresented. He had clearly put much effort into compiling
the papers and was serious about his cause, whatever the merit thereof.
He initially tried to conduct himself respectfully in court , although he
veered into the invective as the argument proceeded .
135. One does not lightly depart from the general rule that costs follow the
result, but I did deliberate whether each party should pay their own cos ts,
amongst other reasons because the liquidators in the vexatious litigant
application and the respondent s in the second rescission application
would probably not be able to extract any funds from Mr Pienaar . The
mere fact that a litigant cannot pay is, however ( subject to the Court’s
discretion), not sufficient reason to avoid the making of a costs order
against him.
136. Having considered the issues, I am of the view that Mr Pienaar should pay
66 See the discussion in Erasmus Superior Court Practice (online version, RS 2 3, 2024 , D1) at Rule
6-33ff.
the costs of each of the applications in question on a punitive scale. This
is so for four reasons.
137. First, Rule 6 of the Uniform Rules requires an applicant in motion
proceedings to set out the material facts upon which he relies in
chronological sequence, without argumentative matter, and in a lucid,
logical and int elligible form . As indicated earlier, the affidavits upon which
Mr Pienaar relied we re lengthy documents filled with material that was
argumentative and irrelevant for the purposes of the issues, such as they
were. The relief sought in the second rescission application was
obviously unsustainable. He failed clearly to indicate what his cause of
action was, and what exactly the facts were upon which he relied in
support of the relief claimed.
138. The manner in which the papers had been drafted made it difficult for the
other parties and the Court to ascertain the precise relief sought or, in the
case of the ve xatious litigant application, what the defence was . It was
prejudicial to the other parties to have to attempt to divine, from the mass
of information on record, what case they had to meet .67 As a result the
Court was “ given no clear context of facts whi ch are common cause, and
no clear guidance as to the dispute of facts which must be evaluated
against the background of such a context ”.68
139. Second, Mr Pienaar makes much of the fact that he is a layperson. That
argument has outlived its usefulness . Mr Pienaar is by now a seasoned
litigator who has , unfortunately, abused the process of court . The glaring
defects in the proceedings that he has institu ted have expressly been
conveyed t o him time and again. He has deliberately chosen to ignore the
advice because it does not suit his narrative. He is not willing to admit
defeat.
140. Third , in his many affidavits and the annexures thereto, as well as in the
heads of argument, Mr Pienaar makes unsubstantiated and, frankly,
67 Reynolds NO v Mecklenberg (Pty) Ltd 1996 (1) SA 75 (W) at 78I.
68 Reynolds NO supra at 83A –C.
scandalous comments about various persons and authorities, including
the courts. There are too many examples to mention , but I have referred
to a few instances earlier in this judgment . The allegations made in
relation to these persons are argumentative expressions of Mr Pienaar ’s
opinion. They are unsupported by objective facts and do not contribute in
any way to the proper determination of the disputes between the parties .
141. Mr Pienaar relies on the principle in Biowatch69 to escape the grant of a
costs against him. The principle states that in constitutional matters
against the state or organs of state the litigant, subject to exception,
should not be made to pay the costs of the state. This is to avoid adverse
costs orders against litigants seeking to assert constitutional rights.
142. This is, however, not a case in which the invocation of Biowatch can assist
him, even if he did raise any constitutional issues . In Biowatch the
following was stated as regards the approach to costs in constitutional
cases:70
“[24] … the general approach of this court to costs in litigation between private
parties and the State, is not unqualified. If an application is frivolous or vexatious,
or in any other way manifestly inappropriate, the applicant should not expect that
the worthiness of its cause will immunise it against an adverse costs award .
Nevertheless, for the reasons given above, courts should not lightly turn their
backs on the general approach of not awarding costs against an unsuccessful
litigant in proceedings against the State, where matters of genuine constitutional
import arise. …
[25] Merely labelling the litigation as constitutional and dragging in specious
refere nces to sections of the Constitution would, of course, not be enough in itself
to invoke the general rule …. T he issues must be genuine and substantive, and
truly raise constitutional considerations relevant to the adjudication. …”
143. I have found that the s econd recission application constitutes an abuse of
69 Biowatch Trust v Registrar, Genetic Resources and others 2009 (6) SA 232 (CC).
70 Emphasis added. See also Lawyers for Human Right v Minister of Home Affairs and others 2017
(5) SA 480 (CC) at paras [17] -[21].
process. The relief sought is patently unsustainable. The papers in that
application, as well as in the vexatious litigant application, are replete with
defamatory and irrelevant material. I am of the v iew that this is a case
where the Biowatch principle should not apply .
144. In all of these circumstances, justice dictates that Mr Pienaar bear the
costs of th ese application s.
145. The established position regarding an award of attorney and client costs is
set out in Nel v Waterberg Landbouwers Ko -operative Vereeniging :71
"The true explanation of awards of attorney and client costs not expressly
authorised by Statute seems to be tha t, by reason of special
considerations arising either from the circumstances which give rise to the
action or from the conduct of the losing party, the court in a particular case
considers it just by means of such an order, to ensure more effectually
than it can do by means of a judgment for party and party costs that the
successful party will not be out of pocket in respect of the expense caused
to him by the litigation ."
146. In MEC for Public Works, Roads and Transport, Free State v Esterhuizen
and others72 the Supreme Court of Appeal found that an award of attorney
and client costs was warranted in a case in which unsubstantiated
allegations against the trial judge had been made. The Court held that “ it
is unacceptable that allegations of impropriety can be made against a
judge in so cavalier a fashion...As a mark of opprobrium, I think a punitive
costs order should be imposed on the scale as between attorney and
client ."
147. The Constitutional Court in Mkhatshwa and others v Mkhatshwa and
others73 made a simila r punitive costs order as a mark of its displeasure
with the accusations levelled by the applicants against various judicial
officers:
71 1946 AD 597 at 607.
72 2007 (1) SA 201 (SCA) at para [9].
73 2021 (5) SA 447 (CC) at para [26].
"It will not do for litigants to resort to unscrupulous tactics to succeed in
this Court, especially when such tactics involve unjustifiable attempts at
bringing shame and disrepute upon Judicial Officers. This is because the
Judiciary, unlike other branches of government, must rely solely on the
trust and support of the public in order to fulfil its functions. Consequentl y,
any conduct that undermines and erodes the authority and integrity of the
Judiciary must be prevented. Litigants who resort to the kind of tactics
displayed in this matter must beware that they are unlikely to enjoy this
Court's sympathies or be shown m ercy in relation to costs. The only
reasonable conclusion in the circumstances is that a punitive costs order
is apposite. "
148. On the basis of this precedent, and having considered the tenor of the
documents filed of record as well as the history of the matt ers before me , I
regard a punitive costs order as appropria te.
THE SEQUESTRATION APPLICATION
149. This leaves the application for the sequestration of Mr Pienaar’s estate ,
which is brought by the liquidator of KFH.74
150. Section 1 0 of the Insolvency Act 24 of 1936 provides that , if a Court is of
the opinion that prima facie the applicant has established a claim against
the debtor for not less than R100 , that the debtor has committed an act of
insolvency or is insolvent; and that there is reason to believe that it will be
to the advantage of creditors of the debtor if his estate is sequestrated, the
Court may provisionally sequestrate the debtor's estate.
151. In an opposed application for provisional sequestration or liquidation the
applicant must establish her entitlement to an order on a prima facie
basis, meaning that the applicant must show that the balance of
74 No relief is sought against the second respondent in the sequestration application. She is married
to Mr Pienaa r out of community of property and is joined by virtue of the provisions of this Court’s
Practice Directives.
probabilities on the affidavits is in her favour.75 A distinction must be
drawn between factual disputes relating to the respondent's liability to the
applicant (i.e. relating to the applicant's claim) and disputes relating to the
other requirements. At the provisional stage,76 the other requirements
must be satisfied on a balance of probabilities with reference to the
affidavits. In relation to the applicant's claim, however, the Court must
consider not only where the balance of probabilities lies on the papers but
also whether the claim is bona fide disputed on reasonable grounds .77
The applicant’s claim
152. The applicant's claim arises from the fact that KFH is a judgment creditor
of Mr Pienaar in the total amount of R351,329.34,10 in respect of taxed
bills of costs . These bills are the following:
152.1 R298,215.23 plus interest from 26 October 2021 to date of
payment;
152.2 R12,045.79 plus interest from 19 August 2020 until the date of
payment; and
152.3 R41,068.32 plus interest from 31 August 2021 until the date of
payment.
153. The claim is liquidated and prima facie established as contemplated in
section 9(1) of the Insolvency Act . The applicant’s locus standi is
undisputed. The onus then shifts onto Mr Pienaar show that the claims
are disputed on bona fide and reasonable grounds.78 These are two
distinct components, which must both be satisfied .79
75 Orestisolve (Pty) Ltd t/a Essa Investments v NDFT Investment Holdings (Pty) Ltd and another
2015 (4) SA 449 (WCC) at para [7].
76 The test for a final order is different. At that stage the applicant must establish her case on a
balance of probabilities. Where the facts are disputed, the Court is not permitted to determine the
balance of probabilities on the affidavits but must instead apply the r ule in Plascon Evans Paints
(Tvl) Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E -635C (see Orestisolve
supra at para [9]).
77 Orestisolve supra at para [8].
78 Afgri Operations Ltd v Hamba Fleet (Pty) Ltd 2022 (1) SA 91 (SCA) at paras [6] and [17].
79 See Orestisolve supra at para [13] and GAP Merchant Recycling CC v Goal Reach Trading 55
154. The cost orders arise from the Sievers judgment, and Mr Pienaar's three
failed applications for leave to appeal. The taxed costs orders are due
and payable80 judgment debts, and Mr Piena ar can therefore not
genuinely dispute the applicant's claim , nor does he do so - the facts in
the sequestration application are mostly common cause.
155. The papers show that Mr Pienaar is also indebted to P wC in the total
amount of R3,919,588.31 in respect of taxed legal costs . The amount
does not include PwC ’s untaxed costs , and remains unpaid . I have earlier
referred to the Nz iweni judgment in which it was recorded that PwC ha d
incurred over R12.5 million in legal costs against M r Pienaar since 2014.
Mr Pienaar is insolvent
156. Mr Pienaar does not deny that he owes these costs . On the contrary, in a
circular dated 7 March 2023 sent to his followers , he states that he has
more than R50 million in costs orders against him.
157. For the purposes of the present application, t he amount owed to KFH and
PwC in respect of taxed costs is R4,270,917.65. Interest is accruing
thereon. The PwC costs orders were taxed and have been due and
payable since 2015 and 2018 respectively. The prescrib ed interest rate is
approximately 10% per annum . On an almost R4 million debt accruing
over at least 6 years and counting, this amounts to more than R2.5 million
of interest owed on the PwC judgment debts. Interest at the prescribed
rate has been accruin g on the KFH taxed costs since 2020 and 2021
respectively.
158. The claims of Mr Pienaar's judgment -debt creditors (KFH and PwC)
therefore exceed R4.2 million. With interest, the debts exceed R6.5
million.
CC 2016 (1) SA 261 (WCC) at paras [20] and [26].
80 The Taxing Master's allocatur has the effect of a court order: Sheriff of Pretoria North East v SA
Taxi Development Finance (Pty) Limited and others [2023] ZAGPJHC 331 (14 April 2023) at para
[11].
159. It is common cause that Mr Pienaar's only significant asset is his
residential property situated at Erf 1[...], Parow. He and the second
respondent are co -owners of the property. As they are married out of
community of property, only half of the value of the property accrues to Mr
Pienaar.
160. The market -value of the property is approximately R4 million. The forced
sale value is estimated to be at R3,250,000. There is a mortgage bond
registered in favour of ABSA Bank Ltd over the property in the amount of
R1,3 million. On the best case scenario for Mr Pienaar, the mortgage
bond has been paid off by now and he is entitled to R2 million on the
market -value of the house for his half share. This is nowhere near the
debt which he owes to his judgment creditor s. He is plainly insolvent.
Mr Pienaar has committed an act of insolvency
161. In terms of section 8(b) of the Insolvency Act, a debtor commits an act of
insolvency if "a court has given judgment against him and he fails, upon
the demand of the officer whose duty it is to execute that judgment, to
satisfy it or to indicate to that officer disposable property sufficient to
satisfy it, or if it appears from the return made by that officer that he has
not found sufficient disposable property to satisfy the judgment."
162. On 12 January 2018 at the instance of PwC , the B ellville deputy Sheriff
served a writ of execution on Mr Pienaar at his place of residence. The
Sheriff certified that Mr Pienaar had informed him that he ( Mr Pienaar)
"has no money, disposable property or assets, inter alia, wherewith to
satisfy the said warrant or any portion thereof No moveable assets were
either pointed out or could be found by me after a diligent search and
enquiry at the given address."
163. The Sheriff accordingly made a return of nulla bona. In the
circumstances, Mr Pienaar has committ ed a section 8(b) act of insolvency.
There is nothing on record to indicate that Mr Pienaar’s situation has since
improved. He has continued litigating with the assistance of the persons
from whom he solicits funding.
164. Regarding his living costs, Mr Pienaar s tates that when he was a broker
for the property syndication schemes in 2010 his standard of living was
much higher . He now relies on donations for the work he does (his
"investigations" , and the litigation undertaken on the basis thereof) . He
says th at, together with his wife's income, this is the way in which he funds
his living expenses. Whilst he concedes that his standard of living has
come down in the last few years, he maintains that he is not insolvent.
This denial is plainly spurious , given the common cause facts.
165. In terms of section 10(b) of the Insolvency Act, Mr Pienaar ’s estate may
be sequestrated on grounds of either his common cause factual
insolvency or the section 8(b) act of insolvency.
Advantage to creditors
166. In Stratford and others v Investec Bank Ltd and others81 the Constitutional
Court confirmed the approach to the Insolvency Act’s requirement of an
advantage of creditors:
“[43] …It is the petitioner who bears the onus of demonstrating that there is
reason to believe that this is so. In Friedman the Court held:
‘[T]he facts put before the Court must satisfy it that there is a
reasonable prospect – not necessarily a likelihood, but a prospect
which is not too remote – that some pecuniary benefit will result
to creditors. It is not necessary to prove that the insolvent has
any assets. Even if there are none at all, but there are reasons
for thinking that as a result of enquiry under the [Insolvency Act]
some may be revealed or recovered for the benefit of cred itors,
that is sufficient’.
81 2015 (3) SA 1 (CC) at paras [43] -[45].
[44] The meaning of the term “advantage” is broad and should not be
rigidified. This includes the nebulous “not -negligible” pecuniary benefit
on which the appellants rely. To my mind, specifying the cents in the
rand or “not -negligible” benefit in the context of a hostile sequestration
where there could be many creditors is unhelpful. ….
[45] The correct approach in evaluating advantage to creditors is for a
court to exercise its discretion guided by the dicta outlined in Friedman.
For example, it is up to a court to assess whether the sequestration will
result in some payment to the creditors as a body; that there is a
substantial estate from which the creditors cannot get payment except
through sequestration; or that some pecuniary benefit will result for the
creditors. ”
167. In the present matter t here is , on the papers, sufficient free residue in the
immovable property to provide for a dividend to concurrent creditors. On
Mr Pienaar's version, moreover, he continues to solicit donations from
"investors" into his ABSA bank account. These funds also contribute to
establishing an advantage to creditors. The facts which indicate an
advantage to creditors are accordingly commo n cause.
168. In the circumstances, the grant of a sequestration order would be to the
advantage of the general body of creditors.
Mr Pienaar’s defences to the sequestration application
169. Mr Pienaar raises various in limine points in relation to the sequestration
application.
170. The first is that Mr Pienaar regards the change of KFH's name ( it was
formerly known as Biz Africa 1332 (Pty) Ltd ) as creating a new entity
which could be “plundered ” for the benefit of the liquidators. This defence
has no merit , as it is clear from the applicant’s replying affidavit that the
company’s name had duly been changed after it had converted into a
public company years ago .
171. The second point is based on Mr Pienaar’s mistaken assumption that the
delivery and service of t he sequestration application result ed in the
immediate issuing of a rule nisi against him . This is simply incorrect .
172. The third point is the citing of the second respondent . Mr Pienaar does not
accept that this is a requirement of this Court’s P ractice Directive s. He
alleges that the "legal fraternity" recklessly failed to establish that the
respondents are married out of community of property. He states that his
wife should be left out of this litigation.
173. Mr Pienaar argues, fourthly, that the vexatious litigant application was
brought "solely to be able to place that rule nisi case on the opposed ro ll”.
This is, again, plainly not correct.
174. As set out above, the jurisdictional requirements for provisional
sequestration in the present matter have been met on common cause
facts. None of the point s in limine constitutes a defence to the
sequestratio n application.
175. Mr Pienaar's only substantive defence to the sequestration application is
his allegation that , if the second r escission application were to succeed,
then the costs orders against him which arose from the Sievers judgment
must be set aside . I have already found that the second rescission
application has no merit. I t is in any event not a defence to the
sequestrat ion application based on judgment debts (arising from the
Sievers judgment , an order of the S upreme Court of Appeal , and an order
of the Constitutional Court ) to argue that th ose costs orders will be
rescinded and that that forms a basis upon which not to sequestrate his
estate. A court order stands until set aside by a court of competent
jurisdiction. Until then, the order (even if incorrect or invalid) must be
obeyed.82
176. It follows that there no reasonable or bona fide defence to the applicant’s
82 Department of Transport and others v Tasima (Pty) Ltd 2017 (2) SA 622 (CC) at para [180].
claim appears from the papers.
Conclusion on the sequestration application
177. The required formalities prescribed in section 9(3)(b), 9(4) and 9(4A) of
the Insolvency Act for the grant of a provisional sequestration order have
been complied with .
178. Once the applicant for a provisional sequestration order has prima fa cie
established the jurisdictional requirements for such an order, the Court
has a discretion whether to grant the order. Where the conditions
prescribed for the grant of a provisional order are satisfied then, in the
absence of some special or unusual circumstances, the Court should
grant the order.83
179. The onus is on Mr Pienaar to establish special or unusual circumstances
that would justify the Court not sequestrating his estate.84 He has raised
none ; there are no circumstances that would justify a refusal of a
provisional order . On the contrary, Mr Pienaar has incurred costs orders
with impunity, and he unabashedly reports on this fact to his followers and
"investors" from whom he seeks additional funds to pay for further
litigation (none of it with any prospects of success) and to pay for his living
expenses. In the se circumstances, a concursus of Mr Pienaar's creditors
is necessary and warrants the exercise of the Court's discretion in favour
of the applicant.
180. I am accordingly satisfied that a proper case has been made out for the
provisional sequestration of Mr Pienaar’s estate.
ORDERS
181. I grant orders as follows:
83 Firstrand Bank v Evans 2011 (4) SA 597 (KZD) at para [27].
84 Firstrand Bank v Evans supra at para [27].
A. Case number 16769/2023 (vexatious litigant application)
1. The respondent is declared a vexatious litigant pursuant to the provisions of
section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956 (“the Act”).
2. The respondent is not allowed to institute any new proceedings, or take any
further steps in the rescission application issued in March 2021 under case
number 13665/2016 in this Court (in particular, in relation to any application for
leave to appeal or rescission), in any Division of the High Court of South Africa or
in any inferior cour t without the written leave of the inferior court or of the High
Court or any judge of the High Court, as the case may be, as contemplated in
section 2(1)(b) of the Act, against any of the persons and entities listed in
annexures A1, A2 and A3 hereto , in r espect of any issue relating any entity
forming part of the King Group or the Realcor Group which are listed on
annexures A1, A2 and A3.
3. In the event that written permission is granted to the respondent to institute new
proceedings or to proceed with the rescission application under case number
13665/2016, he shall be required to provide security for costs to the relevant
respondent or respondents in an amount to be determined by the Registrar or the
Clerk of the court in question.
4. The respondent is inte rdicted and restrained from instituting and conducting any
private prosecution in terms of section 8 of the Criminal Procedure Act 51 of 1977
in respect of any of the persons listed in annexures A1, A2 and A3 hereto, and in
respect of any issue relating to any entity forming part of the King Group or the
Realcor Group.
5. The Registrar.is directed to cause a copy of this order to be published in
the Government Gazette , as contemplated in section 2(3) of the Act.
6. The respondent shall pay the costs of this app lication , including the costs of two
counsel, on the scale as between attorney and client.
B. Case number 13665/2016 (second rescission application)
1. The application is dismissed.
2. The applicant shall pay the costs of the application , including the costs of two
counsel where employed , on the scale as between attorney and client.
C. Case number 15691/2023 (sequestration application)
1. The first respondent’s estate is placed in provisional sequestration in the hands of
the Master of this Court.
2. A rule nisi is issued calling upon the respondent s and all other interested parties
to show cause, if any, to this Court on Tuesday , 15 April 2025 at 10:00 or as soon
thereafter as counsel may the heard, why:
2.1. The first respondent’s estate should not be pl aced i n final sequestration;
and
2.2. The costs of the sequestration application should not be costs in the
sequestration .
3. Service of the provisional order of sequestration shall be effected :
3.1. By the Sheriff on t he first respondent at 1 [...] V[...] B[...] Street, Parow
North , Cape Town ;
3.2. By the Sheriff on t he second respondent at 1 [...] V[...] B[...] Street, Parow
North , Cape Town ;
3.3. By the Sheriff on any employees of the first respondent, and any
registered trade union representing such employees, at 1 [...] V[...] B[...]
Street, Parow North, Cape Town;
3.4. By the applicant’s attorney on t he South African Revenue Service via its
service email address at l[...].
_________________________
P. S. VAN ZYL
Acting judge of the High Court
Appearances:
Case number 16769/2023 (vexatious litigant application)
For the applicants :
G. Woodland SC and C. Morgan, instructed by Edward Nathan Sonnenbergs Inc.
The respondent in person
Case number 13665/2016 (second rescission application)
The applicant in person
For the first and second respondents :
G. Woodland SC and C. Morgan, instructed by Edward Nathan Sonnenbergs Inc.
For the third and fourth respondents:
S. J. Koen, Bisset Boehmke McBlain
No appearance for the remainder of the parties
Case number 15691/2023 (sequestration application)
For the applicant :
G. Woodland SC and C. Morgan, instructed by Edward Nathan Sonnenbergs Inc.
The first respondent in person
No appearance for the second resp ondent