THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No.: 19065/2024
Before the Hon Madam Justice Slingers
Hearing: 27 February 2025
Judgment Delivered : 05 May 2025
In the matter between:
HERWIG TILLO CORNELIUS LELEU N.O.
MARLEEN AUGUSTA MARIE LELEU N.O
[in their capacities as co-trustees of
the HTC Leleu Family Trust T2711/03]
and
NUMACON (PTY) LIMITED
MICHAEL IOANNOU
ADAM BHAYAT N.O
RASHIDA BHAYAT N.O
RUCHSANA BHAYAT N.O
GADIJA BHAYAT N.O
HYMAN BRUK N.O
[in their capacities as trustees for the time being of
Bhayat Mohammed Family Trust]
VREESINVESTMENTS(PTY)LTD
XENOPHON DEMETRIADES N.O
JOAN DEMETRIADES N.O
ALEXANDRA MARIKA DEMETRIADES N.O
KIMON ANDREAS DEMETRIADES N.O
[in their capacities as trustees for the time being of
Foveros Family Trust] First Applicant
Second Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eight Respondent
Ninth Respondent
Tenth Respondent
Eleventh Respondent
Twelfth Respondent
2
HELEN CONSTANTINIDES N.O
CHRISTODOULAKIS CONSTANTINIDES N.O
[in their capacities as trustees for the time being of
Dempar Family Trust]
DEMETRIOS CONSTANTINIDES N.O
MARIA CONSTANTINIDES N.O
[in their capacities as trustees for the time being of
Dimaria Trust]
LUKAS CORNELIUS SERFONTEIN (SNR) N.O
LUKAS CORNELIUS SERFONTEIN (JNR) N.O
PHILIPPUS CAREL PRINSLOO N.O
[in their capacities as trustees for the time being of
Serfontein Family Trust]
GORDON MANN N.O
SONJA MANN N.O
ENTEGRA TRUST (PTY) LTD
[in their capacities as trustees for the time being of
The @Work Trust]
BERNARD KATZ Thirteenth Respondent
Fourteenth Respondent
Fifteenth Respondent
Sixteenth Respondent
Seventeenth Respondent
Eighteenth Respondent
Nineteenth Respondent
Twentieth Respondent
Twenty First Respondent
Twenty Second Respondent
Twenty Third Respondent
This judgment is handed down electronically by circulation to the parties' legal representatives ' email
addresses . The date of hand-down is deemed to be 05 May 2025.
JUDGMENT
SL/NGERSJ
Introduction
(1] In this opposed application the applicants seek the following substantive relief:
3
'1. An order declaring that the 23rd Respondent, as per his valuation report
annexure HL6, did not determine the two further discounts, namely a
portfolio valuation discount and a marketability discount, to be applied to
the fair value of the shareholding in Numacon.1
2. Alternative /V:
2. 1 An order declaring that on a proper interpretation of the settlement
agreement, annexure HL4, alternatively as a tacit term thereof, the
only discount(s) which fell to be applied to the fair value of the
Trust's shareholding was a minority discount;
2. 2 In the result the Twenty Third Respondents valuation, to the extent
that it held the two additional discounts to be applicable , falls to be
ignored and treated as pro non scriptio for purposes of establishing
fair value of the Trust's shareholding.
3. Further Alternatively, and should this Honourable Court hold that Twenty
third Respondent did find the portfolio valuation discount and the
marketability discount to be so applicable, that, to that extent, his valuation
be reviewed and set aside, because:
3. 1 He exceeded his powers I mandate I jurisdiction in doing so;
3. 2 The valuation, to the extent that it determined that the 2 "additional"
discounts were applicable, was not the exercise of the judgment of
a reasonable man, but rather, was exercised unreasonably ,
irregularly or wrongly so as to lead to a patently inequitable result.
1 In this judgment the portfolio valuation discount and the marketability discount will be referred to as the
'two further discounts' .
4
4. An order that the Second to Twenty Second Respondents2, jointly and
severally and in proportion to their shareholding in Numacon, make
payment to the Trust of the amount of R11, 136, 219 together with mora
interest thereon as from date of the valuation report by Laroki Corporate
Finance (Ply) Ltd being 18 April 2023.
The Settlement Agreement
[2] As is evident from the relief sought, central to this application is the valuation
report prepared by the twenty-third respondent, who was appointed as a valuer
('the valuer') in terms of a settlement agreement concluded between the
applicants and the first to twenty second respondents. In terms of the settlement
agreement the valuer was appointed to determine:
'The fair value of the shareholding calculated pro-rata the total issued share
capital of the Company, with and without any discount for the shares
representing a minority holding and without any discount on account of any
contractual restrictions that might have been agreed between the parties, or
provided in the Company's Articles of Association on the disposal of the shares,
other than as between existing shareholders (''the minority discount") ... '3
[3] The settlement agreement further provided that the fair value of the shares would
be determined with regard to the financial condition of the Company as at 30
June 2020 and as at 30 June 2022. The settlement agreement clothed the
valuer with full discretion to determine his own processes. In terms of the
settlement agreement , the residual dispute would be referred to the parties'
agreed arbitrator after the valuer made his determination .
2 The first to twenty second respondent will be referred to as 'the respondents' in this judgment.
3 The company was defined as the first respondent in clause 1.2.4 of the settlement agreement.
5
[4] The settlement agreement defined the residual dispute in the following terms:
'means whether the purchase price for the Respondents' shareholding in the
Company is subject to a minority discount.'
[5] The settlement agreement was concluded to put an end to the litigation instituted
by the applicants seeking the compulsory buyout of its 10.02 percent interest in
the first respondent in terms of section 163 of the Companies Act, Act 71 of
2008.
[6] In terms of clause 3.2 of the settlement agreement , the respondents agreed to
buy out the applicants' shareholding in the first respondent for fair value, subject
to the determination of the residual dispute. While the settlement agreement
defined the term residual dispute, it did not define the term fair value.
[7] The following clauses of the settlement agreement are noteworthy:
(i) clause 3.3.1 which provided that the fair value of the shares would be
determined with regard to the financial condition of the Company as at 30
June 2020 and as at 30 June 2022;
(ii) clause 3.3.2 which provided that each party would have the right to make
representat ions to the valuer within 15 days of his appointment.
Thereafter, the other party would have the right to reply to those
representations within 10 business days of receipt thereof;
(iii) clause 3.3.3 which provided that the valuer would be entitled to request
any further information and/or documentation from either party;
6
(iv) clause 6.1 which provided that the settlement agreement constituted the
whole agreement between the parties relating to the matters dealt therein;
and
(v) clause 6.2 which provided that any variation, deletion or addition not in
writing and signed by the parties would be of no force or effect.
[8] Thus, while the settlement agreement allowed the parties to make
representations to the valuer, these representations could not to vary or amend
the terms or substance of the settlement agreement.
[9] In correspondence dated 31 August 2022 the valuer confirmed acceptance of his
brief. He recorded that he understood the settlement agreement to require four
valuations, which were the fair value as at 12 October 2020 with and without a
minority discount and the fair value as at 30 June 2022 with and without a
minority discount.4
[10] On 18 April 2023 the valuer handed down his valuation report. The valuer states
that his mandate was that the valuation be based on 'fair value, subject to the
determination of the Residual Dispute' and that 'other than the minority discount
which was the subject of the residual dispute' his mandate was silent on other
potential discounts and that it was not apparent whether other potential discounts
were applicable or not. 5 The valuer elected not to invoke the provisions of clause
3.3.3 to obtain clarity on the applicability of the two further discounts . It is not
4 See paragraph 3.3 3 of the valuer's letter of engagement as to why he used the date of 12 October
2022.
5 Paragraphs 9 and 14 of the valuation report
7
disputed that the respondents proposed the applicability of the two further
discounts to the valuer.6
[11] In the valuation report it is recorded that the applicants distinguished between fair
market value and fair value. The applicants contended that fair market value was
the price at which an asset would change hands between a willing buyer and a
willing seller and that discounts would apply for lack of control and lack of
marketability. Fair value would not include discounts for lack of marketability and
lack of control.
[12] The valuer specifically states that:
'15. It is possible that fair value may have a specific legal meaning which
differs from its valuation and accounting meaning particularly in matters of
shareholder disputes. Whether this is the case in South Africa is beyond
my expertise and some brief informal discussions with senior lawyers did
not reveal a coherent view.
16. The Settlement Agreement provides the power to "appoint an expert to
assist". However, the applicability of a minority discount is subject to
arbitration and in my view the matter of whether any other discounts are
applicable should therefore also be left for the Arbitrator to decide.
17. For the reasons provided above I will proceed on the basis that discounts
(over and above the Minority discount) must be taken into account. I will
leave it to the Arbitrator to determine whether there are legal
considerations which override the fair value determination based on taking
discounts into account.'
6 Paragraph 14 of the founding affidavit read with paragraph 7 4.1 of the answering affidavit.
8
[13] In dealing with a marketability discount, the valuer states that:
'Marketability Discount
30. Numacon and Leleu dispute whether a Marketability discount should be
applicable:
30. 1 Numacon correctly states that the marketability of a private
company such as Numacon is far less than a listed entity.
30.2 Leleu correctly states that the Settlement Agreement does not refer
to a Marketability discount.
31. Regarding the applicability of a Marketability discount I reiterate the following
points:
31.1 From a purely economic standpoint as a valuer of a company, clearly a
discount for marketability would be applicable. Lack of marketability
detracts from the value of a shareholding.
31.2 The question of whether a Marketability discount is applicable or not to
this valuation is a legal matter which as previously mentioned I will leave
to the Arbitrator to decide.'
[14] It is evident from the valuation report that the portfolio valuation discount would
apply to shares which are traded on the Johannesburg Stock Exchange ('JSE').
This differs from the situation where shares are being sold in terms of a
compulsory buyout of a shares in a private, unlisted company.
[15] Under the heading of Summary of Results and Conclusion, the valuer states that:
9
'40. There may be legal reasons whether in the framing of the mandate or the
definition of fair value which would result in the Portfolio Valuation
discount and/or the Marketability discount not being applicable. I will
leave that decision to the Arbitrator. '
[16] Notwithstanding the valuer explicitly stating that it should be left to the arbitrator
to decide whether any other discounts {other than a minority discount) were
applicable, he proceeded to apply both a marketability and a portfolio valuation
discount. However, in doing so, he goes on to state that ' ... so to the extent that
the Arbitrator rules that either or both should not apply then the table below
would need to be recast.'
Arbitration
( 17] After the valuation report was made available, the residual dispute was referred
to the parties' appointed arbitrator for a decision. In arriving at his award, the
arbitrator declined to interfere with the introduction of the two further discounts.
The arbitrator reasoned that the arbitration tribunal, unlike the High Court, had no
inherent jurisdiction and therefore, he had no jurisdiction to determine whether
the valuer exceeded his mandate. The arbitrator further found that the question
in respect of whether the valuer exceeded his mandate is a matter of review for
the courts.
(18] Thereafter , the arbitration award was appealed to an arbitration appeal tribunal
consisting of three retired judges. It handed down its award on 4 June 2024. In
paragraph 55 of the award, the appeal panel stated that:
' ... As we read the settlement agreement, the valuation was final and binding and
if it needed interpretation , or was thought to have been produced outs;de the
JO
mandate given to the valuer, that was a matter for a court. It was not for the
arbitrator to construe it, because it was not within his mandate to do so or to
make any finding as to the applicable valuation. Likewise, it is not open to us to
construe I and we have merely set out the contrary construction to illustrate that
the interpretation of the valuation is contested on proper grounds.'
[19] The arbitration appeal tribunal held that the question whether the valuer was
correct in applying the two further discounts was not for it to decide. Similarly, it
was not for the arbitration appeal tribunal to determine whether any findings
made by the valuer in respect of applicability of the further two discounts should
be ignored. The arbitration appeal tribunal also held that it was not open to it to
interpret the settlement agreement.
Discussion
[20] The applicants seek to set aside the application of the two further discounts on
the ground that a proper construction of the valuation report evidences that the
valuer did no more than postulate the potential applicability thereof and deferred
the issue as to the applicability to the arbitrator. Alternatively , if it is found that
the valuer applied the two discounts, then the applicants contend that he
exceeded his mandate and the valuation should be reviewed and set aside.
[21] This follows from the valuer's mandate to only establish the fair value of the
applicants' shareholding and to establish what the extent of a minority discount
should be, should the arbitrator find it applicable.
[22] The applicants argued that within the context of the compulsory buyout of the
applicants' shareholding in the first respondent in terms of section 163 of the
Companies Act, discounts for lack of control and lack of marketability would not
11
apply. This was not a case of willing buyer willing seller which called for the
application of the fair market value. On the contrary, the situation called for the
application of a fair value which did not include discounts .
[23] The applicants argued that the settlement agreement provided only for the
potential application of the minority discount and not of the other two discounts.
This is clear from the provisions of clause 1.2.6 of the settlement agreement
which defined the term residual dispute. Thus, this was the only disputed issue
between the parties which remained to be determined .
[24] Furthermore, at no stage did the respondents raise the potential application of
the further two discounts prior to the referral to the valuer per calculation of the
fair value.
[25] It is the respondents ' case that the two further discounts were applicable and that
an allowance by way of a deduction from the fair value of the shares should be
made. Furthermore , they argue that the valuer did not exceed his powers or
commit a gross irregularity which would render his valuation susceptible to
review.
[26] The responden ts argued that the relief sought by the applicants is unsustainable
as the valuation has been implemented and the sale of the Trust's shares to the
respondents have been completed. The respondents argued that the two further
discounts were to be applied and that the applicants waived their right to review
the valuation.
[27] The argument that the applicants abandoned its right to review the valuation is
based on the following:
12
(i) on 9 May the applicants informed the respondents that counsel would be
briefed to advise on an application to set aside the valuation based on
procedural irregularity and/or material mistake;
(ii) on 28 June 2023, correspondence was sent to the arbitrator that the
applicants instructed its legal representative to review the valuation: and
(iii) on 7 August 2023, the respondent's legal representatives were informed
that the applicants' legal representat ive have received instructions not to
proceed with the review application.
[28] Therefore, by proceeding with the arbitration process, the applicants abandoned
its right to review the valuation. Upon finality of the arbitration process, the
application proceeded with the sale of its shares which resulted in the transfer of
ownership and a completed sale. This rendered any review of the valuation
moot.
[29] Put differently ; by proceeding with the arbitration, the applicants accepted the risk
of arguing the valuation and expressly abandoned the right to review.
[30] The applicants argued that the correspondence of 7 August 2023 should be
understood as conveying the sentiment that the applicants did not intend to
proceed with the review at that stage. And that at no stage was it their intention
to permanently abandon or waive its right to review the valuation report.
[31] In Coppermoon Trading 23 (Ply) Ltd v Government , Eastern Cape Province and
Another7 the court dealt comprehensive ly with election and waiver. In dealing
with the requirements of waiver, that court held that it is the intentional and
unequivocal renunciation or relinquishment of a known right whereas election
7 2020 (3) SA 391 (ECB)
13
postulates a choice between two inconsistent rights, each of which has different
legal consequences.
[32] Christie states that the doctrine of election is not a mechanical rule of law but that
it is a combination of waiver and estoppel. The respondenUdefendant as the
party invoking the doctrine of election bears the onus to show that on the facts,
that the applicants/plaintiff waived its right to this remedy, failing such proof that
the applicants/plaintiff is estopped from claiming it. 8
[33] The doctrine of election finds application only where the applicants/plaintiff is
faced with inconsistent remedies which are mutually exclusive and not where the
applicants/plaintiff has alternative remedies available to it where the pursuit of
one remedy cannot exclude the other.9
[34] As the respondents allege that the applicants waived its right to review, they bear
the onus to not only plead such waiver but also to establish the facts on which it
is based.10
[35] There is a presumption against election which is a form of waiver.11 The
respondents have the onus to show that the applicants , with full knowledge of its
rights decided to abandon it.12 Furthermore, the conduct from which waiver is
inferred must be unequivocal and inconsistent with any other hypothesis.13
[36] In Road Accident Fund v Mothupi14 the Supreme Court of appeal held that waiver
is first and foremost a matter of intention with the starting point being the will of
the party alleged to have waived its right / remedy / privilege / power I interest or
8 R H Christie The Law of Contract 7th ed at 639
9 Total South Africa (Pty) Ltd v Bekker NO 1992 (1) SA 617 (A)
10 R H Christie The Law of Contract 7th ed at 639
11 Ibid, at 510
12 Moyce v Estate Taylor 1948 (3) SA 822 (A)
13 Road Accident Fund v Mothupi 2000 (4) SA 38 (SCA)
14 2000 (4) SA 38 (SCA)
14
benefit and that an objective test is applied to determine whether there was an
intention to waive.
(37) Therefore , whether there was intention to waive is adjudged by outward
manifestations which are adjudged from the perspective of a reasonable person
in the shoes of the party concerned . Any mental reservations that are not
communicated have no legal consequences.
[38] The respondents argued that as the buyout of the applicants' shares could only
take place after the arbitral determination of the residual dispute which itself
could only take place after the valuation, the referral to arbitration meant that the
applicants could no longer review the valuation.
[39] On the facts of the application, it cannot be said that the applicants intentionally
and unequivocally renounced or relinquished their right to challenge the
valuation. On the contrary, they consistently expressed their dissatisfaction
therewith.
[ 40] The respondents aver that the applicants unreasonably delayed in bringing a
review of the application and that by proceeding with the arbitration the
applicants effectively abandoned its right to review the valuation.
[41] At both stages of the arbitration, the correctness of the applicability of the two
additional discounts and the interpretation of the settlement agreement arose. At
both the initial arbitration and at the appeal arbitration stages the arbitrators
engaged with these questions with the initial arbitrator finding that upon an
interpretation of the valuation that the valuer did not determine the applicability of
the further two discounts . However, the arbitration appeal tribunal found that the
arbitrator, like itself, lacked jurisdiction to interpret the settlement agreement or to
15
determine the correctness of the applicability of the two additional discounts .
This finding of the arbitration appeal tribunal rendered the review process
necessary . Had the initial arbitrator and/or arbitration appeal tribunal determined
differently in respect of their jurisdiction to interpret the settlement agreement
and/or to determine the correctness of the applicability of the additional two
discounts, it could have rendered any review application unnecessary.
[42] Therefore, on a consideration of the facts of the matter and the applicable legal
principles, the argument that the applicants waived its right to review cannot be
·sustained .
The Sale of the Shares
[43] On 10 June 2024, the applicants were informed that the respondents intended to
transfer R19 797,723 into their attorneys' trust account. This amount of R19 797,
723 would be paid over into a bank account nominated by the applicants against
delivery of the original share transfer forms singed in blank by the applicants'
trustees and delivery of the original share certificates representing the 2,247
shares held by the applicants.
[44] The applicants received the payment of R19 797, 723 and duly delivered the
original share transfer forms and original share certificates . The respondents
argue that the acceptance of this payment constituted a waiver of the applicants'
rights to challenge the valuation and constituted a compromise.
(45] Neither the proposal for payment of R19 797, 723 nor the receipt thereof was
accompan ied by any communication which reflected this payment to be in full
and final settlement.
16
[ 46] As the respondents allege that the applicants ' acceptance of the payment of
R19 797, 723 resulted in a compromise, it must be ascertained whether the
proposal to pay the amount of R19 797, 723 objectively construed not only
intended to create binding legal obligations on the applicants but also whether it
appeared that way to the applicants.15
[4 7] Payment to a creditor, depending on the circumstances, could either result in a
compromise or a payment towards an admitted liability. In such circumstances, it
has been held that debtors who express themselves inadequate ly in their
intentions to achieve a compromise run the risk of having their words interpreted
against them.16
[48] It is trite that compromise is the agreed settlement of disputed obligations. The
onus rests on the party alleging that a compromise has been affected. To
discharge this onus, it must be shown that there was a clear and unambiguous
waiver of existing or claimed rights.17
(49] On the facts of the matter, it cannot be shown that the payment of R19 797, 723
was made to the applicants as a compromise or that the applicants accepted this
payment as acceptance of an envisaged compromise.
[50] Certainly, the payment of R19 797, 723 and the acceptance thereof was
consistent with the receipt of payment towards the minimum amount owed to the
applicants . Therefore , the payment and acceptance of R19 797, 723 did not
evidence a clear and unambiguous waiver of the applicants' rights.
Did the valuer exceed his mandate
15 BE BOP A LULA Manufacturing and Printing cc v Kinglex Marketing (Pty) Ltd 2008 (3) SA 327 (SCA)
16 Absa Bank Ltd v Van De Vyver No 2002 (4) SA 397 (SCA)
17 Christi, pg 528
17
[51] In the valuation report, the valuer unequivocally states that he was uncertain
whether the additional two discounts were applicable. In paragraph 31.2 of the
valuation report the valuer explicitly states that the applicability of a marketabil ity
discount was a legal issue. He also recognized that the applicability thereof fell
outside his area of expertise. Similarly, the valuer recognized that the application
of the portfolio valuation discount was a legal issue outside his area of expertise.
[52] The settlement agreement was reached as a mechanism to put an end to the
parties' litigation. Thus, it can be accepted that it was produced after the parties
engaged one another on the contents thereof and after grabbling with the
mechanisms of implementat ion and enforcement.
[53] The introduction of the further two discounts , in my view, amounted to a variation
and/or amendment of the substance of the settlement agreement which was
prohibited by clause
[54] It is incomprehensible that the parties would agree that the application of a
minority discount would fall to an arbitrator to determine but would leave the
possible application of the two further discounts to the valuer, especially when it
is acknowledged by the valuer that the application of these two further discounts
are legal issues which fell outside his area of expertise.
[55] The valuer was mandated to perform calculations to arrive at a value. He was
not mandated to decide the applicability of discounts when performing those
calculations, which were legal issues beyond the scope of the valuer's expertise.
[56] When the principles of interpretat ion are applied to the definition of residual
dispute as it appears in the settlement agreement , it leads to the conclusion that
the only dispute between the parties that required resolution was whether a
minority discount had to be applied when determining the fair value of the
applicants' shareholding .18 6.1 and 6.2 of the applicability of the two other
discounts raises substantive legal issues which contradicts the definition of
"residual dispute' agreed to by the parties.
[57] Thus, the valuer wrongfully exceeded his mandate when he went beyond his
expertise to apply the two further discounts. It may be that the respondents
proposed the application of the two further discounts but the application thereof
amounted to a variation and/or amendment of the terms of the settlement
agreement. This was contrary to clauses 6.1 and 6.2 of the settlement
agreement.
[58] It is clear from paragraphs 30 and 31 of the valuation report that the valuer
applied the marketability discount as it would apply within a purely economic
standpoint and not within the context of a compulsory buyout. The valuer also
applied the portfolio valuation discount in circumstances where it was not
applicable as the buyout pertained to a private unlisted company.
[59] It is undisputed that the calculation of the fair value of the applicants'
sharehold ing occurred outside the context of a willing buyer and willing seller. As
correctly held by the appeal arbitration tribunal, the notion of fairness indicated
that an element of achieving an equitable balance between the parties is
involved. The appeal arbitration tribunal went on to hold that:
'When a superior bargaining position is exploited in order to secure a fortuitous
profit at the expense of a co shareholder with whom the other shareholders have
18 Natal Joiot Municipal Pension Fund v Endumeni2012 (4) SA 593 (SCA). The context within which the
settlement agreement was reached is set out in paragraphs 51 and 52.
19
had a lengthy, profitable and generally co-operative business relationship over a
number of years, the unfairness is in our view manifest.'
[60] When the valuation of the shares was calculated incorrectly as if the sale thereof
was to take place between a willing buyer and a willing seller and after the
application of the further discounts which had no application, it cannot but fail to
reach an equitable balance between the parties. Rather, it would result in a
skewed balance which would be manifestly unfair to the seller in the compulsory
buyout.
(61) As the valuer was appointed to calculate the value of the applicant's
shareholding , he was expected to exercise the judgment of a reasonable
person. 19 As set out in the settlement agreement and as have been held by our
courts, the decision of the valuer is generally final and binding on the parties.
However, where the valuer exercises his/her judgment in an unreasonab le
manner, irregularly or wrongly in such a manner as to cause an inequitable
outcome, then the affected party is not bound thereby and the determination can
be rectified on equitable grounds.20In Perdikis v Jamieson21the SCA held that:
'It was held in Bekker v RSA Factors 1983 (4) SA 568 (Tl that a valuation can be
rectified on equitable grounds where the valuer does not exercise the judgment
of a reasonable man, that is, his judgment is exercised unreasonably , irregularly
or wrongly so as to lead to a patently inequitable result.
'This is also the position in respect of the referee's report -it can only be
impugned on these narrow grounds.'
19 Bekker v RSA Factors 1983 (4) SA 568(T); Vodacom (Pty) Ltd v Makate and Another 2024 (3) SA 347
(SCA)
20 Vodacom (Pty) Ltd v Makate and Another 2024 (3) SA 347 (SCA)
21 2002 (6) SA 356 (W)
20
[62] The valuer applied the two further discounts in circumstances where he was
uncertain of their applicability; when the application was beyond his area of
expertise; to circumstances in which they would not be generally applicable
without explaining why he applied them to the particular circumstances of the
parties; and left it to the arbitrator to make a final determination in respect of their
applicability. In the circumstances, it cannot be said that the valuer exercised his
judgment reasonably. On the contrary, he acted wrongly which resulted in a
patently inequitable result.
[63] Therefore, it is this court's finding that the valuation report stand to be reviewed
and set aside as the valuer exceeded his mandate when he applied the further
discounts , and he did not exercise the judgment of a reasonable valuer as he
exercised his judgment wrongly and irregularly .
[64] Therefore, I make the following orders:
(1) the First to Twenty Second Respondents , jointly and severally and in proportion
to their shareholding in Numacon (Pty) Ltd, make payment to the Trust of the
amount of R 11,136,219 together with mora interest thereon as from date of the
valuation report by Laroki Corporate Finance (Pty) Ltd, being 18 April 2023.
(2) the costs of the application shall be borne by the First to Twenty Second
Respondents, jointly and severally, the one paying to absolve the other, which
costs shall include the costs of two counsel where so employed.
(3) the costs shall be on scale C.