REPUBLIC OF SOUTH AFRICA



IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG


Case Numbers: 2018 /45883 ; 2019 /40463 ; 2020 /16341




In the matter between:





2018 /45883
In the matter between:


LULAMA SMUTS NGONYAMA First Plaintiff

NOKWAZI NOKWAZELELA NGONYAMA N.O. Second Plaintiff

KHANYA MALUNGELO NGONYAMA N.O. Third Plaintiff

QHAWE HLOMELO NGONYAMA N.O. Fourth Plaintiff
(2nd to 4th Plaintiffs cited as trustees of the Khululekile
Family Trust)

and

THABO SINDISA KWINANA First Defenda nt

THABO SINDISA KWINANA N.O. Second Defenda nt

ZOLISILE MTETELELI MAPIPA N.O. Third Defendant
(2nd and 3rd Defendants cited as trustees of the Eyabantu
Development Trust)


(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO

______________ _________________________
DATE SIGNATURE
2

In re: Joinder and Rescission application between:

EYABANTU CAPITAL CONSORTIUM (PTY) LTD First Applicant /Intervenor

EYABANTU CAPITAL (PTY) LTD Second Applicant /Intervenor

and

LULAMA SMUTS NGONYAMA First Responde nt

NOKWAZI NOKWAZELELA NGONYAMA N.O. Second Respondent

KHANYA MALUNGELO NGONYAMA N.O. Third Responde nt

QHAWE HLOMELO NGONYAMA N.O. Fourth Responde nt

THABO SINDISA KWINANA Fifth Responde nt

THABO SINDISA KWINANA N.O. Sixth Responde nt

ZOLILE MTETELELI MAPIPA N.O. Seventh Respondent
(2nd to 4th Respondents cited as trustees of the Khululekile
Family Trust and 6th and 7th Respondents cited as trustees
of the Eyabantu Development Trust)


In re: Rescission application between:

DALIKHAYA RAIN ZIHLANGU N.O. First Applicant

UNATHI MDODA N.O. Second Applicant

and

LULAMA SMUTS NGONYAMA First Respondent

NOKWAZI KWAZELELA NGONYAMA N.O. Second Respondent

KHANYA MALUNGELO NGONYAMA N.O. Third Respondent

QHAWE HLOMELO NGONYAMA N.O. Fourth Respondent

THABO SINDISA KWINANA Fifth Respondent

ZOLISILE MTETELELI MAPIPA Sixth Respondent

EYABANTU CAPITAL CONSORTIUM (PTY) LTD Seventh Responde nt

EYABANTU CAPITAL (PTY) LTD Eighth Responde nt
3
(1st and 2nd Applicants cited as trustees of the Eyabantu
Development Trust and 2nd to 4th Respondents cited as
trustees of the of Khululekile Family Trust)


In re: Execution application between:

LULAMA SMUTS NGONYAMA First Applicant

NOKWAZI NOKWAZELELA NGONYAMA N.O. Second Applicant

KHANYA MALUNGELO NGONYAMA N.O. Third Applicant

QHAWE HLOMELO NGONYAMA N.O. Fourth Applicant

and

DALIKHAYA RAIN ZIHLANGU N.O. First Responde nt

UNATHI MDODA N.O. Second Responde nt
(2nd to 4th Applicants cited as trustees of the Khululekile
Family Trust and 1st 2nd Respondents cited as trustees
of the Eyabantu Development Trust)


2019/40463
In the section 161 application between:

NOKWAZI NOKWAZELELA NGONYAMA N.O. First Applicant

KHANYA MALUNGELO NGONYAMA N.O. Second Applicant

QHAWE HLOMELO NGONYAMA N.O. Third Applicant

and

EYABANTU CAPITAL CONSORTIUM (PTY) LTD First Respondent

DALIKHAYA RAIN ZIHLANGU N.O. Second Responde nt

UNATHI MDODA N.O. Third Responde nt

EYABANTU DEVELOPMENT TRUST Fourth Applicant

MASTER OF THE HIGH COURT, PRETORIA Fifth Applicant

COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION Sixth Applicant

THABO SINDISA KWINANA Seventh Applicant
4


2020/16341
In the section 26 application between:

NOKWAZI NOKWAZELELA NGONYAMA N.O. First Applicant

KHANYA MALUNGELO NGONYAMA N.O. Second Applicant

QHAWE HLOMELO NGONYAMA N.O. Third Applicant

and

EYABANTU CAPITAL CONSORTIUM (PTY) LTD Respondent




JUDGMENT
WINDELL , J


Explanatory Note

[1] On 15 and 17 April 2019, Dosio AJ granted a default judgment in favour of Mr
Lulama Smuts Ngonyama and the trustees of the Khululekile Family Trust
(collectively referred to as ‘the Ngonyama parties’), hereinafter referred to as
the ‘Dosio orders’. The orders were issued against Mr Thabo S indisa Kwinana
(Mr Kwinana) and the trustees of the Eyabantu Development Trust (the
Development Trust). Six years and numerous applications, orders, and
judgments later, the Dosio orders remain unexecuted .

[2] Presently, five separate but interconnected applications serve before this court,
all rooted in the ongoing dispute over the ownership and control of shares in
the company, Eyabantu Capital Consortium (Pty) Ltd (Consortium). These
include: (i) an application for intervention and joinder brought by Consortium
and another shareholde r in Consortium, Eyabantu Capital (Pty) Ltd (Capital)
(collectively referred to as ‘the intervening parties’), together with their
application for the rescission of the Dosio orders; (ii) a separate rescission
application of the Dosio orders brought by th e Development Trust; (iii) an
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application by the Ngonyama parties for leave to execute the Dosio orders; (iv)
an application under section 161 of the Companies Act1 by the Ngonyama
parties, against Consortium and others, seeking declaratory and consequential
relief recognising the Khululekile Family Trust as a shareholder in Consortium
and directing the issuance of a share certificate in its name; and (v) an
applicati on under section 26 of the Companies Act, also by the Ngonyama
parties, to compel Consortium to disclose certain company records .

[3] Each application will be dealt with under a separate heading. The determination
of several of these matters, particularly those advanced by the Ngonyama
parties, depends to a large measure on the outcome of the joinder application.
Conversely, if the joind er and rescission applications succeed, the foundation
upon which the Ngonyama parties’ claims and the relief granted pursuant
thereto would fall away, and the action will be re -opened for determination on
the merits with the participation of all affected parties .

[4] For clarity and to avoid confusion, the parties to the original proceedings will be
referred to as set out above : Mr Kwinana, the Ngonyama parties (or the
plaintiffs), and the Development Trust (or the defendants). Additional parties,
who were not part of the initial proceedings, will be introduced in the course of
this judgment and referred to in accordance with their respective roles in the
applications presently before the court.

Introduction and Background Facts
[5] In setting out the background facts and the litigation history that follows later, I
have drawn extensively from the heads of argument prepared by counsel for
the respective parties, Mr Stockwell SC, Mr Morrisson SC and Mr Makola SC,
for which I express my appreciation .

[6] The origins of the dispute over the shareholding in Consortium can be traced
back to 2004, when a broad -based black economic empowerment (BBBEE)
initiative was conceptualised and negotiated between certain individuals in

1 71 of 2008.
6
collaboration with major mining houses. The objective was to promote the
participation of historically disadvantaged individuals in the mining industry. The
transaction, which became known as Project Pangolin, was made possible
through the cooperation of A nglo South Africa Capital, BHP Billiton South Africa
(now known as BHP Group) and the Industrial Development Corporation.

[7] The transaction concerned valuable iron ore and other mineral assets. These
assets were transferred and registered in the name of a company known as
Kumba Iron Ore (Kumba). Coal and other heavy mineral assets were in turn
transferred and registered in the name of a company known as Kumba
Resources (Exxaro). In terms of the transaction structure, a ring -fenced entity
referred to as ‘BEE Holdco’ was established to serve as a special purpose
vehicle. BEE Holdco would acquire and hold designated shares in both Kumba
and Exxaro.

[8] To operationalise Project Pangolin, a shelf company, Main Street 333 (Pty) Ltd
(Main Street), was used to serve as BEE Holdco. Pursuant to the transaction
agreements, Main Street acquired and continues to hold a 50% shareholding
in Exxaro and a 20% shareho lding in Kumba.

[9] Consortium was one of several entities that successfully applied for and
acquired shares in Main Street. It was allocated a 9.7% shareholding in Main
Street, which interest was acquired at a cost of R250 million. The amount was
financed by way of a loan ag reement, which Consortium had negotiated with
Nedbank. As security for the repayment of the amount of R250 million to
Nedbank, all the shares, which the first shareholders held in Consortium were
ceded , in securitatem debiti , to Nedbank. The loan has since been fully repaid.
The acquisition of shares by Consortium in Main Street was, however,
regulated. Prospective shareholders were required to participate in a vetting
process to demonstrate compliance with BBBEE requirement s and to show that
any dividends received from the shares would be applied towards education
and training initiatives .

7
[10] Individuals or entities seeking to become shareholders in Consortium also had
to satisfy strict eligibility criteria, including BBBEE status, investment capacity,
relevant experience and alignment with the project’s initiatives .

[11] Among the successful applicants were two entities: Capital and the
Development Trust. Both met the eligibility criteria and were allocated
shareholdings in Consortium. The Development Trust was allotted a 13%
shareholding, while Capital received 46.56%. The full list of shareholders, along
with their respective in terests and the restrictions on their shares, appears in
the shareholders’ agreement .

[12] To safeguard the long -term objectives of Project Pangolin, clause 17.1 of the
shareholders’ agreement, signed by all shareholders, prohibited the sale or
encumbrance of any shares acquired during the first five years following the
project’s implementation to any entity or individual. This restriction applied
equally to all parties to the agreement . In addition to the five -year moratorium,
certain shareholders were further restricted under clause 21.3 of the
shareholders’ agreement from disposing of their sh ares for a period of ten
years. The Development Trust was one of the shareholders subject to this
extended restriction .

[13] The shareholders’ agreement was a foundational component of the broader
contractual framework underpinning Project Pangolin. It incorporated and made
reference to the overarching transaction framework and Project Pangolin itself.
Notably, the original shareholders’ agreement was replaced in November 2019,
following a restructuring process that occurred after the tenth anniversary of the
project. This restructuring gave rise to a so -called Replacement BEE
Transaction. Consortium, as an existing shareholder in Main Stre et, was
required to elect whether to reinvest or disinvest. It chose to reinvest.
Shareholders within Consortium were similarly given an opportunity to make
this election. Some chose to disinvest, thereby necessitating the conclusion of
a new shareholders’ agreeme nt.

8
[14] At its core, this litigation is about a significant financial stake. Main Street, the
BEE Holdco created under Project Pangolin, holds major shareholdings in
Exxaro and Kumba , two of South Africa’s leading and most valuable mining
companies. Consortium’s 9.7% interest in Main Street gives it an indirect but
substantial claim to these nationally important assets. Control over the shares
in Consortium determines not only how divid ends are distributed, but also who
gets a say in the governance of that stake. The dispute over who really owns
the shares in Consortium is therefore not just about advancing the goals of
BBBEE, but also about influence, accountability, and real financial power .

Summary of the Litigation History
The action
[15] In December 2018, the Ngonyama parties instituted action against Mr Kwinana
and the trustees of the Development Trust, then comprising Mr Kwinana and
Mr Mapipa. These trustees were replaced in 2021 by Mr Dalikhaya Rain
Zihlangu and Ms Unathi Mdoda (the current trustees). In that action, the
Khululekile Family Trust asserted a claim to 50% of the 13% shareholding held
by the Development Trust in Consortium .

[16] In their particulars of claim, the Ngonyama parties alleged that during the period
2005 to 2006, Mr Kwinana, acting on an oral mandate from Mr Ngonyama and
in his capacity as Mr Ngonyama’s agent and attorney, procured a 6.5%
shareholding in Consortium for the benefit of Mr Ngonyama or his nominee, the
Khululekile Family Trust. At the time, Mr Kwinana was both the legal
representative of the Ngonyama parties and served as ‘advisor’ and company
secretary for both Consortium and Capital. He was also a trustee of the
Development Trust. According to the Ngonyama parties, this 6.5% interest was
to be held by a nominee shareholder, namely, the Development Trust .

[17] The Khululekile Family Trust was not registered in 2005. It was only formally
created and registered by the Master of the High Court in 2007, approximately
two years after the alleged oral agreement was concluded with the assistance
of Mr Kwinana. Consorti um, Capital and the Development Trust (collectively
referred to as ‘the Eyabantu parties’) dispute the validity of the Ngonyama
9
parties’ claim on this basis. They argue that, when read together with the trust
deed of the Khululekile Family Trust, the particulars of claim confirm that the
Trust did not exist at the time the agreement was allegedly concluded. It follows,
they contend , that no agreement could have come into existence for the benefit
of an entity that did not yet exist .

[18] This issue may be disposed of at the outset, as it should not obscure the real
disputes between the parties. The Eyabantu parties’ argument , that a trust
cannot exist prior to formal registration is legally flawed. In terms of section 2 of
the Trust Property Control Act ,2 a trust may validly be created by oral
agreement, and registration is not a pre -requisite for its legal existence. A trust
is not a juristic person; it is established by agreement, in terms of which one or
more trustees undertake to administer property for the benefit of identified
beneficiaries. Its legal existence arises from the intention to create the trust and
the conclusion of the trust agreement — not from its registration. This was
affirmed by this court in Groeschke,3 which clarified that while a trust instrument
must ultimately be in writing, the trust itself may originate from an oral
agreement, and such agreement is only required to be reduced to writing for
purposes of the Act :
‘A trust instrument must therefore be in writing. However, that does not mean that a
trust cannot be created by oral agreement. But that oral agreement only becomes a
‘trust instrument’ when it is reduced to writing: in terms of s 2 of the Act, “[i]f a document
represents the reduction to writing of an oral agreement by which a trust was created
or varied, such document shall for the purposes of this Act be deemed to be a trust
instrument ”.4

[19] That being so, the point raised by the Eyabantu parties loses all cogency, as it
incorrectly equates the date of a trust’s registration with the date of its legal
creation , an assumption that is not supported in law. There is no legal
impediment to the validity of the agreement pleaded by the Khululekile Family
Trust. The trust could have been validly created by oral agreement prior to its
formal registration, without renderi ng either the agreement or the trust itself

2 57 of 1988 .
3 Groeschke v Trustee for the Time Being of the Groeschke Family Trust 2013 (3) SA 254 (GSJ).
4 Ibid at para 15.
10
invalid or legally impossible. The timing of its registration does not, in law,
determine the moment of its creation .

[20] Returning to the events pleaded, it appears that, pursuant to the oral agreement
alleged by the Ngonyama parties, the relevant shares were acquired by the
Development Trust, represented by Mr Kwinana. It is thus further alleged in the
particulars of claim that in November 2006, Mr Kwinana, acting on behalf of the
Development Trust, entered into an oral agreement with Mr Ngonyama, who
was said to be acting on behalf of the Khululekile Family Trust. In terms of this
alleged agreement, 50% of the income accrui ng to the Development Trust,
arising from its shareholding in Consortium, was to be transferred to the
Khululekile Family Trust. The Ngonyama parties allege that, during the period
from November 2006 to February 2018, Mr Kwinana and the Development
Trust o nly ‘partially accounted’ for such income and failed to render a full and
truthful account. It is further alleged that they owed the Ngonyama parties a
legal duty to provide a complete and honest account of all income derived from
the Consortium shareholdi ng.

[21] The defendants failed to file a plea in the action. As a result, on 15 and 17 April
2019 Dosio AJ granted default judgment in favour of the Ngonyama parties.
The Dosio orders directed that (i) the defendants, in their capacities as the
trustees of the Dev elopment Trust, transfer 6,5% of the Development Trust’s
shareholding in Consortium, to the plaintiffs or their nominee; and (ii) that Mr
Kwinana render an account to the plaintiffs for the purposes of debatement in
respect of the 6.5% shareholding in Cons ortium .

[22] Subsequent to the granting of the Dosio orders, the defendants launched an
application to have those orders rescinded. On 19 June 2020, that rescission
application was dismissed with costs by Grenfell AJ. Thereafter, on 6 July 2020,
the defendants applied for leave to appeal against Grenfell AJ’s judgment.
During the hearing of the application for leave to appeal, Mr Stockwell SC,
appearing on behalf of Consortium and Capital, submitted that the application
for leave to appeal should be deferred pending the determination of two
outstanding matters: a joinder application in the main action and an application
11
brought by the Ngonyama parties under section 161 of the Companies Act.
Grenfell AJ, however, declined to enrol the joinder application and instead
granted the defendants leave to appeal her order dismissing the rescission
application to the Supreme Court of Appeal (SCA ).

[23] Consortium and Capital subsequently launched a formal application in the High
Court on 5 November 2020, seeking leave to intervene in the action as
interested parties and to be joined as the fourth and fifth defendants,
respectively. In addition to the relief relating to joinder, they also sought an order
rescinding and setting aside the Dosio orders .

[24] Parallel with their joinder application pending before the High Court,
Consortium and Capital also applied for leave to intervene in the appeal
proceedings before the SCA against the order of Grenfell AJ. On 8 April 2022,
the SCA dismissed both the intervention application and the appeal against the
dismissal of the res cission application. Delivering the judgment of the court,
Matojane AJA held as follows :
'[8] Therefore, the intervening parties had to show a legal interest in the subject matter
of the appeal that could be prejudiced by the order on appeal. The subject matter of
the appeal was whether the Kwinana parties had made a case for the rescission of the
Dosio AJ orders in the court a quo. The intervening parties had no legal interest therein.
They only had an indirect interest, in the sense that for the appeal of the Kwinana
parties to succeed would suit their interests.
[9] What the intervening parties sought to do, was to obtain a rescission of the Dosio
AJ orders at their own instance and on their own grounds, without ever having applied
for that relief. That constituted an impermissible attempt to have this Court determine
a matter as court of first instance. The remedy of the intervening parties was to institute
proceedings for the rescission of these orders, in which the reasons for their delay and
the grounds for the resc ission would be ventilated and the Ngonyama parties would
be afforded a proper opportunity to respond thereto. For these reasons, we dismissed
the application for intervention with costs, including the costs of two counsel .’

The joinder and rescission application before Fisher J
[25] At the time judgment was delivered by the SCA on 8 April 2022, the rescission
and joinder applications brought by the intervening parties, Consortium and
12
Capital, were already pending before the High Court. The joinder application
had been partially argued before Fisher J in August 2021, who had reserved
judgment pending the outcome of the appeal before the SCA. Following the
SCA’s dismissal of the appeal and the intervention application, the proceeding s
before Fisher J resumed .

[26] On 26 April 2022, the Ngonyama parties filed a supplementary affidavit
deposed to by their attorney, Mr Njokweni, in which they sought to expand the
grounds of opposition to the joinder application. Thereafter, on 14 October
2022, the intervening parties f iled a further affidavit addressing, inter alia, the
SCA’s ruling and introducing additional documents, including the transaction
framework agreement and the Memorandum of Incorporation of Consortium
(the MOI). The latter had been adopted in 2013, pursuant to the enactment of
the Companies Act of 2008. These documents were tendered as further context
to the background and structure of Project Pangolin .

[27] The matter again served before Fisher J on 8 December 2022. On that date,
the court granted an order in favour of Consortium and Capital, joining them as
parties to the action and rescinding the Dosio orders .

[28] Following the judgment of Fisher J, the Ngonyama parties served an application
for leave to appeal on 23 December 2022. It later emerged that the MOI relied
on by the intervening parties, and by Fisher J in granting the joinder and
rescission orders had only been adopted in 2013. That MOI stated that shares
in Consortium could not be held on behalf of another person, effectively
prohibiting nominee shareholding. But the alleged oral agreement between Mr
Ngonyama and Mr Kwinana took place long before t hat and was not subject to
the 2013 MOI. In light of this development, the Ngonyama parties launched a
separate rescission application, contending that a fraud had been perpetrated
on the court. This allegation of fraud formed the principal basis for the rescission
relief sought. After the exchange of affidavits, both the rescission application
and the application for leave to appeal were again enrolled before Fisher J .

13
[29] During the hearing of the rescission and leave to appeal applications, it became
apparent that Fisher J had granted her earlier order under a misapprehension
regarding the date on which the MOI had come into effect. As noted, the
document was only adopted in 2013, which post -dated the alleged oral
agreement central to the dispute. In light of this, and for reasons more fully set
out in a letter submitted by the attorney representing the intervening parties,
those parties consented to the rescission of the o rder previously granted.
Consequently, on 6 June 2023, the order of Fisher J was rescinded by
agreement between the parties .

[30] On 20 June 2023 , the Ngonyama parties brought an urgent application.
Consortium, Capital, the Development Trust (the Eyabantu parties) and Mr
Kwinana were all cited as respondents to this urgent application. They sought
an order that Consortium be interdicted from paying further dividends or
distributions to the Development Trust, pending the trust accounting to the
Khululekile Family Trust and the debatement of that account. Payment of
dividends to the Khululekile Family Trust and the signing of share transfer
forms, rela ting to the disputed shares, was also sought. The urgent application
served before Movshovich AJ on 4 August 2023. She granted an order in terms
of which Consortium was interdicted from paying any further dividends or
distributions to the Development Trust pending the final determination of the
joinder application or the finalisation of the debatement of an account,
whichever occurs last .

[31] The joinder and rescission applications accordingly remain unresolved. These
constitute the first application still pending and are now before this court for
determination .

The section 161 application (case number 40463/10)
[32] While the application to rescind the Dosio orders was still pending, the plaintiffs
instituted an application in terms of section 161 of the Companies Act against
Consortium and the defendants. Other parties, who were cited as respondents
to the section 161 application, included the Master of the High Court and the
Companies and Intellect ual Property Commission .

14
[33] In this application, the plaintiffs sought an order directing Consortium to amend
its securities register to reflect the Khululekile Family Trust as a holder of a
6.5% shareholding in Consortium, and to issue a corresponding share
certificate in the name of the trust. On 19 May 2020, the plaintiffs obtained a
default judgment in the section 161 application before Dippenaar J (the
Dippenaar order). On 30 July 2020, the intervening parties brought an
application to rescind that judgment .

[34] Following this, the plaintiffs launched an application to hold Consortium in
contempt of court for failing to comply with the Dosio orders and the Dippenaar
order . On 19 August 2020, Bhoola AJ granted a contempt order and issued a
rule nisi, calling upon Consortium to show cause on the return date why the rule
should not be made final. On the return date, Consortium opposed the relief
and brought a counter -application seeking the suspension of both the Dosio
orders and the Dippenaar order, pending the outcome of the rescission and
joinder applications. The contempt application, together with the counter -
application, subsequently served before Acting Ju dge Coetzee .

[35] Coetzee AJ granted an order suspending the operation of the Dosio J and
Dippenaar J orders, pending the determination of the joinder application. He
further directed that the contempt application may not be re -enrolled for hearing
until the joinder application had been finalised. Although the Coetzee order was
interlocutor y in nature, the Khululekile Family Trust filed a notice seeking leave
to appeal. On 30 September 2022, Coetzee AJ granted leave to appeal. The
trust delivered its notice of appeal on 28 October 2022 and filed the record on
20 December 2022. However, no fu rther steps have been taken by the trust to
prosecute the appeal .

[36] The Dippenaar order was in the interim rescinded by Bam AJ on 9 February
2021. The section 161 application therefore remains unresolved and
accordingly constitutes the second application presently before this court.

The section 26 application
[37] In addition to the section 161 application, the Khululekile Family Trust launched
a further application against Consortium in which it seeks an order permitting
15
inspection of various company records. Relying on section 26 of the Companies
Act, the trust seeks access to Consortium’s securities register, Memorandum
of Incorporation, annual financial statements, and reports presented at annual
meetings. It also seeks access to additional documents, including the
company’s accounting records, bank statements and related materials .

[38] This application previously served before Manoim AJ , who granted an order on
7 December 2020. In terms of that order, Consortium was directed to make its
members’ register available for inspection and copying by the Ngonyama
parties’ attorney. The remainder of the relief sought under section 26(1) in
particular, the claim to inspect documents allegedly relevant to the trust’s
beneficial ownership of shares was postponed pending the final outcome of the
joinder application .

[39] This application constitutes the third matter which, by agreement between the
parties, is to be consolidated and heard together with the joinder application. I
shall return to and address the section 26 application in due course .

The second rescission application and the execution application
[40] The Development Trust has instituted a second rescission application, this time
brought in the name of the current trustees, Mr Zihlangu and Ms Mdoda, in
which it seeks to set aside the Dosio orders. In parallel, the Ngonyama parties
have launched an execu tion application, seeking an order authorising the
enforcement of the Dosio orders .

[41] These two proceedings, the second rescission application and the execution
application, constitute the fourth and fifth applications presently before this
court. They will also be addressed in due course later in this judgment .

The present state of play
[42] It should by now be apparent that all the applications before the court are
interrelated and, in large part, rest upon the validity of the Dosio orders. As
previously noted, the parties agreed that the applications should be
consolidated and heard together .
16

[43] If the applicants were to succeed in both the joinder application and the second
rescission application, it would follow that the section 161 and section 26
applications stand to be postponed, pending the finalisation of the reopened
action. However, if the joinder application and the rescission applications fail, it
will be necessary to consider the remaining applications on their own merits,
beginning with the section 161 application .

The Joinder Application
[44] Before turning to the merits of the joinder application, it is necessary to address
two issues raised by the Ngonyama parties: namely, whether the doctrine of
res judicata bars the present application and whether the intervening parties
are prevented from prosecuting their applications as a result of the fraud
perpetrated on Fisher J, and thus the court.

Res judicata
[45] The contention is that the joinder application has already been adjudicated by
Grenfell AJ and the SCA, and that the matter is now final. I do not agree .

[46] First, the judgment of Grenfell AJ did not finally dispose of the joinder
application. On the contrary, Grenfell AJ expressly declined to engage with the
joinder application, holding instead that the issue should be addressed by the
court hearing the joind er application. This is confirmed by her order, which
reserved the costs of the intervention application for the court hearing the
joinder application. That reservation plainly indicates that the joinder issue was
not decided and that any remarks made by h er concerning joinder were obiter .

[47] Second, the SCA did not finally determine the issue of joinder. The Ngonyama
parties rely on paragraph 8 of the judgment delivered by Matojane AJA in
support of their argument. However, when paragraph 8 is read in conjunction
with paragraph 9, it becomes clear that at best for the Ngonyama parties, the
SCA’s remarks are equivocal .

[48] In dismissing the intervening parties’ application to intervene, the SCA
expressly observed that their appropriate remedy was to institute rescission
17
proceedings in the High Court — the court of first instance — where the reasons
for their delay and the merits of their case could be properly ventilated, and the
plaintiffs afforded a fair opportunity to respond. Crucially, the SCA did not find
that they lacked a legal interest in the action itself, but only that th ey had no
legal interest in the specific subject matter of the appeal , namely, whether the
Kwinana parties had made out a case for rescission before the court a quo .
This distinction is material and refutes any suggestion that the SCA
conclusively determined the intervening parties’ entitlement to be joined in the
underlying action .

[49] Third, the present joinder application is the very proceeding contemplated and
envisaged by the SCA. At the time when the Development Trust and Mr
Kwinana argued their appeal before that court, this application was already
pending. Indeed, the matter had previously served before Fisher J, who elected
to reserve judgment in the joinder application pending the outcome of the
Development Trust’s appeal before the SCA .

[50] Res judicata requires a final judgment on the merits between the same parties,
concerning the same cause of action and the same relief. That threshold has
not been met here. The joinder application has not been heard or determined,
either on the merits or otherwise, a nd no final order has been made on that
issue .

[51] In the circumstances, the objection based on res judicata cannot be sustained
and falls to be dismissed. The application must therefore be considered on its
merits .

Fraud
[52] The Ngonyama parties argue that the intervening parties should be barred from
prosecuting their joinder and rescission application on the basis that they
perpetrated a fraud on the court. This contention arises from the reliance placed
by them on the provisions of the Consortium’s MOI adopted in 2013, which
prohibits nominee shareholding. The Ngonyama parties contend that the
intervening parties knowingly misrepresented the date of ad option of the MOI
and falsely presented it as operative at the time of the alleged oral agreement
18
in 2006 between Mr Ngonyama and Mr Kwinana. They argue that this
misrepresentation misled Fisher J into granting the initial joinder and rescission
orders, and that the intervening parties should now be denied a hearing for
approaching the court with unclean hands .

[53] The intervening parties dispute that their conduct amounted to fraud. They
contend that there was no deliberate misrepresentation, and that their reliance
on the MOI was based on the company records then available to them. They
submit that any inaccuracy r egarding the timing of the MOI’s adoption could
and should have been corrected in argument, and that there was no intention
to deceive the court. Importantly, they note that it was Fisher J herself, having
considered the full record, who later rescinded the very orders she had granted
on the basis of the MOI. The same court has therefore corrected the position
and set aside the impugned orders. It cannot be said, in those circumstances,
that the intervening parties are precluded from now pursuing their application
afresh, properly supported by full and corrected informat ion.

[54] In my view, while the belated clarification of the MOI’s adoption date raises
legitimate concerns about the conduct of the intervening parties, it does not rise
to the level of fraud sufficient to justify an absolute bar on the intervening
parties’ right t o be heard. Allegations of fraud must be clearly established and
are not to be lightly inferred. The record does not show that the intervening
parties acted with intent to deceive or that the integrity of the judicial process
was irreparably compromised. T hat the same court has already set aside the
impugned orders further undercuts the claim that any ongoing prejudice justifies
a procedural bar. The applications for joinder and rescission must therefore be
adjudicated on their merits, and the objection bas ed on alleged fraud is
dismissed .

The merits
[55] The principal question is whether the intervening parties are entitled to be joined
as defendants in the main action. This turns on whether they have
demonstrated a direct and substantial legal interest in the relief sought,5

5 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) ( ‘Amalgamated ’).
19
specifically, whether their rights would be prejudicially affected by the judgment
in their absence. In Gordon ,6 the test was set out as follows :
‘[T]he issue in our matter, as it is in any non -joinder dispute, is whether the party sought
to be joined has a direct and substantial interest in the matter. The test is whether a
party that is alleged to be a necessary party has a legal interest in the subject -matter ,
which may be affected prejudicially by the judgment of the court in the proceedings
concerned. ’

[56] Once a party has established that it has a direct and substantial interest in
litigation, no further justification is required, and they must be joined.7 This is
not a matter of discretion or procedural convenience , it is a fundamental rule of
practice.8 A court will generally not entertain the matter until all necessary
parties have been joined.9 Similarly, where a court order cannot be sustained
or implemented without prejudicing the rights of a third party, that party must
be joined as an interested party .10

[57] The key question is what amounts to a ‘direct and substantial interest’. Our
courts have consistently held that it refers to a legal interest in the right forming
the subject matter of the litigation. A mere financial or commercial interest, by
contrast, is regarded as indirect and does not warrant joinder .11

[58] The intervening parties contend that they are parties to a shareholders’
agreement under which Capital has a pre -emptive right in and to the shares
held by the Development Trust. They submit that this is a legal right, not a
financial interest, and that it gives rise to a direct and substantial interest in any

6 Gordon v Department of Health, Kwa Zulu-Natal [2008] ZASCA 99; 2008 (6) SA 522 (SCA) at para 9
(‘Gordon ’).
7 Khumalo v Wilk ins 1972 (4) SA 470 (N) at 475A -B.
8 Nelson Mandela Metropolitan Municipality v Greyvenouw CC 2004 (2) SA 81 (SE) at para 9.
9 See Philippi Horticultural Area Food and Farming Campaign and Another v MEC for Local Government
2020 (3) SA 486 (WCC) at para 29 in which the court stated that it can be raised mero motu .
10 See Morgan and Another v Salisbury Municipality 1935 AD 167 at 171; see also Collin v Toffie 1944
AD 456; Amalgamated n 5 above at 659 and 660 ; Toekies Butchery (Edms) Bpk en Andere v Stassen
1974 (4) SA 771 (T) at 774F -H; Vandenhende v Minister of Agriculture, Planning and Tourism, Western
Cape 2000 (4) SA 681 (C) at 688 to 690 .
11 See Henri Vijloen (Pty) Ltd v Awerbuch Bros 1953 (2) SA 151 (O) at 169 ; see also Aquatur (Pty) Ltd
v Sacks [1988] ZASCA 86; 1989 (1) SA 56 (A) at 61J-62G; Burger v Rand Water Board [2006] ZASCA
150; 2007 (1) SA 30 (SCA) para s 7 to 9.
20
judgment affecting those shares. Should the Development Trust be ordered to
sell or transfer its shares, Capital asserts a prior and superior entitlement to
those shares relative to any third party, including the Khululekile Family Trust .

[59] Consortium further maintains that it is contractually bound to ensure that the
Development Trust complies with its obligations under the Shareholders’
Agreement, including offering the shares that may be sold or otherwise
transferred to existing shareholders before any transfer to outsiders. This
obligation, they submit, constitutes an independent legal interest in the subject
matter of the dispute .

[60] In Rabinowitz and Another N.N.O v Ne d-Equity Insurance Co Ltd,12 the court
affirmed the principle that a party seeking to intervene must establish an interest
that would probably be affected, or one that is likely to be affected by the
outcome or that a common cause of action or common ground exists with the
party with whom joinder is being sought. Our courts have also acknowledged
that joinder may be permitted for reasons of convenience, equity, cost -saving,
or to prevent a multiplicity of proceedings .13

[61] The Constitutional Court in SA Riding for the Disabled Association v Regional
Land Claims Commissioner14 reiterated this foundational principle. It held that
if an applicant shows a right that may be affected by the court’s order,
permission to intervene must be granted. The court emphasised that, as a
matter of fairness and due process, no binding order should be issued without
affording the affected party a hearing. Once a direct and substantial interest is
established, intervention should follow as of right .15

[62] In Amalgamated,16 the Appellate Division articulated a two -part test for
determining whether a third party has a direct and substantial interest in
litigation. First, the court must ask whether the party would have locus standi to

12 1980 (3) SA 415 (W).
13 Dendy v University of the Witwatersrand 2005 (5) SA 357 (W) at para 73.
14 [2017] ZACC 4; 2017 (8) BCLR 1053 (CC); 2017 (5) SA 1 (CC) (‘SA Riding’ ).
15 Ibid at para 11. See also Matjhabeng Local Municipality v Eskom Holdings Limited and Others [2017]
ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC) at paras 91 and 92.
16 Amalgamated fn 5 above .
21
claim relief concerning the same subject matter. In this case, the question is
whether Capital, as holder of a pre -emptive right, would have standing to assert
that the Development Trust’s shares must first be offered to it and the remaining
shareholders. Second, the court must consider whether the absence of the third
party could result in a situation where the court’s order (i.e., the Dosio orders)
would not be res judicata as against that party, and whether the third party will
be entitled to approach the court independently in future proceedings
concerning the same subject matter .

[63] The intervening parties submit that both questions posed by the Amalgamated
test must be answered in the affirmative. As to the second question, they argue
that the very need for the Khululekile Family Trust to initiate proceedings under
section 161 of the Companies Act demonstrates that the Dosio orders cannot
be implemented with out first making the Dosio orders binding on Consortium.
It is submitted that the section 161 application is wholly dependent on the
existence of the Dosio orders and has no indepe ndent foundation apart from
them. Those orders are thus the fons et origo of the relief sought. The
intervening parties ask: if Consortium was not cited in the original proceedings
yet is directly affected by the orders, on what basis can it be denied an
opportunity to contest their validity ?

[64] They further contend that the Khululekile Family Trust has, in effect,
acknowledged that Consortium was a necessary party. In the founding affidavit
to the section 161 application, the Khululekile Family Trust stated :
‘The applicants [Khululekile] deemed it necessary to bring this application for the
reason, amongst others, that the first respondent [Consortium] is not a party to the
proceedings mentioned above (the action) and the default judgment is not binding on
the first respondent .’

[65] This, the intervening parties argue, is an unequivocal admission that the Dosio
orders are not binding on Consortium and that its exclusion from the action was
material. It also supports the conclusion that Consortium and Capital were
necessary parties, th at their non -joinder renders the Dosio orders
22
unenforceable against them, and that they are accordingly entitled to be heard
on the merits of the matter .

[66] The intervening parties further submit that, even if it were to be found that they
lack a direct and substantial interest, or that their interest is merely financial or
otherwise indirect, this would not necessarily preclude their joinder. They argue
that, in such circumstances, the court still retains a wide and unfettered
discretion to order joinder on the grounds of convenience. Unlike the position
where a party has a direct and substantial interest, where joinder is obligatory,
joinder for reasons of co nvenience lies within the court’s discretion .17

Evaluation
[67] The intervening parties assert a direct and substantial interest in the main
action, relying primarily on provisions of the shareholders’ agreement governing
Consortium, particular ly the pre -emptive rights afforded to shareholders. They
argue that these rights are triggered if any shareholder, such as the
Development Trust, intends to sell or otherwise dispose of its shares. The
agreement imposes strict limitations on such transaction s. Clause 17.1
prohibits any shareholder from selling or encumbering their shares within the
initial five -year period from November 2006 to November 2011. Thereafter,
additional constraints continue to apply, including a requirement that any
proposed trans fer must be approved by Anglo South Africa and BHP Billiton
South Africa. It is argued that Consortium is contractually obliged to enforce
these restrictions and ensure that any intended transfer first be offered to
existing shareholders before shares can be transferred to third parties .

[68] These restrictions are reinforced by clauses 21.3 and 21.4 of the shareholders’
agreement, which extend the prohibition on the Development Trust from
disposing of its shares for a ten -year period following November 2006. Even
thereafter, any intended sale or transfer must be preceded by formal notice to
the board and the remaining shar eholders, who are afforded pre -emptive rights
of first refusal. They submit that, had these provisions been disclosed to Dosio

17 Amalgamated above fn 5 at 659.
23
AJ, the orders would not have been granted without the joinder of Consortium
and its shareholders, whose contractual rights were implicated .

[69] Beyond the shareholders' agreement, the intervening parties also rely on the
transaction framework agreement concluded with the facilitating parties: Anglo
Finance, Anglo SA, Anglo Operations, Kumba and the Industrial Development
Corporation. Under that agreement, Capital gave binding representations and
warranties that the shareholders of Consortium would be as reflected in
annexure “C”, and that those shareholders would, as at the Project Pangolin
completion date, hold the percentages set out therein. These undertakings,
they argue, underscore their vested legal interest in the composition and control
of shareholding in Consortium .

[70] The Ngonyama parties oppose the joinder primarily on the basis that the
intervening parties lack a direct and substantial legal interest in the subject
matter of the action. They argue that the Dosio orders merely recognised the
Khululekile Family Trust’s existing beneficial ownership of a 6.5% shareholding
in the Consortium, an interest held through a nominee relationship with the
Development Trust, and did not result in a transfer, sale, or alienation of shares
that would trigger the pre -emptive rights co ntained in the shareholders’
agreement. They therefore contend that the intervening parties do not suffer
any legally recognised prejudice .

[71] Moreover, the Ngonyama parties point out that the Khululekile Family Trust has
expressly undertaken to be bound by the shareholders’ agreement, including
the pre -emptive provisions, should any future transfer of shares be
contemplated. They further argue t hat the intervening parties had prior
knowledge of the proceedings and elected not to participate, and that their
present attempt to intervene constitutes a belated and tactical effort to reargue
matters already decided and delay enforcement of long -standi ng court orders .

[72] In assessing the arguments of both parties, three important principles must be
kept in mind. First, as a general rule, a company has no legal interest in who its
shareholders are, provided the procedural requirements of the Companies Act
are complied with. This principle is well established in our law and reflects the
24
separation between company administration and proprietary interests of
shareholders. Second, the intervening parties must demonstrate a direct and
substantial legal interest in the subject matter of the litigation. In this case, that
means showing that th e Dosio orders prejudicially affected their rights. Mere
financial or commercial interests are not sufficient. Third, section 56 of the
Companies Act recognises that shares may be held by a nominee on behalf of
a beneficial owner, and that the beneficial i nterest may be exercised in
accordance with instructions from the beneficial owner. This statutory
framework reinforces the principle that beneficial ownership is distinct from
registered ownership and that nominee arrangements are both recognised and
lawful.

[73] The relief sought by the plaintiffs in both the main action and the section 161
application does not involve a sale, transfer, or disposal of shares in
Consortium. It merely recognises the Khululekile Family Trust as the beneficial
owner of a 6.5% sharehol ding, which has, from the outset, been held in the
name of the Development Trust as nominee. The Dosio orders did not effect a
change of ownership; they clarified the true legal position and resolved the
dispute between the beneficial owner and its repudia ting nominee. Since the
beneficial interest existed before the pre -emptive rights in the shareholders’
agreement took effect, no new rights were affected .

[74] In Gordon18 it was held that even if a party need only carry into effect a
judgment, it must still demonstrate prejudice to warrant joinder. It is not enough
that the order affects them operationally; it must do so adversely. This principle
was reaffirmed by the SCA in Judicial Service Commission v Cape Bar
Council ,19 which held that joinder is only necessary if a party has a direct and
substantial interest that may be affected prejudicially by the judgment. A mere
interest in the outcome, without more, does not justify joinder. The right to raise
a non -joinder objecti on is thus limited and cannot be invoked lightly .


18 Gordon above fn 6 at para 9.
19 Judicial Service Commission v Cape Bar Council [2012] ZASCA 115; 2013 (1) SA 170 (SCA) at para
12 (‘JSC’).
25
[75] The JSC decision further clarified that a court must distinguish between
prejudice arising directly from the proceedings, and a situation where the order
merely determines the rights of the existing litigants without affecting a third
party’s ability to assert th eir rights in another forum.20 The Constitutional Court21
has similarly held that applicants for intervention must show a direct and
substantial legal interest , that is, a legally recognised right that could be
prejudicially affected by the court’s order .

[76] Even if the shareholders’ agreement were somehow implicated, the plaintiffs
have undertaken under oath to be bound by its terms, including the
enforcement of pre -emptive rights. This undertaking addresses any potential
prejudice and safeguards the rights o f existing shareholders, including the
intervening parties. The only prejudice alleged is the potential infringement of
pre-emptive rights, which, if valid, remain contractual entitlements. These do
not amount to the type of direct legal interest required to justify joinder .

[77] The intervening parties’ asserted interest relates primarily to the entry of the
Khululekile Trust into Consortium’s share register , a matter that falls within the
scope of the section 161 application, not the original action. The Dosio orders
resolved a dispute between the Ngonyama parties and the Eyabantu Trust over
beneficial ownership, and the intervening parties were not necessary parties to
that dispute. Their argument that the section 161 application requires their
joinder to the original action is misconceived. That application raises a distinct
issue: whether Consortium must implement the Dosio orders by amending its
securities register. It also provides the forum in which Consortium may raise
any relevant defences. I agree with counsel for the Ngonyama parties that the
availability of these remedies undermines the case for joinder .

[78] Section 56(1) of the Companies Act, read with long -standing case law, affirms
the legal efficacy of beneficial ownership. In Oakland Nominees (Pty) Ltd v
Gelria Mining & Investment Co (Pty) Ltd,22 the SCA held that a nominee holds
shares on behalf of a principal and takes instructions from that principal. The

20 Ibid at paras 14 and 17.
21 SA Riding above fn 14 at para 9.
22 1976 (1) SA 441 (A) (‘Oakland Nominees ’).
26
nominee is a registered holder in form, but not in substance; ownership does
not depend on registration. The SCA confirmed this again in Standard Bank of
South Africa Ltd v Ocean Commodities ,23 where Corbett JA reaffirmed that the
rights comprising a share may vest in a party who is not the registered
shareholder, and that companies deal only with the registered holder as a
matter of administrative policy , not because that person holds true ownership .

[79] Blackman, in his commentary on the Companies Act ,24 explains this apparent
tension between Oakland Nominees and Ocean Commodities : the ‘registered
owner’ is the party a company must recognise for administrative purposes, but
true ownership may vest elsewhere. In legal terms, the nominee possesses a
form of quasi -possession, while the beneficial owner holds substantive rights.
Seen i n this light, the Dosio and Dippenaar orders merely align the company’s
share register with the established beneficial ownership of the Khululekile
Family Trust. They do not alter the proprietary landscape or infringe the rights
of other shareholders .

[80] In conclusion, the intervening parties have not established a legally sufficient
interest to justify joinder. The Dosio orders merely confirmed a long -standing
beneficial interest and did not trigger the protections in the shareholders’
agreement. Their cl aims of prejudice are speculative and unsupported by the
facts. Nor can joinder be justified on grounds of convenience: absent a direct
and substantial legal interest, considerations of procedural efficiency cannot
displace the threshold requirement for jo inder as of right. On the evidence, the
intervening parties’ application appears motivated more by a desire to delay
execution than by a bona fide attempt to vindicate legal rights. In the face of
clear statutory and common law authority validating nominee shareholding, and
in the absence of any demonstrable prejudice, the application for joinder must
fail.

The second Rescission Application

23 1983 (1) SA 276 at 288H -289B ; see also Smyth v Investec Bank Ltd [2017] ZASCA 147; 2018 (1) SA
494 (SCA) at para 21 (Ocean Commodities ’).
24 Blackman “ Commentary on the Companies Act of 2008 ” (Juta) Vol 1 at 2-1193 .
27
[81] The trustees who initially represented the Development Trust in the action, Mr
Kwinana and Mr Mapipa, ceased to hold office on or about 21 October 2021.
They were succeeded by Mr Dalikhaya Rain Zihlangu (first applicant) and Ms
Unathi Mdoda (the second app licant) and, who were duly appointed as the
current trustees of the Development Trust (‘the current trustees’ ).

[82] The Development Trust launched their second application for the rescission of
the Dosio orders on 17 September 2024. The legal requirements for rescission
under Uniform Rule 31(2)(b), rule 42 or under the common law are well
established. An applicant must show ‘good cause’, which entails: (i ) a
reasonable explanation for the default; (ii) that the application is brought bona
fide; and (iii) that the applicant has a prima facie bona fide defence to the claim.
The jurisdictional thresholds differ depending on the pathway invoked .

[83] Under rule 31(2)(b), the applicant must show that : (i) the judgment was granted
by default and (ii) the application for rescission was brought within 20 days of
acquiring knowledge of the judgment. Rule 42(1), by contrast, permits
rescission in limited instances: (i) where the judgment was erroneously sou ght
or granted in the absence of a party affected thereby; (ii) where the judgment
contains an ambiguity, patent error or omission, but only to the extent of that
defect; or (iii) where the judgment was granted as a result of a mistake common
to the partie s. At common law, rescission is competent on grounds such as
fraud, iustus error , or the discovery of new documents , as well as in cases of
default or consent judgments where good cause is shown .

[84] An applicant must also comply with the relevant timeframes. Where rule
31(2)(b) is invoked, the application must be brought within 20 days of acquiring
knowledge of the judgment. Under Rule 42 or the common law, the application
must be launched within a re asonable time .

[85] The Development Trust now seeks rescission of the default judgment,
approximately six years after fact. The application is based on the same core
defences previously raised in the rescission application dismissed by Grenfell
AJ, which dismissal was upheld by the SCA. While the current trustees rely on
the same underlying grounds, they focus their attention on the conduct of Mr
28
Kwinana. They allege that he acted in a conflicted manner, serving
simultaneously as a trustee of the Development Trust and as the legal
representative of the opposing Ngonyama parties. He took no steps to defend
the trust’s interests. The summons and appl ication for default judgment were
served at his offices, yet he failed to oppose either. Although he became aware
of the default orders within three days of their being granted, he waited five
months to bring a rescission application. His explanation, name ly that he hoped
to resolve the matter through dialogue, was vague and implausible, particularly
since court orders are binding and not susceptible to informal resolution .

[86] The current trustees’ primary concern, however, is Mr Kwinana’s presentation
of two irreconcilable versions before the court. In his 2019 affidavit, he denied
the Ngonyama parties’ claim, accused them of misleading the court, and
maintained that he merely assisted with registering the Khululekile Family
Trust. But in a 2024 affidavit, filed ostensibly to assist the court, h e reversed his
position entirely. He claimed that the shares ‘always belonged’ to the
Ngonyama parties and that the acquisition stemmed from a transaction
involving Mr Zihlangu and Ms Mdoda’s father. No explanation was offered for
this complete reversal. T he trustees argue that he must have been dishonest
in at least one of the two affidavits .

[87] They maintain that they were unaware of his dual role until June 2023, when,
at a Consortium board meeting, he expressly confirmed that he had acted on
behalf of the Ngonyama parties. Prior to that, although the Ngonyama parties
had referred to Mr Kwinana as their agent and attorney in their pleadings, this
had not been unequivocally confirmed by him. At the board meeting, Mr
Zihlangu denied any knowledge of Mr Kwinana’s dual representation and any
approval of the alleged share acquisition by the Ngonyama p arties.

[88] It was only when the January 2024 affidavit was filed that it became clear to the
current trustees that Mr Kwinana was deeply conflicted, serving two opposing
interests. His inaction and failure to defend the Development Trust in the face
of the Ngonyama p arties’ claim were now seen as the result of that conflict. His
decision to pursue ‘dialogue’ instead of legal opposition is regarded as an
29
abdication of his fiduciary duty, and his divided loyalties were unknown to the
trustees until well after the default judgment had been granted .

[89] The current trustees submit that there has been no inordinate delay in bringing
this application. Throughout the relevant period, the default orders were either
under appeal, the subject of a rescission application, or had already been
rescinded (though th at rescission was later set aside). They assert that they
have now provided a credible explanation for Mr Kwinana’s failure to act and
have raised a bona fide defence that, on a prima facie basis , enjoys prospects
of success. They also pleaded material facts which, if proven at trial, would
entitle them to the relief sought. Chief among these is the following: the
Ngonyama parties were never party to the shareholder agreements or to the
transaction referred to as Project Pangolin; the transactional documents
expressly excluded them; and key contractual provisions, such as the
requirement for shareholder approval and the enforcement of pre -emptive
rights in respect of share transfers, were never sat isfied. Moreover, no payment
was ever made by the Ngonyama parties for the shares they now claim. The
trustees further contend that the legal foundation of the Ngonyama parties’
claim, particularly their reliance on an alleged oral agreement with Mr Kwinan a,
is fundamentally untenable .

[90] They therefore submit that sufficient cause exists for rescission under the
common law standard, namely, a reasonable explanation for default and a bona
fide defence with prospects of success. The matter, they argue, should proceed
to trial where the factual disputes can be fully ventilated .

[91] The Ngonyama parties oppose the application and raise four principal grounds
of objection: first, that the application constitutes an abuse of process; second,
that it is precluded by the doctrines of res judicata and issue estoppel; third,
that the Development Trust has waived, or at least acquiesced in the default
orders; and fourth , the lack of merit in the underlying allegations regarding Mr
Kwinana’s alleged conflict of interest. In addition, they seek a punitive costs
order against the Development Trust. Each of these arguments will be
addressed under separate headings below .
30

Abuse of process
[92] The Ngonyama parties contend that the Development Trust, together with
Consortium and Capital (collectively, the Eyabantu parties), have embarked on
a strategy of serial litigation calculated to avoid compliance with the Dosio
orders, granted as far back a s April 2019. Central to this strategy, they argue,
is Mr Zihlangu, who is described as the ‘controlling mind’ behind the various
applications. He is said to have orchestrated what amounts to a classic
‘Stalingrad defence,’ marked by repeated and progressi vely weaker legal
challenges aimed at delaying the enforcement of a final judgment .

[93] The Ngonyama parties further deny that the Development Trust only recently
became aware of Mr Kwinana’s alleged conflict of interest. They submit that the
factual premise of this claim is both disputed and demonstrably false. Mr
Zihlangu, now a trustee of the Development Trust, was aware of these alleged
facts at all material times. Notably, even after Mr Kwinana’s removal and the
appointment of Mr Zihlangu and Ms M doda, the reconstituted board actively
implemented the Dosio orders, most significantly by furnishing an accounting
to the Ngonyama parties in October 2022. This conduct, the Ngonyama parties
contend, constitutes unequivocal acceptance of the judgment. The present
rescission application was only launched after the Ngonyama parties sought
judicial leave to execute the Dosio orders, further reinforcing the inference that
it is driven by an ulterior motive to delay enforcement rather than by any bona
fide or newly discovered defence .

[94] Viewed objectively, the manner in which the present application has been
initiated strongly suggests that it constitutes an abuse of the court’s process.
The timing of the application, launched on 22 April 2024, a mere week before
the scheduled hearing of the Ngonyama parties’ execution applica tion, was
plainly tactical. The result was a de facto postponement of a ripe enforcement
application, despite the Deputy Judge President having earlier declined to grant
such a postponement. That this occurred against the backdrop of a series of
failed or withdrawn rescission attempt lends considerable weigh t to the
conclusion that the application is not driven by legitimate legal grievance, but
31
rather by a broader litigation strategy to obstruct the execution of a final
judgment .

[95] As the Constitutional Court emphasised in Mineral Sands Resources (Pty) Ltd
v Reddell,25 abuse of process manifests when procedural mechanisms are
exploited in a manner inconsistent with their intended purpose, to delay,
prejudice, or manipulate outcomes. The strategic deployment of successive
rescission applications in this matter , many involving overlapping parties and
identical relief has caused substantial procedural and substantive prejudice to
the Ngonyama parties and has burdened the administration of justice with
piecemeal and repetitive litigation .

[96] In any event, the new defences now advanced by the Development Trust are
not only legally irrelevant but also factually implausible. The suggestion that the
current trustees were unaware of Mr Kwinana’s historical role as attorney and
agent for the Ngonyam a parties is contradicted by the pleadings and the record.
The 2018 particulars of claim made this role explicit, and the trustees were
already in office during the appellate proceedings. Moreover, the disputes
between Mr Kwinana and his former clients, in cluding the Development Trust,
are extraneous to the issues in this matter and cannot now be invoked to
undermine the finality of the Dosio orders .

[97] In Zuma,26 the Constitutional Court reaffirmed that litigation must, at some
point, come to an end. In Molaudzi v S,27 the same Court explained that this is
because :
‘The rule of law and legal certainty will be compromised if the finality of a court order
is in doubt and can be revisited in a substantive way. The administration of justice will
also be adversely affected if parties are free to continuously approach courts on
multiple occasions in the same matter .’


25 [2022] ZACC 37; 2023 (2) SA 68 (CC); 2023 (7) BCLR 779 (CC) .
26 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector Including Organs of State [2021] ZACC 28; 2021 (11) BCLR 1263 (CC)
at para 1.
27 Molaudzi v S [2015] ZACC 20; 2015 (2) SACR 341 (CC) ; 2015 (8) BCLR 904 (CC) at para 37.
32
[98] Having regard to the history of this litigation, the timing and content of the
present application, and the legal principles governing the finality of judgments
and the permissible scope of rescission, I am satisfied that this application
constitutes an ab use of process. It follows that the application falls to be
dismissed on this ground alone. That conclusion is further fortified, as I now
address, by the doctrines of res judicata and waiver/acquiescence, both of
which are in my view dispositive of the relief sought .

Res judicata; Issue Estoppel and Waiver/ Acquiescence
[99] Even if it is accepted that this application was not brought for improper reasons,
it must still be dismissed because it fails on basic legal principles. The principles
of res judicata , issue estoppel, and waiver or acquiescence are aimed at
promoting finality in litigation, preventing the re -litigation of matters already
determined, and protecting successful litigants from perpetual legal
harassment. These principles are not mere proce dural technicalities, they are
central to the rule of law, legal certainty, and the efficient functioning of the
judicial system. In the present matter, they apply with full force .

[100] The principle of res judicata bars a party from re -litigating a matter that has
already been finally decided by a competent court. In Prinsloo NO & Others v
Goldex 1 6 (Pty) Ltd and Another28 the SCA confirmed the three classic
requirements for res judicata . They are: (i ) the same parties, (ii) the same cause
of action, and (iii) the same relief. While courts have relaxed the latter two
requirements under the doctrine of issue estoppel, the core principle remains:
once a matter has been properly decided by a court, it cannot be reopened
simply because the same facts are presented in different words or from a new
angle. In Prinsloo, the SCA explained that res judicata is not based on rigid
technicalities but on fairness and the need for finality. It protects parties from
having to defend the same dispute again and again, just because the losing
party tries to reframe the case. If courts allowed this, there would never be an
end to litigation. Ultimately our courts will apply the doctrine of issue estoppel

28 [2012] ZASCA 28; 2014 (5) SA 297 (SCA) at para 23 ( ‘Prinsloo ’).
33
on a case -by-case basis and not permit the defence where it will potentially give
rise to unfairness in subsequent proceedings .29

[101] In this instance, the Development Trust, then represented by Mr Kwinana,
previously brought a rescission application, which was dismissed by Grenfell
AJ. That decision was upheld by the SCA, which declined to interfere with the
High Court’s findings, describing it as ‘an entirely new rescission application’.
The relief now sought is identical: a rescission of the Dosio orders. Although
the current trustees present the application under the pretext of newly
discovered facts, specifically relating to Mr Kwinana’s alleged conflict, the
substance of the applicatio n remains unchanged. The core issue, namely
whether the default judgment was improperly granted, has already been
determined .

[102] Moreover, the allegations of conflict or misconduct attributed to Mr Kwinana
were either known to the current trustees or, at the very least, reasonably ought
to have been known well before the launch of the present application. The
assertion that these fa cts only recently came to light is, on the record, wholly
implausible. Following the dismissal of its appeal by the SCA, the Development
Trust chose not to approach the Constitutional Court. Instead, having removed
Mr Kwinana as a trustee and appointed the current trustees in his place, the
trust proceeded to implement the Dosio orders. On 28 October 2022, the trust
delivered an accounting to the Ngonyama parties under cover of an email from
Ms Mdoda. That accounting expressly recorded that it was provided in
compliance with paragraph 1 of the Dosio orders, noted the appointment of the
new trustees on 12 October 2021, and bore the signature of the trustee, Ms
Mdoda acting on behalf of the trust. This conduct is irreconcilable with the
stance of a party who truly believes the judgment was erroneously granted or
fatally infected by Mr Kwinana’s conflict of interest .

[103] Waiver occurs where a party, with full knowledge of a right, intentionally
relinquishes or abandons it. The test is objective: the party’s intention is
assessed with reference to their outward conduct, whether expressed through

29 Ibid at para 26.
34
words, actions, or a combination of both. In Coppermoon Trading 13 (Pty) Ltd
v Government, Eastern Cape Province , 30 the court held that where waiver is
not expressly stated, the conduct relied upon must, on a reasonable
interpretation, be more consistent with an intention to waive the right than to
assert it .

[104] The conduct of the Development Trust, particularly after the finalisation of its
earlier rescission application and its decision not to pursue a further appeal to
the Constitutional Court, supports a finding that it waived any right to challenge
the validity of the Dosio orders. As the SCA affirmed in Road Accident Fund v
Mothupi,31 waiver may be inferred not only from silence or delay in asserting a
right, but also from conduct that affirms the status quo. The delivery of an
accounting in express compliance with the court order, signed by the newly
appointed trustee, constitutes clear outward conduct incompatible with any
ongoing intent to challenge the judgment .

[105] If not waiver , then at the very least the Development Trust’s conduct amounts
to acquiescence. Acquiescence arises where a party, with knowledge of its
rights, acts in a manner that affirms and abides by an existing legal position,
thereby forgoing the right to later d ispute it. In Hartley Roegshaan v FirstRand
Bank Limited ,32 the court reiterated that a litigant cannot approbate and
reprobate — one cannot blow hot and cold or raise objections only when it is
strategically convenient. That is precisely what the Development Trust now
seeks to do: having accepted the judgment and taken active steps to implement
it, it now attempts to resile from tha t position without sufficient justification, and
only at the point where execution is imminent .

[106] Despite being aware of the alleged conspiracy between Mr Kwinana and Mr
Ngonyama from as early as 10 December 2020, the current trustees allowed
Mr Kwinana to continue administering the affairs of the Development Trust,
including its litigation with the Ng onyama parties. They took no steps to remove
him as trustee until nearly two years later. More significantly, even with full

30 2020 (3) SA 3 91 (ECB) at para 23 .
31 [2000] ZASCA 27; 2000 (4) SA 38 (SCA) at para 15 .
32 [2014] ZAGPJHC 282. See also Botha v White 2004 (3) SA 184 (T) at para 31 .
35
knowledge of the alleged impropriety, they proceeded to act on the Dosio
orders, most notably by delivering an accounting signed by Ms Mdoda. In these
circumstances, the Development Trust cannot now seek to overturn an order it
knowingly implemented. Its c onduct amounts to clear acquiescence in the
judgment and is incompatible with the belated assertion of a right to rescind .

[107] In light of the above, I am satisfied that the present rescission application is
barred both by res judicata and issue estoppel, and that the conduct of the
Development Trust amounts to a clear waiver of its right to challenge the Dosio
orders. At best for the trust its conduct constitutes acquiescence, and it is
estopped from now seeking to undo a final judgment which it has previously
accepted, implemented, and failed to contest within a reasonable time .

[108] In the result, the Development Trust has failed to establish any legal basis for
rescinding the Dosio orders. Although the current trustees frame the application
as one brought under the common law rather than Rule 42(1)(a), the more
flexible standard of ‘ good cause’ still requires a reasonable and acceptable
explanation for the default and a bona fide defence with reasonable prospects
of success. Neither requirement has been met. The application rests primarily
on Mr Kwinana’s alleged conflict of interest, which, as discussed, is not a
sufficient basis for rescission. The judgment was granted in accord ance with
proper procedure, no procedural irregularity has been demonstrated, and no
compelling ground exists to disturb the finality of the Dosio orders. The
application must therefore be dismissed .

Costs of the second rescission application
[109] The general rule is that costs follow the result and are ordinarily awarded on
the party -and-party scale. However, where the litigation conduct of a party is
shown to be manifestly unreasonable, vexatious, or abusive, a court is entitled
to depart from the ordinary rule and to grant a punitive costs order on the
attorney -and-client scale. Such an order is warranted not as a punishment, but
as a mark of the court’s disapproval and to indemnify the successful party more
fully against the unnecessary expense t o which it has been put .

36
[110] In the present matter, the conduct of the Development Trust has been
characterised by serial and repetitive litigation aimed at overturning the same
court orders, the Dosio orders, despite those orders having been confirmed by
both the High Court and the SCA. The present application constitutes the fifth
attempt to achieve, by different means, what has already been judicially
rejected. It is a clear example of litigation pursued not with a view to vindicating
a right, but rather to delay and f rustrate enfor cement of a final and binding court
order .

[111] This court is satisfied that the Development Trust has acted in a manner that
constitutes an abuse of process and that its approach to these proceedings
justifies the granting of costs on a punitive scale. While I make no finding of
misconduct against its legal representatives, the pursuit of this meritless and
repetitive application in the face of adverse precedent and previous judgments
cannot be condoned .

[112] Accordingly, the application is dismissed with costs on the attorney -and-client
scale, such costs to include the costs of two counsel .

The Section 161 application
[113] In its notice of motion, the Khululekile Family Trust seeks declaratory relief
confirming its ownership of a 6.5% shareholding in Consortium. It further seeks
a directive compelling Consortium to rectify its securities register to reflect the
trust as the holder of this shareholding, and to issue a share certificate
accordingly .

[114] Consortium opposes the relief sought in the section 161 application on the
same grounds advanced in opposition to the joinder application. In particular, it
contends that prayer 1 of the amended notice of motion effectively seeks to
reaffirm the Dosio orde rs, and that such relief should be refused for the same
reasons the Dosio orders ought to be rescinded. The core of Consortium’s
argument is that the original shareholders in Consortium acquired pre -emptive
rights under the shareholders' agreement, entitli ng them to acquire any shares
that may be transferred out of the name of the Development Trust, to the
exclusion of the Khululekile Family Trust. These rights, it is submitted, are
37
contractual in nature and binding, and any order recognising the Khululekile
Family Trust’s shareholding would contravene the express provisions of both
the shareholders' agreement and the transaction framework agreement.
Granting the relief would, Consort ium argues, improperly override these
contractual rights and disregard the pre -emptive entitlements of the remaining
shareholders .

[115] Secondly, it is submitted that the Khululekile Family Trust has effected a notable
turnabout in the position it now advances, as compared to the case originally
pleaded in the action. Initially, the plaintiffs alleged that Mr Kwinana was
mandated to acquir e shares on behalf of the Ngonyama parties. There was no
suggestion that, at the time of the initial allocation of shares in Consortium, Mr
Kwinana would negotiate for shares to be allocated to the Ngonyama parties
directly .

[116] Thirdly , the unchallenged documentary evidence confirms that the first
shareholders in Consortium were exclusively those individuals listed in
annexure “C” to the transaction framework agreement. These parties are
reflected as shareholders in the shareholders’ agreement and are accordingly
recognised a s the original contracting shareholders. Moreover, Capital itself
expressly represented to the facilitating parties , including Anglo South Africa
Capital, Kumba, and the Industrial Development Corporation , that the
shareholders of Consortium “shall be those persons set out in Annex C,” and
that they would hold their allocated percentage shareholdings as at the Project
Pangolin Completion Date .

[117] It is submitted that Clause 5.2.1.4 of the transaction framework agreement
clearly requires that the original shareholders listed in annexure ‘C’ must hold
the shares. The agreement does not contemplate, let alone permit , nominee
representative shareholding . This obligation is rei terated in clause 15.1.7.1 of
the shareholders’ agreement, which stipulates that, until the fifth anniversary of
the agreement, ‘the entire issued ordinary share capital of the Company
[Consortium] shall be held by the Shareholders as set out in clause 3.2.2.’
Clause 3.2.2, in turn links the shareholding directly to those set out in annexure
“C”.
38

[118] In addition to these provisions governing the identity of shareholders, clause 17
of the shareholders’ agreement imposes strict restrictions on the sale or
encumbrance of shares. A shareholder may not transfer or sell shares to an
outside party unless there has been full compliance with clause 17.2.3, which
requires the written approval of Anglo South Africa Capital, BHP Billiton, and at
least 75% of the remaining shareholders as to the identity of the transferee .

[119] The arguments raised in opposition to the section 161 application have already
been rejected by this court in the context of the joinder application. I also take
into account that none of the other shareholders in Consortium, despite having
long been aware of these proceedings, have sort to join or oppose them. Now
that the beneficial ownership of the Khululekile Family Trust has been judicially
established, Consortium is obliged to record the trust as a shareholder in its
securities register, thereby aligning its records with the provisions of its own
Memorandum of Incorporation .

[120] The section 161 application is the procedural mechanism through which the
Khululekile Family Trust can give effect to the Dosio orders, specifically , to have
its status as shareholder formally recognised . Section 161 of the Companies
Act is designed to ensure that the company’s securities register reflects legal
and beneficial shareholding .

[121] This court has already determined that the Khululekile Family Trust is the
beneficial owner of the 6.5% shareholding currently registered in the name of
the Development Trust as nominee. There is no valid legal basis to resist the
correction of the register to reflect this position . Compliance with section 161 is
not discretionary. Consortium’s continued refusal to update its register would
constitute a failure to give effect to a binding court order. The relief now sought
does no more than enforce judicially re cognised rights and bring the register
into alignment with both legal obligations and factual reality . No prejudice to
Consortium or its shareholders has been shown , and no defen sible basis for
non-compliance has been advanced . The application must accordingly
succeed .

39
The Section 26 Application
[122] In its section 26 application, the Khululekile Family Trust seeks an order
directing Consortium to permit it to inspect and make copies of various
company records. These include: (a) the securities register; (b) the
memorandum of incorporation, any amendments thereto, and any rules
adopted by Consortium; (c) all records relating to the directors of Consortium;
(d) reports to annual meetings and annual financial statements from inception
to date; (e) notices and minutes of annual meetings and related
communications; and (f) all accounting records, including bank statements and
accounts operated by Consortium from inception to the date of the order .

[123] Section 26(1) of the Companies Act confers the right on a person who holds or
has a beneficial interest in any securities issued by a profit company to inspect
and copy the records specified therein. That right now vests in the Khululekile
Family Trust, by virtue of the order granted in the section 161 application, which
confirmed its beneficial ownership of a 6.5% shareholding in Consortium and
directed that its name be recorded in Consortium’s securities register .

[124] Given that the rescission application was refused and the section 161
application granted, the Khululekile Family Trust’s status as a shareholder is
now judicially confirmed. It follows that it is entitled, as of right, to exercise the
statutory rights con ferred by section 26 of the Companies Act .

[125] The Eyabantu companies correctly accepted that, should the section 161
application succeed and the rescission application fail, the Khululekile Family
Trust would be entitled to the records sought. That eventuality has come to
pass. The legal foundation fo r access under section 26 is now firmly
established, and Consortium is accordingly obliged to permit the inspection and
copying of its records as requested .

The Execution Application
[126] In the execution application, the Ngonyama parties seek to enforce the Dosio
orders, which granted relief in relation to both the rendering of an account and
the transfer of a 6.5% shareholding in Consortium. These orders have
remained unfulfilled for more than six years .
40

[127] The decision of the SCA in Capital Appreciation Ltd v First National Nominees
(Pty) Ltd33 is directly relevant. The SCA confirmed the High Court’s authority to
grant detailed ancillary relief to give effect to a shareholder’s statutory rights
under section 164 of the Companies Act. It held that once such rights are
established, the court may structure and enforce the relief necessary to
implem ent those rights, including appointing appraisers and compelling
procedural compliance .

[128] The present execution application is consistent with that principle. It does not
seek new relief but rather the practical implementation of rights already
judicially recognised by Dosio AJ. The ancillary relief now sought is a necessary
mechanism to enforc e the judgment. Like in Capital Appreciation , this court
may and should craft enforceable, detailed orders to give effect to established
rights .

[129] The execution application does not merely replicate the Dosio orders but
articulates in precise terms: (a) the steps required to implement the orders ; (b)
the shareholding implicated ; and (c) the amount payable following the
accounting. The order sought reads as follows :

“1. Directing [Dalikhaya Rain Zihlangu N.O. and Unathi Mdoda N.O.] as Trustees
of the Eyabantu Development Trust registration No. IT6454/2008 to —
(a) Pay the applicants [the Ngonyama parties] the sum of R17,033,794.36
(seventeen million and thirty -three thousand, seven hundred and
ninety -four rand, thirty -six cents);
(b) Pay interest thereon at 9.5% per annum a tempore morae;
(c) Complete and sign a CM42 share transfer form in favour of the
[Trustees of the Khulelekile Family Trust Reference IT 10495/2007]
transferring to the Khulelekile Family Trust 50% of the shareholding
registered in the name of the Eyabantu Development Trust in the
share register of Eyabantu Capital Consortium (Pty) Ltd;
(d) Deliver to the applicant’s attorney the completed CM42 form together
with the share certificates reflecting the Eyabantu Development
Trust’s shareholding in the share register of Eyabantu Capital
Consortium (Pty) Ltd;
(e) Authorising the Sheriff, in the event of the respondents [the Trustees
of the Eyabantu Development Trust not complying with the above
order within five days of the service hereof on them to:
(i) attach all the funds in the bank accounts of the respondents to
execute the orders in prayers (a) and (b) above;

33 [2022] ZASCA 85 ; 2022 (6) SA 67 (SCA) (‘’Capital Appreciation’ ).
41
(ii) sign a CM42 form on behalf of the Khulelekile Family Trust to
execute the order in (c) above; and
(iii) demand that the Eyabantu Development Trust hand over the
share certificates referred to in (d) above to the Sheriff and to
deliver same with answering affidavit completed CM42 to the
applicant’s attorney.
(f) Pay the costs of suit as taxed or agreed on the attorney client scale,
such costs to include all costs under the above case number including
the costs of two counsel where two counsel were engaged .”

[130] Prayers (a) and (b) require the Development Trust to pay a sum of money with
interest, being the total dividends received but not paid over to the Ngonyama
parties. These sums have been admitted. As such, this part of the order is
directed solely at the Development Trust and does not prejudice the Eyabantu
parties .

[131] Prayer (c) obliges the trustees of the Development Trust to sign CM42 share
transfer forms for 50% of the shareholding registered in their name in
Consortium. This provision merely uses the share register as a reference point;
it imposes no obligation on C onsortium itself. The signing of CM42 forms by the
Development Trust does not prejudice the Eyabantu parties, as already
established in the section 161 application .

[132] Prayers (d) and (e) provide enforcement mechanisms to give effect to prayer
(c) in the event of non -compliance by the Development Trust. These provisions
facilitate implementation of the order and do not adversely affect the rights of
the Eyabantu parties .

[133] Despite obtaining final relief through due process, the Ngonyama parties have
endured years of delay. It is trite that a final judgment, unless set aside or
appealed, must be respected and enforced. The Ngonyama parties have
established a compelling case for execution and the Development Trust has
offered no persuasive reason for further delay in compliance .

The Rescission Application of Consortium and Capital
[134] Given the protracted history of this matter, it is evident that whichever way this
court rules, the losing party is likely to appeal. Anticipating that eventuality, and
to assist a potential appellate court, I have also considered the merits of the
42
rescission application on the assumption that the joinder application is upheld
on appeal .

[135] There is no need to lengthen this judgment unnecessarily. The facts, as set out,
speak for themselves. The present application meets none of the requirements
for rescission identified earlier. First, it was not brought within a reasonable
time. Second, whi le this court retains a discretion to grant rescission, there are
compelling reasons not to exercise that discretion in the applicants’ favour.
Third, the intervening parties have not shown that the Dosio orders were
erroneously granted. Finally, the grounds advanced i n support of rescission are
materially identical to those previously raised by the defendants. Those
arguments were fully ventilated before Grenfell AJ and later considered by the
SCA. Both courts dismissed the relief sought. There is no basis to revisit t hose
conclusions .

[136] The Ngonyama parties have suffered clear and ongoing prejudice in having to
contend with prolonged litigation driven by the intervening parties’ shifting
positions across different courts. This has delayed enforcement of the Dosio
orders and raises serious concerns about fairness and the proper use of court
processes. Courts cannot allow litigants to undermine the finality of judicial
decisions by changing strategies in a calculated manner. A party seeking relief
after a delay must provide an adequate explanation. The intervening parties
have not done so .

[137] The lack of bona fides on behalf of the intervening parties is further
demonstrated by the intervening parties’ failure to involve other shareholders
with allegedly similar interests. As Grenfell AJ noted , and as was conceded
before her , none of those other shareholders sought to intervene. Nor have the
intervening parties attempted to join them. Mr Zihlangu, now speaking for the
intervenors and having replaced Mr Kwinana as trustee of the Development
Trust, uses this application to revive arguments already determined by Grenfell
AJ and affirmed by the SCA. This obstructs the execution of the Dosio orders
and undermines finality .

43
[138] Rescinding the Dosio orders would cause substantial prejudice to the
Ngonyama parties. Mr Ngonyama is elderly. Given the passage of time,
memories have faded and documents are likely unavailable. Reopening the
matter would, in truth, amount to a fishing exp edition aimed at locating a
defence where none has yet been found. All the policy considerations outlined
in MEC for the Department of Public Works, Eastern Cape and Another v
Ikamva Architects CC,34 militate against rescinding a judgment that was
procedurally and substantively sound .

[139] In Ikamva , the SCA stressed that courts must uphold the finality of judgments
and guard against attempts to sidestep them through strategic or collateral
litigation. The court warned against abuse of process by litigants who, rather
than complying with final orders, seek to delay enforcement through
inconsistent conduct and procedural manoeuvring. Such tactics undermine the
authority of the courts and public confidence in t he justice system. These
principles counsel against rescission where no proper cause is shown .

[140] Finally, there is no real prejudice to the Eyabantu parties. Capital will have full
recourse to the protections of the shareholders’ agreement once the Khululekile
Family Trust is entered into the share register. At that point, it can assert its pre -
emptiv e rights, if available, against its co -shareholder, but not before .

[141] In summary, even if the intervening parties were entitled to be joined, their
application for rescission lacks merit. The requirements under Rule 42 and the
common law have not been met, the delay is unjustified, and their litigation
conduct lacks bona fides . The prejudice to the plaintiffs is ongoing and
substantial, while the intervening parties have not shown any real or legally
significant prejudice. Granting rescission in these circumstances would
undermine finality and the integrity of judicial process. The application must be
dismissed .

Costs

34 [2024] ZASCA 95 (‘Ikamva ’).

44
[142] An award of attorney -and-client costs is exceptional but justified where a party
abuses court process, acts in bad faith, or litigates in a vexatious or
reprehensible manner. The conduct of the intervening parties squarely meets
that threshold. Their calculated and unjustified litigation strategy has
unnecessarily prolonged these proceedings, impo sed significant costs on the
plaintiffs, and sought to relitigate issues already decided. They have offered no
credible explanation for their delay, failed to join other shareholders allegedly
sharing their interests, and advanced arguments previously reje cted by the
courts. It would be unfair to require the plaintiffs to bear the financial burden of
such conduct. A punitive costs order is both necessary to mark th is court’s
disapproval and to indemnify the plaintiffs. Accordingly, the intervening parties
are ordered to pay the costs of the joinder application on an attorney -and-client
scale, including the costs of two counsel where so employed .

Conclusion
[143] Although the parties have invoked the language of empowerment, compliance,
and corporate governance, the underlying contest appears less about
preserving the ideals of Project Pangolin and more about securing access to a
lucrative asset. The litigation has exposed a struggle not over principle but over
profit , masked in part by procedural objections and contractual technicalities.
The question that ultimately emerges is whether this dispute is truly about
furthering the transformation objectives embedded in Project Pangolin, or
whether it is, in truth, a contest over entitlement to the financial rewards now
flowing from the Consortium’s stake in Main Street. That Capital and
Consortium have vigorously opposed the recognition of the Khululekile Family
Trust’s beneficial ownership, despite the absence of prejudice t o them and the
Trust’s willingness to be bound by the same regulatory framework, raises a
credible inference that the real fight is over wealth, not transformation .

Order
[144] In the result the following order is made :

45
1. The application for joinder by Eyabantu Capital Consortium (Pty) Ltd and
Eyabantu Capital (Pty) Ltd is dismissed with costs on an attorney client
scale. Order marked “X ”.

2. The rescission application by the Eyabantu Development Trust is
dismissed with costs on an attorney client scale. Order marked “X1” .

3. The execution application is granted with costs on a party and party
scale, Scale C. Order marked “X2” .

4. The section 161 application is granted with costs on a party and party
scale, Scale C. Order marked “X3” .

5. The section 26 application is granted with costs on a party and party
scale, Scale C. Order marked “X4” .


_______________________________
L WINDELL
Judge of the High Court ,
Johannesburg

Delivered: This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
Case Lines. The date for hand -down is deemed to be 6 May 2025


Appearances
Case Number: 2019/40463
For the Applicants: L.J. Morison SC and T. Scott
Instructed by: Knowles Husain Lindsay Inc

For the First Respondent: R. Stockwell SC and J.F. Pretorius
46
Instructed by: Erasmus de Klerk Inc .

Case Number: 2018/45883
For the Applicants: R. Stockwell SC and J.F. Pretorius
Instructed by: Erasmus de Klerk Inc .

For the Respondents: L.J. Morison SC and T. Scott
Instructed by: Knowles Husain Lindsay Inc .

Case Number: 2020/16341
For the Applicants: L.J. Morison SC and T. Scott
Instructed by: Knowles Husain Lindsay Inc .

For the Respondent: B. Makola SC and L. Mnqandi
Instructed by: Madlanga & Partners Inc .

Date of Hearing: 18-19 November 2024
Date of Judgment: 06 May 2025