South African Renewable Green Energy (Pty) Ltd and Others v Coria (PKF) Investments 28 (RF) (Pty) Ltd and Others (6020/2023; 16391/2023) [2025] ZAWCHC 458 (9 October 2025)

IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)


Case no: 6020/2023

In the matters between:

SOUTH AFRICAN RENEWABLE GREEN ENERGY
(PTY) LTD
FRANCOIS ROUX FAMILY TRUST
(represented by the trustees thereof for the time being)
EMMA JANE RITCHIE

First Applicant

Second Applicant
Third Applicant

And


CORIA (PKF) INVESTMENTS 28 (RF) (PTY) LTD
THEBE NOBLESFONTEIN (RF) (PTY) LTD
THEBE NOBLESFONTEIN 2 (RF) (PTY) LTD
Known as Mindsearch Trade (Pty) Ltd, then Shanduka
Renewables (Pty) Ltd and then Phembani Renewables
(RF) (Pty) Ltd
MAHUBE INFRASTRUCTURE INVESTMENT 1 (RF)
(PTY) LTD
(previously known as GAIA SPV (RF) (Pty) Ltd)
MAHUBE CAPITAL FUND 1 (RF) (PTY) LTD
(previously known as GAIA Financial Services (RF) (Pty)
Ltd)
NFONTEIN ONE (RF) (PTY) LTD

NOBLESFONTEIN EDUCATIONAL TRUST

SARGE GAIA SPV (RF) (PTY) LTD
SARGE THEBE SPV (RF) (PTY) LTD





THEBE NOBLESFONTEIN (RF) (PTY) LTD

First Respondent
Second Respondent
Third Respondent



Fourth Respondent


Fifth Respondent


Sixth Respondent

Seventh to Ninth
Respondents
Tenth Respondent
Eleventh Respondent


Consolidated with
THEBE APPLICATION
CASE NO: 16391/2023

First Applicant

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THEBE RENEWABLE ENERGY HOLDINGS (RF)
(PTY) LTD

And

SARGE THEBE SPV (RF) (PTY) LTD
NFONTEIN ONE (RF) (PTY) LTD
CORIA (PKF) INVESTMENTS 28 (RF) (PTY) LTD
ANDRIES MALHERBE
MICHIEL NIEUWOUDT
ANDILE MJAMEKWANA
SOUTH AFRICAN RENEWABLE GREEN ENERGY
(PTY) LTD
FRANCOIS DU TOIT N.O.
MAHUBE INFRASTRUCTURE INVESTMENT 1 (RF)
(PTY) LTD
MAHUBE CAPITAL FUND 1 (RF) (PTY) LTD

Second Applicant



First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent

Seventh Respondent
Eighth Respondent

Ninth Respondent
Tenth Respondent

Coram: JUSTICE J CLOETE
Heard: 1 to 4 September 2025
Delivered electronically: 9 October 2025

Summary: Whether a provision in an agreement concluded between some, but
not all, shareholders of a company which conflicts with its Memorandum of
Incorporation is hit by the qualification in section 15(7) of the Companies Act 71
of 2008 that such agreement i s void to the extent of the inconsistency – whether
if so, subsequent amendment of the Memorandum of Incorporation to bring it in
line with the conflicting provision permits retrospective validity

ORDER

1. In the main and counter -applications under case number 6020/2023 (‘the Sarge
application’ and ‘the Mahube counter-application’):
1.1 It is declared that the words ‘pursuant to an agreement entitled “Directors
Voting Rights Agreement” executed on or about the Signature Date between
inter alios N1, Thebe Noblesfontein, South African Renewable Green Energy
Proprietary Limited and certain individuals’ are deemed to be severed from
clause 12.29 of the written agreement styled ‘SPV1 Preference Share
Subscription Agreement’ (the ‘SPV1’);

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1.2 It is declared that the fourth and/or fifth respondent’s entitlement to have a
representative exercise the voting rights of one of the two directors of the first
respondent appointed by the sixth respondent, pending amendment of the
sixth respondent’s constitutional documents (being its Memorandum of
Incorporation and Restated Shareholders Agreement as amended by the
First Addendum thereto ) arises from and in terms of: (a) clause 12.29 of the
SPV1 (as amended in accordance with paragraph 1.1 of this order) as well
as an oral agreement concluded between the sixth respondent on the one
hand, and the fourth and/or fifth respondents on the other, during or about
September 2017; (b) is currently exercised on their behalf by Mr Gontse
Moseneke; and (c) is limited to a total (and no more) of 9% of the total voting
rights held by the directors of the first respondent;
1.3 Save as set out above, the relief sought by the applicants is refused;
1.4 The counter-application is dismissed; and
1.5 Each party shall pay their own costs.

2. In the application under case number 16391/2023 (‘the Thebe application’):
2.1 It is declared that the Director Voting Rights Agreement concluded on 21
September 2017 between the first applicant, and the second and fourth to
sixth respondents, is void and unenforceable;
2.2 Save as set out above, the relief sought by the applicants is refused; and
2.3 Each party shall pay their own costs.

JUDGMENT


CLOETE J:

Introduction
[1] These are three interrelated applications for final relief , all of which are opposed ,
and which concern the composition and functioning of the board of directors of Coria
(PFK) Investments 28 (RF) (Pty) Ltd (hereinafter ‘Coria’) which is the first respondent in
case number 6020/2023 and the third respondent in case number 16391/2023 . Case
number 6020/2023 consists of the main application and a counter -application between

number 6020/2023 consists of the main application and a counter -application between
the ‘Sarge entities’ and the ‘Mahube entities’. Case number 16391 /2023 is a separate

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application brought by the ‘Thebe entities ’ against the ‘Sarge entities ’ but was
consolidated with the main application at an earlier stage. There were also three
interlocutory applications . One was not persisted with, one was settled and after
argument on the third an order was granted which in essence permitted the admission
of a further affidavit by the ‘Sarge entities’ in the main application.1

[2] Coria owns and operates a highly profitable renewable energy project, supplying
Eskom, in the Victoria West district of the Northern Cape, known as the Noblesfontein
Wind Farm. It is the brainchild of the late Mr Francois Roux who passed away
unexpectedly during August 2021. In about 2010, Mr Roux conceptualised a renewable
wind energy projec t after having been involved in t he renewable energy industry for a
number of years. During 2011, he was introduced to a group of Spanish investors
known as Gestamp. The Roux family farm in the Victoria West district was identified as
an ideal site and the Roux family, together with Gestamp commenced business, with Mr
Roux in charge of the practical side of the operation. The corporate vehicle for Mr Roux
and the Roux family interests is South African Renewable Green Energy (Pty) Ltd
(‘Sarge‘) which is the first applicant in the main application , and which together with the
sixth to eleventh respondents therein (‘N1’, ‘NET’, ‘Sarge Gaia’ and ‘Sarge Thebe’) is
ultimately owned and controlled by the Francois Roux Family Trust (the ‘Trust’). These
are the ‘Sarge entities’.

[3] Prior to a corporate restructure during 2017 – which is the genesis of the current
dispute – the shareholding in Coria was as follows: Sarge -12.5%; Gestamp - 60%;
Phembani Renewables (Pty) Ltd (‘Phembani’) - 25%; and NET - 2.5%. This
shareholding was reflected in a Restated Shareholders Agreement concluded on 4
November 2012 (the ‘Restated Shareholders Agreement’). Phembani was the B-BBEE

November 2012 (the ‘Restated Shareholders Agreement’). Phembani was the B-BBEE
‘partner’. At an earlier stage, Phembani was called Mindsearch Trade (Pty) Ltd ;
subsequently changed its name to Shanduka Renewables (Pty) Ltd; then to Phembani;
and then to Thebe Noblesfontein 2 (RF) (Pty) Ltd (‘Thebe 2’). It is the third respondent
in the main application and, along with the second respondent (‘Thebe’) are the ‘Thebe

1 The full terms of that order appear from the record but are otherwise not relevant to the merits
determination. The interlocutory application which was withdrawn was for a referral to oral evidence by
the Mahube entities. The interlocutory application which was settled pertained to whether the Thebe
entities’ attorneys were authorized to represent N1, the sixth respondent in the main , on the basis that it
would not be persisted with but there would be no order as to costs.

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entities’. Apart from the Restated Shareholders Agreement, Coria’s other constitu tional
document is its Memorandum of Incorporation (‘MOI’).

[4] NET was founded by Coria for purposes of establishing community shareholding
and participation in its Noblesfontein Wind Power Project. According to Ms Ritchie, who
deposed to the founding affidavit in the main appl ication, NET aims to advance the
community’s upliftment objectives by promoting education and related activities and
providing financial support to local communities. NET’s beneficiaries are all individuals
under the age of 25 years. Ms Ritchie is the widow of the late Mr Roux as well as a
businesswoman, although there is a related, not relevant, dispute about the extent of
her business acumen and how she landed up on Coria’s board after her husband’s
passing. What is not in dispute is that she serves on Coria’s board.

The 2017 corporate restructure

[5] During 2017, Gestamp decided to sell its interest in Coria, consistin g of its 60%
shareholding and loan claims. The Roux family wished to purchase that interest but did
not have sufficient funds. In addition, Phembani was considering exiting Coria. The
required finance to fund the purchase was ultimately provided by two outside funders, in
the amounts of R320 million and R540 million respectively, against the issue of
preference shares in each funder’s favour in accordance with their own internal
corporate arrangements. The one funder , which provided R320 million, was Mahube
Infrastructure Investment 1 (RF) (Pty) Ltd (previously Gaia SPV) , the sole shareholder
of which is Mahube Capital Fund 1 (RF) (Pty) Ltd (previously Gaia FS) – the fourth and
fifth respondents in the main application and the applicants in the counter -application.
The other funder, which provided R540 million, was Thebe Noblesfontein (RF) (Pty) Ltd
(‘Thebe’), the second respondent in the main application and the first applicant in the

(‘Thebe’), the second respondent in the main application and the first applicant in the
consolidated application . Its sole shareholder is Thebe Renewable Energy Holdings
(RF) (Pty) Ltd (‘TREH’) – the second applicant in the consolidated application.

[6] What bedevils this matter are the historically changing, and overlapping, names
of certain entities involved, but I will do my best . I use abbreviated names at times to
assist myself. However, an organogram agreed by the parties for purposes of
determining this matter appears a bit later in this jud gment, and reflects the de facto

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position after the 2017 restructure with exactitude . For convenience the directors of
some of the entities are also included.

[7] Ms Ritchie deposed to the founding affidavit in the main application . She was
not personally involved in the negotiations pertaining to the sale of Gestamp’s interest
but placed what can fairly be described as the best available evidence in relation
thereto before the court, including contemporaneous email communications and various
draft and final documents. Affidavits supporting her version were deposed to by Ms
Jessica Blumenthal (the attorney who advised Mr Roux and was directly involved in the
negotiations) as well a s Mr Michiel Nieuwoudt, who at all material times the Sarge
entities as well as Ms Blumenthal (and indeed Mr Nieuwouldt himself) understood to be
the duly authorised representative of the Gaia/Mahube entities.

[8] According to the Sarge entit ies, the following were the key features and
commercial drivers of the restructure: (1) The Roux family interests would purchase
Gestamp’s shareholding by way of external funding and become the majority
shareholder of Coria; (2) as majority shareholder , the Roux family interests would
obtain control of Coria and its business; (3) in accordance with a requirement of what
was then known as the Department of Energy (‘DoE’) the Roux family would sell 12.5%
of the Coria shares it obtained from Gestamp to a further B–BBEE ‘partner’, which was
Thebe; and (4) the purchase of Gestamp’s shareholding and loan claims was to funded
by the issue of the preference shares to which I have already referred.

[9] It is also the ir version that the preference share arrangement had the
consequence that, while entitled to a preferential and specified return on these shares,
the funders would not be entitled, like ordinary shareholders , to appoint directors to
Coria’s board (save that Thebe, pursuant to the DoE require ment, would also be an

Coria’s board (save that Thebe, pursuant to the DoE require ment, would also be an
ordinary shareholder and entitled in this way to board representation ). This was to
ensure effective control of Coria by the Roux family , both in terms of shareholding and
board representation. The funders contend differentl y. The Mahube entities say that
effectively their exposure to Coria’s is at least 21.58%, and that of the Thebe entities’ is
59.90 %, as opposed to the exposure of the Roux family of only 16.02%.

[10] The shareholding restructure was ultimately implemented as follows : Gestamp
sold its interest to NI , and N1 simultaneously sold 12.5% thereof to Thebe , with the

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result that Thebe became both a preferent and ordinary shareholder. The effect of all
this was that the shareholding in Coria changed to the following: N1 - 47.5%; Sarge –
12.5%; Thebe – 12.5%; Thebe 2 – 25%; and NET – 2.5%. Collectively therefore, in
terms of shareholding, the Roux family wearing its various hats - the Sarge entities -
achieved a cumulative 61%, the Thebe entities a cumulative 37.5%, and NET 2.5%.
The organogram to which I referred earlier is set out hereunder:



[11] However, a complication arose at an advanced stage of the negotiations. While
the various parties were aware that the Mahube entities, as one of the major funders,
also required - as a component of the transaction - a seat on Coria’s board , the Sarge
entities at least were allegedly given to understand that this could wait until after deal
closure, at which time the Restated Sh areholders Agreement would be renegotiated,
including director voting percentages . However, the Mahube entities are listed
companies and, according to the Sarge entities as well as Mr Nieuwoudt, Mahube’s
JSE sponsors belatedly insisted that Mahube obtain a board seat on closing . Mahube
takes a different view and maintains th at in the applicable Indicative Preference Share
Facility Term Sheet (‘Term Sheet’) prepared by Gaia and concluded between Sarge
(represented by Mr Roux) and Gaia (represented by Mr Nieuwoudt ) on 24 April 2017,
provision was already made for such representation prior to financial close . What is
noted however is that in the Disclaimer at the beginning of the Term Sheet it is

100%
(os)
A, A1 & B Preference
Shares
100%
(os)
100%
(os)
South African
Renewable Green
Energy (Pty) Ltd
("SARGE")
Thebe Noblesfontein
2 (RF) (Pty) Ltd
("Phembani" /
"Shanduka" /
"Thebe 2" / "Thebe
Noblesfontein 2")
Thebe Noblesfontein
(RF) (Pty) Ltd
("Thebe" / "Thebe
Noblesfontein")
50.7%
49.3%
Nfontein One (RF)
(Pty) Ltd ("N1")
Noblesfontein
Educational Trust
("NET")

50.7%
49.3%
Nfontein One (RF)
(Pty) Ltd ("N1")
Noblesfontein
Educational Trust
("NET")
SARGE Gaia SPV
(RF) (Pty) Ltd
("SARGE Gaia"/
"SPV 1")

SARGE Thebe (RF)
(Pty) Ltd
("SARGE Thebe"/
"SPV2")

12.5%
25%
47.5%
12.5%
2.5%
Coria (Pfk)
Investments 28
(RF) (Pty) Ltd
("Coria")
Nobelsfontein
Wind Energy
Project (Pty) Ltd
100%
(os)
100%
(os)
A & B Pref
Shares
Thebe Renewable
Energy Holdings (RF)
(Pty) Ltd ("Thebe RE" /
"TREH")
Mahube Capital Fund
1 (RF) (Pty) Ltd
("Gaia FS" /
"Mahube Capital")
B Preference Shares
Mahube Infrastructure
Investment 1 (RF) (Pty)
Ltd ("Gaia SPV" /
"Mahube Infrastructure" /
"Mahube Investments")

Francois Roux
Family Trust
("Roux Family
Trust")
100%
(os)
100%
(os)
Directors:
EJ Ritchie (N1 / Roux Family Trust)
K Anderson (SARGE)
M Munshi (Thebe)
GS Moseneke (Mahube)
WA Parsons (Thebe)

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specifically recorded as follows: ‘ This [document] was prepared … in order to indicate,
on a preliminary basis , the feasibility of a possible transactio n or transactions … The
outline of any terms set out herein are issued for discussion purposes only …’.

[12] Returning to the complication, the following provisions in Coria’s MOI (as
amended and dated 31 July 20 12) are relevant , although I refer to them out of
sequence since to me it makes more sense. Clause 7 is that no amendment to the MOI
shall be of any force or effect without the prior written consent of the D oE and the
Lender ( ie. funder/s). Clause 37.1 is that Coria’s board shall comprise of not more than
five directors, and clause 41.6.2 is that each director shall have one vote . Clause 13.2
makes provision for Gestamp to nominate three directors, Thebe 2 ( at the time known
as Shanduka and subsequently Phembani ) one director , and S arge the remaining
director. Clause 15.5 is that decisions are taken by majority vote . In terms of clause
2.2, where there is a conflict between a provision of the Restated Shareholders
Agreement and MOI, the MOI shall prevail to the extent of the conflict, subject to certain
exceptions which are not relevant for present purposes .2 Finally clause 2.4 provides
that an unalterable or non-elective provision of the Companies Act 3 shall prevail to the
extent of any conflict between t he MOI and that Act. Also relevant are the following
clauses in the Restated Shareholders Agreement: clause 12.3, that the board of Coria
shall, unless otherwise agreed , at all times consist of five directors; clause 13.2,
reflecting Gestamp as having three directors and Thebe 2 and Sarge one each; clause
15.5, that each director has one vote ; and clause 40.4, that no modification or
amendment is effective unless in writing and duly signed by ‘the Parties ’ ie the
shareholders.

[13] On 24 August 2017, M r Andries Malherbe of N1 wrote an email to Mr Aman

shareholders.

[13] On 24 August 2017, M r Andries Malherbe of N1 wrote an email to Mr Aman
Jeawon of Phembani. After expressing his gratit ude for Phembani’s support during the
transaction, and confirming the unconditional approval of the DoE and the unanimous
consent of the ‘ senior lender group’ (which I was informed during argument , by
counsel for the Sarge entities, was Gestamp backed by Standard Bank) he explained :
‘ We are aware that you were potentially selling your stake in the Noblesfontein Project

2 These are (a) any provision of the shareholders agreement merely supplements, but is not inconsistent
with, the MOI; (b) the MOI itself provides for the provision in the shareholders agreement to prevail; or (c)
the Companies Act does not require the MOI to take precedence over the particular provision in the
shareholders agreement.
3 No 71 of 2008

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company, and we have tried to limit any knock -on effects to you, especially anything
that could complicate your process or impact your value. However , something has
come up and we have to ask your support once more. I know this is a lot to ask, and we
would not do so had we not exhausted all other avenues . We would like to ask your
support to amend the current shareholders agreement… to expand the board from five
to six members … as you know, the D oE insisted that the BEE shareholding be
increased by 12.5%, which was taken up by Thebe. They were able to exchange some
of their debt funding into equity funding. That came with the requirement of a board seat
and the end result was two + one seats for Francois, and one each for Phembani and
Thebe, making up five seats’.

[14] He then referred to the ‘late’ board seat requirement of Mahube’s JSE sponsors
and wrote: ‘ we are requesting that the shareholders allow the expansion of the board to
six members so that everyone can be accommodated’ , adding that Sarge was open to
any other solutions Phembani might have, but stating: ‘ it seems that adding one seat
is the least disruptive option, especially as it is a short term solution - as a new SHA [ie.
shareholders agreement] is needed to deal with all the changes and requirements [as a
result of the transaction ]. We have approvals from the D oE and the Lenders on the
basis that there is a majority owner, who is also responsible for management and we
would not like to encroach on that by creating a board where the majority owner actually
only has a minority position. One more seat does bring the board to even numbers and
it could be considered to give the majority owner a casting vote… I have canvassed this
with Thebe and they are supportive of a one seat expansion, with a casting vote for the
majority owner. Jacques [Mr Jacques De Wet of Thebe ] is happy to talk to you should
you want to discuss…’

you want to discuss…’

[15] Mr Jeawon replied later that day. After advising he would circulate the request
internally, he wrote: ‘in the interim, my sincere gut feel is that Phembani [now Thebe 2]
be allocated 2 seats for its existing 25% and then mathematically allocating to Francois
the minimum n umber of seats (or a casting vote) . This is the best and immediate
compromise, also least disruptive to all existing parties (ie. from a dilution of existing
rights with G aia [Mahube] coming into the allocation as external funder not as
shareholder). Also then …12.5% s take for Thebe gets them one seat while 25% gets
Phembani two seats. All things equal this is probably a fair allocation in the current
context. We could also consider a voting schedule that allows voting rights proportional

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to specific board seats . As an example (one board seat for Francois = 1.5 votes
(higher), while one seat for GAIA [Mahube], Thebe and Phembani = only one vote per
seat). This can be done to save from having a very big board with added costs. What
do you think? Let’s chat tomorrow’. It is apparent therefore that at this time the Lenders,
the DoE, Thebe, Phembani and Gaia were all agreed that the Roux family would be the
majority owner of Coria.

[16] In emails over the following day between Mr Malherbe, Mr Brett Jordaan who
was one of Sarge’s financial advisors, Ms Blumenthal (who as previously indicated was
the attorney representing the Sarge interests) and others in her team at ENS attorneys ,
it was agreed that the best idea was to go with a voting regime proportional to
shareholding and not to the number of board seats held. Mr Malherbe wrote to them all
later the same day to confirm Mr Roux approved but would like Sarge’s voting allocation
to be ‘ 51% + say 9%’ ; Dr Hendrik Snyman of the G aia entities (now Mahube) was
‘very grateful, and is fine with a nominal vote ’; Mr Jeamon of Phembani (now Thebe 2)
was satisfied; and that he had tried contacting Mr De Wet (of Thebe) with no luck as
yet. On Saturday 26 August 2017, Mr Malherbe sent an email to Ms Blumenthal and her
team at ENS which was copied to Mr Roux. He wrote: ‘I think we have a solution for the
board membership issue. I have discussed this with all the relevant parties, starting with
Francois, and including Phembani (who were an early proponent of the idea), as well as
Gaia and Thebe. I finally spoke to Jacques late on Friday . We have a consensus to for
a weighted voting scheme where the directors vote the shareholding they represent
(with some help for Gaia). The plan is that it works as follow s: (1) Francois appoints two
directors, he votes 51 % and I vote circa 9%; (2) Phembani votes 25%, one director
although they believe they have appointed two ??; (3) Thebe votes 10%, one director ;

although they believe they have appointed two ??; (3) Thebe votes 10%, one director ;
(4) Gaia votes 2.5% (from Thebe), one director . This ticks all the boxes; Francois has
control, Phembani is happy. Thebe is ok and Gaia have a seat. And we don’t have to
increase the size of the board . There seems to be a lot of comfort with this and I feel
this is the way to go . Question is: how do we implement this in the most efficient way?
Do we have quorum issues? ’ On 28 August 2017, Ms Blumenthal recorded the in-
principle agreement reached in an email to all the par ties’ representatives , which
changed to final agreement that instead of Gaia having 2.5% it would have 9%.

The suite of written agreements giving rise to the dispute

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[17] On 15 September 2017 , a preference share agreement was concluded between
Sarge Gaia and Gaia SPV, the latter now Mahube Infrastructure (the ‘SPV 1’). Relevant
are the following : clause 12.2, that Sarge and the other transaction parties (including
Gaia SPV, Coria and N1) would comply with their constitutional documents and procure
no changes were made without Gaia SPV’s prior written consent; clause 12.29(a), that
Sarge would procure Coria’s Restated Shareholders Agreement was amended to
provide for the appointment and retention of a representative of Gaia SPV’s choice to
Coria’s board; clause 27, that all amendmen ts to the SPV1 would have to be in writing
and signed by the parties; clause 31, the sole memorial provision ; and clause 32, that
no party would be bound by any express or implied term, representation, warranty,
promise or the like not recorded in any Finance Document. In clause 1 ‘Finance
Documents’ were defined as including not only the SPV1 itself but also, amongst
others, the Conditions Precedent Agreement and Conditions Precedent (‘CP’)
Fulfilment Notice . In turn the Conditions Precedent Agreement was the funding
agreement to which Sarge Gaia was also a party. The signatories to the SPV1 were Mr
Roux in his capacity as director on behalf of Sarge Gaia and Mr Nieuwoudt in his
capacity as director on behalf of Gaia SPV.

[18] On 18 September 2017, a similar agreement was concluded between S arge
Thebe and Thebe (the ‘SPV2’). Relevant are the following: clause 12.16(b), that Sarge
Thebe and other transaction parties (including N1 and Coria) would comply with their
constitutional documents and procure no change was made there to without the prior
written consent of TREH; 12.30(a), that Sarge Thebe was obliged to procure that a
chosen representative of TREH ‘is and remains’ on the boards of inter alia Thebe, N1
and Coria ; clause 30, the sole memorial clause; and clause 31, that no express or

and Coria ; clause 30, the sole memorial clause; and clause 31, that no express or
implied term, representation, warranty, etc not recorded in any Finance Document
would be binding. ‘F inance Document’ was defined in clause 1 as including, amongst
others, the applicable Conditions Precedent Agreement and C P Fulfilment Notice. In
turn the Conditions Precedent Agreement was the funding agreement to which Sarge
Thebe was also a party. The signatories to the SPV2 were Mr Roux in his capacity as
director of Sarge Thebe and Mr Rapulane Mogototoane as authorised signatory on
behalf of Thebe.

[19] On 21 September 2017, a Directors’ Voting Rights Agreement (‘DVRA’) was
concluded in respect of Coria. That date was the last signature date . The parties to the

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DVRA, ex facie the d ocument itself, were N1, Mr Malherbe , Mr Nieuwoudt, Thebe, Mr
Andile Mjame kwana, Sarge and Mr Roux. This was also recorded in clause 1.3.14
thereof in which the parties were defined as ‘SARGE, Francois, N1, Andries, Mich,
Thebe and Andile’. Neither Phembani (now Thebe 2 ) nor its nominated director were
parties. The following portions of the DVRA are relevant. At the outset the Gestamp
sale transaction was recorded , as well as that Gestamp was ‘no longer a party to ’ the
Restated Shareholders Agreement but that N1 and Thebe were now parties thereto; but
clause 1.3.8 did provide that the effective date of the DVRA was the date upon which
the Gestamp sale transaction became unconditional and was implemented . Thereafter
the representation and voting powers of Coria’s directors as contained in the Restated
Shareholders Agreement and MOI were set out. Paragraph E of the Recitals clause
reads that ‘ Notwithstanding the provisions of the Shareholders Agreement as recorded
in C and the provisions of the MOI as recorded in D above, the Parties have agreed to
establish a voting arrangement in respect of the voting rights of each of the Directors
and to regulate their rights and obligations insofar as the voting rights that are attached
to each of the Directors are concerned’.

[20] In clause 2 it was provided that ‘This Agreement shall … endure until such time
as Phembani is no longer a Shareholder and no longer has a nominee on the Board of
the Company’. Clause 3 contained a voting regime, namely ‘Francois (SARGE)’ 52%;
‘Andile (Thebe)’ 11% ; ‘Mich (N1)’ 9%; and ‘Andries (N1)’ 2.36 %. It was further
specifically agreed that this ‘would not affect Aman (Phembani) having 25.64% ...’.
Clause 7 stipulates that ‘This Agreement constitutes the whole agreement between the
Parties relating to the subject matter hereof and supersedes any other discussions,
agreements and/or understandings’ regarding same. The signatories to the DVRA

agreements and/or understandings’ regarding same. The signatories to the DVRA
were Mr Roux both in his personal capacity and as duly authorised representative on
behalf of Sarge and N1 (on 21 September 2017) ; Mr De Wet as duly authorised
representative on behalf of Thebe (on 18 September 2017) ; and Mr Malherbe , Mr
Nieuwoudt and Mr Mjamekwana in their personal capacities ( Mr Malherbe signed on
21 September 2017, Mr Nieuwoudt on 19 September 2017, and Mr Mjamekwana on 18
September 2017) . Again therefore, at that time, it is apparent all the shareholders
were agreed that the Rou x family would have the controlling vote. Phembani’s only
concern was that its 25.64% should not be diluted in any way, and although it was not a
party to the DVRA, provision was made to that effect therein.

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[21] On the same day (ie. 21 September 2017) a First Addendum to the Restated
Shareholders Agreement (‘First Addendum’) was concluded between Phembani (Thebe
2), Sarge, NET, Coria, N1 and Thebe for the stated purpose of amending the Restated
Shareholders Agreement. The effect of clauses 2.16 to 2.18 thereof was that: (1) five
directors became a maximum of five directors, which brought this provision into line with
the corresponding one in the MOI ; (2) the one vote per director was removed; and (3)
the new director representation would be as follows: N1 – two directors; Thebe 2 – one
director; Sarg e – one director; and Thebe – one director. Importantly, clause 2.25
amended the previous voting regime of ‘one director, one vote’ in clause 15.5 of the
Restated Shareholders Agreement to make it proportional to shareholding percentages:
‘… having as many votes as the number of Shares which the Shareholder who
nominated or appointed him holds (when expressed as a percentage of the number of
Shares held by those Shareholders entitled to nominate a director), divided by the
number of Directors … nominated …’ but ‘subject to the amendment of the MOI in the
manner contemplated in clause 29 of the Restated Shareholders Agreement . Clause
2.25 also specified, for the avoidance of doubt, such voting percentages to be as
follows: Sarge – 12.82%; N1 – 48.72%; Thebe – 12.82%; and Phembani ( Thebe 2) –
25.64%.

[22] Clause 29 in its amended form in the First Addendum reads as follows: ‘The
Parties agree that they shall take all reasonable steps to ensure that the MOI reflects
the relevant provisions of this Agreement , and the Parties specifically agree that they
will take necessary steps to expedite the required amendments to the MOI to reflect the
voting provisions contained in Clause 15.5 of this Agreement, subject to the prior written
consent of the Lenders and the DoE ’. Clause 5 is the sole memorial provision. The

consent of the Lenders and the DoE ’. Clause 5 is the sole memorial provision. The
signatories to the First Addendum were Mr Jeawon – in his capacity as duly authorised
representative of Phembani; Mr Roux – in his capacity as duly authorised
representative of Sarge, NET, Coria , and N1; and Mr Mogototoane – in his capacity as
duly authorised representative of Thebe.

Events subsequent to suite of written agreements

[23] According to the Sarge entities, after conclusion of the suite of agreements – and
indeed until Mr Gontse Moseneke replaced Mr Nieuwoudt as representative of the
Mahube entities on the boards of N1 and Coria in the second half of 2020 , there were

Page 14 of 38


no disputes regarding the voting rights of Coria’s board of directors or the validity of the
agreements. Coria’s board functioned in the manner contemplated by the First
Addendum, the DVRA, and clause 12.29 of the SPV1 (ie. Mahube’s representation on
Coria’s board) without objection or complaint from any quarter. This allegation was not
dealt with in the Thebe entities’ answering affidavit. In the Mahube entities’ answering
affidavit it was alleged that this was simply because all decisions taken at board level
were unanimous and for no other reason . In the Thebe entities’ replying affidavit in the
consolidated application it was alleged that up until 2022, the relationship between the
Coria directors was cor dial and board decisions were taken unanimously ; there was
thus no need to refer to the weighting or otherwise of the directors’ percentage voting
rights, the DVRA, the First Addendum or the SPV1.

[24] During October 2018 – the exact date was not disclosed but nothing turns on this
– TREH also purchased the entire shareholding in Phembani , which resulted in the
further name change to Thebe 2 in March 2019. Accordingly, whereas previously TREH
only owned 100% of the shares in Thebe, it now also owned 100% of the shares in
Thebe 2. Although this purchase is common cause, the Thebe entities’ stance is that
Phembani was therefore no longer one of Coria’s shareholders, and no longer had a
nominee on Coria’s board ‘for purposes of clause 2 of the DVRA’. The response of the
Sarge entities is that despite the change, Thebe 2 retained the same 25% shareholding
in Coria as Phembani and its previous iterations had held since inception. This the
Thebe entities admit.

[25] After Mr Roux’s passing in August 2021, Ms Ritchie was appointed to the various
boards of the Noblesfontein group of companies to effectively replace Mr Roux as the
Roux family interests’ representative director. Subsequently Mr Malherbe resi gned his

Roux family interests’ representative director. Subsequently Mr Malherbe resi gned his
directorships and Ms Kim Andersen, an acquaintance of Ms Ritchie who she describes
as an experienced businesswoman, was appointed to replace him. The Thebe and
Mahube entities admit the Sarge entities’ averments that the current directors of Coria
and their representative capacities are: (1) Ms Andersen – the Sarge appointee; (2) Ms
Ritchie – as one of the two N1 appointees; (3) Mr Moseneke –as the other N1
appointee and the representative of the Mahube entities; (4) Mr Sunil Ramkillawan – as
representative of the Thebe entities; and (5) Ms Wendy Parsons, as the other Thebe
entity representative, who replaced Mr De Wet during late 2022 or early 2023.

Page 15 of 38


[26] According to the Sarge entities, the process of amending Coria’s MOI in
accordance with clause 2.29 of the First Addendum (ie . from ‘one director, one vote’ to
weighted percentage voting rights proportional to shareholding) only commenced during
2019/ 2020. Because all parties got along there was no real urgency, and – although as
previously stated this is disputed by the Thebe and Mahube entities – the board was
functioning on a practical level in line with the First Addendum and DVRA. The Thebe
entities maintain the process commenced in mid -2021; the Mahube entities do not take
issue with the Sarge entities on this score. The Sarge entities allege that as part of the
process, attempts were made to amend the Restated Shareholders Agreement to cater
for changes in shareholding as well as alignment with the proposed amended MOI.
The Thebe entities say that the sole purpose of the proposed amendments to the
Restated Shareholders Agreement was in respect of shareholding and nothing more.
The Mahube entities did not respond to Sarge’s allegation about this in their answering
affidavit.

[27] The Sarge entities also say that towards the end of 2021, agreement was
reached on most of the amendments . From correspondence annexed in support of this
averment, the following. On 14 December 2021, Mr Hennie Hanekom, who it appears
was Coria’s financial manager, wrote to various representatives and interested parties
that ‘Mahube’ had requested a minor amendment to the MOI to incorporate their
contractual right in terms of the SPV1 for a director’s representative on Coria’s board .
He apparently annexed Mahube’s proposed tracked changes to the MOI, as well as a
letter in which ‘the parties agree to act in accordance with the provisions of the
Amended and Restated MOI while the transition process is underway and consent is
being sought from third parties’. The third parties were the DoE and Lenders. The

being sought from third parties’. The third parties were the DoE and Lenders. The
annexures to which Mr Hanekom referred were not attached to his email placed before
the court. However, the draft amended MOI with tracked changes and queries by Mr
Moseneke was a ttached to Ms Blumenthal’s affidavit. With reference to clause 41.6.3
(dealt with below) he asked: ‘Please explain the reason why we are now attaching
varying percentages to director voting power, as opposed to retaining the one vote per
director that we have to date’.

[28] On 15 December 2021, Ms Blumenthal wrote to Mr Moseneke (amongst others)
in which she confirmed that Mr Hanekom had asked her to provide him with some
context around the directors’ voting percentages contained in the proposed

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amendments to Coria’s MOI as set out in clause 41.6.3 thereof, which now reflected the
voting percentages as follows: Sarge – 12.82%; N1 – 48.72%; Thebe – 12.82%; and
Thebe 2 – 25.64%. Ms Blumenthal continued: ‘At the time the acquisition transaction
was concluded in 2017 the shareholders agreement of Coria provided that directors
would vote in accordance with the percentage of the shareholder who nominated them
to the board, however the MOI had not been aligned to this or the Companies Act, 2008
and provided that each director would exercise one vote. It was accepted at the time
however between the shareholders of Coria that each director would vote in
accordance with the shareholding percentage. Mahube (G AIA at that stage) as you
know also required (as was memorialised in the preference share agreement) as a
condition of their funding that they have representation on the board of Coria,
notwithstanding that they were not a direct shareholder in Coria. This was not accepted
by Phembani, shareholder of Coria at the time , or Thebe. As a compromise, N1 agreed
to procure a seat for a Mahube representative on the board of Coria. This was accepted
by Phembani and Thebe on condition that their voting percentage would not be
affected. In order to provide a voting percentage for Mahube , N1 gave up some of its
voting percentage (with reference to shareholding) . Thebe agreed to give up a nominal
amount of their percentage and the percentage which related to NET’s shareholding (as
NET did not have a director representative on the board ) was included in the Mahube
slice’.

[29] She continued: ‘It was not possible to amend the MOI at that stage given that
several consents were required and Phembani also did not want to consent to any
amendments to the MOI as they were considering exiting and wished amendments to
be made after they had done so. As such in order to accommodate these various
requirements the parties agreed at the time to an agreed percentage of voting rights

requirements the parties agreed at the time to an agreed percentage of voting rights
that would be exercised by each director on the board of Coria , and N1 agreed that it
would nominate a Mahube representative to hold a board seat on the Coria board.
Given that this agreement could not be captured in the MOI at that stage a
“gentleman’s agreement” was concluded between the individual directors who made up
the Coria board at that time , agreeing that when making a decision as a board they
would exercise voting rights in the agreed percentages and that the MOI of Coria would
be amended as soon as possible to record this. This is the amendment that is being
made now. The voting percentages of clause 41.6.3 reflect the agreed position since
2017. Once the MOI amendment is effective the directors voting agreement will fall

Page 17 of 38


away- it is there merely to record the position until such time as the MOI amendment is
effective’.

[30] In her supporting affidavit, M s Blumenthal also explained as follows. At the time
of conclusion of the suite of agreements , the Gaia (now Mahube) entities were
represented by the Gaia group CEO and its Chief Investment Officer, who were Mr
Nieuwoudt and Dr Snyman respectively. During September 2017, an agreement was
concluded between N1 and Gaia in terms of which a representative of Gaia would be
entitled to exercise the voting rights of one of the N1 -appointed directors on Coria’s
board on the basis that the voting rights so exercised by Gaia would be 9 % of the total
voting rights exercisable by Coria’s directors (this is the ‘oral agreement ’ to which I
refer hereunder). According to Ms Blumenthal that agreement came about as follows.
As a preference share funder, Gaia’s position was of course different to that of an
ordinary shareholder in that it was not entitled, as of right, to representation on Coria’s
board. Gaia appreciated this and its representatives - Mr Nieuwoudt and Dr Snyman –
conveyed that Gaia would be satisfied with ‘visibility’ on Coria’s board in the form of a
nominal vote. Gaia conveyed – at least initially – that its required board seat could be
finalised after the transaction had been closed This changed relatively late in the day
when - in about late August 2017 – Gaia informed the Sarge entities that its board seat
in fact needed to be finalised and formalised at the time of closing the transaction ,
which was then imminent. In the circumstances arrangements had to be made – under
considerable time pressure and as a matter of urgency – to accommodate that request.

[31] Ms Blumenthal further explained that N1 – through Mr Roux – agreed to allow
Gaia to exercise the voting rights of one of the two N1 appointed directors on Coria’s
board on the express basis of 9% (only) and Gaia – represented by Mr Nieuwoudt –

board on the express basis of 9% (only) and Gaia – represented by Mr Nieuwoudt –
accepted this. It was also acceptable to Phembani and Thebe on the basis that their
own voting percentage s on Coria’s board would not be affected . The 9% oral
agreement satisfied Gaia’s requirement while also allowing Mr Roux – as representative
of the de facto majority shareholder in Coria to retain control of the Coria board, which
was a non – negotiable requirement for Mr Roux. The agreement of 9% (and no more)
of N1’s total voting rights was recorded in both the DVRA and clause 12 .29 of the
SPV1. The relevant portion of clause 12.29 of the SPV1 reads as follows: ‘ The issuer [
ie. Sarge Gaia] shall procure that … a representative of … Gaia [ now Mahube ] is …
and remains on the board … of each o f SPV1 and N1 … provided that pending such

Page 18 of 38


appointment … [that] representative … is entitled to exercise the voting rights of one of
the directors of [Coria] appointed by N1 pursuant to … the [DVRA] ’. Ms Blumenthal
confirmed that the Gaia/ Mahube entities are no longer represented by Mr Nieuwoudt or
Dr Snyman, and that Mr Moseneke took Mr Nieuwoudt’s place as the Gaia/ Mahube
representative on Coria’s board in late 2020. In his separate supporting affidavit, Mr
Nieuwoudt confirmed Ms Blumenthal’s affidavit evidence in all respects . He added the
intention was that following the anticipated exit of Phembani as a shareholder, the Coria
MOI and/or shareholders agreement would be amended to incorporate and record
Gaia’s agreed 9% voting right.

[32] Returning to the chronology of events , extensive correspond ence followed
between the various parties after Mr Moseneke raised his query. In sum, the Mahube
entities took issue with the version of the Sarge entities , and subsequently the Thebe
entities insisted that TREH, in its own right, was entitled to appoint an additional director
to Coria’s board. This deadlock resulted in the Sarge entities’ application being
launched on 13 April 2023 (in response to which the Mahube entities opposed and
launched a counter - application) and the Thebe entities launching the separate
application on 22 September 2023.

Relief sought by Sarge entities

[33] The relief sought by the Sarge entities evolved somewhat during the course of
this litigation, but in its finally amended form – handed up by agreement by way of a
draft order during argument - they seek the following relief : first, it be declared that the
Mahube entities’ entitlement to have a representative exercise the voting rights of one
of the two directors of Coria appointed by N1 arises from, and in terms of : (a) clause
12.29 of the SPV1 and (b ) an oral agreement concluded between N1 and the Mahube
entities during or about September 2017; (c) is currently exercised on behalf of these

entities during or about September 2017; (c) is currently exercised on behalf of these
entities by Mr Moseneke; and (d) is limited to a total of 9% . Second, it be declared that
the 9% limitation is : (a) a contractually non-severable part of the Mahube entities’ right
to representation on Coria’s board , and (b) is thus unenforceable pending the
amendment of Coria’s MOI in the manner contemplated in clauses 2.29 and 15.5 of the
First Addendum. Third, that Coria and the Thebe entities be directed to take all steps
reasonably necessary to expedite the required amendments to Coria’s MOI to reflect
the voting provisions contained in clause 15.5 of the First Addendum , including (a)

Page 19 of 38


requesting the written consent of the DoE and Lenders for this purpose; and (b) should
such consent be provided , proposing and adopting the required special resolution in
terms of s 16(1)(c) of the Companies Act and, following its adoption, filing the requisite
notice of amendment of the MOI with the CIPC 4 in terms of s 16(7) of that Act . Fourth,
dismissal of the Mahube entities ’ counter-application and the Thebe entities ’
application, with costs to be awarded in favour of the Sarge entities in all instances.

[34] Having thought about it and although somewhat unusual, I have decided to deal
first with the cases of the Mahube and Thebe entities because of how the relief sought
by the Sarge entities evolved, which truncate s the latter’s case and assists me in
focussing on the remaining disputed issues.

Basis of opposition by Mahube entities and counter-relief sought

[35] The Mahube entities’ answering affidavit was deposed to by Mr Moseneke , who
is a director of both. In limine, they contend that the declaratory relief sought by the
Sarge entities in respect of voting percentage rights and Mr Moseneke exe rcising them
is premature since : (1) clauses 7.1 and 7.4.2.2 of Coria’s MOI and clause 29 of the
First Addendum all require the prior written consent of both the DoE and Lenders for
any amendments to the MOI to be of force and effect, and it is common cause such
consent has not been obtained, and (2) similarly , the Sarge entities have failed to
procure the written consent of both the Mahube and Thebe entities to pass a special
resolution or amend Coria’s MOI as required by clauses 12.16(b) and (c) of the SP V1
and SPV2, which prohibit these taking place without such consent ‘ save to the extent
necessary to implement the transactions contemplated or permitted in the F inance
Documents and the Transaction Documents ’. The alternative point in limine is tha t the

Documents and the Transaction Documents ’. The alternative point in limine is tha t the
DoE and Lenders should have been joined, given their interest in any order the court
may make.

[36] On the merits, the y deny the conclusion of the oral agreement upon which the
Sarge entities rely. They also say that s 16(1)(c) of the Companies Act does not assist
these entities, since it expressly pro vides that a company’s MOI may only be amended
if a special resolution to that effect : (a) is proposed by the board or shareholders
entitled to exercise at least 10% of the voting rights; and (b) is adopted at a

4 Companies and Intellectual Property Commission

Page 20 of 38


shareholders meeting, or in accordance with s 60 of that Act . Their challenges to the
current enforceability or otherwise of the DVRA need not be dealt with save to the
extent below, given the Sarge entities’ open concession, made only during argument,
that it is unenforceable unless and until the MOI is amended. However, the Mahube
entities contend that the DVRA can never be enforceable in future in light of s15(7) of
the Companies Act since one of the shareholders, Phembani, was not a party thereto.

[37] Although they say that the allegedly unenforceable DVRA constitutes the
foundation of the relief sought against them, they do not take issue with the validity of
the First Addendum , and in fact rely on it to argue that the DVRA could not amend it.
Put differently they surely accept, by necessary implication, the validity of clauses 2.25
and 29 of the First Addendum, subject of course to consequent amendment of the
MOI, which altered the voting regime to one proportional to shareholder representation,
and placed an obligation on all shareholders at the time (and who were all parties
thereto) to take the necessary steps to expedite that alteration. Their stance on this
score is limited to what is set out below in relation to clause 12.29 of the SPV1.

[38] The Mahube entities say the DVRA has in any event fallen away because : (a) in
October 2018, Thebe purchased the entire shareholding in Phembani , as opposed to
Phembani’s shares in Coria (ie .of 25%) and as such Phembani effectively no longer
existed as a shareholder of Coria from that dat e; (b) the Mahube entities were not
parties to the DVRA and it cannot bind them ; (c) Mr Nieuwoudt’s obligations under the
DVRA ceased when he resigned as a director of Coria in July 2020 : and (d) so too did
those of Mr Roux on his passing in August 2021.

[39] As far as the Sarge entities’ reliance on a portion of clause 12.29 of the SPV1 is

[39] As far as the Sarge entities’ reliance on a portion of clause 12.29 of the SPV1 is
concerned (ie. that pending appointment of a Gaia/Mahube representative to the boards
of N1 and Sarge Gaia, the voting rights of one of N1’s appointees to Coria’s board
would be exercised in accordance with the DVRA , ie. 9% ), the Mahube entities assert
that such reliance is in any event unsustainable since, in terms of that clause , the
appointment had to happen within 180 days of 20 September 2017, which was the CP
Fulfilment Date and has long since passed. They also contend that the Sarge entities
do not suggest ‘the proposed amendment to the shareholders agreement was intended
to limit the voting rights of Mahube Capital’s nominated director’ . Their interpretation
that the DVRA was clearly intended as a temporary arrangement is borne out, they

Page 21 of 38


submit, by ‘amended clauses 13 .2(a) and 15.5 of the Amended Restated Shareholders
Agreement [ the First Addendum] which, in essence, provide that N1 is entitled to
nominate two dir ectors to the board of Coria and that the two N1 directors ’ votes will
constitute 48.72% of the total votes’.

[40] They accordingly contend in their answering affidavit that in the absence of
agreement between Coria’s individual directors the Mahube entities are entitled to
24.36% of the Coria voting rights, being half of N1’s 48.72%. Mr Moseneke’s
answering affidavit contained a bare denial of the existence of the oral agreement
relating to the 9% in the face of the direct evidence of Ms Blumenthal and Mr Nieuwoudt
to the contrary (who I might add were on ‘opposing sides’). He did however also say he
was unable to refute the version of the Sarge entities , confirmed by Ms Blumenthat and
Mr Nieuwoudt. The Mahube entities also filed an affidavit by Mr Khalipa Mbalo, who
from 2015 until February 2023 was a director of Mahube Capital (the fifth respondent in
the main application ). His evidence was that the alleged oral agreement concluded in
2017 between N1 and the Mahube entities , ie. that Mahube Capital would u se of N1’s
two seats on Coria’s board on an interim basis, was not brought to the attention of
Mahube Capital’s board and nor was its approval sought or provided in relation thereto.
In addition, says Mr Mbalo, Mahube Capital’s board was not made aware, and had no
knowledge, of the DVRA, and this only came to that board’s attention through ‘updates
provided’ by Mr Moseneke. Mr Mbalo also maintained Mr Nieuwoudt was not authorised
to bind Mahube Capital in the manner contemplated in the alleged oral agreement
purporting to limit its voting rights to 9%. During argument it was clarified that, in this
respect, Mr Nieuwoudt had allegedly exceeded his authority.

[41] In this regard, and as alluded to earlier , there was no suggestion that Mr

[41] In this regard, and as alluded to earlier , there was no suggestion that Mr
Nieuwoudt was otherwise not authorised to represent the Mahube entities’ predecessor,
Gaia, in the negotiations pertaining to the 2017 restructure . In his supplementary
affidavit, Mr Nieuwoudt expressly confirmed he had been authorised to conclude the
oral agreement as well (and which was recorded in one way or another in both the
DVRA and First Addendum). He also confirmed, as pointed out in the Sarge entities’
replying papers, that several Mahube representatives were privy to relevant emails
concerning, amongst others, the DVRA and the agreed limitation on Mahube’s voting
rights. The emails in question, one from Ms Blumenthal and the other from Mr Rabie
Smal (another attorney from ENS) , both dated 1 September 2017 , recorded the agreed

Page 22 of 38


position and were despatched to all the respective parties’ representatives, including Mr
Nieuwoudt, Dr Snyman and Mr T umi Leie for Gaia; Mr Mo gotoane, Mr De Wet and Mr
Mjamekwana for Thebe, as well as Mr Roux. These emails refer red in terms to ‘ the
voting percentages which have been agreed …between N1, SARGE, Thebe and Gaia ’.
The ‘agreement (side letter) ’ referred to in those emails was the DVRA which – as
stated previously- recorded Gaia/Mahube’s entitlement to exercise 9%.

[42] In the Sarge entities’ replying affidavit (which was also the answering affidavit to
the Mahube coun ter-application), Ms Ritchie’s evidence was that not only were the
relevant parties privy to these email communications , but so too were their respective
legal representatives (Gaia/Mahube were represented by Cliffe Dekker Hofmeyr (‘CDH’)
and Thebe by Webber Wentzel (‘WW’). On 4 September 2017 , CDH, which had by
then seen the draft DVRA and draft First Addendum , responded to all that ‘other than
the numbering er rors in the sub -clauses of the new clause 15.5 , no further comments
from CDH on the [First Addendum]. We also have no comments on the Directors Voting
Right Agreement’. On 5 September 2017, Mr Mogototoane (Thebe’s Chief Legal
Officer at the time) responded to all concerned that ‘Thebe has no further comments on
this version of the shareholders agreement ’. No affidavits were filed by any of the legal
representatives involved on behalf of the Gaia/Mahube or Thebe entities at the time to
refute the versions of Mr Nieuwoudt and Ms Ritchie on this score. The only retort of any
substance by the Mahube entities is that it ‘makes sense ‘that CDH had no comment on
the DVRA because the Mahube entities were not a party thereto ’. Mr Moseneke also
insinuated that Mr Nieuwoudt had some sort of falling out with Mahube prior to his
resignation in 2020 and thus had an axe to grind. This was denied by Mr Nieuwoudt,

resignation in 2020 and thus had an axe to grind. This was denied by Mr Nieuwoudt,
but in any event during argument I was informed by counsel for Mahube that I could
ignore that insinuation.

[43] The other leg of the Mahube entities’ opposition in support of their reliance on
clause 12.29 of the SPV1 as the overriding provision, is that their exposure to the equity
of Coria is at least 21.58% as opposed to that of the Roux family of 16.02 % (and that of
the Thebe entities of 59.90%). Accordingly, they say, they have a material commercial
interest in Coria and ‘it is this interest that was sought to be protected, partially by
Mahube Capital being granted a seat on Coria’s board ’ in terms of clause 12.29 . The
say that support for the board seat requirement is evidenced inter alia by the following
further provisions of the SPV1, namely that within 5 days in each instance, Sarge Gaia :

Page 23 of 38


(a) must supply them with all board packs and minutes of board meetings of each
Transaction Party [ie including Sarge Gaia, N1 and Coria]; (b) all documents dispatched
by each transaction party to its shareholders; (c) details of any changes to be made to
each transaction party’s constitutional documents; and (d) upon receipt of a reque st by
Mahube Capital, such further information regarding Coria’s financial position, business
and/or operations as it may reasonably require from time to time . To my mind, the other
way of looking at it is that the purpose of these built-in safeguards is to provide the very
protection Mahube requires for its commercial exposure as prefe rence shareholder .
However, this was not a point raised in reply by the Sarge entities, and I thus leave it
there.

[44] The answering affidavit of Mr Moseneke was deposed to on 14 June 2023. In
paragraph 78 he stated: ‘I am in discussions with RMB who ultima tely provided the
preference share funding and may deliver an affidavit relating to, in ter alia, the
allegation of an individual (ie.Roux) retaining “control” o of the Coria board. RMB’s
affidavit is unlikely to be finalised and available for delivery together with this affidavit,
but will be delivered as soon as it is available’. This affidavit was never filed.

[45] The relief which the Mahube entities now seek – also handed up as a draft order
by agreement during argument - is the following: first, that Sarge Gaia SPV (the tenth
respondent) be directed to procure that Coria’s shareholders agreement is amended to
provide for the appointment and retention of a representative of Mahube Capital ( to the
satisfaction of Mahube Infrastructure) to Coria’s board within 30 days of an order to that
effect; second, in the event that Coria’s MOI is amended pursuant to the new clauses
15.5 and 29 of the First Addendum , and for so long as Mahube Capital occupies a seat

15.5 and 29 of the First Addendum , and for so long as Mahube Capital occupies a seat
on Coria’s board , it be declared that the vote of Mahube Capital’s representative shall
be a percentage equal to 48.72% divided by the seats occupied by N1’s representatives
[ ie. currently two] plus Mahube Capital’s representative, which as I understand it would
thus afford the Mahube Capital representative 16.24% of the voting rights ; third, it be
declared that pending any amendment to Coria’s MOI in respect of director voting
rights, such voting rights will be on the basis of ‘ one director, one vote ’ with decisions
taken by simple majority, in accordance with clauses 14.6.2 and 42.1 of the current
MOI; and fourth, dismissal of the relief which the Sarge entities seek against the
Mahube entities.

Page 24 of 38


Basis of Thebe entities’ opposition and relief which they seek

[46] The Thebe entities ’ founding affidavit in the separate consolidated application
was deposed to by Mr M ogototoane, who is now the Chief Investment Officer of Thebe
Investment Corporation (Pty) Ltd, on behalf of Thebe and TREH, which he says are the
direct and indirect subsidiaries of Thebe Investment Corporation. To the extent he has
no personal knowledge, he relie d on that of Mr Johann Bester , Ms Parsons, Mr Sunil
Ramkilliwan and Mr Muhammed Munshi , all of whom filed confirmatory affidavits. The
respondents in the Thebe entitie s’ application are Sarge Thebe , N1, Coria, Mr
Malherbe, Mr Nieuwoudt, Mr Mjamekwana , Sarge, the executor of the late Mr Roux’s
estate (as far as I can gather), and the Mahube entities.

[47] According to Mr Mogototoane, Thebe and Mahube Infrastructure provided all the
funding (through funds generated by way of preference shares) , and Mr Roux and his
various entities none at all. The response of the Sarge entities is that Thebe and
Mahube Infrastructure financed their participation, not through ‘own funding’ but by
raising external finance from Standard Bank and RMB, and the ‘mere’ fact that external
financing was raised by the ‘Roux family interests’ cannot mean that the family made no
contribution. Mr Mogototane’s evidence is further that – as stated by the Mahube
entities – the overall exposure of the Thebe entities to the equity in Coria is effectively
59.90%. The preference share funding of the Thebe entities was provided to Sarge
Thebe on the strength of TREH’s balance sheet . In light of the significant amount
provided, it was a requirement of TREH that its chosen representative ‘oversee the
investment at a Coria level’. One of the protections in the SPV2 was the right of TREH
to appoint a director to the boards of Sarge Thebe, N1 and Coria (amongst others).
While TREH’s nominations to the boards of Sarge Thebe and N1 (both in the form of Mr

While TREH’s nominations to the boards of Sarge Thebe and N1 (both in the form of Mr
Ramkillawan) have been accepted, its nomination to the board of Coria has not. This is
something separate, says Mr Mogototoane, from the ordinary s hareholder board
representation of Thebe on Coria’s board (in the form of Mr Munshi , who replaced Mr
Ramkillawan for Thebe 2, and Ms Parsons for Thebe) as a consequence of the B-BBEE
requirement of the DoE, for which Thebe and Thebe 2 paid an additional amount of R
465 million.

[48] The Thebe entities oppose the main application of the Sarge entities , in the first
instance, on the same in limine basis , ie. lack of prior consent by the Lenders, DoE ,

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Mahube and Thebe entities to amendment of the MOI in accordance with clause 2.25 of
the First Addendum ( ie. the shift to weighted voting percentages). In the second
instance, their grounds of opposition are that: (a) the DVRA itself provided it would only
endure for so long as Ph embani was a shareholder and had a nominee on Coria’s
board, which is no longer the case; (b) its purpose was only to establish a voting
arrangement in respect of the voting rights of each of the signatory directors in
accordance with clause 2.25 of the First Addendum , and because the signatory
directors are no longer directors of Coria, all hav ing been replaced by different
directors, the DVRA is no longer of any force and effect ; (c) the DVRA cannot amend
the Restated Shareholders Agreement because of the latter’s no variation clause
(unless reduced to writing and signed by all shareholders); and (d) it is in any event void
in terms of s 15 (7) of the Companies Act since it conflicts with the MOI’s ‘one director,
one vote’ provision.

[49] The Thebe entities dispute the Sarge entities ’ version that Thebe, Thebe 2 and
TREH currently share representation on Coria’s board. They say this cannot be so,
since it conflates the separate and independent rights of the ordinary shareholder s with
the preference shareholders . They maintain that TREH has no representation on
Coria’s board as a result of Sarge Thebe’s refusal to give effect to clause 12.30 of the
SPV2. Mr Mogototoane referred to a written resolution of TREH’s board – which it is
noted is only dated 29 September 2022, some five years after the event – in which
reference was made to the SPV2 , and it was resolved that he be appointed as that
representative, with Mr Bester as his alternate. Its exact wording is that ‘Rapulane
Mabelane which all parties accept was meant to be a reference to Mr Mogototoane] be
and is hereby nominated for appointment to the board of directors of Coria . Johann

and is hereby nominated for appointment to the board of directors of Coria . Johann
Bester be and is hereby nominated for appointment to the board of directors of Coria as
… alternate director’. Other than what follows, not explained is how TREH protected
its material commercial interest in Coria, or exercised its oversight at Coria level, from
date of conclusion of the SPV2 ie.18 September 2017 (which as I have said was signed
by Mr Mogototoane himself), or shortly thereafter from deal closure , until 29 September
2022. It is also noted that the first occasion on which demand was made for Sarge
Gaia to act in accordance with clause 12.30 was on 30 September 2022.

[50] In response to the demand of 30 Septe mber 2022, Ms Ritchie, on behalf of the
Sarge entities, referred to an email dated 7 May 2021 from Mr Sizwe Mncwango , the

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Chief Executive Officer of Thebe Investment Corporation , to Mr Hanekom (Coria’s
financial manager) and Mr Roux in which they were informed that Thebe Investment
Corporation ‘requires that Mr Johann Bester will serve as a shareholder representative
/director on behalf of’ TREH, Thebe and Thebe 2 on Coria’s board, with Ms Parsons as
his alternate with immediate effect ‘. The explanation for this notification letter by the
Thebe entities in their founding affidavit was that ‘ There is no reason why one person
could not be nominated as director acting for each of [these] three entities … this would
be the prerogative of those entities and would not detract from the separate voting
interests exercised by each person when wearing each separate proverbial hat’. They
further alleged that in any event , by way of an email dated 28 October 2022, Thebe
Investment Corporation ‘sought to clarify its position by addressing a letter to SARGE in
which it confirmed that the letter of 7 May 2021 and the historical appointment of
previous directors of Coria bore no relevance to the matter at hand , particularly since
Bester has since resigned from the board of directors of Coria … what mattered was
the composition of [that] board, which had to be constituted in accordance with …
clause 13.2 of the Restated Shareholders Agreement’.

[51] In this regard, the following. First, the ex post facto ‘separate proverbial hat’
hypothesis, which is unsupported by any contemporaneous objective communication to
anyone else involve d, or any direct affidavit evidence , appears to be pure speculation.
Second, even if one were to accept it as correct, business people of this level of
sophistication would surely have applied their minds as to how those voting
percentages would operate amongst themselves, since otherwise no purpose would
have been served by the notification letter. Third, the 28 October 2022 email did not, as

have been served by the notification letter. Third, the 28 October 2022 email did not, as
alleged, emanate from Thebe Investment Corporation but from Mr Bester himself in his
capacity as director of Thebe , and on behalf of Thebe, as is clear from numbered
paragraph 2 thereof . Fourth, clause 13.2 of the Restated Shareholders Agreement
deals with the pre-2017 restructure position in terms of which Gestamp had three board
seats and Phembani and Sarge one each.

[52] When Ms Ritchie did not simply accept this, a Thebe board resolution was
allegedly prepared for Mr Mogototoane’s appointment as ‘shareholder representative
(but not director ) of Thebe in relation to Coria’ , in addition to his nomination under the
29 September 2022 resolution. I say ‘allegedly’ because , despite apparently annexing
it, this was not in the papers before me. The Thebe entities further submitted that, given

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that Coria’s MOI currently makes provision for only five director s, the appointment of a
TREH representative will have to be achieved in one of two ways: (a) Sarge Thebe
procuring that it gives TREH one of its two N1 seats together with 24.36% of the voting
rights if the MOI is amended ; or (b) Sarge Thebe procuring, through N1, an increase of
five to six directors, with each director to have one vote.

[53] The Thebe entities seek the following relief, also in terms of a draft order handed
up during argument by agreement: first, the DVRA be declared void and unenforceable;
second, that TREH is independently entitled to nominate a director for appointment to
Coria’s board in terms of the SPV2 ; third, (a) until amendment of Coria’s MOI, each
director has one vote; and (b) if the MOI is amended , the 48% ( more accurately,
48.72%) voting interest of N1 be split equally, with TREH being entitled to exercise 24%
thereof ( more accurately, 24.36%); fourth, that the directors of Sarge Thebe, N1 and/or
Coria take all steps and sign all documents necessary to procure the appointment of the
TREH representative within 10 days of an order granting such relief, and costs against
Sarge and Mr Roux’s estate.

The stance of the Sarge entities

[54] The Sarge entities say Mahube’s denial of the oral agreement is without merit.
Mr Moseneke accepts, as he must, that he is unable to dispute the truth of the facts
alleged in this regard in the Sarge founding affidavit and those of Ms Blumenthal and Mr
Nieuwoudt. Similarly, Mr Ramkillawan (of Thebe) admits he has no personal knowledge
thereof. Both Mr Moseneke and Mr Ramkillawan are manifestly not able to personally
put up any countervailing evidence since they had no involvement at all in the
Noblesfontein Wind Farm at the time that agreement was concluded in 2017 . Mr
Mogototoane had the opportunity, but he did not do so. Accordingly, the bald denials of

Mogototoane had the opportunity, but he did not do so. Accordingly, the bald denials of
the Mahube and Thebe entities that such an agreement was concluded do not give rise
to a genuine dispute of fact. The Sarge entities also submit both Mr De Wet and Mr
Mjamekwana, who were Thebe’s representatives at the time of conclusion of the oral
agreement and DVRA, in fact indirectly support their version. Both deposed t o
confirmatory affidavits for Thebe, but neither disputed the conclusion of that agreement.
I note the following in this regard. Mr De Wet was careful only to confirm the
correctness of two sub paragraphs in Mr R amkillawan’s affidavit insofar as they related
to him , namely 19.6.3 and 31.1.11 . These were first, when Phembani exited, Mr

Page 28 of 38


Jeawon was replaced on Coria ’s board by Mr De Wet (as nominee of Thebe 2) .
Second, Mr Roux recognised at time of conclusion of the 2017 transaction he would
not exe rcise control over Coria due to the preference shareholders’ involvement, but
still required majority shareholding in Coria so that it could allow him to exercise control
upon full redemption of the preference shares ; hence Sarge and Coria received the
funding and granted the preference shareholders the rights in t he SPV1 and SPV2 that
limited the control the Roux Family Trust would have enjoyed in the absence of the
funding. Mr Mjamekwana was similarly careful . He only confirmed the correctness of
two sub paragraphs of Mr Ramkillawan’s affidavit insofar as they related to him, namely
19.1 and 35.2. These were that he was the director appointed by Thebe who concluded
the DVRA on its behalf and in his personal capacity; and that since the First Addendum,
Coria board decisions had been taken unanimously and there was thus no need to refer
to voting regime percentages.

[55] The Sarge entities al so say that after receiving Ms Blumenthal’s explanatory
email of 15 December 2021, Mr Moseneke did not reject that explanation . He wrote:
‘Your note is well received and is most useful in providing some context ... The material
that has been available to Mahube to date points to one vote per director (We had only
recently had sight of the Directors Voting Agreement )’. On 16 December 2021, in
response to an ema il from Mr Hanekom, Mr Moseneke wrote this was the first time he
had seen the First Addendum , and Mahube was endea vouring to ‘complete our
understanding of these arrangements’. On the issue of Mr Nieuwoudt allegedly
exceeding his authority by concluding the oral agreement, the Sarge entities point out
that Mr Mbalo’s version does not squarely deal with it. All he says is that the oral
agreement was not brought to the attention of Mahube Capital’s board, and nor was its

agreement was not brought to the attention of Mahube Capital’s board, and nor was its
approval sought or provided in relation thereto.

Discussion

[56] The only truly relevant factual aspect placed in dispute is whether the oral
agreement was concluded . The other disputes all turn on matters of law , including
interpretation. As regards the oral agreement , I am of course not permitted to infer its
existence and terms only from the email correspondence exchange d at the time .
However, two deponents with personal knowledge of the relevant facts squarely put
their heads on the block, as it were, namely Ms Blumenthal and Mr Nieuwoudt. Neither

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has any interest in the outcome of this litigation. They acted for opposing sides . Both
confirm the conclusion and terms of the oral agreement . The emails exchanged serve
to support what they say .. The evidence above , which I have deliberately set out in
detail, mostly speaks for itself . Having regard to that evidence, as well as what I have
already noted in relation thereto, I am persuaded that the Sarge entities have made out
a solid case on this score, and the Mahube and Thebe entities have failed to raise a
genuine or bona fide disput e of fact. Accordingly, applying the Plascon-Evans rule, the
version of the Sarge entities in relation to the conclusion and terms of the oral
agreement must prevail.

[57] As far as Mr Nieuwoudt exceeding his authority is concerned Wightman5 makes
clear that when facts averred are such that the disputing party must necessarily have
knowledge of them and be able to provide countervailing evidence, but instead relies on
a bare or ambiguous denial , the court will generally have little difficulty in finding the
absence of a genuine and bona fide dispute of fact. The best the Mahube entities came
up with was the ambiguous denial of Mr Mbalo. When I raised with counsel for Mahube
the absence of any clear evidence of what Mr Nieuwoudt was, and was not, authorised
to do on Gaia’s behalf at the time, which would surely have been recorded in at least a
resolution of some sort given the importance of the 2017 transaction, he fairly drew my
attention to a single paragraph in Mr Moseneke’s replying affidavit and said he could
take it no further. That is paragraph 66.2 which reads in relevant part that: ‘ I only
became aware of the DVRA and the First Addendum during late 2021. Such documents
were not in the document repository of the Mahube entities , with services in this regard
having been provided by Gaia Infra structure Partners Proprietary Limited (“GIP”) to the

having been provided by Gaia Infra structure Partners Proprietary Limited (“GIP”) to the
Mahube Entities. Upon termination of the management agreement with GIP during
2020, it appears there was not a proper hand-over of records and documents from GIP’.
This was disclosed for the first time in reply . No evidence was placed before the court
why the Mahube entities had not taken the trouble to obtain the allegedly missing
handover records and documents and to satisfy themselves of the actual extent of Mr
Nieuwoudt’s authority if they genuinely intended to challenge it. Moreover, there was no
suggestion by anyone else involved for Gaia at the time, including its own legal team
which represented it in the 2017 transaction , that Mr Nieuwoudt exceeded his authority ,
apart from Mr Mbalo’s unsubstantiated and vague averments . Having regard to all this,

5 Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA) at para 13

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and again applying the Plascon-Evans rule, the version of Mr Nieuwoudt and the Sarge
entities must similarly prevail.

[58] I now turn to the issue of whether or not the DVRA is valid. Section 15(7) of the
Companies Act provides as follows:
‘The shareholders of a company may enter into any agreement with one another concerning
any matter relating to the company, but any such agreement must be consistent with this Act
and the company’s Memorandum of Incorporation, and any provision of such an agreement that
is inconsistent with this Act or the Company’s Memorandum of Incorporation is void to the
extent of the inconsistency.’

[59] In their papers neither the Thebe nor Mahube entities contend that the oral
agreement, if found proven, falls within the ambit of s 15(7) and accordingly I am not
required to determine this. Neither maintained that the oral agreement is void or
unlawful on any other basis, and neither seek declaratory relief to the effect that it is. I
must thus assume, without deciding, that for p urposes of the matters before me, the
oral agreement (between N1 and Gaia/Mahube) is both valid and binding on the parties
thereto. The Thebe entities instead seek an order declaring the DVRA to be void ab
initio on the basis of s 15 (7). They say this is not a matter of interpretation or
commercial preference but a statutory mandate: any agreement inconsistent with a
company’s MOI is ‘void to the extent of the inconsistency ’. They say the Sarge entities’
attempt to circumvent this through what they refer to as ‘temporal sleight of hand’ –
claiming that the DVRA will become valid upon future MOI amendment – misconstrues
fundamental principles of commercial law. An agreement that is void at inception cannot
be retrospectively validated . Moreover, they say, the First Addendum itself
acknowledged this legal reality by making the weighted voting regime in the DVRA
expressly subject to amendment of Coria’s MOI. As previously stated, the Mahube

expressly subject to amendment of Coria’s MOI. As previously stated, the Mahube
entities adopt the same stance although they do not seek any declaratory relief in this
regard.

[60] The Thebe entities rely, amongst others, on Gihwala6 where the Supreme Court
of Appeal held s 15(7) operates where there is a ‘direct conflict’ between a shareholders
agreement and the MOI:

6 Gihwala and Others v Grancy Property Ltd and Others 2017 (2) SA 337 (SCA) at para 54

Page 31 of 38


‘The qualification that the shareholders’ agreement may not be inconsistent with the Act and the
Memorandum of Incorporation deals with situations where there is a direct conflict between
them, not with a qualification in the shareholders’ agreement on the manner in which general
powers are to be exercised, which may constrain the exercise of those powers.’

[61] They say that a situation analogous to the present one is seen in Blue
Nightingale7 where the High Court applied s 15(7) a s well as Gihwala. In that matter a
company’s MOI provided that where there were less than three directors, the quorum
for a board meeting would be two , and where there were more than three directors, a
quorum would be three. The court held that a provision in the shareholders agreement
that ‘the quorum shall be one director present nominated by each of [Nkwe Ltd] and
[Nightingale]’ was in conflict with the MOI and therefore void.8

[62] The Thebe entities also argue that even were this court to find the D VRA
possessed some initial validity, it s till fails on other independent grounds . First, it
operated solely as a personal agreement between the named individuals who executed
it in their personal capacities only . Directors who have since replaced them (all) cannot
be bound by their predecessors’ personal undertakings , and there is no provision in the
DVRA that it is binding on successors in title . Second, it has terminated by effluxion of
time following Phembani’s exit , which occurred through the transfer of its shares to
TREH rather than a direct sale of its Coria shareholding , although this difference in
structure does not alter the commercial sub stance that Phembani, as originally
constituted, ceased to be a shareholder when its ownership changed completely.

[63] The Thebe entities’ arguments regarding s 15 (7) of the Companies Act have, as
their starting point, the assumption that the DVRA was an agreement concluded

their starting point, the assumption that the DVRA was an agreement concluded
between shareholders. This must be so because otherwise , on its plain wording, it is
not hit by the qualification in s 15(7). There thus appears to be a disjunct between their
reliance on s 15(7) and the separate submission that it was an agreement concluded
between the directors personally at the time. Be that as it may, this calls into question

7 Blue Nightingale 709 (Pty) Ltd v Nkwe Platinum South Africa (Pty) Ltd 2021 JDR 2747 (GJ)
8 At paras 33 and 45. See also Derby Downs Management Association v Assegaai River Properties (Pty)
Ltd and Another 2022 (2) SA 71 (KZP) at para 36; CDH Invest NV v Petrotank South Africa (Pty) Ltd and
Another 2018 (3) SA 157 (GJ) at para 8.

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the meaning of an agreement between ‘the shareholders’ of a company for purposes of
s 15 (7). The Sarge entities rely on the following passages in Henochsberg9:
‘Subsection (7) requires the agreement to be between ‘the shareholders’, which implies an
intention that all the shareholders must be a party to that contract , otherwise only
“shareholders” would have been used. Therefore, if an agreement is not between “ [T]he”
shareholders, but only between some shareholders, s 15(7) does not apply . The addition of the
company and/or directors to this agreement could also determine whether it is an agreement
envisaged by s 15(7): Derby Downs Management Association v Assegaai River Properties and
Another 10. Even if that is the case, the agreement should comply with the qualifi cation, ie. it
should not be in contravention of the Act or the Memorandum of Incorporation…

It is uncertain what the situation will be if the Memorandum of Incorporation is subsequently
amended, also based on an agreement to that effect in the shareholders’ agreement … with the
effect that the inconsistency in the Memorandum of Incorporation is subsequently removed. The
basic principles should indicate that due to the fact that the provision is void (and not voidable)
… the amendment to the [MOI] cannot resuscitate the void (non -existent) provision. However,
to require the shareholders eg . to conclude a new agreement that incorporates the erstwhile
“void” provision to make it valid would seem to be nonsensical . It is therefore submitted that an
interpretation of sub-s (7) to the effect that a void provision i n the shareholders’ agreement
cannot be validated ex nunc [retrospectively] with an amendment to the [MOI ] would lead to
“insensible or unbusinesslike results” and cannot be correct: Natal Joint Municipal Pension
Fund v Endumeni Municipality11’. [my underlining]

[64] The first quoted passage in Henochsberg thus postulates that even where the

[64] The first quoted passage in Henochsberg thus postulates that even where the
agreement is concluded between some (not all) the shareholders, its provisions should
nevertheless comply with both the Act and the company’s MO I. I therefore do not see
how this helps the Sarge entities , since what then is the real difference in effect
between an agreement concluded between all the shareholders and only some of them
for purposes of s 15(7)? In my respectful view, it leads to an ‘insensible or
unbusinesslike result’ to interpret s 15(7) as strictly as Henochsberg suggests, because
then some kind of uncertain validity is conferred on an agreement between some of the
shareholders, despite its provision(s) being in conflict with the Act or MOI , whereas the
opposite applies if it is concluded between all of them . As far as the second quoted
passage is concerned, if a provision is void, it remains void. One cannot breathe life

9 Henochsberg on the Companies Act 71 of 2008, commentary on s 15 at 78(5) and 78(6A)
10 See fn 8 above
11 2012 (4) SA 593 (SCA) at para 18

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into it ex post facto under the guise of avoiding an insensible or unbusinesslike result.
This would be sweeping away a trite principle of the law of contract , and would require
reading into s 15(7) something that was plainly not intended or the provision itself would
have said so. I am thus compelled to disagree with Henochsberg on both aspects, and
it necessarily follows that objectively that portion of the DVRA which is in conflict with
Coria’s MOI must be void. Th at however is not the end of the enquiry in relation to the
DVRA. Although c lause 8 thereof allows the void provision pertaining to weighted
percentage voting right s to be severed from the remainder of that agreemen t, neither
the Thebe nor Mahube entities ask for this. Both contend that the entire DVRA is void
as a result. Indeed, the Sarge entities themselves do not seek severance if it is found
that the DVRA falls within the qualification contained in s 15(7). It is thus not for me to
sever it of my own accord. This being the case, clause 7.1 of the DVRA which provides
that its terms supersede ‘any other discussions, agreements or understandings
regarding the subject matter hereof’ also falls away and has no bearing on the validity
of the proven prior oral agreement relating to the Gaia/Mahube 9% voting right. So too
does clause 2 of the DVRA upon which reliance was placed by both the Thebe and
Mahube entities to advance the contention that its terms are in any event not binding
since Phembani’s exit.

[65] To recap, in terms of the proven oral agreement concluded between N1 and
Gaia/Mahube, the latter’s voting right on Coria’s board would be limited to a total of 9%
on an interim basis. The next question is whether those parties’ consensus as to Gaia’s
right of representation on Coria’s board can stand without the DVRA (or more
specifically, without the agreed 9% limitation recorded in the DVRA and carried over

specifically, without the agreed 9% limitation recorded in the DVRA and carried over
into the SPV1 concluded between different partie s, namely Sarge Gaia and Gaia
SPV/Mahube Infrastructure). The term ‘Finance Documents’ in the SPV1 is defined as
including the SPV1 itself. Clause 25 thereof bears the heading ‘ Partial Invalidity’ and
reads as follows: ‘If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid, unenforceable or inoperable in any respect under any law of any
jurisdiction, neither the legality, validity, enforceability or operation of the remaining
provisions nor the legality, validity, enfor ceability or operation of such provision under
the law of any other jurisdiction will in any way be affected or impaired …’ This is thus
the severability provision. The Sarge entities rely on Sasfin12 where the court was

12 Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (AD) at 16 F - H

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dealing with a provision in an agreement contrary to public policy, and when interpreting
a much wider severability clause, held as follows:
‘Sasfin and Beukes could not have contemplated severance resulting in an agreement
significantly different from that which they originally contemplated. They could not have
intended that the deed of cession could be judicially snipped and pruned … to the extent that its
ultimate form and import differed meaningfully from that which it was originally intended to
have… In any event, it is in my view not open to parties to a contract to say to a court “ take our
agreement, such as it is, excise from it all that is bad , and retain what is good, and provide us
with a contract that is legal and enforceable, even though it may not be what we originally had
in mind”… [s]uch an approach would offend the fundamental rule that the Court may not make a
contract for the parties..’

[66] Accordingly, so counsel for the Sarge entities submitted, to remove the reference
to the DVRA in clause 12.29 of the SPV1 would effectively be making a new contract
for the parties. However, counsel for the Mahube entities argued that Mahube has an
immutable right ‘that flows from the primary portion of [clause] 12.29 to a seat on the
board. It does not flow from the DVRA, it does not flow from the alleged oral
agreement… so there was never an intention , until the Phembani problem arose, that
Mahube would get a seat on the board that has limited powers ’. He contended that
Sasfin does not apply in the present instance because no-one is seeking to strike down
the SPV1 because of the ‘wrinkle’ of the void DVRA ; rather, he submitted, severing the
void portion from clause 12.29 would not alter the fundamental purpose of the SPV1,
namely the procurement of a board seat for Mahube . In my view, counsel for Mahube
must be right, particularly given the express provisions of the severability cl ause (ie.

must be right, particularly given the express provisions of the severability cl ause (ie.
clause 25) of the SPV1. But, to my mind, this does not have the necessary
consequence that I must ignore both the oral agreement about percentage voting rights
and the terms of the void DVRA . Even though I have found the DVRA to be void, I can
still have regard to it in order to determine the facts, or more specifically for present
purposes, those parties’ joint intention at the time , since to do otherwise might result in
‘a gross injustice’ : Zuvaradoka v Franck 13. Objectively speaking, the only explanation
for the specific and varied percentages agreed in the DVRA is that they conferred on
Gaia ( Mahube) 9% of the Coria board voting rights , which it was willing to accept ; and
the DVRA may be void, but the oral agreement is not.


13 1981 (1) SA 226 (ZA) at 229E – 230B

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[67] As I see it, there is therefore nothing to preclude me from declaring that all
reference to the DVRA in clause 1 2.29 of the SPV1 shall be deemed as severed from
the remainder of that clause. Mahube’s entitlement to exercise the voting rights of one
of the two directors of Coria appointed by N1 would then arise from clause 12.29 (as
amended) as well as the oral agreement. Further, on the application of the Plascon -
Evans rule, I am persuaded that the Sarge entities are also entitled to the order s they
seek that the Mahube seat on Coria’s board is currently exercised on it s behalf by Mr
Moseneke, and until amendment of the shareholders agreement and MOI, it is limited to
9%. I am however not persuaded that the Sarge entities are entitled to an order that
the 9% limitation is a contractually non -severable part of Mahube’s right to
representation on Coria’s board (in terms of the SPV1) since it was, on the version of
the Sarge entities’ themselves, only intended to govern the interim position ; or that the
right to such representation is per se unenforceable pending amendment of the
shareholders agreement and MOI (since no-one has suggested that the oral agreement
is unenforceable if the D VRA is found to be void) . Having reached this conclusion, the
relief sought by the Mahube entities cannot succeed.

[68] Turning to the Thebe entities. They have been successful to the extent that I
have found the DVRA to be void. In respect of the relief they seek that TREH is
independently entitled to nominate a director for appointment to Coria’s board in terms
of the SPV2 , their counsel understandably placed square reliance on clause 12.30
thereof, which entrenches the obligation of Sarge Thebe to procure that this occurs.
However, as dealt with in my consideration of the evidence, and again on the
application of the Plascon -Evans rule, I am not able to find on the papers before me

application of the Plascon -Evans rule, I am not able to find on the papers before me
that the Sarge entities’ version, which i s in essence that TREH already exercise s that
right through one or other director(s) of entities in the Thebe group , is so far fetched or
improbable that it falls to be rejected. Moreover, no evidence was put up by the Thebe
entities to support their allegation that following Phembani’s exit from Coria , they
somehow became entitled to ignore its 25.64% voting right allocation, which it is beyond
dispute Phembani itself insisted it retain because it did not want to compromise its exit
by the dil ution of its rights in any way. It is improbable that having done this, it would
have represented to the Thebe entities that it actually had even less voting percentage
rights, ie. one half of 48.72%, being 24.36% , which is the second leg of the relief the
Thebe entities now seek. I am therefore not persuaded that I should grant that relief.

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[69] The Sarge entities also ask for an order that Coria, Thebe and Thebe 2 be
directed to take all steps reasonably necessary to expedite ‘the required amendments ’
to Coria’s MOI to reflect the voting percentages contained in the amended clause 15.5
of the First Addendum, including requesting the written consent of the Lenders and DoE
(which effectively dispenses with the points raised in limine by the Mahube and Thebe
entities) and, if such consent is obtained, by proposing and adopting the required
special resolution in terms of s16(1)(c) of the Companies Act and filing the requisite
notice of amendment with the CIPC in terms of s 16(7) thereof. I have the following
difficulties with this. First, amendment of the Coria MOI will not be limited to the shift in
voting percentages. This much is evident on the Sarge entities’ own version, as counsel
for the Thebe entities pointed out . Even if the consent requirements could somehow
otherwise be satisfied, the Sarge entities have not yet presented their complete and
final version of the proposed MOI amendments for consideration by the relevant parties.
Third, the MOI cannot simply be amended in isolation from a number of conflicting
provisions in the shareholder s agreement as amended by the First Addendum. The
Thebe entities’ lead counsel handed up a schedule reflecting n o less than nine other
amendments that would be required to bring the MOI and First Addendum in alignment
with each other. These encompass clauses relating to share capital, board composition
and other fundamental governance matters that were not addressed in the First
Addendum’s limited focus on director voting arrangements. To this I would add that,
even way back in 2017, those involved in the restructure negotiations were alive to the
fact that a number of consequential amendments would be re quired to Coria’s
constitutional documents. In these circumstances , to order steps to be taken to effect

constitutional documents. In these circumstances , to order steps to be taken to effect
one isolated amendment to the MOI does not sit comfortably with me, and in any event
will not bring about an overall resolution of the dispute. It is also the reason why I am
not prepared to order, as the Sarge entities would have it, that the inte rim position
contained in both the oral agreement and clause 12.29 ( to be amended as dealt with
above) applies, as far as the Mahube entities are concerned, beyond the amendment of
Coria’s constitutional documents. The parties will have to sit down and negotiate their
way through these amendments and if they are unsuccessful, any litigation that may
follow is for another court to determine.

Costs

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[70] Each of the Sarge and Thebe entities have been partially successful. Although
the Mahube entities have not, I must take into account that, as with the Thebe entities,
they were obliged to deal with a fundamental iteration of the Sarge entities’ previous
case, namely that the DVRA was immediately enforceable on grounds other than the
issue of voidness, with the attendant cost . That stance was only abandoned on the
second day of argument . I am accordingly of the view that the appropriate order to
make is that each party should bear their own costs.

[71] The following order is made:

1. In the main and counter -applications under case number 6020/2023 (‘the
Sarge application’ and ‘the Mahube counter-application’):

1.1 It is declared that t he words ‘pursuant to an agreement entitled
“Directors Voting Rights Agreement ” executed on or about the
Signature Date between inter alios N1, Thebe Noblesfontein, South
African Renewable Green Energy Proprietary Limited and certain
individuals’ are deemed to be severed from clause 12.29 of the
written agreement styled ‘SPV1 Preference Share Subscription
Agreement’ (the ‘SPV1’);

1.2 It is declared that the fourth and/or fifth respondent’s entitlement to
have a representative exercise the voting rights of one of the two
directors of the first respondent appointed by the sixth respondent ,
pending amendment of the sixth respondent’s constitutional
documents (being its Memorandum of Incorporation and Restated
Shareholders Agreement as amended by the First Addendum
thereto) arises from and in terms of : (a) clause 12.29 of the SPV1 (as
amended in accordance with paragraph 1.1 of this order) as well as
an oral agreement concluded between the si xth respondent on the
one hand, and the fourth and/or fifth respondents on the other,
during or about September 2017 ; (b) is currently exercised on their
behalf by Mr Gontse Moseneke ; and (c) is limited to a total (and no

behalf by Mr Gontse Moseneke ; and (c) is limited to a total (and no
more) of 9% of the total voting rights held by the directors of the first
respondent;

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1.3 Save as set out above, the relief sought by the applicants is refused;
1.4 The counter-application is dismissed; and
1.5 Each party shall pay their own costs.

2. In the application under case number 16391/2023 (‘the Thebe application’):
2.1 It is declared that the Director Voting Rights Agreement concluded
on 21 September 2017 between the first applicant , and the second
and fourth to sixth respondents, is void and unenforceable;
2.2 Save as set out above, the relief sought by the applicants is refused;
and
2.3 Each party shall pay their own costs.


_____________________________
J I CLOETE
Judge of the High Court



Appearances

For applicants Adv Matthew Blumberg SC
(Sarge) Adv Gavin Cooper
Instructed by: Potgieter Joubert Inc

For 2nd & 3rd respondents: Adv John Dickerson SC
(Thebe) Adv Duncan Wild
Instructed by: DLA Piper Inc

For 4th & 5th respondents: Adv Michael Antonie SC
(Mahube)
Instructed by: Werksmans Inc