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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU NATAL DIVISION PIETERMARITZBURG
CASE NO: 17289/23P
Before: Honourable Ncube J
Heard on: 23 May 2025
Delivered on: 05 December 2025
In the matter between:
MAKHOSAZANA NOMCEBO NGCOBO First Applicant
LINDELANI PERCIVAL MKHIZE Second Applicant
SIYABONGA DUNCAN MNGOMA Third Applicant
KZN STUDIOS PTY LTD Fourth Applicant
and
KZN STUDIOS PTY LTD First Respondent
COMPANIES AND INTELLECTUAL PROPERTIES
COMMISSION Second Respondent
FIRST RAND BANK LIMITED Third Respondent
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KWAZULU-NATAL FILM COMMISSION Fourth Respondent
CONTENTO PTY LTD Fifth Respondent
BHEKWAYINKOSI THEMBANI MBUYAZI Sixth Respondent
MUZI STANLEY NKAMBULE Seventh Respondent
JACQUELINE MOEPENG MOTSEPE Eighth Respondent
VICTOR SENNA Nineth Respondent
SIBONAKALISO MTHIYANE Tenth Respondent
ORDER
1. The Application for relief sought in terms of paragraphs 5,6 and 7 of
the Notice of Motion dated 27 November 2023 is dismissed with
costs.
2. The Counter - Application by 4 th, 8 th and 9 th Respondents is
dismissed with costs.
3. The Rule Nisi dated 30 November 2023 is discharged.
4. Parties are ordered to , within thirty (30) days from the date of this
order, jointly prepare a Memorandum Of Understanding(“MOU”),
clearly indicating how the parties intend administering the funds of
the KZN Studios (Pty) Ltd in account numbers:7[...] and 6[...] kept by
the third respondent (“FNB”).
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5. Pending the submission and acceptance by this court, on a date to
be arranged with the Registrar , of this court, the MOU mentioned in
paragraph 4 above, the third respondent (FNB) is ordered to retain
its hold on the banking accounts ( 7[...] and 6[...]) of the KZN Studios
(Pty) Ltd till the third respondent gets further instructions from this
Court.
JUDGMENT
NCUBE J
Introduction
[1] This is opposed application in which the applicants seek relief which will
effectively give the applicants powers to use and spend monies that are kept in the
first respondents (“KZN Studios”) bank account with the third respondent (“FNB”) . If
granted, the relief will also deprive the fourth r espondent the KZN Film
Commission(“KZNFC”) of access to information concerning monies and will further
deprive the KZNFC of access to information about the applicants use of those
monies. The application is opposed by the fourth, eighth and ninth respondents who
in turn filed a counter- application in which they seek an order referring this matter to
dispute resolution in terms of the agreement previously entered into between the
KZNFC and the fifth respondent , Contento (Pty) Ltd (“ Contento”). The said
agreement is referred to by the parties to these proceedings as “the Framework
Agreement”, (“the Agreement”).
Parties
[2] The first applicant, is Makhosazane Nomcebo Ngcobo who is a businesswoman
employed at the first respondent’s registered address (“Makhosazane”). The second
applicant is Lindelani Percival Mkhize (“Mr Mkhize” ) who is also employed at the
registered address of the first respondent. The third applicant is Siyabonga Duncan
Mngoma (“Mr Mgoma”) also a businessman employed at the registered address of
the first respondent. The position of the fourth applicant , KZN studios, is somehow
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confusing as KZN Studios is cited both as the fourth applicant and the first
respondent.
[3] The first respondent is KZN Studios ( Pty) Ltd (“KZN Studios”) , a registered
company. The second respondent is the Companies and Intellectual Property
Commission (“CIPC”). No relief is sought against it. The third respondent is First
Rand Bank Limited (“FNB”) where the bank account of the KZN Studios is kept. The
fourth respondent is Kwazulu -Natal Film Commission (“KZNFC” ). The KZNFC is a
Provincial Public entity as defined in the Public Finance Management Act1(“PFMA”).
The KZNFC has management rights in respect of the KZN Studio’s account kept at
FNB. The fifth respondent is Contento (Pty) Ltd (“Contento”). The sixth respondent
is Bhekwayinkosi Mbuyazi (“Mr Mbuyazi”) residing in Soweto. The seventh
respondent is Muzi Stanley Nkambule ( “Mr Nkambule”) residing in Soweto. The
eighth respondent is Jacqueline Moepeng Motsepe (“Miss Motsepe”). She is the
employee and the representative of the KZNFC . The tenth respondent is
Sibonakaliso Mthiyane (“Mr Mthiyane”).
[4] Mr Mbuyazi, Nkambule and Mr Mthiyane are alleged on the papers to have
committed fraud at CIPU by removing the names of Makhosazane , Mr Mkhize and
Mr Mngoma as directors of the KZN Studio’s and replaced them with their own
names. They are not participating in these proceedings. The dispute relating to
fraud was finalised in the urgent application on 30 November 2023.
Factual Background
[5] On 09 November 2018, Contento was awarded a bid by the KZNFC. In terms of
the letter of appointment, KZNFC had accepted Contento’s proposal to “partner and
invest in KwaZulu-Natal Film Commission in development and operating of KZN
Studio’s”. Further terms and conditions of that partnership were going to be detailed
on the relevant agreement which was still to be signed. The aim of the bid was to
achieve economic transformation through the establishment and operation of a Black
achieve economic transformation through the establishment and operation of a Black
African owned Film Studio in Kwazulu-Natal in order to stimulate the film sector and
to provide infrastructure for sustainable growth and job creation.
1 Act no 1 of 1999
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[6] On 11 February 2019, Carol Coetzee,CEO of KZNFC at the time , signed the
Agreement. Makhosazana, being the representative of Cont ento signed the same
agreement on 12 February 2019. The Agreement came to be known as the
Framework Agreement as mentioned earlier in this judgment. In terms of paragraph
3 of the agreement, a new company was going to be established, and it was going to
be the vehicle whi ch would carry out the intended project. Contento would have
90% and KZNFC 10% shareholding in the new company. The KZN Studios (Pty)Ltd
was then established. In terms of clause 5.4 of the Agreement, KZN Studios was to
open an account on which Contento and KZN FC representatives would be co -
signatories. Such account was duly opened. On 27 February 2019, KZNFC
transferred an amount of R15 million into the account of the KZN Studios held at
FNB.
[7] In terms of a resolution taken by the Directors of KZN Studios on 19 March
2020, Mr Sibusiso Derrick Ndebele, Makhosazane, Ms Motsepe and Mr Mkhize were
appointed as administrators with signing arrangement on KZ N studios account kept
at FNB. FNB was also informed accordingly. The appointment resolution indicates
that Makhosazane , Mr Ndebele and Mr Mkhize are Directors of the KZN Studios,
whilst Ms Motsepe is shown as being a ‘non-executive director’. On 10 august 2021,
Ms Motsepe resigned as a director of KZN studios representing KZNFC.
[8] FNB has placed a “hold” on KZN Studios account. The reason for such a hold ,
as provided by FNB, is the letter which FNB received from the Lawyers of Ms
Motsepe stating that Ms Motsepe was not aware of change of signator ies and
movement of funds from the account.
[9] In November 2023, the compliance officer of Contento discovered that the
applicants were no longer reflected on CIPC records as directors of KZN studios.
The CIP C records showed that the applicants had resigned as KZN Studios
The CIP C records showed that the applicants had resigned as KZN Studios
directors, and were substituted by totally unknown individuals in the p erson of Mr
Mbuyazi, Mr Nkambule and Mr Mthiyane. The applicants have been re instated in
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the records of CI PC as directors of KZN Studios, in terms of the urgent application
brought in this court on 30 November 2023.
Issues
[10] There are three issues for determination by this court.
The first issue is whether the applicants have a clear and exclusive right to tran sact
on the Bank account of KZN studios to the exclusi on of KZNFC or its
representatives.
The second issue which is somehow connected to the first issue , is whether Ms
Motsepe has authority to be a co -signatory on KZN Studios Bank account held at
FNB.
The third and final issue is whether KZNFC or its nominated representatives have a
right to access Bank statements of KZN Studios.
Do the applicants have a clear and exclusive right to tran sact on KZN Studios
account to the exclusion of KZNFC or its representatives
[11] Applicants seek a final relief in this application. Therefore , the applicants must
prove that they have a clear right to transact on the KZN Studio’s account to the
exclusion of the KZNFC or its representatives. The KZNFC is a Provincial Public
entity and as such, in its dealing s with public funds, it must ensure that the funds are
used for a public purpose. Th ose funds must be controlled in accordance with the
provisions and object ives of the PFMA. The primary objective of the PFMA is to
enhance account ability in the utilisation of government resources and reform
budgeting and financial management.
[12] The long title of PFMA indicates that the purpose of this particular Act is “to
regulate financial management in the national government and provincial
government, to ensure that all revenue, expenditure, assets and liabi lities of
those governments are managed efficiently and effectively, to provide for the
responsibilities of person s entrusted with financial management in those
governments, and to provide for matters connected therewith”.
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[13] The KZN Studios was created in terms of clause 3 of the Framework
Agreement which makes provision for the establishment of a new company which
will be a vehicle which will be responsible for carrying out the project. The w ord
“project” is defined in the Agreement as meaning “ the establishment and operation
of a film studio in Kwazulu -Natal”. In terms of clause 3.2 KZNFC is a
10%shareholder in KZN Studio s (Pty)Ltd. In terms of sub -clause 5.4 the new
company is required to set up a new bank account in which the KZNFC and
Contento are co-signatories.
[14] The applicants contend that there is no agreement between KZNFC and KZN
Studio’s and that the Agreement is only between Contento and KZNFC. That
contention misplaced. The KZN Studio s is the child of the Agreement, without the
Agreement, KZN Studios would not have come into existence. KZNFC is a public
entity which has 10% shareholding in KZN studios and as such KZNFC has a right to
protect its interest in KZN Studios for the benefit of the public. Therefore, the
applicants do not have the right to exclusively deal with the affairs of the KZN
Studios without the involvement of the KZNFC.
Does Ms Motsepe have Authority to be a co -signatory on KZN Studio Account
held at FNB
15] Ms Motsepe is cited as the eighth respondent in these proceedings . She is
employed by KZN FC, which is a party to the Agreement which creates the KZN
Studios. On 19 March 2020, the Board of Directors of KZN Studios took a resolution
to appoint Ms Motsepe as an Administrat or with “Joint General Authority” Her title on
the appointment certificate, annexed to the papers as FA20, is shown as being
administrator with signing arrangements and she was one of online Banking
Administrators.
[16] On 10 August 2021, Miss Motsepe addressed a letter to the Chairperson of the
Board of Directors of KZN studios, resigning from the Board. The letter states:
Board of Directors of KZN studios, resigning from the Board. The letter states:
“I would like to formally tender my resignation from the KZN studio board. My role
at the KZN Film Commission is to manage the operation of the organization. I
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would like to give my undivided focus to and prioritise my deliverables in the area
of operations at the KZNFC. The Covid 19 pandemic, the 3rd wave as well as the
recent unrest in the province has had a significant impact on operations. In
addition, there are always a range of minor ancillary programmes that I get
involved in that are industr y related and require my attention, in summary I would
like to ensure that my area of focus is on service delivery to the film and television
industry in the province………”
[17 There is no indication in the above letter that Ms Motsepe is resigning from her
position as Administrator and a co -signatory on the Bank account of the KZ N
Studios. The letter only shows that Ms Motsepe was res igning from her position as
the director of the KZN Studios. There has been no change in the signing
arrangement. The only signing authority is FA20. There is no indication on FA20
that the signing authority is dependent on Ms Motsep e’s directorship and that when
she ceases to be a director, the signing authority will lapse. Although the applicants
contend that there was change of signing arrangement in 2022, there is no proof of
such change before court. The only signing authority before court is FA20, in terms
of which Ms Motsepe is a co -signatory on the bank account of the KZN Studios.
Therefore, Ms Motsepe still has authority to co- sign on the bank account of KZN
studios (Pty) Ltd.
Does KZ NFC or its nominated representative s have a right to access KZN
Studios Bank Statements
[18] As mentioned earlier in this judgment, KZNFC is a provincial public entity. It
has responsibility to see to it that public funds are well managed and used for a
public purpose to the best interest of the public. As mentioned earlier, applicants do
not have a right to will y nilly deal with the affairs of KZN Studios to the exclusion of
KZNFC. Ms Motsepe is the representative of KZNFC and a co -signatory on the
KZNFC. Ms Motsepe is the representative of KZNFC and a co -signatory on the
bank account of KZN Studios held at FNB . In terms of FA20, Ms Motsepe is on e of
the two persons who must co -sign and approve an instruction, before FNB can act
on that instruction. As such, Ms Motsepe is entitled to access the KZN Studios bank
accounts.
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[19] Mr Senna is the Chief Executive Officer (“CEO”) of KZNFC and as such, he is
the accounting officer in terms of section 36(2)(b) of PFMA. As accounting officer,
he has a responsibility to ensure that public funds in KZN Studios’ Bank account are
used efficiently and for the purpose for which they are intended to be used.
[20] In terms of Clause 5.1 of the Agreement , KZNFC must commit a seed capital
of R15 000 000.00 to KZN Studio Pty Ltd to cater for the first phase of the project.
Those are public funds.
[21] Pursuant to Clause 5.1 of the Agreement, on 27 February 2019. The KZNFC
transferred R15 000 000.00 into the KZN Studios Bank account held at F NB. The
CEO of KZNFC at the time was Mr Kea Bogatsu (“Mr B ogatsu”) and as such Mr
Bogatsu had a right to transact on the KZN Studios Bank account. The present CEO
is Mr Senna. Therefore, Mr Senna has a right to tran sact on KZN Studios Bank
Account at FNB. Mr Senna is entitled to access the Bank statements of KZN Studios
held at FNB. Mr Senna and Ms Motsepe are also en titled to keep and use the Bank
statements they obtained from FNB.
Counter Application
[22] The 4,8 and 9 Respondents have filed a counter -application, which Contento
opposes and aligns itself with the first to third applicants.
Relief Sought
[23] In their counter application, the respondents seek the following relief:
“ A rule nisi is hereby issued calling upon all parties to show cause before
this Honourable Court on the ------ day of -------- 2023 at 09h 30 or as soon
thereafter as the matter may be heard, as to why an order should not be
granted in the following terms:
(a) It is declared that there is a dispute between Fourth Respondent and
Fifth Respondent arising from or in connection with the framework
agreement (“the framework agreement”) that was signed by such parties
on 11 and 12 February 2019.
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(b) Fourth Respondent is directed, within ten court days of this order to
deliver a statement of claim in which it states its case in relation to such
dispute.
(c) Thereafter, fourth and fifth respondents are directed to perform all steps
reasonably required to refer the said disputes including any additional
disputes that may be formulated by fifth respondent to dispute
resolution in terms of clause 9 of the framework agreement.
(d) Pending the final determination of such disputes:
(i) Third respondent is ordered to retain its hold on the banking
accounts of first respondent
(ii) Applicants and first, fifth, sixth, seventh and tenth respondents
are interdicted from spending, using and/or causing the use and
expenditure of the monies, including any part and/or fruits thereof,
that were transferred to first respondent b y fourth respondent
during February 2019.
(e) Applicants are ordered to pay, jointly and severally, the costs o f this
counter- application, provided that if any party opposes the counter
application, it will be requested that such party also be ordered to pay
such costs jointly and severally.
(f) Further and/or alternative relief may also be sought.
Pending the final determination of this application an interim order will be sought in
terms of paragraph 1 (d) above.
[24] On 30 November 2023, an interim relief was granted calling u pon FNB to retain
the hold on KZN Studios bank account and interdict ing the applicants from
transacting on that bank account pending the final determination of this matter . In
terms of the very same order, the first to third applicant s who had been fraudulently
removed as directors of the KZN studios, were declared to be the lawfully appointed
directors of the KZN studios . The CIPC was ordered to amend its records
accordingly. Therefore, the directorship dispute between the applicants, sixth,
seventh and tenth respondents has been resolved.
seventh and tenth respondents has been resolved.
[25] The 4th, 8th and 9th respondents, in their counter-application, rely on the rights
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which they derive from the Framework Agreement. That is the source from which
they
can base their right. Apart from that agreement, they have no right to claim
participation in the affairs of the KZN studios. Therefor e the respondents cannot
now
be heard to say that the source from which they derive their rights has not come into
operation. If that is the case, the respondents have no right to interfere in the affairs
of the KZN Studios.
[26] Clause 2 of the Agreement deals with the commencement thereof. Sub-clause
2.1 provides that the Agreement shall commence on the signature date of and shall
continue for the duration of the project or unless terminated earlier by the parties by
written agreement. The KZNFC representative signed the agreement on 11
February
2019. The Contento representative signed it on 12 February 2019. Therefore, in
terms of Clause 2.1 the commencement date is the 12th of February 2019, and it is
still in operation. In terms of Clause 8, if there is a breach of the Agreement, the
aggrieved party may give the defaulting party eight days written notice to remedy the
breach. In case of a material breach, the aggrieved party may cancel the Agreement
upon written notice to the defaulting party. In terms of clause 8.2, there are
circumstances which will justify a summary cancellation of the Agreement. In all the
circumstances mentioned in the breach clause, the aggrieved party must give a
written notice of such cancellation to the defaulting party.
[27] In Casu, at least on two occasions, the KZNFC has unsuccessfully attempted
to cancel the agreement. An attempt by the applicants to remove Ms Motsepe as a
signatory on KZN studios’ account and deal with such account on their own and
without KZNFC representatives, constitutes a material breach, however there has
been no effective cancellation of the Agreement. The respondents cannot now, after
commencement of litigation, claim to have cancelled the Agreement without giving
commencement of litigation, claim to have cancelled the Agreement without giving
written notice as required in terms of the breach clause.
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[28] The respondents, in their assertion, that there is a dispute between the parties
which must be referred to arbitration, are relying on clause 9 of the Agreement.
Clause 9 states:
“ 9.1 Unless otherwise specified in this Agreement, any dispute arising from or in
connection with this Agreement must be finally resolved in accordance with the
commercial rules of the Arbitration Foundation of South Africa, or its successor
body (AFSA)”
[29] There is no dispute arising from or in connection with this Framework
Agreement. The dispute referred to in clause 9, is the dispute which arises from the
Framework Agreement. If it does not arise from the Framework Agreement, it must
be in connection with it. Clearly, there is no dispute arising from the Framework
Agreement. The dispute mentioned by the respondents in their papers is not the sort
of a dispute stipulated in clause 9, but a self-created dispute. Even if it is found that
there is a dispute which requires the matter to, be referred to arbitration, the
jurisdiction of the High Court is not ousted thereby in terms of clause 15 of the
Agreement. Clause 15 provides that the parties “unconditionally consent and submit
to the non-exclusive jurisdiction of the High Court of South Africa, Kwazulu-Natal
Local Division, Durban in regard to all matters arising from this Agreement”
Finding
[30] I find that no case is made out in both the main and counter application
Order
[31] I asked the parties to favour me with draft orders and I thank them for the
detailed draft orders which they submitted. Unfortunately , and because of the view I
have formed of this matter, I cannot rely on any of those draft orders. In the result, I
make the following orders:
1. The Application for relief sought in terms of paragraphs 5,6 and 7 of
the Notice of Motion dated 27 November 2023 is dismissed with
costs.
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2. The Counter - Application by 4th, 8th and 9 th Respondents is
dismissed with costs.
3. The Rule Nisi dated 30 November 2023 is discharged.
4. Parties are ordered to , within thirty (30) days from the date of this
order jointly prepare a Memorandum Of Understanding(“MOU”),
clearly indicating how the parties intend administ ering the funds of
the KZN Studios (Pty) Ltd in account numbers:7[...] and 6[...] kept by
the third respondent(“FNB”)
5. Pending the submission and acceptance by this court, on a date to
be arranged with the Registrar of this court, the MOU mentioned in
paragraph 4 above, the third respondent ( FNB) is ordered to retain
its hold on the banking accounts (7[...] and 6[...]) of the KZN Studios
(Pty) Ltd t ill the third Respondent gets further instructions from this
Court.
________________________
NCUBE J
Judge of the High Court of South Africa
Kwazulu-Natal Division
Pietermaritzburg
Appearances:
For the Applicant and
Fifth Respondent : Adv Mahabeer SC
Adv Jacob
Instructed by: WJ ROGERS &ASSOCIATES
183 Problem Mkhize
Morningside
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For the 4,8 & 9th Respondents: Adv Crompton
Instructed by : HP INCORPORATED
18 Bute Road
Windermere
Durban
Heard: 23 May 2025
Delivered on: 5 December 2025