REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG)
Case Number: 2022/8083
In the matter between:
NADESONS INVESTMENTS (PTY) LTD Plaintiff
and
VALUE CAPITAL PARTNERS (PTY) LTD Defendant
JUDGMENT
MANOIM J:
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: No
21/01/2026 ____ _____________
DATE SIGNATURE
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Introduction
[1] This case involves a contractual dispute over the payment of a dividend
pursuant to a sale of shares in a listed company called GPI . The plaintiff,
Nadesons Pty Ltd (Nadesons), which sold the shares in GPI , claims payment
of a dividend of R17.6 million rand from the defendant who bought the shares,
Value Capital Partners Limited (VCP). VCP denies it owes payment.
[2] Only two people , Dr Hassan Adams from Nadesons , and Sam Sithole from
VCP, know the terms of the agreement between them. There is no
disagreement about the price for the shares. Moreover the defendant has paid
the purchase price and the shares were transferred to it . There is also no
disagreement that the shares were being sold ex dividend. This , in normal
commercial parlance means that the purchaser would not get the dividends on
the shares once they were declared . The dividend would be retained by the
seller.
[3] The dispute concerns when the dividend had to be paid and how much it was
to be. Although the shares were sold to VCP in March 2019, GPI did not declare
a dividend at the end of that financial year (June 2019) or the following financial
year. The next time GPI declared a dividend was in December 202 1. The
dividend was 88 cents per share. It is common cause it included a capital
reimbursement to shareholders, as one of the underlying businesses had been
sold.
[4] The plaintiff’s case is that it was entitled to this full dividend regardless that it
was only paid in 2021 and that it was a special dividend. The defendant claims
that Adams had represented to it that a 10 cent dividend was likely and that it
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was to be paid for the 2019 financial year. Since no dividend was paid for that
year, no amount was owed to it.
[5] But Hassan Adams passed away before the trial commenced making the
plaintiff’s case more difficult. But before I discuss the issue further , it is
necessary to go into the history of the contacts between the two groups.
[6] VCP is an asset manager. Its speciality is to invest in listed companies whose
share price is below its intrinsic value. 1 Its modus operandi is straight forward.
It buys shares in the languishing company, proposes certain changes and
hopes to turn it around to drive up the share price. It buys strategic stakes rather
than majority stakes , and then strike s an alliance with other disaffected
shareholders to drive through the changes it considers the target company
requires.
[7] In 2018 VCP identified Grand Parade Investments Limited (GPI) as one such
company. VCP came across it because GPI was the empowerment shareholder
of certain companies which had casino licences in which VCP was also
invested.
[8] But GPI was proving a controversial shareholder in the casino groups. Anxious
that the dissident would become obstructive , VCP embarked on a strategy of
turning GPI around by buying into it. The main protagonist from VCP was its
co-founder and then director , Sam Sithole, who is still with the company . His
counterpart in this saga was Adams representing Nadesons.
1 According to Investopedia “The intrinsic value of shares refers to the true, fundamental worth of a
stock based on its underlying business fundamentals, rather than its current market price.” Accessed
on 3 November 2025,
4
[9] Adams was the founder of the GPI group , whose early fortunes were founded
on stakes it had in licenced casinos in the Western Cape , where GPI was the
empowerment partner. He had leveraged the casino stakes to get GPI into other
businesses. He had secured the South African franchise for Burger King, the
prominent U nited States hamburger brand , as well as two other US food
brands, Dunkin Donuts and Baskin Robbins. Adams held his stake in GPI
through the plaintiff, Nadesons.
[10] Adams and Sithole had first met in 2018 to discuss the casino investments.
That contact is not relevant to this matter, but it did establish the first business
relationship between the two men. The crucial and last meeting between them
took place on 29 March 2019. At that stage Adams was already seriously ill.
Sithole met him at Adams’ flat in Sea Point in Cape Town. The purpose of the
meeting was to discuss VCP’s proposal to buy a further block of shares in GPI.
But Sithole also wanted to discuss proposals for turning the company around.
[11] The only person who can testify about what was discussed at that meeting is
Sithole. This is because he and Adams were the only persons present and
Adams, as noted earlier, had passed away before the trial commenced. Sithole
did testify, although he conceded that his recollection of that meeting, now more
than seven years ago, was hazy.
[12] His main recollection was that an agreement was reached on the following. That
Nadesons, Adams family investment vehicle, would sell 20 million shares in GPI
to VCP at a price of R3.00 per share. Second , that Adams would procure that
another entity, the GPI Women’s Empowerment Trust, would sell a further 14
million shares to VCP at the same price of R3.00 per share . It was further
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agreed that the shares , both for Nadesons and the Women ’s Trust, would be
sold ex dividend. Ex dividend means that any dividend that becomes payable
on the shares would be for the benefit of the seller, not the buyer. Thus far the
plaintiff does not dispute this version of the meeting.
[13] What is in contention is what the ex-dividend agreement meant. Sithole cannot
recall the exact language used in the discussion. What the defendant relies on
instead is a series of emails , commencing with one from Sithole, in which he
seeks to confirm what had been agreed at the 29 March meeting. Adams replied
to the email to which Sithole responded, in the form of confirmation s of what
Adams had set out in his email. This exchange took place from 1 to 2 April 2019.
[14] The plaintiff in turn relies not on th is email exchange, but a later WhatsApp
exchange between the two men on 8 April 2019. I return to the content of the
emails and WhatsApp’s later in this judgment, but it is worth noting that neither
expressly answers the two key questions about the dividend in this case – how
much it was and when was it to be paid.
[15] This lack of specificity explains why both parties had to resort to last minute
amendments to their pleaded cases.
The pleadings
The Pre-amendment pleadings
[16] The pleadings in this matter are brief because the facts are mostly common
cause. For this reason, I confine myself to how the issue of the dividend was
pleaded. The plaintiff pleaded that the contract was concluded on or about 8
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April 2019. As to its form , the plaintiff’s uncertainty on this point becomes
evident from the manner of the pleading. The plaintiff pleaded that:
“On or about 8 April 2019 and at Cape Town, alternatively Johannesburg, the
plaintiff, duly authorised and represented by Dr. Hassen Adams, and the
defendant, duly authorised and represented by Mr. Sam Sithole, concluded a
written, alternatively oral sale agreement, of which the terms were embodied in
writing (the sale agreement)”.
[17] On the issue of the dividend the plaintiff pleaded that:
“5.3. the defendant would acquire the shares ex -dividend, in that, upon the
declaration of a dividend by GPI pursuant to the sale and transfer of the shares,
the plaintiff would be entitled to such dividends due in respect of the shares;
5.4. the transfer of ownership of the shares would be effected on payment of
the purchase price (excluding the dividend yet to be declared by GPI); and
5.5. the defendant would pay to the plaintiff the dividend in respect of the shares
within a reasonable time after it was declared by GPI.” (My emphasis)
[18] Notably the pleaded case does not say how much the dividend would be or
when it would be declared. The sole temporal limit is that the dividend once
declared would be paid within a reasonable time.
[19] The plaintiff went on to plead that on 8 December 2021, GPI declared a dividend
of 88 cents per share. This, the plaintiff pleaded, entitled it to the dividend in an
amount of R17,6 million. (The arithmetic of how this amount was arrived at is
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not controversial – the plaintiff had sold the defendant 20 million shares –
multiplied by 88 cents, this is a figure of R17,6 million).
[20] The plaintiff later amended its particulars of claim in one crucial respect. But
before I consider this , I must set out the defendant’s plea , which likewise
underwent an amendment from what was initially pleaded.
[21] The crucial point of difference in the defendant’s pre-amendment plea was that
on its version:
5.1.1. GPI would potentially be declaring a dividend of approximately 10 cents
in the period April to June 2019; and
5.1.2. the plaintiff wanted the amount of the dividend that may be declared by
GPI during the period April to June 2019 to be paid to it notwithstanding the
sale of the shares to the defendant. (My emphasis).2
The first hearing
[22] The trial then proceeded on 2 September 2024, based on these pleadings. The
plaintiff called two witnesses ; Dr Adams ’ son Ryaan Adams, who for
convenience I will refer to as Adams junior , (simply for convenience to
distinguish him from his father and not to diminish him) , and Mr Serveras Smith,
who was the chief financial officer of Nadesons from 1 July 2019 to 13
September 2022.
[23] It is common cause that neither were directly aware of the terms of the
agreement between Adams and Sithole . Thus, their evidence on this point is
2 The underlined portion was later amended.
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confined to what Adams had told them about the dividend . The plaintiff seeks
to have this evidence admitted under Section 3(4) of the Law of Evidence
Amendment Act 45 of 1988 (the ‘Hearsay Act’). The defendant challenged the
admissibility of this evidence, and I will return to this topic later in this judgment.
[24] The thrust of their remaining non-hearsay evidence, during this first hearing,
was to show that the company had never historically declared a dividend during
the period April and June, and hence this version of the agreement, as pleaded
by the defendant , was improbable. The plaintiff then closed its case, and the
defendant applied for absolution. The matter was postponed till the following
day to allow the plaintiff an opportunity to prepare its reply. But on the following
day the defendant’s counsel announ ced that it was bringing an application to
amend its plea. There was some dispute over the timing of this application, but
eventually the defendant tendered costs and the matter was postponed sine
die so that the plaintiff could respond to the case on the basis of the amended
plea. Any prejudice to the plaintiff was thus addressed by the opportunity for the
postponement and the tendering of costs.
[25] In its amended plea the defendant retreated from its assertions that the dividend
would be declared for the April to June 2019 period and instead asserted tha t
Adams had represented to Sithole that:
“5.1.1 He was confident that the strong third quarter performance of Burger King
to 31 March 2019 would support a dividend declaration of 10 cents per share
for the year ending 30 June 2019.”
5.1.2. The plaintiff requested that if such dividend is declared by GPI in respect
of the financial year ending 30 June 2019, that the plaintiff be paid such amount.
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[26] And further:
“5.2.3 if GPI declared a potential dividend of 10 cents per share in respect of
the financial year ending 30 June 2019, then the defendant would pay to the
plaintiff the amount of such dividend;”
[27] When the trial resumed again on 21 October 2025, there was a further twist.
The plaintiff’s counsel announced that the plaintiff would be amending its
particulars of claims to provide for an alternative version . There was no
objection from the defendant, so the amendment was allowed. What the plaintiff
now alleged, in the alternative , was there was to be a dividend of 10 cents a
share. Hence if the alternative version was established , then the claim was
reduced to one of R2 million. Nevertheless, although the alternative version
was a concession on what amount was payable , it was not on when it was
payable. Thus, even on its alternative version, the plaintiff was still pleading that
this (now R 2 million) was payable as and when a dividend was declared.
[28] The plaintiff then by consent re-opened its case and recalled both its witnesses.
Once again, the plaintiff’s case was hampered by the fact that it no longer had
Adams to rely on to prove the terms of the agreement . Instead, it led its case
as one on inference based on the financials. Its case was that Adams could
never have confined himself to a dividend paid at the end of the June 2019
financial year as he must have known that GPI, now entering the final quarter
of its financial year, was unlikely to be paying a dividend. The evidence of the
witnesses (again Smith and Adams junior) amounted to an evaluation of the
company’s financials to show why such a version was unlikely and why the
plaintiff’s version was more likely.
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The evidence
The hearsay evidence
[29] The first question is whether I should admit the evidence of Smith and Adams
junior, on what Adams had told them about the payment of the dividend. Both
counsel made lengthy submissions on the subject. Other than illu strating the
fact that the case law on the Hearsay Act shows considerable differences in the
approach courts have taken, I did not find this debate illuminating.
[30] Nevertheless, I consider that the plaintiff had justified why it needed to lead
hearsay evidence. Adams was still alive , although extremely ill , when the
litigation commenced, but by the time of the trial he had passed away. The fact
that a party’s key witness is no longer available to testify in these circumstances
justifies the invocation of the Hearsay Act. As stated in S v Cupido, the primary
objective of the Hearsay Act “ …is to cater for non-witnesses who are no longer
available to testify due to, for example, death or mental incapacity after the
incident."3
[31] Although accepting this, the defendant criticised the plaintiff for not attempting
to do more to ensure that an earlier date was secured or evidence was obtained
on commission. I do not think this criticism is justified. I was informed that t he
plaintiff’s legal team had sought to get an earlier hearing date from the Deputy
Judge President but this request was refused. Once Adams had passed away
the plaintiff’s choices were limited.
3 S v Cupido 2024 JDR 0034 (SCA) at para 47.
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[32] That said, although Smith and Adams junior recall being told a dividend was
due, their evidence lacked any specificity about when and how much. Those
are the two key issues in this case, and they were not able to take the plaintiff’s
case on this point any further. Moreover, neither were aware of the email trail in
April 2019, that preceded the WhatsApp’s.
[33] What matters is what was told to them and when. For the period between the
date on which the shares were sold and until the GPI board decided not to
declare a dividend for that year, it would be common cause that Nadesons could
have expected to receive a dividend on the shares it sold if a dividend was
declared. If this was what was conveyed to them by Adams this would not be
controversial. Then for the period after the special dividend was declared by
GPI in November 2021, it is like ly that at least Smith was told by Adams that
this dividend was due to Nadesons. This can be inferred from the fact that Smith
was instructed to send an invoice for the claimed amount on 8 December 2021.
[34] But what mattered for their evidence was to explain what they were told was
happening to the dividend during the intervening period – after the June
financials were released (20 September 2019) and before the 2021 dividend
was announced on SENS on 11 November 2021 . Was the dividend still
expected and if so , how much? Thus although I have admitted their hearsay
evidence, I do not find it relevant to the points in issue in this case.
The Nadesons’ financials
[35] One place one might have expected Adams’ version of the dividend to appear
would be the minutes of Nadesons given that Nadesons, not Adams personally,
would be acquiring the dividend. Yet there is no mention of the dividend in the
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minutes although the sale of shares is recorded. On 8 April 2020, the minutes
of the previous three years were approved. According to Adams junior, although
the 2020 minute refers to the sale at R3 per share the reason no dividend is
mentioned is that it was still anticipated. This is not a particularly convincing
explanation. So these minutes do not take the plaintiff’s case any further and
rather, if anything, are consistent with the case of the defendant.
GPI’s 2019 financials
[36] GPI’s financial year ends each year on 30 June. In 2019 GPI’s Annual Financial
statements show that it had a basic loss of 8.48 cents per share. No dividend
was paid. Since Adams was discussing the issue at the end of the third quarter,
with the company having suffered a loss in terms of the interim results after the
end of the second quarter, it was argued that he could not have contemplated
a dividend would be paid at the end of that year. Indeed, the dividend history of
the company for the preceding financial years did not present a picture for
optimism as no dividend had been paid for the previous few years.
[37] Thus, the plaintiff argued, it is improbable that Adams would have told Sithole
that a dividend of 10cents was likely at the end of the 2019 financial year.
[38] What served as grist to the mill for the plaintiff’s further argument that a 2019
year-end dividend could not have been contemplated, was a document that had
been discovered subsequently by the defendant after the first hearing. Prior to
Sithole’s meeting with Adams, VCP had conducted its own due diligence on
GPI and took a dim view of its short-term prospects. It is a lengthy document
but the conclusion was that GPI was unlikely to return to profit in the short term.
This document had been prepared in January 2019, and was based on the mid-
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year financials of GPI which reflected a loss . The plaintiff argued that if VCP
with its “clever” analysts did not foresee a dividend then , it was highly unlikely
that Sithole who had participated in its preparation and had sat in on the
presentation to the board on 28 January 2019, could have understood
otherwise.
[39] Thus, the argument was that on the probabilities, Sithole must have understood
that no dividend at the end of 2019 was likely and hence must have had the
same understanding as Adams, that the agreement was that the dividend would
be paid within a reasonable time but not confined to the 2019 year end.
[40] Sithole, when cross-examined on this , explained that the due diligence was
premised on what historic public information was available to VCP then, namely
the mid-year December results and the preceding years. The other information
was based on assumptions from those in the industry. But VCP did not have
the same non-public, current information, that Adams had access to, as to how
the GPI business was prospering after the third term ; in particular on whether
the performance of Burger King had turned around.
[41] Thus, I do not consider this due diligence report to be destructive of Sithole’s
version.
[42] Nor do I consider the 2019 Annual Financial statements contradict the
defendant’s version. Granted GPI did not pay a dividend that year. But the
company had a headline profit per share of 8.91 c ents, up from a loss in
headline earnings in the previous 2018 financial year of 11.18 cents. Even the
loss per share of 8.48 cents was an improvement on the previous year of 11.66
cents per share. Burger King showed great improvement at the end of that year.
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If it was the performance of Burger King that had made Adams confident about
a likely dividend at the end of the June 2019 financial year, there was a factual
foundation for this. In the report the following is said about Burger King:
“Burger King has reported a significant R38.8 million improvement in headline
earnings with a positive (profit) contribution of R11,7 million compared to a loss
R27.1 million in the prior period. The profitability of the business has been long
awaited by the investment community and is a major milestone in the life of the
business. This was driven by strong top line growth due to new restaurant sales
and a substantial increase in same store sales of 10.3% compared to prior year.
Gross margin gains during th e second half of the financial year and an
improvement in labour margins, further assisted the improvement in the
headline earnings contribution.” 4
[43] Further on in the same report it is stated that:
“Burger King's sales for the year increased by 34.2% from R756.2 million in the
prior year to R1.015 billion in the current year. Burger King continued to focus
on market share growth by actively managing the menu pricing architecture to
increase traffic through the stores.”5
[44] Adams, as the then chairman, presented these financial reports in September
2019. It is reasonable to assume that in March 2019 , at the end of the third
quarter, he had a rational basis for concluding that a dividend might be paid ,
based on this improvement. Granted GPI is a holding company, and not all its
income comes from Burger King, but these figures suggest that it is reasonable
4 Trial record page 018 -403
5 Ibid, 018-405.
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to assume that at the end of the third quarter, he could have anticipated that a
dividend might be payable at the end of the 2019 financial year.
The lead up to the claim
[45] I next consider whether Sithole ’s evidence on the agreement has been
consistent since he became aware of the claim which was first brought to his
attention not by Adams, but by Serverus Smith.
[46] Smith joined Nadesons as Chief Financial Officer on 1 July 2019, thus after the
agreement in this matter had been concluded. On his evidence Adams had told
him that a dividend would be forthcoming from GPI , but not any of the details
of when and how much. T he first time he became aware of the agreement in
respect of the dividend was when Adams instructed him to issue an invoice to
VCP for the dividend payment. For this he was given sight of the April 2019
WhatsApp exchange, which was attached to the particulars of claim . He sent
off the invoice on 8 December 2021, having calculated what the dividend
payment should have been , based on the dividend declaration at the end of
GPI’s 2021 financial year as it appeared in the SENS announcement that had
come out just before.
[47] Sithole responded to this invoice in an email dated 15 December 2021. Whilst
he acknowledged that the sale of the shares was ex dividend , he disputed
Nadesons version on the payment terms for the dividend. He said the
agreement was based on the representation that GPI was likely to declare a
10c dividend “within a short period after the conclusion of the transaction”. But
Sithole went on to say as the contemplated dividend was not declared in 2019,
the right to claim payment never accrued to Nadesons.
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[48] Sithole went on to state:
“It was never in contemplation of the Parties at the relevant times, nor would it
make commercial sense on any interpretation of the terms of the transaction,
that the specific agreement between the Parties regarding dividends would
apply beyond the financial period in which the transaction took place, let alone
in perpetuity for any future dividends, which at face value appears to be the
basis of Nadesons claim.”
[49] Sithole’s oral testimony was consistent with what he stated in this email.
WhatsApp and emails
[50] I next consider the contemporaneous documents that were annexed to the
respective pleadings because they are the only form of direct communication
between Adams and Sithole in the record. The plaintiff annexed copies of
WhatsApp messages exchanged between Sithole and Adams , whilst the
defendant annexed an earlier email exchange between them. Since the
sequence matters, I start with the emails attached to the plea.
[51] Recall that the meeting took place on 8 April 2019 at Adams ’ Sea Point flat.
According to Sithole the essential elements of the agreement were concluded
then. Sithole on 1 April 2019 then sent an email to Adams in which he s ought
to confirm the terms of the agreement. This suggests the terms had already
been agreed between the two men and what Sithole sought to do , was to
confirm they both had the same understanding.
[52] When he testified , Sithole, by his own admission , had a poor recollection of
what was said at the 29 March 2019 meeting. For this reason, I regard the
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contemporaneous emails exchanged between the two men as a more reliable
source for what was understood , supplemented by Sitho le’s interpretation of
certain aspects. It is important to note that the men had discussed a wide variety
of subjects. It does not appear from the tone of the communications that the
dividend held much significance for them . At issue for them was the future
governance of GPI, with the defendant and others wanting Adams to step down
as executive chairman in favour of another nominee , and the future sale of
assets. These issues occupied most of the detail of the first email which Sithole
sent on 1 April 2019 (the Monday after the Friday meeting).
[53] In his 1 April email, Sithole states that he wants to confirm what he terms their
“discussion/ agreement” on the previous Friday. Most of the items canvassed
in the email do not concern the present matter. What does , is how Sithole
summarises the discussion on the sale of shares as follows:
“You have agreed to sell 33 -34 million GPI shares to VCP or its nominees for
R3/share ex-div of a potential 10cents dividend per share . You anticipate 14
million shares to be available this week, and the other 20 million shares
between now and end of April 2019;
[54] This email from Sithole is followed up by one from Adams in which he repeats
the outlines of the discussion contained in the Sithole email. Again, the sale of
shares occupies one paragraph of the email and largely follows the framing set
out in the Sithole email. Adams wrote:
“1(a) - Sale of shares in GPI: The transaction of the sale of 20 million shares
from Nadeson Investments to VCP and the sale of approximately 14.3 million
shares in the Trust has been agreed by the parties at a price of R 3.00 per share
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(ex Div) of a potential 10c dividend per share . Confirmed” (The black type is
the response of Sithole, the underlining is my emphasis)
[55] Sithole then sent this email back to Adams indicating that he confirmed this.
Notably in relation to the dividend payment , Adams ha d copied the Sithole
formulation in the exact terms in the latter’s email to the former on 1 April 2019.
The only difference in their formulations involves the number of shares to be
sold to VCP and by whom. Neither fact is relevant to the present dispute but is
relevant to the context o f the later WhatsApp sent by Adams on which the
plaintiff relies for its claim.
[56] The next communication between the two men is a series of WhatsApp
messages. The first was sent by Sithole on 8 April 2019, in which he asks if the
share trades were to go through on that day or the next. Adams replies in which
he says he states:
“I have the resolutions of the Trust in hand and the sale agreements will be
forwarded today.”
[57] Sithole in his oral evidence explained what this reference meant. When the two
had met Sithole had expressed a wish to buy additional GPI shares. Adams
had indicated that he could arrange the sale of 14 million shares from the GPI
Women’s Empowerment Trust. Although Adams was not a trustee, he was
apparently able to persuade the Trust to agree to the sale on the same terms
as Nadesons. However, the Trust, unlike Nadesons, required certain formalities
before a sale could take place. First, there needed to be a sale agreement and
second, the necessary resolution. A sale agreement was drawn up by one of
Nadesons’ employees and has been discovered. It is mostly a standard form
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sale of shares agreement, but notably it contains no reference to the sale being
concluded ex dividend. As it happened this agreement was never signed, and
no sale took place between VCP and the Trust.
[58] What the plaintiff seeks to rely on is the following sentence in the same
WhatsApp message:
“Can we include the divvie, (sic) because once we conclude the shares will be
transferred to you and distribution of dividends is passed directly to you.”
[59] Sithole replies that he only has a mandate for R3 per share ex dividend but that
he was “…happy to pass this on to you once declared.” This phrase then
becomes the source of the plaintiff’s case that the agreement was for any
dividend payable once declared i.e. not subject to any time restriction as to
when declared.
[60] But is Sithole’s reference to being happy to pass this on to you once declared,
a novation of the agreement as reflected in the prior emails, or simply a
restatement of the prior agreement, in less formal terms, or only a reference to
the shares in respect of the GPI Women’s Empowerment Trust. Sithole’s
evidence is that it referred only to the Trust. This makes sense in the context.
[61] The agreement on the dividend had already been confirmed in the terms set
out in the earlier emails. It would have been redundant to record them again a
few days later. Sithole’s version that this reflected the Trust transaction is the
more likely one. There was uncertainty in Adams’ mind about whether the Trust
would also receive the dividend and hence the need for the reassurance which
Sithole then gave him. But even if it referred to the dividend payable in respect
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of both transactions (the Nadesons and that of the Trust as both would on
Sithole’s version been on the same terms) the reference to the “divvie ” is not
inconsistent with the terms of the earlier emails.
[62] Plaintiff ‘s counsel sought to discredit Sithole’s evidence by suggesting that his
version on the dividend was inconsistent. Sithole to this end was cross
examined on why the defendant had amended its plea at the end of the first
day of hearing. Recall that the defendant changed from alleging that the
dividend would be paid at the en d of April 2019 to at the end of the 2019
financial year. It was suggested that this change of version came about
because of the evidence of the plaintiff’s witnesses that no d ividend had been
paid in April during the past financial years . Sithole who was testifying in the
second round of the hearing some thirteen months later, admittedly could not
recall why the plea had changed. His own version is that dividends are normally
paid only at the end of a financial year as that is when the company knows if it
can pay a dividend.
[63] I do not find the fact that the plea was amended in this respect , albeit at the
eleventh hour, significant. Sithole is not a detail man as his emails suggest.
More likely is that when he gave instructions about a likely dividend because of
the third quarter improvement, he was misunderstood by his legal team. Indeed
his email in response to the invoice from Smith , prior to the launch of these
proceedings, which I discussed earlier, is consistent with his evidence and the
amended plea. Thus it is not a recent fabrication.
[64] Nor does this alleged inconsistency materially alter what matters for his version.
The dividend was to be paid in respect of the financial year during which the
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shares were sold. As he testified this reflects normal commercial understanding
that if a share is sold ex dividend it means that the dividend becomes payable
in respect of the financial year during which the transferred shares were sold.
[65] But this is not the only factor that favours the defendant’s version. If Adams had
been expecting a dividend at some time in the future in an indeterminate
amount why was this never reported back to the Nadesons’ board of directors.
No mention is made of the dividend during the meetings of the period. Whilst
this fact alone may not be decisive , as Adams ran Nadesons as if he was the
sole director and owner , the size of the amount suggests he would have
recorded this at some stage or at least confided in his son a fellow director.
Smith who issued the invoice was not briefed earlier on this even though he
was the financial director. Neither Smit h nor Adams junior were aware of the
email exchange until they prepared for trial.
[66] Sithole has suggested that Adams was motivated to claim the dividend when
he did not get his way with the GPI board over a dispute. Adams had solicited
Sithole’s support for certain resolutions that the former wanted to propose at
GPI’s Annual General meeting. When Sithole declined , his evidence is that
Smith had sent the invoice to VCP on the morning of the AGM. It was sent at
10h37 and the meeting was scheduled to commence at 18h00 that same day.
[67] Whatever the legitimacy of Adams’ complaint, the timing is suggestive that he
was using the prospect of litigation over the dividend dispute as leverage on the
governance issue. Whilst this propitious timing of the demand is not decisive, it
does suggest that Adams did not seriously entertain the expectation that he
was still entitled to a dividend given his silence on the issue until then.
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[68] It was argued for the plaintiff that until the dividend was declared that December
in 2021, Adams had no need to press for the dividend.
[69] Let me reprise the chronology and facts of this dividend in more detail . On 11
November 2021 GPI announced on SENS that it was declaring a special
dividend of 88 cents per share. It was announced in the media on 23 November
2019. Nadesons through Smit then invoiced VCP for this dividend on 8
December 2019 – an amount of R17,6 million, hence the main claim . The
reason that this dividend was so high was that it involved a capital payment in
respect of the sale of the Burger King business. But it is clear that the sale of
this business was never contemplated in March 2019 when Sithole and Adams
met. From the emails at the time it is clear that the strategy then was to turn
around the Burger King business. This included retaining Adams as a
consultant to help negotiate with the Burger King franchise holder.
[70] There is also no indication in the emails that the dividend would be based on a
sale of assets. The sole evidence on this point is that of Sithole , and whilst he
was vigorously cross examined on this point, he stood his ground. It is unlikely
that either man contemplated a special dividend being paid when they
discussed the ex-dividend payment in April 2019 .The plaintiff was thus not able
to sustain its main claim nor to rebut the defendant’s version.
[71] I must now consider the alternative claim. Like the amendment to the plea, this
amendment also came at the last-minute when the case resumed on 21
October 2025. This is despite a lapse of some thirteen months between the
hearings. The alternative claim is for payment of R2 million which is based on
a dividend of 10c per share. Clearly the plaintiff as an afterthought has sought
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to align its claim in line with what was stated in the email chain between Sithole
and Adams where the 10c is referred to. Thus, the alternative claim is that what
the parties contemplated was an anticipated dividend of 10 cents per share
whenever the next dividend was declared.
[72] But this has never been the plaintiff’s case. Nor were any of its two witnesses
able to advance this aspect of the case. Nor was it made out in the letter of
demand sent by the plaintiff’s attorneys which commenced the case, nor was it
part of the original particulars of claim , nor the first leg of the trial . As with the
main claim it is also unsustainable.
Which case is more consistent with the pleadings?
[73] The first issue is w hen was the contract concluded. The plaintiff argued that it
is common cause from the pleadings that the contract was concluded on 8 April
2019. The plaintiff alleges this , and the defendant admits this. This date suits
the plaintiff as this is the date of the WhatsApp messages exchange. The
defendant’s plea however goes further than this admission. It states that the
conclusion of the sale agreement was “… preceded by oral and written
negotiations between Dr Adams and Mr Sithole over the period 29 March and
1 and 2 April 2019”
[74] This is not inconsistent with one of the alternative formulations pleaded by the
plaintiff that the agreement was “…further alternatively a partly written partly
oral, sale agreement ("the sale agreement").
[75] Thus, Sithole’s evidence is perfectly consistent with the pleadings. The only
evidence of an oral agreement was what took place on 29 April when the parties
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met at Adams’ flat and agreed the basic terms. The emails of 1 and 2 April were
written confirmation of what had been agreed orally . The 8 April WhatsApp
exchange was a conclusion as it dealt with the remaining issue – that of the
shares of the Women’s Trust . In this sense the 8 April WhatsApp did not
supplement or amend any prior understanding in respect of the dividend issue
but merely confirmed that in respect of the dividend the Woman’s Trust would
be treated in the same way as Nadesons.
[76] The undisputed evidence is that the special dividend that was paid in 2021
arose from the sale of Burger King. GPI had never before paid a dividend in this
amount. GPI had incurred a trading loss at the end of the 2021 financial year.
It is highly unlikely that this was the dividend contemplated by Adams and
Sithole. From the exchange of emails between the two in April 2019 it is clear
that they discussed the sale of certain assets belonging to GPI. But Burger King
was not amongst them because at that stage both men considered it could be
turned around. This mention of the sale of assets is contained in a separated
paragraph from the one that discusses the dividend. The two issues, it appears,
were not linked. It is highly unlikely that if a special dividend was contemplated
from the sale of assets , this would not have been specifically mentioned .
Clearly, what was contemplated was a dividend from profits.
[77] While no limiting period is mentioned in the emails in the ordinary course of
business, an agreement to sell ex dividend contemplates the end of the
financial year in respect of the sale of the shares from which the dividend arose.
That makes commercial sense. It is unlikely, absent an express agreement, that
a purchaser would agree to purchase shares ex dividend without some finite
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date on which the dividend would be declared. After all, by purchasing its shares
ex dividend, it is foregoing the dividend on those shares and giving them up to
the seller. Why would a purchaser of an asset be willing to forego its fruits for
some indefinite period. When a dividend is eventually declared it has an effect
on the price of that share in the market. Here Sithole was willing to forego the
next dividend since he had factored that into the purchase price. Approximately,
a willingness to pay another 10 cents per share.
[78] It is improbable that either he or Adams had contemplated that Nadesons would
receive a special dividend two financial years later in an amount that has no
reference in the emails . This understanding that this would be for the next
dividend payment accords with normal commercial understanding of the term
ex dividend. According to the Merriam-Webster dictionary:
“A stock is said to be sold “ex -dividend” when the sale occurs just before the
next dividend on the stock is due to be paid, so that the payment date comes
after the order to buy is executed but before the stock changes hands. In such
cases, the dividend is paid to the seller, and the price of the stock is reduced
by an appropriate amount.”6 (my emphasis).
[79] Thus, this approach to the interpretation is to be preferred because it leads, in
the language of Endumeni, to favouring the sensible and business-like
approach.7
Conclusion
6 Accessed online.
7 See Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at 18.
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[80] The approach to proof in this matter is common cause. The onus on the plaintiff
is not only to prove the terms of the agreement it contends for, but also to prove
a negative – that the parties did not agree an additional term alleged by the
defendant.8
[81] In the present matter for the reasons I have given, the plaintiff has failed in both
respects.
[82] As far as costs are concerned, both parties were represented by senior counsel,
so costs for senior counsel is justified . The plaintiff considered that costs on
Scale C was justified; the defendant more cautiously sought costs on Scale B.
I consider the latter more justified.
ORDER
[1] The plaintiff’s claim is dismissed.
[2] The plaintiff is liable for the costs of the defendant including senior counsel on
Scale B.
__________ ____________
MANOIM J
JUDGE OF THE HIGH COURT
JOHANNESBURG
8 On the plaintiff’s onus of proof of the terms of the contract relied on see McWilliams v First
Consolidated Holdings (Pty) Ltd 1982 (2) SA 1 (A). On proof of the negative see Harms: Amler’s
Precedents of Pleadings, Ninth Edition, at 107, relying on Kriegler v. Minitzer 1949 (4) SA 821 (A) and
Topaz Kitchens (Pty) Ltd v Naboom Spa (Edms) Bpk 1976 (3) SA 470 (A)
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APPEARANCES:
For the Plaintiff: G W AMM SC
Instructed by: MORGAN LAW INC
For the Defendant: M A CHOHAN SC
Instructed by: DLA PIPER SOUTH AFRICA (RF) INC
Date of hearing: 21 - 24 October 2025
Date of Judgement: 21 January 2026