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
APPLICATION FOR LEAVE TO APPEAL
MANOIM J:
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: No
10/03/2026 _________________________
DATE SIGNATURE
1. This is an application for leave to appeal brought by Nadesons, which was the
plaintiff in a trial that I heard last year, concerning a contractual dispute.
2. The dispute concerned the payment of a dividend in respect of shares in a listed
company called Grand Parade Investments Limited, that the plaintiff had sold
to the defendant, Value Capital Partners Limited . The plaintiff alleged that the
defendant was liable to it for payment of a dividend in respect of those shares.
There was no dispute that the shares had been sold ex dividend. This meant
that if a dividend were payable later in respect of the shares, the plaintiff would
be entitled to receive that dividend from the defendant, despite no longer
owning the shares. The dispute concerned the amount and timing of the
dividend payment.
3. The agreement had been concluded in April 2019. GPI’s financial year ends in
June. But no dividend was declared at the end of the 2019 financial year nor in
the following financial year. A dividend was eventually declared at the end of
the 2021 financial year, but as a special dividend of 88 cents per share. Based
on the common cause fact that the plaintiff had sold the defendant 20 million
shares, the plaintiff claimed R17,6 million.1
4. The plaintiff’s case was that notwithstanding that the dividend was declared,
two financial years later , and as a special not an ordinary dividend, the full
amount declared was owing to it. The defendant’s case was that the plaintiff
would only be entitled to a dividend of approximately 10 cents per share, if
1 20 million shares x 88c. Later mid-trial the plaintiff filed an amended particulars of claim with an
alternative claim for R 2 million based on 20 million shares with a dividend of 10 cents per share.
declared, in the period April to June 2019. Later the defendant amended its plea
to say that the plaintiff would only be entitled to a dividend of 10 cents per share,
if declared, for the financial year ending 2019.
5. I found for the defendant which meant that the plaintiff was not entitled to a ny
dividend.
6. The plaintiff now seeks leave to appeal and has advanced five grounds of
appeal. Counsel for the plaintiff in oral argument indicated that his primary
ground of appeal was my decision to allow the defendant to amend its plea
during the first phase of the trial, after the plaintiff had closed its case and the
defendant had initially argued for absolution.
7. I give some more detail because of the centrality of the amendment issue in
respect of the leave to appeal. When it initially pleaded the defendant
expressed itself as follows:
“If GPI declared a dividend of approximately 10 cents during the period April to
June 2019, then in respect of such dividend, the defendant would pay to the
plaintiff the amount thereof.”
8. This was the defendant’s version that the plaintiff faced during the first phase
of the trial. To meet this version, the plaintiff’s case during that first phase was
to lead evidence through its two witnesses (Adam passed away before the trial
commenced) t hat GPI had never paid a dividend during this period, as its
financial year only ended in June , and it was unlikely that such an agreement
would have been reached. On that basis the plaintiff then closed its case. The
defendant then applied for absolution. Plaintiff ’s counsel asked for an
adjournment to the fol lowing day to be allowed to respond to the application ,
but on the following day the defendant abandoned its application for absolution
and applied to amend its plea to state that:
“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.
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.”
9. The plaintiff objected, but I allowed the amendment and granted the plaintiff a
postponement and costs occasioned by the late amendment. The trial then
resumed some months later and ran till the end, but I allowed the plaintiff to re-
open its case and recall its two witnesses.
10. The plaintiff, in the leave to appeal, argues first that I had not followed the formal
procedures set out in Rule 28 of the Uniform Rules in allowing the amendment.
Had I done so , it argued, the defendant’s sole witness Mr Sithole would have
had to be deposed and if he had, it was contended, he would have been unable
to justify the amendment. If this was the outcome, the argument continued, then
the defendant’s case would have failed, based on the original plea.
11. The plaintiff went on to argue that b ecause Dr Adams, the only person apart
from Sithole with knowledge of what was agreed, had passed away well before
the amendment was sought, the plaintiff was irreversibly prejudiced because it
had no one to take instructions from to meet the new case put up in the
amended plea.
12. But as the defendant argued , there are several problems with this approach .
The version the defendant put up in the amended plea had been made
previously in the letter that Mr Sithole had sent in response to the invoice
received from the plaintiff prior to the institution of this litigation. The invoice was
sent on 8 December 2021 and Sithole responded to it a week later on 15
December 2021. Dr Adams would have received Sithole’s email prior to his
death, and he could have at that time instructed his legal team on an
appropriate response. The plaintiff is thus not taken by surprise by this version
only after Dr Adams’ passing.
13. Second, Mr Sithole was in any event cross examined on how the amendment
came about during the trial. Aside from the passing of Dr Adams there is no
other reason the plaintiff was prejudiced by the amendment. The defendant
tendered costs occasioned by the postponement, there was further discovery
and ample time for the plaintiff to prepare . Indeed, the plaintiff itself amended
its particulars on the first day of the resumed hearing.
14. I thus do not consider there has been any prejudice by my allowing the
amendment in the sense contemplated in Moolman v Estate Moolman 1927
CPD at 29.
15. Finally, even if the plea had not been amended, in my view the plaintiff would
still have failed to make out its case because it had failed to discharge its onus.
16. Regarding onus, I am criticised for following the Kriegler 2case when instead ,
argues the plaintiff, I should have followed Stellenbosch Farmers Winery Group
2 Kriegler v. Minitzer 1949 (4) SA 821 (A).
Ltd v Martel et Cie and Others 2003(1) SA 11 (SCA). But that case, as counsel
for the defendant points out , deals with the approach to the determination of
factual disputes in witness evidence.
17. Then there was an argument that , in terms of the practice note , it was agreed
that the contract had been concluded on 8 April 2019. If that was the case, then
the only evidence for the contract were the WhatsApp messages of that date
which the plaintiff had annexed to its particulars of claim, and no reliance should
have been placed on earlier emails between Sithole and Dr Adams. But as I set
out in my decision, this could never have been the complete contract because
the WhatsApp note dealt only with the dividend payment, which was then given
context by Mr Sithole to refer to the payment of dividends for the Women’s Legal
Trust. It was thus not the embodiment of their entire agreement but the last
word on their agreement, its conclusion in the secondary sense of the meaning
of that word.
18. The remaining grounds of appeal dealt with my interpretation of the WhatsApp
message of 8 April 2019, and what conclusion I should have come to on its
language. This required me to ignore the previous evidence and the plaintiff’s
incorrect characterization of this evidence as pre-contractual – it was not; rather
it was evidence of what the agreement between the parties was.
19. Finally, I am criticised for accepting the evidence of Mr Sithole. I heard his
evidence and assessed it as credible and consistent with his past
correspondence. My conclusion that he could be relied upon is not a subject on
which another court would likely take a different view.
20. The courts have set a high standard for granting leave to appeal. As the
Supreme Court of Appeal said in MEC for Health, Eastern Cape v Mkhitha and
another [2016] ZASCA 176 at para 17:
"An applicant for leave to appeal must convince the court on proper grounds
that there is a reasonable prospect or realistic chance of success on appeal. A
mere possibility of success, an arguable case or one that is not hopeless, is not
enough. There must be a sound, rational basis to conclude that there is a
reasonable prospect of success on appeal."
21. For all these reasons I conclude that the plaintiff has not met the threshold test
for leave to appeal and the application must fail.
ORDER
1. The application for leave to appeal is dismissed.
2. The plaintiff must pay the costs of the application including senior counsel on
Scale B.
_________ ____________
MANOIM J
JUDGE OF THE HIGH COURT
JOHANNESBURG
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: 06 March 2026
Date of Judgment: 10 March 2026