IN THE IDGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
In the matter between:
JUSTIN GEORGE PAULSEN
BELLACART MARKETING (PTY) LTD
and
KURT ANTON PAULSEN
TRADE 245 (PTY) LTD
PRO FINTECH (PTY) LTD
Coram: Greig AJ
Heard: 24 November 2025
Delivered: 15 April 2026
INTRODUCTION
JUDGEMENT
Case Number: 2025-041558
First Applicant
Second Applicant
First Respondent
Second Respondent
Third Respondent
[ 1] These are contempt proceedings brought by the applicants in relation to an
arbitration award handed down by the arbitrator, Mr Sholto-Douglas SC, on
2
8 December 2023 ('the award'). The award was made an order of court by the
Honourable Ms Acting Justice Adams under case number 1247/2024 on 30
January 2025 ('the order').
[2] It is common cause that the award and the Court order are binding.1 The
Respondents contend, however, that they have complied with the order, or
that, if they have breached it, they did do based on a genuinely mistaken
interpretation.
BACKGROUND
[3] The First Applicant, Justin Paulsen, and the First Respondent, Kurt Paulsen,
are brothers. For convenience, I will refer to the brothers by their first names.
[4] According to the arbitration award, Justin graduated from the University of
Cape Town in 2009 with a degree in economics and finance. He worked in
banking until around 2013 when he joined a foreign-exchange trading
company. In late-2016 he set up a business known as 'JP Markets', a securities
brokerage with a digital platform on which clients could trade in financial
derivative instruments known as 'Contracts for Difference' or 'CFD's'.
[5) The JP Markets business grew substantially and in 2017 Kurt joined the
company. His responsibility was for the IT functions of the business whilst
Justin was the chief executive officer.
[6] On 19 June 2020, the Financial Sector Conduct Authority ('the FSCA')
c.·)
suspended the financial service provider licence of JP Markets. Pursuant to
this the bank accounts of JP Markets were frozen, and the FSCA brought an
application for the winding up of JP Markets, culminating in the final winding
1 l note that there is a paragraph numbering difference between the award and court order. Otherwise, there is no
material distinction between them. I will, in referring to the obligations imposed, generally make reference to
the paragraph numbering in the award and not in the order.
3
up of the company on 7 September 2020. However, the winding up order was
set aside by the Supreme Court of Appeal on 20 October 2021.
[7] The winding up of JP Markets, and the suspension of its licence as a financial
services provider, caused Justin 'to suffer negative media attention',
notwithstanding the fact that the winding up order was overturned on appeal.
[8] At the time of its winding up JP Markets was a substantial concern, having
approximately 300,000 clients and 70 permanent employees.
[9] Given the negative media attention to which Justin was subject because of the
suspension of JP Markets' licence, in July 2020 Justin claims that the brothers
had various discussions which led to the conclusion of an oral agreement to
jointly re-establish an online CFD brokerage business. The terms of this
agreement were that Kurt and Justin would pool their resources to jointly set
up the business that would trade as 'Trade 245'. The Trade 245 business
would be owned by a private company registered as Trade 245 (Pty) Ltd.2
[10] Justin says that, because Trade 245 (Pty) Ltd did not initially have a bank
account, the brothers agreed to use a different company to act as a 'conduit'
through which funds would flow to him from the Trade 245 business. This
'conduit' was the third respondent, Pro-Fintech (Pty) Ltd.
[ 11] In order to conduct the business of Trade 245, so says Justin, it was necessary
to obtain the approval of the FSCA. If Trade 245 attempted to obtain such an
authorisation in its own name, it would encounter 'a nutrlber of logistic [sic]
difficulties, and it became necessary to utilise a third party who had already
received the necessary FSCA authorisation, but who would be prepared to
2 In what follows I will refer to the business and the company interchangeably as ' Trade 245' unless the context
requires a specific indication as to whether it is the company or the business being referred to.
4
allow Trade 245 to utilise its FSCA licence .. .' The brothers 'succeeded in
locating such an entity, Red Pine Capital (Pty) Ltd ('Red Pine').
[12] Pursuant to the above, Pro Fintech (acting through Kurt) concluded
agreements with Red Pine (represented by one Nick Petousis) in terms of
which Red Pine agreed to perform the above functions.
[13] For his part Kurt in the answering papers denies that there was any
agreement to utilise Pro-Fintech as a 'conduit': he alleges that Trade 245 did
have a bank account as of 17 July 2020, so it was not necessary to use any
'conduit'. Kurt's main complaint however appears to be that most allegations
in the founding papers are irrelevant and go into details about the arbitration
which are unnecessary for the resolution of this dispute (more about this
below).
[14] Justin in the founding affidavit describes how he set up the Trade 245
business, through the second applicant, Bellacart Marketing (Pty) Ltd.
Initially he was paid half of the profits generated by the Trade 245 business.
However, at a family function in late December 2020 there was a
'confrontational encounter' which caused a breakdown in the brothers'
relationship. Prior to this, Justin received amounts payable to Bellacart
calculated at 50% of the cash payments received from and payable by Red
Pine to Pro Fintech, less expenses. This profit share had initially been paid
without de~ur but after the fallout in December 2020 Kurt began delaying
~:J e!
payments. The deteriorating relationship culminated in Kurt refusing to make
any further payments, after settling an invoice dated 30 June 2021. He
simultaneously also excluded Justin 'from playing any role in the business of
Trade 245.'
[15] This falling out led to an urgent application in the High Court and later to
the arbitration before Mr Sholto-Douglas SC.
5
Arbitration before Sholto-Douglas SC
[ 16] I open this section by remarking that Kurt avers in these proceedings that
everything that transpired at the arbitration, except the award which issued, is
irrelevant to the decision whether the respondents are in contempt. The
submission in paragraph 35 of the respondents' heads of argument is that the
pleadings and evidence in the arbitration have all been 'super seded' by the
award and the subsequent order, and that these allegations and details
provided by Justin about the arbitration fall to be struck out.
[17] I disagree with the above. Given that the interpretation of the award is central
to this case, this contention is anathema to the accepted modem canon of
construction whereby interpretation is a 'unitary exercise' which must take
place within the 'triad of text, context and purpose'. 3 I therefore propose to
deal in some detail with the arbitration and the arbitrator's findings.
[ 18] In the arbitration Justin and Bellacart sought an award inter alia declaring
that Justin was the owner of 50% of the issued shares in Trade 245, and
directing Kurt, Trade 245 and Pro Fintech to provide an accounting to Justin
and Bellacart pertaining to the conduct of the Trade 245 business from
inception, the amounts paid and payable by Red Pine to Pro Fintech, the
income and expenses of Pro Fintech, the whereabouts of profits and funds
held by Pro Fintech, and the amounts payable to Bellacart.
[ 19] Kurt opposed this relief alleging·, that, though he discussed with his brother
various options to establish a new CFD online brokerage, which resulted in
the incorporation ofTrade 245 (Pty) Ltd on 9 July 2020, there were 'numerous
insurmountable impediments' which led the brothers to realise that
establishing a new CFD online brokerage together was not feasible, mainly
3 Capitec Bank Holdings Ltd and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others 2022 (1) SA
100 (SCA) at para 25.
6
because of the pariah status of Justin in the industry following the suspension
of JP Markets' FSP licence. Trade 245 (Pty) Ltd was therefore incorporated
with Kurt as the sole shareholder, and there was no question of Kurt holding
50% of the share capital on behalf of Justin as the latter's nominee.
[20] Kurt further pleaded that, as it was not possible for the brothers to jointly
establish an online CFO brokerage as had been initially discussed, Kurt, with
Red Pine, in August 2020 'resolved to no longer pursue establishing and
operating an online CFD brokerage business but instead and through a new
legal entity to be established by Kurt, to render services to Red Pine, the latter
entity itself acting as an intermediary with an offshore CFD online brokerage.'
[21] Arising from this, Kurt and Red Pine entered into an agreement which
entailed the use of Red Pine's FSP licence. The Trade 245 brand and onHne
platform together with its infrastructure would, in terms of this agreement, be
operated by Red Pine whilst Kurt, through an entity established by him, would
be entitled to raise a 'volume fee' for generating business and providing
marketing services to Red Pine.
[22] Kurt pleaded that he advised Justin of the above agreement and Justin
accepted that he would 'in no way be associated with or directly involved in
the Trade 245 business'. Kurt then 'attended, over the ensuing period, to
setting up the Trade 245 business from the ground up to the exclusion of
Justin.'
[23] As regards the allegation that an agreement was concluded in terms of which
Justin's shares of the profits from Trade 245 would be claimed through
Bellacart, Kurt also denied this, pleading instead that Justin 'approached Kurt
and explained that he was down on his luck arising from the difficulties which
he had been experiencing as a consequence of JP Markets ... '. Thus, an
agreement was concluded in terms of which Bellacart would exclusively refer
7
potential clients to Pro Fintech which would, through its relationship with Red
Pine, grant access to the Trade 245 platfonn. Pro Fintech would compensate
Bellacart for such referrals by paying 50% of the net profit from the associated
revenue received from Red Pine.
[24] Kurt alleged that Bellacart repudiated this January 2021 agreement by
directing independent brokers and clients away from the Trade 245 business
to Justin's competing business ventures. As a result, Pro Fintech cancelled the
agreement with Bellacart in around June 2021.
The arbitrator's findings
[25] The arbitrator held that it was established on the evidence that:
(a) Justin was, through Bellacart, initially paid half of the profits generated by
Trade 245;
(b) After the falling out at the family function at the end of December 2020,
the business relationship deteriorated, and the brothers were forced to
communicate and conduct business through an attorney as a go-between.
(c) Despite this, matters still deteriorated, and though the initial invoices
issued by Bellacart had been paid without demur, subsequent invoices
were delayed and then not paid.
[26] Relevant to the present case is that the arbitrator remarked that
'it is not it'Vissue that Trade 2454 thereafter continued to trade and continued to make
profits. The allegation to the contrary made in the statement of defence was not established
on the evidence.' (My emphasis)
4 As per the definitions in the arbitration award this is a reference to Trade 245 the company, not Trade 245 the
business.
8
[27] The arbitrator further held that the evidence 'clearly established an
agreement between Justin and Kurt in terms of which the business previously
conducted by JP Markets would be housed in Trade 245 and that the shares
in the company would be beneficially owned by Justin and Kurt in equal
shares, despite the fact that they were nominally held by Kurt.'
[28] The arbitrator remarked in this regard that such an agreement was
established not only by the uncontradicted evidence of Justin, but also 'by the
wealth of documentary and corroborating evidence adduced by way of
WhatsApp and Skype messages', and the evidence of other witnesses called
during the arbitration. Moreover, the arbitrator held that, if further support
was needed for this conclusion:
'the mere fact that Justin caused the assets, staff and client base of JP Markets to be
transferred to Trade 245 is sufficient evidence of this. Despite the fact that when JP
Markets was under a winding up order, Justin may not have had the legal right to
accomplish this, he did accomplish it and effect was given to his intention to populate
Trade 245 with the business of JP Markets.'
[29] Having found that the agreement as pleaded by Justin was established, the
arbitrator proceeded to consider the various claims by Justin. Amongst them
was relief in terms of section 163 of the Companies Act, 2008. The arbitrator
found that the conduct of Kurt in keeping Justin from exercising his rights as
a shareholder was unfair and oppressive within the meaning of section 163.
The arbitrator thus concluded~that he was at large to make an award as
envisaged in section 163(2) directing Kurt to acquire Justin's shares in the
company at a valuation to be determined by an independent auditor.
[30] However, the arbitrator remarked that it would be premature to value the
business of Trade 245 until the valuation could be conducted on the basis of
rights which Trade 245 might need to vindicate. The passage is important in
rights which Trade 245 might need to vindicate. The passage is important in
interpreting the award which was made and I quote it in full below:
9
'if the defendants' assertion that Trade 245 is conducted not by Trade 245, but by Red Pine
is correct, this may be as a result of a disposition of the assets of Trade 245 contrary to the
provisions of section I 12 of the Companies Act and is therefore liable to be set aside at
the instance of Trade 245 or its shareholders by way of a derivative action. As a
consequence, the claimant seeks an award directing that in the event that Red Pine or any
other party disputes the fact that Trade 245 is the owner of various rights related to the
Trade 245 business, the valuation by the independent auditor should be postponed until
such time as Trade 245 has vindicated its rights in relation to such assets. I gather that by
reference to the various rights listed by the claimants, what is intended as a reference to
the goodwill of the Trade 245 business, and I intend to address it as such. With that
modification, this strikes me as a sensible approach. Once Justin is placed in possession of
the shares and is able to exercise his rights as a shareholder, he can take whatever steps he
may be advised to take to ensure that Trade 245 is properly valued having regard to its to
assets, liabilities, income and expenses. It would be premature to value the business at this
stage. However, the business will have to be valued in due course for the purpose of
determining the purchase price of Justin's shares and that it is appropriate that an award
appointing a valuer be made at this stage. Red Pine is not a party to this arbitration and
any rights that it or any other party may assert must be asserted in another forum as I
clearly lack the jurisdiction to determine this issue. That is another reason why it would
be inappropriate for a valuer to immediately undertake a valuation.' (The emphasis is my
own).
[31] As to the claimed debatement of account, the arbitrator held that the
agreement between the brothers gave rise to a duty on Kurt to account to Justin
in relation to the business of Trade 245.
in relation to the business of Trade 245.
[32] The arbitrator further held that Pro Fintech was, ~by agreement between
Justin and Kurt, 'interposed as a conduit that served as an extension of Trade
245 in the sense that it only provided banking services to the latter'.
Nonetheless, the arbitrator was not able to find that it was a term of any
agreement that Pro Fintech owed a duty to account to Justin or Bellacart; and,
though 'unquestionably such a relationship would have existed between Trade
245 and Pro Fintech', that was not a relationship upon which Justin and
10
Bellacart could rely on in the arbitration. The arbitrator thus excluded 'an
accounting in respect of the amounts paid and payable by Red Pine to Pro
Fintech, the income and expenses of Pro Fintech and the whereabouts of
profits and/or funds held by or on behalf of Pro Fintech.'
[33] Based on the above findings the arbitrator made the following award:
(a) Justin was declared to be the owner of 50% of the issued shares in Trade
245.
(b) Kurt and/or Trade 245 were directed to deliver the share certificates in
respect of Justin's 50% shareholding in Trade 245 to Justin.
(c) Kurt and/or Trade 245 were directed to take all such steps as may be
necessary to rectify the share register of Trade 245 to reflect Justin's
ownership of 50% of the issued shares in Trade 245.
( d) Kurt was directed to acquire Justin's shares in the company in terms of
section 163(2)(e) of the Companies Act at a price to be determined by an
independent auditor appointed by agreement between the parties and,
failing agreement within 30 days after the date of the award, by the chair
of the Independent Regulatory Board for Auditors ('IRBA').
(e) The costs of the independent auditor were to be borne by Justin and Kurt
in equal shares.
(f) In th~ event that any third party asserted any right/s to any goodwill
associated with the business conducted under the name Trade 245, the
determination of the value of the shares in Trade 245 was to be postponed
until Trade 245 had vindicated such right/s or until Justin determined that
the valuation should be undertaken without such vindication having taken
place, whichever was the earlier.
11
(g) Kurt was to pay Justin the value determined by the independent auditor
for 50% of the shares in Trade 245 withln 30 days of such determination
and against transfer of Justin's shares to Kurt.
(h) Kurt and Trade 245 were to provide an accounting (fully vouched with all
supporting documentation, including bank statements) to Justin and
Bellacart pertaining to:
(i) the conduct of the Trade 245 business from inception; and
(ii) the amounts payable to Bellacart.
(i) Kurt and Trade 245 and Justin and Bellacart were to attend a debatement
of the account.
G) Bellacart was to raise mvo1ces in respect of the amounts that were
determined to be owing to it pursuant to the debatement.
(k) Trade 245 was to pay Bellacart the amounts reflected m the
aforementioned invoices, together with interest thereon calculated at the
rate prescribed in terms of the Prescribed Rate of Interest Act 7 of 1997.
(1) The awards pertaining to (h) to (k) above (the accounting, debatement and
payment of invoices) were to fall away in the event that payment
contemplated in the share acquisition paragraph was effected prior to the
conclusion of the rendering and debatement of account.
(m) Kurt and Trade 245 were •directed to pay Justin and Bellacart's costs of
suit.
Order of court and review
[34] The respondents, dissatisfied with the arbitrator's award, launched an
application seeking to review and set it aside in the Western Cape High Court
in terms of section 33 (1) (b) of the Arbitration Act. The respondents asserted
12
that the arbitrator misconceived the issues to such an extent that jurisdiction
to review the award was established. They contended that the arbitrator
misconducted himself, committed a gross irregularity and/or exceeded his
powers, particularly by taking into account allegations in the defendants' plea
where no evidence had been presented on them by the defendants.
[35] The review application came before the Hon. Acting Justice Adams. In
essence Adams AJ held5 that, not only did the arbitrator not misconstrue the
facts, but his findings 'seem eminently reasonable considering the
submissions before him'. The Court further held that 'even if this was not the
case, nothing points to the Arbitrator's conduct constituting misconduct or a
gross irregularity, nor did he exceed his powers. '6
[36] As to the criticism that the arbitrator had taken account of the defendants'
pleadings when they had elected to lead no evidence on these pleaded issues,
the Court held that there was no suggestion that the arbitrator had referred to
evidence never led, fabricated evidence, or misrepresented what was placed
before him. The Court continued that in its view 'the award handed down was
well-reasoned and ... displays that the arbitrator considered the substantive
defence and the extensive arguments presented. '7
[37] Arising from the above findings the review application was dismissed and
the award was made an order of court.
5 The judgement is unreported and not reported on SAFLII. The judgement was handed down under case
number 1247/2024 and is undated. The founding affidavit, which attaches the judgement as annexure "JP.1 ",
also does not mention the date upon which the judgement was handed down.
6 At para 71.
7 At para 61.
Events following the Adams AJ judgement culminating in this
application
13
[38] Following on the Adams AJ judgement, on 5 February 2025, Justin's
attorney addressed a letter to Kurt's attorney suggesting that the parties should
endeavour to agree on 'practical measures to ensure that an account is
rendered and a debate thereof facilitated.' To this end, Kurt was requested to
furnish daily reports, bank statements, monthly management accounts and the
general ledger for the Trade 245 business, as well as the annual financial
statements of Trade 245 (the company).
[39] On 20 February 2025 Kurt's attorney provided the assurance that 'Kurt and
Trade 245 (Pty) Ltd were in the process of collecting and collating the
documentation'. The letter continued:
'your clients have requested various documentation relating to Trade 245 from inception
to date, inc1uding bank statements, monthly management accounts, financial statements
and daily reports - which you will appreciate is a voluminous and time-consuming
exercise'.
[ 40] A further letter on 28 February 2025 repeated that the documents were still
in the process of being collated.
[41] On 5 March 2025, however, Kurt's attorneys changed tack, sending a letter
enclosing an affidavit by Kurt in his capacity as a director of Trade 245 (Pty)
Ltd st~ting that the company 'does not hold any active bank accounts', 'does
not have any assets and/or liabilities', and 'has not traded in any form of
business operation since its incorporation.' In terms of the production of
documentation required by the order, the affidavit stated that Kurt was 'still
awaiting receipt of bank statements from Standard Bank in respect of the
account described in the affidavit'.
14
[42] On 18 March 2025 Justin's attorneys expressed perplexity as to the above
response, referring to the fact that in the two prior letters Kurt's attorneys had
stated that they were collating 'voluminous' documents in a 'time-consuming
exercise' when, in the end, few documents were produced other than some
bank statements and the affidavit from Kurt contending that Trade 245 had
never traded or had any assets.
[43] Justin's attorneys continued:
'it is quite evident that Kurt is disingenuously trying to evade the clear terms of the Award,
as confirmed by the Order, by furnishing an affidavit, the contents whereof are deliberately
evasive and misleading. The inference is inescapable that, now that Kurt is beginning to
fully appreciate that the rendering of the account and the debate thereof is going to
demonstrate that Kurt and the companies controlled by him owe Justin a considerable
amount of money, he is employing questionable tactics in an endeavour to avoid having to
discharge the obligations flowing from the Award and the Order.'
[44] The letter concluded by expressing the view
'that the duty to account is also in relation to the Trade 245 business. It is not limited to
the trading activities of the Company, as seems to be implicitly suggested in your
correspondence. Kurt cannot honestly claim that he does not have knowledge and control
of the documentation pertaining to the aforesaid business, or that he is unable to gain access
to whatever documentation is required in order to prepare an account. Not a single reason
has hitherto been advanced as to why Pro Fintech cannot furnish statements pertaining to
the account operated by it; why Red Pine cannot supply whatever information is required
and is in its possession; why such, tecords ... as exist or existed regarding the business which
Kurt has confinned under oath is operated by Trade 245, cannot be obtained and made
available.'
[45] The letter concluded by stating that, unless a proper accounting was provided
[45] The letter concluded by stating that, unless a proper accounting was provided
within 5 days, Justin would approach the courts for urgent relief including
relief holding the respondents in contempt.
15
[46] Kurt's attorneys dismissed these complaints on 25 March 2025, maintaining
that Kurt and Trade 245 'have already discharged their obligations in terms
of the Order', and would not 'entertain a fishing expedition whereby Justin
and Bellacart sought to gain access to information or documentation
proprietary to a third party which was not the subject of any order'.
[ 4 7] The above exchange of correspondence culminated in the present application
which was launched on 27 March 2025.
PART A, URGENCY AND COSTS
[48] Part A of the notice of motion was set down on 13 May 2025 and sought
relief in terms of which this application could be enrolled on the semi-urgent
roll. The respondents contended in argument that the applicants should not
have brought the matter on an urgent basis on 13 May 2025, and that the
applicants should pay the costs of this appearance:
[ 49] It is significant to note that no substantive relief was sought against the
respondents on 13 May 2025. Instead, the application was set down for the
limited purpose of agreeing or imposing a timetable for the further conduct of
the matter based on a semi-urgent hearing. The applicants thus contend that,
observing the prescripts in Gallagher v Norman's Transport Lines (Pty) Ltd, 8
they structured a timetable for the hearing of Part B that struck a balance
between hearing the matter on an expedited basis and providing the
respondents with sufficient time to respond. They:.further submit that ongoing
contempt of the court order, by its very nature, is urgent, relying on Victoria
Park Ratepayers' Association v Grewenouw CC and others9 and Secreta,y,
8 1992 (3) SA 500 (W)
9 Victoria Park Ratepayers' Association v Grewenouw CC and others [2004] 3 All SA 623 (SE) at para [26)
16
Judicial Commission of Inquiry into Allegations of State Capture v Zuma and
Others.10
[50] The respondents, for their part, referred to certain cases which they say
indicate that the approach adopted by the applicants deserves censure,
including Volvo Financial Services Southern Africa (Pty) Ltd v Adamas T
kolose Trading CC11 and Manamela v Maite. 12
[51] In Volvo Financial Services Southern Africa (Pty) Ltd, the Court was
concerned with the question whether an application based on the rei vindicatio
is inherently urgent. The court's observations in relation to contempt
proceedings were accordingly obiter.
[52] There may be some force in the obiter observations in Volvo Financial
Services that contempt proceedings may entail (as indeed is here the case to
some extent) 'the exercise of powers which often demand the kind of careful
and lengthy consideration which is generally incompatible with urgent
proceedings'.
[53] However, the applicants on 13 May 2025 sought only a semi-urgent hearing
and further conduct order, justification for which I think is a hurdle easily
vaulted given the nature of contempt proceedings generally, and (specifically)
the impact of the respondents' ongoing breach of the order in unduly retarding
the valuation process envisaged in the award.
[54] It i~· further evident that the respondents do not substantiate that they were
prejudiced as a result of the approach adopted by the applicants. Had they at
10 Secretary, Judicial Commission of Inqui,y into Allegations of State Capture v Zuma and Others 2021 ( 5) SA
327 (CC) at paras [31 ]- [33].
11 Volvo Financial Services S()Uthern Africa (Pty) Ltd v Adamas Tkolose Trading CC 2023 JDR 2806 (GJ)
12 Maname/a v Maile 2023 JDR 3419 (GJ)
17
an early stage agreed to a semi-urgent hearing, the costs of the hearing on 13
May 2025 would have been largely or completely avoided.
[55] I therefore find no merit in the respondents' objections in relation to urgency.
STRIKING OUT APPLICATION
[56] On 23 October 2025 the respondents launched an application seeking to
strike out various paragraphs of the replying affidavit on the basis that they
constituted new matter which ought properly to have been raised in the
founding affidavit, including:
(a) Paragraph 15, together with annexures 'RA 2' and RA 3',
(b) Paragraphs 16, 17, 18 and 19, together with annexure 'RA 4',
(c) Paragraphs 20, 21, 22 and 23, on the grounds that they are irrelevant as
well as on the grounds that they constitute new matter, together with
annexures 'RA 5', 'RA 6' and 'RA 7'; and
( d) Paragraph 25, on the grounds that the matter referred to therein is
frivolous, vexatious and irrelevant and constitutes new matter, together
with annexure 'RA 8'.
[57] During the hearing I enquired of counsel for the respondents whether, since
the respondents had replied to these allegations, it would not be more practical
and expedient to deal with the matter on that basis, instead of striking the
material. The response was 'technically we do persist with the application'.
[58] I am of the view that it is unduly technical to strike these allegations from
the record at this stage.
[59] In any event, I am not persuaded that there is any substantial prejudice given
that the respondents have had ample opportunity to respond, and have in fact
responded, to these allegations.
18
[60] As will be noted from the analysis which follows, my conclusions have
further been reached largely without reference to the material sought to be
struck out, and accordingly the application is in any event something of a
brutum fulmen.
LEGAL POSITION - REQUIREMENTS FOR CONTEMPT
[ 61] The requirements for committal for contempt are well known. The applicant
must establish beyond reasonable doubt:
(a) the order;
(b) service or notice of the order;
(c) non-compliance with the terms of the order;
( d) wilful and mala fide disobedience or breach of the order.13
[62] Once the first three requisites are proved, unless the respondent provides
evidence raising a reasonable doubt as to whether non-compliance was wilful
and mala fide, the requisites of contempt are established.
[ 63] A deliberate disregard of the order is not sufficient: the respondent may
generally, albeit mistakenly, have believed themselves to be entitled to act in
the way they did.14
[64] The respondent in such proceedings is not an accused person, but 'is entitled
to analogous protections as are appropriate to motion proceedings' .15
13 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)
14 Fakie NO v CCII Systems (Pty) Ltd 2006 ( 4) SA 326 (SCA) at para 9.
15 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at para 25.
19
[ 65] A declarator and other appropriate remedies remain available to a civil
applicant on proof on a balance of probabilities. 16 Thus, where a court finds a
recalcitrant litigant to be wilful or mala fide on a balance of probabilities, civil
contempt remedies (other than committal) may still ensue. These include less
drastic remedies which would ensure compliance, such as declaratory relief,
or a mandamus. 17
RESPONDENT'S CONTENTIONS IN RELATION TO THE CASE OF
CONTEMPT
[66] In opposing the application, Kurt and Trade 245 (i) deny disobeying the
order; and (ii) , to the extent that this court concludes that there has been
disobedience of the order, they contend that they have demonstrated that they
did not wilfully nor in bad faith disobey the order.
[67] In this regard the respondents advance seven grounds which they contend
render the application 'fatall y flawed' :
(a) The applicants wrongly contend that the accounting required by paragraph
(h) of the Award (paragraph (p) of the Order) extends to an obligation on
the respondents to provide information in respect of Red Pine and Pro
Fintech, issues expressly excluded by the Award.
(b) In characterising the respondents' conduct as merely 'a misinterpretation
of the Order' the applicants have conceded that the respondents cannot be
in wilful default of the order.
(c) The applicants have failed to set out any evidence supporting a conclusion
that:
16 Fakie NOv CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at para 42.
17Pheko and Others v Ekurhuleni City 2015 (5) SA 600 (CC) at paras 34 and 35; Matjhabeng Local Municipality
v Eskom Holdings Ltd & Others 20 l 8 ( I) SA l (CC) at para [65).
(i) They (the applicants) intend to attend a debatement of account;
(ii) Bellacart has rendered any invoices; and
20
(iii) Any amounts due to Bellacart have been invoiced and are due to be
paid with interest.
( d) In motion proceedings the application falls to be determined effectively
on the respondents' version, and the applicants were aware, prior to
launching the application, that there would be 'irresoluble disputes of
fact'.
( e) The application was launched prematurely.
(f) The applicants are themselves in contempt, and until that contempt is
purged, they are disqualified from pursuing the relief sought.
(g) The applicants have adopted an 'overzealous' approach, making 'wild and
speculative allegations' without any foundation.
[ 68] Many of the grounds in paragraph [ 67] above overlap or are facets of each
other. The discussion in the respondents' heads of argument, whilst setting
out these seven grounds at the outset, does not proceed to consider these
grounds individually or discretely, and I likewise do not intend to do so.
[69] Proceeding to a discussion of the opposition raised, it is as well to point out
that the first two requisites for contempt of court are not in dispute, namely
the order and service thereof. It is only the last two requirements, (1) breach,
and (2) wilfulness and mala tides, which are.
PROPER INTERPRETATION OF AWARD
[70] The first issue is the proper interpretation of the award (I deliberately
consider this issue before turning to whether there are material disputes of
fact, as the proper interpretation of the award limits the relevance of some of
21
these disputes to a material extent). There are two disputed issues of
interpretation:
(a) The scope of the award and whether it extends to an obligation to provide
infonnation or an accounting in respect of transactions involving Red Pine
and Pro Fintech; and
(b) Whether the award contemplates first appointing an auditor to value
Justin's shares in Trade 245, or first conducting a debatement and (if
necessary) vindication of Trade 245 's rights (this also relates to the
prematurity argument in para [67](e) above).
Does the award extend to an obligation on the respondents to provide an
accounting in respect of transactions involving Red Pine and Pro
Fintech?
[71] This has been correctly identified by both parties as the hinge of the dispute.
The respondents contend that the award expressly excludes an accounting of
these aspects. The applicants' attorneys' letter, they say, went too far in
demanding an accounting requiring 'Pro Fintech ... . to furnish statements
pertaining to the account operated by it [and that] Red Pine ... supply
whatever information is required and is in its possession.'
[72] They point to the express statement in the Arbitrator's award which excluded
'an accounting in respect of the amounts paid and payable by Red Pine to Pro
Fintech, the income and expenses of Pro Fiiltech and the whereabouts of
profits and special funds held by or on behalf of Pro Fintech'.
[73] I have set out the arbitrator's reasoning in this regard in paragraphs [30] to
[32] above. The limitation which the arbitrator imposed stemmed in my view
(1) from his acceptance that he did not have jurisdiction in relation to Red
Pine and (2) in a similar vein, from the fact that he was not able to find on the
evidence that Pro Fintech owed a duty to account to Justin or Bellacart; and,
22
though he did find that 'unquestionably such a relationship would have
existed between Trade 245 and Pro Fintech', that was not a relationship upon
which the applicants could rely in the arbitration.
[74] However, whilst the applicants' attorneys may have gone too far in
formulating their demand for an accounting, by the same token, the
respondents' construction of the award is too narrow. They focus on the
arbitrator's limitation, magnifying its scope, whilst also forgetting important
express statements and directives in the award which indicate, in my view,
that the proper interpretation is in fact a via media.
[75] The scope of the arbitrator's exclusion focuses on information within the
purview of Pro Fintech, or the relationship between Red Pine and Pro
Fintech, viz.:
(a) Amounts paid and payable between Red Pine and Pro Fintech;
(b) Income and expenditure of Pro Fintech; and
( c) The whereabouts of any profits and special funds held by or on behalf of
Pro Fintech.
[76] But this is not to say that the required accounting cannot encompass
information as to transactions involving Pro Fintech and Red Pine, to the
extent that such transactions must necessarily be accounted for in the Trade
245 business. Firstly, given the role the arbitrator found was played by Pro
Fintech as a 'conduit' or 'extension', it must encompass this information.
Secondly, even if (for example) payments to Pro Fintech destined for
Bellacart were made directly by Red Pine, if such payments were made
pursuant to the Trade 245 business, they would entail an accounting
23
obligation; the arbitrator did not accept that the Trade 245 business was
owned by Red Pine, as the respondents allege, and nor can this court. 18
[77] Furthermore, it is not only Trade 245 (the company) but also Kurt, who must
provide the accounting.19 It is common cause that Kurt was intimately
involved in the Trade 245 business and there are thus no proper grounds on
these papers to conclude that the respondents are blind to such transactions,
or that they are 'third party' transactions. Indeed, it would be an
unbusinesslike and odd interpretation of the award to believe that the
accounting it requires would exclude these transactions central to the Trade
245 business.
[78] I should hasten to point out that the above is not a gloss upon the arbitrator's
award.20 It is simply in my view the correct interpretation of the scope of the
award which the respondents seek to interpret narrowly and selectively
instead of purposively.
[79] The respondents further argue that the invoices from Bellacart to Pro Fintech
on the record do not on their face bear out Justin's version in the founding
affidavit that these invoices were for half the profits generated by Trade 245.
18 Ifthe Trade 245 business was conducted by Red Pine this may have entailed a disposition of Trade 245's
assets requiring vindication - see for example paragraph 106 of the arbitrator's award. But the award is clear in
finding that the Trade 245 business was not owned by Red Pine.
19 As already set out, the relevant provision requires 'Kurt and Trade 245 [ the company] to provide an
accounting ... to Justin and Bellacart pertaining to .... the conduct of the Trade 245 business from inception .. . '.
20 The respondents suggested in supplementary heads of argument that the draft order proposed by the
applicants is formulated ' in a fashion purposed at amending the learned Arbitrator's award' which seeks to
'secure an accounting not only beyond the scope of the award but in fact expressly prohibited by the award.' 1
shall deal with this below.
24
[80] It is true that these invoices are raised under a generic rubric, 'marketing and
consulting fee', and make no mention of a share of the profits in Trade 245,
nor do they reflect how they are calculated relative to any such profits.
[81] However, the applicants offer the only plausible explanation on the papers
for the existence and payment of these invoices. The respondents' explanation
in paragraph 16 of the answering affidavit, by contrast, is laconic to say the
least: 'the invoices do not reflect payments but rather. reflect that Bellacart
invoiced Pro Fintech for 'marketing and consulting' fees ... Trade 245 (Pty)
Ltd, as repeatedly stated .. . has no assets and never traded.'
[82] Notably, the respondents provide no explanation as to why such significant
sums totalling some R 37 million would have been invoiced by Bellacart to
Pro Fintech for 'marketing and consulting fees'. The explanation by the
applicants, that Pro Fintech was a 'conduit' in relation to the 50% share of the
profits of Trade 245 fits the context and history of the matter, and is in any
event the explanation accepted by the arbitrator after hearing evidence in the
arbitration. I see no reason to disturb this finding based on the respondents'
cryptic explanation in the answering affidavit. To the extent that this is a claim
for final relief and to be decided on the principles in Plascon-Evans Paints
Ltd v Van Riebeeck Paints (Pty) Ltd21 in my view the respondents' bald
contrary assertions can be rejected merely on the papers on the same legal
principles as set out in the section on 'Resolution of disputes of fact' below.
[83] I should add that I am mindful of the fact that the respondents suggest in the
answering affidavit that it was not necessary for Pro Fintech to operate as an
'extension' of Trade 245 because in fact Trade 245 did open a bank account
with Standard Bank on 17 July 2020. This issue was, however, dealt with by
the arbitrator and his finding was that Pro Fintech did indeed operate as an
the arbitrator and his finding was that Pro Fintech did indeed operate as an
21 Plascon-Evans Paints Ltdv Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634 E-F
25
'extension'. It is not thls Court's place in contempt of court proceedings to
overturn findings of the arbitrator which form the basis of the award and the
later order. They must, for the purposes of this judgement, be accepted as
correct, particularly where the arbitrator's award was reviewed in terms of the
Arbitration Act, and was not set aside but rather affirmed.
[84] Even if I were at liberty to do so I would in any event be hesitant to
reconsider these findings by the arbitrator based on the 'Plascon-Evans test'.
Whilst the assertion that Trade 245 did indeed have a bank account appears
unchallenged on these papers, it does not necessarily follow from this that Pro
Fintech could not have been - or remained - the 'conduit' for monies destined
for Bellacart, and ultimately for Justin.
[85] Lastly, I should add that the respondents' interpretation of the award cannot
hold water on accepted canons of construction such as the principle ut res
magis valeat quam pereat: paragraph (h) of the award expressly requires the
respondents to give an accounting of the conduct of the Trade 245 business
and the amounts payable to Bellacart. On the interpretation proffered by the
respondents, however, these directives are effectively nullified by the
exclusion the award mentions.22
Does the award require appointing an auditor prior to debatement and
(if necessary) vindication of Trade 245's rights?
[86] This interpretation issue is one facet of the respondents' prematurity
argument. The respondents submitted in response to questions from the court
that the parties were obliged to identify the auditor to perform the valuation,
22 Of' an accounting in respect of the amounts paid and payable by Red Pine to Pro Fintech, the income and
expenses of Pro Fintech and the whereabouts of profits and/or funds held by or on behalf of Pro Fintech.'
26
even if the valuation takes place at a later stage. They point to the fact that the
award states that the appointment must take place within 30 days.
[87] Based on this submission they further contend that the applicants' demand
that the IRBA refrain from appointing a valuer is itself contemptuous, thus
precluding the applicants from approaching this Court when they themselves
are in contempt. For this 'clean hands' argument they rely on Di Bona v Di
Bona and anothe,23 which is to the effect that a party may be prevented from
seeking an order for contempt until it has purged its own contempt.
[88] In assessing these submissions, the terms of the award should be considered.
In relevant part and in sequence they contemplate:
(a) Appointment of an independent auditor within 30 days after the award by
the IRBA.
(b) If any third party asserted a right to any goodwill in the Trade 245
business, the valuation was to be postponed until Trade 245 (the company)
had vindicated such rights or until Justin detennined that the valuation
should be undertaken without such vindication.
(c) Kurt was to pay Justin the value determined by the auditor for 50% of the
shares in the company within 30 days against transfer of the shares to him.
( d) Kurt and Trade 245 were to provide an accounting to Justin and Bellacart
pertaining to:
(i) the conduct of the Trade 245 business from inception; and
(ii) the amounts payable to Bellacart.
(e) Kurt, Trade 245. Justin and Bellacart were to debate the account.
23 Di Bona v Di Bona and another l 993 (2) SA 682 (C) at 688F - G. The applicants correctly point out that the
case explicitly makes the rule subject to a court's discretion - see Di Bona at 689B.
27
[89] In broad brush strokes, the above sequence thus contemplates the
appointment of an auditor to value the business first, and then various possible
decisions and vindication proceedings, whereafter the parties were to produce
and debate an account.
[90] However, on a businesslike interpretation, I do not believe that the
accounting and debatement was necessarily to follow the appointment of an
auditor and (if applicable) the vindication. The accounting obligation in (h)
(k) and the valuation process in ( d)-(g) are imposed as independent
obligations with no express sequencing between them. Furthermore, a
debatement and accounting in most cases will precede the involvement of an
auditor to conduct a valuation. The respondent's converse interpretation of
the award based on nothing more than the sequence of its paragraphs is not a
compelling reason to believe that such rigidity was intended or constitutes a
businesslike interpretation.
[91] Whilst, failing agreement between the parties, an auditor was required to be
appointed within 30 days after the date of the award by the IRBA, clearly the
award envisaged that the auditor's tasks could thereafter be held in abeyance
pending vindication proceedings. Likewise, the context indicates that the
accounting and debatement is probably to take place between the parties
themselves, prior to any intervention by the auditor. This too is the usual and
businesslike procedure: the debatement generally precedes the involvement
of a court or referee, allowing the parties · to narrow the issues before such
involvement. As Holmes JA observed in Doyle and Another v Fleet Motors
P.E. (Pty.) Ltd, 24 ordinarily the parties should first debate the account between
themselves, and only if they are unable to agree should they formulate a list
of disputed items and issues for determination by the court; the court should
24 Doyle and Another v Fleet Molars P.E. (Pty.) Ltd 1971 (3) SA 760 (A) at 762-76 3.
28
moreover not be bound to any rigid procedure, but should enjoy such measure
of flexibility as practical justice may require. In this case the same
considerations apply to the auditor and (overall) to the process, in my view.
[92] Seen in this light the opposition by the applicants to the immediate
appointment of an auditor is not significant and indeed understandable.
Certainly, I do not see in the applicants' interpreting the award this way,
which accords with the law and common sense, any wilful and mala fide
contempt such as to debar them relief in these proceedings.
[93] A further facet to the respondents' prematurity argument is that, after this
application was launched, bank statements were in fact produced. The
respondents say that the applicants were aware that bank statements were
being requested from Standard Bank but nonetheless proceeded with this
application anyway. They also mention difficulties they experienced
obtaining the bank statements, an issue which eventually had to be referred to
the relevant industry ombud.
[94] I do not believe that this belated production of bank statements makes any
substantial difference. It would be one thing if the bank statements could be
said to be a full accounting, in which case the matter might boil down to a
debate on costs, but for the reasons set out above, these statements give
insufficient information or insight relative to the Trade 245 business. They
thus cannot constitute proper or full compliance with the order.
RESOLUTION OF DISPUTES OF FACT, BREACH OF THE ORDER
AND SCOPE OF ITS OBLIGATIONS
[95] The respondents submit that:
'the applicants, no doubt aware of the factual disputes, in advancing the Contempt
Application in the Motion Court rely on conjecture and speculation in an effort to have the
29
above Honourable Court reject the respondents' clear demonstration of compliance with
the Order.'
[96] Referencing Plascon Evans25 without nuance they say that the relevant test
to be applied is that the application 'stands to be determined effectively in the
version of the respondents.'
[97) The first point to raise in this regard is, as I have mentioned, the version
presented by the respondents appears to be based on an incorrect
interpretation of the order. The interpretation ignores the fact that the award
expressly stated that Pro Fintech was a 'conduit ' for profits from Trade 245
(the business or the company) to be paid to Bellacart, and it was effectively
an 'extension' of the Trade 245 business. However, the respondents, relying
on their narrow interpretation, seek to focus only on transactions of Trade 245
(the company), and to exclude from this transactions pertaining to Trade 245
( the business) as well as its 'extension', Pro Fintech.
(98] There is therefore little that I can see in the way of a material dispute of fact
as to the breach of the order by the respondents . They have breached the order
by not providing a full accounting on the above basis. The dispute of fact, it
seems to me, relates to whether the approach adopted by the respondents is
wilful and mala fide, or only arises from a 'genuine albeit mistaken
interpretation of the order' .26
25 Supra.
26 See Fa/de NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at para 9.
Is the respondents' misinterpretation of the order 'genuine albeit
mistaken'?
30
[99] As held in Pheko and Others v Ekurhuleni City, 27 'when the first three
elements of the test for contempt have been established, mala tides and
'
wilfulness are presumed unless the contemnor is able to lead evidence
sufficient to create reasonable doubt as to their existence'. 28
[ 100] The applicants suggest, relying on Institute of Market Agents of South
Africa v City of Tshwane Metropolitan Municipality and Others29 and
Meadow Glen Home Owners Association and Others v Tshwane City
Metropolitan Municipality and Another,30 that it is not appropriate for a party
asserting compliance with an order to wait until the applicant comes to court
complaining of non-compliance: unless an approach has first been made to a
court on the issue, a defence based on the interpretation of the order cannot
stand.
[ I 0 1] I do not agree that, where there is a debate on the interpretation of an order,
a party who asserts compliance must, as a necessary precondition for raising
its interpretation as a defence, first approach a court for guidance (if that is
what the submission amounts to). Nor in my view do the cited authorities
establish such a proposition. They establish merely that parties must make
serious good faith endeavours to comply with an order and this may
21 Pheko and Others v Ekurhuleni City 2015 (5) SA 600 (CC) at para 34.
28 At para 36.
29 Institute of Market Agents of South Africa v City ofTshwane Metropolitan Municipality and Others
2025 IDR 3797 (GP)
30 Meadow Glen Home Owners Association and Others v Tshwane City Metropolitan Municipality and Another
2015 (2) SA 413 (SCA).
31
comprehend returning to court seeking relaxation of the order's terms.31
Naturally, the failure to approach a court may in certain circumstances be
relevant in ascertaining whether the breach of the court order is based on a
genuinely mistaken interpretation and therefore not wilful and mala fide.
However, of course, courts are not advice bureaux,32 and it would be
inappropriate for such an approach to be a prerequisite for the defence in all
instances. Nor do I think that the failure by the respondents to approach a
court for clarification or relaxation of the order in this instance points to
wilfulness and mala tides on their part.
[ 102] However, the matter certainly does not end there. The applicants rightly
point to other events which preceded this application as indicative of the
respondents' mala tides and wilful disobedience. Firstly, in the urgent
proceedings which preceded the arbitration, Kurt confirmed that he was
responsible for running the Trade 245 business; he did not rely on the fact that
Trade 245 had never traded and was not possessed of any assets. Indeed, the
applicants point out that in those proceedings Kurt stated that it was 'true that
the Trade 245 business was met with success'.
[ 103] Kurt's response in his answering affidavit is that the 'Trade 245 business'
to which he made reference was that conducted by Red Pine, not by Trade
245 (the company). Red Pine, says Kurt, was the owner of the Trade 245
business. But this was not accepted by the arbitrator; quite the contrary.
31 See Institute of Market Agents of South Africa v City of Tshwane Metropolitan Municipality and Others
2025 JDR 3797 (GP) paras 123 and 124.
32 'Courts of Law exist for the settlement of concrete controversies and actual infringements ofrights , not to
pronounce upon abstract questions, or to advise upon differing contentions, however important' • Geldenhuys
and Neethling v Beuthin 1918 AD 426 at 441.
32
[ I 04] The answering affidavit further suggests that 'the award, properly
interpreted, furthermore, fails to distinguish between the 'Trade 245 business'
and Trade 245 (Pty) Ltd.'
[ I 05] It is in the first instance difficult to conceive how the award can be 'properly
interpreted' to result in such a failure. But it is in any event plain that this
suggestion is not correct: the arbitrator was alive to this distinction, and in fact
at pains to carefully draw it. In paragraph 16.1 of his award, he defines 'the
Trade 245 business' as one pursuant to the agreement between Justin and Kurt
to set up a CFD brokerage business, which would include the trademark
'Trade 245', as well as the Trade 245 trading platform, an 'essential part of
the business'. Later, he states that the parties had agreed that the Trade 245
business would be owned by the Trade 245 company, which he defines in
paragraph 16.8 simply as 'Trade 245 '.
[106] The arbitrator's finding that 'Justin caused the assets, staff and client base
of JP Markets to be transferred to Trade 245' 33 is also relevant in this context,
and cannot be ignored when assessing whether there is compliance with the
order.
( l 07] Of further prime significance in assessing whether the breach of the order
was wilful or mala fide is the initial correspondence exchanged between the
parties which culminated in this application.
[108] Against the background of the arbitrator's findings and the ensuing order,
this correspondence is striking. On 5 February 2025, Justin's attorneys
requested Kurt's attorneys to furnish bank statements, monthly management
accounts, the general ledger and daily reports in respect of the Trade 245
business from inception, together with the annual financial statements of
33 IN the context of the award thjs is a reference to the company.
33
Trade 245. On 20 February 2025 Kurt's attorneys acknowledged that request,
stating:
'Your clients have requested various documentation relating to Trade 245 from inception
to date, including bank statements, monthly management accounts, financial statements
and daily reports - which you will appreciate is a voluminous and time-consuming
exercise. Kurt and Trade 245 (Pty) Ltd are collecting and collating this documentation.'
[ l 09] A further letter dated 28 February 2025 repeated that the documentation
was still in the process of being collated, with Kurt's attorneys indicating that
they expected to be in a position to revert 'early next week.'
[110] Kurt's correspondence thus on the face of it acknowledged that voluminous
documentation pertaining to Trade 245 was in existence and was in the
process of being collected and collated.
[111] What followed was a remarkable volte-face. On 5 March 2025, a matter of
days after Kurt's attorneys had undertaken to produce the documentation
'early next week' , a letter was sent enclosing an affidavit by Kurt in his
capacity as a director of Trade 245, asserting that the company held no active
bank accounts, had no assets, and had not traded since incorporation. This
position was later repeated in paragraph 43.3 of the answering affidavit, in
which Kurt stated that 'Trade 245 (Pty) Ltd never traded and never generated
any revenue.'
[112] The contradiction between these two positions is stark and irreconcilable.
In the event only seven Standard Bank statements were produced pertaining
to an account of the company that had been closed.
[113] Kurt's explanation for the characterisation of the documentation as
'voluminous ' ( or lack thereof) is to be found in paragraph 44 of his answering
affidavit. Kurt admits the exchange of correspondence and its content, but
implies that what he had in mind when his attorneys described a 'voluminous
34
and time-consuming' exercise of collection and collation was nothing more
than the anticipated difficulty of obtaining bank statements from Standard
Bank.
[I 14] He avers that at the time of receiving the request on 5 February 2025 he
knew 'that it would be necessary to engage with Standard Bank to secure bank
statements in respect of the Trade 245 (Pty) Ltd bank account', and that he
'anticipated, at that stage, that Standard Bank would take some time to ready
whatever documents were necessary.' He adds that he 'was uncertain as to the
structure and format that would be used by Standard Bank for this purpose,'
and that he anticipated that bank statements for the last five years would be
forthcoming (though the account reflects it was closed on 19 January 2021).
He further avers that by 28 February 2025 he 'had collated whatever
documentation [he] had in [his] and Trade 245 (Pty) Ltd's possession but
could not do so in regard to bank statements.' He concludes by rejecting 'the
innuendo that there was any untruthfulness in what was communicated to the
applicants concerning the provision of accounting requested.'
[115] This explanation is, as I have said, difficult to reconcile with the language
used in the prior correspondence. If the documentation had been confined to
the awaited bank statements, the letters of 20 and 28 February 2025 would
surely not have described a process of collection and collation so substantial
that it was still incomplete more than a week after it had begun. Those letters
would instead have recorded that there was Jittle documentation to speak of,
save for certain bank statements which had been requested.
[116] An issue which demonstrates this starkly revolves around the so-called
'daily reports'. It must again be recalled that, in Kurt's letter of 20 February
2025, he explained his delay by saying that he was involved in the 'time
consuming' exercise of collating the requested documents relating to Trade
consuming' exercise of collating the requested documents relating to Trade
245 from inception, including, amongst other things, 'daily reports'.
35
[ 117) It is not disputed that daily reports are generated to record trades placed by
Trade 245 customers on a given day on its platform. The applicants attach one
such daily report in their possession relating to trading activity on 30 August
2021. (The logo at the top identifies it as a 'Trade 245' daily report; the name
Red Pine appears nowhere on it).
[ 118] The existence of this document demonstrates, absent any proper
explanation, that daily reports of this nature exist and were generated in the
ordinary course of the Trade 245 business. The suggestion by Kurt that the
exclusion in the award exonerates him from providing an accounting because
these reports were generated by Trade 245 (the business) rather than Trade
245 (the company) is to my mind misconceived, and probably deliberately so.
Likewise, the insinuation that he (Kurt) need not account for the Trade 245
business because it is the property of Red Pine is not sufficiently explained
either in terms of his access to this information or his relationship with Red
Pine; nor is it borne out by the findings and ruling in the arbitration.
[119] I should also in this context mention that a 'Domain Licence Agreement'
concluded between 'Red Pine Capital (Pty) Ltd and Trade 245 (Pty) Ltd' 34
records Trade 245 (the company) as the legal owner of the domain on which
the trading activities of the Trade 245 business were conducted, and
contemplates a monthly licence fee of R20 000 payable to Trade 245. The
response to this issue in the respondents' responding affidavit to the
applicant's supplementary replying affidavit is that the licence agreement was
never implemented and Trade 245 (the company) never invoiced Red Pine in
terms thereof. But the agreement created obligations and one would expect
some account to be given thereof, even if no invoices were ever rendered. A
34 This came to light during a due diligence investigation and which was attached by the applicants in a further
replying affidavit.
36
proper accounting of thjg issue would at least have produced this agreement
even under an explanation that it was never implemented.
[ 120] The contention that Trade 245 (the company) never traded and has no assets
is, in any event, opportunistic and largely at odds with Kurt's previous stance
in the review and arbitration in which he strenuously opposed any order
declaring that Justin was the owner of 50% of the issued shares in Trade 245
(the company). That belated emphasis made its first appearance only in March
2025, in circumstances where it had manifestly become convenient.
[121] The dictum ofHeher JA in Wightman with reference to the Plascon-Evans
test, with good reason now well-worn, bears full repetition in relation to the
above:
A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that
the party who purports to raise the dispute has in his affidavit seriously and unambiguously
addressed the fact said to be disputed. There will of course be instances where a bare denial
meets the requirement because there is no other way open to the disputing party and
nothing more can therefore be expected of him. But even that may not be sufficient if the
fact averred lies purely within the knowledge of the averring party and no basis is laid for
disputing the veracity or accuracy of the averment. When the facts averred are such that
the disputing party must necessarily possess knowledge of them and be able to provide an
answer ( or countervailing evidence) if they be not true or accurate but, instead of doing so,
rests his case on a bare or ambiguous denial the court will generally have difficulty in
finding that the test is satisfied. I say 'generally' because factual avennents seldom stand
apart from a broader matrix of circumstance!i all of which needs to be borne in mind when
arriving at a decision. A litigant may not necessarily recognise or understand the nuances
arriving at a decision. A litigant may not necessarily recognise or understand the nuances
of a bare or general denial as against a real attempt to grapple with all relevant factual
allegations made by the other party. But when he signs the answering affidavit, he commits
himself to its contents, inadequate as they may be, and will only in exceptional
circumstances be permitted to disavow them. There is thus a serious duty imposed upon a
legal adviser who settles an answering affidavit to ascertain and engage with facts which
his client disputes and to reflect such disputes fuJJy and accurately in the answering
37
affidavit. If that does not happen it should come as no surprise that the c-0urt takes a robust
view of the matter.'35
[122] In my view the respondents in the answering affidavit did not deal squarely
with the issue their attorney's volte face. They did not properly explain why
the 'voluminous' documentation turned out not to be so. This was
information, to borrow from Wightman, 'that they must necessarily possess
knowledge of. Yet the explanation, such as it is, by no means 'seriously and
unambiguously' deals with this issue.
[123] In addition to their failure to explain the voluminous documentation which
never eventually made its appearance, the respondents further did not
adequately and unambiguously explain why, having reluctantly accepted the
terms of the award and order as binding, they suddenly relied on the fact that
Trade 245 (the company) had never traded and possessed no assets, when:
(a) As mentioned, they opposed any declaration that Justin was the beneficial
holder of 50% of the shares in the company;
(b) They pleaded in the arbitration that 'in Trade 245 (Pty) Limited, Kurt was
to oversee all aspects of the business operations of the Trade 245 business
owned and held by Red Pine ... ';36 and
(c) The arbitrator found that Trade 245 (the company), after the brothers'
falling out, continued to trade and to make profits.37
35 Wightman tla JW Construction v Head/our (Pty)Ltd and Another 2008 (3) SA 371 (SCA) at para 13.
36 The emphasis is mine. I should mention in this regard that I agree with the sentiments of Adams AJ in the
judgement in the responden ts' review application to the effect that the respondents cannot without explanation
disavow their own pleadings when they have become inconvenient or disconsonant with their new approach;
this is especially so after evidence was led (or not led) on the relevant issues at the arbitration.
37 Para 67 of the award states 'it is not in issue that Trade 245 thereafter continued to trade and continue to make
profits . The allegation to the contrary made in the statement of defence was not established on the evidence' .
The award defines 'Trade 245' as the company, not the business.
38
[ 124] In HA.E v H. S. E, 38 for instance, the respondent was held in contempt where
information pertaining to transactions recorded in financial statements lay
within his knowledge but he failed to take the court into his confidence to
explain them. In addition, the information in the financial statements stood in
direct contrast with the respondent's pleaded defence, which the court held
was 'clearly untenable and is rejected on the papers'. The present matter is
analogous in the .sense that the explanation around the Red Pine - Trade 245
relationship would need to be very detailed and persuasive to displace the
arbitrator's findings, especially when it is common cause that no evidence was
Jed at the arbitration on critical issues pleaded by the respondents. There is no
explanation for this omission.
[125] I am therefore inclined to 'take a robust view of the matter' as Wightman
enjoins: the radically changed approach which resulted in a severely
minimalist accounting has not been sufficiently explained, and speaks to the
likelihood that a decision was made to render the order nugatory by (1)
providing an accounting only in relation to Trade 245 (the company) and (2)
adopting the position that Trade 245 (the business) fell under the exclusive
aegis of Red Pine as well as the exclusion in the arbitrator's award and was
thus not subject to any accounting.
[126] Accordingly, not only was the respondents' interpretation of the order
incorrect for the reasons already stated, but the order in my view was
deliberately misinterpreted to find a way out of the respondents' bind. This
speaks to a wilful and mala fide breach of the order, and for this reason I find
the respondents to be in contempt of court.
38 HA. E v HS.E (3350/2022) (2024] ZAFSHC 114 (25 April 2024)
39
Liability for criminal contempt?
[127] Having reached the conclusion that the respondents have not displaced the
presumption of wilfulness and mala fides on the papers, and are therefore in
contempt, it is now necessary to reach some conclusion on the appropriate
remedy.
[128] I have already explained why I have rejected the denial of wilfulness and
mala tides by the respondents based on a robust approach to the papers.
However, the nature of the curious hybrid that is contempt proceedings in our
law now comes to the fore. Although I have found that it is unlikely that the
respondents innocently misinterpreted the order, I do not think this finding
can extend to one where such contumacy has been established beyond
reasonable doubt on these papers. It remains conceivable that the respondents
may establish, perhaps by oral evidence, that they genuinely believed that the
documentation from Standard Bank would be 'voluminous' or that they could
exclude the Trade 245 business from the accounting based on the carve-outs
in the arbitration award.
[129] In this regard the allowance for criminal contempt proceedings to be
brought on motion, and the resultant inevitable application of the Plascon
Evans test, is awk:ward.39 But this allowance is one which has nonetheless
been deemed necessary and appropriate to allow for the expeditious
vindication of a court's authority.40
39 In Fakie para 12 the procedure is described as a 'peculiar amalgam'.
40 As held in Pheko and Others v Ekurhuleni City 2015 (5) SA 600 (CC) at paras 34 and 35, a contemnor is 'not
an 'accused person' as envisioned bys 35 of the Constitution, and the protections afforded to a contemnor should
not supersede the capacity of a non-state litigant who may not have the administrative might to establish motive.
Therefore the presumption rightly exists that when the first three elements of the test for contempt have been
established, mala fides and wilfulness are presumed unless the contemnor is able to lead evidence sufficient to
create reasonable doubt as to their existence. Should the contemnor prove unsuccessful in discharging this
40
[130] In the present matter, I have found that the respondents' explanation for the
volte-face in their correspondence is inadequate and that their minimalist
approach to the accounting was probably deliberately designed to render the
order nugatory. That finding is made on a balance of probabilities and is
sufficient for a civil contempt finding. But the criminal standard requires
more: it must be established beyond reasonable doubt that no genuine, if
mistaken, belief in compliance existed. In motion proceedings that threshold
is a high one. Given the complexity of the award and the existence of an
arguable (though in my view ultimately incorrect) interpretation of its scope,
I cannot say that the respondents' professed belief in compliance is so
manifestly contrived that it can be excluded beyond reasonable doubt on these
papers alone.
[131] Thus, to my mind the imposition of criminal sanctions, even a suspended
sentence subject to the respondents purging their contempt, cannot now ensue
in this matter. However, this does not exclude civil remedies. In Matjhabeng
Local Municipality v Eskom Holdings Ltd and Others41 the Constitutional
Court held that:
'The relief in civil contempt proceedings can take a variety of forms other than criminal
sanctions, such as declaratory orders, mandamuses, and structural interdicts. All of these
remedies play an important part in the enforcement of court orders in civil contempt
proceedings. Their objective is to compel parties to comply with a court order.'
[132] Moreover, there should be provision made in the order for the applicants to
approach the court again on supplementary papers in the event that they
evidential burden, contempt will be established. However, where a court finds a recalcitrant litigant to be
possessed of malice on balance, civil contempt remed ies other than committal may still be employed. These
include any remedy that would ensure compliance, such as declaratory relief, a mandamus demanding the
contemnor behave in a particular manner, a fine and any further order that would have the effect of coercing
compliance.'
4 1 2018 (1) SA I (CC)
41
believe that the requisite criminal standard may be met either on those papers
or in a subsequent hearing of oral evidence. Persistence with the current
approach adopted by the respondents, or some variant, may by that stage be
susceptible to a crimi.nal contempt finding even on papers, but I obviously
express no view on that now.
THE APPROPRIATE ORDER
[133] In supplementary submissions the applicants dealt with questions posed
during the hearing as to whether paragraph 3 .2 of the notice of motion is
formulated with sufficient clarity. In this regard the applicants say that if this
Court finds that Kurt is in contempt, it has a discretion to fashion a remedy
appropriate to compel compliance, including an order that the respondents
behave 'in a particular manner to purge the contempt' .42
[134] To this end, the applicants attached to their supplementary submissions a
proposed draft order entailing provisions they say would conduce to the
purgation of contempt.
[135] The respondents in their turn contend that the applicants' proposed draft
order seeks impermissibly to alter the award to overcome its limitations as
they are perceived by the applicants. They say that the proposed order
'proclaims the applicants' true intentions, namely to secure an accounting not
only beyond the scope of the award but in fact expressly prohibited by the
award' , quoting the applicants' proposal with the following emphasis:
'3.2.2 All amounts paid to First or Second Respondents in relation to any activity fonning
part of the Trade 245 business;
3.2.3 The assets and liabilities of Trade 245 (Pty) Ltd from the date of its registration and
all transactions entered into by Trade 245 (Pty) Ltd including the sale, donation, lease,
42 Pheko and Others v Ekurhuleni City 2015 (5) SA 600 (CC) at para 37.
42
transfer or disposal by Trade 245 (Pty) Ltd of any of its assets, including but not limited
to the Trade 245 business and the Trade 245 domain name and associated goodwill, or any
rights associated therewith .'
[136] For the reasons already stated above it should be clear that I do not agree
that the above formulation does not accurately reflect the obligations which
the award imposes on the respondents. As I have said, the respondents'
interpretation of the scope of the award is in my view incorrect, particularly
as it relates to accounting for the Trade 245 business.
[137] It is further so that a court may issue a mandamus requiring the contemnor
to behave in a particular manner to ensure compliance. Nonetheless, there
remains a risk that endorsing the applicants' proposed order might, in ways
subtle or unforeseen, constitute a rewriting of, or gloss upon, the original
award. I therefore, for this reason only, and from an abundance of caution, do
not propose to adopt the applicants' draft order. In refraining from doing so,
however, I should not be seen to be accepting the respondents' contentions in
regard to it.
CONCLUSION
[138] In short, the respondents have failed to comply with their obligations under
the award, in particular the obligation to render a proper accounting. Their
interpretation of those obligations was incorrect, and the minimalist
accounting they produced was apparently the product of a designed
misinterpretation of the order which renders it largely nugatory. The
respondents did not displace the presumption of wilfulness and mala fides.
They are accordingly in contempt of court.
[l 39] The standard of proof applicable to criminal contempt has not, however,
been met on these papers, a result primarily of the fact that. But this court's
civil contempt jurisdiction is engaged. The appropriate relief is a mandamus
43
compelling compliance with the relevant section of the award, together with
a reservation to the applicants allowing them to approach this court on
supplemented papers in the event that they persist in seeking a criminal
contempt finding if the respondents remain in breach of their obligations.
[140] In these circumstances, because only the civil remedy is supportable at this
stage, it would be inappropriate to grant prayers 2 and 3 of PartB of the notice
of motion (pertaining to a guilty finding on the offence of contempt of court
and sentencing). Instead, I reformulate the relief as set out in the order below,
which compels compliance with the award in its own terms without glossing
or supplementing it. The only additions I have made, to make it clear that the
accounting provided to date is inadequate, is that I have stated that the
respondents must 'comply fully' with paragraph (h) of the award, and the
word 'proper' has also been inserted to qualify the word 'accounting'. I have
also confined the contempt finding to paragraph (h) of the award as I believe
that the formulation in the notice of motion, encompassing paragraphs (h) to
(k) of the award, is too broad: there is yet no contempt in relation to
debatement, payment and so on.
COSTS
[ 141] The respondents have been found to be in contempt and should bear the
costs. The matter involved argument on a number of issues of some
complexity. Two counsel were employed by the applicants and the
respondents, and the costs of two counsel should be included where two
counsel were employed. In my view a 'Scale C' costs order is appropriate.
ORDER
[142] I accordingly make the following order:
44
a. It is declared that the First and Second Respondents are in wilful
disobedience of the provisions of paragraph (h) of the arbitration
award of Sholto-Douglas SC handed down on 8 December 2023
('the Award'), which was made an order of court by Adams AJ
under case number 1247/2024 on 30 January 2025 ('the Court
Order').
b. The First and Second Respondents are directed, within 30 days of
the date of this order, to comply fully with their obligations under
paragraph (h) of the Award (unless paragraph (1) thereof applies) by
rendering to the First and Second Applicants a proper accounting
(fully vouched with all supporting documentation, including bank
statements) pertaining to:
1. The conduct of the Trade 245 business from inception; and
11. All amounts payable to the Second Applicant (Bellacart
Marketing (Pty) Ltd).
c. In the event that the First and/or Second Respondent fails to comply
with paragraph b above, the applicants are granted leave to approach
this Court on the same papers, duly supplemented as may be
necessary, for:
1. A finding of criminal contempt of court against them; and/or
11. Such further relief as may be appropriate to compel
compliance, including committal to imprisonment.
d. The First and Second Respondents are directed, jointly and
severally, the one paying the other to be absolved, to pay the
Applicants' costs of Part A and Part B of this application on the scale
45
as between party and party, including the costs of two counsel where
so employed, on Scale C.
Appearances:
For applicants:
Instructed by:
M.GREIG
ACTING JUDGE OF THE HIGH COURT
Adv Oosthuizen SC and Adv Cutler
Kramer Viljoen Norris Inc, C de Jager
For respondents: Adv N Konstantinides SC and Adv D L Williams
Instructed by: Malherbe Rigg and Ranwell Attorneys, Mr J Stuart