IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT (LEAVE TO APPEAL)
Case no: 12598/2024
In the matter between:
STEPHEN MALCOLM GORE N.O. First Applicant
DONOVAN THEODORE MAJIEDT N.O. Second Applicant
NONKULULEKO LAWRENCIA TWALA N.O. Third Applicant
NICHOLAS TIMKOE N.O. Fourth Applicant
GREG MICHAEL TIMKOE N.O. Fifth Applicant
[In their capacities as the joint provisional liquidators
of Reeco Holdings (Proprietary) Limited (in liquidation)]
and
BOTLIERSKOP PRIVATE GAME RESERVE
(PROPRIETARY) LTD First Respondent
THOMAS ARNOLDUS NEETHLING Second Respondent
GEDEELTE 68 ROOIPOORT (PROPRIETARY) LTD Third
Respondent
ORDER
1 The applicants’ application for leave to appeal is dismissed with costs, such
costs to include the cost of Senior Counsel payable on Scale C and Junior
Counsel payable on Scale B.
JUDGMENT
DAVIS AJ:
[1] The applicants seek leave to appeal against th at part of my judgment
delivered on 26 February 2026, in terms whereof I dismissed with costs the
applicants’ claim for an order directing the respondents to pay to the
applicants, in their capacities as liquidators of Reeco Holdings (Proprietary)
Limited (in liquidation) (‘Reeco’) the sum of R 9.2 million.1
[2] The applicants have advanced numerous grounds in support of the
application for leave to appeal, most of which are a repetition of the
arguments advanced at the hearing of the matter, which I have already
considered and rejected for the reasons set out in my judgment. I have
nothing to add thereto, and do not intend to canvass the arguments again.
1 The applicants seek to appeal against the orders in paragraphs 62.6 and 62.8 of the judgment.
Suffice it to say that I am not persuaded that an appellate court would reach
a different conclusion.
[3] There is, however, one aspect raised in oral argument on behalf of the
applicants, which I need to address.
[4] Mr Woodland argued that I had erred in giving effect to an unlawful
transaction, being the fictitious consultancy agreement entered into between
Reeco and Botlierskop, the purpose whereof was to evade taxation. He
contended that, because the purpose of the agreement was to evade tax, the
sham consultancy agreement was void, and the Court should not have given
effect to an unlawful agreement. Therefore, so Mr Woodland contended, the
Court should have ordered the respondents to repay the R 9.2 million paid in
terms of the sham consultancy agreement to the liquidators of Reeco , which
was an illegal agreement.
[5] Now it is trite that an agreement which is for a purpose which is unlawful,
immoral or against public policy is void and unenforceable. I accept that the
fictitious consultancy agreement, which formed part of a stratagem aimed at
evading taxation, was unlawful and void. But non constat that the applicants
are entitled, without more, to restitution of performance merely because the
agreement is void.
[6] The law provides a specific remedy where performance has been made in
terms of an illegal contract, as is the case here where Reeco made a payment
to Botlierskop on the strength of the sham consultancy agreement. A party
who has performed in terms of an illegal agreement may reclaim the
performance with an enrichment action, the condictio ob turpem vel iniustam
causam. The requirements for this action must be specifically pleaded and
proved.
[7] The difficulty for the applicants is that they based their claim exclusively on
the condictio furtiva, and it was on this basis that the case was decided. I am
not persuaded that my findings with regard to the condictio furtiva were
wrong.
[8] The applicants did not claim restitution of a payment made in terms of an
illegal agreement. The issue of enrichment, a factual question which is an
essential requirement for the condictio ob turpem vel iniustam causam , has
not been canvassed in the papers. Had the applicants put up a case in terms
of the condictio ob turpem vel iniustam causam , the respondents would
likely have mounted a defence in terms of the par delictum rule (which
would no doubt have spawned a debate about whether or not the par
delictum rule should be relaxed in the specific circumstances).
[9] Since these issues have not been pleaded and ventilated in the papers, I am
of the view that an appellate court could not , and would not, entertain the
argument now sought to be advanced on behalf of the applicants, which
involves a change of tack.
[10] For these reasons I am of the view that the proposed appeal would have no
prospects of success, and the application for leave to appeal must therefore
be refused.
[11] I am also of the view that the proposed appeal does not raise any important
legal issues which warrant the attention of an appellate court. The
application for leave to appeal cannot succeed on that ground.
[12] I therefore make the following order:
11.1 The applicants’ application for leave to appeal is dismissed with
costs, such costs to include the cost of Senior Counsel payable on
Scale C and Junior Counsel payable on Scale B.
_____________________________
D M DAVIS
ACTING HIGH COURT JUDGE
Appearances:
For the applicants: G Woodland SC
M Harrington
Instructed by Gillan & Veldhuizen Inc
Mr P J Veldhuizen / Ms M Van Heerden
For the respondents: M P van der Merwe SC
B Prinsloo
Instructed by Van der Merwe Attorneys
Mr P Van der Merwe