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IN THE COMPANIES TRIBUNAL OF THE REPUBLIC
OF SOUTH AFRICA
Case No: CT02762ADJ2026
In t
he ex parte application of:
NEWGOLD ISSUER (RF) LIMITED APPLICANT
(2004/014119/06)
Presiding Member of the Companies Tribunal: MINAH TONG-MONGALO Date of
Decision: 26 June 2026
DECISION
A. INTRODUCTION
1. This is an ex parte application by NewGold Issuer (RF) Limited (the Applicant) in
terms of section 72(5) of the Companies Act 71 of 2008 (the Act), read with
regulation 142 of the Companies Regulations, 2011 (the Regulations), for exemption
from the requirement to appoint a social and ethics committee (SEC).
2. The Applicant seeks an exemption for five years, alternatively for such shorter period
as the Tribunal may determine. It relies principally on its character as a ring -fenced
special-purpose issuer, the fact that it has no employees, and the performance by Absa
Bank Limited of its accounting, risk-management and administrative functions.
3. The amended section 72(5)(a) contemplates publication of an intention to apply for
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exemption in the prescribed manner. No regulations presently prescribe the manner,
form, medium or period of that publication. Consistent with the Tribunal's approach
while that regulatory lacuna persists, this application is not refused for want of
publication. The application is determined on its substantive merits.
4. The decisive questions are whether the Applicant has established the formal-mechanism
ground in section 72(5)(b)(i), or whether it has shown under section 72(5)(b)(ii) that,
having regard to its structures, activities and the public interest, it is not reasonably
necessary to require it to have an SEC.
5. For the reasons that follow, neither ground is established. The Applicant is a listed
public company for purposes of regulation 43(1)(b); the papers identify no formal
substitute mechanism that substantially performs the SEC functions; and the evidence
does not justify the conclusion that an SEC is unnecessary in the public interest. The
application must therefore be refused, without prejudice to a properly supported fresh
application.
B. THE APPLICANT AND THE APPLICATION
6. The Applicant is a public company incorporated on 27 May 2004 under registration
number 2004/014119/06. That status is admitted in paragraph 4 of the supporting
affidavit and confirmed by the CIPC disclosure at pages 11-12 of the application pack.
Paragraph 6 of the affidavit states that the Applicant has six directors; the CIPC
disclosure identifies those directors and lists several of them as audit committee
members.
7. The authority for the application appears in paragraphs 2 and 3 of the supporting
affidavit. Although paragraph 2 refers to a board resolution dated 25 March 2026,
Annexure A is a board resolution dated 27 March 2026. Resolutions 1 and 2 of
Annexure A approve an application under section 72(5) and authorise any director to
sign and lodge Form CTR 142 and the supporting affidavit. Annexure A also ratifies
sign and lodge Form CTR 142 and the supporting affidavit. Annexure A also ratifies
prior steps taken to give effect to the resolutions. The date discrepancy should be
corrected in any fresh application, but it is not a substantive ground for refusal in this
decision. Form CTR 142 is dated 30 April 2026.
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8. The Applicant's business is described in paragraphs 7.1- 7.4 of the supporting affidavit.
Paragraph 7.1 states that it operates as a special -purpose exchange -traded fund that
issues listed and unlisted debt instruments and invests the proceeds in gold bullion,
platinum and palladium. Paragraph 7.2 states expressly that listed instruments are
issued on the JSE. Paragraphs 7.3 and 7.4 record that the Applicant enters into the
transaction documents, exercises rights and performs obligations under those
documents. The same business is reflected in clauses 1.2.3.1 and 1.2.3.2 of the
Memorandum of Incorporation (MOI).
9. Paragraphs 7.1 and 10.1 of the supporting affidavit state that Absa Bank Limited
performs accounting, risk- management, administration, and management functions.
Paragraph 10.2 says that the Applicant is not operational or trading in the ordinary
sense and that a servicer identifies the participating assets. The MOI, however,
identifies NewGold Managers Proprietary Limited as "Manco" in clause 1.2.17 and, in
clause 26.2, provides that the directors delegate day- to-day management to Manco.
The papers do not r econcile those descriptions or explain the governance
responsibilities of Absa, Manco, and the servicer.
10. Paragraph 9 of the supporting affidavit asserts that the Applicant is not a listed public
company for purposes of regulation 43(1)(b), notwithstanding the admission in
paragraph 7.2 that its instruments are listed on the JSE. Paragraph 9 also confines the
application to the grounds stated in paragraphs 10 and 11: the nature and extent of the
business, the absence of employees, and the asserted public-interest score below 500.
11. Paragraph 8 of the supporting affidavit says that the public-interest score was calculated
for the past two financial years, while paragraph 11 states that the score did not
exceed 500 in either year. The record contains only Annexure E for the year ended 31
exceed 500 in either year. The record contains only Annexure E for the year ended 31
March 2024. At page 71 of the application pack, Annexure E records turnover of R86
325 772, external liabilities of R26 063 429 340, and a final recalculated public -
interest score of 26 150. No corresponding calculation for a second financial year is
included.
12. The founding affidavit is internally inconsistent in several material respects. Paragraphs
4 and 7 describe the Applicant as a public company, and paragraphs 7.1 and 7.2 state
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that it operates an exchange- traded fund and issues instruments listed on the JSE,
whereas paragraph 9 concludes that it is not a listed public company. Paragraph 8 says
the public-interest score was calculated for two financial years and sets out only three
components of regulation 26(2), but the record supplies only a calculation for the year
ended 31 March 2024 and Annexure E includes the omitted beneficial -interest
component. Paragraph 11 states that the score did not exceed 500, whereas Annexure
E records a final recalculated score of 26 150. Paragraph 10.2 describes the Applicant
as not operational and as having only debt instruments in issue, whereas paragraphs
7.1-7.4 describe the issue of instruments, investment of proceeds, conclusion of
transaction documents, and the exercise of rights and performance of obligations.
Paragraph 10.1 attributes control and management to Absa Bank Limited, while MOI
clause 26.2 delegates day -to-day management to NewGold Managers Proprietary
Limited. These inconsistencies bear directly on regulatory status, the scale and nature
of the business, and the governance arrangements relied upon for exemption; they are
not peripheral matters.
C. ISSUES
13. The issues for determination are:
13.1 whether the Applicant has established that it falls within a category of
companies required to appoint a SEC;
13.2 if the statutory trigger has been established, whether the Applicant has made out
a case for exemption under section 72(5)(b)(i) or section 72(5)(b)(ii); and
13.3 the appropriate order.
D. STATUTORY FRAMEWORK AND APPROACH
14. Section 72(4) authorises the Minister to prescribe categories of companies that must
appoint an SEC. Regulation 43(1) applies to every state -owned company, every listed
public company, and any other company that scored above 500 public -interest points
in any two of the preceding five years.
15. The Act defines a listed company by reference to a public company whose securities
15. The Act defines a listed company by reference to a public company whose securities
have been admitted to listing on an exchange. The statutory concept of securities
includes shares and debentures. It is therefore not confined to listed equity.
16. Section 72(5)(b) permits the Tribunal to grant an exemption if it is satisfied either that a
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formal mechanism within the company's structures substantially performs the SEC
functions, or that it is not reasonably necessary in the public interest, having regard to
the nature and extent of the company's structures and activities, to require it to have an
SEC. Under section 72(6), an exemption may endure for five years or a shorter period
determined by the Tribunal.
17. Section 72(5) must be interpreted textually, contextually and purposively. In Natal Joint
Municipal Pension Fund v Endumeni Municipality
1, the Supreme Court of Appeal
treated language, context and purpose as the point of departure. Cool Ideas 1186 CC v
Hubbard and Another 2 confirms that statutory provisions must be interpreted
purposively and properly contextualised.
18. The words "may" and "satisfied" confirm that exemption is not automatic once an
application is filed. The Tribunal exercises a statutory discretion. That discretion must
remain within the power conferred, must be exercised for the purpose for which it was
conferred, and must satisfy legality and rationality. Pharmaceutical Manufacturers
Association of South Africa and Another: In re Ex parte President of the Republic of
South Africa and Others
3 and Affordable Medicines Trust and Others v Minister of
Health and Another4 support that principle.
19. Where legislation requires a decision -maker to be satisfied of a statutory criterion, the
requisite state of satisfaction must rest on reasonable grounds disclosed by the
evidence. A bare conclusion or characterisation by the Applicant is insufficient. The
present test therefore cannot be met by labels or conclusions unsupported by facts.
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1 2012 (4) SA 593 (SCA) para 18. The court said at para 18 C -D that “ The 'inevitable point of departure is the
language of the provision itself', [16] read in context and having regard to the purpose of the provision and the
background to the preparation and production of the document.”
2 2014 (4) SA 474 (CC) para 28 the court said:
2 2014 (4) SA 474 (CC) para 28 the court said:
“There are three important interrelated riders to this general principle, namely:
(a) that statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised; and
(c)all statutes must be construed consistently with the Constitution, A that is, where reasonably possible,
legislative provisions ought to be interpreted to preserve their constitutional validity. This proviso to the general
principle is closely related to the purposive approach referred to in (a).”
3 (2) SA 674 (CC) paras 85 and 90. At para 85 the court said that “Decisions must be rationally related to the
purpose for which the power was given, otherwise they are in effect arbitrary and inconsistent with this
requirement.” In para 90 it said that “[r] ationality in this sense is a minimum threshold requirement applicable to
the exercise of all public power by members of the executive and other functionaries. Action that fails to pass this
threshold is inconsistent with the requirements of our Constitution, and therefore unlawful.”
4 2006 (3) SA 247 (CC) para 49.
5 2008 (6) SA 129 (CC) paras 60-61.
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20. The Applicant must make out its case in its founding papers. Affidavits in motion
proceedings serve as both pleadings and evidence. The Tribunal cannot construct an
exemption case that the Applicant did not place before it.6
21. The Tribunal's power is also controlled by legality. It cannot enlarge its jurisdiction or
grant relief merely because a case appears administratively convenient. 7 The
Applicant must first establish that it falls within a category required by section 72(4),
read with regulation 43, to appoint an SEC. That requirement is the statutory gateway
to the exemption power.
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22. The Tribunal is a creature of statute and has no inherent power to dilute, supplement or
recast the statutory test.9
23. The reasonableness inquiry under section 72(5)(b)(ii) remains anchored in the statutory
words. Bato Star is used here only as general public -law guidance that reasonableness
is context-sensitive and depends on the nature of the decision, the relevant factors, the
reasons advanced and the impact of the decision.10
24. For completeness, regulation 43(1) identifies the categories of companies to which the
SEC requirement applies: every state -owned company, every listed public company,
and any other company that has, in any two of the previous five years, scored above
500 points under regulation 26(2).
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25. Regulation 26(2) requires every company to calculate its public interest score at the end
of each financial year. The score is calculated by adding: the average number of
employees during the financial year; one point for every R1 million, or portion
thereof, in third-party liability at financial year end; one point for every R1 million, or
portion thereof, in turnover during the financial year; and one point for every
individual known by the company to hold, directly or indirectly, a beneficial interest
6 2009 (2) SA 277 (SCA) para 26.
7 Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) para 49; see also
Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others
1999 (1) SA 374 (CC) paras 56–58.
8 Companies Act 71 of 2008 s 72(4)– (5); Companies Regulations, 2011 reg 43(1)(c).
9 [2013] ZACC 50; 2014 (2) SA 480 (CC) para 38.
10 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC)
paras 44-48.
11 Companies Regulations, 2011 reg 43(1)(a)-(c).
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in its issued securities.12
26. Regulation 43(5) gives content to the SEC’s statutory function. It is not a ceremonial
governance structure. It monitors the company’s standing and activities in relation to
social and economic development, good corporate citizenship, the environment, health
and public safety, consumer relationships, and labour and employment matters; it
draws matters within its mandate to the board; and it reports to shareholders.
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27. Where a party seeks relief on motion, the case must be made out in the founding papers.
That principle is especially important in an ex parte application, where there is no
respondent to test the allegations and the Tribunal must itself ensure that the statutory
requirements are met.
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28. The Tribunal has previously cautioned that a company relying on internal structures or
mechanisms must provide facts and evidence identifying those structures and
explaining what they actually do. In Ex parte The San Lameer Master Homeowners
Association15, the Tribunal was not prepared simply to rely on a deponent's word
where the existence and functions of the alleged committees were not adequately
demonstrated. That reasoning is relevant here, but the present matter is even narrower:
the Applicant does not expressly rely on section 72(5)(b)(i), and no board committee,
parent-company SEC, delegated governance forum, charter or terms of reference is
identified. The record therefore contains no evidential basis for finding that a formal
mechanism substantially performs the SEC functions.
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29. Those Tribunal decisions also show that exemptions are fact -specific. Where
exemptions have been granted to private or special -purpose entities, the papers
ordinarily established the applicable regulation 43 trigger and described the applicant's
activities and stakeholder footprint sufficiently to permit the public -interest
assessment.17
12 Companies Regulations, 2011 reg 26(2)(a)-(d).
13 Companies Regulations, 2011 reg 43(5)(a)-(c).
13 Companies Regulations, 2011 reg 43(5)(a)-(c).
14 Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others
1999 (2) SA 279 (T) at 323F -324C and 324F -G; Minister of Land Affairs and Agriculture and Others v D & F
Wevell Trust and Others 2008 (2) SA 184 (SCA) para 43; National Director of Public Prosecutions v Zuma 2009
(2) SA 277 (SCA) para 26; Schlesinger v Schlesinger 1979 (4) SA 342 (W) at 348E-350C.
15 Ex parte The San Lameer Master Homeowners Association CT01717ADJ2024, Companies Tribunal, 29 April
2024, paras 16-19.
16Companies Act 71 of 2008 s 72(5); Companies Regulations, 2011 reg 43(5).
17 Ex parte Absa Home Loans (RF) (Pty) Ltd CT02488/ADJ2025, Companies Tribunal, 31 January 2026, paras 8-
11; Ex parte South African Mortgage Fund 1 (RF) (Pty) Ltd CT01725ADJ2024, Companies Tribunal, 29 April
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E. THE PUBLICATION REQUIREMENT
30. Section 72(5)(a), as amended, refers to publication of an intention to lodge an
exemption application "in the prescribed manner". The statutory wording therefore
contemplates subordinate legislation that specifies how the obligation is to be
performed.
31. No prescribed notice content, medium, recipients, publication period or form of proof is
presently available for implementation. The Tribunal cannot create those procedural
requirements through adjudication, because its powers are confined by the Act and the
principle of legality.
32. The Tribunal accordingly makes no adverse finding against the Applicant for not
producing proof of publication. This does not disregard section 72(5)(a) or
predetermine how it will operate once a prescribed mechanism exists. It means only
that non-publication forms no part of the reasons for refusal in this matter.
F. ANALYSIS AND FINDINGS
The Applicant is a listed public company
33. The Applicant is indisputably a public company: paragraph 4 of the supporting affidavit
says so, the CIPC disclosure classifies it as a public company, and clause 3 of the
MOI does the same. Paragraphs 7.1 and 7.2 of the affidavit state that it issues listed
debt instruments and that the listed instruments are issued on the JSE. Clause 1.2.3.1
of the MOI similarly describes the business as establishing and operating exchange-
traded funds listed on the JSE or another exchange.
34. Clause 1.2.7 of the MOI defines "Debenture" as a debt instrument issued by the
Applicant whose value tracks the price of a hedge commodity. Clause 1.2.9 defines
the holders of those instruments as "Debenture Holders"; clauses 1.2.15 and 1.2.16
define the JSE and the Listing Requirements; and clauses 9.1, 9.2 and 9.5 regulate the
issue and listing of the Applicant's securities. On the Applicant's own constitutional
and evidential record, the listed debt instruments referred to in paragraphs 7.1 and 7.2
of the affidavit are debentures.
of the affidavit are debentures.
2024, paras 2 and 4; Ex parte JT Ross (Pty) Ltd CT01960ADJ2024, Companies Tribunal, 14 October 2024, paras 10
and 14-15.
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35. The statutory definition of "securities" includes debentures. The definition of a listed
company does not say "a public company whose shares are listed"; it refers to a public
company whose securities are listed. Paragraph 9 of the supporting affidavit therefore
draws a distinction between a debt listing and an equity listing that is not supported by
the text of the Act.
36. Applying those definitions, regulation 43(1)(b) applies to the Applicant. The facts
admitted in affidavit paragraphs 4, 7.1 and 7.2, read with MOI clauses 1.2.7, 3 and
9.5, establish that it is a public company whose debenture securities are listed on an
exchange. It is consequently required to appoint an SEC unless exempted by the
Tribunal.
37. That conclusion does not depend on the allegation in affidavit paragraph 11 that the
Applicant's public-interest score was below 500. Regulation 43(1)(b) and regulation
43(1)(c) are separate triggers. The score remains relevant, however, to the nature and
scale of the Applicant's activities and to whether the public -interest exemption in
section 72(5)(b)(ii) has been proved.
38. The legal conclusion in affidavit paragraph 9 is therefore incorrect on the Applicant's
own facts. More importantly for the exemption inquiry, paragraph 9 caused the
founding case to understate the public character of the Applicant's business and to
treat the application as if it concerned only a narrow, employee -less special-purpose
vehicle, rather than a public issuer of JSE-listed debentures.
No formal substitute mechanism is established
39. Section 72(5)(b)(i) requires evidence of a formal mechanism within the company's
structures that substantially performs the functions of an SEC. The requirement is not
met merely because accounting, administration or asset -servicing functions are
performed by an external institution.
40. The Applicant does not plead the formal -mechanism ground. Paragraph 9 of the
40. The Applicant does not plead the formal -mechanism ground. Paragraph 9 of the
supporting affidavit states expressly that the application is made solely on the basis of
paragraphs 10 and 11. Neither paragraph 10 nor paragraph 11 identifies a board
committee, a parent -company SEC, a formally delegated governance forum or any
other structure with a mandate corresponding to the SEC functions.
41. Paragraph 10.1 contains only the statement that the Applicant is controlled, serviced,
administered and managed by Absa Bank Limited and has no employees. Paragraph
10
7.1 refers more narrowly to Absa's accounting, risk- management and administrative
role. Clause 26.2 of the MOI, by contrast, delegates day- to-day management to
Manco. No service agreement, delegation, terms of reference, composition, meeting
record, annual work plan or reporting line is placed before the Tribunal to show that
Absa, Manco or the servicer performs the SEC mandate.
42. The CIPC disclosure at pages 11 -12 identifies audit -committee participation, and MOI
clauses 19.5.1- 19.5.9 prescribe financial -reporting, audit and internal -control
functions for the audit committee. Those functions are materially different from the
social, ethical, environmental and stakeholder functions in MOI clause 38.3. The
existence of an audit committee therefore does not, without evidence of an expanded
and formally conferred mandate, establish substantial performance of the SEC
functions.
43. Clause 38.1 of the MOI requires the board to appoint an SEC unless the Applicant is
covered by another company's qualifying SEC or has obtained a statutory exemption.
Clause 27.1 permits the directors to appoint board committees and delegate authority
to them. The record contains no resolution, charter or terms of reference showing that
another company's SEC, or any committee established under clause 27.1, performs
clause 38 functions for this Applicant.
44. The formal-mechanism ground in section 72(5)(b)(i) is therefore not established on the
case pleaded in affidavit paragraphs 9-11 or on the governance documents supplied.
The public-interest ground is not established
45. Paragraph 12 of the supporting affidavit states that it is "therefore" not necessary in the
public interest for the Applicant to appoint an SEC. The word "therefore" shows that
the conclusion is derived from paragraphs 10 and 11. The Tribunal must accordingly
examine whether the facts in those paragraphs are sufficient, accurate, and complete
enough to satisfy section 72(5)(b)(ii).
enough to satisfy section 72(5)(b)(ii).
46. The absence of employees in affidavit paragraph 10.1 addresses only the labour -and-
employment component in MOI clause 38.3.1.5. The SEC mandate also includes
social and economic development and anti-corruption standards under clause 38.3.1.1;
good corporate citizenship under clause 38.3.1.2; environmental, health and public -
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safety matters under clause 38.3.1.3; consumer relationships under clause 38.3.1.4;
escalation of material matters to the board under clause 38.3.2; and reporting to
shareholders at the annual general meeting under clause 38.3.3.
47. Paragraph 10.1 therefore proves, at most, that one category of the SEC's work may be
limited. It does not address the remaining functions in MOI clauses 38.3.1.1- 38.3.1.4,
38.3.2 and 38.3.3. Nor does it explain how the Applicant monitors anti -corruption
standards, corporate citizenship, environmental and public -safety implications,
stakeholder relationships, or escalation and reporting of material concerns.
48. Paragraph 10.2 describes the Applicant as not operational and as having "only" debt
instruments in issue. That characterisation is incomplete when read with paragraphs
7.1-7.4: the Applicant issues listed and unlisted instruments, receives and invests their
proceeds in gold bullion, platinum and palladium, enters into transaction documents,
acquires participating assets, enforces rights and performs obligations. MOI clauses
1.2.3.1 and 1.2.3.2 likewise describe an active listed -fund and commodity -hedging
business. Administration by a servicer does not make those activities legally or
economically insignificant.
49. The objective scale of the Applicant's financial exposure appears from Annexure E at
page 71. It records external liabilities of R26 063 429 340 and a final recalculated
public-interest score of 26 150 for the year ended 31 March 2024. Those figures
demonstrate substantial creditor exposure. The affidavit's description of listed and
unlisted debt instruments held by investors separately confirms an investor and
market-facing dimension. Both are directly relevant to the statutory enquiry into the
nature and extent of the Applicant's activities and the public interest.
50. Affidavit paragraph 11 states under oath that the score did not exceed 500 in the last
50. Affidavit paragraph 11 states under oath that the score did not exceed 500 in the last
two financial years. That statement is irreconcilable with Annexure E. The difference
is not marginal: the annexure records a score more than fifty times the 500 -point
threshold. The founding affidavit gives no explanation for the contradiction.
51. The evidential deficiency is compounded in two respects. First, paragraph 8 says the
calculation covers the past two financial years, but only the calculation for the year
ended 31 March 2024 is produced. Secondly, paragraphs 8.1- 8.3 summarise only the
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employee, third- party-liability and turnover components of regulation 26(2), while
Annexure E itself records the additional component concerning individuals known to
hold a beneficial interest in the company's issued securities. The Tribunal is not given
a complete and reconciled account of the score.
52. The public-interest score is not itself the exemption test, but it is an objective legislative
indicator of public significance. Because paragraph 12 expressly derives its
conclusion from paragraphs 10 and 11, the contradiction between paragraph 11 and
Annexure E removes a central factual premise of the application. A conclusion framed
in the language of the statute cannot substitute for the facts required to support it.
53. The governance evidence is also incomplete. Affidavit paragraph 10.1 attributes control
and management to Absa, while MOI clause 26.2 delegates day- to-day management
to Manco. MOI clause 19.5 defines the audit committee's financial -control mandate,
clause 27.1 permits additional board committees, and clause 38.3 defines the SEC
mandate. The papers do not reconcile the roles of Absa and Manco or map any
existing governance body, function by function, against clause 38.3.
54. In particular, there is no evidence of a reporting and escalation system satisfying MOI
clauses 38.3.2 and 38.3.3, which require material matters within the SEC mandate to
be brought to the board and reported to shareholders at the annual general meeting.
The Tribunal cannot infer those arrangements from the bare statements in affidavit
paragraphs 7.1, 10.1 and 10.2.
55. The CIPC disclosure at pages 11-12 records six directors and identifies several as audit-
committee members. MOI clause 22.1 requires at least four directors, while clause
27.1 permits the appointment of board committees. These facts do not themselves
require or preclude an exemption. They are relevant because the papers could have
explained whether existing governance functions substantially overlap with the SEC
explained whether existing governance functions substantially overlap with the SEC
mandate, what duplication would arise, and why an SEC would nevertheless be
unnecessary in the p ublic interest. No such explanation or supporting governance
material is provided.
56. Paragraph 13 seeks an exemption for five years, alternatively a shorter period. Such an
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order would remove a statutory governance safeguard for a listed issuer over a
substantial period. Before granting it, the Tribunal must be satisfied on concrete facts
that the safeguard is unnecessary or substantially replicated elsewhere. Affidavit
paragraphs 9-12 and the supporting documents do not provide that assurance.
57. The Applicant has accordingly not discharged the burden under section 72(5)(b)(ii). Its
reliance on affidavit paragraphs 10.1, 10.2 and 11 is insufficient when those
paragraphs are tested against affidavit paragraphs 7.1- 7.4, Annexure E at page 71 and
MOI clauses 26.2 and 38.3.
G. WHY REFUSAL IS THE APPROPRIATE OUTCOME
58. The defects are substantive and cumulative. Paragraph 9 proceeds from an incorrect
listed-status premise; paragraphs 10.1 and 10.2 do not address most of the functions in
MOI clause 38.3 and do not reconcile the roles of Absa, Manco and the servicer;
paragraph 11 is contradicted by Annexure E; paragraph 8 refers to two financial years
but supplies only one calculation and omits a component of regulation 26(2); and no
formal mechanism under section 72(5)(b)(i) is identified. The 25/27 March resolution-
date discrepancy should be corrected in any fresh application, but the refusal does not
depend on it.
59. The Tribunal cannot repair those defects by selecting favourable phrases from
paragraphs 10- 12, speculating about the responsibilities of Absa, Manco or the
servicer, or constructing a governance case not made in the founding affidavit. Walele
requires information capable of supporting the state of satisfaction prescribed by the
statute, while Zuma confirms that the founding affidavit must contain both the pleaded
case and the evidence supporting it.
60. Refusal is not punitive and does not rest on the absence of publication. It follows from
the failure of the specific case pleaded in affidavit paragraphs 9 -12 to establish either
exemption ground when measured against the Applicant's own evidence in affidavit
exemption ground when measured against the Applicant's own evidence in affidavit
paragraphs 7.1-7.4, Annexure E and MOI clause 38.
61. A fresh application may cure the deficiencies by: correcting or explaining the board -
authority date; reconciling affidavit paragraph 9 with the statutory definition of a
listed company and the admissions in paragraphs 7.1 and 7.2; supplying complete
public-interest score calculations for the relevant years and reconciling paragraph 11
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with Annexure E; identifying the precise exemption ground relied upon; reconciling
the roles of Absa, Manco and the servicer; and providing a function -by-function
account, supported by governance documents, of how every material function in MOI
clause 38.3 is performed and reported.
H. FINDING
62. No adverse finding is made regarding publication under section 72(5)(a), because no
prescribed publication mechanism is presently available for implementation and the
Tribunal does not rely on that issue.
63. The admissions in supporting -affidavit paragraphs 4, 7.1 and 7.2, read with MOI
clauses 1.2.7, 3 and 9.5, establish that the Applicant is a listed public company within
regulation 43(1)(b).
64. The Applicant has established neither a formal mechanism under section 72(5)(b)(i),
because affidavit paragraph 9 confines the case to paragraphs 10 and 11 and no
qualifying structure is identified, nor the public -interest ground under section
72(5)(b)(ii), because paragraphs 10- 12 are incomplete and paragraph 11 is
contradicted by Annexure E.
65. The application must therefore be refused, without prejudice to a fresh application
supported by accurate, complete, reconciled and legally relevant evidence drawn from
the Applicant's own records.
I. ORDER
66. The application by NewGold Issuer (RF) Limited under case number
CT02762ADJ2026 for exemption from the requirement to appoint a social and ethics
committee is refused.
67. The refusal is without prejudice to a fresh application. Any fresh application should, at
a minimum: (a) correct or explain the board-authority date; (b) address the Applicant's
listed status and the inconsistency between supporting -affidavit paragraphs 7.2 and 9;
(c) provide public -interest score calculations for the relevant financial years and
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reconcile paragraph 11 with Annexure E; (d) identify clearly whether section
72(5)(b)(i), section 72(5)(b)(ii), or both are relied upon; (e) reconcile the roles of
Absa, Manco and the servicer; and (f) map the Applicant's governance arrangements,
with supporting documents, against each material function in MOI clause 38.3.
68. For clarity, the refusal is not based on a failure to publish an intention to apply under
section 72(5)(a).
69. There is no order as to costs.
Dr MINAH TONG-MONGALO
COMPANIES TRIBUNAL: MEMBER