CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 229/22
In the matter between
KOCH & KRUGER BROKERS CC First Applicant
DEON KRUGER Second Applicant
and
THE FINANCIAL SECTOR CONDUCT
AUTHORITY
First Respondent
THE OMBUD FOR FINANCIAL SERVICES
PROVIDERS
Second Respondent
JUSTICE YVONNE MOKGORO N.O. Third Respondent
THE FINANCIAL SERVICES TRIBUNAL Fourth Respondent
GEORGE BABEN Fifth Respondent
LUCILLE MIRIAM BABEN Sixth Respondent
Neutral Citation: Koch & Kruger Brokers CC and Another v Financial Sector
Conduct Authority and Others [2023] ZACC 27
Coram: Zondo CJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ,
Mathopo J, Potterill AJ, Rogers J and Van Zyl AJ
Judgment: Rogers J (unanimous)
Decided on: 15 August 2023
Summary: Section 34 of Bill of Rights — separated issue — High
Court allegedly straying beyond separated issue —
separated issue misconceived
2
ORDER
On appeal from the High Court of South Africa, Gauteng Division, Pretoria:
1. Leave to appeal is refused.
2. The applicants are ordered to pay, jointly and severally, any costs incurred by
the fifth and sixth respondents in making written submissions in response to
this Court’s directions dated 17 April 2023.
JUDGMENT
ROGERS J (Zondo CJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J,
Potterill AJ, and Van Zyl AJ concurring):
[1] This is an application for leave to appeal a judgment of the High Court of South
Africa, Gauteng Division, Pretoria (Mabuse J). The High Court’s judgment was on a
separated issue. Litigants and courts must always carefully consider whether it is
convenient to adjudicate a separated issue. If it is , the parties must formulate the
separated issue precisely. Judges must apply their minds to the parties’ proposal and
satisfy themselves that the separation is convenient and that the issue has been
properly defined. The issue thus defined should be recorded in an order made by the
Court in terms of rule 33(4) of the Uniform Rules. 1 The parties and the Court should
1 Rule 33(4) states:
“If, in any pending action, it appears to the court mero motu that there is a question of law or
fact which m ay conveniently be decided either before any evidence is led or separately from
any other question, the court may make an order directing the disposal of such question in
such manner as it may deem fit and may order that all further proceedings be stayed u ntil such
ROGERS J
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also be clear on what relief will follow if the separated issue is decided one way or the
other. Despite judicial warnings on these matters, 2 they continue to be ignored. The
present case, which we are deciding on written submissions without an oral hearing, is
an object lesson in what can go wrong.
[2] In August 2008 and September 2009, the fifth and sixth respondents, Mr
George Baben and his wife , Mrs Lucille Baben, invested R780 000 in two property
syndication schemes via Sharemax Investment (Pty) Ltd (Sharemax). They did so on
the advice of the second applicant, Mr Deon Kruger, who conducts business as a
financial adviser through the first applicant, Koch & Kruger Brokers CC. The Babens
were to receive monthly interest, which they did until August 2010. In September
2010, the South African Reserve Bank (SARB), which considered Sharemax’s
operations to be unlawful, instructed Sharemax to stop accepting further money and to
repay all existing investors. Monthly payments ceased and the property syndication
schemes collapsed. The Babens, an elderly retired couple, are among the many people
who lost money in Sharemax.
question has been disposed of and the court shall on the application of any party make such
order unless it appears that the questions cannot conveniently be decided separately.”
2 For three recent examples, see Osman Tyres and Spares CC v ADT Security (Pty) Ltd [2020] ZASCA 33;
[2020] 3 All SA 73 (SCA) at paras 12-3, Petropulos v Dias [2020] ZASCA 53; 2020 (5) SA 63 (SCA); [2020] 3
All SA 358 (SCA) at paras 67 -9 and Iveco South Africa (Pty) Ltd v Centurion Bus Manufacturers (Pty) Ltd
[2020] ZASCA 58 at paras 25 -31. The Supreme Court has frequently quoted the following passage from
Nugent JA’s judgment in Denel (Pty) Ltd v Vorster [2004] ZASCA 4 at para 3:
“Before turning to the substance of the appeal it is appropriate to make a few remarks about
separating issues. Rule 33(4) of the Uniform Rules – which entitles a cou rt to try issues
separately in appropriate circumstances – is aimed at facilitating the convenient and
expeditious disposal of litigation. It should not be assumed that that result is always achieved
by separating the issues. In many cases, once properly considered, the issues will be found to
be inextricably linked even though at first sight they might appear to be discrete. And even
where the issues are discrete the expeditious disposal of the litigation is often best served by
ventilating all the issu es at one hearing, particularly where there is more than one issue that
might be readily dispositive of the matter. It is only after careful thought has been given to the
anticipated course of the litigation as a whole that it will be possible properly to determine
whether it is convenient to try an issue separately. But where the trial court is satisfied that it
is proper to make such an order – and in all cases it must be so satisfied before it does so – it is
the duty of that court to ensure that the i ssues to be tried are clearly circumscribed in its order
so as to avoid confusion. The ambit of terms like the ‘merits’ and the ‘quantum’ is often
thought by all the parties to be self -evident at the outset of a trial but in my experience it is
only in the simplest of cases that the initial consensus survives. Both when making rulings in
terms of rule 33(4) and when issuing its orders a trial court should ensure that the issues are
circumscribed with clarity and precision.”
ROGERS J
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[3] In December 2012, the Bab ens lodged a complaint against the applicants with
the second respondent, the Ombud for Financial Services Providers, who is appointed
and functions in terms of Chapter VI of the Financial Advisory and Intermediary
Services Act 3 (FAIS Act). The Babens alleged that the applicants had wrongly
convinced them that the investment in Sharemax was sound and risk -free and that all
regulatory requirements had been met; and that the applicants had not supplied them
with documentation to enable them to study the property syndication schemes.
[4] In terms of section 27(5) of the F AIS Act, the Ombud may follow and
implement any procedure he or she deems appropriate. In terms of section 28(1)(b),
the Ombud may, in upholding a complaint, award the complainant “an amount as fair
compensation for any financial prejudice or damage suffered”. In the course of the
Ombud’s investigation, the applicants supplied information and documents to the
Ombud in response to requests from the latter. No oral hearing took place.
[5] On 12 October 2018, the Ombud issued his determination. He upheld the
Babens’ complaint and awarded them compensation of R780 000 with interest at 10%
per annum from the date of deter mination to date of payment. The Ombud found that
the Babens never received the Sharemax prospectus ; no financial needs analysis was
done; the Sharemax product was unsuitable and high -risk; the applicants’ advice that
the investment would be safe had been materially flawed and negligent; and that the
Babens’ loss was of the type that flowed naturally from the applicants’ breach of
contract. The applicants contested, and still contest, all these findings, asserting that
they ignore the detailed responses a nd documentation the applicants supplied to the
Ombud.
[6] Section 219 of the Financial Sector Regulation Act 4 (FSR Act) permits a person
who is aggrieved by a determination of the Ombud to apply to the fourth respondent,
3 37 of 2001.
4 9 of 2017.
ROGERS J
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the Financial Services Tribunal (Tribunal), for a reconsideration of the determination. 5
This is subject to section 28(5)(b) of the F AIS Act, which provides that an application
for reconsideration may only be pursued with leave granted by the Ombud or, if the
Ombud refuses leave, by the Chairperson of the Tribunal (Chairperson).6 The
Chairperson at the relevant time was the third respondent, retired Justice Yvonne
Mokgoro.
[7] The applicants applied to the Ombud for leave to have the matter reconsidered
by the Tribunal. The Ombud refused leave. They applied to the Chairperson for
leave, which she refused in a decision delivered on 12 April 2019. According to the
applicants, the Chairperson’s decision noted that the issues she had considered were a
complaint of bias against the Ombud , causation and the applicants’ duty to the
Babens, which was to ensure that they could make an informed decision, in particular
with reference to the risks of the Sharemax produ ct. The applicants complain that the
Chairperson summarily concluded, without elaborating on these issues or providing
reasons, that no basis existed to fault the Ombud’s conclusions and that there was no
reasonable prospect that the Tribunal would decide the matter differently.
[8] The applicants launched review proceedings in the High Court. They sought the
review and setting aside of the Ombud’s determination and a substituted decision
dismissing the Babens’ complaint. In the alternative, they sought the review and
setting aside of the Chairperson’s dismissal of their application for leave to pursue
reconsideration in the Tribunal. The review application was based on various grounds
set out in section 6 of the Promotion of Administrative Justice Act 7 (PAJA). The
applicants summarise those grounds as being that the Ombud and the Chairperson
were biased or reasonably suspected of bias; that their actions were procedurally
5 Section 218 sets out the decisions which are subject to applications for reconsideration in terms of section 219.
In terms of the definition of “decision” in section 218, these include a “decision of a statutory ombud in terms of
a financial sector law in relation to a specific complaint by a person ”, and such an ombud is correspondingly
defined as a “decision-maker”. Section 20A of the F AIS Act provides that the scheme in relation to complaints
set out in Part I of Chapter VI is a statutory ombud scheme for purposes of the FSR Act.
6 The Tribunal’s database on SAFLII includes ten reconsideration decisions of the Tribunal in determinations by
the Ombud in f avour of clients in Sharemax cases. In seven instances the brokers succeeded, in three they
failed.
7 3 of 2000.
ROGERS J
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unfair; that their decisions were materially influenced by an error of law; that their
decisions were taken for ulterior purposes; that irrelevant considerations were taken
into account and relevant considerations ignored; that they took their decisions in bad
faith and acted arbitrarily and capriciously; and that their de cisions were
unconstitutional and unlawful.
[9] In advance of the High Court hearing, counsel for the applicants approached
counsel for the Ombud and the Babens with a proposal that the High Court be asked to
determine, as a preliminary issue, whether the investigation by the Ombud of the
Babens’ complaint justif ied the Ombud’s determination or the Chairperson’s ruling
that the applicants w ere the factual and legal cause of the Babens’ loss. In their
written submissions, the applicants say that it has not been possible to establish how
the point in limine was formulated when orally conveyed to Mabuse J.
[10] In his judgment, Mabuse J recorded that he had been asked to determine
“whether the loss suffered by the [Babens], under the circumstances set out in the
overview, was caused by the breach of agreement occasioned by the applicants, as it
was contended by the [Babens], or by the intervention of the [SARB], as it was
contended by the applicants”. The “overview” was se t out thus in the preceding
paragraph of the judgment:
“Through the advice of the applicants, who acted in their capacities as the Financial
Service Providers, the [Babens] invested their money in [Sharemax]. The money was
used by Sharemax for the constr uction of The Villa Retail Park . . ., which was
promoted by Sharemax. The [SARB] regarded such investments as taking deposits.
It issued a directive in terms of which it ordered Sharemax to refund all the money
Sharemax had received from investors to th e investors. At the material of the
directive [sic], Sharemax did not have any money to pay back to the investors. It
could therefore not refund the investors their money. The scheme collapsed and the
[Babens] lost their investments.”
[11] It appears from the applicants’ submissions that they are content with this
formulation of the separated issue. They submit, however, that it is clear from the
ROGERS J
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formulation that the separated issue was confined to causation and that, for purposes
of determining that issue, the High Court was required to accept, without adjudicating,
the Babens’ version on breach of mandate. They contend that the applicants’ alleged
negligence would only have become an issue for adjudication if the High Court ruled
that the SARB was not the cause of the Babens’ loss.
[12] The matter was argued on 18 August 202 1. The High Court delivered judgment
on 3 November 2021.8 Under a heading, “The intervention of the [SARB]”, t he Court
recorded the applicants’ contention that the Babens had lost their money because of
the SARB’s intervention. The applicants invoked Symons N.O. 9 in support of this
contention, where Ploos van Amstel J found that the cause of the investor’s loss had
been the intervention of the SARB, not the breach by the financial adviser.
[13] The High Court continued that in its view the SARB’s intervention was one of
the risks which the applicants should have investigated. The applicants failed to
thoroughly investigate Sharemax, which was taking deposits from investors. The
applicants should have investigated whether Sharemax was entitled to do so. This
included proof of registration in terms of section 11 of the Banks Act. 10
The High Court referred, in th at regard, to another Sharemax case, Oosthuizen,11
where the investor’s case succeeded, and distinguished Symons N.O.
[14] The Babens, according to the High Court, were not given a chance to study
documents and relied exclusively on the applicants ’ advice and representations. The
probabilities were that the documents signed by the Babens were only given to them
on the day they signed and without their having fully read and understood the
documents. There was, s aid the High Court, a negligent failure by the applicants to
carefully consider the risk profile of the Sharemax investment, in circumstances where
the Babens required a low-risk investment.
8 Koch & Kruger Brokers CC v Financial Sector Conduct Authority [2021] ZAGPPHC 755.
9 Symons N.O. v Rob Roy Investments CC t/a Assetsure [2018] ZAKZPHC 71; 2019 (4) SA 112 (KZP).
10 94 of 1990.
11 Oosthuizen v Castro [2017] ZAFSHC 163; 2018 (2) SA 529 (FB); [2017] 4 All SA 876 (FB).
ROGERS J
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[15] Under a new heading, “The case for the [Babens]”, the Court said that the
Babens’ case was based on an alleged contract with t he applicants, the alleged breach
of that contract and a contention that their damages flowed naturally from the breach.
Because those damages flowed naturally, foreseeability was implied by law, and there
had been no need for the Ombud to investigate whether Sharemax’s complaint should
have been anticipated or foreseen by the applicants. The crucial consideration was
that the funds were placed in a high-risk investment.
[16] As against t his, the High Court noted that the applicants argued that , until the
SARB’s intervention in September 2010 , the Babens and all other investors had
received their monthly interest. At the time the investments were made in 2008 and
2009, Mr Kruger could not foresee that the SARB would bring the whole Sharemax
syndication scheme to a halt.
[17] The High Court concluded that “the applicants were negligent when they advised
the Babens to invest their mo ney in Sharemax” and that they “failed to exercise the
degree of skill, care, and diligence which one is entitled to expect from a financial
service provider”. The substantive order made by the High Court was a “finding” that
“the loss of investments suffered by the [Babens] is attributed to the breach of contract
by the applicants”.
[18] The applicants’ applications for leave to appeal and reconsideration failed in the
High Court and the Supreme Court of Appeal. Their application was filed in this
Court on 17 August 2022. The Babens’ attorneys notified the Registrar that , due to
lack of funds, the Babens would abide this Court’s decision. In other correspondence,
the Babens’ attorneys said that their clients were 81 and 74 years old, Mr Baben was
seriously ill, they had been without their pension money for the last ten years and their
reserves had been depleted.
[19] On 17 April 2023, the Chief Justice issue d directions, calling for submissions on
two broad questions : (a) the exact formulation of the separated issue which the High
ROGERS J
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Court was asked to decide and whether argument went beyond that issue; and (b) the
relevance of the separated issue to the review application. 12 The Babens’ legal
representatives were invited but not required to file submissions. In the event,
submissions were received from the applicants and from the Babens.
[20] The submissions show that the separated issue was never precisely defined. The
Babens do not accept that the separated issue was defined in the terms initially
proposed by the applicants in advance of the hearing . It appears that the High Court
was not invited to make, and did not make, an order in terms of rule 33(4), instead
acceding informally to a request to hear argument on a separated issue conveyed
orally by counsel.
[21] According to the applicants’ subm issions, the question of negligence did not
form part of the separated issue and was not argued. They complain that the
High Court decided the issue of negligence without considering any of the evidential
material put up in their affidavits and without he aring the applicants’ counsel on that
issue. In response to a question in this Court’s directions as to what order should be
made if this Court finds that the High Court strayed beyond the separated issue, the
applicants contend that no further evidence is needed on the question of causation.
12 The questions to be addressed were set out thus in the directions:
“(a) In regard to the separated issue:
(i) What was the exact formulation of the issue which the High Court was asked to
determine in limine?
(ii) Did that issue include the question whether the applicants breached their duties to t he
fifth and sixth respondents and in particular whether the applicants acted negligently?
(iii) Was the question of breach of mandate and negligence fully argued as part of the in
limine issue?
(iv) If the question of breach of mandate and negligence were not part of the issue to be
decided in limine, and if this Court were to grant leave to appeal, what would the
appropriate order on appeal be?
(b) The proceedings in the High Court took the form of a judicial review, in terms of section 6
of the Promotion of Administrative Justice Act 3 of 2000 r ead with section 235 of the
Financial Sector Regulation Act 9 of 2017, of decisions taken by the second and third
respondents. That being so:
(i) To what ground of review did the separated issue relate?
(ii) Why w ould the High Court's own view on the merits of causation be deci sive of any
issue in the review?”
ROGERS J
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This Court can determine the issue and substitute the Ombud’s decision with one
dismissing the Babens’ complaint.
[22] According to the Babens, the separated issue incorporated the question of
negligence in the con text of the Babens’ allegation of a breach of contract. They
submit that the issue of breach of duty of care and negligence are inextricably linked
to the question of foreseeability. They contend that their damages flowed naturally
from the breach. They say that the question of breach of mandate and negligence
were fully argued. If, however, this Court decides otherwise, the matter should be
remitted to the High Court to determine the question of negligence.
[23] In their founding papers in this Court , the applicants invoke our constitutional
and general jurisdiction. They say that , by dealing with the whole case instead of the
separated issue, the High Court violated the applicants’ right in terms of section 34 of
the Bill of Rights to have a dispute resolved by the application of law in a fair public
hearing. They also complain that , to the extent that the High Court was entitled to go
into the question of negligence, the High Court failed to apply binding legal principles
to the facts in answering that question, again violating their section 34 rights . They
also assert that there is an arguable point of law of general public importance arising
from the conflict which now exists between the High Court’s judgment in the present
case and Symons N.O.
[24] Jurisdiction is determined by an applicant’s pleaded case. I am satisfied that the
complaint that the High Court strayed beyond the separated issue and thereby violated
the applicants’ section 34 rights engages our constitutional jurisdiction. As to the
High Court’s alleged failure to apply binding legal principles , closer analysis shows
that the applicants’ real complaint is that the evidence did not justify the High Court’s
finding, having regard in particular to the absence of expert evidence. Su ch a
complaint does not without more clothe this Court with jurisdiction. 13 The applicants
do not point to any legal principles which were misstated by the High Court.
13 Loureiro v Imvula Quality Protection (Pty) Ltd [2014] ZACC 4; 2014 (3) SA 394 (CC) ; 2014 (5) BCLR 511
(CC) at para 33; Booysen v Minister of Safety and Security [2018] ZACC 18; 2018 (6) SA 1 (CC); 2018 (9)
ROGERS J
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[25] The differing conclusions reached in this case and Symons N.O. do not point to
the existence of an arguable point of law. Even prior to the High Court’s judgment in
the present case, there existed differing outcomes in Sharemax litigation, including the
judgments in Oosthuizen (where the investor succeeded) and Symons N.O. (where the
investor failed). Oosthuizen and Symons N.O. were actions for damages.
Unsurprisingly, the judgments , whether right or wrong, were based on the differing
evidence adduced in the two cases. To the extent that the merits of the Babens’ claim
are relevant to the review proceedings, those merits turn on the evidence adduced on
affidavit in the High Court.
[26] Although in one respect the pleaded section 34 case engages our jurisdiction, the
Court must still decide whether it is in the interests of justice to grant leave to appeal.
Prospects of success are relevant but are not the only consideration.
[27] The lack of precision in the formulation of the separated issue was most
unsatisfactory. No definitive contemporaneous written recordal of it exists. The
parties appear to be conten t, however, to accept the High Court’s formulation: Was
the Babens’ loss occasioned by the applicants’ alleged breach of contract or by the
intervention of the SARB ? I am willing to accept that this formulation required the
High Court to assume, without deciding, that the Babens’ version relating to the
alleged breach was corr ect. Although the Babens submi t in this Court that breach of
mandate and negligence were argued, they accept the High Court’s formulation. If
breach of mandate and negligence were argued, therefore, it was presumably with a
view to explaining to the High Court what the Babens’ version was, so that this
version would form the assumed basis on which to decide the causation issue.
[28] The High Court’s judgment contains passages which could be read as
adjudicating the questions of breach of mandate and negl igence. However, having
regard to the way in which the High Court framed the separated issue and formulated
BCLR 1029 (CC) at para 50 and University of Johannesburg v Auckland Park Theological Seminar [2021]
ZACC 13; 2021 (6) SA 1 (CC); 2021 (8) BCLR 807 (CC) at para 49.
ROGERS J
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its finding in the order, the binding part of the judgment must be regarded as confined
to the question of causation. Other “findings” by the High Court should be
understood as explaining the Babens’ version on breach and negligence, a version
which had to be assumed correct for purposes of causation.
[29] However, this is all by the way, because the separation on which the parties and
the High Court embarked was utterly misconceived. I pass over the question whether
a separation of issues is permissible in motion proceedings. 14 Assuming that a
separation was procedurally permissible, the parties in the High Court seem to have
overlooked that the case was a r eview directed at decisions of the Ombud and the
Chairperson, not an action for damages by the Babens against the applicants . Even in
an action for damages, I doubt that a separation would have been appropriate, because
there were contested facts about the mandate, the interactions between the Babens and
Mr Kruger, the legality of the Sharemax product and its riskiness. Findings on those
contested matters could be expected to have a bearing on whether the SARB ’s action
was an intervening event breaking the chain of causation between the alleged
negligent advice and the Babens’ loss.
[30] I repeat, though, that the case before the High Court was not an action for
damages but a PAJA review. The submissions in this Court suggest that the parties
remain confused as to how the separated issue was relevant to t he grounds of review.
At the risk of stating the obvious, the Ombud had the statutory jurisdiction, and thus
the statut ory duty, to determine the Babens’ complaint. Both the Babens and the
applicants were entitled to a proper adjudication of the complaint by the Ombud.
Provided, however, that the Ombud determined the complaint without committing a
review irregularity, th e Ombud’s determination on the merits was binding, subject
only to reconsideration by the Tribunal. The complaint required the Ombud to
determine whether the applicants breached their mandate and whether the Babens’
14 This was questioned in one of the judgments in Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme
Corporation [2019] ZACC 41; 2020 (1) SA 327 (CC); 2020 (1) BCLR 1 (CC) at para 77, on the basis that rule
33(4) only applies to actions.
ROGERS J
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loss was attributable to that breach. It was the Ombud’s finding on these matters that
was definitive.
[31] The applicants woul d be entitled to argue, in the High Court, that the Ombud’s
finding on these matters should be set aside because of one or more review
irregularities. They could arg ue, for example, that the Ombud’s determination on
negligence or causation ignored the applicants’ evidence or was vitiated by error of
law. If such a review succeeded, the matter would – absent exceptional circumstances
– be remitted to the Ombud for det ermination afresh, because the statutory scheme is
for the Ombud, not the High Court, to determine the merits of the complaint.
[32] It follows that a finding by the High Court that an assumed breach of contract by
the applicants did or did not cause the Babens’ loss would be irrelevant, because it is
not the High Court’s opinion on that question that matters. If t he High Court
concluded, as it did, that the loss was caused by the applicants’ assumed breach, but if
the Ombud did not reach a proper decisio n on that question, the High Court’s view
could not save the Ombud’s determination from being impeached on review.
Conversely, if the High Court found, in accordance with the applicants’ contentions,
that their assumed breach did not cause the Babens loss , that would not lead to the
conclusion that the Ombud’s determination should be set aside on review. This is all
elementary, and flows from an appreciation that it was the Ombud , not the High
Court, that was vested with the power to determine the merits of the complaint.
[33] So here we are, nearly two years after the misconceived preliminary issue was
argued, and all the parties have to show for it is a judgment which does not resolve
any ground of review. I am doubtful that the High Court’s judgment c an be deployed
in any useful way in determining the review. All the issues in the review still remain
to be argued and determined.
[34] In the circumstances, it is self -evidently not in the interests of justice to grant
leave to appeal, even if the appli cants had reasonable prospects of showing that the
High Court’s determination on the causation issue was wrong, a matter on which I
ROGERS J
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express no opinion. Our decision on the causation issue would be no more useful in
the review proceedings than the High Court’s.
[35] Although the High Court should never have been asked (and should never have
agreed) to decide the separated issue, the applicants were the parties who made the
proposal, and both sides misguidedly agreed to ask the High Court to decide it. I do
not think that justice requires us, in the circumstances, to set aside the High Court’s
judgment. If the judgment has proved to be a costly irrelevancy, the applicants have
only themselves to blame.
[36] It follows that the application for leave to appeal must be refused. To the extent
that the Babens have incurred costs in responding to the Court’s request for
submissions, the applicants must pay those costs. I trust that the parties will now
proceed without delay to argue the review in the High Court. The matter would not
have to return to Mabuse J; it will be for the Judge-President to allocate the review for
hearing.
Order
[37] The following order is made:
1. Leave to appeal is refused.
2. The appl icants are ordered to pay, jointly and severally, any costs
incurred by the fifth and sixth respondents in making written
submissions in response to this Court’s directions dated 17 April 2023.
For the Applicants: HF Geyer instructed by Bieldermans
Incorporated
For the Fifth and Sixth Respondents: Cronje, De Waal Skosana Incorporated