REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 20309/2023
In the matter between:
CRAIG KEVIN ALLAN BUTTERS Applicant
and
TAKEOVER REGULATION PANEL First Respondent
THE EXECUTIVE DIRECTOR OF THE TAKEOVER
REGULATION PANEL Second Respondent
THE DEPUTY EXECUTIVE DIRECTOR OF THE
TAKEOVER REGULATION PANEL Third Respondent
ZARCLEAR HOLDINGS LIMITED Fourth Respondent
AFRICAN PHOENIX INVESTMENTS LIMITED Fifth Respondent
EXTRACT GROUP LIMITED Sixth Respondent
ENX GROUP LIMITED Seventh Respondent
Coram: Wille, J et Norton AJ et Mapoma, AJ
Heard: 4 August 2026
Delivered: 28 August 2026
Non-joinder: Applicant seeks to review and set aside the decision that allegedly
confidentially settled a governmental investigation into the affairs of various respondent
companies through a confidential, unsigned settlement agreement with the respondent
companies. The respondent companies raise the ‘in limine’ shield of non-joinder because
they allege that not all the companies that were investigated by the panel respondents were
joined as parties to these review proceedings. The company respondents raised the non-
joinder point in their answering affidavits, and the applicant proceeded notwithstanding. The
non-joinder shield is upheld, and costs are to stand over in the interests of the administration
of justice, considering the nature of the review proceedings.
JUDGMENT
_________________________________________________________________________
WILLE, J: (unanimous)
Introduction
[1] The applicant seeks to review and set aside the first, second and third r espondents’
decision to settle an investigation into the remaining respondents by means of a confidential
and unsigned settlement agreement.1
[2] For the purposes of ease of clarity, the parties will be referenced as follows:
(a) The aggrieved shareholder will be referred to as the applicant.
(b) The first, second and third respondents will be referred to as the panel respondents.
(c) The fourth, fifth, sixth and seventh respondents shall be referred to as the company
respondents.2
Background and relevant context
[3] The applicant’s core grievance focuses on an alleged systematic failure by the panel
respondents to protect the integrity of the marketplace against a pattern of conduct by the
company respondents, purportedly led by Warren Chapman.3
[4] The applicant alleges the company respondents failed to disclose they were acting in
concert, allowing them to bypass mandatory offer requirements and seize control of four
target companies (the respondent companies) without paying a fair control premium.4
[5] By failing to disclose their concert party status, the company respondents allegedly
denied minority shareholders equal access to information and exploited the target
companies' balance sheets and cash flows for their own commercial benefit.5
1 The settlement agreement was in writing but was not signed. The terms of the settlement were agreed.
2 These are the companies that the applicant alleges benefitted from the settlement reached.
3 The applicant also says that Warren Chapman was in control of many other of the entities investigated.
4 Thus this review case is about a monetary loss but not only about an alleged monetary loss.
5 The allegation is that the company respondents benefitted to the sum of R499 million.
[6] The applicant contends that the eventual ‘remedial action’ (ex post facto mandatory
offers at 2020 share prices) was totally inadequate and served only to ‘tie a ribbon ’ around
an unlawful scheme to the sole benefit of the company respondents.6
[7] The applicant seeks to review and set aside the settlement (and the settlement
agreement) and the panel’s report, arguing that the panel respondents facilitated the
company respondents' control of the target companies rather than ensuring market fairness
and integrity.7
[8] The core of the legal challenge is that the panel respondents abandoned their
investigative duties in favour of an unauthorised, confidential settlement agreement that
materially prejudiced minority shareholders.8
Non-Joinder ‘in limine’ shield
[9] The panel respondents initiated an investigation in response to complaints alleging
that the company respondents acted in concert to seize control of the target companies
without making mandatory offers to minority shareholders. The applicant says that d espite
evidence of wrongdoing, the panel respondents concluded the ir investigations t hrough a
settlement agreement that effectively granted the respondent companies a R499 million
discount on the required mandatory offer price. This was allegedly detrimental to minority
shareholders.9
[10] The company respondents’ main point regarding the in-limine challenge is that,
following the complaints, an investigation was conducted not only against the company
respondents but also against several other parties. They say this because the initiation
6 The applicant says this was the easy way out for the panel respondents.
7 Thus, this case is also about holding the panel respondents accountable.
8 The applicant also wants the panel respondents to be held accountable.
9 All the minority shareholders suffered a monetary loss.
statement (regarding the complaints) identified two separate and discrete categories of
parties to be investigated, namely:
(a) ‘…the “Parties”, consisting of Peresec South Africa Limited, Peresec Prime Brokers
Proprietary Limited, MCC Contracts Proprietary Limited, Nick Sennett, Sui Generis,
and Crimson Harvest, together with the company respondents…’ and
(a) ‘…the “Other Parties”, consisting of Zolospan Proprietary Limited, Nkholi
Consolidated Investments Proprietary Limited, Hampden Capital Proprietary
Limited, and Kuchuma Capital Proprietary Limited…’10
[11] The company respondents contend that the settlement agreement determined the
fate of all the ‘Parties’ and the ‘Other Parties’ as alluded to above. Thus, by seeking to set
aside the settlement agreement (and, in that manner, reverse the fate of the two categories
of those parties), the applicant has incorrectly cited only the four company respondents.
This failure, they say, constitutes a material non-joinder of the (at least) ten other
investigated parties.11
[12] In response, the applicant says that the company respondents themselves did not
join any of the other investigated parties when they launched an application to set aside
another discrete interlocutory ruling requiring disclosure of confidential information.12
[13] In response, the company respondents say that their approach in those proceedings
is completely irrelevant to the non-joinder point raised in these proceedings. In developing
this argument, they say that their previous approach (even if it was flawed) can never be
determinative of the correct legal position in this application. The core issue now is whether
the other investigated parties have a direct and substantial legal interest in the relief sought
10 This is common cause.
11 Not all these parties have been identified.
12 This was they referred to as the Johannesburg litigation.
by the applicant, given that they were not required to make mandatory offers under the
settlement agreement.13
[14] Put another way, the other parties (who are not before the court) were not directed to
perform positively under the settlement agreement and the compliance notice subsequently
issued by the panel respondents.14
Consideration
[15] What concerns me most is the possible fate of the other parties under investigation.
I say this because the fate of the other investigated parties may possibly once again be
considered in a fresh investigation if the settlement agreement is set aside. Put another
way, it cannot be contended that the other investigated parties have no interest in the setting
aside of the settlement agreement because it imposed no punitive obligations on them.15
[16] The other parties under investigation would want to maintain the initial outcome, as
far as they are concerned, especially if the period for the sanction imposed on them has now
been completed. Put another way, this would be especially so (in this case) because the
sanction imposed on them took the form of a prohibition for a certain period, and that period
has now passed.16
[17] For the purposes of clarity, the sanction imposed upon them was to the effect that
the entities and the relevant executive directors and/or principals referenced in the relevant
annexure were not permitted to contravene the mandatory offer provisions in the Companies
Act for (24) months from the date of the settlement, failing which the panel respondents
reserved their rights to pursue all remedies available to them.17
13 This seems to be the core issue for determination,
14 This point surfaced in the applicant’s heads of argument.
15 The panel respondents reserved their rights to proceed against these other investigated parties.
16 The other investigated parties have now “served” their time regarding their sanction.
17 If the settlement was set aside these other investigated parties could be vulnerable.
[18] The time for this prohibition sanction has now lapsed by effluxion of time. Thus, the
company respondents argue that the other parties investigated (at the very least, those
identified in the relevant annexure) should have been joined as interested parties to this
review application. With this, I agree.18
[19] The applicant contends that these interested parties (and any other interested
parties) were at liberty to intervene if they believed they held a direct and substantial interest
in the outcome of the review application.19
[20] Finally, the applicant claims that the other investigated parties have had actual
knowledge of this litigation for several years and, because none of them ha s sought to
intervene, they have waived the right to complain about a non-joinder.20
[21] I disagree with this waiver point . I say this because the applicant’s claim is not
supported by the evidence, as he does not make this allegation in the affidavits he has filed.
I am unconvinced that this positive allegation could be made, as the applicant would not
have such knowledge of the other parties under investigation.21
[22] Some factual support is sought for this ‘waiver’ argument i n the suggestion that a
single individual is the controlling mind, principal , or director of most of the investigated
parties, and that this non-joinder point is merely a delaying tactic. However, it is not
suggested that this named individual represents the interests of all the investigated parties.
Most importantly, it could well be that none of the other investigated parties has complained
about the non-joinder because they have not had sight of the papers.22
18 The investigated parties undoubtedly have a cognizable direct and substantial interest.
19 This is no defence to a non-joinder.
20 There is no evidence to suggest these other parties were served with copies of the application.
21 The applicant cannot contend for a waiver under these circumstances.
21 The applicant cannot contend for a waiver under these circumstances.
22 There is no evidence to suggest these other parties were served with copies of the application.
[23] This is simply not known. It must be that if you do not have full knowledge of your
rights, you cannot waive your rights . Waiver is a question of fact. When assessing the
probabilities, the factual presumption that a party is not lightly deemed to have waived a right
or rights finds application.23
[24] In addition, it must be so that the applicant can never excuse the non-joinder by
pointing out that the parties under investigation have a right to intervene. This would defeat
the principle of non-joinder.24
[25] The non -joinder shield was squarely raised in the company respondents’ opposing
affidavits, and the applicant was not taken by surprise by this point. In addition, the papers
contain no evidence that the parties investigated, as referenced in the schedule by the panel
respondents, were served with copies of the review papers.25
[26] Notwithstanding this, the applicant’s position remains that the non -joinder point is a
technical distraction without legal merit. The applicant argues that the parties not joined (the
other parties referenced in the panel respondent’s schedule) do not have a direct and
substantial legal interest in the eventual outcome of the review application. The applicant
says this because the settlement agreement only required the company respondents to
make mandatory offers. The other parties were merely subject to a general injunction which
did not necessitate their joinder. The applicant contends that other parties have only a
‘contingent interest’ in the completion of the investigation rather than a direct interest. I do
not see it this way.26
[27] The substantial test is whether the party alleged to be a necessary party for the
purposes of joinder has a legal interest in the subject matter of the litigation, which may be
23 Feinstein v Niggli 1981(2) SA 684 (A).
24 Especially in circumstances where the papers have not been served on the other investigated parties.
25 One would expect the applicant to have taken steps when the non-joinder point was raised in opposition.
26 This is because of the reservation of rights by the panel respondents.
prejudicially affected by the court's finding in the proceedings concerned. This test must
now also be approached through a constitutional lens. I say this because our Constitution
confers certain legally enforceable rights, and the existence of such a right may mean that a
person has a direct and substantial interest that requires joinder.27
[28] Here we are dealing with review proceedings. Our ‘Uniform Rules’ require a review
applicant to deliver the notice of motion on ‘all other parties affected’ by the review.28
[29] This requires such parties to be joined as respondents to the review.29
[30] This must be so because those parties’ interests cannot be adjudicated upon in their
absence. The test for joinder in these circumstances is well established: if a party has a
direct and substantial interest in the relief sought, they must be joined.30
[31] Thus, the test here must also be considered in the context of review proceedings. It
must be that a broader interpretation is needed to consider the meaning of rights in this
context. Under this more expansive approach, administrative conduct nearly always
adversely affects someone’s rights (broadly construed). If a ‘decision’ entails at the very
least a determination of someone’s rights, as a matter of logic, it must cover a potential
deprivation of those rights. If the settlement is set aside and the investigation is reopened,
each of the parties under investigation may be directly and substantially affected. There will
be a direct external legal effect.31
[32] Not only will they be stripped of the benefit of the settlement (more than three years
after it was concluded), but they will be subject to renewed regulatory scrutiny and an
uncertain outcome.32
27 Section 34 of the Constitution of the Republic of South Africa, 1996.
28 Uniform Rule 53(1).
29 Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 1982 (3) SA 654 (A) at 670C.
30 Prinsloo v Majiedt N O and Another 2025 JDR 2398 (SCA), paras 13–14.
31 This is self-evident the papers.
32 Especially so because of the reservation of rights by the panel respondents.
[33] The implication of the applicant’s failure to join all the investigated parties is that this
court may not grant the relief sought now. This is a consequence of the trite principle that:
‘…no court can make findings adverse to any person’s interests, without that person first
being a party to the proceedings before it…’33
[34] Thus, what is of crucial importance to me in this case is that the applicant failed to
take any steps to join these other parties after being notified of the non -joinder. This must
be weighed against the argument that the parties under investigation should have
intervened. The latter contention must fail as a matter of pure logic.34
Remedy, conclusion and costs
[35] The company respondents argue that although non-joinder is classically a dilatory
plea, it can be dispositive in certain circumstances and that this is one such circumstance. I
disagree. I say so because it is in the interests of the administration of justice that the main
application be postponed, thereby affording the other parties under investigation the
opportunity to state their positions (if any).35
[36] I say this also because the panel respondents have specifically reserved their rights
to proceed against the other parties under investigation.36
[37] During the hearing, we asked the panel respondents to inform the court of the details
of the other parties to be joined. They have now provided the information requested. The
parties to be joined are those very parties that appear on the schedule to the notice that
imposed the injunctive relief on the other investigated parties identified.37
[38] Costs are a largely discretionary issue. Considering the nature of the proceedings
and the relief sought by the applicant, I hold the view that the issue of costs should be dealt
33 Matjhabeng Local Municipality v Eskom Holdings Limited 2018 (1) SA 1 (CC), para 92.
34 This cannot be a defence to the shield of non-joinder.
35 Taking into account the facts of this case.
35 Taking into account the facts of this case.
36 This is an important consideration.
37 The other investigated parties initially identified by the panel respondents.
with after the hearing of the main application. A court seized with the main application in
due course would be in a much better position to deal with the issue of these costs and
which party should be liable for these costs.38
Order
[39] In the result, the following order is granted:
1. The plea of non-joinder is upheld.
2. The applicant is granted leave to join such parties to the application who have a
direct and substantial interest in the outcome of the main review application as
identified by the panel respondents.
3. The costs shall stand over for later determination.
_______
WILLE, J
We agree.
___________
NORTON, AJ
___________
MAPOMA, AJ
APPEARANCES
For the applicant:
Advocate G Elliott SC
Advocate K Ngqata
For the panel respondents:
38 It may be that the parties joined elect not to participate in the main application.
Advocate V Maleka SC
Advocate L Mgudlwa
For the company respondents:
Advocate J Blou SC
Advocate A Molver