IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 2022-049109
Date of hearing: 27 July 2026 to 29 July 2026
Date delivered: 7 September 2026
DELETE WHICHEVER :SNOT APPLICABLE
(1) REPORTABLE: Yje/NO
(2) OF INTEREST TO OTHtRS JUDGES: Y~/NO
(3) Ri\1TSED
.... J .. \. , . .\~.4- ...
DATE
In the application of:
SETTLERS MOVIE (PTY) LTD
and
DIRECTOR-GENERAL OF THE DEPARTMENT
OF TRADE , INDUSTRY AND COMPETITION
THE MINISTER OF TRADE , INDUSTRY
AND COMPETITION
JUDGMENT
Plaintiff
First Defendant
Second Defendant
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SWANEPOEL J:
[1] The plaintiff was created as a special purpose corporate entity to
produce a movie named Settlers, which was set on Mars, and which
documented the adventures of three refugees from Earth, Reza, Lisa and
their daughter Remmy.
[2] In order to partially fund the production, the plaintiffs director, Mr
Johan Kruger, applied for funding through an incentive project
administered by the Department of Trade, Industry and Competition ("the
.Department"). Having considered the application, the Department
approved an incentive to a maximum of R 11 199 538. The movie was
produced, but the incentive was not forthcoming. The plaintiff now sues
for payment of the incentive amount in the sum of R 11 199 538, interest
thereon and costs.
[3] Having first submitted a premature application, a successful
application was submitted to the Department on 12 August 2019, and
receipt thereof was acknowledged by the Department on 13 August 2019.
The application, and the approval was based upon the plaintiffs projected
expenditure and income. The application was con~idered on 26
September 2019, and the plaintiff was notified of the grant of the incentive
on 29 October 2019.
[4] By then events had overtaken the approval of the application. The
plaintiff was ready to commence filming on 16 September 2019. It had
secured the services of actors, technical staff and all personnel that are
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necessary for a production such as this. Any delay in commencing with
filming would have caused substantial financial loss, and may even have
led to the departure of some of the actors. The plaintiff therefore took a
decision to commence filming on 16 September 2019, notwithstanding
that the incentive had not yet been approved. Principal photography was
completed on 25 October 2019.
[5] In its letter of approval, the Department advised the plaintiff that
the terms and conditions under which the incentive was granted were
contained in the letter of approval, in the application form, the
Department's Programme Guidelines , and in Annexure "E", a document
that set out the Department's terms and conditions. In order to understand
the contractual matrix, it is necessary to refer to the relevant passages in
those documents:
[6] The letter of approval: The letter recorded that:
"The approved amount in terms of The South African Film and Television
production Incentive shall be disbursed in accordance with actual South
African expenditure incurred in respect of the approved production (up
to a maximum of the approved amount) provided that the Beneficiary
complied with the completion of the relevant forms and other information
require, within the stipulated timeframes, as depicted in the table
below."(sic)
[7] Principal photography was to commence on 26 September 2019,
and had to be completed by 26 December 2019. A Form B was required
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to be submitted within three days of photography having commenced,
confirming th~t photography had in fact commenced. A Form C, the final
application for }:>ayment, was to be submitted within three months of the
completion date, namely 26 December 2019. It was to be accompanied
by.18 different documents, one of which was an audited summary and
detailed expenditure report.
[8] The approval would automatically lapse if:
[8.1] the plaintiff failed to file Form B within three months of the
letter of approval; or,
[8.2] the intended date for completion changed without the
Department's prior written consent
[9] The Programme Guidelines: Clause 4.3 is relevant hereto and
reads as follows:
"4.3 The principal photography must not commence until an approval
letter has been received from the dti.
4.3.1 The approved applicant is provided with an additional
three (3) months to commence with principal photography
from the confirmed commencement date as per
application,
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4.3.2 The applicant must complete and submit the Confirmation
of Principal Photography Form within three (3) working
days after the first day of principal photography;
4.3.3 The applicant's failure to adhere to these stipulated
timeframes will automatically terminate the approval."
[1 0] And, clause 4.5:
"The final claim with audited or independently reviewed financial
statements must be submitted to the dti within twenty-four (24) months
from receiving an approval decision from the dti."
[11] Annexure "E": Clause 4.6 reads:
"The Beneficiary is not automatically entitled to the full amount of the
incentive offered. The dti further reserves the right to correct any actual
calculation error at any stage before or after approval/payment. A further
calculation will be made based on figures set out in the claim form. The
calculation may result in an amount that is less than the maximum
amount, but can never be more than the offered maximum amount."
[12] The contractual framework is clear: The initial approval of the
incentive was based on projected figures provided by the plaintiff. Once
the production had been completed, the plaintiff was to deliver a Form C,
together with the prescribed documents, including a breakdown of the
amounts actually spent on the movie. Based on those figures, the
Department would calculate how much of the approved incentive amount
should be paid to the plaintiff.
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[13) It is also beyond doubt that strict adherence to the timeframes set
out in the approval letter was required. More particularly, principal
photography was not to commence before written approval was received,
although the evidence of the Department's Mr. Kgomo suggested that it
would have been acceptable to the Department had photography
commenced once approval had been granted on 26 September 2019,
even though approval had not yet been conveyed to the plaintiff in writing.
Mr. Kgomo's concession matters little. The fact is that photography
commenced ten days before the application was considered and
approved. That, in my view, triggered the automatic cancellation of the
agreement.
[14) On 31 October 2019 Mr. Kruger had a telephonic conversation with
M_r. Eliya Ndou, an employee of the Department. Although there is no
evidence on what they discussed, a letter written by Mr. Kruger on 4
November 2019 suggests that they discussed the premature
commencement of photography. Mr. Kruger explained in the letter that
the plaintiff had found itself between the proverbial financial rock and a
hard place. It was aware of the prohibition on early commencement, but
had no alternative but to start shooting. Mr. Kruger testified that the
plaintiff had accepted that there was a risk attached to its decision, and
that the incentive may have been placed in jeopardy. Mr. Kruger also
recorded in his letter that Form B would be forwarded to the Department
within days, and the Department indeed acknowledged receipt of the form
on 7 November 2019. Form B was thus delivered out of time.
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[15] The defendants say that due to the plaintiff's non-compliance with
the timeframes, the Department cancelled the agreement by notice on 27
November 2019. There is some difficulty with the so-called termination
letter. It is uncontested that the plaintiff never received the cancellation
letter. Furthermore, the Chief Director: Product Development, Ms.
Shareen Osman, only approved the cancellation of the incentive on 2
December 2019, five days after the cancellation letter was allegedly sent.
[16] The defendants' plea is somewhat confusing. On the one hand
they plead that the incentive was cancelled by letter, whilst at the same
time pleading that the agreement lapsed automatically for non-adherence
to the stipulated time frames. The defendants also say that there was only
an attempt made at reaching agreement, but that it was cancelled,
alternatively, that the agreement was void ab initio. The plea is inherently
contradictory, but what is clearly pleaded, is the averment that the
agreement automatically lapsed due to the plaintiff's non-compliance with
the specified time frames.
[17] In my view there is no other interpretation to be placed on clause
4.3 of the Guidelines. It's intention is clear, that if photography
commences before an approval letter is received, or if Form B is not
completed and submitted within three working days after commencement
of principal photography, the approval (and the agreement) would
automatically lapse. The approval letter also spelt out the time frames
within which photography should take place, and it confirmed that unless
the time frames were adhered to, the approval would lapse.
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[18] In my view, therefore, despite having sympathy with the difficult
situation in which the plaintiff found itself at the time, the plaintiff's failure
to comply with the time frames are fatal to its case.
[19] A further aspect that is fatal to the plaintiff's case is its failure to
prove the quantum of its claim. The plaintiff seemed to proceed from the
premise that it was automatically entitled to claim the entire approved
incentive amount. That is not the case. The approval letter, the guidelines
and Annexure "E" make it clear that before the incentive is paid, there is
a process of verification of the actual amounts expended in manufacturing
the movie. It is on that figure that the amount to be paid is calculated.
[20] Upon my enquiry on this aspect the plaintiff's counsel argued that
the plaintiff had led evidence that Form C that had been delivered to the
Department in support of the plaintiff's claim. I re-read a transcript of the
matter and I could not find any evidence led by the plaintiff regarding Form
C. I could only find reference to page 206 of the bundle by the defendant's
counsel in cross-examination , which seems to be the first page of Form
C, and to page 209, which is the last page thereof. The relevance of these
two pages to the cross-examination lay in the dates on which the forms
were completed , namely 10 September 2021. Mr Kruger did not testify on
the final calculations or on the financial figures , nor on the quantum of the
claim.
[21] At the outset I enquired from counsel as to the status of the
documents in the bundle, and I was told that the documents were what
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they purport to be and that the contents were admitted. However, at a
pre-trial meeting held on 23 June 2026 the parties agreed that "Only
documents referred to in evidence may be relied upon by the parties and
all other documents in the bundle will be deemed not to be before the
Court."
[22] I can, therefore , not take cognizance of the calculations contained
in documents on which no evidence was led. The plaintiff's quantum has,
consequently, not been proven.
[23] For the sake of completeness , I must add that the defendants
raised a special plea, to the effect that notice had not been given to the
Department in terms of The Institution of Legal Proceedings against
Certain Organs of State Act, 2002. The defendant's counsel abandoned
the special plea,· wisely I believe, and no more has to be said on that
issue. However, the special plea has a costs implication which I shall
address.
[23] For the above reasons I make the following order:
[23.1] The claim is dismissed with costs on Scale B;
[23.2] The defendants shall pay the costs arising from the
special plea on Scale B.
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Counsel for the plaintiff:
Attorney for the plaintiff:
Counsel for the defendant:
Attorney for the defendant:
Heard on:
Judgment on:
SWANE OELJ
JUDGE OF THE HIGH OURT
GAUTENG DIVISION PRETORIA
Adv. R Sikhosana
Edward Nathan
Sonnenbergs Inc
Adv L Pretorius
The State Attorney
27-29 July 2026
7 September 2026
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