FEDERAL COURT OF AUSTRALIA

DRA Global Limited v Naude [2026] FCA 94

ORDERS

THE COURT ORDERS THAT:

1.    The following paragraphs of the Substituted Statement of Claim filed 7 June 2024 are struck out with leave to replead: 9.3, 10, 42, 54.3, 143, 149, 153, 156.2, 167.2.3.

2.    All references to the fifth respondent in paragraphs 161, 163, 167 (including the particulars), 168 and 177 to 179 of the Statement of Claim are struck out, with leave to replead.

3.    The applicants must in the amended Statement of Claim:

(a)    provide particulars of paragraph 95.1; and

(b)    amend paragraph 180 to make it plain that the relief there is sought on behalf of the first applicant only.

4.    The respondents' interlocutory application filed 15 August 2024 is otherwise dismissed.

5.    Costs reserved.

6.    The matter is listed for a case management hearing at a date to be fixed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKSON J:

1    The applicants in this proceeding are four members of a group of companies called the DRA Group, as well as the trustees of a trust that was set up to hold shares and make loans in connection with incentive share schemes for employees of the group. The respondents are two former officers of the group, Andrew Naude and Hayden von Maltitz, and companies said to have been associated with them.

2    The proceeding remains in an early stage, procedurally speaking, largely because of disputes about whether the applicants should be permitted to proceed on the basis of the three versions of the statement of claim that they have filed. The second version was the subject of a strike out application which was partially heard in April 2024. During the course of that hearing that version of the document was effectively withdrawn, on the basis that a substituted statement of claim (SSOC) would be filed.

3    These reasons concern an application for the striking out of the subsequently filed SSOC, in its entirety, alternatively in parts, and for summary judgment in respect of some of the claims sought to be advanced in it. For the following reasons, summary judgment will be refused, the objections to the SSOC will be upheld in part only, and the applicants will be required, in effect, to file an amended version of the SSOC which rectifies the defects that have been established.

4    Before going into all these matters, it will be helpful to put them in context by providing an overview of the nature of the claim. As will be seen, the overview also provides an answer to a submission made by the respondents that the entire SSOC should be struck out as unintelligible.

An outline of the claims made in the SSOC

5    Since no defence has yet been filed it is not possible to know what is in issue, so what follows is comprised entirely of allegations. But to avoid cumbersome and repetitive verbal formulations I will mostly describe them as if they were facts.

Introductory

6    The first applicant is DRA Global Ltd. It is an Australian company which, for a time, was listed on the Australian Securities Exchange. The three other DRA Group companies who are applicants are DRA Group Holdings (Pty) Ltd (DRAGH) and DRA Africa Holdings (Pty) Ltd (DRAAH), each being a company incorporated in South Africa, and DRA Global Limited (UK) (DRAUK), a company incorporated in the United Kingdom. DRAGH is a wholly owned subsidiary of DRA Global, DRAAH a wholly owned subsidiary of DRAGH and DRAUK is a wholly owned subsidiary of DRAAH. The other two applicants are Wiehann Strumpher Joubert and Rener Scheepers in their capacity as Trustees of the DRA Group Holdings Share Purchase Trust.

7    The respondents may be placed in two groups, the first respondent to third respondents are Mr Naude and two companies said to be associated with him: Inyaninga Investments (Pty) Ltd and Jamijen Holdings Pty Ltd. The fourth to sixth respondents are Mr von Maltitz and two companies said to be associated with him: Laela Bayley Pty Ltd and Rolemaker Services Pty Ltd. The existence, nature and timing of the associations may be in issue in the proceeding - they certainly are in the case of Laela Bayley - but I will henceforth for convenience mostly refer to the companies as Mr Naude's or Mr von Maltitz's respectively.

8    It appears that from at least 2008, DRAGH was an operating company running an engineering business. The company was based in South Africa. It operated share incentive schemes for its employees. At least some of those schemes were structured this way: DRAGH would lend money to the Share Purchase Trust and the trust would lend money to employees so that they could buy shares in DRAGH. While this is not abundantly clear, it appears that some schemes operated by way of direct loan from subsidiaries such as DRAUK to employees.

9    From April 2013 Mr Naude began performing work for DRAGH, culminating in July 2019 with his appointment as Managing Director and CEO of the DRA Group. He also held positions with the Share Purchase Trust and with other companies in the DRA Group. It is alleged that he was a fiduciary in relation to those entities, with obligations not to be in a position of conflict, or to misuse his position.

10    Between September 2013 and August 2016, Mr Naude acquired shares in DRAGH through several of the share schemes. As at March 2016 he owed the Share Purchase Trust about 3.1 million South African rand (ZAR) as a result of those acquisitions.

Share Scheme 10

11    The SSOC then focusses on something defined as Share Scheme 10. It is alleged that in April 2015 there were negotiations for a company called Stockdale Street Limited to become a 'strategic investor' in DRAGH. A proportion of the funds provided by Stockdale were to be used to purchase shares from retired or retiring employees of the DRA Group and then resell those shares to key members of management of the DRA Group at the same price at which Stockdale purchased them. This was Share Scheme 10.

12    It is alleged that at this time, Mr Naude considered that the shares in DRAGH were conservatively valued at ZAR70 each. However Stockdale had offered to pay ZAR30 per share for its strategic interest, on condition that Share Scheme 10 was also to be implemented at that price.

13    It is further alleged that Mr Naude and his company Inyaninga intended to acquire a significant number of shares in DRAGH by way of Share Scheme 10.

14    On 14 April 2016, Mr Naude circulated resolutions to the board of DRAGH, said to have been prepared by him, for the purpose of calling an extraordinary general meeting of shareholders of the company to vote on a number of resolutions which, among other things, would implement Share Scheme 10. It is alleged that because he and/or Inyaninga had shares in DRAGH and intended to acquire more through Share Scheme 10, he had a personal interest in the outcome of the resolutions. But, it is said, he did not disclose to the board of DRAGH that he thought that shares in DRAGH were worth ZAR70 each, or that he had a financial interest in the resolutions, which would result in the implementation of Share Scheme 10 at a price of ZAR30 each.

15    On or about 19 April 2016, the board of DRAGH approved the resolutions. Mr Naude signed them in his capacity as a director of DRAGH. It is alleged that because of his interest in the outcome, he did so in a position of conflict, in breach of s 75 of the Companies Act 71 of 2008 (South Africa).

16    The Companies Act has throughout the relevant period contained provisions regulating the provision of financial assistance by South African companies for the acquisition of shares in themselves. Resolutions of shareholders must be passed in order for such assistance to be valid. The Act requires as a condition of validity that sufficient supporting information is given to shareholders.

17    A circular was sent to shareholders in DRAGH on 25 April 2016 which had been prepared at Mr Naude's direction. Among its stated purposes was to provide shareholders with information in respect of a Long Term Incentive Scheme to create value for a select group of key management personnel, and to convene the general meeting to approve various shareholder resolutions. As well as resolutions to approve the putative Long Term Incentive Scheme, there were resolutions to implement a scheme to provide funding to management to acquire further shares (Management Funding).

18    It is alleged that the circular to shareholders implied that the Management Funding constituted part of the Long Term Incentive Scheme, and that this was misleading because in fact it was to implement Share Scheme 10. Again, this is in circumstances where Mr Naude had an undisclosed interest in the outcome. The lack of proper disclosure means that the resolutions that were ultimately passed (on 13 May 2016) did not comply with the provisions of the Companies Act as to financial assistance. By his role in these events, Mr Naude is alleged to have been in a position of conflict, in breach of fiduciary duties and s 75 of the Companies Act.

19    Participation in Share Scheme 10 by Mr Naude, Mr von Maltitz and other individuals is then pleaded. They each participated by nominating Inyaninga as the transferee of the shares they were to acquire. But, it is said, DRAGH could not validly provide financial assistance to Inyaninga in relation to the acquisition of shares in DRAGH because of the alleged deficiencies in the relevant shareholder information and related resolutions (points are also made about Inyaninga's eligibility to participate as an 'employee' or as a member of a category of approved potential recipients).

20    Nevertheless, Mr Naude signed share transfers on behalf of Inyaninga for the acquisition of approximately 7.6 million shares in DRAGH and he also signed the share certificates in his capacity as a director of DRAGH. After this, Inyaninga held a total of approximately 8.3 million shares in DRAGH and owed the Share Purchase Trust about ZAR 220 million, funds which had in turn been advanced to the trust by DRAGH.

21    The acquisitions and the advances by DRAGH are alleged to have been invalid because of the alleged non-compliance with the financial assistance requirements of the Companies Act. It is also alleged that Mr Naude again breached fiduciary duties by taking part in the implementation of these transactions. As well as a director of DRAGH, he was a trustee of the Share Purchase Trust at this time. It is alleged that he thus used these positions to acquire shares in DRAGH at an undervalue.

22    A directors' resolution passed on 5 May 2017 to implement Share Scheme 10 is pleaded. It is alleged that because of the failure to comply with the financial assistance provisions, the resolution was void. It is said that Mr Naude voted in favour of the resolution knowing that the financial assistance provisions had been breached.

The VMF Transaction

23    The SSOC then moves on to a different transaction. This was said to have been pursued in 2017 for the purpose of the 'externalisation' of DRAGH from South Africa.

24    The 'externalisation' was planned to be achieved by way of acquiring an Australian engineering company, Minnovo Pty Ltd, and conducting an initial public offering on the ASX with a secondary listing in Johannesburg (Project Wave). An umbrella agreement to implement this merger was signed on 3 November 2017. It is alleged to have meant that the value of the shares in DRAGH was greater than ZAR30 per share, and Mr Naude allegedly thought that was the case.

25    On 22 November 2017, a discretionary trust styled the VMF Trust was settled in Mauritius, with a company called JurisTax Ltd as its trustee, for the purpose of 'offshoring' Inyaninga's shareholding in DRAGH. The intended beneficiaries of the trust are said to have included Mr Naude, Mr von Maltitz and other individuals. As will be discussed later, there appears to be a gap in the SSOC regarding the respective roles of JurisTax, the VMF Trust and another company called VMF Investments Limited in respect of the VMF Trust and the transaction described below (at [27]).

26    On 6 December 2017, Mr von Maltitz obtained legal advice for DRAGH from a firm called Bowmans. The advice was to the effect that there was a good chance that South Africa's Financial Surveillance Department would approve the necessary cross border transactions. It is alleged that Mr Naude procured changes to the advice to make it appear that a proposed transaction involving the VMF Trust and the Share Purchase Trust was to mitigate risks with Project Wave, when in fact the purpose of the transaction was to promote Mr Naude's personal interests. A valuation of DRAGH shares from around the same time with a midpoint of about ZAR68 is also pleaded.

27    On 11 December 2017 VMF Investments was incorporated in Mauritius. It is alleged that Mr Naude was its 'controlling mind' and so a 'related person' to it within the meaning of the Companies Act. A transaction involving Inyaninga, VMF Investments and the Share Purchase Trust is then described (VMF Transaction). Essentially, the Share Purchase Trust was to purchase some 7.3 million DRAGH shares from Inyaninga and sell them to VMF Investments while funding that acquisition. Mr Naude is alleged to have promoted this transaction, including by circulating a proposed resolution authorising the Share Purchase Trust to participate in it.

28    It is pleaded that a memorandum to the board of DRAGH misleadingly represented that the VMF Transaction would have a 'net zero financial effect' for the DRA Group, and that the transaction was required to progress Project Wave. In fact, it is pleaded, the purpose of the transaction was to send Mr Naude's DRAGH shares offshore so as to defer capital gains tax. As to the allegation about 'net zero effect', it is pleaded later in the SSOC that the effect of the transaction included that VMF Investments did not have to provide a deposit as had been required by the terms of Share Scheme 10, and DRAGH lost security over approximately 700,000 DRAGH shares. It is further alleged that Mr Naude did not disclose to the board that Inyaninga was to sell the shares and that the ZAR30 price was below fair market value.

29    There was then a Sale of Shares agreement entered into for the Share Purchase Trust to sell about ZAR218 million worth of DRAGH shares to VMF Investments. Mr Naude signed the board resolution approving the transaction. He is alleged to have thereby breached fiduciary and directors' duties as well as s 75 of the Companies Act and s 76(3)(a), which appears to impose a duty on directors of companies to exercise their powers and perform their duties in good faith and for a proper purpose.

30    A subsequent circular to shareholders for the purpose of resolutions necessary to the transaction is also alleged to have been misleading for numerous reasons, including because the VMF Transaction and the alleged undervaluing of DRAGH shares were not disclosed. This is said to have meant that the approvals on which the shareholders voted were ineffective. A point about the calculation of voting shares is also raised. These things are said to mean that DRAGH could not validly provide financial assistance to VMF investments.

31    Nevertheless, the VMF Transaction proceeded. The outcome was that the DRAGH shares previously held by Inyaninga were held by VMF Investments. The loan from the Share Purchase Trust to Inyaninga was extinguished and a loan of US$18,450,000 to VMF Investments was advanced. The funds for that advance were borrowed from DRAGH via DRAAH and DRAUK. This occurred with effect as at 24 January 2018. This is said once again to have involved breaches of duty and of the Companies Act on the part of Mr Naude, and it is alleged that he knew from 5 May 2017 that the financial assistance provided by DRAGH was in breach of the law. This is said to have involved Mr Naude using his position in order to acquire the shares at an undervalue.

32    It is further pleaded that under s 75 and s 218 of the Companies Act, Mr Naude is liable to compensate DRAGH for losses it suffered as a result of Share Scheme 10 and the VMF Transaction.

Project Wave

33    Project Wave went ahead, by way of a scheme of arrangement involving DRAGH and Minnovo which was due to go to shareholders in June 2018. Under it, VMF Investments would exchange shares in DRAGH for shares in DRA Global. Shareholders voted in favour and the scheme was implemented in July 2018. The outcome for VMF Investments was that it received approximately 7.3 million shares in DRA Global, and Inyaninga received approximately 1 million shares.

34    It is pleaded that the approximately 7.3 million shares were fully encumbered in accordance with the terms of Share Scheme 10. But no later than 10 May 2019, Mr Naude and Mr von Maltitz had received legal advice to the effect that the shares were unencumbered as a result of the Project Wave transaction, and it is pleaded in the alternative that this was indeed the case.

Share scheme sale and loan deed

35    The SSOC then turns to yet another transaction. This was known as the share scheme sale and loan deed (SSLD), so that the transaction is labelled the SSLD Transaction. This is said to have involved a release of the loan owed by VMF Investments in respect of the shares it had acquired, in consideration for the assignment to DRAUK of the proceeds of the sale of approximately 3.1 million of the shares, by sale or by share buy back. The consequence would be that approximately 4.2 million shares in DRA Global would be held by VMF Investments unencumbered.

36    This transaction was recommended to the board of DRA Global in April 2021, the recommendation having been prepared by Mr Naude and Mr von Maltitz. Various representations are pleaded to have been made in the process, each of which is alleged to have been false or misleading and deceptive. It is pleaded that Mr Naude knew this.

37    The board of DRA Global resolved to authorise entry into the SSLD. It is alleged that these resolutions are void, alternatively voidable, because they were procured by the misleading or deceptive conduct of Mr Naude. The SSLD itself was executed on 21 May 2021. It is alleged that it too was void or voidable, having been procured by the same misleading or deceptive conduct.

38    Conflicts of interest and breaches of duty on the part of Mr Naude are alleged by reason of his position as a director of DRA Global, DRAUK and DRAGH. Breaches of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and of the Corporations Act 2001 (Cth) are also alleged.

Disposal of shares

39    It is pleaded that in about January 2022, the VMF Trust distributed shares in DRA Global to Mr Naude's company, the third respondent Jamijen, and Mr von Maltitz's companies, the fifth respondent Laela Bayley and the sixth respondent Rolemaker, as well as to certain DRA Global employees. It appears that the shares that were distributed were the ones that were unencumbered as a result of the SSLD Transaction. VMF Investments continued to hold the approximately 3.1 million shares that were the subject of security granted in the SSLD Transaction.

40    In December 2022, DRA Global chose to execute on that security, requiring VMF Investments to sell the shares that it held to a third party, Apex Partners Pty Ltd, at ZAR20 per share. After that, VMF Investments still owes DRAUK about ZAR167 million.

41    In December 2022, Inyaninga distributed the DRA Global shares that it held to Mr Naude, Mr von Maltitz and two others. In February 2023 Mr Naude, Mr von Maltitz and their companies sold their DRA Global shares to Apex Partners for ZAR20 per share.

Knowing assistance and knowing receipt

42    The SSOC pleads that each of Inyaninga, Jamijen, Mr von Maltitz, Laela Bayley and Rolemaker received their respective shares in DRA Global with knowledge of Mr Naude's breaches of equitable and statutory duties in respect of Share Scheme 10, the VMF Transaction and the SSLD Transaction. They are therefore said to be liable to account to the applicants for the profits they have earned, or for equitable compensation.

Loss suffered

43    Finally, losses said to have been suffered as a result of the above conduct are pleaded.

44    It is said that but for the Share Scheme 10 transaction, Inyaninga would not have purchased the approximately 7.6 million DRAGH shares from the Share Purchase Trust and the trust would not have advanced about ZAR215 million to Inyaninga. But for the breaches that occurred in respect of the VMF Transaction, the Share Purchase Trust would have demanded repayment of the loan from Inyaninga and enforced the security it then held over approximately 8 million shares in DRAGH. But for the breaches associated with the SSLD Transaction, DRAUK would have demanded repayment of the loan that was advanced under the original terms of the DRAGH share incentive scheme and enforced the security it held over the approximately 7.3 million shares.

45    Various losses said to arise out of these circumstances are pleaded. Depending on different ways of calculating losses, the quantum claimed ranges from about ZAR84 million up to about ZAR252 million.

46    Various monetary remedies are then claimed, along with interest and costs.

Determining the applications

47    The parties addressed the summary judgment and strike out application in four different parts, and I will now do the same.

1.    Laela Bayley

48    First is an application that summary judgment be entered in favour of the fifth respondent, Laela Bayley because, it is said, requisite knowledge on its part cannot be proved.

49    The claim against Laela Bayley rests on the allegation that when it received shares in DRA Global as a result of the VMF Transaction and the SSLD Transaction, it knew that the shares were derived from the breach by Mr Naude of his fiduciary duties to members of the DRA Group. The shares in question were 861,142 in number, and unencumbered. They are said to have been received in or about January 2022.

50    Laela Bayley's knowledge of Mr Naude's breaches of fiduciary duties is said be established by the fact that Mr von Maltitz was a director of the company, and its controlling mind, so that his knowledge is imputed to Laela Bayley. Mr von Maltitz's knowledge in turn is said to have come from the fact that under Mr Naude's direction, he drafted the papers that gave effect to each of the VMF Transaction and the SSLD Transaction.

The parties' arguments

51    Laela Bayley's summary judgment application rests on the proposition that to succeed, it will be necessary for the applicants to establish that Laela Bayley had knowledge of Mr Naude's alleged breaches of fiduciary duty at the time that it received the shares in DRA Global. The problem for the applicants, according to Laela Bayley, is that they have conceded that Mr von Maltitz was not a director of the company at the time that it acquired the shares, and nor is he a director of the company now. The applicants have specified in answer to a request for further and better particulars that Mr von Maltitz became a director of Laela Bayley on 8 March 2022. The shares having been received in about January 2022, Mr von Maltitz was not a director at the time of receipt.

52    Laela Bayley also points out that the SSOC pleads that Mr von Maltitz is a director of Laela Bayley, when the applicants' particulars say that he ceased to be a director on 10 September 2023. So in the alternative to the summary judgment claim, they submit that the court should strike out that plea in the SSOC, as well as the plea (in effect) that Mr von Maltitz's knowledge as at January 2022 is to be imputed to Laela Bayley.

53    The applicants accept that the errors in the SSOC as to when Mr von Maltitz became a director should be corrected by amendment. But they say that he was a director at the time when the sale of shares in DRA Global for a profit occurred, which is pleaded as having taken place in February 2023. They submit that the equitable jurisdiction on which their claim is based is flexible enough to provide relief in circumstances where a respondent had the relevant knowledge at the time at which it profited from the receipt of the property in question, not just the time of that receipt itself.

Principles as to summary judgment

54    Laela Bayley seeks summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth). It is only necessary to address s 31A, as the principles under r 26.01 are essentially the same: see Quach v Commissioner of Taxation [2019] FCA 1729 at [11].

55    Relevantly, the Court's discretion to grant summary judgment is enlivened under s 31A(2) if the Court is satisfied that the applicants here have no reasonable prospect of successfully prosecuting the part of the proceeding that is the claim against Laela Bayley. That part of the proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success: s 31A(3).

56    It is not necessary to recite the well-established principles that apply in such applications; I respectfully adopt, without setting out or summarising, the principles set out by Derrington J in ThoughtWare Australia Pty Ltd v IonMy Pty Ltd [2023] FCA 906 at [46]-[54] (who in turn relied on the summary given by McKerracher J in Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [29]; and Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 at [3]).

Consideration

57    The parties only cited three cases between them as to the principles concerning the time as at which knowledge must be proved in order to establish a claim for knowing receipt, commonly referred to as the first limb of the rule in Barnes v Addy (1874) LR 9 Ch App 244. The cases were Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296; Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405; and Li v Perpetual Holdings Pty Ltd [2025] NSWSC 175. On a summary judgment application it is not appropriate for me to embark on any wide-ranging survey of other authorities on Barnes v Addy claims which have not been cited to me. Thus the point comes down to whether Laela Bayley has satisfied me, on the basis of the three authorities on which it relied, that there was no reasonable prospect that the applicants' case against it would succeed.

58    In Grimaldi, there was no issue about the time at which the relevant knowledge was acquired, so the reasons of the Full Court are not specific on the timing point. Nevertheless, I accept that those reasons are consistent with the proposition that to be liable under the first limb of Barnes v Addy, the recipient of property must have knowledge of the fiduciary's wrongdoing at the time of receipt. As counsel for the respondents put it, 'the whole concept of the first limb of Barnes v Addy is knowing receipt' (ts 3). Consistent with that proposition is the Full Court's confirmation that liability under the first limb of Barnes v Addy is fault based: Grimaldi at [269]. On the face of things, if receiving property is to involve fault on the part of the recipient, the knowledge that renders it so must be held at the time of the receipt.

59    The timing point was not in issue in Simmons either: see [102]-[110]. But the lead judgment of Gleeson JA (Beazley P and Barrett JA agreeing) is specific when it sets out the principles; at [88] it is said that the elements of a claim under the first limb in Barnes v Addy include:

… knowledge by the third party, at the time he or she received the relevant property, that it was trust property and that it was being misapplied or, in the case of breach by a fiduciary, that the trust property was transferred pursuant to a breach of fiduciary duty.

60    This is further consistent with the definition of the first limb given by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [112] (quoted in Simmons at [86]): 'Persons who receive trust property become chargeable if it is established that they have received it with notice of the trust'.

61    As for Li, once again, the timing point was not in issue, but Peden J's statement of the relevant rule is that the relevant knowledge must be had at the time of receipt of trust property. Her Honour relies on Simmons in that regard: see Li at [102]-[103].

62    Where does that leave the applicants' pleaded claim against Laela Bayley? As counsel for the respondents submitted, the concession that Mr von Maltitz was not a director of the company at the time at which it received the DRA Global shares means that the present plea cannot be maintained. For the plea is that Laela Bayley received those shares knowing that they were derived from Mr Naude's alleged breaches of duty. The Barnes v Addy liability is not pleaded to arise when the shares were subsequently sold by Laela Bayley with that knowledge. The concession destroys the plea, even before one gets to the question of whether knowledge on the part of Laela Bayley at that later time may be sufficient to support a claim. And on the authorities cited to me, the answer to that question may well be 'no'.

63    Nevertheless, there is merit in the point made by senior counsel for the applicants that the doctrines of equity have considerable flexibility. A conventional first limb Barnes v Addy claim seems to be foreclosed, assuming that Laela Bayley is fixed with knowledge solely as a result of Mr von Maltitz's position as a director of the company. But it would be premature for the Court to proceed on the basis that the applicants are inevitably shut out of any equitable claim to the money derived from the sale of the shares, or to equitable compensation. The Court simply does not know what circumstances may be enlisted to support such a claim.

64    In that respect, the possibility of a claim to a constructive trust was raised in the parties' submissions. The respondents submit that Li at [72] is authority for the proposition that the applicants cannot plead a constructive trust because there is no evidence to support a mutual intention between the parties to create a trust. In fact the respondents appeared to be relying on [73], but in any event the reliance is misplaced. For when Peden J required the parties to have had a mutual intention to create a trust, her Honour was referring to the intention that was necessary to create an express or implied trust, anterior to any constructive trust, the breach of which would then give rise to the constructive trust. It is trite that a constructive trust may be imposed as a remedy by the court regardless of the parties' actual or presumed intentions: see Muschinski v Dodds (1985) 160 CLR 583 at 614, 617; Baumgartner v Baumgartner (1987) 164 CLR 137 at 147-148.

65    The respondents also drew my attention to the case of Fistar v Riverwood Legion and Community Club Ltd [2016] NSWCA 81; (2016) 91 NSWLR 732, in which Leeming JA said at [45] (Bathurst CJ and Sackville JA agreeing):

that liability under the first limb of Barnes v Addy is not the only way in which a recipient of trust property may become bound in conscience to account for it. A person who receives trust property, otherwise than as a bona fide purchaser for value without notice, but innocently, and thereafter acquires notice of the trust and deals with it in a manner inconsistent with the trust, will also be liable as a constructive trustee.

66    I do not say, of course, that this way of pleading the claim is necessarily open to the applicants; I do not know the facts on which they might seek to rely, if any. But the possibility that it may be open indicates to me that at this point, at least, the Court should not shut the claim out completely by granting summary judgment.

67    As such, the appropriate order on this aspect of the interlocutory application reflects the form of relief sought by Laela Bayley in the alternative, namely that paragraphs 9.3 and 167.2.3 should be struck out. Paragraph 9.3 has been conceded to be factually incorrect: it pleads that Mr von Maltitz is a director of Laela Bayley, when that is no longer the case (and was not the case at the time the SSOC was filed). Paragraph 167.2.3 is the plea that Laela Bayley's knowledge is imputed by reason of Mr von Maltitz's position as a director. Since that cannot be maintained in the context of the claim as currently pleaded, it follows that paragraph 156.2 must also be struck out, as must paragraph 10 and all references to Laela Bayley in paragraphs 161, 163, 167 (including the particulars), 168 and 177 to 179.

68    There will, however, be leave to replead. The applicants will have one more chance to plead a coherent claim against Laela Bayley.

2.    Limitation periods

69    The second aspect of the interlocutory application arises because the respondents seek partial summary judgment in relation to certain claims on the basis that, due to lapse of time, those claims are barred or extinguished under certain South African statutes.

Applicable principles

70    The parties were agreed as to how the Court should address questions arising under South African law. Questions of foreign law are treated as questions of fact when they arise in a domestic context. It is common to adduce opinion evidence from experts in the foreign law to prove its contents. But evidence of foreign statutes may be adduced by producing a document that purposes to be an official publication of them, and evidence of the common law or unwritten law of a foreign country can be adduced by producing law reports. The Court can thus make findings about the content of foreign law without expert evidence. See generally Evidence Act 1995 (Cth) s 174, s 175; and Secretary, Department of Social Services v Vader [2024] FCAFC 37; (2024) 302 FCR 352 at [44]-[45] (Perry J, Charlesworth and Jackson JJ agreeing).

71    One of the relevant South African statutes is the Companies Act. The applicants have pleaded that several things done by Mr Naude while the headquarters of the DRA Group was domiciled in South Africa involved breaches of:

(a)    s 75 of that Act, which applies when a director or a related person has a financial interest in a matter being considered by the board;

(b)    s 76, which concerns the duties of directors;

(c)    s 44, which concerns the provision of financial assistance by a company in the acquisition of shares in the company; and

(d)    s 45, which concerns financial assistance provided to directors.

72    The applicants allege that Mr Naude and Inyaninga are liable for losses sustained by DRAGH as a consequence of each of Share Scheme 10 and the VMF Transaction. They invoke two sections of the Companies Act as giving rise to liability for breach of the other sections just mentioned: s 77 and s 218.

73    In very broad terms, s 77 provides that a director of a company is liable for any loss, damages or costs sustained by the company as a consequence of various things, some of which are said to have occurred here. Section 218 appears to be a general provision which in sub-section (2) provides that:

Any person who contravenes any provision of this Act is liable to any other person for any loss or damage suffered by that person as a result of that contravention.

74    The other relevant South African statute is the Prescription Act 68 of 1969. This provides that certain claims are extinguished after the lapse of a period of time. It therefore seems analogous to the limitations statutes familiar to Australian law.

The parties' arguments and consideration of summary judgment

75    In relation to the claim under s 77 of the Companies Act, the respondents rely on s 77(7) which, after amendments that took effect in December 2024, provides:

In relation to the proceedings to recover any loss, damages or costs for which a person is or may be held liable in terms of this section -

(a)    the Prescription Act, 1969 (Act No. 68 of 1969) does not apply;

(b)    subject to paragraph (c), such proceedings may not be commenced more than three years after the act or omission that gave rise to that liability; and

(c)    the court may, on good cause shown, extend the period referred to in paragraph (b) regardless of whether -

(i)    such period has expired or not; or

(ii)    the act or omission that resulted in the loss, damages or costs contemplated in this section, occurred prior to the promulgation of the Companies Second Amendment Act, 2024 (Act No. 17 of 2024)

76    The respondents submit that the applicants rely on alleged breaches that are all said to have taken place between 2016 and 2017. The first version of the statement of claim was filed on 22 September 2023. The respondents accept that this raised essentially the same claims as are raised in the SSOC. But it was still filed more than three years after the alleged breaches occurred. There has been no extension of the period under s 77(7)(c). The respondents say that the claims are therefore time barred.

77    As to s 218(2) of the Companies Act, in reliance on South African case law the respondents submit that it has been interpreted not to apply when more specific provisions such as s 77 apply. According to the respondents, then, it does not save the applicants from the time bar.

78    The respondents thus seek summary judgment in relation to paragraph 173 of the SSOC. This claims orders pursuant to s 77 or s 218(2) of the Companies Act for Mr Naude and/or Inyaninga to pay DRAGH or DRAAH sums of money which appear to be attributed to losses suffered because, having lost security over some DRAGH or DRA Global shares held by Inyaninga variously as a result of Share Scheme 10, the VMF Transaction and the SSLD Transaction, DRA Global lost the opportunity to sell those shares to Apex Partners in December 2022.

79    The respondents take a similar point in relation to the applicants' claims that rest on alleged breaches of fiduciary duty by Mr Naude. The remedies sought there are general damages and/or an account of profits. The respondents say that these claims are time barred too, in this case they seem to rely on s 10 and s 11 of the Prescription Act, which extinguish 'debts', relevantly, after a lapse of the period of three years: s 11(d). Where the claimant is a juristic person, such as a company, and the defendant a member of the governing body of the claimant, the time will be extended to a period of one year after the defendant ceases to be a member of the governing body: s 13(1)(e).

80    The prescription period starts running 'as soon as the debt is due': s 12(1). As to when that occurs, the respondents rely on South African case law to submit that in the case of damages, the period starts when the breach of duty occurs, while in the case of 'disgorgement', that is, an account of profits, it starts at the time when the payment giving rise to the profit is made (such as the payment of the sale price for shares sold).

81    These various refinements and the different nature of the causes of action asserted by different applicants meant that the Prescription Act submissions took on a high degree of intricacy. This is demonstrated by two tables provided by the respondents themselves in their written submissions. They are reproduced in Schedule 1 to these reasons.

82    In any event, it appears that with one qualification, the respondents submit that in each case the claim was time barred when the first statement of claim in the proceeding was filed on 22 September 2023.

83    The qualification is that in the case of the claim by DRA Global, the respondents say that the breaches all occurred in March 2016 to December 2017, before it was incorporated, so it cannot make those claims because it did not exist at the time the breaches occurred. The same goes for the date of the alleged gain, which the respondents appear to assign as the effective date of the advance of US$18,450,000 to VMF Investments on 24 January 2018 (see [31] above).

84    From this beginning, already unpromising in its complexity for a summary judgment application, the parties' arguments unfolded to reveal yet more complexity. I have therefore concluded that summary judgment would not be appropriate and, as such, it would be arid and premature to trace the arguments in any detail. It is enough to describe several of the issues that arise on the parties' submissions in order to demonstrate why summary judgment would not be appropriate in this case. They are as follows:

(1)    Does the Prescription Act apply to any of the claims made under the Companies Act? The respondents seem to accept that if s 77 of the Companies Act applies then the Prescription Act does not, but they contest a submission by the applicants that this is so in relation to all the claims advanced in the SSOC.

(2)    Assuming that the Prescription Act does not apply to at least some of the claims, do principles laid down by South African courts in relation to that Act apply to the time bars found in the Companies Act? The applicants submit that the respondents rely on Prescription Act cases for the proposition that the time starts running from the breach of fiduciary duty. They submit that those cases do not involve the interpretation of the phrase 'the act or omission that gave rise to that liability' which is found in s 77(7)(b) of the Companies Act.

(3)    Did the act or omission that gave rise to the alleged liability to DRA Global, at least, take place on 21 May 2021, when the SSLD was executed? The applicants submit that it did, in which case they commenced the proceeding within the three year period. This could also be an answer to the point that DRA Global had not been incorporated in 2016 and 2017; it was incorporated on 24 May 2018. The respondents counter that the applicants plead breaches that occurred in April 2016 to 2017.

(4)    How can the claim for 'disgorgement' be based on the date of the advance of funds to VMF Investments, 24 January 2018, when VMF Investments is not a defendant, and so disgorgement of that advance is not sought in this proceeding? Should the time start running instead from the sale of the DRA Global shares by the defendants at a profit? That occurred on about 1 February 2023.

(5)    While no application to extend time under s 77(7)(c) of the Companies Act has yet been made, is it open to the applicants to make it now, so as to seek that the time is taken to have been extended retrospectively from the time at which the cause of action arose? Or, on the proper construction of the section, is it necessary to apply for the extension of time before commencing the proceeding, as the respondents appear to maintain? What does 'good cause' mean in the context of s 77(7)(c)? The relatively recent promulgation of the section may mean that there is no South African case law on it.

(6)    Does the applicability of s 77 of the Companies Act exclude the application of s 218 of that Act? The applicants contest the respondents' reading of the South African cases. They say that the two South African companies, DRAGH and DRAAH, can claim relief under the two sections in the alternative. In reply submissions, the respondents maintain that their reading of the cases is correct. They also say that reliance on s 218 does not assist the applicants anyway, because the Prescription Act does apply to claims made under that provision, but they cite no authority confirming this.

(7)    To the extent that the Prescription Act does apply, do s 12(2) and s 12(3), which deal with the consequences of wilful concealment or lack of knowledge by the applicants for other reasons, apply so as to effectively extend the time?

(8)    Does the word 'debt' when used in the Prescription Act encompass the claims for an account of profits and constructive trust which the applicants advance against the various respondents?

(9)    In any event, to what extent is the South African legislation engaged by claims made by the Australian company, DRA Global, or the United Kingdom DRAUK? If they are not engaged, what limitation periods, if any, apply?

85    The points need not be laboured further. The respondents' reliance on time bars raises so many issues that it would be wrong to grant summary judgment on that basis. That is all the more so when no evidence has been adduced from experts in South African law. The respondents have not established that the limitation points are so strong that the applicants have no reasonable prospect of success.

86    The respondents do, however, rely on an Australian case for the proposition that summary judgment may still be granted, because the limitation periods have expired and the point has been raised in the course of the summary judgment application. This relates to issue (5) described above. That case is Paramasivam v Flynn (1998) 90 FCR 489. The respondents seek to draw parallels with this case, for in Paramasivam the Full Court held that the facts necessary to establish the limitation defence could be made out from the plaintiff's own pleading. They say that no application for an extension of time having been made here, the Court can grant summary judgment on the basis of the defence.

87    However, Paramasivam was a very different case, involving allegations of historical sexual assault. And it is distinguishable for at least two reasons. First, the defendant there had already pleaded the limitation defence. So the question of whether pleading the defence was necessary before an application for an extension of the limitation periods need be made did not arise. Second, at the same time as the defendant had applied for summary judgment, the plaintiff had made that application for an extension of time. The primary judge had dismissed that application and only after doing that had granted summary judgment. The Full Court found no error in the primary judge's approach.

88    Paramasivam therefore does not stand for the proposition that if a plaintiff has not brought the application for an extension of time by the time the summary judgment application is heard, summary judgment must be granted on the limitation defence. The effect of the particular passage on which the respondents rely, at page 512, is that in the case before it, the Full Court did not consider that it was necessary for the defendant to make out a good defence on the merits because the facts necessary to make out the limitation defence were established on the plaintiff's own case.

89    That may well be so in an appropriate case, but it does not engage with the numerous issues that arise as a result of any limitation points taken in this case, which mean that the limitation defence has not been established here, for the purposes of and to the standard required on a summary judgment application.

90    Further, it is necessary to bear in mind the well-known admonition of Mason CJ, Dawson, Gaudron and McHugh JJ in Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 at 533, that it is generally undesirable to determine limitation questions in interlocutory proceedings in advance of trial except in the clearest of cases. Reinforcing the need to observe that admonition in the present case is that, as the applicants point out, the facts on which they will rely on any application to extend the period under s 77(7)(c) of the Companies Act will substantially overlap with the facts on which they rely to advance the claims in the first place. That is why I have said that it would be premature to trace through all the arguments.

91    The respondents have pointed to no authority which establishes that, the limitation point having been raised on a summary judgment application, I should proceed as though the applicants have lost their chance to apply for an extension of time. I therefore take the possibility of such an application into account in dismissing the respondents' application for summary judgment.

92    In any event, even if the possibility is set aside, the numerous other issues described above also lead to the conclusion that the application must be dismissed. I note in passing that further issues, not raised by the parties, may also emerge from the kinds of conflicts of laws questions that are canvassed in Paramasivam at 497-500.

3.    Strike out of the SSOC in its entirety

93    The respondents say that the SSOC should be struck out in full. They do so on two bases. I will consider and decide on each in turn.

Principles on strike out

94    There is no need to recite the well-established principles that apply when a party applies for the striking out of part or all of another party's pleading. I respectfully follow the summary given by Wigney J (Anastassiou and Jackson JJ agreeing) in KTC v David [2022] FCAFC 60 at [117]-[125].

The first basis for striking out in full

95    The respondents submit that the SSOC should be struck out in its entirety because it is unintelligible. They point to what they say is excessive and repetitive cross referencing. This makes it impossible for them to know what case they have to meet. They submit that some of the paragraphs introduce circular cross referencing which requires the reader to traverse between paragraphs hundreds of times. An example is paragraph 121 which pleads in relation to the VMF Transaction:

In the premises of paragraphs 101, 114 and 116 above:

121.1    the transfer of 7,286,021 DRAGH shares to VMF Investments occurred in circumstances where the Companies Act 2008 (South Africa) had been contravened; and

121.2    the loan provided to VMF Investments on 24 January 2018 occurred in circumstances where the Companies Act 2008 (South Africa) had been contravened.

96    Then when one goes to paragraph 101, one finds it pleaded that:

In the premises of paragraph 99 and 100 above, the December Resolutions were passed in circumstances where the Companies Act 2008 (South Africa) had been contravened.

97    Then paragraph 99 commences 'In the premises of paragraphs 92 and 95 above …'. And so on. The respondents thus calculate that paragraph 121 of the SSOC involves 705 cross references.

98    I agree that the extent of cross referencing employed in the SSOC is unusual. I do not agree, however, that this by itself renders it unintelligible. In order to assess whether the pleading as a whole is intelligible it must be read from beginning to end. Mathematical exercises of the kind undertaken in the preceding few paragraphs treat it as though it were an algorithm rather than an account of material facts.

99    That is why, at the beginning of this judgment, I have set out the results of reading the SSOC, in the perhaps pedestrian way of beginning to end. Performing that exercise demonstrates that, considered as a whole, it is intelligible.

100    This does not rule out the possibility that in specific instances, the cross referencing goes awry. Of course, it is open to the respondents to point to particular paragraphs where this has rendered the particular plea embarrassing. But I decline to strike out the SSOC on the basis of the respondents' global submission concerning the extent of cross referencing here.

101    The respondents relied on the decision of Snaden J to strike out a pleading in its entirety in Alpert v Commonwealth of Australia (Department of Defence) (No 2) [2024] FCA 447. But each case of this kind turns on its own facts and the particular characteristics of the pleading under attack. In Alpert, the merit of the pleading as a whole was defended but faintly (see [40]) and his Honour's overall view of it at [45] was based on a number of deficiencies:

As has already been noted, it is excessively long. In and of itself, its length is not necessarily objectionable; but, combined with its verbose, narrative style, and its heavy dependence upon cross-referencing (and the complexity that that inevitably introduces), it is extremely difficult - I think impossible - to understand with precision the discrete, constituent allegations that are advanced against the respondents. Although the core accusations are clear enough, the constituent allegations that populate them often are not. As a matter of general observation, the pleading does not meet the standard upon which the respondents are entitled to insist as litigants before this court.

102    Excessive cross referencing was but one of the problems and, as has been said, each pleading must be addressed on its own merits.

103    Counsel for the respondents raised a concern that the extent of cross referencing would make it difficult or impossible to plead a defence for fear that an enormous number of alternatives may mean that a path or paths that the applicants take to establish liability at trial will be missed. This echoes another well-known admonition in High Court authority, that the task of the pleader 'does not extend to planting a forest of forensic contingencies and waiting until final address or perhaps even an appeal hearing to map a path through it': Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 at [27] (French CJ, Gummow, Hayne and Kiefel JJ).

104    But it does not follow from the mathematical exercises undertaken by the respondents I have described that the SSOC gives rise to a large number of alternatives. The pleas are cumulative. In oral submissions senior counsel for the applicants confirmed this understanding of the pleading (at ts 26 ln 5-10). The applicants will be held to that at trial. If they do seek to rely on alternative allegations, that must be expressly pleaded.

105    Taking the example given at [95] above, the plea is advanced on the basis of paragraphs 101, 114 and 116 of the SSOC. Looking to those paragraphs: paragraph 101 alleges that the resolutions of the DRAGH board of directors passed in December 2017 were passed in circumstances that contravened the Companies Act; paragraph 114 alleges that the circular to DRAGH shareholders seeking approvals necessary for the VMF Transaction was vitiated by misleading statements and omissions; and paragraph 116 alleges that DRAGH could not provide financial assistance to VMF Investments because of matters set out in that paragraph. It is clear enough that the applicants are pleading that all of these things, taken together, mean that the VMF Transaction breached the Companies Act.

106    The respondents will be able to plead to each of paragraphs 101, 114 and 116. They will accept that the DRAGH board resolutions of December 2017 involved contraventions of the Companies Act, or they will not. They will accept that the circular to shareholders was misleading, or they will not. They will admit that DRAGH could not provide financial assistance to VMF Investments, or they will aver that it could. In view of the position they take on these matters, they will or will not traverse the allegations made in paragraph 121 of the SSOC.

107    Sometimes a pleading is complex because the facts are complex. Here, the events relied on include several transactions which, to put it neutrally, resulted in the restructuring of complicated employee incentive share holdings in South Africa and Australia over the course of some six years. In the face of that, the applicants have understandably employed cross referencing as a device to avoid repetition and prolixity. I decline to strike out the SSOC as a whole on that basis.

Second basis for striking out in full

108    The respondents also complain that the many 'particulars' given for numerous paragraphs of the SSOC are in truth just references to documents. They say that they should not have to trawl through a mountain of documents in search of the case that they have to meet.

109    I agree that they should not have to do that. I also agree that in most of the paragraphs of the SSOC, the 'particulars' are indeed in the form of references to documents. I accept that the respondents are not making a pedantic point about the distinction between particulars and evidence. They are making a substantive point that the SSOC does not properly apprise them of the case they have to meet.

110    The problem with this complaint, however, is that the respondents have not demonstrated that going to the specified documents does not readily apprise them of that case.

111    Also, the applicants point out that pursuant to orders of the Court, they have provided responses to 156 requests for particulars made in relation to the SSOC. If, after that exercise, the respondents truly were left without an understanding of the case put against them, the proper course would have been to seek orders for further particulars.

112    I decline to strike out the SSOC as a whole.

4.    Specific strike out points

113    In addition to the general matters just addressed, the respondents apply for specific paragraphs of the SSOC to be struck out on various grounds. The points they make number 20 or so. In an attempt to reduce the length of an already lengthy interlocutory judgment, I have addressed each point in concise form in the table found at Schedule 2 to these reasons. There is one exception to that, being a dispute between the parties about the mathematics of the shares involved in certain transactions, which is better addressed in narrative form.

114    The table is otherwise self-explanatory, save as to one point. The extensive cross referencing in the SSOC means that often, if an earlier paragraph is struck out, it will follow that later paragraphs that expressly rely on it will also be struck out. The table indicates the paragraph of the SSOC at which the objection is primarily directed by putting it in bold. The other paragraphs listed need not be addressed separately, but stand or fall with the 'primary' paragraph.

115    As to the mathematical dispute, it arises because the respondents contend that an allegation in paragraph 123.4 of the SSOC that the VMF Transaction caused DRAGH to lose security over 700,142 shares in DRAGH does not add up. The respondents point out that paragraph 59.2 of the SSOC says that, under Share Scheme 10, 7,589,987 shares had been transferred to Inyaninga. In paragraph 60 of the SSOC, it is said that all of these shares were fully encumbered pursuant to particular terms of Share Scheme 10, with a further 396,166 shares 'pledged' in accordance with different terms of Share Scheme 10. So after Share Scheme 10, according to the SSOC, 7,986,153 shares had security attached, being 7,589,987+396,166. It is then pleaded that the VMF Transaction resulted in 'DRAGH, through DRAAH and in turn, DRAUK, only having security over 7,286,021 DRAGH shares'. This leaves a balance of the previously secured shares of 700,132 (the figure of 700,142 in the SSOC seems to be a typo). But, the respondents say, there is no plea that the pre-existing security over those 700,132 shares was relinquished or extinguished. The respondents thus appear to characterise this as the pleas simply not adding up.

116    The applicants' answer to this is as follows. They plead that the relevant terms of Share Scheme 10 meant that all new shares acquired pursuant to that scheme, as well as a deposit equivalent to 5% of shares held, were to be pledged and ceded to the Share Purchase Trust as security for the loan advanced. The applicants say that the deposit was of 396,166 shares. On that basis, 7,986,153 shares held by Inyaninga after Share Scheme 10 were secured (again, 7,589,987+396,166=7,986,153). Then, with effect as at 24 January 2018, 7,286,021 DRAGH shares were transferred from Inyaninga to the VMF Trust on terms which, it was pleaded, extinguished the loan that arose from Share Scheme 10. Those 7,286,021 shares were then subject to security by reason of the VMF Transaction. The entire Share Scheme 10 loan having been extinguished, though, the balance of the relevant shares (7,986,153-7,286,021=700,132) were no longer subject to security.

117    The plea that the Share Scheme 10 loan was extinguished appears in paragraph 118.1.1 of the SSOC. The applicants acknowledge that this is not cross referenced in paragraph 123.4 (the latter being the paragraph of which the respondents complain), and that it should be. They propose to amend to add the cross reference and to correct the typo mentioned above.

118    Counsel for the respondents asserted that there was still a mathematical error because the shares that were required to be pledged as a deposit in Share Scheme 10 were 5% of 7,589,987 being 379,499 shares, not the 396,166 alleged by the applicants. This is said to mean that after the VMF Transaction, DRAGH held security over the 7,286,021 shares that were transferred pursuant to that transaction and the 7,589,987-7,286,021=303,966 shares that were not transferred pursuant to that transaction. He appeared to be submitting that those 303,966 shares were still secured as the remainder of the deposit that had been pledged as part of Share Scheme 10.

119    But this submission fails to engage with the substantive point made by the applicants: that the release of the loan liability that arose from Share Scheme 10 led to the extinguishment of all the security that had resulted from that transaction. In reply, senior counsel for the applicants submitted that the respondents could plead the point in their defence, if they wish. I agree. The simple fact is that the applicants have articulated a basis for asserting that the security over the 700,132 shares was lost as a result of the VMF Transaction. Either that is right or wrong, but it is not the result of a simple mathematical error (save as to the typo). It is not a strike out point. And it is regrettable that by raising and persisting with it, the respondents have required the Court to spend over a page laboriously addressing the point, to no useful purpose.

Two further comments on the SSOC

120    I wish to make two further comments on the SSOC. These arise from my overall review of the document. They were not raised by the respondents. But since the appellants are going to amend the document anyway, they may wish to take these comments into account.

121    The first is that the SSOC pleads at various points that certain resolutions or transactions are void or voidable. But it was not clear to me how that is said to follow through to the relief claimed. If the allegedly void or voidable character of these matters is pleaded to have consequences, ultimately, for the relief claimed, that is not clear.

122    The second point concerns the VMF Transaction, I have foreshadowed it above. The existence of an entity defined as the 'VMF Trust' is pleaded, with the trustee a company called JurisTax as its trustee. But the VMF Transaction is pleaded to involve, not that company or trust, but a different company, VMF Investments. And yet, towards the end of the SSOC, the VMF Trust is said to have distributed certain shares which, earlier, are pleaded to have been held by VMF Investments. It appears to me that the respective roles of the VMF Trust, JurisTax and VMF Investments need to be clarified.

123    Of course, if I have overlooked any aspects of the SSOC that resolve these queries, the applicants will be free to draw them to my attention.

Costs

124    The respondents have had some success in connection with their alternative claim for striking out in respect of Laela Bayley, and limited success in relation to the individual strike out points. They have otherwise been unsuccessful. It is also relevant to consider whether, in a summary judgment application, there is a basis to depart from the usual rule that costs follow the event in case the ultimate result (after trial) vindicates the respondents' position. I will reserve costs for now with the intention that I will hear from the parties on the subject at the next case management hearing. They should confer as to the appropriate costs orders in the meantime.

Associate:

Dated:    13 February 2026

Schedule 1

Respondent's Tables re Prescription Act

* 20 As in Australia, South African courts have also confirmed that a trust is not a juristic person. Veteran Advocacy Australia v Secretary, Dept of Veterans' Affairs [2024] FCA 895 and the South African Court of Appeal decision Tusk Construction Support Services (Pty) Ltd and Another v Independent Development Trust [2020] ZASCA 22 at [25],[26].

* As in Australia, South African courts have also confirmed that a trust is not a juristic person. Veteran Advocacy Australia v Secretary, Dept of Veterans' Affairs [2024] FCA 895 and the South African Court of Appeal decision Tusk Construction Support Services (Pty) Ltd and Another v Independent Development Trust [2020] ZASCA 22 at [25], [26].

Schedule 2

Table of Specific Strike Out Points

SCHEDULE OF PARTIES