Black Rock Mining’s urgent application to the high court in Johannesburg to have Nkosana Makate’s funds from his settlement with former employer Vodacom frozen has been dismissed because Black Rock failed to prove its claim that Makate intends to “dissipate” the money.
In a judgment handed down on 8 December, acting high court judge Don Mahon said Black Rock’s argument that Makate may use the funds for personal purposes such as settling debt or investing outlines “ordinary financial conduct” and is not proof of dissipation in the legal sense.
“The law does not prevent a litigant from using lawfully acquired funds for lawful purposes merely because another party asserts a contractual claim to a portion of them,” Mahon said in the judgment.
“If the funds are not shown to be at risk of dissipation, the harm feared is, in principle, remediable through a later claim for damages or contractual payment. It appears to me that, in the absence of evidence of an intention to dissipate, the application is neither urgent nor capable of satisfying the requirements for interim relief.”
Black Rock’s application to the court forms part of a larger claim that the company is entitled to 40% of the settlement to be paid to Makate by Vodacom as compensation for the “please call me” idea. The matter between Makate and Vodacom was settled out of court in November after 17 years of litigation. The settlement amount has not been made public but is believed to be worth north of R500-million.
The application to freeze Makate’s payout will now hold until arguments are heard in the main case in which the validity of Black Rock’s claim will be determined. A court date for that part of the proceedings is yet to set.
According to Mahon, even though Black Rock’s application for an urgent interdict relied solely on a contractual right, the court could not intervene on an urgent basis merely because a dispute existed.
Trust account
“Urgency is established only if the applicant shows that, unless immediate intervention occurs, the very efficacy of the relief sought will be undermined. Absent some indication that the funds may not remain available, the ordinary resolution of disputes in the timeframes of motion or trial proceedings suffice,” said Mahon.
Stemela & Lubbe Incorporated, the law firm that represented Makate in proceedings against Vodacom from 2014 until the matter was settled in November this year, was the second respondent in the matter. Makate’s legal team had already indicated that the funds were going to be placed in a trust account belonging to Stemela & Lubbe, which is bound by “strict fiduciary and statutory obligations regarding trust monies”.
Read: Vodacom settles landmark ‘please call me’ case out of court
Mahon said there is no allegation that Stemela and Lubbe had behaved in any manner suggesting an inclination to misappropriate, conceal or prematurely disburse trust funds. Similarly, Black Rock put forward no facts indicating that Makate intends to move money overseas, engage in concealment or place himself beyond the reach of a future judgment.
Black Rock gave the court examples of conduct by parties in other matters where funds that were in dispute were either misappropriated or deliberately made inaccessible to the claimants once a court had ruled on the validity of their claim. Mahon did not accept this argument, saying the conduct of third parties at another point in history did not serve as proof that Makate or Stemela and Lubbe had similar intentions.
The claim by Black Rock flowed from an alleged prior contractual agreement between Makate and Christiaan Schoeman, Makate’s litigation funder until the relationship soured in 2015, when Makate attempted to cancel their contract claiming Schoeman and his associates failed to provide adequate funding and had cash flow issues.
Mahon dismissed Black Rock’s application and slapped the company with a costs order for legal counsel for both Makate and Stemela & Lubbe Incorporated.
Read: ‘Please call me’ saga not over yet for Nkosana Makate
“The applicant has failed to establish an intention to dissipate or a reasonable apprehension that the settlement proceeds will be dissipated. The harm it fears is financial and capable of redress in ordinary proceedings,” said Mahon. – © 2025 NewsCentral Media
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