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FLYNOTES: CONTRACT – Interpretation – Conduct of parties – Existence of binding contract – Letter of intent and request for quotation contemplated further negotiations – No binding contract was formed until final terms were agreed – Protracted negotiations and unresolved disputes over key terms – Demonstrated an absence of a meeting of minds – Lack of evidence for misrepresentation – Conduct of parties indicated that no valid agreement existed – No misdirection – Appeal dismissed.

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

 

JUDGMENT

           

Reportable

Case no: 2025-127863

 

In the matter between:

 

OLD MUTUAL ALTERNATE RISK TRANSFER

INSURE LIMITED                                                              APPLICANT

 

and

 

SA GUARANTEE SPECIALISTS PROPRIETARY

LIMITED                                                                            FIRST RESPONDENT

 

CAREL DANIEL HANEKOM                                            SECOND RESPONDENT

 

Coram:          MORRISSEY AJ

Heard:           7 August 2025

 

JUDGMENT:  13 AUGUST 2025

Morrissey AJ:

 

[1]  This is an urgent application in which the applicant, Old Mutual Alternative Risk Transfer Insure Ltd (“OMART”) essentially seeks authority to access, by force if necessary, certain business premises of the first respondent, SA Guarantee Specialists (Pty) Ltd (“SAGS”); to search those premises for certain documents and electronic data; and to copy or retain those documents and data.

 

[2]   SAGS says the relief amounts to an Anton Pillar order and should not be permitted because the primary requirement for such an order, the anticipated destruction of evidence, has not been established.

 

[3]  OMART says that it does not seek an Anton Pillar order.  It contends that it is seeking the enforcement of its contractual rights against SAGS, and has been compelled to ask the Court for assistance because, despite demand, SAGS has failed to comply with those obligations.

 

[4]  OMART insure is licensed as a non-life insurer in terms of the Insurance Act, 18 of 2017. In terms of its license, OMART is authorised to write insurance in various classes and subclasses of insurance business, including the class “guarantee”. The guarantee policies it is permitted to issue must be in respect of business within South Africa. OMART is not authorised to conduct guarantee business outside of South Africa, and breaches its license if it does so.

 

[5]  OMART is what is referred to as a cell captive insurer. This is effectively a contractual relationship between a licensed insurer and another company, whereby the latter subscribes for a unique class of shares from the former to establish a ring-fenced accounting unit (a “cell”) within the insurer. From this cell the company is able to operate, manage and administer insurance on the relevant insurer’s license.

 

[6]   Essentially, the arrangement allows a company that is not a licensed insurer to administer and manage insurance business for and on behalf of such an insurer, and to share in the profits and losses generated within the unit or cell from which the company operates.  Such a company is referred to as an underwriting manager.  These types of arrangements are regulated by statue.

 

[7]   SAGS is a licensed financial services provider in terms of the Financial Advisory and Intermediary Services Act 37 of 2002.  It is an OMART underwriting manager as just described.  The second respondent, Mr Carel Daniel Hanekom, is a director of SAGS’ and OMART’s point of contact with it.

 

[8] The contractual arrangements between OMART and SAGS comprised a shareholders agreement (in respect of the preference shares OMART issued to SAGS in respect of the relevant “cell”), and a so-called binder agreement.

 

[9]   The binder agreement was concluded between OMART and SAGS on 8 October 2020. At that stage their names were Mutual & Federal mutual Risk Financing Limited and South African Guarantee Specialists (Pty) Limited respectively. The binder agreement is central to this application as it is the contract OMART says contains the contractual provisions it relies upon for the relief it seeks. It is thus necessary to set out some of its terms.

 

[10]  Clause 4.1 deals with the scope of SAGS’ appointment. It provides that SAGS, defined in the agreement as the “Underwriting Manager”, shall render the services in terms of the agreement: “… for and on behalf of M&F risk financing [OMART] as an underwriting manager and an independent contractor”. The clause goes on to provide that:

 

“The appointment of the Underwriting Manager in terms of this Agreement, and this Agreement itself, shall not be construed in any way to... authorise the Underwriting Manager to perform any functions on behalf of M&F Risk financing outside of the mandate granted it terms of the agreement.”

 

[11]   Clause 13 deals with the services SAGS will provide. It provides that SAGS:

 

“… is hereby mandated and appointed by M&F Risk Financing, and the Underwriting Manager accepts such appointment, on the terms and conditions contained in this agreement, as an underwriting manager for the purpose of rendering the following services:

The entering into, variation and/or renewal of policies on the terms set out in annexure B1 to this Agreement.

Determining premiums under a personal lines short term policy on the terms set out in annexure B3 to this Agreement.

Reporting on the binder activities the information relating the policies, on the terms as contained in the Annexures to this Agreement.

Administering the IT platform used to manage the delivery of the services to the policyholders, on the terms set out in annexure B4 to this Agreement.

The settlement of claims of policies on the terms set out in Annexure A to this Agreement.

The underwriting guideline to determine premiums will be made available by the Underwriting Manager to M&F financing on request.”

 

[12]   Clause 25.2 expressly provides that the Underwriting Manager shall only transact insurance business within the Republic of South Africa.

 

[13]      Clause 14.1 deals with service levels. Clause 14.1.2 requires that “with specific regard to dealing with a policy” the Underwriting Manager must report to M&F Risk Financing “… as soon as it becomes aware of any particular risk in relation to the service it renders in terms of this agreement”.

 

[14]      “Data” is defined to mean “policy, policyholder data, documents, information, graphics, text and/or other material in an electronic or tangible medium which the underwriting manager or MF risk financing generates collects, processes, stores or transmits in relation to the business”.  “The Business” is defined to mean “… all aspects of M&F Risk Financing’s business and or any business conducted by Affiliates, including, without limitation, the business of marketing, selling, administering, financing, reinsuring and supporting insurance and financial services and related products”.

 

[15]      Clause 6 is headed “information technology (“IT”) systems”. Clause 6.6 provides that the Underwriting Manager acknowledges that M&F Risk Financing has a right to “… access any data regarding any policy and policyholder held by the Underwriting Manager as and when such data is requested by M&F risk financing”. Clause 6.10 provides that the Underwriting Manager must “… provide the specific data to M&F Risk Financing as required, to ensure the fulfillment of M&F Risk Financing’s ongoing regulatory responsibilities”.

 

[16]      Clause 7 is headed “keeping of records”. It provides that “… the Underwriting Manager must keep and maintain books of account and records relating to the policies, the services and each policyholder and must allow M&F Risk Financing, any statutory actuary appointed by M&F Risk Financing and its auditors, full and unfettered access to those books of account and records”.

 

[17]      Clause 9 is headed “audit and monitoring”. It provides that M&F Risk Financing will undertake audit and monitoring on an ongoing basis and “… may at any time on reasonable notice to the Underwriting Manager, do an inspection (including, but not limited to, access to all data, records, policies and other information processing activities carried out by the Underwriting Manager relating to this Agreement) should reasonable risk and/or performance management and regulatory compliance requirements require such intervention”.  Clause 9.5 permits M&F Risk Financing to undertake an annual audit on 5 business days’ notice.

 

[18]      Clause 18 is headed “data protection and privacy”. Clause 18.1 read with clause 18.1.8 provides that the parties agree they have appropriate technical and organisational measures in place to “… safeguard the security, integrity and authenticity of all information being processed in terms of this Agreement. At a minimum, those measures must include controls related to the following... ensure that it [SAGS] is able to identify all data relating to this Agreement and persons insured by M&F Risk Financing separately from other data under its control”.

 

[19]      Clauses 3, 26 and 27 deal with the term and termination of the binder agreement.  Cause 3 provides that the agreement “… shall commence on the effective date, whereafter it shall continue indefinitely until terminated for any reason by either party giving 90 days written notice of termination to the other or until cancelled in terms of the applicable provisions within this agreement”.

 

[20]      Clause 26 deals with breach.  It permits either party to cancel the agreement on 90 days’ written notice (amongst other remedies) if a breach committed by the other party is not remedied within seven days of receipt of a written notice to do so.  It also contains a form of acceleration clause in favour of the innocent party regarding amounts owing under the agreement, and permits that party to certain legal costs associated with the cancellation.

 

[21]      Clause 27 provides that OMART may terminate the binder agreement by giving not less than 90 days written notice to SAGS where certain events identified in clause 27.1 have occurred.  Those events include a situation where SAGS “… or any of its shareholders or its directors is alleged to have committed or is convicted of fraud, theft or any other crime involving dishonesty” (clause 27.1.1); or if SAGS “… breaches any of the material obligations or any warranty contained in this agreement” (cause 27.1.8).

 

[22]      Clause 27.2.1 provides that”

 

“If one of the events in clause 27.1 occurs and notice of termination is given to the Underwriting Manager… M&F Risk Financing will obtain all the information from the Underwriting Manager relating to the Policies and the Policyholders and M&F Risk Financing will perform any activities that the Underwriting Manager is required to perform in terms of this agreement.”

 

[23]      Clause 28 is headed “effect of termination”. Clause 28.1 provides that until any termination or cancellation becomes effective, both parties will remain bound by their respective responsibilities and duties in terms of the Agreement. Clause 28.2 goes on to state that:

 

“During the 90 day notice period, M&F Risk Financing may, in its sole and absolute discretion:

limit or prevent the Underwriting Manager from performing certain or all of the binder activities and/or incidental activities for the remaining duration of the agreement; and/or

…

take any other reasonable measures to limit any risks it may be exposed to as a result of the Underwriting Manager's breach and/or resulting from or associated with this Agreement and/or its termination.”

 

[24]      Clause 28.3 sets out what SAGS must do once the termination date arrives, namely, once the 90-day termination period has elapsed.  Those obligations include SAGS immediately returning “… All documents, information and data relating to every policyholder, M&F Risk Financing, any confidential information made available to the Underwriting Manager, and any other documents pertaining to the business and/or the delivery of the services, in the format required by M&F risk financing so as to enable it to ensure continuity of service to the Policyholders”.  SAGS is also required to account to OMART “… to reconcile the financial position of all transactions relating to the services and will provide any assistance and information to M&F risk financing required for this purpose”.

 

[25]      Clause 29 is headed “step in the right”. I cite it in full:

 

“29.1     If the Underwriting Manager is unable to perform the binder function as a result of any of the following:

29.1.1         being placed under curatorship;

29.1.2         business rescue;

29.1.3         becomes insolvent;

29.1.3         is liquidated;

or is for any other reason unable to continue to render the services it is obliged to render in accordance with this Agreement, M&F Risk Financing or any duly authorised financial services provider appointed by the M&F Risk Financing shall take over the Insurance Business in the interest of Policyholders and perform any activities that the Underwriting Manager is required to perform in terms of this Agreement and the cost of performing such activities or services will be payable by the Underwriting Manager on demand.

29.2      Where M&F Risk Financing or the authorised financial services provider performs such activities and services during the termination period, the Underwriting Manager is prohibited from performing any of those Binder Activities or incidental activities without the express written consent of M&F Risk Financing and the Underwriting Manager will co-operate with M&F Risk Financing or the appointed financial services provider to limit any risks that M&F Risk Financing or any Insured may be exposed to resulting from or associated with this Agreement or its termination.”

 

[26]      On 20 June 2025, Mr Walter Cronje, OMART’s managing director, received a telephone call from a Mr Domenico Ferrinia of Ninety One Securitisation S.A (“Ninety One”).

 

[27]      During that call Mr Ferrinia expressed concern about a guarantee SAGS had issued to Ninety One on behalf of OMART not being paid, despite the necessary demand having been made.  That guarantee was referred to as the “Franki Guarantee” in the papers and I will also refer to it by that name. Mr Ferrini followed the call up with an email of the same date, in which he recorded the following summary of the situation:

 

“One of our funds, the European Credit Opportunities Fund 1, has a loan which is guaranteed by an on-demand bond issued by OMART and arranged by SAGS.

We made a valid demand under the bond to 30 days ago on 20 May, and in accordance with the bond’s terms the payment was due by yesterday, 19 June, at the latest.

We are very concerned because, in breach of OMART’s obligations, we did not receive payment yesterday as required by the demand and the bond.

SAGS raised numerous information requests and serious unsupported claims to which we responded fully and comprehensively ahead of the date for receipt of payment.

As we did not receive payment yesterday, our London solicitors sent a pre-action letter last night solicitors instructed by Danie [Mr Hanekom] to represent OMART and SAGS (a london-based firm named Humphries Kersetter).

A copy of this letter is attached for your reference. We can also provide previous correspondence if you would like to receive this.”

 

[28]      Mr Ferrini’s email went on to record that Ninety One were taking the matter very seriously.  He indicated he was open to an amicable resolution given the relationship between OMART and Ninety One.  He concluded by stating that “… The matter is urgent and you can call me at any time on my mobile number below.  Are you available to speak with me later today?”.

 

[29]      Mr Cronje stated that prior to Mr Ferrini’s call, neither he nor any other OMART employee were aware of the Franki Guarantee or any of the facts recorded in Mr. Ferrini’s email.  At approximately 13h30 on 20 June 2025, just under an hour of having received Mr Ferrini’s email, Mr Cronje forwarded it to Mr Hanekom, saying he required “… A detailed response from you by this evening including copies of all relevant guarantees, security documentation and progress on reinsurance payments”.

 

[30]      Mr Hanekom responded just after 18h00 on the same day.  He attached certain documentation relating to the Franki Guarantee.  He also stated that Ninety One was in breach of the terms of the Franki Guarantee and that “… We have already identified several misrepresentations on their part and continue to investigate further matters. Accordingly, we have denied liability and appointed Humphreys Kerstetter LLP, specialist litigation firm in London, to represent us in this matter and to formally engage with Ninety One’s attorneys”.  Mr Hanekom went on to provide some further background to the matter.

 

[31]      It appears that by that stage Mr Cronje appreciated that the Franki Guarantee was issued in foreign currency to a party outside of South Africa, beyond the terms of OMART’s license.  On 21 June 2025 (a Saturday) he sent a further email to Mr Hanekom, raising the following queries:

 

“On what basis are you issuing bonds to foreign entities denominated in foreign currency? OMART Insure is not licensed for this and this constitutes a breach of our licensing conditions.

The limits you have issued are way in excess of our treaty limits as I understand - please explain.

Of concern as well in that this bond does not appear on the list of policies/bonds/guarantees you furnished me at our last meeting? Why not?

What were the premium charges for this bond, where were they paid and in what currency?

 

[32]      Mr Cronje went on that state that “… These are serious issues once again Danie placing us at significant risk and serious reputational damage. Please reply urgently”.

 

[33]      Mr Hanekom responded a few hours later.  He recorded that during 2022/23, SAGS had disclosed to OMART that it intended to establish an international platform to write bonds in other jurisdictions and that is had engaged with various advisers to assist it in that regard. He explained that SAGS had engaged Ninety One during 2023, which had led to the issue of the Franki Guarantee.  Mr Hanekom said that had been done because the potential carriers (issuers) for the international platform had wanted to determine the pipeline for future business, and that “… SAGS had to showcase their transaction to the international carriers based in Bermuda that showed a key interest”.

 

[34]      It thus appears that the idea between SAGS and Ninety One was for the Franki Guarantee to have been swapped for another one issued by an international carrier in Bermuda shortly after it was issued, but that had not occurred.  Per Mr Hanekom’s email:

 

“… We informed Ninety-One of the fact that SAGS will swap out the bond during the first three months after having issued the bond, replacing OMART with the international character carrier and Ninety-One agreed to this. The Bermuda Insurer at the last minute changed their mind and decided against a cell captive specialising solely on bonds”.

 

[35]      Mr Hanekom concluded his email in the following way:

 

“The intention was never for the bond to be on the books of OMARt for more than 3 months.

I accept that none of the above is of any comfort and I also accept there will be consequences for SAGS.

If possible, allow SAGS four months to defend against the breaches of the bond conditions by Ninety-One.”

 

[36]      As I read Mr Hanekom’s email, he recognised that the issue of the Franki Guarantee was beyond OMART’s licence conditions.  It had been issued to show potential third parties who were authorised to issue such guarantees that SAGS could generate business for such bonds, with a view to it being transferred to such a third party shortly after it was issued.

 

[37]      Mr Cronje responded on the evening of 21 June 2025 in the following way:

 

“I am utterly astounded at the contents of your e-mail. You have not disclosed any of the information below and have acted beyond the mandate of your binder with OMART Insure. I need the following information urgently...”

 

[38]      Mr Cronje then set out five queries he required Mr Hanekom to respond to, one of which read as follows:

 

“I require full disclosure immediately of any other such arrangements you have entered into without our authority to do so.”

 

[39]      Mr Cronje’s email concluded as follows:

 

“… Please be advised that with immediate effect (irrespective of the date of any guarantee or bond) your authority to bind OMART Insure on any new or renewal business is hereby withdrawn pending the resolution of this matter. You may not issue any form of guarantee or bond on behalf of OMART Insure without written approval from me and with my personal signature attached. Additional correspondence in this regard will follow in the week. I require the immediate confirmation of your understanding of - and your compliance with this instruction.”

 

[40]      Mr Hanekom responded about half an hour later.  He said he would respond to Mr Cronje’s five queries, but that in the interim he confirmed “… the withdrawal of the authority of SAGS, the procedure per your instruction below, and SAGS compliance with it”.

 

[41]      Mr Hanekom wrote to Mr Cronje again on the morning of Sunday, 22 June 2025, responding to the five queries the latter had raised the evening before.  His response to the request for disclosure of “arrangements” SAGS had entered into without OMART’s authority, Mr Hanekom stated that:

 

“There are no other such arrangements”

 

[42]      There was another email exchange between Mr Cronje and Mr Hanekom later on 22 June, and by about that date, OMART had at least the following information pertaining to the Franki Guarantee:

 

·                It had been issued to Ninety One, a company registered and incorporated in Luxembourg, on 7 June 2024, guaranteeing a principal debt owed to it by a German entity named Westend Project-und Streungsmanagement GmBH (“Westend”). Westend’s indebtedness apparently arises from funding Ninety One provided to it for a property development in Germany.

·                The maximum amount payable under the guarantee was originally €36 600 000.00, but was increased by an amendment on 1 April 2025 to €47 710 000.00 (approximately R989 million).

·                Per correspondence from Ninety One’s London lawyers to SAGS, Ninety One unsuccessfully demanded payment from Westend on 6 May 2025.  The correspondence goes on to state that on 20 May 2025, Ninety One demanded payment from SAGS under the Franki Guarantee in the amount of €39 747 902.09, such amount to be paid by 19 June 2025.  OMART says it has still not had sight of this demand, and first became aware of any issues once Mr Cronje took Mr Ferrinia’s call on 20 June 2025.  The proceedings between Ninety One and SAGS on the Franki Guarantee are apparently ongoing in the London courts.

 

[43]      On 24 June 2025, OMART wrote to SAGS, cancelling the binder agreement.  Essentially, OMART based its cancellation on the fact that SAGS had breached the binder agreement when issuing the Franki Guarantee because doing so amounted to transacting insurance business outside of South Africa and beyond the ambit of OMART’s license.  OMART stated that it “…hereby gives formal notice of termination of the Binder Agreement in terms of clause 27.1, with termination to take effect 90 (ninety) days from the date of this letter”.

 

[44]      OMART went on to state that during the 90-day notice period, SAGS must immediately:

 

“Cease issuing any new guarantees or policies in the name of OMART Insure;

Cease renewing existing guarantees without the prior written approval of the writer.  Any renewal guarantees must be counter signed by the writer.

Continue handling claims in the appropriate manner. OMART Insure will provide further details in due course, regarding the handling of outstanding and new claims going forward.

Comply with the applicable provisions of Clause 28.3 and provide confirmation of the new insurer.

Refrain from making any representations, whether explicit or implied, to Ninety One or any other third party, suggesting that SA Guarantee has the authority or mandate to issue guarantees or instruments on behalf of OMART Insure outside of the Republic South Africa. Any such representations would be inaccurate, misleading and potentially fraudulent.”

 

[45]      The letter went on to demand the following:

 

“SA Guarantee must within 2 (two) business days of this letter provide OMART Insure with a report on all the active guarantees issued to date. The report must include, as a minimum: Guarantee Number, Broker Name, Inception Date, Expiry Date, Guarantee Type, Value, Client Name, Principal Name and Premium Charged. Accompanying this report must be copies of all information and data relating to the guarantees in issue as well as all relevant security documentation relating thereto.

OMART Insure must be granted access to the SA Guarantee system to enable full visibility and retrieval of all data and information relating to active and expired guarantees.”

 

[46]      On 20 June 2025, and pursuant to discussions with Ninety One, OMART discovered that SAGS had issued another offshore guarantee in favour of Ninety One during June 2024.  That guarantee, referred to in the papers as the “Blade Guarantee”, was for an amount of £23 800 000.00.

 

[47]      OMART contends that the discovery of the Blade Guarantee shows that Mr Hanekom was dishonest when he said there were “no other such arrangements” when responding to Mr Cronje’s question of 21 June as to whether there were other arrangements SAGS had entered into without OMRT’s authority to do so. 

 

[48]      Mr Hanekom disputed any such dishonesty in his answering affidavit.  He explained that he answered Mr Cronje truthfully because the “arrangement” under the Franki Guarantee was a unique one, and his response did not constitute a denial of other guarantees.  I have some difficulty accepting Mr Hanekom’s interpretation of Mr Cronje’s request as being so narrow as to encompass only guarantees on identical or substantially similar terms to those of the Franki Guarantee.  Significantly, Mr Hanekom chose not to use the opportunity his answering affidavit presented to clarify whether or not any other offshore guarantees had been concluded, over and above those OMART has since discovered.

 

[49]      Between about 24 June and 29 July 2025, OMART engaged with SAGS to obtain the documents and information demanded in the 24 June termination letter.  I do not intend to chronicle those engagements in detail, and limit what follows to a summary of events over that period.

 

[50]      There initially appeared to be a level of compliance on Mr Hanekom’s part.  For example, when Mr Cronje wrote to Mr Hanekom on 24 June, asking to send someone to SAGS’ offices to collect copies of all guarantees in force, Mr Hanekom responded by saying he would start printing hard copies of the scanned originals.  Mr Hanekom also confirmed that SAGS would comply with the demands referred to in paragraph [44] above.  Mr Hanekom also answered certain queries Mr Cronje put to him, by email, WhatsApp and during telephone calls. 

 

[51]      Mr Cronje and Mr Hanekom met for about an hour on 2 July 2025 at SAGS’ offices.  Mr Cronje said that during that meeting Mr Hanekom again denied the existence of any other guarantees issued to entities outside of South Africa.  He also said he was in the process of retrieving the original security documentation for all the guarantees issued by SAGS from an off-site secure document storage facility, and that he would scan the documents and courier the originals to OMART.  Mr Hanekom also said that all the information requested in the termination notice was being collated and would be provided.

 

[52]      Some data was provided to OMART via WeTransfer on 9 July 2025.  Mr Cronje said it was of limited benefit to OMART because although it contained lists for banks, agents and bond types, there was no information that could be used for the purposes of managing or dealing with the SAGS book of business, which OMART had by then sought to take over. Mr Cronje said that for OMART to benefit from the use of the information, the data had to be in the form of a backup of the SAGS system, which had not been provided.

 

[53]      Between then and about 21 July, OMART’s requests for documents became more and more pressing and SAGS responses were less and less forthcoming: The documents Mr Cronje had said were in the process of being scanned had still not been delivered and some correspondence and communications from OMART went unanswered.

 

[54]      On 21 July 2025, OMART’s attorneys of record addressed a lengthy letter to SAGS.  That letter set out some of the history of the matter and some of the terms of the binder agreement.  It concluded by demanding an inspection at SAGS premises on 25 July 2025, on the following basis:

 

“Given SAGS’ failure to comply with the numerous previous requests from OMART INSURE as set out above, OMART INSURE hereby notifies SAGS that in accordance with clauses 6.6, 7, 9.1, 9.7 and 28.3 of the Binder Agreement, OMART INSURE will be attending at SAGS offices on 25 July 2025 at 10h00 to carry out an inspection, and to take copies (in electronic or hard copy as the case may be) of the following information/documents:

All data held all data held by SAGS on its IT system or otherwise pertaining to OMART INSURE or the services contemplated in the Binder Agreement;

All documents, information, correspondence and data relating to every policyholder in terms of which SAGS entered into a policy with on behalf of OMART INSURE;

Books of account and records relating to any policies entered into by SAGS on behalf of OMART INSURE, including details of any premium payments, bank account details of bank accounts into which that premium was paid, and bank statements of these accounts;

All documentation in possession or under the control of SAGS which bears the name or logo of OMART INSURE / M&F Risk Financing; and

Any other documents, records, files, material, software, assets or correspondence pertaining to the services contemplated in the Binder Agreement.

 

[55]      The letter went on to conclude that if SAGS did not assist with the inspection, failed to provide documents timeously or in any way hinder or obstruct it, OMART would approach the Court for urgent relief.

 

[56]      On 22 July 2025, one Ms Amelia Costa, a partner at OMART’s attorneys of record, attempted to telephone Mr Hanekom to confirm he had received the 21 July 2025 inspection letter. Mr Hanekom did not answer and, on 22 July 2025, Ms Costa sent a WhatsApp message to him, following up. That message was also unanswered and on 24 July 2025, Ms Costa forwarded a copy of the 21 July 2025 inspection letter to Mr Hanekom via WhatsApp. Mr Hanekom responded with a WhatsApp message about half an hour later, stating as follows:

 

“Dear Amelia

I am currently out of the office until Wednesday 6 August with limited connections

I will have better connection from Monday [28 July] and will start to dump files to Mphana of OMART. It is approximately 27,000 files and about 26Gbyte of files”

 

[57]      OMART sought to convene the inspection demanded by its attorneys of record on 25 July 2025. SAGS offices were found locked, and neither Mr Hanekom nor any other SAGS employee was present. Attempts to track Mr Hanekom down at other addresses were unsuccessful.  This is unsurprising in light of Mr Hanekom’s message to Ms Costa saying he would be away from the office until 6 August.  In his answering affidavit Mr Hanekom explained that he had been away in the Cederberg mountains between 24 July to 6 August, during which time he did not have access to cell phone communications.  He did not explain why he did not respond to the 21 July letter demanding an inspection before he left.

 

[58]      On 28 July 2025, OMART received links to several WeTransfer folders containing documents relevant to SAGS’ business. Those folders contained about 8 410 documents, comprising 7.45 gigabytes of data. This is substantially less than the 26 gigabytes of data that Mr Hanekom had referred to in his WhatsApp message to Ms Costa of 24 July 2025.

 

[59]      OMART considered that SAGS had not provided it with all the documents/data it demanded. On 29 July 2025, it's attorneys of record addressed further correspondence to SAGS, recording that the documentation requested had not been provided, and setting out a long list of documentation it considered was outstanding. OMART went on to state that:

 

“Given that you are downloading documents to OMART Insure remotely, it seems that the documents are stored on an online platform/cloud storage. That being so it is far more practical for you to provide OMART Insure with access to the online platform where the documents are stored. The Binder Agreement allows OMART Insure to have access to this online platform/cloud storage. We accordingly call on you to provide us with the login details and passwords that will allow OMART Insure to access the online platform/cloud storage.”

 

[60]      The letter went on to demand that the outstanding documents were furnished by 17h00 the same day.

 

[61]      SAGS provided no further documentation by that deadline, but did provide additional documents the following day (30 July 2025). OMART contends that a substantial amount of documentation nevertheless remains outstanding.  OMART’s attorneys sent a further letter to SAGS on 30 July. Essentially, that letter recorded that SAGS had failed to accede to OMART’s demands in the 21 and 29 July letters, and that OMART now had no option but to approach the courts for urgent relief to ensure compliance with them.

 

[62]      Much of the factual background set out above comes from OMART’s papers.  Although SAGS filed an answering affidavit deposed to by Mr Hanekom, that did not respond directly to many of the obligations made.  This may well have been as a result of the oppressive timetable OMART imposed on SAGS when bringing its application.

 

[63]      Be that as it may, I did not understand SAGS to dispute much of the factual background.  Rather, the thrust of SAGS’ opposition was that OMART had not validly cancelled the binder agreement (SAGS contended that OMART repudiated it) and, even if it had, the deadline for it to hand over the documentation and data OMART sought was at the end of the 90-day termination period, which will only arrive on 22 September 2025.

 

[64]      SAGS also said that OMART has impermissibly sought to accelerate the production of that information by reliance on the step-in rights under clause 29 of the binder agreement, but that OMART has incorrectly relied on that clause because it only applies where one of the events in clause 29.1 occurs (SAGS being placed under curatorship or business rescue, becoming insolvent or being liquidated), and it is common cause that none of those events have occurred.

 

[65]      That attitude is encapsulated in the following extract from Mr Hanekom’s affidavit, responding to OMART’s account of events between 24 June and 30 July 2025:

 

“The Applicant’s minute-by-minute log of my communications does not show evasion; It shows constant engagement while I was trying to manage a business and collate an enormous volume of data. The Applicant's own admission that I have already provided over 8,400 files proves my substantial cooperation. Their complaint that this is not ‘complete’ based on their own unsubstantiated estimate of ‘27,000 files’ is simply unreasonable. A proper handover requires an appropriate process, not unending demands under threat of litigation.

This is the very reason why a 90 day notice has been established in the binder agreement - to allow the Respondent to deliver all documents and files in a structured and organised manner.”

 

[66]      OMART instituted urgent proceedings out of this Court on Thursday, 31 July 2025.  It afforded SAGS until 1 August to file a notice of opposition and until Monday, 4 August 2025 to file answering affidavits. It set the matter down for hearing on Thursday, 7 August 2025. The founding papers were extensive, running to just over 500 pages in total, with the founding affidavit running to 73 pages.  That meant that SAGS had a very limited opportunity to respond to the application, which in turn meant that I had to consider the matter with what was clearly terse input from the respondents.  While a truncation of the default time limits for the exchange of affidavits is a regular feature of urgent applications, an applicant who imposes too severe a timetable may not only unfairly prejudice a respondent, but also the Court that has to hear the matter without the respondent having a fair opportunity to ventilate its case, notwithstanding the attendant urgency.  As will be seen, I have sought to accommodate the limited time the respondents had to address OMART’s case in my Order.

 

[67]      As stated in the introduction, OMART essentially seeks access to SAGS premises and to search them for certain data (including electronic date) and to make and retain copies of it.  The substantive relief covers about ten pages.  My attempt at summarising it follows:

 

67.1         SAGS or any adult person in charge of its business premises at 1[…] G[…] W[…] Avenue in Somerset West is obliged to grant access to a “supervising attorney”, six forensic experts, a representative of OMART and the sheriff for the district of Somerset West.

 

67.2         Such access is to be granted to enable those parties to:

67.2.1    Search the premises to identify, point out, access and where necessary remove certain “data”;

67.2.2    Search the premises to find networks, computers, hard drives and other storage media, and to then search that media for the “data” by connecting it to computers used by the forensic experts;

67.2.3    Permit the forensic experts to make copies of storage media containing the data, with a copy being retained by OMART; and

67.2.4    Permit the forensic experts to make print-outs of the data located on digital devices or media if it cannot be copied electronically.

67.3   SAGS or any adult person in control of the aforesaid digital devices or media must disclose any passwords or procedures required for the effective access to them to give effect to the searching/copying referred to above.

 

67.4   In the event that SAGS refuses to grant access to the premises, the sheriff, assisted by a locksmith if need be, is authorised to obtain access “as necessary”.

67.5   In the event that the relevant copying cannot be completed on a single day, the sheriff is authorised to take any digital devices or media into his custody, and the forensic experts may complete their work under the supervision of the sheriff and the instructing attorney within two days, with the devices or media to thereafter be returned to SAGS.

67.6   SAGS or any adult person in control of the aforesaid premises must disclose the whereabouts of the “data”, be it at those premises or elsewhere.

 

67.7   OMART is granted leave to approach the Court on supplemented papers to permit execution of the Order at such other place where the “data” is located.

67.8   Certain safeguards have been built into the Order:

 

67.8.1    The execution of the Order is to be monitored and overseen by the supervising attorney.

67.8.2    A detailed inventory of documents and other items removed from the premises is to be prepared and a copy provided to SAGS, that inventory to be confirmed by the supervising attorney.

67.8.3    The order may only be executed between 08h00 and 18h00 on a weekday.

67.8.4    OMART must compensate SAGS for any damage caused by any person exceeding the terms of the Order.

67.9   The “data” OMART seeks concerns:

67.9.1    Documents in respect of all guarantees issued by SAGS on OMART’s behalf, for which 16 categories of documents are identified. They include documents such as quotations, term sheets, invoices, contractual documents, statements of account, bank statements for the accounts into which the premium was paid, demands and correspondence.

67.9.2    Information in respect of all guarantees issued by SAGS on OMART’s behalf.  Seven categories of information are identified, including the amount of the guarantee, the parties to it, details of the premium and when it was paid and the status of any outstanding claims.

67.9.3    Documents and information pertaining to Ninety One.  Seven categories of documents are identified, including letters of authority and related correspondence, three years of bank statements for certain premium accounts and correspondence between SAGS and Westend.

 

[68]      Ms Basson, who appeared for SAGS, described OMART’s decision to bring its application as the selection of the “nuclear option”.  She submitted that OMART was effectively seeking an Anton Pillar order, and had abused the court’s process by instituting a procedural ambush to authorise a pre-litigation fishing expedition.  Ms Basson also submitted that on a proper conspectus of the facts, SAGS had been involved in a proactive and structured handover of documents to OMART, a process that only had to be completed by 22 September 2025 when the binder agreement terminated at the end of the 90-day notice period.  She further submitted that OMART had failed to establish any risk of harm should it have to wait out that 90-day period.  Ms Basson also challenged OMART’s claim to invoke the urgent jurisdiction of the Court.  Essentially, her submission was that OMART had waited almost five weeks from the date it discovered the Franki Guarantee before bringing its application.

 

[69]      Mr Green, for OMART, stressed that OMART did not seek an Anton Pillar order. Rather, he submitted, OMART sought specific performance of its contractual rights under the binder agreement.  He submitted that on a proper interpretation of that agreement, the relief OMART was seeking was to have access to data SAGS was obliged to provide to it.  Mr Green said that the matter was urgent because OMART needed to know whether SAGS had concluded any other guarantees in its name and beyond its authority other than those it has discovered to date, and because OMART had taken over SAGS’ business under the binder agreement and needed information to continue running it on a day-to-day basis.  He submitted that OMART had acted prudently by engaging with SAGS before bringing these proceedings, and had only resorted to litigation once it was apparent that SAGS was not going to comply with its obligations.  Mr Green also challenged the proposition that OMART had to wait until the end of the 90-day period before it could get the information it was seeking from SAGS.

 

[70]      While there can be no doubt that the relief OMART seeks is intrusive in nature and similar to that granted in an Anton Pillar matter, the basis on which that relief is premised is entirely different.

 

[71]      Anton Pillar applications contemplate a situation where there is a concern that a party will destroy evidence if proceedings are instituted in the ordinary way.  They are brought ex parte in order to preserve the element of surprise, and are executed in a raid-like manner in order to prevent the destruction of evidence between the time the Order is announced and the time it is implemented.  A fundamental component of such an application is that there is a likelihood of evidence being destroyed.

 

[72]      While the Order OMART seeks contemplates a type of raid on SAGS, its application is not motivated on the basis that SAGS will destroy evidence.  On the contrary, SAGS has been given notice of the proceedings and has opposed them.

 

[73]      Rather, OMART pursues the intrusive relief it does because it says it is contractually entitled to it, and because it urgently needs that information.

 

[74]      I deal with the contractual entitlement below.  Assuming for the moment that it exists I consider that OMART’s complaints of urgency are well-founded on the facts of this case.

 

[75]      OMART has a problem in that it does not know the extent to which SAGS has exceeded its authority by issuing other offshore guarantees similar to the Franki Guarantee.  It does not trust SAGS to disclose that information to it, because it considers that Mr Hanekom was dishonest when he was previously asked about whether there were any other such arrangements in place.  As I have pointed out, Mr Hanekom has still not confirmed that no other such guarantees have been issued.  Mr Green submitted that the papers revealed a real risk that Mr Hanekom/SAGS had engaged in “rogue” trading and that it was critical for OMART to be apprised on any such activity as soon as possible.  I consider that in the circumstances, suspicion is justified.  As I have mentioned above, I have difficulty with Mr Hanekom’s explanation for why his statement to Mr Cronje that there were no similar arrangements to the Franki Guarantee was not untruthful.  I also consider that his failure to respond to OMART’s requests for an inspection of SAGS’ data (and seemingly having a preference for SAGS to supply the data itself) inclines towards an effort to avoid such an inspection and to rather force a process where SAGS controls what information is supplied to OMART.

 

[76]      The risk created by the issue of other unauthorised guarantees may well be substantial.  As the Franki Guarantee and the Blade Guarantee reveal, substantial sums of money might be involved.  Even if they are not, OMART is not licensed to issue them.  The insurance market can fairly be described as a highly regulated one, and it is reasonable to anticipate that the relevant regulator will require an explanation from OMART as to the nature and extent to which it has acted beyond its license, as well as an explanation as to what it was doing to address the situation that has arisen.

 

[77]      I mention in passing that in its replying affidavit, OMART says that the disclosures and documents it has received from SAGS thus far reflect a potential exposure of some R2.5 billion, but that its own engagements with intermediaries in South Africa indicate the figure may be more in the region of R4.3 billion.  I place limited weight on those allegations given that they were only made in reply and in relatively unsubstantiated terms.  They do however raise the reasonable prospect that OMART is facing a much larger problem than it is currently aware of.

 

[78]      It is apparent from the papers that OMART has adopted the view that any offshore guarantees issued in its name are void.  The fact that Ninety One is pursuing a claim on the Franki Guarantee suggests that that view may be open to contest.  I express no view either way on the question, but in either event there is every reason for OMART to want to know about any other guarantees that exist so that it can take whatever proactive steps are available to it to limit any harm that it or third parties may suffer if those guarantees are called up.  Even if OMART succeeds in showing that offshore guarantees are void, there is every reason to believe that such a finding may cause it to suffer substantial reputational harm, something Mr Cronje referred to in his first email of 21 June 2025.

 

[79]      The correspondence forming annexures to the papers shows that OMART was initially willing to afford SAGS an opportunity to put forward the information it required.  Although OMART did seek access to SAGS’ “system” in the cancellation letter of 24 June 2025, at that stage Mr Cronje was still directing requests for information to Mr Hanekom, with a view to SAGS collating the information required instead of OMART going to SAGS’ premises and getting it itself.

 

[80]      As time went by, OMART seems to have lost faith in SAGS collating information and now wants to scour the data itself. I consider that OMART acted reasonably by seeking an interactive approach before bringing this application.  This finding does not detract from the established authority that requires an applicant seeking urgent relief to act expeditiously.  Rather, I consider that on the facts of this case OMART should not be penalised for seeking to enforce its rights informally, especially when the initial indications from SAGS were that it would cooperate with that enforcement.

 

[81]      The second reason that OMART relies on for urgent access to SAGS’ data is because it has taken over SAGS’ business in the termination period.

 

[82]      Whether OMART was entitled to do so, and whether it otherwise has a right to inspect data held by SAGS, requires an examination of the binder agreement.

 

[83]      As stated above, part of the debate turned on whether OMART was entitled to exercise its step in rights under clause 29.2 of the binder agreement, and accordingly insist of SAGS co-operating with it to “… limit any risks that M&F Risk Financing or any Insured may be exposed to resulting from or associated with this Agreement or its termination”.

 

[84]      In my view the context of the agreement provides the answer to that question.

 

[85]      It will be recalled that clause 3 permits either party to terminate the binder agreement on 90-days’ written notice.  In my view, such a notice can be given by either party at any time, regardless of whether there is any breach of the agreement.  Clause 3 is a contractual mechanism to terminate an otherwise indefinite contract.

 

[86]      Clause 26 deals with the situation where there is a breach of the agreement by either party.  In that case the defaulting party must be given seven days' notice to remedy that breach.  If it does not do so, then the innocent party may cancel the binder agreement on 90 days' written notice.  However, unlike a termination under clause 3, a cancellation notice under clause 26 permits the innocent party to claim immediate performance and/or payment of all of the obligations of the breaching party then owing under the agreement, plus a right to claim certain legal costs.

 

[87]      Clause 27 grants a right of termination to OMART alone.  It arises where certain events occur, including SAGS committing a breach of any of the material obligations under the binder agreement.

 

[88]      Where that occurs, clause 27.2.1 permits OMART to terminate the binder agreement on 90 days’ notice and, if it does so, to: (i) obtain all the information from SAGS relating to the Policies and the Policyholders; and (ii) to perform any activities that SAGS is required to perform in terms of the agreement.  It seems to me that this is precisely what OMART has sought to do, and is now using these proceedings to facilitate a result.

 

[89]      Clause 28 applies to a termination under clause 3 and cancellations under clauses 26 and 27.  It provides that, without more, the agreement will continue for the 90-day notice period.  However, clause 28.2  reserves to OMART the right to limit the binder activities SAGS is to perform, to adjust its remuneration accordingly, and to take any other “reasonable measures” to limit any risks it may be exposed to as a result of a breach by SAGS and/or “… resulting from or associated with this agreement and/or its termination”.  Again, it seems to me that OMART’s demand to access SAGS’ documents and data is an attempt to take reasonable measures of the sort contemplated in this clause.

 

[90]      Clause 28.3 deals with what happens on the termination date, and includes an obligation on SAGS to return to OMART all documents, information and data relating to every policyholder and OMART, and to provide an accounting.

 

[91]      Clause 29 deals with step in rights.  It applies where SAGS is unable to perform its binder functions due it being placed under curatorship, business rescue, becoming insolvent, being liquidated, or for any other reason.  In such a case OMART or another authorised financial services provider it may appoint may assume SAGS’ obligations, with the costs of doing so to be paid by SAGS on demand.

 

[92]      Insofar as OMART contended that clause 29.2 applied whenever OMART exercised its rights to limit SAGS’ binder activities under clause 28,  I do not think that is correct.  It seems to me that clause 28 contains its own provisions for what will happen if OMART limits SAGS’ binder activities, and that clause 29.2 is exclusively concerned with the “impossibility” situation contemplated in clause 29.1  For the reasons that follow, it is unnecessary for me to come to a final view on that question.

 

[93]      OMART’s cancellation notice of 24 June 2025 was stated to be made in terms of clause 27 of the binder agreement.  In my view, that cancellation notice was validly given.  Aside from anything else, I consider that SAGS’ conclusion of the Franki Guarantee constituted a material breach of its obligations under the binder agreement.  The same is true of the Blade Guarantee.  Not only was such conduct expressly prohibited by clause 25.2, the materiality of the breach is underscored by Mr Hanekom’s unsolicited acknowledgment that the conclusion of the Franki Guarantee would cause result in consequences for SAGS, the shock expressed by Mr Cronje upon finding out about that conduct, and the initial haste with which both of them sought to deal with the issue.

 

[94]      Having validly given notice of cancellation of the binder agreement under clause 27, OMART was entitled to exercise its rights under clauses 27.2 (including the right to obtain all information from the underwriting manager) and 28.2 (to limit SAGS’ binder activities) during the termination period.  In my view, OMART elected to exercise both of those rights in the termination letter.

 

[95]      For those reasons, while I agree with Ms Basson that any request by OMART for information/data under clauses 28.3 or 29.2 would be premature or invalid respectively, those submissions miss the point because OMART’s request was not made under clause 28.3 and, to the extent it was invalidly made under clause 29.2, it was also validly made under other clauses of the binder agreement.

 

[96]      I do not consider that OMART’s termination notice can be considered as a repudiation of the binder agreement.  But even had there not been a cancellation I consider that OMART would have had an entitlement to the data/information it seeks.

 

[97]      Clause 6.6 of the binder agreement contains an express acknowledgement by SAGS that OMART has a right to access any data regarding any policy and Policyholder held by SAGS as and when such data is requested by OMART.  The provisions of clauses 7 and 9 serve to reinforce clause 6.6, and those obligations do not only arise in the termination period, but exist at all times the binder agreement is extant.

 

[98]      I also consider that a relatively broad reading of clause 6.6 was intended by the parties, given the nature of the relationship between them.  Aside from the binder agreement containing several provisions indicative of an intention that OMART should have complete transparency of the business SAGS wrote in its name, insofar as SAGS was concluding policies in OMART’s name, it was acting as its agent.  It is well-established that an agent stands in a fiduciary relationship with their principal, and that a principal is entitled not only to an accounting from that agent, but also to a debatement of that account, a process that entails an interrogation of it (Grancy Property Ltd and Another v Seena Marena Investments (Pty) Ltd and others [2014] 3 All SA 123 (SCA)).

 

[99]      While such a claim is typically advanced by way of action proceedings, the concept that a principal may challenge an agent’s accounting instead on being required to be content to rely on what that agent says tends to support a broad interpretation of the various provisions in the binder agreement affording OMART access to SAGS’ data, especially that regarding particulars of policies it issued in OMART’s name.

 

[100]   It follows that, in principle, I consider that OMART is entitled to access SAGS’ records and data, at least insofar as it pertains to the performance of SAGS’ obligations under the binder agreement.

 

[101]   The question that then arises is the form the relief should take.

 

[102]   While the binder agreement articulates OMART’s rights of inspection under clause 6.6 and its right to information under clause 27.2.1, it does so in a theoretical way without explaining the mechanics of how that inspection will be conducted or the information will be furnished.

 

[103]   As I have shown, OMART’s approach is for it to be granted a right of entry to SAGS’ premises (by force is necessary), with obligations being imposed on SAGS and its representatives to point out and access data so that OMART may copy it or take it away.  It is also evident from the notice of motion that OMART has sought to frame the categories of data and documents it seeks in the widest possible terms.

 

[104]   OMART’s approach is understandable in the circumstances:  OMART has lost faith in Mr Hanekom and wishes to ensure it gets a complete picture of what SAGS has been up to.  It thus seeks to formulate the data and documents it will be entitled to “seize” in a way that ensures it gets that full picture.  It does not want an Order directing SAGS to provide it with information, as it is concerned that any such information provided may not be complete.

 

[105]   A practical difficulty I have is that it is not clear to me that the “data” OMART has requested is limited to what it is entitled to under the agreement.  Given the very limited time OMART afforded SAGS to respond to its application, the latter did not really have an opportunity to engage with the scope of the data requested, other than to make generalised statements such as that it constituted “… an ill-defined universe of documents, including “every other guarantee issued,” “all invoices,” “all correspondence,” and “bank statements for the last three years” for multiple accounts”.

 

[106]   I am also not convinced that the binder agreement contemplated the intrusive approach to accessing the data that is contemplated in the notice of motion.  For example, there is no provision in the binder agreement permitting OMART to gain access SAGS premises by force, or obliging SAGS and its representatives to identify where data is stored, to furnish computer passwords, or to allow entire hard drives and other storage media to be “mirrored” by OMART’s forensic agents.

 

[107]   Rather, it seems to me that the binder agreement anticipated a more co-operative approach, with the parties being able to agree on the practical aspects of how any inspection OMART sought would take place.  Such an approach would enable the parties to engage on questions such as how and when data the inspection should take place, the actual data that fell within the ambit of the inspection, how it should be retrieved and by whom, and how OMART’s inspection rights could be balanced against the SAGS’ right not to have irrelevant data fall into OMART’s hands.

 

[108]   Indeed, it seems to me that such a cooperative approach is reflected in what occurred when OMART first discovered the Franki Guarantee: OMART asked SAGS to provide certain documentation and information to it, on the basis that it would review what was supplied and query it if it was not satisfied with what it received, potentially asking for additional information if need be.  Although OMART sought an inspection in the termination letter of 24 June 2025, it was only once OMART grew frustrated by SAGS’ delays in furnishing information that it pressed for one in the letter of 21 July 2025.

 

[109]   Such a co-operative approach obviously needs the buy in from both parties.  A the absence of co-operation (or adequate co-operation) is effectively what OMART complains has arisen here.  On the other hand, SAGS says that it is co-operating as much as it can, as is evidenced by the documents it has already furnished.    

 

[110]    I mention that Mr Green informed me that no further documents have been supplied once the application was launched.  Although that was a statement made from the bar, I did not understand it to have been disputed by Ms Basson.  Ms Basson did submit that Mr Hanekom had at all times been under the bona fide impression that the documents SAGS was being asked for only had to be supplied at by the termination date of 22 September 2025.  Given that these are motion proceedings, I am hesitant to reject that assertion of good faith on the papers.

 

[111]    In my view a practical approach is required.  In the circumstances of this case, I see little benefit in making an Order directing SAGS to co-operate with OMART’s requests for inspections.  Aside from anything else, such an Order would be so vague as to be practically meaningless, especially given the urgency I consider pertains to OMART’s need to have access to SAGS’ data.

 

[112]    I do however not lose sight of the very extensive and intrusive nature of the relief OMART seeks.  Even though it does not have the ex parte element of an Anton Pillar order, the “raid” it contemplates is similar to such orders.  Indeed, OMART’s recognition that certain safeguards need to be built into the order reflects its acceptance of the seriousness of the relief it seeks.  With a view to achieving a just balancing of the parties’ interests, I consider that SAGS must be afforded an opportunity to voluntarily comply with its obligations under the binder agreement before being obliged to endure the “nuclear option” OMART proposes.  Affording SAGS such an opportunity to cooperate may also resolve the potential difficulty of OMART seeking access to information that falls beyond the ambit of what it is entitled to under the binder agreement.

 

[113]    To achieve that result I intend granting an Order substantially in line with that OMART seeks, but to suspend it for a period of 15 Court days, or such further period the parties may agree to or the Court may direct.  I also intend to make provision for the lapsing of the Order on 2 February 2026 (a relatively arbitrary long-stop date), and for SAGS to be able challenge the ambit of the “data” OMART seeks.

 

[114]    My intention in doing so is to encourage both parties to engage while the Order is suspended.  OMART may wish to do so because it wants the data urgently and will prefer to negotiate and receive data earlier than it will if it waits until the Order becomes effective.  SAGS may choose to cooperate to stave off the “nuclear option”.  If a cooperative process can be achieved, the parties can agree to lengthen the stay of the Order.  If SAGS considers OMART has refused to engage during the period of the stay, it may approach the Court to extend it, based on events that occur since the grant of this Order (I in no way intend to fetter the discretion of a court adjudicating any further proceedings in giving this hypothetical example).  If SAGS only wishes to challenge the ambit of the documents/data OMART seeks, it can limit a challenge to that aspect.  If agreement cannot be reached, SAGS can seek to approach the court for assistance.  If there is no Order (or agreement) extending the stay or the documents OMART may inspect by the time the time the 15 Court day period has expired, OMART will be able to pursue relief it has sought (subject to the further limitations referred to below). If the parties are able to finalise the inspection process without the need to execute the Order, they can agree for it to be stayed beyond 31 January 2026, in which case it will lapse automatically.

 

[115]    I also consider the following further refinements ought to be made to the Order proposed by OMART:

 

115.1      OMART must give SAGS 24 hours’ notice as to when the Order will be executed.  As this is not an ex parte application of the Anton Pillar variety, and as OMART seeks compelled assistance from SAGS, I think SAGS should have some idea of when the Order is to be executed.  SAGS may also wish to have its own observers or experts present to oversee the execution.  OMART may give that notice during the suspended period of the Order.

115.2      SAGS must be given a copy of all data copied by OMART’s forensic team (OMART agreed to this during the hearing), and OMART must return any documents removed within one week of the execution of the Order (those documents being reflected on the inventory).  OMART may make and retain copies of those documents.

115.3      The supervising attorney must prepare a report to the Court regarding the execution of the Order, such report to be filed in the relevant Court file.

 

[116]    While I appreciate that the suspension of an Order in a matter I have adjudged to be urgent may seem contradictory, the reason underlying my approach is to accommodate the expansive nature of the relief OMART seeks and the limited practical benefit of issuing a declarator that SAGS must comply with its contractual obligations.  Had the matter not been urgent, the appropriate relief may have been for such a declarator to have been made.  I have also sought to take into account the very limited period SAGS was afforded by OMART to ventilate its case.  As explained above, SAGS had no real opportunity to address the ambit of the “data” OMART seeks to inspect/remove/copy and thus I have sought to afford it an opportunity to do so.

 

[117]    As far as costs are concerned, I consider that the respondent’s opposition to the application was unsustainable, even if it was advanced in good faith.  While I am of the view that OMART imposed an unduly harsh timetable on the respondents once this application was launched, that is ameliorated by the adjustments to the Order I have proposed.  Although both respondents opposed the application, OMART only sought costs from SAGS.  I thus consider that the first respondent should pay the applicant’s costs.  I also consider that the matter was of sufficient complexity and urgency to justify counsel’s costs being awarded on Scale C.

 

[118]    In the circumstances, I make the following Order:

 

1.               This application is heard as one of urgency in terms of Rule 6(12) and the requirements of the Rules of Court in respect of time periods and service are dispensed with and the applicant’s departure therefrom is condoned;

2.               This orders in paragraphs 3 to 12 below:

2.1.          Are suspended for a period of 15 Court days from the date hereof, or for such further period as may be agreed between the parties or directed by the Court.

2.2.          Will lapse on Monday, 2 February 2026 or such other date as may be agreed between the parties or directed by the Court, such lapsing to occur on the relevant date even if the suspension referred to in 2.1 is extended for any period.

2.3.          May only be executed between 08h00 and 18h00 on a weekday and on 24 hours’ notice to the first respondent.

3.               The first respondent and/or any other adult person in charge or control of the first respondent’s business premises at Unit G[…], Paardevlei Rising 2, 1[…] G[…] W[…] Avenue, Paardevlei, Somerset West, Western Cape ("the premises") are hereby ordered to grant to the following persons access to the premises:

3.1.          Mr Kobus Pieterse, an admitted attorney of the High Court of South Africa ("the supervising attorney"); and

3.2.          The following employees of Cyanre The Digital Forensics Lab Proprietary Limited (“the forensic experts”):

3.2.1.      Johannes Roux [Identity Number: 7[...]];

3.2.2.      Daniel Jacobus Oosthuizen [Identity Number: 9[...]];

3.2.3.      Thanyani Norman Mabuda [Identity Number: 8[...]];

3.2.4.      Thabang Thello [Identity Number: B[...]];

3.2.5.      Clara Isabella Hattingh [Identity Number: 8[...]];

3.2.6.      Marcel Esterhuizen Mostert [Identity Number: 8[...]] ;

3.3.          Mr Walter Cronje, and/or Mr Mfanafuthi Radebe, of the applicant; and

3.4.          the sheriff or deputy sheriff of this Court for the district of Somerset West HL ("the sheriff");

(collectively “the search persons”)

4.               The first respondent and/or any other adult person in charge or control of the premises is hereby ordered to grant access to the premises to the search persons, for the purposes of:

4.1.          searching the premises in order to enable any of the search persons to identify, point out, access, copy and where necessary remove:

4.1.1.      The following documents in respect of each guarantee listed in annexure WC6 to the founding affidavit, and every other guarantee issued by the first respondent on behalf of the applicant (to the extent that they exist), or such altered list of documents the parties may agree upon or as may be contained in an issued order of court at the time this order is executed:

4.1.1.1.  The quotation and related correspondence;

4.1.1.2.  The facility agreement / term sheet and any amendments or addendums;

4.1.1.3.  All invoices;

4.1.1.4.  The guarantee and any amendments or addendums thereto;

4.1.1.5.  Deed of indemnity and any amendments or addendums;

4.1.1.6.  Suretyship agreement and any amendments or addendums;

4.1.1.7.  Deed of cession and pledge and any amendments or addendums;

4.1.1.8.  Escrow agreement and any amendments or addendums;

4.1.1.9.  Payment instructions relating to the escrow agreements;

4.1.1.10.   Statements of account relating to the escrow accounts;

4.1.1.11.   Underlying contractual documents relating to the underlying contract in respect of which the guarantee was issued;

4.1.1.12.   Status reports relating to underlying projects;

4.1.1.13.   Bank statements relating to premium account into which premium was paid for the guarantee;

4.1.1.14.   Demand made on the guarantee;

4.1.1.15.   Any correspondence between the first respondent and the beneficiary or the principal debtor; and

4.1.1.16.   Any correspondence exchanged with the intermediaries or policyholders in respect of such guarantees and any matters incidental thereto.

4.1.2.      The following information in respect of every guarantee issued by the first respondent on behalf of the applicant to the extent that it exists, or such altered list of information the parties may agree upon or as may be contained in an issued order of court at the time this order is executed:

4.1.2.1.  The maximum value payable under each such guarantee;

4.1.2.2.  Details of the principal debtor and beneficiary of the guarantee;

4.1.2.3.  Details of all premium received and/or owing in terms of the guarantee;

4.1.2.4.  The date on which premium was paid and into what bank account;

4.1.2.5.  All bank accounts in the name of SAGS into which premium was paid;

4.1.2.6.  Statements of such bank accounts for the last three years;

4.1.2.7.  The status of any outstanding claims;

4.1.3.      The following documents and information pertaining to Ninety One Securitisation S.A (“Ninety One”), or such altered list of documents and information the parties may agree upon or as may be contained in an issued order of court at the time this order is executed:

4.1.3.1.  Any letters of authority sent by the first respondent to Ninety One the covering emails thereto and any related correspondence;

4.1.3.2.  Transaction details showing what premium in terms of the bond number G[...] and bond number G[...]2 was paid to the respondent by Ninety One, and into what bank account;

4.1.3.3.  Current bank statements for the last three years for the following premium accounts:

4.1.3.3.1.              FNB account number 7[...];

4.1.3.3.2.              Barclays Bank Plc account number 5[...] (IBAN G[...];

4.1.3.3.3.              Barclays Bank Plc account number 4[...] (IBAN G[...]);

4.1.3.4.  All correspondence between the respondent and Ninety One from conclusion of bond number G[...] and bond number G[...]2 to date, including a demand made by Ninety One on 10 May 2025 in relation to bond number G[...] and the respondent’s response thereto dated 13 June 2025;

4.1.3.5.  A facility agreement concluded between Ninety One and Westend Projekt-und Steuerungsmanaement GmbH (“Westend”);

4.1.3.6.  All quarterly or other reports issued by Ninety One to the respondent, and any other correspondence or reports of this nature in terms of the performance of Westend in terms of the facility agreement; and

4.1.3.7.  Any correspondence between the respondent and Westend.

(the documents referred to in paragraphs 4.1.1 to 4.1.3, as adjusted by any agreement(s) between the parties or Court order(s), as the case may be, are collectively referred to as “the data”)

4.2.          searching the premises for purposes of finding and thereafter searching and examining any networks, desktop computers, laptop computers, tablet computers, portable information storage devices, external data storage devices, including external hard drives, flash drives, iPods, shufflers, compact discs (CDs), digital versatile discs (DVDs), stiffy discs, floppy disks, jazz drives, zip drives, data cartridges, memory sticks, or media with the capability of storing information and/or data digitally, as well as any data, data storage location or network component (including but not limited to electronic servers, online platforms, Cloud Hosting, Dropbox, virtual servers or other data hosted locally or internationally) to which the first respondent has access or control over or ownership of by directly, indirectly or remotely connecting thereto (collectively described as "digital devices or media") on the premises by connecting each of the digital devices or media to forensic computers, for the purpose of identifying it and determining whether it contains the data;

4.3.          permitting and allowing the forensic experts to make four disk copies and/or compact disc copies and/or to capture forensic images and/or to make four complete mirror images and/or digital images (for identification purposes) of only the data contained on the hard drives of any digital devices or media located on the premises, or to download or create a data dump of online or hosted data, once it is determined that such digital devices or media containing the data, one of which will be handed to the supervising attorney for safe keeping, to serve as a record of what was copied, one of which will be handed to a representative of the first respondent, one of which will be handed to the applicant, and one of which will be retained by the forensic experts;

4.4.          permitting and allowing the forensic experts to make print-outs of any of the data located on any such digital devices or media, if copies of the hard drives cannot be made.

5.               The first respondent, and/or any other adult person in control of any digital devices or media, is hereby ordered to forthwith disclose to the search persons any passwords and/or procedures required for effective access to such digital devices or media for the purposes of paragraph 4 hereof.

6.               In the event that the first respondent and/or any other adult person in charge or control of the premises refuses to grant access to the premises, it is ordered that the sheriff assisted, if necessary, by a locksmith, may obtain access to the premises as necessary.

7.               In the event that the forensic experts are unable, for any unforeseen reason, to complete their forensic investigations as contemplated in this order on the day that it is executed then is it hereby ordered that:

7.1.          The sheriff is authorised to take any digital devices or media on the premises into his custody;

7.2.          The forensic experts are authorised to conduct such forensic investigations as contemplated in this order, in the presence of the supervising attorney and the sheriff, no later than two days after the digital devices or media have been taken into custody by the sheriff where after the digital devices or media shall be returned to the first respondent.

8.               The first respondent and/or any other adult person(s) in charge or control of the premises, is hereby ordered to disclose to the sheriff the whereabouts of any item falling within the categories of items referred to in paragraphs 4.1.1 to 4.1.3 hereof, whether at the premises or elsewhere, to the extent that such whereabouts are known to the first respondent or such person(s).

9.               That in the event that any item is disclosed to be situated at any other place than the premises the applicant may approach this Court for leave to permit execution of this order at such other place.

10.            A detailed inventory of any documents removed from the premises will be prepared and confirmed by the supervising attorney, and he shall provide a clear copy of such inventory to the first respondent and the person in charge of the premises, and the applicant’s attorney.

11.            Any documents removed from the premises will be returned to the first respondent within one week of the execution of this Order.

12.            The supervising attorney shall monitor and oversee all aspects of the execution of this order and, shall in addition to the inventory referred to in paragraph 10 above make a list of any other items removed in terms of this order, and shall provide a clear copy of such inventory to the first respondent and the person in charge of the premises, and the applicant’s attorney.

13.            The applicant will compensate the first respondent for any damage caused to the first respondent by any person exceeding the terms of this order;

14.            That the costs of this application shall be paid by the first respondent, such costs to include the costs of counsel on scale C.

 

 

A MORRISSEY

Acting Judge of the High Court

 

 

APPEARANCES

 

Counsel for the Applicant:                          Adv I P Green SC

                                                                        green@group621.co.za

Instructed by:                                                Clyde & Co

Ms A Costa, Ms K Swart and Ms C Du Toit

 

Counsel for the Respondent:                     Adv N Basson

nandi.basson@highcourtadvocate.co.za

Instructed by:                                                Roach Attorneys

                                                                        Ms Kira Smidt                                  

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