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South Africa’s former ambassador to Japan, Smuts Ngonyama, has accused a company linked to lucrative mining investments of spending more than seven years defying court orders and deploying an endless stream of legal challenges to block the Khululekile Family Trust from exercising rights over assets believed to be worth more than R200m.
Ngonyama now wants the directors of BEE investment vehicle Eyabantu Capital Consortium (ECC) declared in contempt, arguing that every avenue of appeal has been exhausted and their continued refusal to comply amounts to a deliberate assault on the authority of the courts.
He says the continuing refusal to rectify the securities register, issue the trust’s share certificate and provide access to company records deprives the Khululekile Family Trust of the shareholder rights previously recognised by the court, including participation in meetings and access to financial information. Each day of non-compliance, he argues, constitutes a continuing breach of the court’s orders
The latest application filed on July 31 marks another chapter in a legal battle stretching back more than seven years over the Khululekile Family Trust
Sunday Times understands that the dispute is over two high court orders granted on May 6 2025. One directed that ECC’s securities register be rectified to recognise the Khululekile Family Trust as the holder of a 6.5% shareholding in ECC, while another ordered the company to grant the trust access to key corporate records, including financial statements, bank records, directors’ records and shareholder information. According to Ngonyama, neither order has been complied with.
Instead, the ambassador alleges the respondents have adopted what previous courts describe as a “Stalingrad defence”, bringing successive applications, changing legal strategies and appointing new lawyers in an effort to postpone compliance.
“The pattern is unmistakable,” Ngonyama states in his affidavit.
“Each adverse order is met not with compliance but with a new proceeding, a new firm of attorneys and a new theory. The judgment found that the strategy is delay. The current threats are its latest iteration, and the orders in the applicants’ favour remain, seven years on, unperformed.”
Ngonyama argues that the respondents’ opportunities to challenge the judgments have now come to an end.
According to the application, the operation of the 2025 court orders was suspended while applications for leave to appeal and reconsideration proceedings were underway. That suspension ended after the president of the Supreme Court of Appeal justice Betty Molemela, dismissed the reconsideration application on July 6 this year.
Ngonyama’s affidavit says no application for leave to appeal was ever lodged at the Constitutional Court before the deadline expired, and on July 28 the respondents’ (ECC) attorneys confirmed in writing that no such application would be pursued.
The Constitutional Court has affirmed that litigation must, at some point, come to an end.
— Smuts Ngonyama
Ngonyama contends that, from that point onward, there was no legal basis for continued non-compliance.
“For the reasons that follow,” he states, “the applicants submit that every requisite of contempt is established: the orders exist; the respondents know of them; the respondents have not complied; and the respondents’ non-compliance is wilful and mala fide.”
The application further alleges that, rather than complying with the court orders, the respondents demanded that the applicants abandon the judgments and pay their legal costs while raising allegations that litigation records had been forged.
Ngonyama says the allegations were never substantiated despite repeated requests for supporting documents, forensic reports and other particulars.
According to correspondence attached to the application, the applicants’ attorneys rejected demands that they provide an undertaking not to execute the judgments, arguing that the Supreme Court of Appeal represented the final court in matters of this nature and that the respondents’ intended Constitutional Court application could not suspend enforcement indefinitely.
The former ambassador also accuses the respondents of repeatedly threatening fresh litigation while simultaneously refusing to comply with existing court orders.
Among the relief sought is an order declaring the company and its directors to be in contempt of court and compelling them to comply with the outstanding orders within a specified period, failing which more severe sanctions could follow. While the applicants stop short of seeking immediate imprisonment, the affidavit argues that the Constitutional Court’s contempt jurisprudence exists precisely to deal with litigants who deliberately undermine the authority of the courts.
The founding papers also paint a picture of repeated difficulties in enforcing the court orders.
Ngonyama says sheriffs struggled to serve some of the respondents despite numerous attempts at residential addresses. One return of service records repeated visits to a respondent’s residence where the property was found locked, with the sheriff eventually speaking to a housekeeper before later contacting one respondent telephonically, who allegedly advised that he was in the Eastern Cape and would only return weeks later.
The affidavit argues that the respondents have a documented history of frustrating service while continuing to communicate regularly through their attorneys.
“Respondents who evade the Sheriff while corresponding through attorneys will not be permitted to convert their own evasion into immunity from committal,” Ngonyama argues.
The contempt application also revisits findings made in earlier litigation, where the court recorded that repeated legal proceedings were aimed at delaying enforcement of final judgments.
Ngonyama argues those findings are directly relevant because, despite numerous unsuccessful challenges over several years, the respondents have allegedly continued pursuing fresh proceedings instead of implementing the existing court orders.
In conclusion, Ngonyama argues that litigation must eventually come to an end.
“The Constitutional Court has affirmed that litigation must, at some point, come to an end,” he says in the affidavit.
“The rule of law and legal certainty are compromised if the finality of a court order is in doubt.”
He adds that the applicants have waited more than seven years for rights first recognised by the courts to be realised and says the respondents’ continued defiance has left them with no option but to seek a contempt order from the high court.
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