In a significant legal setback for Black Rock Mining, the Johannesburg High Court has dismissed its urgent application to freeze the landmark settlement funds owed to Nkosana Makate by Vodacom. The court found Black Rock’s central claim—that Makate intended to “dissipate” the money—was legally unfounded. This ruling offers a clear lesson on the high bar litigants must clear to obtain urgent interim relief against another party’s assets.
In a judgment handed down on 8 December, Acting Judge Don Mahon dismantled Black Rock’s argument. The company had suggested that Makate might use the funds for personal debts or investments. Judge Mahon categorised this as “ordinary financial conduct” and explicitly stated it did not constitute legal dissipation. The legal principle at stake is crucial: courts will not prevent someone from using their lawfully acquired funds for lawful purposes simply because another party asserts a future claim to a portion of them.
Judge Mahon elaborated that for an urgent interdict to be granted, the applicant must prove that without immediate court intervention, the very relief they seek (in this case, securing a portion of the funds) would become impossible. He noted, “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.” Since Black Rock could pursue its claim in normal court proceedings, the application failed the test of urgency.
Trust account
This application is a tactical move in a larger dispute. Black Rock, through an entity linked to Makate’s former litigation funder Christiaan Schoeman, claims it is contractually entitled to 40% of the “Please Call Me” settlement. The core matter between Makate and Vodacom was settled confidentially in November 2024, concluding 17 years of litigation. While the exact figure is sealed, it is widely estimated to exceed R500 million. The attempt to freeze the payout is now on hold pending the main case, which will determine the validity of Black Rock’s underlying claim. A date for that hearing has not been set.
A key factor in the court’s decision was the destination of the funds. Makate’s legal team disclosed that the Vodacom settlement would be deposited into the trust account of his law firm, Stemela & Lubbe Incorporated. Judge Mahon emphasized that attorneys’ trust accounts are governed by strict fiduciary duties and statutory safeguards designed to protect client money. The court found no evidence suggesting the firm would misappropriate or improperly disburse the funds.
Read: Vodacom settles landmark ‘please call me’ case out of court
Judge Mahon also rejected Black Rock’s attempt to prove risk by citing historical cases where other parties had hidden or misused disputed funds. He ruled that the conduct of unrelated third parties in the past cannot serve as proof of intention by Makate or his attorneys in the present case. Furthermore, Black Rock provided no facts indicating Makate planned to move money offshore, conceal assets, or otherwise place himself beyond the reach of a future court judgment.
The genesis of Black Rock’s claim traces back to a 2015 fallout between Makate and Christiaan Schoeman. Makate terminated their funding agreement, alleging Schoeman’s entities failed to provide adequate financial support. Black Rock’s current claim stems from that prior, now-disputed, contractual relationship.
The court’s dismissal was comprehensive. Not only was the application thrown out, but Judge Mahon also issued a costs order against Black Rock, meaning it must cover the legal fees incurred by both Makate and Stemela & Lubbe in defending against the urgent application. This underscores the court’s view that the application lacked merit.
In his concluding remarks, Judge Mahon stated, “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.” This ruling allows Makate to finally access the proceeds of his historic victory, while Black Rock must now prove its contractual claim through standard, non-urgent litigation channels.
Read: ‘Please call me’ saga not over yet for Nkosana Makate
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