- The High Court refused Black Rock’s attempt to stop the release of settlement money paid by Vodacom to Nkosana Makate.
- The judge ruled that fear alone is not a basis for blocking access to funds held in a law firm’s trust account.
- Black Rock was also hit with a hefty legal bill, ordered to pay Makate’s and his lawyers’ costs at the highest possible level.
An urgent bid by Black Rock Mining Ltd to freeze settlement funds paid by Vodacom to Nkosana Makate has been thrown out by the High Court in Johannesburg, bringing a sharp legal end to an attempt to intercept the proceeds of one of South Africa’s most high-profile intellectual property battles.
The application followed a confidential settlement concluded in early November 2025 between Makate and Vodacom in relation to the long-running litigation over the creation of the Please Call Me service. Payment was made, or was about to be made, into the trust account of Makate’s attorneys, Stemela and Lubbe Incorporated.
Black Rock claimed that it had a contractual right to 40 percent of any recovery under a 2011 funding agreement allegedly concluded with Makate through an intermediary. On that basis, it rushed to court seeking an order preserving the funds until arbitration or court proceedings could determine whether it was indeed entitled to a share.
The judge began by clearly framing the nature of the application. In the opening paragraph of the judgment, Acting Judge David Mahon said the company was seeking urgent relief “directed at preserving funds said to constitute the proceeds of a settlement concluded between the first and third respondents”.
Black Rock’s paperwork problem didn’t end the case
Makate challenged whether Black Rock was properly authorised to bring the application, arguing that its paperwork was defective and unsupported by any sworn evidence from its alleged director.
The court rejected this challenge, holding that although the documents were far from perfect, they were sufficient in urgent proceedings. The judge said that “the documents tendered, though imperfect, are adequate to establish, for present purposes, that the attorneys act with mandate”.
That finding kept the application alive only briefly. The case ultimately collapsed on a more fundamental issue.
No evidence of risk and no reason for urgency
The court ruled that Black Rock had failed to demonstrate any real danger that the funds would be hidden, misused, or placed beyond reach.
Judge Mahon made it clear that courts do not freeze money simply because it is large, disputed, or inconvenient. “There is no allegation that the second respondent has behaved in any manner suggesting an inclination to misappropriate, conceal, or prematurely disburse trust funds,” the judge wrote.
He added that confidentiality around a settlement cannot be treated as evidence of wrongdoing. “Confidentiality, however, is not evidence of dissipation,” the judgment reads. “Nor does lack of transparency convert an ordinary disbursement in accordance with mandate into an act calculated to defeat creditors.”
The court also rejected the suggestion that Makate might spend the money in a way that would justify judicial intervention. “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,” Judge Mahon stated.
Fear is not enough
The court stressed that legal protection against asset loss requires evidence, not suspicion. The applicant had argued that it needed protection simply because once the settlement money left the trust account, it would be harder to recover. The court rejected this outright.
“The applicant’s concerns are speculative and arise solely from the existence of a dispute, not from evidence of improper conduct,” the judge ruled.
He went further and explained why the matter was not urgent. “Urgency is established only if the applicant shows that, unless immediate intervention occurs, the very efficacy of the relief sought will be undermined,” the judgment said. In this case, that threshold was not met.
No need for legal panic
Black Rock tried to argue that its claim to the funds was special and proprietary in nature. The court was unmoved. The judge held that where the harm is financial, and the respondent is likely able to pay, the law does not justify emergency intervention.
“The harm feared by the applicant is therefore not irreparable,” Judge Mahon wrote. “There is no suggestion that Mr Makate would be unable to satisfy an eventual judgment.”
The court made it clear that Black Rock remains entitled to pursue its claim through arbitration or ordinary civil proceedings. “Absent some indication that the funds may not remain available, the ordinary resolution of disputes in the timeframes of motion or trial proceedings suffices,” the judgment stated.
Application dismissed and costs awarded
Because Black Rock failed to establish urgency or a risk of irreparable harm, the application was dismissed. The court issued a punitive costs order.
“The applicant is ordered to pay the costs of the first and second respondents, including the costs of senior and junior counsel, on scale C,” the judge ruled.
That means Black Rock will have to settle a substantial legal bill before it can even begin a formal fight over whether it is owed anything from Makate’s settlement at all.
For now, Makate’s settlement remains intact, and the battle over entitlement moves out of urgent courtrooms and into ordinary litigation channels.
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