Werksmans has been shortlisted in the following categories as released by the African Legal Awards 2026 which seeks to recognise legal excellence across Africa.

1. Partner of the Year – Southern Africa
   o Elliott Wood
2. Private Practice Rising Star
   o Abena Osei
3. M&A Team of the Year

• • Werksmans acted as lead legal adviser to Differential Capital Proprietary Limited and its consortium of investors in connection with the equity acquisition of the mining division of Murray & Roberts Limited (in business rescue) for R1.27 billion, being one of the most significant corporate restructurings in recent South African history. The Business Rescue leg of the transaction was led by Eric Levenstein together with Amy Mackechnie, with the transactional aspects being led by David Gewer together with Gabriel Koski. Other lawyers involved in the matter include Richard Roothman, Paul Coetser, Ryan Killoran, Kyle Fyfe, Raisah Mahomed, Jordan Gobie and Brittney Bawa.

4. Environment, Energy & Natural Resources Team of the Year

• • Werksmans advised the Sponsors, Anthem and Reatile Renewables, in relation to the development and financing of the 475MW Notsi Solar PV Project which is the largest single-phased solar project in South Africa to date.
  • Werksmans legal team was led by Chris Moraitis together with Astrid Berman, Jonathan Behr, Johan Lubbe, Kristen Elliott, Zoë Austen, Robyn Helling, Lumka Swana and Thomas Mitchell.

5. LEX Africa has been shortlisted as African Network / Alliance of the Year

Congratulations to all nominees for setting the benchmark in legal brilliance across Africa and beyond.

The post Setting the Benchmark: Our 2026 African Legal Awards Nominees appeared first on Werksmans Attorneys.

1. Introduction

1.1. For much of the past two decades, the conversation in South Africa’s private equity (“PE”) market has centred on primary fundraising, deal origination, and exits. The secondary market, involving the trading of existing interests in PE funds and the restructuring of fund portfolios, has largely remained an afterthought, a niche mechanism rarely discussed in public forums and even more rarely executed in practice.

1.2. That is beginning to change. And the global trajectory suggests South Africa would do well to pay close attention.

2. What are Secondaries?

2.1. The private equity secondary market encompasses transactions in which investors (limited partners, or (“LPs”) sell their existing interests in PE funds to third-party buyers before those funds reach their natural end of life or where fund managers (general partners, or (“GPs”) restructure their funds by transferring assets into a new vehicle, offering existing investors a choice between cashing out or rolling into the new structure.

2.2. These two broad categories, LP-led secondaries and GP-led secondaries, have very different origins and serve very different purposes, but both have become increasingly indispensable tools in the modern PE toolkit.

2.3. LP-led transactions are driven by investors seeking liquidity, like a pension fund that needs to rebalance its portfolio, an insurer facing regulatory capital constraints, or a finance institution seeking to recycle capital into new mandates. In these transactions, the LP sells its fund interest (often at a discount to the fund’s net asset value (NAV)) to a secondary market buyer, who acquires exposure to a more mature, de-risked portfolio of investments.

2.4. GP-led transactions are initiated by the fund manager itself. The most common structure is the continuation fund (or continuation vehicle) where the GP creates a new fund specifically to acquire one or more assets from an older fund, giving existing LPs the option to either cash out at current fair value or roll their interests into the new vehicle and participate in the asset’s further upside. This mechanism has become a vital exit pathway in environments where traditional routes such as stock exchange listings, trade sales, or secondary buyouts are constrained or unavailable, as has often been the case in South Africa.

2.5. A further variant, which we have advised on, and which is gaining traction globally is the locked box structure, where a sub-portfolio of assets within a fund is ring-fenced for a defined group of investors, effectively creating a bespoke investment vehicle within the broader fund architecture.

3. From Niche to Mainstream

3.1. The secondary market was once viewed with stigma, as a mechanism of last resort for funds in distress. That perception has largely been dismantled. What was once a backdoor exit has become one of the most sophisticated and actively growing segments of global private capital markets.

3.2. The numbers tell a compelling story. Global secondary market transaction volumes reached a record $162 billion in 2024, and volumes exceeded $200 billion in 2025 which is a trajectory that has confounded even optimistic projections from just a few years ago. By the first half of 2025 alone, global transaction volume had already reached $103 billion, representing a 51% increase on the same period in 2024.

3.3. On the fundraising side, capital commitments to dedicated secondary funds has seen exponential growth and the world’s largest ever private equity secondaries fund, Ardian’s Secondary Fund IX, closed on $30 billion in 2025 alone.

3.4. GP-led transactions have been a particular engine of growth.. Continuation vehicles now represent the dominant transaction type within GP-led deal flow, driven by a recognition among GPs and their investors alike that the continuation fund has become, a permanent fixture in the private markets landscape.

3.5. In the United Kingdom, historically the most active and sophisticated PE market in Europe, the secondary market has matured rapidly over the past decade. UK and European GPs have embraced continuation vehicles as a legitimate and increasingly preferred mechanism to retain high-quality assets beyond the life of an original fund, particularly where public market conditions are unfavourable for listing. Regulatory clarity, institutional secondary buyers, and a culture of transparency around fund governance have also made the London secondary market a reference point for global best practice.

4. The Future of South Africa’s Secondary Market

4.1. South Africa has one of the most mature and institutionalised PE industries on the African continent yet the infrastructure for secondary market activity remains underdeveloped. Most PE fund agreements have historically been drafted without contemplating the secondary market as an active tool of fund management. Institutional LPs have had limited options when seeking mid-life liquidity and GPs have had few established mechanisms to extend the life of their best assets without forcing a premature exit. However, the structural conditions for a more active South African secondary market are increasingly more favourable.

4.2. Several converging dynamics make South Africa a compelling candidate for secondary market growth in the years ahead. Many South African PE funds raised in the 2013–2018 years are now approaching or have exceeded their natural life cycles. GPs face pressure to return capital to LPs, yet public market conditions and the pace of M&A activity have generally not cooperated. The secondary market, both LP-led disposals and GP-led continuation structures, offers a credible and increasingly accepted solution.

4.3. South Africa’s institutional LP base, anchored by large pension funds, insurance companies and development finance institutions, is growing in sophistication. As these LPs mature in their private markets allocations, portfolio management tools such as secondary sales will become increasingly relevant. Regulatory requirements around capital allocation and liquidity management will only accelerate this trend.

4.4. For GPs managing high-quality assets who simply need more time, the continuation fund offers a compelling alternative to a forced or premature exit. Internationally, continuation vehicles have proven that GPs can retain their best assets, provide liquidity optionality to existing LPs, and attract new capital, all within a single, well-structured transaction. South African GPs with strong track records and quality portfolios are well placed to explore this structure.

4.5. Global secondary funds are increasingly looking beyond North America and Western Europe for deal flow. African markets, particularly South Africa, are on the radar of sophisticated secondary buyers who recognise the quality of assets and the opportunity for differentiated returns. A mature secondary market in South Africa would not only recycle capital more efficiently but would meaningfully improve the overall attractiveness of the asset class to both domestic and international investors.

5. Structuring Secondaries Transactions

5.1. The growth of secondary activity, in particular GP-led continuation funds, raises important legal and governance questions for South African legal practitioners.

5.2. We recently advised a major South African private equity fund on a complex GP-led follow-on transaction, in which a general partner sought to restructure assets across two encommandite partnership funds, effectively transitioning the investment portfolio from a first-generation fund into a continuation vehicle, while preserving the economic interests of existing limited partners and ensuring governance integrity throughout.

5.3. The transaction raised a range of issues that are likely to arise in any South African secondary or continuation fund context:

5.4. Where the same management team oversees both the transferring fund and the continuation vehicle, the transfer of assets is, in substance, a related-party transaction. This requires careful management, including independent valuation, full and specific disclosure to all affected limited partners, and the obtaining of informed consent. Disclosure alone is insufficient; affected investors must be placed in a position to give fully informed approval to both the terms of the transaction and the conflicts inherent in it.

5.5. In a related-party context, valuations conducted by the GP itself are unlikely to be regarded as sufficiently independent, regardless of the broad discretion typically afforded to GPs under partnership agreements. Best practice, and, we would argue, the applicable standard in any South African secondary transaction, requires an independent third-party valuation or fairness opinion confirming that the transfer price reflects fair market value and that the terms of the transaction are fair to existing limited partners.

5.6. Where fund structures incorporate locked box arrangements, the protections afforded to locked box limited partners are significant. No step which adversely affects their rights may be taken without their vote and, typically, a 75% supermajority approval. Any continuation fund or secondary transaction touching locked box assets must be structured to comply with these requirements as well.

5.7. Existing investors must be offered a meaningful choice between the option to roll over into the new vehicle and participate in future upside, or to exit at fair value and receive their cash proceeds. The information package provided to investors in connection with this election must be comprehensive, covering the rationale for the restructuring, the terms of the new fund, changes in economic terms (including fees, carry, and duration), the independent valuation and the valuation methodology, and include a full conflicts memorandum.

5.8. Where a fund’s governing documents do not contemplate an advisory committee (as is the case with a number of South African partnership agreements), consideration should be given to constituting an independent transaction committee of respected industry professionals, retired auditors, or former LP representatives to oversee the process, review the valuation, and confirm the fairness of the transaction. The committee’s report should accompany the election materials sent to investors.

5.9. These are not merely technical considerations and, in our experience, getting this right is what distinguishes a well-executed continuation fund from a contentious and reputationally damaging one.

6. Conclusion

6.1. South Africa is a market to watch. It has a sophisticated PE industry, a growing institutional investor base, a developed legal framework for limited partnership structures, and an increasing awareness, among both GPs and LPs. Of the importance of the secondary market.

6.2. The global experience is unambiguous: secondary markets deepen, mature and ultimately strengthen primary PE ecosystems. They improve capital efficiency, enhance LP liquidity, provide GPs with greater flexibility to maximise value, and attract new investors. They are not a sign of market stress but a sign of market maturity.

6.3. South Africa’s PE market is ready. What is needed now is the confidence to execute, the legal and governance rigour to do so properly, and the institutional knowledge to guide the market forward.

The post South Africa’s private equity market finally has a liquidity market: The growing market for secondaries appeared first on Werksmans Attorneys.

A multi-billion dollar revolution in global private capital could arrive in South Africa.

South Africa’s private equity industry has long had a quiet problem: getting capital out can be harder than getting it in. Exits depend on a cooperative stock exchange, willing trade buyers and investors patient enough to wait out a fund’s full life. When none of those conditions are met, options run thin.

The secondary market is changing that — and the numbers behind it are extraordinary.

Global secondary transaction volumes reportedly hit a record $162 billion in 2024 and exceeded $200 billion in 2025. By mid-2025, volumes were already up 51% year-on-year. The world’s largest-ever fund established to invest exclusively in private equity secondaries, raised by French-founded Ardian (Ardian’s Secondary Fund IX), closed on $30 billion last year alone, showing that this is no longer a niche area but one of the fastest-growing areas in global finance.

Investor-led or manager-led

The secondary market takes two main forms, either investor led or fund manager led transactions.

When investor-led, an investor — such as a pension fund, that is rebalancing sells its fund interest to a third-party buyer before the fund reaches the end of its life. The buyer acquires a mature, de-risked asset. The seller acquires liquidity.

The second form is more impactful. A fund manager creates a continuation vehicle — a new fund designed to acquire assets from an older fund approaching the end of its life. Existing investors choose either to cash out at fair value, or to roll into the new structure and keep participating. There is no forced sale or forced premature exit and it allows more time for quality assets to reach their potential.

Once viewed with suspicion as a sign of distress, continuation funds have been rehabilitated. In the UK and across Europe, they are now often a preferred tool for sophisticated managers who are looking to hold winning assets for longer. The stigma is largely gone and been replaced by a market worth hundreds of billions of dollars annually.

South Africa’s opportunity

South Africa has one of the continent’s most mature PE industries. What it has lacked is exactly what the secondary market provides: an efficient mechanism to recycle capital and manage fund lifecycle flexibly.

The conditions for change are converging now. Many South African funds raised between 2013 and 2018 are at or beyond their natural end-of-life. Managers face pressure to return capital, yet listings are difficult, M&A is slow, and traditional exit routes remain constrained. The secondary market — both investor-led sales and GP-led continuation structures — offers a credible, proven answer.

South Africa’s institutional base is also maturing. Pension funds, insurers, and development finance institutions are growing in private markets sophistication. As they do, secondary sales will shift from an optional to an essential portfolio management tool. Meanwhile, global secondary buyers are actively hunting deal flow beyond North America and Europe. South Africa will be on their radar.

Careful implementation

Secondary transactions involve complex issues and require careful implementation.

GP-led continuation funds involve genuine conflicts: the same manager oversees both the fund selling the assets and the fund buying them. That demands independent valuation, real investor choice, and comprehensive disclosure — not just disclosure of transaction terms, but disclosure of fee changes, conflicts, and valuation methodology. Investors must be able to give truly informed consent and not merely rubber-stamp a process.

Where fund agreements lack a formal advisory committee, best practice is to appoint an independent transaction committee to oversee the process and confirm fairness. The difference between a clean transaction and a contentious one almost always comes down to process rigour and the quality of investor communication.

The bottom line

Secondary markets emerge from maturity. Major PE centres with developed secondary markets have benefitted greatly from, increased liquidity and have managed to attract new capital as a result.

South Africa’s market is well placed and institutional sophistication is building. What remains is the confidence to act.

Secondaries are ready to make a big impact.

The author advises on private equity fund structuring, secondary transactions, and continuation vehicles.

The post Will secondaries solve liquidity issues in South Africa’s private equity market? appeared first on Werksmans Attorneys.

Business rescue has become a cornerstone of South African corporate insolvency law. Introduced by Chapter 6 of the Companies Act 71 of 2008 (“the Act”), it seeks to rehabilitate financially distressed companies while preserving value for creditors, employees and shareholders. For creditors seeking to place a company under supervision, boards of distressed entities may try to obstruct the process, which runs the risk of undermining the purpose of business rescue proceedings.

A recent judgment of the North West Division of the High Court provides important guidance on two deceptively simple but significant questions: when does voluntary business rescue actually commence, and can a voluntary business rescue be used to thwart a pending compulsory business rescue application? The judgment provides welcome certainty for creditors and reinforce the integrity of South Africa’s business rescue framework.

Zizwe Open Cast Mining Proprietary Limited (“Zizwe“) rendered contract mining services to Lethabo Minerals Proprietary Limited (“Lethabo“), a holder of a mining right over a chrome mine near Rustenburg. Following the termination of their commercial relationship, Lethabo acknowledged that there was a substantial debt owing to Zizwe that remained unpaid. Zizwe instituted an urgent compulsory business rescue application under section 131(1) of the Act.

Lethabo filed an answering affidavit that was conspicuously limited in scope. The answering affidavit failed to dispute either the indebtedness or its quantum and produced no financial information demonstrating solvency or a viable path to recovery. Furthermore, Lethabo did not (at that stage) take issue with either the qualifications or the independence of the business rescue practitioner nominated by Zizwe.

Shortly before the hearing, Lethabo informed both Zizwe and the Court that Lethabo’s board had adopted a written resolution two days prior to the hearing voluntarily commencing business rescue proceedings. Lethabo stated that the requisite CoR123.1 form had been lodged with the Companies and Intellectual property Commission (“CIPC“), thereby commencing business rescue proceedings by operation of law and rendering Zizwe’s application moot.

Section 129 of the Act permits a company’s board to resolve to commence voluntary business rescue where the company is financially distressed and there is a reasonable prospect of rescuing it. The resolution must, however, be filed with the CIPC, together with the prescribed notices and supporting documentation.

First mover advantage

The first substantive issue before the Court was whether the mere electronic submission of documents to the CIPC constitutes “filing” for purposes of section 129 of the Act. At the time of the commencement of the hearing, Lethabo had uploaded the relevant documents electronically, but the CIPC had not yet reviewed, accepted or confirmed the filing. Formal confirmation from the CIPC was only issued during the course of the hearing.

In terms of section 132(1) of the Act, business rescue proceedings commence either when (1) a company files a resolution to place itself under supervision in terms of section 129(3) of the Act or (2) an affected person applies to court for an order placing the company under supervision in terms of section 131(1). In relation to the latter instance, previous court decisions have held that in order for a compulsory business rescue application to be made, the application must be issued by the Registrar, served on the company and CIPC, and that affected persons are notified.

Zizwe’s counsel argued that Chapter 6 of the Act prohibits a board from passing a voluntary business rescue resolution as contemplated in terms of section 129 once a compulsory application is made. While the Court did not agree with this contention, it did accept that the Act does not permit parallel business rescue processes. Instead, the commencement date of business rescue proceedings is critical because it informs the date of inception of the moratorium, the practitioner’s authority and the rights of creditors.

Section 129(2)(b) of the Act sets out that a board resolution to commence business rescue is of no force and effect until it has been filed with the CIPC. In this regard, CIPC Practice Note 3 of 2021 was issued in terms of regulation 4 of the Regulations to the Act, which confirms that the date of filing of business rescue will be the date that the relevant information is confirmed as correct by a member of the CIPC team. Furthermore, a confirmation letter from the CIPC is required before a voluntary business rescue resolution can be considered filed, within the meaning of section 129(2)(b). In this case, the CIPC certificate of confirmation was only forthcoming during the hearing, and clearly indicated a commencement date subsequent to the date on which Zizwe’s compulsory business rescue application was made.

Tactical or abusive?

The Court considered whether the manner in which Lethabo’s board acted constituted an abuse of the business rescue procedure. In circumstances where Lethabo’s board had been aware of the pending business rescue application for at least two weeks prior to the hearing, and where Lethabo’s answering affidavit did not mention any intention to pursue voluntary business rescue or an objection to Zizwe’s nominated practitioner, the Court was unsurprisingly critical of Lethabo’s conduct.

The Court found this conduct constituted an abuse of process: the resolution was adopted not in genuine pursuit of rehabilitation, but as a tactical manoeuvre to retain control over the identity of the business rescue practitioner and to derail the court-driven proceedings. As such, the Court held that it was just and equitable to set aside the resolution commencing the business rescue proceedings.

Conclusion

The judgment has several practical implications. First, boards of directors creditors should not assume that a board resolution or proof of electronic submission is sufficient to commence business rescue proceedings. They should verify that the CIPC has formally accepted and confirmed the filing. Second, boards seeking to secure a tactical advantage by adopting a resolution to thwart a compulsory business rescue application must understand that this is a high risk and low reward strategy. Third, the judgment confirms that Chapter 6 is not a tactical instrument: directors who invoke it for purposes other than genuine rehabilitation expose themselves to adverse findings.

Ultimately, this decision reinforces the procedural integrity of business rescue, while providing much-needed certainty for creditors, companies and practitioners alike.

The post Procedural certainty in business rescue: Competing commencement processes appeared first on Werksmans Attorneys.

Constructive dismissal remains one of the more difficult claims to prove in South African labour law. Employees must do far more than demonstrate that the workplace was unpleasant or that their relationship with management had deteriorated. The legal threshold is a demanding one: the employer must have made continued employment objectively intolerable.

The recent CCMA decision in Ramugondo v Rand Water provides an important reminder that employers can cross that threshold not only through active misconduct, but also through a failure to intervene when workplace bullying is allowed to flourish.
The employee had initially enjoyed a positive working relationship with her manager. She was selected to attend executive meetings, received praise from senior leadership and appeared to have a promising future within the organisation. That changed dramatically within a matter of months.

The commissioner accepted evidence that the employee was systematically undermined by her line manager. Work was taken away from her and allocated to her graduate. She was excluded from meetings, publicly criticised in front of colleagues and clients, labelled incompetent and repeatedly humiliated. Her manager bypassed her entirely, communicated through her subordinate and created situations where she was deliberately set up to fail. The evidence painted a picture of sustained psychological erosion rather than isolated incidents of poor management.
Importantly, this was not simply a personality clash.  The employee attempted to resolve matters internally. She raised concerns directly, lodged a formal grievance and participated in the employer’s internal processes. However, those processes moved slowly. Meetings were delayed, prescribed timeframes were not met and the conduct complained of continued unabated while the grievance remained unresolved. By the time the employer eventually escalated the matter, the employee had already resigned.  This proved decisive.

Relying on the Constitutional Court’s decision in Strategic Liquor Services v Mvumbi NO, the commissioner reaffirmed that the test for constructive dismissal is not whether resignation was literally the employee’s only option. Rather, the question is whether the employer made continued employment objectively intolerable. That assessment requires consideration of the employer’s conduct as a whole, viewed reasonably and objectively.

The commissioner had little difficulty concluding that the manager’s conduct was ‘belittling, humiliating, degrading, cruel, uncalled for and completely unbecoming of a senior manager’. Significantly, the employer was aware of the employee’s complaints and the deteriorating working environment but failed to respond with sufficient urgency. In the commissioner’s view, it was this combination of persistent managerial misconduct and organisational inaction that ultimately destroyed the trust relationship between employer and employee.

One aspect of the award is particularly noteworthy.  Employers frequently defend constructive dismissal claims by arguing that employees resigned before internal procedures had been completed. Rand Water advanced precisely that argument, pointing out that another employee who had lodged a similar grievance was eventually transferred to another department.  The commissioner was unpersuaded.
By the time the grievance eventually reached its final stage, the employee had already reached her breaking point. The employer’s own delays had contributed to that outcome. An employee who has exhausted the remedies reasonably available to them cannot be expected to endure ongoing abuse indefinitely while waiting for a process that shows little sign of reaching a conclusion. Internal grievance procedures remain important, but they cannot become an excuse for organisational paralysis.

The remedy is equally significant. Rather than awarding compensation, the commissioner ordered reinstatement. Although constructive dismissal cases often result in compensation because the employment relationship has irretrievably broken down, the commissioner found that the real source of the intolerable conditions was the employee’s manager rather than the employer itself. Since another employee had already been transferred away from the problematic reporting line, there was no reason the applicant could not similarly be placed elsewhere within the organisation. Reinstatement was therefore both practical and appropriate.

For employers, the lessons are clear.  Workplace bullying is not merely an interpersonal issue or a leadership challenge. Left unchecked, it can expose an organisation to significant legal risk. More importantly, employers cannot rely on the existence of grievance procedures if those procedures are allowed to stagnate while the complained-of conduct continues. Policies do not protect employers; prompt, effective intervention does.

The message from Ramugondo is a simple but important one. Constructive dismissal is rarely established by a single incident. It is often the cumulative effect of persistent misconduct, organisational indifference and delayed intervention. When employers know that an employee is being subjected to ongoing humiliation and fail to act decisively, silence itself can become part of the intolerable working environment.

The post When silence becomes complicity: Constructive dismissal, workplace bullying and the cost of doing nothing appeared first on Werksmans Attorneys.

The Labour Court in Nxele v Chairperson of the Disciplinary Hearing: Mudau NO and others considered yet another chapter in the protracted dispute between Mr Nxele and the Department of Correctional Services (“DCS“). The matter arose after the applicant challenged the extension of his precautionary suspension and sought to halt an internal disciplinary hearing following his invocation of section 188A(11) of the Labour Relations Act 66 of 1995 (“LRA“).

While the Court dismissed the challenge to the extension of the suspension on jurisdictional grounds, the judgment is noteworthy for its detailed consideration of section 188A(11), particularly in light of recent Labour Appeal Court (“LAC“) judgments concerning whistleblower protection under the Protected Disclosures Act 26 of 2000 (“PDA“).

The Court rejected the applicant’s challenge to the extension of his suspension, holding that he had failed to establish a proper jurisdictional basis for the Labour Court to grant the declaratory relief sought. The Court reiterated that its jurisdiction is limited by statute and that it does not possess a general supervisory power over all employment-related disputes. It further held that the Public Service Precautionary Suspension Guide is a policy instrument incapable of founding a contractual claim and that, in any event, the relevant regulatory framework authorised the chairperson to determine whether a suspension should continue beyond the prescribed 60-day period.

Section 188A(11) of the Labour Relations Act 66 of 1995

The more significant aspect of the judgment concerns the Court’s treatment of section 188A(11) of the LRA. The provision allows an employee or employer to require a pre-dismissal arbitration where the employee alleges in good faith that the holding of an internal disciplinary inquiry contravenes the PDA.

In considering the effect of a section 188A(11) request, the Court revisited its earlier decision in Nxele I. In that case, the Labour Court held that once an employee invokes section 188A(11), the request is effectively peremptory. The employer is obliged to institute a pre-dismissal arbitration, and any pending internal disciplinary proceedings must cease. The Court emphasised that the provision serves an important protective function by safeguarding employees who make protected disclosures and by avoiding parallel litigation.

Subsequent decisions sought to confirm this approach. In Mtweta v Transnet Freight Rail and Operating Division of Transnet (SOC) Limited, relying on Mamodupi v Property Practitioners Regulatory Authority and Another, the Labour Court held that a mere allegation of a protected disclosure was insufficient. According to that approach, an employee was required to demonstrate, at least prima facie, that a protected disclosure had been made and that a causal link existed between the disclosure and the alleged occupational detriment. The Court further held that a disciplinary chairperson was obliged to halt proceedings only where the employee had already approached the CCMA, bargaining council or Labour Court for relief under the PDA.

The present judgment notes, however, that the LAC has since provided authoritative clarification in Nxele IV. The LAC confirmed that an employee invoking section 188A(11) bears no obligation to prove that the disciplinary proceedings in fact contravene the PDA. Rather, it is sufficient that the employee only allege, in good faith, that such a contravention exists. The threshold is therefore lower than that suggested in Mtweta. The focus is on the bona fides of the allegation rather than proof that an occupational detriment has occurred.’

The Court also considered the question of who determines whether the jurisdictional requirements for a section 188A(11) inquiry have been met. In Matlala v Foskor Proprietary Limited and Others, the Labour Court held that this determination fell to the arbitrator appointed under section 188A. However, the LAC’s subsequent decision in Industrial Development Corporation of South Africa v Modika clarified that the initial jurisdictional determination belongs to the CCMA or relevant bargaining council itself. The administrative body’s decision to accept or reject a section 188A(11) referral constitutes the relevant jurisdictional ruling and remains reviewable on ordinary review principles. Courts should therefore refrain from anticipating or usurping that determination.

Applying these principles, the Court held that the General Public Service Sectoral Bargaining Council (”GPSSBC”) had not yet made a decision on the applicant’s section 188A(11) request. At the time of the hearing, the bargaining council had merely acknowledged receipt of the referral. It was therefore inappropriate for the Court to compel the conversion of the disciplinary hearing into a section 188A(11) inquiry or to otherwise interfere with a determination that falls within the statutory competence of the GPSSBC.

The Court concluded that once a section 188A(11) referral has been lodged, internal disciplinary proceedings are, at the very least, paused pending the CCMA or bargaining council’s decision. Should the referral be accepted and enrolled, the internal disciplinary process falls away and is replaced by a pre-dismissal arbitration. If the referral is rejected, the employee may challenge that decision or submit to the disciplinary process. The applicant’s request for final interdictory relief was accordingly dismissed.

The judgment provides important guidance on the operation of section 188A(11) and the interaction between the LRA and the PDA. Most significantly, it confirms that an employee invoking section 188A(11) is not required to establish the merits of an alleged protected disclosure at the outset. Instead, the employee need only allege in good faith that the disciplinary process constitutes an occupational detriment. The judgment further clarifies that the CCMA or bargaining council, rather than the employer, disciplinary chairperson or Labour Court, is responsible for making the initial jurisdictional determination regarding the referral. In doing so, the Court reinforces the protective purpose of section 188A(11) while respecting the statutory functions assigned to dispute-resolution bodies.

The post Nxele v Chairperson of the Disciplinary Hearing: Mudau NO and others, [2026] 6 BLLR 628 (LC): Clarifying the operation of section 188A(11) of the Labour Relations Act 66 of 1995 appeared first on Werksmans Attorneys.

Section 197 of the Labour Relations Act has long been one of the most misunderstood and misapplied provisions in South African labour law. Employers frequently assume that because a new contractor introduces different technology, different management structures or new operational methods, the incoming business is fundamentally different from its predecessor. The Labour Appeal Court’s recent decision in Electro Hydro World (Pty) Ltd v Murray & Roberts Cementation (Pty) Ltd and Others serves as a timely reminder that the enquiry is far more practical than that.

The dispute arose after Sibanye terminated Murray & Roberts Cementation’s contract to operate and maintain a grout plant at one of its mining operations following a competitive tender process. Electro Hydro World secured the new contract and argued that it would be operating a substantially different business. It intended constructing two larger, more technologically advanced grout plants, implementing different shift structures, using fewer employees and supplying much of its own equipment.  On that basis, Electro Hydro maintained that section 197 was not triggered and that it had no obligation to take over the employment of the 63 employees previously engaged by Murray & Roberts.

Both the Labour Court and, on appeal, the Labour Appeal Court disagreed.  In dismissing the appeal, the Labour Appeal Court reaffirmed an important principle that has consistently emerged from section 197 jurisprudence: courts are concerned with substance rather than form.

The starting point remains the familiar three-stage enquiry. There must first be a transfer from one employer to another. Secondly, what is transferred must constitute a business or part of a business. Thirdly, that business must be transferred as a going concern. Whether those requirements are met is determined objectively by examining the reality of the transaction rather than the labels the parties choose to attach to it.

What made this judgment particularly significant was the court’s emphasis on identifying the true economic activity being performed.  Although Electro Hydro was introducing larger plants, updated technology and different operational processes, the essential commercial reality remained unchanged. Before the tender, Murray & Roberts operated grout plants that produced grout and pumped it underground for Sibanye’s mining operations. After the tender, Electro Hydro performed precisely the same economic activity for precisely the same client using the same utilities, raw materials and underground infrastructure provided by the mine.  The fact that the service would now be delivered more efficiently, or at greater scale, did not alter the underlying business.

Equally important was the court’s treatment of assets. Electro Hydro argued that many assets had not transferred, including computers, software, furniture, printers, tools and other equipment that it regarded as essential to its operations.  The Labour Appeal Court rejected that argument. Section 197 does not require every asset used by an outgoing contractor to pass to the incoming contractor. The relevant question is whether the assets necessary to continue the business transferred. Here, the core operational infrastructure belonged to Sibanye and remained available to the incoming contractor. The office equipment retained by Murray & Roberts was peripheral rather than fundamental to the continuation of the business.

This aspect of the judgment is likely to have broader implications across outsourced services and mining contracts.  Businesses frequently redesign operations when taking over contracts. Technology improves. Staffing models evolve. Automation increases. None of these developments necessarily prevent section 197 from applying.  The real enquiry remains whether the underlying economic entity continues to exist despite those changes.

For employers, that distinction matters.  Winning a tender does not automatically mean that a contractor starts with a clean slate from an employment perspective. Equally, simply changing the way work is performed will not necessarily avoid the automatic transfer provisions contained in section 197.

The judgment reinforces that courts will adopt a practical, commercially realistic approach. They will examine what business is actually being carried on before and after the transaction, identify its essential operational characteristics and determine whether those characteristics have remained intact. If they have, section 197 is likely to follow, regardless of new technology, different equipment or revised organisational structures.

For organisations involved in outsourcing, insourcing or competitive tender processes, Electro Hydro World is a valuable reminder that section 197 cannot be avoided through careful drafting or operational redesign alone. If the same business continues in different hands, and similar assets are used to perform the business activity, the law is likely to recognise exactly that.

The post No grout about it: The LAC cements section 197 principles appeared first on Werksmans Attorneys.

By its very nature, death is tragic. The death of a loved one evokes deep feelings of grief. These feelings may be exponentially compounded by other feelings—such as anger, frustration, and despair—where the circumstances surrounding or leading up to the death of a loved one are unclear. To obtain the required clarity, it may sometimes be necessary to initiate inquest proceedings.

Such will be the case in September 2026, when inquest proceedings into the death of Anele Tembe are expected to commence in the Cape Town Magistrates Court (following a postponement of the proceedings on 13 July 2026).

Ms Tembe died in April 2021 after falling from a hotel room (on the 10th floor) that she shared with her now-deceased fiancé, Kiernan “AKA” Forbes, a well-known rapper who was subsequently murdered in February 2023. Following Ms Tembe’s death, questions arose about whether her death was the result of suicide or murder. Seeking clarity about the circumstances of her death, Ms Tembe’s family approached the authorities, who eventually initiated the anticipated inquest proceedings.

But what is an inquest and how does it differ from other legal proceedings?

When a person dies from unnatural causes, the police are required to investigate such a death to determine whether it was caused by the commission of a crime. Once they have concluded their investigation, the police must submit a report and any supporting documents (such as witness statements and any forensic reports) to the National Prosecuting Authority (NPA) which must then decide whether there is a prosecutable criminal case in relation to the death. If the NPA elects not to prosecute, the report must then be submitted to a magistrate. If the magistrate, after reviewing the report, determines that a death has occurred and is not due to natural causes, inquest proceedings must be initiated (subject to any directions from the Minister of Justice).

Inquests are judicial proceedings in which the court is tasked with investigating the circumstances and cause of the death of a person where it appears that such death was not due to natural causes. The courts have stated that the purpose of holding an inquest is to investigate the circumstances of death seemingly occurring from unnatural causes, where the NPA has declined to prosecute. The courts have also stated that inquest proceedings are intended to promote public confidence and to reassure the public that all deaths from unnatural causes will receive proper attention and investigation so that, where necessary, appropriate measures can be taken to prevent similar occurrences and so that persons responsible for such deaths may, as far as possible, be brought to justice.

Unlike civil law or criminal law proceedings—and because of their inherently investigative function—inquest proceedings are usually conducted in an inquisitorial manner, with the presiding officer playing an active role in questioning witnesses. Although inquest proceedings differ from the other types of proceedings, the courts have stated that they should be conducted more in line with criminal proceedings than civil proceedings. However, unlike criminal proceedings, the aim of inquests is not to determine any person’s guilt beyond a reasonable doubt, nor is it to enforce a person’s rights and obligations on a balance of probabilities, as in civil law proceedings.

The nature of the witnesses that may be required in inquest proceedings will differ depending on the unique circumstances of each case. Generally, however, potential witnesses may include relatives of the deceased, eyewitnesses, expert witnesses (e.g. forensic specialists), investigating officers (from the police), and any other person/s with knowledge about the circumstances of the death.

The Inquests Act 58 of 1959 provides that once all the evidence has been heard and evaluated, the presiding officer must make a finding on the following facts, which must be explicitly recorded in the inquest judgment: (a) the identity of the deceased person; (b) the cause or likely cause of death; (c) the date of death; and (d) whether the death was caused by any act or omission seemingly involving a crime by any person. Notably, if the presiding officer is unable to make a finding on any of these facts after having considered all the evidence, they must record that in their judgment. Lastly, the Inquests Act also provides that the judgment and transcribed record of the inquest proceedings must be submitted to the NPA, which must then consider whether any individual/s should be prosecuted in criminal proceedings.

While the inquest into the death of Ms Tembe has yet to commence, an inquest into the deaths of 21 youths, who died at a tavern in KuGompo City (formerly East London) on 26 June 2022 has recently concluded. On 10 July 2026, the KuGompo City Regional Court (sitting in Mdantsane) handed down judgment in inquest proceedings intended to provide clarity about the cause and circumstances of the youths’ deaths. As required by the Inquests Act, the court established the identities of the deceased youths, the cause/s of their deaths (i.e. crush asphyxiation), the date of their deaths, and the acts and omissions that led to their deaths (including the people who committed them). The court found that there was prima facie evidence that several individuals—including the tavern owners, a former bouncer at the tavern, a police officer, and an official of the Eastern Cape Liquor Board—collectively caused or contributed to the occurrence of the deaths. Consequently, the court referred the findings to the NPA, which must now decide whether to prosecute the responsible individuals.

Ultimately, inquest proceedings cannot undo the tragedy (and associated grief) of deaths occurring by unnatural causes. What inquests can do, however, is to help families, the public, and the justice system make sense of the circumstances surrounding unnatural deaths and whether any individual/s should be held accountable. In this way, it is hoped that grieving families might begin to find some semblance of closure.

The post Making sense of death: A brief overview of inquest proceedings appeared first on Werksmans Attorneys.

1. Introduction

Two Gauteng Division judgements have reached diametrically opposite conclusions on the question as to whether cryptocurrency constitutes “capital” for the purposes of the Exchange Control Regulations, 1961 issued in terms of the Currency and Exchanges Act, 1933 (the “Regulations“). In Standard Bank of South Africa v South African Reserve Bank and Others 2025 (5) SA 289 (GP), Motha J held that cryptocurrency falls outside the ambit of the Regulations entirely. Barely a year later, in Mangundhla and Another v South African Reserve Bank and Others 2026 JDR 2449 (GJ), Wilson J expressly disagreed, finding that cryptocurrency is plainly “capital” under Regulation 10(1)(c). This article examines the reasons why Wilson J concluded that the Standard Bank decision was “clearly wrong”.

2. The Standard Bank case: ‘Cryptocurrency falls outside the ambit of the regulations’

In the Standard Bank case, the South African Reserve Bank had ordered the forfeiture of approximately R16.4 million on the basis that LCC had contravened Regulations 3(1)(c) and 10(1)(c). Motha J held that cryptocurrency is neither currency nor capital, observing that “the construction that cryptocurrency is money, by looking at the definition of money which includes foreign currency, is strained and impractical.” He found that, given the punitive nature of the Regulations, there was “no room for an unnatural and fictitious reading” so as to apply to cryptocurrency, and that “on any construction, much less on a restrictive interpretation, cryptocurrency falls outside the ambit of capital under Reg 10(1)(c).” The judgement has been appealed and its findings are therefore not currently in effect.

3. The Mangundhla case: ‘Cryptocurrency is plainly capital’

In the Mangundhla case, Mr Mangundhla had used cryptocurrency trading accounts to purchase approximately 1,680 Bitcoin, worth just under R182 million, and transfer same to Bitcoin wallets accessible only through cryptocurrency exchanges registered outside South Africa. The South African Reserve Bank ordered the forfeiture of approximately R6 million on the basis that the transactions contravened Regulation 10(1)(c).

Wilson J approached the question as an exercise in statutory interpretation, applying the tripartite test of text, context and purpose. Wilson J accepted that “capital” in the Regulations refers to capital in its financial sense, closely identified with “cash for investment” or “money that can be used to produce further wealth.” However, Wilson J distinguished “capital” from “currency,” noting that the two terms are deployed in the Regulations to mean different things. The court regarded “capital” as “any financial asset that is capable of holding value or being used as a medium of exchange,” a category which includes fiat currency but extends to any document or token bearing a fixed or ascertainable exchange value.

Based on this reasoning, Wilson J found that Bitcoin is “plainly capital” because it is a financial asset capable of holding value and being used as a medium of exchange. Wilson J also considered the purpose of the Regulations, finding that the regulation of Bitcoin as ‘capital’ is essential to maintain the effectiveness of capital controls. Were it otherwise, the exchange control regime “would be virtually worthless, as anyone of any means who wished to take their money abroad could do so without Treasury oversight, simply by converting it into cryptocurrency and transferring it to a foreign cryptocurrency exchange.”

4. Judge Wilson’s criticism of the judgment in the Standard Bank case

Wilson J expressly considered and rejected the Standard Bank decision. Wilson J found Motha J’s reasoning to be flawed on several grounds – Wilson J:

• held that Motha J had placed undue emphasis on the intangible and technological characteristics of cryptocurrency, which amounted to what Wilson J described as “a degree of magical thinking which misconstrues the nature of money, underplays the destructive effects of unregulated capital flows, and ignores the fundamental purpose of the Exchange Control Regulations.” The critical question is not the inherent nature of cryptocurrency, but the purposes to which it can be put. To the extent that cryptocurrency is a financial asset that holds value and can move capital beyond South Africa’s borders, its technological novelty is irrelevant. Wilson J cautioned that “courts should be careful not to ascribe unusual or irreducibly exotic properties to phenomena which, though novel and perhaps unique in some respects, exhibit precisely the attributes an enactment is intended to regulate.”
• disagreed with Motha J’s reliance on the principle that punitive statutes require restrictive interpretation. Whilst acknowledging that principle, Wilson J held that the overriding function of a court is to give a statute the appropriate meaning in light of its words, context and purpose. Where the only reasonable interpretation is that a statute intends to attach harsh consequences to defined conduct, the statute must be applied as it is found. The three-fold purpose of the Regulations, as articulated by the Supreme Court of Appeal in South African Reserve Bank v Leathern NO 2021 (5) SA 543 (SCA), is to prevent the loss of foreign currency resources, ensure effective control of the movement of financial assets into and out of South Africa, and avoid interference with the country’s commercial and financial system. All three purposes would be frustrated by excluding cryptocurrency from the definition of capital.
• dismissed the relevance of various reports published by entities associated with the South African Reserve Bank suggesting that cryptocurrency might not be adequately regulated by the existing framework. Nor was it relevant that the drafters of the Currency and Exchanges Act and Regulations in the 1930s and 1960s could not have foreseen cryptocurrency; they “certainly knew all about the nature of financial assets, negotiable instruments, and fiat currency” and would have had no difficulty understanding the essentials of Bitcoin.

5. Conclusion

The Mangundhla judgement represents a significant departure from the Standard Bank decision, creating legal uncertainty because two judges of the Gauteng Division have now reached opposite conclusions on the same legal question, with neither judgement binding on the other. In April 2026, the draft Capital Flow Management Regulations were published, seeking inter alia to formally include cross-border transfers of crypto assets within the exchange control framework. The conflict may be settled when a higher court resolves the issue, or these draft Regulations become law and are not challenged.

The post Is cryptocurrency ‘capital’? Taking the Mangundhla judgment under the loop appeared first on Werksmans Attorneys.

The practice of compounding (that is, the preparation, mixing, combining, packaging and labelling of a medicine by, amongst others, a pharmacist) [1] has attracted renewed attention and regulatory scrutiny, in light of the recent proliferation of compounded medicines containing GLP-1 [2] agonist active components in the South African market. GLP-1 agonists are a class of medicines directed at the treatment of type 2 diabetes and related cardiovascular conditions, as well as chronic weight management and obesity. [3]

The compounding of particular medicines for individual patients by a pharmacist is expressly contemplated in the Medicines and Related Substances Act[4] (“Medicines Act”), which regulates the manufacturing and supply of medicines in South Africa. Compounding is generally used in circumstances where mass-produced formulations of medicines are either unavailable or unsuitable for a particular patient.

In terms of section 14(1) of the Medicines Act, all medicines that are subject to registration, as determined by the South African Health Products Regulatory Authority (“SAHPRA”), are required to be registered in order to be lawfully imported, offered, advertised or sold in South Africa.

As a legal prerequisite to the registration of any medicine, SAHPRA must be satisfied that the medicine in question is, inter alia, suitable for the purpose for which it is intended, and is safe, efficacious and of good quality. [5]

Notably, the registration requirements in the Medicines Act include an explicit carve-out for compounded medicines in terms of section 14(4) of the Medicines Act. Four principal requirements, for the lawful sale of an (unregistered) compounded medicine emerge from section 14(4) of the Medicines Act, namely that –

• the medicine must be compounded for a particular patient in the specific quantity required for the treatment of that patient;
• the medicine must not contain any component which has been prohibited for sale in terms of the Medicines Act, or which SAHPRA has declined to register;
• the medicine must not be advertised; and
• the active components of the medicine must appear in another medicine which has been registered under the Medicines Act.

It is this last-mentioned requirement that the High Court, Pretoria, was called upon to interrogate and clarify in the recent decision of Novo Nordisk (Pty) Ltd v iDexis Compounding Specialists (Pty) Ltd t/a Sentra Pharmacy and Others, [6] which was handed down on 22 June 2026 (“the iDexis decision”). The iDexis decision concerned the extent to which compounded medicines containing GLP-1 agonist active components may lawfully be advertised, offered and sold in South Africa.

The prevalence of these medicines in the South African market has not gone unnoticed by SAHPRA and the South African Pharmacy Council (“SAPC”), who, on 23 May 2026, announced that they would pursue “intensified enforcement action against the unlawful manufacturing and distribution of unregistered GLP-1 and [gastric inhibitory polypeptide] medicines”. [7]

It is against this background that Novo Nordisk Proprietary Limited (“Novo Nordisk”), being the authorised South African importer and distributor of registered medicines containing semaglutide (a GLP-1 agonist and Scheduled substance), branded as Ozempic and Wegovy, launched an application for an urgent interdict against iDexis Compounding Specialists Proprietary Limited (“iDexis”), and its sole shareholder and director.

Novo Nordisk sought to prevent iDexis and its shareholder/director from manufacturing and selling (unregistered) medicines containing semaglutide, on the basis that doing so contravened the Medicines Act, pending the outcome of an investigation by SAHPRA and the SAPC into their alleged illegal manufacture and sale of these medicines. iDexis, in turn, sought to argue that the compounding of medicines containing semaglutide is lawful, as Ozempic, which contains semaglutide, is a registered medicine in South Africa.

In deciding whether or not to grant the interim interdict, the court focused on what it regarded as the definitive issue in so far as the legality of iDexis’ activities was concerned, namely whether the active pharmaceutical ingredients (“APIs”) in Novo Nordisk’s and iDexis’ respective products were of such a nature that iDexis was lawfully permitted to compound its product by virtue of section 14(4) of the Medicines Act.

In doing so, Van Niekerk J undertook a detailed factual analysis of the API in Ozempic and Wegovy, as contrasted with the API in iDexis’ product, which originated from a source undisclosed by iDexis. Taking into account that the semaglutide developed and manufactured by Novo Nordisk Denmark is a biological product extracted from yeast, whilst the API in iDexis’ product is a synthetic peptide with a molecular structure similar (but not identical) to the Ozempic API, the court concluded that section 14(4) did not permit iDexis to compound medicines containing a synthetically produced semaglutide that had not been approved and registered with SAHPRA.

Interpreting section 14(4) in light of the purpose of the Medicines Act (being the regulation of medicines in the public interest), the court held that –

“… it is a matter of logic and common sense that the active component of a scheduled medicine, which requires a stringent registration process, can never be allowed into a medicine without the scrutiny of SAHPRA, and without the proper stringent screening process envisaged in terms of the Medicines Act and regulations, by relying on “similarity” subjectively determined, under the guise of compounding in terms of section 14(4)”. [8]

iDexis’ compounding of medicine containing synthetically produced semaglutide was, therefore, found to be unlawful. Turning to the relief sought, the court found that the requirements for an interim interdict had been met, holding in particular that, where it appears conduct may be contrary to the Medicines Act, such conduct should not be permitted to continue unabated, particularly where the ongoing illegality is also a criminal offence (as in this case).

The iDexis decision now provides helpful legal clarity on the interpretation of section 14(4) of the Medicines Act and the ambit of lawful compounding, as contemplated in this section.

Pharmacists and licensed pharmacies would be well advised to take note of the decision and seek the appropriate legal advice to ensure that their compounding activities align with the applicable statutory framework. The interim nature of the relief granted in the iDexis decision, the court’s limited focus in deciding the matter, and the far-reaching impact of the matters canvassed in the judgment, however, signal that the debate surrounding lawful compounding, particularly in so far as it pertains to medicines containing GLP-1 agonists, is far from settled.

[1]        The General Regulations published in terms of the Medicines Act, under GN 859 in GG 41064 of 25 August 2017, define “compound” as “the preparation, mixing, combining, packaging and labelling of a medicine (a) by a pharmacist practising in accordance with the Pharmacy Act, 1974; (b) by a veterinarian practising in accordance with the Veterinary and Para-Veterinary Professions Act, 1982 (Act 19 of 1982); or (c) by a person licensed in terms of section 22C(1)(a) of the Act and practising in accordance with their scope of practice”.

[2]        Glucagon-like peptide-1.

[3]        See paragraph 13 of the iDexis decision.

[4]        No. 101 of 1965.

[5]        Section 15(3) of the Medicines Act.

[6]        Case number 2024-130119.

[7]        Media Release published by SAHPRA and the SAPC, entitled “SAHPRA and the SAPC Crack Down on Unlawful Manufacturing of Unregistered GLP-1/GIP Medicines” and dated 23 May 2026.

[8]        Paragraph 64 of the iDexis decision.

The post Agonists and APIs: High Court Injects Clarity into Compounding Debate appeared first on Werksmans Attorneys.