Wrap Text
Mustek Mandatory Offer Novus Numus Concert Party Ruling
PUBLISHED ON 7 JANUARY 2026
RULING OF THE TAKEOVER REGULATION PANEL
IN THE MATTER OF: NOVUS HOLDINGS LIMITED AND NUMUS CAPITAL PROPRIETARY
LIMITED
IN RELATION TO: MUSTEK LIMITED (MANDATORY OFFER)
1. SYNOPSIS OF KEY FINDINGS
1.1. Concert Party Determination (Section 117(1)(b))
1.1.1. The Panel determines that Numus Capital Proprietary Limited acted in
concert with Novus Holdings Limited in relation to the mandatory offer for
Mustek Limited announced on 15 November 2024.
1.1.2. This finding rests on:
1.1.2.1. A Mustek-specific mandate established 14 months before the
offer announcement, creating purpose-built infrastructure for
the acquisition strategy;
1.1.2.2. Structural integration through shared premises at Suite 704,
76 Regent Road, Sea Point, where Novus's strategic
controller (Mr Zetler) operated from the broker's premises;
1.1.2.3. Anticipatory hedge fund positioning commencing 44 days
before documented client instructions;
1.1.2.4. The trading data evidences a pattern of accumulation where
the Respondent's purchasing behaviour shifted from variable
market pricing to a rigid price shelf of R13.01 (September to
November 2024). While the Panel does not make a
determination on market manipulation, this alignment with the
eventual R13.00 offer price, executed concurrently with the
Offeror's discussions with other major shareholders (e.g., the
DK Trust), supports the inference of a coordinated strategy
rather than independent investment discretion;
1.1.2.5. Verbal instructions from Mr Zetler bypassing designated
corporate governance channels, with post-execution deal
recaps documenting the coordination.
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1.1.2.6. This determination rests on contemporaneous documentary
evidence provided by the Respondents themselves, including:
1.1.2.6.1. The 17 July 2024 email from SBG Securities to
Numus Capital (Native Email File: 'FYI Malc. Hi
Zac. Summary of earlier call and way
forward.msg'), which records the agreed
strategy to cap and convert CFD positions,
directly contradicting sworn testimony claiming
ignorance of hedging arrangements.
1.1.2.6.2. The 12 November 2024 instruction from Numus
to Standard Bank (Annexure 4 (003).pdf: 'Please
also convert all the MST to stock at cost'), which
was executed immediately, demonstrating
operational control over the underlying shares
irrespective of ISDA documentation.
1.1.2.6.3. Client mandates (e.g., for Aktiv, A² Subco,
NPort) signed by Messrs. Zetler and Van der
Veen, establishing that Numus's purported
'independent client base' for whom it traded in
Mustek comprises the private investment
vehicles of Novus's own directors.
1.1.2.6.4. The OTC Derivative Trading Client Agreement,
Clause 10, which contractually places the
responsibility for JSE Listing Requirements
disclosures on the client, specifically where the
client is a director of the underlying asset's
issuer.
1.2. Beneficial Interest in CFD Arrangements (Sections 1 and 56(2)(c))
1.2.1. The Panel determines that the Offeror held a beneficial interest in the
underlying securities held by the Prime Broker, notwithstanding the
contractual 'cash-settled' nature of the CFDs. This finding is grounded in
the following verified facts:
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1.2.1.1. De Facto Control of Disposal
On 17 July 2024, a meeting convened between the
Respondent and the Prime Broker (SBG Securities)
established an agreed strategy to cap the CFD position and
convert excess holdings to physical shares.
1.2.1.2. Causal Link
This agreement directly resulted in the disposal of
approximately 7.9 million shares by the Respondent on 22
July 2024 (per Contract Note 14) and the subsequent Section
122 disposal notice filed by the Bank on 23 July 2024.
1.2.1.3. Right to Convert
The Respondent's instruction on 12 November 2024 to
'convert all MST to stock', which was immediately executed,
demonstrates that, irrespective of the ISDA master
agreement's text, the parties operated on the understanding
that the derivative holder commanded the underlying equity.
1.2.2. This finding rests on two independent statutory foundations:
1.2.2.1. Section 1 (Direct Beneficial Interest)
Novus held a beneficial interest "through relationship or
otherwise" by virtue of its consistent control over the
disposition of the underlying shares. The evidence establishes
that Novus:
1.2.2.1.1. Identified specific shareholders from whom
blocks could be acquired and instructed their
solicitation;
1.2.2.1.2. Directed the transfer of shares between prime
brokers when credit limits were reached;
1.2.2.1.3. Acquired 100% of the hedge shares upon CFD
termination through coordinated transactions.
The ISDA documentation's cash-settlement provisions do not
defeat this finding. The operational reality, consistent control
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over disposition at every critical juncture, establishes
beneficial interest regardless of contractual form.
1.2.2.2. Section 56(2)(c) (Deemed Beneficial Interest)
Novus held a deemed beneficial interest through "co-
operation for acquisition" with Peresec. The CFD
arrangements constituted agreements under which the parties
co-operated for the acquisition of Mustek securities, as
evidenced by:
1.2.2.2.1. Active solicitation of specific sellers at Novus's
direction;
1.2.2.2.2. Coordinated transfers between prime brokers;
1.2.2.2.3. Simultaneous exit transactions where Novus
acquired exactly what Peresec sold.
1.3. Section 122 Disclosure Breach
1.3.1. The Panel determines that Novus breached section 122 of the Companies
Act by failing to disclose its beneficial interests at the 5%, 10%, 15%, and
20% thresholds.
1.3.2. Novus's own board documents, describing CFDs as "shareholding,"
"equity," and "funding", prove contemporaneous understanding that CFDs
created beneficial interests requiring disclosure. The context-dependent
characterisation (ownership language internally; derivative language in
defence) demonstrates consciousness of the regulatory significance.
1.4. Regulation 111(6) Price Adjustment
1.4.1. The Panel determines that the offer consideration must be increased to
R15.41 per share.
1.4.2. On 28 November 2024, the Numus hedge fund purchased 3,000 Mustek
shares at R15.41, an 18.54% premium to the R13.00 offer price. This
acquisition by a concert party member during the offer period triggers the
mandatory price adjustment under Regulation 111(6).
1.4.3. The Panel's determination is declaratory: it declares that Numus was
factually acting in concert at the time of the acquisition, not that concert
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party status arose upon this determination. Regulation 111(6) applies to
all persons "acting in concert" with the offeror, a factual status that exists
at the time of acquisition, regardless of any formal declaration.
1.5. Confidentiality
1.5.1. The Panel determines that no information in this ruling is confidential for
purposes of section 212 of the Companies Act.
1.5.2. Numus's confidentiality claim failed to comply with section 212(2), which
requires a written statement explaining why the information is confidential.
The public interest in transparency and market integrity overwhelmingly
outweighs any private interest in non-disclosure.
1.6. Regulatory Consequences
The following orders take immediate effect:
1.6.1. Novus Holdings Limited must increase the offer consideration to R15.41
per share for all Mustek Limited shareholders;
1.6.2. Novus Holdings Limited and Numus Capital Proprietary Limited must
announce this determination within 3 business days of receipt;
1.6.3. All historical disclosure documentation must be amended to reflect
Numus's concert party status and Novus's beneficial interests throughout
the accumulation period; and
1.6.4. This ruling shall be published on the Panel's website, Mustek's website,
and announced via SENS by Novus.
2. INTRODUCTION AND PROCEDURAL BACKGROUND
2.1. This ruling addresses whether Numus Capital Proprietary Limited ("Numus") acted
in concert with Novus Holdings Limited ("Novus") in relation to the mandatory offer
for Mustek Limited ("Mustek") announced on 15 November 2024 comprising a
cash consideration of R13.00 (thirteen Rand) for each Mustek share, a combined
consideration of R7.00 (seven Rand) cash plus 1 (one) ordinary share in Novus for
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each Mustek share, and a share-only consideration of 2 (two) Novus shares for
each Mustek share.1
2.2. The investigation arises from complaints lodged by Mr Albie Cilliers in June 2025
regarding potential undisclosed concert party relationships in connection with the
Novus mandatory offer. The Panel appointed Dr Madimetja Phakeng as an
inspector under section 169 (read with section 209) of the Companies Act, 2008
("Act"), who reported his findings under section 170(1).
2.3. Dr Phakeng's Final Report, delivered on 2 September 20252, concluded that Novus
and Numus acted in concert based on their "cumulative actions and steps"3 and
the existence of factors indicating concert party status. The Respondents then
strongly contested this conclusion as part of their representations whilst the Panel
considered the matter following the delivery of the Inspector's Report on 2
September 2025. This was following an invitation by the Panel to the
representatives of the impugned parties (i.e. the Respondents) to make any
representations pursuant to the Inspector's Report and prior to the Panel making
its final determination under section 170(1) of the Act.
2.4. On 22 September 2025, ENSAfrica4, representing Novus, submitted
comprehensive representations challenging the inspector's findings.
Subsequently, Isaac Benatar (director of Numus) and Adrian Steven Zetler
(director of Novus Holdings Limited) filed sworn affidavits on 11 November 2025 in
response to requests for clarifications from the Panel, denying concert party
relationships and asserting that Numus acted solely as a non-discretionary broker5.
2.5. Critical evidence emerged on 31 October 2025 when BVPG disclosed email
records which showed confirmations of order executions with no corresponding
client instructions, with Numus simply sending post-execution deal recaps to
Novus CFO Craig Wright, copying A² principals Zetler and Van der Veen at their
private email addresses (marblehead.co.za). These deal recaps documented the
completed trades but were not pre-execution instructions. Upon further enquiry
1 The firm intention announcement was published on 15 November 2024 which can be found at:
https://mustek.co.za/wp-content/uploads/2024/11/Novus-acquisition-Firm-intention-announcement-and-
cautionary-announcement_15-Nov.pdf
2 Inspector's Report at page 39
3 Inspector's Report at para 10.5.8.1 and 10.6.1
4 ENS September Letter date 22.9.2025 attached as Annexure B
5 Isaac Benatar Affidavit (11.11.2025); Adrian Zetler Affidavit (11.11.2025); Inspector's Report at foot note 24
thereto
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from the Panel, it was revealed that none of the pre-execution instructions from
Novus were ever in writing.6 7 8
2.6. Unless otherwise specified, terms defined in the Companies Act, 2008 ("Act") and
the Companies Regulations, 2011 ("Regulations") hold the meanings attributed to
them therein.
2.7. The Panel notes that the Respondents were afforded an extensive opportunity to
address the evidence against them. Following the Inspector's Report of 2
September 2025, the Respondents submitted comprehensive representations
(ENSAfrica, 22 September 2025), followed by sworn affidavits (11 November
2025), supplementary affidavits (21, 26, 27 November 2025 and 2 December
2025), and responses to multiple clarification queries from the Panel over a three-
month period. The Respondents had full access to the documentary evidence
relied upon and multiple opportunities to address specific contradictions identified
by the Panel. No procedural unfairness arises from this determination.
3. PARTIES AND CORPORATE STRUCTURE
3.1. Primary Parties
3.1.1. Novus Holdings Limited ("Novus" or "Offeror") is a JSE-listed company
primarily engaged in printing and packaging operations. It announced a
mandatory offer for Mustek Limited at R13.00 per share following the
acquisition of more than 35% of Mustek's equity through a combination of
CFDs and direct shareholding.
3.1.2. Numus Capital Proprietary Limited ("Numus") is a licensed financial
services provider operating both as:
3.1.2.1. A non-discretionary broker executing trades for institutional
clients; and
6 Zetler claims in his affidavit dated 21.11.2025 stated in para 8.1.2: "I contacted Mr Isaac Benatar of Numus and
advised him telephonically that Novus wanted to acquire CFDs…"
7 See also Affidavit from Benatar dated 11.11.2025 in para 19: "Numus Capital obtained all such instructions from
Mr. Adrian Zetler… No one else… provided instructions."
8 BVPG Letter (31.10.2025); Adrian Zetler Affidavit (11.11.2025) see para 8.3. (Fact is a synthesis of the date and
the evidence disclosed later)
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3.1.2.2. Manager of a regulated hedge fund9 conducting proprietary
trading,
among others.
3.1.3. Mustek Limited ("Mustek") is the target company (offeree regulated
company) of the mandatory offer, a JSE-listed technology distributor with
approximately 57.6 million shares in issue.
3.1.4. For the purposes of this ruling, "Respondents" refers to Novus and
Numus collectively or individually, whether used in the singular or plural.
3.2. Key Corporate Relationships and Control Structure
3.2.1. The lease for Suite 704, 76 Regent Road, Sea Point ("Suite 704"), is held
by Aktiv Investment Management, a company wholly controlled10 by Mr
Zetler. Aktiv entered into an oral sub-lease with Numus Capital for half of
the suite.
3.2.2. Despite the formal lease structure, the routine presence of A² principals,
Mr Zetler and Mr Van der Veen, in Suite 704 during the relevant period is
confirmed by their inclusion on all post-execution deal recaps from
Numus. This establishes that they were physically present and
operationally engaged in the Mustek accumulation strategy from this
location. It is important to note that, while the verifiable record indicates
that Zetler regularly used Suite 704. A² publicly claims on its website11 to
have offices at 76 Regent Road, Sea Point, and Zetler explicitly denied
having any other premises in the same building other than Suite 704,
thereby establishing Suite 704 as the de facto base for the A² principals.12
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3.2.3. This convergence of control, where the ultimate beneficial owners of
Novus (acting through A², which in turn has a potentially interrelated
relationship with the landlord, Aktiv, via the Zetler connection), and the
9 BVPG Letter (31.10.2025) at para 6.7; Inspector's Report at para 10.5.
10 A Zetler Affidavit _ Signed_21.11.2025 at Para 8.1.1: "I am the sole director of Aktiv Investment Management
(Pty) Ltd"
11 https://www.a2ip.co.za/#contact
12 I Benatar Affidavit (28.08.2025) at para 8.4; Adrian Zetler Affidavit (26.11.2025) at para 5.3
13 https://ir.montaukrenewables.com/static-files/417a60e7-85f2-4af2-b06e-9ced711d9476
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broker (Numus) all operated from the same physical space, must be
understood in light of the instruction pattern established in the evidence.
3.2.3.1. The documentary record establishes that all trading
instructions from Mr Zetler to Mr Benatar were verbal. No
written pre-execution instructions were ever produced to the
Panel despite repeated requests. The only documentation
consists of post-execution deal recaps sent by Numus to Mr
Wright, copying Mr Zetler and Mr Van der Veen.
3.2.3.2. The systematic absence of written instructions, combined with
Mr Zetler's confirmed presence at Suite 704 during the
relevant period, leads to the unavoidable inference that
trading instructions were communicated verbally within the
shared premises. This explains both the absence of
documentary evidence of pre-execution instructions and the
efficiency with which complex, time-sensitive trades were
executed.
3.2.3.3. The co-location was not merely coincidental proximity but the
operational mechanism enabling real-time coordination
without a documentary trail. The sworn admissions, the
distribution of deal recap emails, and the absence of any other
A² office in the building clearly establish that Suite 704
functioned as the de facto operational base for the
coordinated acquisition strategy.
3.3. Key Individuals
3.3.1. André van der Veen serves as co-founder and managing partner of A²
Investment Partners and CEO of Novus Holdings, holding qualifications
as CA(SA), CGMA, CFA. A² Investment Partners lists 76 Regent Road,
Sea Point, a multi-tenant commercial building, as its business address on
its public website, although the only part of that building confirmed by the
principals of A² as an office (at least one of them, Zetler) use regularly is
Suite 704, under arrangements with Aktiv Investment Management.14
14 https://www.a2ip.co.za/#contact
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3.3.2. Adrian Steven Zetler operates as co-founder and partner of A²
Investment Partners and sole owner and director of Aktiv Investment
Management, qualified CA(SA), CAIA, CFA, with 12 years' experience as
portfolio manager at Coronation Fund Managers. In his affidavit of 21
November 202515, Mr Zetler stated that A² Investment Partners "does not
have its own formal offices", a statement contradicted by A²'s public
website listing 76 Regent Road as its office address. This discrepancy
undermines claims of operational separation between A² and the
Aktiv/Numus operations at Suite 70416.
3.3.3. Isaac Benatar is one of the two directors of Numus Capital, which is
operationally co-located with Aktiv, A², and (for purposes of the offer)
Novus, while residing in Fresnaye, Cape Town, the same exclusive
suburb where Zetler (as the principal officer of Aktiv Investment
Management) resides at 19 Avenue Saint Bartholomew, Fresnaye17,
within a 1 km radius.
3.3.4. While the Panel makes no finding regarding personal friendship, the
operational reality, sharing premises without formal written leases for
extended periods, splitting costs, and accepting verbal-only instructions
for transactions worth millions of Rands, evidences a high-trust
commercial relationship that transcends ordinary arm's-length dealing.
3.3.5. The Respondent's defense that the trading was conducted by an
independent 'White Label' hedge fund under a third-party administrative
wrapper (Prescient) is rejected. An analysis of the fund's unitholder
register reveals that it is closely held by the Respondent's immediate
family and related associates. Consequently, the 'mind' of the fund is
indistinguishable from the mind of the Broker (Mr. Benatar), who was
simultaneously receiving verbal instructions from the Offeror. The
administrative structure cannot serve to sever the acting-in-concert link
where the decision-making power remains concentrated in the same
hands.
15 A Zetler Affidavit (26.11.25) at para 5.1
16 I Benatar Affidavit (28.08.2025) at para 8.4
17 https://ir.montaukrenewables.com/static-files/417a60e7-85f2-4af2-b06e-9ced711d9476
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4. REGULATORY FRAMEWORK
4.1. Statutory Provisions
4.1.1. Section 117(1)(b) of the Act defines "act in concert" as "any action
pursuant to an agreement between or among two or more persons, in
terms of which any of them co-operate for the purpose of entering into or
proposing an affected transaction or offer."
4.1.2. Section 123(2) establishes the mandatory offer framework by requiring a
person to make a mandatory offer when acquiring beneficial interest in
securities such that they hold at least the prescribed percentage (35%),
including where persons acting in concert collectively reach this threshold.
4.1.3. The Panel derives its regulatory mandate from Section 119(1), which
requires regulation of affected transactions to ensure "the integrity of the
marketplace and fairness to holders of relevant securities."
4.1.4. Section 170(1) provides the Panel with comprehensive investigative
powers to obtain information necessary for proper regulation of affected
transactions and to make determinations based on investigation findings.
4.1.5. Section 122(1)(a) establishes disclosure obligations, requiring that "a
person who acquires a beneficial interest in any particular securities of a
regulated company... must disclose to that company and to every
registered securities exchange on which the particular securities are
listed... the number and class of securities in which that beneficial interest
has been acquired" when the person holds, directly or indirectly, a
beneficial interest amounting to 5% or more of the issued securities of that
class.
4.1.6. Section 1 of the Act defines "beneficial interest", when used in relation to
a company's securities, as meaning the right or entitlement of a person,
through ownership, agreement, relationship or otherwise, alone or
together with another person, to:
4.1.6.1. receive or participate in any distribution in respect of the
company's securities;
4.1.6.2. exercise or cause to be exercised, in the ordinary course, any
or all of the rights attaching to the company's securities; or
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4.1.6.3. dispose or direct the disposition of the company's securities,
or any part of a distribution in respect of the securities,
4.1.7. Section 117(1)(j) provides that "'securities', when used in Parts B and C
of Chapter 5 of the Act and the Regulations (collectively the "takeover
provisions"), means securities of a company as defined in section 1, but
only to the extent that those securities carry:
4.1.7.1. the right to vote;
4.1.7.2. the right to nominate a person to vote; or
4.1.7.3. a right or legitimate expectation to the residual value of the
company."
4.1.8. Section 5(1) provides that the Companies Act "must be interpreted and
applied in a manner that gives effect to the purposes set out in section 7."
4.1.9. Section 7 establishes that a purpose of the Act is to, among others:
4.1.9.1. "encourage transparency and high standards of corporate
governance"18;
4.1.9.2. promote "efficient and responsible management of
companies"19;
4.1.9.3. provide "a predictable and effective environment for the
efficient regulation of companies"20.
4.1.10. Section 158 provides a mandatory interpretive framework that applies
directly to this determination:
"When determining a matter brought before it in terms of this Act, or
making an order contemplated in this Act... the Panel:
4.1.10.1. must promote the spirit, purpose and objects of this Act; and
18 See section 7(b)(iii) of the Act
19 See section 7(j) of the Act
20 See section 7(l) of the Act
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4.1.10.2. if any provision of this Act, or other document in terms of this
Act, read in its context, can be reasonably construed to have
more than one meaning, must prefer the meaning that best
promotes the spirit and purpose of this Act, and will best
improve the realisation and enjoyment of rights."
This provision uses mandatory language ("must") and applies specifically
to Panel determinations. It establishes that the Panel is not exercising
discretion in choosing interpretive approaches, but rather implementing
Parliament's direct command to promote the Act's purposes and prefer
meanings that prevent regulatory circumvention.
4.2. The Four-Element Test
4.2.1. Section 117(1)(b) establishes a four-element test derived from the plain
statutory text:
4.2.1.1. Element one – "action pursuant to an agreement";
4.2.1.2. Element two – "between or among two or more persons";
4.2.1.3. Element three – "in terms of which any of them co-operate";
and
4.2.1.4. Element four – "for the purpose of proposing an affected
transaction".
4.2.2. The Respondents' proposed 'six-element test', placing reliance on the
Remgro/Mediclinic/Al Noor Takeover Special Committee ruling,
particularly using the 'Fifth Element' formulation from that decision, is
specifically rejected herein as a misstatement of South African law. This
ruling holds that, when properly applied, the legislative scheme
contemplates only these four elements and does not operate as set out in
that ruling. The Panel determines that an appropriate interpretative
approach to section 117(1)(b) is to apply the four elements required by
section 117(1)(b), interpreted purposively in accordance with sections
5(1), 7, and 158 of the Act21.
21 14 December 2015 - http://trpanel.co.za/wp-content/uploads/2016/07/Remgro-Ltd-Mediclinic-International-Ltd-Al-
Noor-Hospitals-Group-Plc-Ruling.pdf
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4.3. Purposive Interpretation Mandate
The legal framework for concert party determinations necessitates a holistic
assessment of conduct rather than the mechanical application of predetermined
categories. As the legislature provided no closed list of agreements constituting
concert party arrangements, the assessment must examine whether the totality of
conduct evidences cooperation for the purpose of proposing an affected
transaction. The legislative scheme contemplates that cooperation may take
various forms, including arrangements where service providers seek to secure
future (or maintain existing) business relationships with significant clients. The
interpretation must also consider the concert party provisions within the broader
disclosure and fairness framework of Chapter 5. Sections 122-123 establish
mandatory disclosure obligations (including those relating to mandatory offers)
obligations that would be undermined if the concert party definition were
interpreted restrictively. The legislative scheme contemplates that control can be
acquired through various coordinated means, requiring broad interpretation to
prevent circumvention.
4.4. Mandatory Purposive Interpretation Framework
4.4.1. The statutory mandate for purposive interpretation arises not from judicial
doctrine but from Parliament's express command in the Act itself. Section
158 applies directly to this Panel determination, requiring the Panel to:
4.4.1.1. "Promote the spirit, purpose and objects of this Act" when
determining matters under the Act; and
4.4.1.2. Where provisions can reasonably bear more than one
meaning, "prefer the meaning that best promotes the spirit
and purpose of this Act."
4.4.2. This is not a discretionary guideline but a binding directive using
mandatory language. Parliament has commanded the Panel, when
making this determination, to promote the Act's purposes and, where
interpretive choices exist, to prefer meanings that advance those
purposes.
4.4.3. Section 5(1) reinforces this mandate by requiring that the Act "must be
interpreted and applied in a manner that gives effect to the purposes set
out in section 7." These purposes include "encouraging transparency and
high standards of corporate governance" (s7(b)(iii)), "efficient and
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responsible management of companies" (s7(j)), and "a predictable and
effective environment for the efficient regulation of companies" (s7(l)).
4.4.4. The concert party definition in section 117(1)(b) must therefore be
interpreted not as a technical loophole, but as a protective mechanism
against covert coordination that undermines shareholder rights and
market integrity. Section 158 leaves no room for interpretations that
facilitate systematic circumvention of Chapter 5's transparency and
fairness objectives.
4.4.5. Accordingly, the requirement for an "agreement" encompasses tacit
understandings inferred from deliberate, sustained, and mutually
reinforcing patterns of conduct. To require explicit written documentation
would defeat the statutory purpose mandated by sections 5(1), 7, and 158,
enabling sophisticated circumvention, precisely the mischief the
legislature sought to prevent.
5. FINDINGS OF FACT AND CREDIBILITY ASSESSMENT
5.1. The Documentary Evidence of Acquisition Intent
5.1.1. Introduction
The board documents and internal planning materials provided by
Respondents on 26 November 2025 establish facts that fundamentally
undermine Respondents' characterisation of their activities. These
documents demonstrate that Novus approached Mustek as part of a
deliberate acquisition strategy aimed at gaining control, not as speculative
derivative trading or opportunistic market positioning. The language,
structure, and objectives documented in these materials demonstrate an
acquisition mindset that is irreconcilable with the "mere financial
instruments" defence advanced by Respondents22.
5.1.2. Zetler's 23 May 2024 Board Proposal
5.1.2.1. On 23 May 2024, the same day as the first Novus-Mustek
executive meeting, Mr Zetler submitted a formal board
proposal seeking authority to "negotiate the purchase of
22 Per the affidavit
16
c15% of Mustek" with a capital investment of R60-80 million.
The proposal's language demonstrates unambiguous
acquisition intent:
5.1.2.1.1. "If we could acquire this stake, we believe this
could provide an attractive toehold position for us
to explore further ways to increase our position
and potentially even execute an MBO with
management, thereby creating a new segment
within the Novus group."
5.1.2.1.2. "At a minimum, this level of shareholding will
provide us with the opportunity to actively
engage with Mustek management and its Board
in order to drive some of the value unlock
initiatives."
5.1.2.2. Board Approval Occurred After Strategy Execution
The documentary record reveals that board approval was not
obtained before execution but rather served to document
actions already substantially underway:
5.1.2.2.1. At 10:54 on 23 May 2024, Zetler sent an email to
the Novus board requesting "authority to
negotiate the purchase of c15% of Mustek";
5.1.2.2.2. On the same day, 23 May 2024:
5.1.2.2.2.1. The first documented Novus-
Mustek management meeting
occurred;
5.1.2.2.2.2. At approximately 17:00, a "deal
recap" email was sent regarding
the strategy execution; and
5.1.2.2.2.3. At 17:04, the first massive trading
instruction was executed:
"Bought 1,600,000 MST 836c";
17
5.1.2.2.3. Board members' responses to the "request for
authority" were received only on 24 May 2024:
5.1.2.2.3.1. Wright at 11:47;
5.1.2.2.3.2. Denalane at 12:59;
5.1.2.2.3.3. Botha at 13:27;
5.1.2.2.3.4. Alwar at 16:30;
5.1.2.2.3.5. Manga at 16:39; and
5.1.2.2.3.6. Mayman at 22:52,
all after the acquisition strategy was already
operational;
5.1.2.2.4. This chronology demonstrates that the board
proposal was not seeking genuine pre-
authorisation but rather documenting for
governance purposes a coordinated strategy
that had already been substantially executed.
5.1.2.2.5. The significance of this timeline cannot be
overstated. Mr Wright, who would later be
designated as the "authorised representative"
under the Numus mandate, was himself one of
the directors to whom Mr Zetler presented the
acquisition scheme for approval. The trade
executed at 17:04 on 23 May 2024 occurred
before Mr Wright had even responded to the
board proposal. His "approval" was received at
11:47 the following day, by which time 1.6 million
shares had already been acquired. This
demonstrates the board approval process was a
governance formality documenting a strategy
that had already been set in motion, not a
genuine exercise of independent oversight.
5.1.2.2.6. This is the language of corporate control
acquisition, not derivative speculation. The
18
objectives described, blocking M&A
transactions, pursuing board representation,
executing management buyouts, and creating
new business segments, are control rights that
flow from ownership, not from derivative
exposure to price movements. These objectives
required physical shares and voting rights, not
CFD positions, thereby explaining why the CFD
structure was designed from inception to
facilitate physical settlement rather than genuine
hedging.
5.1.2.3. Van der Veen's Non-Response
Mr van der Veen's failure to respond to the board proposal is
particularly significant given that:
5.1.2.3.1. He is Zetler's co-principal at A² Investment
Partners;
5.1.2.3.2. He was copied on the deal recap email at
approximately 17:00 on 23 May 2024, before any
other Novus board member had responded to
Zetler's request for authority, notwithstanding
that Van der Veen serves as Chief Executive
Officer of Novus;
5.1.2.3.3. His dual role (A² principal and Novus CEO) and
inclusion in execution communications before
board authorisation demonstrates operational
integration between A² Investment Partners and
Novus Holdings rather than arm's-length
corporate governance (through certain officials);
5.1.2.3.4. His silence in response to the formal board
proposal could indicate:
5.1.2.3.4.1. Prior knowledge of the acquisition
strategy (suggesting coordination
between A², Novus, and Numus
19
before any formal board process);
or
5.1.2.3.4.2. Recognition that board approval
was a formality for a strategy
already substantially decided and
underway;
5.1.2.3.5. Either explanation undermines the
characterisation of the Mustek acquisition as an
independently conceived Novus corporate
initiative subject to genuine arm's-length
governance oversight.
5.1.2.4. The board's authorisation of Zetler to effect the Mustek
acquisition is not in dispute. What is significant is the contrast
between the formal mandate structure (designating Wright as
the contact) and the operational reality (Zetler providing all
strategic instructions directly to Benatar). This indicates that,
while the formal mandate created an appearance of standard
corporate governance, the actual relationship was governed
by direct coordination between Zetler and Benatar at Suite
704. This indicates that, whilst the rest of the Novus board
may genuinely have been made aware of this effort only in
May 2024, Zetler, Van der Veen, and Wright had already been
undertaking the requisite preparation and coordinating with
Numus (as evidenced by the latter's proprietary trading
beginning 44 days prior) in anticipation of this strategy.
5.1.2.5. The board proposal explicitly contemplated that acquiring
15% would enable Novus to "block any potential M&A (and
delisting)" and "pursue board representation."
5.1.2.6. The Sophistication of the Principals
The convergence of events described above cannot be
attributed to coincidence, oversight, or inadvertence, given the
sophisticated financial expertise of the principals involved:
5.1.2.6.1. Mr Zetler serves as principal officer of A²
Investment Partners, a sophisticated investment
20
vehicle with operations across multiple
jurisdictions, including the United States, as
evidenced by Aktiv Investment Management's
filings with the U.S. Securities and Exchange
Commission;
5.1.2.6.2. Mr van der Veen possesses even more
extensive experience in sophisticated financial
transactions and regulatory environments;
5.1.2.6.3. Both principals would necessarily be intimately
familiar with:
5.1.2.6.3.1. Disclosure requirements under
takeover and securities regulation
across multiple jurisdictions;
5.1.2.6.3.2. Concert party rules and their
application to coordinated
acquisitions;
5.1.2.6.3.3. The regulatory treatment of
derivative instruments, including
CFDs, and their potential use in
accumulating beneficial interests;
5.1.2.6.3.4. Physical settlement mechanisms
and their disclosure implications;
and
5.1.2.6.3.5. The Section 122 disclosure
triggers under South African law;
5.1.2.6.4. The timing convergence on 23 May 2024,
whereby a Mustek-specific mandate operational
for 8 months, hedge fund accumulation over 44
days, a board proposal, the first management
meeting, and the first massive trading instruction
all aligned within a single day, cannot plausibly
be explained as a coincidence when
orchestrated by principals of this sophistication;
21
5.1.2.6.5. Similarly, the CFD structure employed, involving
two separate broker counterparties who
accumulated 37% of Mustek equity to hedge
approximately 23% CFD exposure, publicly filed
Section 122 notices while Novus remained
silent, then rapidly disposed of holdings via
physical settlement, demonstrates a level of
structural complexity inconsistent with
inadvertent non-compliance but entirely
consistent with deliberate regulatory arbitrage;
5.1.2.6.6. The Panel concludes that the systematic pattern
of events, when executed by principals with
extensive cross-jurisdictional regulatory
experience, constitutes evidence of deliberate
design rather than fortuitous coincidence.
5.1.3. The July 2024 Progress Report
5.1.3.1. On 17 July 2024, Mr Zetler reported to the board that Novus
had "consistently been buying in the market" and
"cumulatively purchased c7.9m shares at an average price of
R9.38/share" with total investment of R72 million. He stated
that Novus had "in a very short period emerged as the second
largest shareholder (behind the late founder's family stake of
c20%)."
5.1.3.2. Critically, Mr Zetler framed this achievement in terms of
strategic positioning for control:
"This places us in a very strong position as it gives us a
position size to block any potential M&A (and delisting) and
potentially pursue board representation if we so choose.
We have tentatively reached out to Mustek management and
they have expressed an interest in pursuing an MBO with
us, if we decide to go down this path."
5.1.3.3. He then identified "one large remaining block (of c6-7m
shares) which I now think is critical for us to secure ASAP"
22
and requested authority to "increase our stake to 30% of
Mustek," stating:
"If we can achieve this, we will end up being very close to 30%
of Mustek and I then see a number of routes which we can
explore for us to gain absolute control of the company."
5.1.3.4. The language is unequivocal: "gain absolute control." This
is not the objective of derivative speculation; it is the objective
of corporate acquisition.
5.1.4. The "Mustek Plan" Document - Mandatory Offer Contemplated From
Outset
5.1.4.1. The internal planning document titled "Mustek plan"
(Annexure A15)23 explicitly contemplates the mandatory offer
regulatory framework, proving this was not an unexpected
consequence but a planned outcome of the acquisition
strategy:
"Mandatory offer
Novus and management to form concert party relationship
Once combined holdings surpass 35% will jointly make
mandatory offer
Novus to put up guarantee/funding to TRP
Proceed to apply to Comp Comm"
5.1.4.2. This document demonstrates several critical facts:
5.1.4.2.1. Planned trajectory
From the outset, Novus planned to reach the
mandatory offer threshold; this was the intended
destination, not an accidental triggering of
regulatory obligations.
23 Mustek plan attached as Annexure D.
23
5.1.4.2.2. Concert party understanding
Novus explicitly contemplated that concert party
relationships would be formed. The document's
language, "Novus and management to form
concert party relationship", shows they
understood the regulatory framework and
deliberately structured their strategy within (or
around) it.
5.1.4.2.3. Regulatory process anticipated
The reference to "put up guarantee/funding to
TRP" and "proceed to apply to Comp Comm"
demonstrates Novus understood the mandatory
offer process and planned for it from the
beginning.
5.1.4.2.4. Acquisition, not speculation
The entire document is structured around
gaining control of Mustek through coordinated
action with management. This is fundamentally
incompatible with characterising any component
of the strategy, including CFDs, as speculative
derivative trading.
5.1.5. The Board Minutes - CFDs Described as "Funding" for Equity Acquisition
5.1.5.1. The 22 August 2024 board minutes (Annexure A16)24 contain
a characterisation of the investment that is fundamentally
inconsistent with the Respondents' CFD defence:
"Mustek: The total investment to date of R126 million (23% of
the equity) which comprised of R73 million in cash and R53
million in funding. The market value of the above is R170
million."
24 Novus Holdings Boardroom Minutes (22.08.24) attached as Annexure E.
24
5.1.5.2. This description demonstrates how Novus actually viewed
their CFD positions:
5.1.5.2.1. "Funding" not "derivatives":
CFDs (R53 million) are described as "funding", a
financing mechanism for acquisition, not
derivative speculation. This characterisation
reveals the economic reality: CFDs were a
means of acquiring beneficial interests in Mustek
equity through leverage, whilst discussions with
the DK Trust and certain executive management
regarding their concert party arrangements
continued25.
5.1.5.2.2. Aggregated as "equity":
The combined position (cash + CFDs) is
described as "23% of the equity", not "derivative
exposure" or "economic interest" but equity
ownership. This demonstrates Novus treated
CFDs and cash purchases as functionally
equivalent components of the same ownership
position.
5.1.5.2.3. Market value calculated:
The statement that "the market value of the
above is R170 million" demonstrates Novus was
valuing their position as an equity investment,
not tracking the mark-to-market of derivative
contracts.
5.1.5.2.4. Beneficial interest:
By describing CFDs as "funding" for "equity"
acquisition, Novus's own board documents
demonstrate that they understood that these
25 See https://mustek.co.za/wp-content/uploads/2025/02/Ruling-iro-Mustek-transaction-24-02-25-Final.pdf
25
CFDs created beneficial interests in Mustek
equity. This is precisely what section 122
requires to be disclosed: beneficial interests in
securities, regardless of the legal form through
which those interests are held.
5.1.6. The Affidavit Admission - CFDs Described as "Shareholding" Despite
Knowing They Were CFDs
5.1.6.1. In his affidavit of 26 November 2025, Mr Zetler explicitly
addresses the board documents' use of ownership language:
"The Panel will further note that in a number of the documents
annexed to this affidavit... there may be references to 'shares
in Mustek', 'shareholding in Mustek' and other cognate terms.
In this regard, I confirm that at all relevant points in time, the
reference to these terms was an informal description of the
CFD transactions undertaken by Novus; and the relevant
members of the Novus Board had known that the reference to
these terms were in fact references to CFD's (as opposed to
actual Mustek Shares)."
5.1.6.2. This admission significantly undermines the Respondents'
characterisation of CFDs as mere financial derivatives:
5.1.6.2.1. Conscious choice of ownership language
The board members knew the instruments were
CFDs but consciously chose to describe them
using ownership terminology ("shares",
"shareholding", "equity"). If Novus viewed CFDs
as creating only derivative exposure rather than
ownership interests, they would have used
derivative terminology ("exposure", "position",
"contract"). The choice of ownership language
was deliberate and reveals their true
understanding.
5.1.6.2.2. Economic ownership mindset
26
When strategic decision-makers systematically
describe CFDs as "shareholding" and "equity" in
documents requesting authority for capital
deployment, this reflects economic reality, they
viewed CFDs as creating economic ownership
interests in Mustek equity. This is precisely what
the beneficial interest concept in section 122
captures: economic exposure to securities
regardless of legal form.
5.1.6.2.3. Functional equivalence with cash purchases
Throughout the board documents, CFDs and
cash purchases are aggregated as combined
"equity holdings" and described using identical
ownership terminology. This demonstrates
Novus treated the two mechanisms as
functionally equivalent for ownership purposes,
differing only in financing structure, exactly as Mr
Zetler's description of CFDs as "funding"
confirms.
5.1.6.2.4. Cannot disclaim what you publicly claim
Having described CFDs as "shareholding" and
"23% of the equity" to their own board when
seeking strategic authority, Novus cannot now
argue to the Panel that these same instruments
created no beneficial interest requiring
disclosure under section 122. The
contemporaneous characterisation by the
decision-makers themselves is the most reliable
evidence of economic substance.
5.1.7. The Pattern of Acquisition Language Throughout
5.1.7.1. The consistency of acquisition language across all board
documents is striking. At no point in the six-month period from
May to November 2024 did Novus describe their activities
27
using speculation or derivative trading terminology. The
language was uniformly about acquisition and control:
Acquisition Terms Used Speculation Terms NOT
Used
"purchase" / "acquire" No reference to "market
exposure"
"increase our stake" / "23% No reference to "derivative
of the equity" position"
"gain absolute control" No reference to "hedging"
"second largest No reference to "trading
shareholder" strategy"
"block any potential M&A" No reference to
"speculation"
"board representation" No reference to "contracts
for difference" (until post-
announcement)
"MBO with management" No reference to "financial
instruments"
"new segment within Novus No reference to "price
group" movements"
CFDs as "funding" No reference to "synthetic
exposure"
"shareholding" No reference to "derivatives
trading"
5.1.7.2. This systematic use of ownership language, maintained
consistently over many months and across multiple board
submissions, demonstrates acquisition intent was genuine
and pervasive.
28
5.2. The Mustek-Specific Mandate and Fee Concealment
5.2.1. The 30 August 2023 Mustek-Specific Mandate Agreement created the
foundation for all subsequent coordination. Numus entered into a "non-
discretionary" brokerage mandate with Novus Packaging (Pty) Ltd.
5.2.1.1. Despite generic authorisation language covering various
securities, Benatar's sworn testimony reveals a critical
contradiction when he confirmed under oath that this mandate
"constitutes the sole and entire agreement... concerning the
facilitation of brokerage services... relating to acquisition of
any Mustek shares or derivative instruments in relation to
shares issued by Mustek Limited."
5.2.1.2. This Mustek-specific focus, established 14+ months before
the mandatory offer announcement, demonstrates systematic
strategic planning and shared intent between the parties
rather than generic commercial preparation.
5.2.1.3. The early establishment of acquisition infrastructure
specifically for Mustek reveals premeditated cooperation
toward the eventual affected transaction.
5.2.2. Fee Structure and Incomplete Disclosure
The fee structure raises serious concerns about concealment and the true
economic magnitude of the relationship.
5.2.2.1.1. The mandate agreement specified a
comprehensive fee structure including:
5.2.2.1.1.1. A: Standard brokerage
commissions on executed trades;
5.2.2.1.1.2. B: Management fees calculated
as ¼ of 1% of assets under
management annually;
5.2.2.1.1.3. C: Performance fees calculated
as (A-D)×10% on returns
exceeding benchmarks;
29
5.2.2.1.1.4. D: "Softening fees" from
executing brokers (5bp/6bp
breakdown).
5.2.2.1.2. Despite repeated and specific requests from the
Panel for complete fee disclosure, Numus
provided only R242,777.73, characterised as
"transactional fees" derived from an Excel
spreadsheet allegedly obtained from Standard
Bank. No primary documentation was provided,
no tax invoices, no fee calculations showing
application of the mandate formulae, no
breakdown distinguishing among the various fee
categories specified in the mandate.
5.2.2.1.3. The disclosed figure appears to reflect only
decontextualised transactional commissions,
deliberately excluding the management and
performance fees that would constitute the
substantial economic value of the relationship.
5.2.2.1.4. The mandate's fee structure, providing for
management fees calculated as a percentage of
assets under management, performance fees on
returns above benchmark, and softening fees, is
inconsistent with the disclosed figure of
R242,777.73, which appears to represent only
transactional commissions.
5.2.2.1.5. The Panel cannot determine the precise
quantum of fees earned under the mandate
because the Respondents failed to provide
primary documentation despite repeated
requests. No tax invoices were produced. No fee
calculations showing the application of the
mandate formulae were provided. No
breakdown distinguishing among the various fee
categories specified in the mandate was offered.
30
5.2.2.1.6. This failure is itself probative. Where a party
deliberately structures arrangements to avoid
documentation, and then claims the benefit of
that absence by asserting that undisclosed
information would support their position, the
Panel is entitled to draw adverse inferences.
5.2.2.1.7. The Panel draws the following adverse
inference: complete fee disclosure would reveal
economic dependency and magnitude of
relationship inconsistent with the Respondents'
characterisation of routine, limited-scope
brokerage services. Parties that fully disclose
management and performance fees earned on
multi-hundred-million-Rand portfolios have no
reason to provide only decontextualised
"transactional fees" via secondary Excel
spreadsheets.
5.2.2.1.8. This finding is reinforced by the related-party
composition of the hedge fund. The evidence
establishes that the hedge fund was closely held
by Mr Benatar's immediate family and related
associates. This means the hedge fund's profits
from the coordinated strategy flowed directly to
the Benatar circle, creating comprehensive
economic alignment: Mr Benatar and related
parties profited from the coordinated strategy
through both the brokerage mandate (fees on
Novus trading) and the hedge fund (returns on
parallel positions).
5.2.2.1.9. The combination of incomplete fee disclosure
and related-party hedge fund composition
supports the inference that full transparency
would reveal an economic relationship
structured to reward Numus for its coordination
role. The administrative characterisation of
"brokerage services" and "independent hedge
31
fund" cannot displace the economic reality of
shared profit from a common strategy.
5.3. Systematic Coordination Timeline (April-November 2024)
5.3.1. Anticipatory Positioning (April-May 2024)
5.3.1.1. The hedge fund's market entry on 9 April 202426 represented
calculated preparation rather than opportunistic trading. The
Numus regulated hedge fund made initial Mustek share
purchases in this relatively illiquid stock 5+ months after
establishing the Mustek-specific mandate, demonstrating
utilisation of pre-established infrastructure for coordinated
market preparation.
5.3.1.2. The systematic accumulation beginning on 9 April 2024
reveals anticipatory positioning that contradicts claims of
independence. The first significant hedge fund purchase of
30,000 shares at R9.40 commenced a systematic
accumulation pattern, without documented Novus instruction,
7+ months after establishing the Mustek-focused mandate.
The hedge fund's confident entry into an illiquid stock months
after creating client-specific infrastructure demonstrates
coordinated preparation rather than independent analysis.
5.3.1.3. The strategic buildup during April 2024 demonstrated
systematic preparation rather than opportunistic trading. The
hedge fund accumulated 127,286 shares during April at an
average acquisition price of R8.94, including large block
transactions of 50,000 and 60,000 shares. The pattern of
trading suggested strategic accumulation rather than
opportunistic investment, with all activity occurring while the
Mustek-specific mandate infrastructure remained operational.
5.3.1.4. The total pre-instruction accumulation from 9 April to 22 May
2024 created a 44-day coordination window that
demonstrates systematic preparation. During this period, the
26 Numus Hedge Fund Trades (version 1).xlsx at Row 1: Date = 9/4/2024; Quantity = 30,000; Price = R9.40
attached as Annexture F
32
hedge fund acquired 281,392 shares at an average price of
R8.94, representing 44 days of accumulation before any
documented Novus instruction. This systematic preparation
aligned perfectly with sophisticated transaction planning, with
no competing or conflicting trades occurring with subsequent
client activity. This anticipatory positioning, occurring months
after establishing the Mustek-specific mandate, demonstrates
coordinated preparation consistent with sophisticated
takeover planning impossible to reconcile with claims of
independence.
5.3.2. Strategic Coordination Commences (May-July 2024)
5.3.2.1. The catalyst meeting on 22 May 2024 activated the
coordination that had been carefully prepared. The first
documented meeting between Novus executives Van der
Veen and Zetler and Mustek management included Hein
Engelbrecht, who would later become central to DK Trust
arrangements. While described as a discussion of "possible
investment in Mustek by Novus," the meeting occurred 8+
months after establishing the Mustek-specific mandate and
after significant hedge fund positioning, indicating activation of
a pre-planned strategy rather than initial planning.
5.3.2.2. On 23 May 2024 at 17:04, the verbal instruction structure
became operational. Following a verbal instruction from Mr
Zetler, Isaac Benatar sent a post-execution deal recap email
from Numus to Craig Wright stating, 'Bought 1,600,000 MST
836c', with Adrian Zetler and Andre van der Veen copied at
their private A² email addresses (marblehead.co.za). This
email pattern, Numus sending confirmations to Wright while
copying the A² principals who issued the instructions, was
repeated 23 times over the next six months, documenting a
systematic bypass of designated corporate governance
channels.27 The massive initial volume of 1.6 million shares
indicated pre-planned major accumulation, occurring exactly
27 Chronological Email Extraction, Email #1 "23 May 2024 at 17:04: Bought 1,600,000 MST 836c"
33
one day after the Novus-Mustek executive meeting. The
immediate activation of the pre-established Mustek mandate
and the massive initial volume prove this was a pre-planned,
systematic accumulation, not a spontaneous opportunity
identification.
5.3.2.3. The coordinated buildup on 27-28 May 2024 demonstrated
perfect synchronisation between the parties. Trading
continued with precise specifications: "Bought 33,838 MST
826c" on 27 May and "Bought 70,902 MST 847c" on 28 May.
The precise volume and price specifications indicated
strategic parameters while the hedge fund continued parallel
trading without conflicts. The perfect coordination between
hedge fund positioning and client activation demonstrates a
single strategic mind directing both activities.
5.3.3. Price Engineering Toward R13.00 (September-October 2024)
5.3.3.1. The trading data reveals a definitive strategic shift, moving
from opportunistic accumulation to systematic price
establishment:
Phase Perio Characteristi Example Objective
d c Trades
(Evidenc
e Source)
Aggressive May- Purchasing 23 May: Acquire a
Accumulatio June large blocks at 1.6m substantial
n 2024 variable, shares @ stake at the
market-driven 836c; 7 lowest possible
prices. Jun: 1.9m cost.
shares @
920c.
22 Jul: Sell Comply with
Risk Clean- July Unwinding
7.9m CFD prime broker
Up 2024 excess CFD
units; risk limits and
exposure per
triggers convert to
34
prime broker SBG's physical
directive. S122 holdings.
disposal
notice on
23 Jul.
Price Sep- Purchasing 11 Sep: Establish and
Pegging Nov strictly at a 1.54m defend the
2024 fixed price shares @ R13.00 price
point, one cent R13.01; 4 level in the
above the Nov: 73k market prior to
eventual offer. shares @ the offer
R13.01. announcement
.
This pattern is incompatible with independent market
participation and evidences a coordinated strategy to
engineer the market price toward a pre-determined offer
consideration.
5.3.3.2. June 2024 demonstrated systematic execution through
coordinated market control. Multiple documented (again,
implied confirmations of) instructions from Benatar
implemented through the same deal recap to Craig Wright of
Novus, copied to Adrian Zetler and Andre van der Veen at
their A² email addresses (marblehead.co.za), confirming
execution of the alleged "verbal instructions from Mr Zetler",
maintained accumulation momentum throughout the month,
including "Bought 35,000 BCF 1080c / Bought 747 MST 859c"
on 3 June, "Bought 1,196 BCF 1080c / Bought 4,738 MST
877c" on 4 June, "Bought 7,424 MST 899c / Bought 35,309
MST 906c" on 5 June, and "Bought 500,000 MST 920c" on 6
June. The pattern demonstrates a systematic approach to
price level management and sophisticated market control
through coordinated accumulation.
35
5.3.3.3. The major strategic escalation on 3 July 2024 revealed
coordinated liquidity management. The instruction "Buy 3,300
BCF 1100c / Buy 3.5m MST 1000c" marked the first
documented targeting of the R10.00 price level and
represented a significant step-up in acquisition strategy.
Critically, the hedge fund sold 221,173 shares at R9.40 on 5
July, potentially providing liquidity for the client's massive
purchase. The timing and scale of hedge fund selling
immediately after the major client instruction evidences
coordinated liquidity management.
5.3.3.4. September 2024 witnessed systematic price engineering that
would determine the offer price. On 11 September at 17:06
and 17:20, instructions reading "Bought 1,543,673 MST
1300c" and "Bought 1m MST 1300c" first established the
R13.00 price level in trading instructions. This level would
become the exact mandatory offer price, proving systematic
price engineering rather than market discovery.
5.3.3.5. October 2024 revealed pre-announcement coordination
through final preparation. The hedge fund purchased 100,000
shares at R14.25 on 4 October, above the eventual offer price,
while Van der Veen contacted Engelbrecht about locating
additional sellers on 17 October. Between 21-31 October,
multiple Novus instructions maintained the R13.00 price
through trades ranging from single shares to 191,400 shares,
all at or near R13.00. The hedge fund's largest single
proprietary trade during the coordination period occurred on
28 October with 106,001 shares at R13.71. The perfect
coordination between client instructions and hedge fund
activity during this critical pre-announcement period
demonstrates unified strategic implementation.
5.3.4. Final Preparation and Announcement (November 2024)
5.3.4.1. The final pre-announcement instruction on 4 November 2024
completed the accumulation strategy. Another deal recap
(using the same modus operandi) stated, "Bought 73,389
MST 1300c", which represented the last documented alleged
verbal trading instruction before the offer announcement,
36
completing the accumulation phase that enabled the
mandatory offer threshold. The precise completion of
accumulation just before the announcement demonstrates the
planned conclusion of a carefully orchestrated strategy.
5.3.4.2. The parallel coordination with multiple parties between 8-13
November 2024 revealed the comprehensive orchestration.
On 8 November, the DK Trust passed a resolution authorising
the MEP share sale, followed by an MS Teams call on 12
November finalising consortium arrangements. The
Consortium Agreement and the MEP share sale were
executed on 13 November. This simultaneous coordination
with multiple parties supporting the offer structure
demonstrates the comprehensive orchestration underlying
the transaction.
5.3.4.3. The mandatory offer announcement on 15 November 2024
marked the strategic culmination. Novus announced its
mandatory offer at R13.00 per share, with the offer price
exactly matching the systematic price level established in
September-October through coordinated trading. All
preparatory elements were coordinated and executed with
precision to achieve the predetermined outcome.
5.3.5. Post-Announcement Evidence of Inside Knowledge
5.3.5.1. Post-announcement hedge fund trading demonstrated access
to inside knowledge. The hedge fund purchased 15,000
shares at R15.39 on 26 November, 2,000 shares at R15.25
on 27 November, and critically, 3,000 shares at R15.41 on 28
November, representing an 18.54% premium to the offer
price. This aggressive trading above the offer price continued
through August 2025. Post-announcement hedge fund trading
included minimal purchases above R13.00 (20,000 shares at
R15.25-15.41 between 26-28 November 2024), followed by a
large sale of 132,261 shares at R15.30 on 3 December 2024.
While this sale represents a conflicting position relative to
Novus's continuing accumulation, the pre-announcement
coordination over 14+ months remains the determinative
evidence. The post-announcement trading patterns, whether
37
characterised as arbitrage or tactical repositioning, do not
undermine the established concert party relationship
evidenced by systematic pre-announcement coordination.
Nevertheless, the precise targeting of R13.00 in pre-
announcement instructions remains highly significant.
5.3.5.2. The investigation timeline and evidence emergence revealed
a pattern of deliberate concealment. Cilliers' complaint
initiated the investigation in June 2025, leading to the
Inspector's process and Inspector's Report in August-
September 2025. Respondents submitted comprehensive
defence submissions during September-November 2025.
Critical email evidence disclosure in October 2025 revealed
the systematic instruction sequence, while supplementary
affidavits filed in November 2025 amid mounting
contradictions. The late disclosure of critical evidence shows
a deliberate concealment strategy.
5.4. Sworn Testimony vs. Documentary Evidence
Irreconcilable contradictions between objective documentary evidence and sworn
statements made to the Panel under penalty of perjury.
5.4.1. Benatar's Denial of Strategic Input
Sworn Statement (11 November 2025 Affidavit): "I confirm that Numus
Capital did not provide any input on timing, pricing, or stake-building
strategy28 to Novus Packaging (or Novus)."
5.4.1.1. The email sequence shows post-execution deal recaps sent
by Numus to Craig Wright, copied to A² principals, containing
detailed specifications of:
5.4.1.1.1. Precise execution times ("17:04") and
coordinated scheduling;
5.4.1.1.2. Exact price parameters ("1300c") and
systematic level establishment; and
28 Isaac Benatar Affidavit (11.11.2025).
38
5.4.1.1.3. Coordinated accumulation toward the
predetermined R13.00 offer level over months.
5.4.1.2. This contradiction is fundamental and materially undermines
the Respondents' credibility. The documentary evidence
demonstrates extensive coordination on timing, pricing, and
strategy, directly contradicting sworn testimony. The assertion
that execution of precise, strategic instructions constitutes
mere "order-taking" ignores the cooperative nature of the
systematic coordination evidenced by the instruction
sequence and the pre-established Mustek-specific mandate
infrastructure.
5.4.2. Benatar's Claimed Ignorance
5.4.2.1. In his sworn statement, Benatar claimed, "At no point in time
until the firm intention announcement dated 15 November
2024 was I aware that Novus was contemplating making a
mandatory offer in relation to Mustek shares."29
5.4.2.2. This claim requires the Panel to accept a series of highly
improbable coincidences. Van der Veen's TechCentral
interview on 18 November 2024 confirmed strategic takeover
intent from the initial May 2024 meetings. The August 2023
Mustek-specific mandate demonstrates 14+ months of
advance preparation. The systematic accumulation toward
the R13.00 level over months demonstrates awareness of
specific offer planning.
5.4.2.3. The Panel finds this claim of ignorance not merely implausible
but requires acceptance of extraordinary coincidences.
Benatar's central role in executing the entire accumulation
strategy, the pre-established Mustek-specific mandate, his
physical proximity to the transaction architects, and the
systematic nature of the coordination render his claimed
29 Isaac Benatar Affidavit (11.11.2025).
39
ignorance so improbable that it constitutes a deliberate
attempt to mislead the investigation.
5.4.3. "Strict Agency" Fiction
5.4.3.1. Benatar's sworn statement claimed that "Numus acts strictly
on an agency basis" with "every transaction executed solely
pursuant to an explicit verbal or written client instruction."
5.4.3.2. The contradictory reality reveals that the hedge fund operated
on a discretionary basis while sharing premises and strategic
intelligence with client controllers. No documentary evidence
of written client instructions was provided to the Panel despite
repeated requests. The perfect integration of brokerage and
proprietary activities under a single management, combined
with post-execution deal recaps sent by Numus to Novus CFO
Craig Wright (primary recipient), with A² principals copied,
demonstrates these were not pre-execution instructions from
A² to Numus. The Mustek-specific mandate infrastructure
enabled coordinated strategy implementation.
5.4.3.3. The Panel finds that this claim of "strict agency" is
contradicted by the operational reality of integrated activities
serving common strategic objectives. True agency
relationships do not involve anticipatory positioning by the
agent's proprietary operations, systematic price engineering,
or structural dependency on client controllers.
5.4.4. Governance Formalism as Facade
5.4.4.1. The Respondents have consistently asserted that Numus
acted solely as a non-discretionary, arm's-length broker
bound strictly by the terms of the 30 August 2023 mandate
between Numus Capital and Novus Packaging (Pty) Ltd. That
mandate explicitly designated Mr Craig Wright, the duly
appointed Chief Financial Officer of Novus Holdings, as the
sole authorised representative responsible for the relationship
with Numus. This formal structure was presented as evidence
of proper governance and operational independence.
40
5.4.4.2. The documentary evidence reveals a systematic departure
from this formal structure. All strategic instructions, including
precise pricing targets (notably the repeated specification of
"1300c"), timing parameters, and volume specifications,
originated verbally from Mr Adrian Zetler, who was copied on
all post-execution deal recaps at his private A² Investment
Partners email domain (marblehead.co.za), not through any
Novus corporate channel.
5.4.4.3. The Panel does not prescribe which directors or officers of a
company may provide instructions to service providers.
Corporate governance structures and internal delegation
arrangements remain the prerogative of boards and
shareholders. The Chairman of Novus Holdings possesses
the authority to act on behalf of the company in appropriate
circumstances.
5.4.4.4. However, when parties invoke formalistic mandate
arrangements as evidence of independence, arm's-length
dealings, and operational separation, their systematic
deviation from those very arrangements becomes probative
evidence that the formalism was a façade designed to mask
operational unity.
5.4.4.5. The designation of Mr Wright as "authorised representative"
must be understood in context. Wright was one of the directors
to whom Zetler presented the Mustek acquisition scheme on
23 May 2024. His approval of that scheme came on 24 May -
after the first significant trade had already been executed.
Throughout the subsequent accumulation period, Wright
received only post-execution confirmations of trades that
Zetler had already instructed. The "authorised representative"
designation thus created an appearance of corporate
governance compliance, while actual strategic control resided
entirely with Zetler, who operated from Suite 704 in direct
coordination with Benatar. Wright's role was documentary, not
decisional.
5.4.4.6. The pattern evidenced here reveals the strategic deployment
of formal separation without substantive separation:
41
5.4.4.6.1. A written mandate designating Wright as the
authorised representative created the
appearance of corporate governance
compliance;
5.4.4.6.2. Actual strategic control resided with the
beneficial owners (Zetler and Van der Veen)
operating outside corporate channels through
private email domains;
5.4.4.6.3. Wright, the designated corporate officer
physically based in KwaZulu-Natal, received
only post-execution confirmations, not pre-
execution instructions or strategic direction;
5.4.4.6.4. No board resolutions, delegation instruments, or
corporate documentation authorised this bypass
of the designated representative;
5.4.4.6.5. Instructions were verbal only, leaving no
documentary trail within corporate governance
systems.
5.4.4.7. This operational reality, where strategic control bypassed
designated corporate channels in favour of direct,
undocumented coordination between the broker and the
client's ultimate controllers, demonstrates that the formal
mandate structure served as a veneer of independence while
actual practice reflected functional unity.
5.4.4.8. The systematic informality of the actual relationship,
conducted entirely through private channels while maintaining
formal corporate documentation for regulatory presentation,
provides additional corroborating evidence of the structural
integration and operational coordination already established
through the physical co-location, financial dependency,
anticipatory positioning, and systematic price engineering
analysed elsewhere in this determination.
5.4.4.9. Economic Independence Claims
42
5.4.4.9.1. Sworn Statement: "Numus derives no
economic exposure to, nor strategic influence
over, the underlying securities."30
5.4.4.9.2. Contradictory Evidence:
5.4.4.9.2.1. Hedge fund accumulated 788,929
Mustek shares with total
consideration exceeding R10
million
5.4.4.9.2.2. Willingness to pay R15.41 per
share (18.54% premium to offer
price)
5.4.4.9.2.3. Massive economic exposure
directly contradicting sworn
claims
5.4.4.9.2.4. Systematic profit-taking from
coordinated strategy
implementation
5.4.4.9.3. Panel Assessment: This claim constitutes a
material misrepresentation of the economic
reality. The hedge fund's massive exposure and
willingness to pay premiums to the offer price
demonstrates sophisticated economic alignment
with the transaction's success rather than
independence.
5.4.4.10. The Respondents asserted that Numus acted as a non-
discretionary broker under a formal mandate. That mandate
explicitly designated Mr Craig Wright, CFO of Novus, as the
sole authorised representative. Yet all strategic instructions,
including pricing targets like '1300c', originated verbally from
Mr Zetler directly to Mr Benatar, bypassing Mr Wright entirely
despite his designation as 'authorised representative'. Mr
30 BVPG letter to the TRP (31.10.2025).
43
Wright - who had himself approved the scheme Zetler
presented - received only post-execution confirmations. A
genuine arm's-length broker receiving instructions from
someone other than the designated representative, while that
designated representative receives only after-the-fact
notifications, would have queried this irregularity. Numus's
acceptance of this arrangement without question is further
evidence of the structural integration and common purpose
between the parties.
5.4.5. Board Documents Prove Acquisition Strategy
The board documents and internal planning materials submitted on 26
November 2025 fundamentally contradict the Respondents'
characterisations of their activities. These documents prove systematic
coordination between strategic planning (by Zetler), execution
infrastructure (Suite 704), and trading implementation (Numus brokerage
and hedge fund).
5.4.5.1. Zetler's Central Strategic Role
5.4.5.1.1. The board documents prove Mr Zetler was not
merely the Chairman providing oversight, but the
primary strategic architect and executor of
the Mustek acquisition:
5.4.5.1.1.1. Zetler personally sought board
authority for the acquisition
strategy, presenting a detailed
rationale and requesting authority
to "negotiate the purchase of
c15% of Mustek."
5.4.5.1.1.2. Zetler provided detailed progress
updates to the board, reporting
that Novus had "purchased c7.9m
shares" and become the "second
largest shareholder."
5.4.5.1.1.3. Zetler made the strategic decision
to accelerate the acquisition,
44
identifying "one large remaining
block... which I now think is critical
for us to secure ASAP" and
requesting increased authority to
reach 30% to "gain absolute
control of the company."
5.4.5.1.1.4. As confirmed by sworn
statements, Mr Zetler executed
this strategy from Suite 704
(Numus's premises), as A²
Investment Partners had no other
office in the building.
5.4.5.1.2. This demonstrates Mr Zetler was the operational
driver of the acquisition strategy, making key
strategic decisions and executing them from the
operational centre where Numus conducted its
brokerage and hedge fund activities.
5.4.5.2. Acquisition Intent Contradicts Speculation Defence
The Respondents may argue that CFDs are merely financial
instruments providing market exposure without creating
beneficial interests. The board documents prove this
characterisation is demonstrably false:
5.4.5.2.1. Throughout all board submissions, the language
is consistently about acquisition, "purchase",
"acquire", "increase our stake", "gain absolute
control", "second largest shareholder", not
speculation, no references to "market exposure",
"derivative position", "hedging", or "trading
strategy."
5.4.5.2.2. The explicit objectives were "block M&A", "board
representation", "MBO with management", "new
segment within Novus group", these are control
rights flowing from ownership, not objectives of
derivative speculation.
45
5.4.5.2.3. The 22 August 2024 board minutes describe
R53 million in CFDs as "funding" alongside R73
million in cash purchases, with the combined
position characterised as "23% of the equity."
This demonstrates that CFDs were viewed as an
acquisition-financing mechanism, not as
derivative speculation.
5.4.5.2.4. The "Mustek plan" document (Annexure A15)31
explicitly contemplated: "Mandatory offer: Novus
and management to form concert party
relationship; Once combined holdings surpass
35% will jointly make mandatory offer." This
demonstrates control acquisition was the
objective from the outset.
5.4.5.2.5. In his affidavit of 26 November 2025, Mr Zetler
admits board members knew references to
"shares" and "shareholding" were actually CFDs,
yet they consciously used ownership language.
This demonstrates they viewed CFDs as
creating economic ownership, not mere
derivative exposure.
5.4.5.2.6. Having described CFDs as "shareholding" and
"23% of the equity" to their own board for
strategic decision-making purposes, Novus
cannot now argue to the Panel that these same
instruments created no beneficial interests
requiring disclosure under section 122.
5.4.5.3. The Operational Integration Enabling Coordination
The board documents show that while Mr Zetler drove
strategy and the Novus board approved it, the operational
31 Refer to footnote 33.
46
execution occurred through a structurally integrated
arrangement:
5.4.5.3.1. Board documents prove Zetler designed the
acquisition strategy, set objectives, monitored
progress, and made tactical decisions about
timing and volume.
5.4.5.3.2. Sworn statements confirm Zetler executed this
strategy from Suite 704 (Numus's premises), as
A² had no other office in the building. Suite 704
was therefore the operational centre for
Novus/A² strategic execution.
5.4.5.3.3. All share and CFD purchases for Novus were
executed through Numus brokerage services,
using trading instructions from Zetler at Suite
704.
5.4.5.3.4. Over the same 14-month period, Numus's hedge
fund traded the same security with significant
strategic alignment, with no materially conflicting
trades that undermined the common objective,
systematic support for the R13.00 price level,
coordinated liquidity provision, and post-
announcement premium trading.
5.4.5.3.5. As Mr Zetler's affidavit admits, "the business
relationship between Novus and Numus... is an
informal one and communications are generally
done verbally." This operational informality,
combined with physical co-location at Suite 704,
created the infrastructure for coordination
without a documentary trail.
5.4.5.4. The Consciousness of Control Acquisition
5.4.5.4.1. The board documents prove Novus's
consciousness that they were pursuing control
acquisition, not passive investment:
47
5.4.5.4.1.1. Mr Zetler's 17 July 2024 request
explicitly stated the objective was
to "gain absolute control of the
company." This is an
unambiguous language of control
acquisition.
5.4.5.4.1.2. The strategy explicitly
contemplated using shareholding
to "block any potential M&A (and
delisting)" a control right, not
derivative speculation.
5.4.5.4.1.3. The strategy contemplated
"pursue board representation if
we so choose", another control
right requiring ownership.
5.4.5.4.1.4. The strategy explicitly
contemplated "executing an MBO
with management, thereby
creating a new segment within the
Novus group"; this requires
ownership and control, not
derivative positions.
5.4.5.4.1.5. The "Mustek plan" document
explicitly contemplated forming
concert party relationships to
jointly trigger the mandatory offer,
proving consciousness of the
regulatory framework for control
acquisitions.
5.4.5.4.2. When decision-makers systematically use
control acquisition language, pursue control
objectives, and explicitly plan for mandatory offer
obligations, they cannot credibly argue they
were merely engaged in passive investment or
derivative speculation.
48
5.4.5.5. The Contradiction Between Internal and External
Characterisations
5.4.5.5.1. The contrast between Novus's internal
characterisations and their regulatory defence
reveals consciousness of the significance of how
CFDs are characterised:
CONTEXT HOW CFDS ARE
CHARACTERISED
To Novus board "shares", "shareholding",
(Strategic "23% of the equity",
decisions) "funding"
To market Only disclosed as CFDs
(annual financial in putative technical
statements) compliance
To the Panel "Mere derivatives", "no
(Regulatory beneficial interest", "no
defence) voting rights"
5.4.5.5.2. This pattern is significant:
5.4.5.5.2.1. When strategic considerations
were paramount, and board
authority was being sought, CFDs
were described using ownership
terminology because that
reflected the economic reality,
CFDs created beneficial interests
in equity.
5.4.5.5.2.2. In annual financial statements
where technical accounting
treatment was required, CFDs
were disclosed adequately as
49
such to maintain technical
compliance.
5.4.5.5.2.3. Only when regulatory exposure
became apparent did Novus
adopt minimising language,
emphasising the derivative form
over economic substance.
5.4.5.5.3. The internal board language, used
contemporaneously when strategic decisions
were being made, is the most reliable evidence
of how Novus actually viewed their CFD
positions. That language demonstrates they
understood CFDs created beneficial ownership
interests requiring disclosure under section 122.
5.4.6. Material Contradiction Regarding Hedging Knowledge
5.4.6.1. In his affidavit of 2 December 2025, Mr. Benatar stated: "I was
not aware at any time of the exact percentage of Mustek
shares held by SBG Securities... Save to the extent set out in
the email... on 17 July 2024" (Implying limited or no
knowledge).
5.4.6.2. This sworn statement is directly and materially contradicted by
the native email of 17 July 2024 from SBG Securities to Mr
Benatar, with the subject "Summary of earlier call and way
forward". This email details specific agreements regarding
capping CFD exposure and converting excess into physical
shares, a strategy directly implemented by the substantial
disposal on 22 July 2024.
5.4.6.3. The Panel finds that the objective, contemporaneous email
record must prevail over the subsequent affidavit which seeks
to minimise the Respondent's role. This contradiction goes to
the heart of the Respondent's defence and materially
undermines their credibility before this Panel.
50
5.5. Pattern of Incomplete Disclosure
5.5.1. The Van der Veen Public Admissions
5.5.1.1. André van der Veen's TechCentral interview on 18 November
2024 provides fascinating contemporaneous evidence
contradicting the Respondents' sworn positions:
5.5.1.1.1. Strategic Intent Confirmed: "When this
opportunity arose, we said, 'Okay, maybe this is
the opportunity that we can use to diversify.'"
5.5.1.1.2. Long-term Relationship: "I have known Hein
[Engelbrecht] for 25-odd years... an opportunity
to work with a management team that I know and
have trusted for many years."
5.5.1.1.3. Panel Assessment: These public statements,
made contemporaneously with the investigation
period, confirm strategic planning existed from
the initial engagements, directly contradicting
Numus's sworn claims of ignorance about
takeover intentions. The references to
"opportunity" recognition and long-term
collaborative relationships indicate the
coordinated nature of all arrangements involved
in the transaction.
5.5.2. The Aktiv Disclosure
5.5.2.1. The disclosure of the Aktiv lease relationship was provided in
August 2025 in incomplete form. What was initially
characterised as Numus 'leasing premises from Aktiv omitted
material facts regarding Zetler's sole ownership and control of
Aktiv, the oral nature of the sub-lease, and the structural
dependency this created. Full details emerged only through
subsequent Panel inquiries and affidavits filed in November
2025.
51
5.5.2.2. What Was Disclosed (August 2025): "Numus currently
leases its office premises from Aktiv Investment Management
Proprietary Limited, an entity which Mr Zetler is a director."
5.5.2.3. What Was Deliberately Concealed:
5.5.2.3.1. Zetler's sole ownership and control of Aktiv
Investment Management
5.5.2.3.2. Aktiv's role as sophisticated SEC-reporting
investment manager controlling over $100
million in assets
5.5.2.3.3. Shared building occupancy with A² Investment
Partners creating operational integration
5.5.2.3.4. Full nature of structural dependency and
financial relationships
5.5.2.3.5. The strategic significance of the physical and
operational proximity
5.5.2.4. Panel Assessment: The late disclosure of email instructions
undermines the credibility of prior sworn denials, though the
Panel notes the instructions were ultimately provided.
5.6. The Commercial Irrationality of "Independent" Competition
5.6.1. The Logical Impossibility of the Defence
The Respondents' central defence, that the Hedge Fund traded
independently of the brokerage client, creates a commercial paradox that
they have failed to address. If the Hedge Fund were truly independent, its
decision to accumulate Mustek shares would have constituted a voluntary
choice to compete directly against Numus's largest client for limited
liquidity in an illiquid stock. The Panel finds this conduct inexplicable on
any rational commercial basis.
5.6.2. The Undisputed Commercial Context
The documentary evidence establishes the following undisputed facts:
52
5.6.2.1. Numus is a boutique firm with only two directors, critically
dependent on key client relationships;
5.6.2.2. The Novus mandate, established in August 2023, represented
a substantial commercial opportunity, generating fees on a
portfolio ultimately valued at R200-260 million;
5.6.2.3. Mustek is an illiquid stock with limited free float, where
competing buyers would materially impact price;
5.6.2.4. Every share acquired by the Hedge Fund was a share
removed from the pool available to Novus, or available to
Novus only at a higher price;
5.6.2.5. By virtue of the Mustek-specific mandate and physical co-
location at Suite 704, Numus knew of Novus's accumulation
intent;
5.6.2.6. The Respondents cannot credibly claim ignorance of Novus's
intentions. The Mustek-specific mandate was in effect from
August 2023. Mr Zetler was physically present at Suite 704.
Even if Numus did not know the precise timing of Novus's
activation, a broker with minimal commercial awareness
would have recognised that proprietary trading in Mustek
created an apparent conflict with a client holding a Mustek-
specific mandate.
5.6.3. The Commercial Irrationality of Competing With a Primary Client
A rational, independent broker in this position would recognise that trading
proprietarily in the same security as a primary client presents existential
risks:
5.6.3.1. Competing for liquidity in an illiquid stock drives up the price
for the client, directly harming execution quality;
5.6.3.2. If a client discovers their broker is accumulating the same
security and competing for limited float, the mandate would
typically be terminated immediately and the relationship
destroyed;
53
5.6.3.3. Trading in parallel with a client in the same security, with
knowledge of the client's intentions, invites severe scrutiny for
conflict of interest and market conduct violations;
5.6.3.4. The Novus mandate generated fees on a portfolio valued at
hundreds of millions of Rand. No rational broker would
jeopardise a relationship of this magnitude by competing with
the client for shares in an illiquid stock.
5.6.4. The Temporal Sequence and Absence of Explanation
5.6.4.1. The Hedge Fund began accumulating Mustek shares in April
2024—six weeks before the first documented Novus
instruction on 23 May 2024, but eight months after the Mustek-
specific mandate was established. This temporal sequence
admits of only two explanations: either Numus was trading
ahead of its client's anticipated accumulation (which would be
even more commercially destructive than contemporaneous
competition), or the Hedge Fund was positioning in
anticipation of a coordinated strategy. Neither explanation
supports independence.
5.6.4.2. Despite these manifest commercial risks, Numus continued to
accumulate Mustek shares through its Hedge Fund
throughout the period of Novus's accumulation, with trading
patterns aligning rather than conflicting.
5.6.4.3. The Respondents have offered no commercial rationale for
why an independent broker would assume the risk of
destroying its most valuable client relationship.
5.6.4.4. This conclusion is reinforced by the findings at paragraph 5.7
below regarding the absence of conflict management
documentation. If Numus had genuinely decided to compete
with its largest client, any competent compliance function
would have documented the rationale and safeguards. The
complete absence of such documentation demonstrates that
Numus never perceived its trading as competitive with its
client—because it was not.
54
5.6.5. Conclusion on Commercial Rationality
5.6.5.1. The only hypothesis that resolves this paradox is coordination.
5.6.5.2. The Hedge Fund was not competing with Novus; it was
supporting Novus.
5.6.5.3. The trading patterns aligned because they were designed to
align.
5.6.5.4. No conflict arose with the client because the client's
controllers, operating from the same premises, had
sanctioned the strategy.
5.6.5.5. The Respondents bear the burden of providing a coherent
commercial rationale for conduct that, on their own
characterisation, would be self-destructive. Their failure to do
so is not merely an evidentiary gap; it is dispositive. Where a
party's own defence describes conduct that no rational actor
would undertake, the Panel is entitled to conclude that the
defence is false.
5.6.5.6. Accordingly, the Panel finds that the commercial conduct of
the Respondents is inconsistent with an arm's-length service
provider relationship and is explicable only by the existence of
a concert party arrangement.
5.7. The Absence of Conflict Management Documentation
5.7.1. The Obvious Conflict Requiring Management
The Panel considers it significant that Numus produced no
contemporaneous documentation addressing the obvious conflict of
interest inherent in its situation.
5.7.2. The Undisputed Factual Context
The undisputed facts establish that Numus:
5.7.2.1. Operated as a two-person brokerage firm;
5.7.2.2. Was co-located with principals of its client at Suite 704;
55
5.7.2.3. Held a Mustek-specific mandate from August 2023;
5.7.2.4. Was aware, at a minimum from May 2024, that its client
intended to accumulate a substantial position in Mustek;
5.7.2.5. Facilitated this accumulation through brokerage services and
CFD arrangements;
5.7.2.6. Simultaneously traded Mustek shares through its hedge fund,
with positions aligning with the client's strategy.
5.7.3. What a Legitimate Broker Would Have Done
This situation presented an apparent and acute conflict of interest. A
licensed financial services provider, operating in a regulated industry,
would be expected to recognise that:
5.7.3.1. Proprietary trading in the same security being accumulated for
a client creates, at a minimum, an appearance of impropriety;
5.7.3.2. The absence of documented information barriers could
expose the firm to allegations of front-running, insider trading,
or market manipulation;
5.7.3.3. Contemporaneous documentation of conflict management
procedures would be essential protection if questions later
arose;
5.7.3.4. Regulators, clients, and counterparties would reasonably
expect such documentation to exist.
5.7.4. The Evidentiary Vacuum
5.7.4.1. Despite repeated requests from the Panel, Numus produced
no such documentation. There is no conflict of interest
memorandum. No compliance record. No information barrier
protocol. No contemporaneous acknowledgement that the
situation required management. No record of independent
investment analysis supporting the hedge fund's positions in
Mustek.
5.7.4.2. The Panel rejects the suggestion that this absence reflects
mere administrative oversight. The Respondents are
56
sophisticated financial professionals operating in a heavily
regulated industry. Mr Benatar holds the qualifications and
experience necessary for FSP licensing. The pattern of
conduct throughout this matter—verbal-only instructions, oral
sub-lease arrangements, incomplete fee disclosure—
demonstrates acute awareness of documentation risk and its
regulatory implications.
5.7.5. The Only Plausible Explanations
The absence of conflict management documentation admits of only two
explanations:
5.7.5.1. That Mr Benatar failed to recognise an apparent conflict of
interest despite his professional qualifications and regulatory
obligations; or
5.7.5.2. That Mr Benatar recognised the conflict but deliberately
avoided creating documentation that would evidence the
coordination.
5.7.6. Assessment
5.7.6.1. The first explanation is inconsistent with the sophistication
demonstrated elsewhere in the Respondents' conduct. The
second explanation is consistent with the comprehensive
pattern of documentation avoidance established throughout
this ruling.
5.7.6.2. The Panel draws the following conclusions from this
evidentiary gap:
5.7.6.2.1. Numus never treated its relationship with Novus
as arm's-length. An arm's-length broker,
receiving information about a client's substantial
accumulation strategy and wishing to trade the
same security on a proprietary basis, would
meticulously document the separation between
client and proprietary activities. Such
documentation would be the firm's primary
protection against regulatory scrutiny. Its
57
complete absence demonstrates that no
separation requiring protection existed.
5.7.6.2.2. The hedge fund's trading was not the product of
independent investment analysis. If it were,
Numus would have documented that analysis to
distinguish it from information received through
the client relationship. The absence of any such
documentation supports the inference that no
independent analysis existed, as the trading was
informed by and coordinated with the client's
strategy.
5.7.6.2.3. The Respondents' failure to produce conflict
management documentation, despite its obvious
relevance and despite having every opportunity
to do so, warrants an adverse inference. The
Panel infers that no such documentation exists
because creating it would have evidenced the
coordination the Respondents now deny.
5.7.6.3. This finding reinforces the Panel's conclusion that the
relationship between Numus and Novus was not an arm's-
length broker-client arrangement but a coordinated
partnership for the acquisition of control over Mustek.
5.8. The Unnecessary Intermediary
5.8.1. The Contractual Reality
The Panel considers it significant that Numus's interposition in the
transaction structure served no apparent commercial purpose.
5.8.2. Direct Relationships Existed
5.8.2.1. The CFD arrangements were contractually bilateral between
Novus and the prime brokers (Standard Bank and Peresec).
Numus was not a party to these agreements. The ISDA
documentation, credit arrangements, margin requirements,
and physical settlement rights all existed in direct relationships
between Novus and its counterparties.
58
5.8.2.2. Novus is a JSE-listed company with:
5.8.2.2.1. A qualified Chief Financial Officer (Mr Wright)
designated under the mandate as authorised
representative;
5.8.2.2.2. Direct contractual relationships with major
institutional counterparties;
5.8.2.2.3. The sophistication to execute transactions
valued at hundreds of millions of Rand;
5.8.2.2.4. Board-level strategic oversight of the acquisition
strategy.
5.8.3. The Unanswered Question
5.8.3.1. The Respondents have not explained why such a company
required a two-person brokerage firm to relay verbal
messages to counterparties with whom it had direct
contractual relationships.
5.8.3.2. Standard Bank and Peresec are themselves brokers with
execution capabilities. They routinely receive instructions
directly from institutional clients. If Novus required brokerage
services, it could have engaged any number of established
institutional brokers or dealt directly with its prime broker
counterparties.
5.8.3.3. The mandate's fee structure, providing for management fees,
performance fees, and softening fees, is inconsistent with
simple message relay. These are fees for active portfolio
management, not order transmission.
5.8.4. The Structural Function of the Intermediary
The Panel finds that Numus's interposition served no legitimate
commercial purpose. Its structural function was to:
5.8.4.1. Create a layer of separation between Novus and its
counterparties, obscuring who was directing the accumulation
strategy;
59
5.8.4.2. Enable verbal-only instructions that would not be accepted by
institutional counterparties dealing directly with a listed
company;
5.8.4.3. Facilitate the co-location arrangement at Suite 704, enabling
real-time coordination without a documentary trail;
5.8.4.4. Provide the vehicle for parallel hedge fund trading that
supported the accumulation strategy.
5.8.5. Conclusion
5.8.5.1. The interposition of an unnecessary intermediary, combined
with the verbal-only instruction pattern and the parallel hedge
fund trading, is consistent only with a structure designed to
facilitate coordination while obscuring it. This is the
architecture of a scheme, not the architecture of legitimate
commercial arrangements.
5.8.5.2. The Respondents' failure to provide any coherent commercial
rationale for Numus's interposition supports the Panel's
conclusion that the true purpose was coordination rather than
brokerage.
6. RESPONDENTS' DEFENSES
6.1. Legal Framework Arguments
6.1.1. The Explicit Agreement Error
6.1.1.1. The argument that concert party status requires a written
agreement is rejected. Tacit understandings inferred from
conduct suffice.
6.1.1.1.1. Novus and Numus argued that concert party
status requires an explicit written agreement with
an express common purpose to acquire control.
They misapplied legal authorities, including
Commentary on South African Takeover Law
(KA Rayner, 2021), for its "binding together of
minds" requirement, and mischaracterised Al
60
Noor/Mediclinic/Remgro regarding the "Fifth
Element" interpretation.
6.1.1.1.2. This interpretation constitutes a fundamental
misunderstanding of concert party law that
would render the statutory scheme completely
ineffective. If explicit written agreements were
required, sophisticated parties could always
structure relationships to avoid such
documentation while maintaining operational
coordination. This would create a massive
loophole that would enable systematic
circumvention of shareholder protection
requirements. The legislative scheme
specifically contemplates that tacit agreements
or meetings of the minds may be inferred from
deliberate, sustained, and mutually reinforcing
patterns of conduct. The Rayner commentary
acknowledges multiple analytical approaches for
concert party determination, directly
contradicting any claim that explicit agreement
documentation is required.
6.1.2. The Service Provider Immunity
The claim of service provider immunity lacks any foundation in law
6.1.2.1. The Respondent argued in their respective letters by ENS
dated 22 September 2025, at para 5.5, and the BVPG letter
dated 31 October 202532 Paragraph 4.4 states that the
parties were engaged in a client-broker service; a reasonable
person could not conclude that Novus and Numus were acting
in concert, and this argument is rejected.
6.1.2.2. This argument would create precisely the type of
sophisticated evasion the concert party provisions are
designed to prevent. The critical inquiry is whether the service
32 Refer to footnote 39.
61
provider's conduct demonstrates cooperation for the purpose
of proposing an affected transaction. Service providers can
and frequently do collaborate for various purposes, including
securing future business relationships with significant clients,
maintaining operational advantages, and achieving strategic
outcomes.
6.1.2.3. The evidence here demonstrates cooperation far beyond
routine service provision, including anticipatory market
preparation, systematic price engineering, structural
integration, and coordinated strategic implementation.
6.1.3. The Industry Disruption Red Herring
The industry disruption argument fundamentally mischaracterises both
the ruling and regulatory policy.
6.1.3.1. The Respondents claimed that finding brokers to be concert
parties would be detrimental to the takeover industry and
create regulatory uncertainty.
6.1.3.2. This ruling does not find that brokers executing client orders
are automatically concert parties. Instead, it finds that a broker
that is structurally, financially, and operationally integrated
with its client, that engages in anticipatory and parallel
proprietary trading, that systematically engineers market
prices, and that makes false representations about these
activities to the regulator, has crossed the line from service
provider to collaborative participant in a common purpose.
6.1.3.3. Market participants can structure relationships to avoid
concert party implications through proper compliance
measures, genuine operational separation, and honest
disclosure. The regulatory scheme exists precisely to prevent
the type of sophisticated coordination evidenced here,
regardless of arguments about industry convenience.
6.1.3.4. This finding does not implicate ordinary-course brokerage
where execution follows instruction. It addresses the specific
conduct of anticipatory positioning, where a broker trades
proprietarily in the same security before receiving client
62
instructions, thereby aligning its own capital with the client's
undisclosed strategic intent.
6.1.4. The Chinese Walls Defence
6.1.4.1. The Respondents claimed that effective Chinese walls
prevented information sharing between brokerage and
proprietary operations, despite being unable to produce any
documentation of such walls.
6.1.4.2. The Panel finds this claim not credible in light of the evidence.
Numus provided no documentation of Chinese wall
procedures, no evidence of compliance monitoring, no
records of information barrier protocols, and no explanation of
how information barriers functioned when a single director
managed both operations from shared premises.
6.1.4.3. The evidentiary burden lies with the party asserting that
information barriers existed. In the complete absence of any
documentation supporting this assertion, and in light of the
perfect trading alignment over 14+ months, the Panel finds
that no effective information barriers existed during the
relevant period.
6.1.4.4. This finding is reinforced by the commercial irrationality
analysis at paragraph 5.6 above. If Chinese walls had
genuinely separated brokerage and proprietary operations,
the hedge fund would have been trading in competition with
the firm's largest client, conduct that would be commercially
self-destructive. The absence of any conflict documentation,
combined with the lack of any commercial rationale for such
competition, demonstrates that no separation existed
because the interests were unified.
6.1.5. The "Disposal" or "Post-Announcement Independence" Defence
6.1.5.1. The Respondents argue that Numus's hedge fund selling
Mustek shares after the Firm Intention Announcement
demonstrates independence, as a concert party would
continue accumulating.
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6.1.5.2. This argument is misconceived. The statutory test in section
117(1)(b) concerns cooperation "for the purpose of...
proposing an affected transaction." The critical coordinated
acts, establishing infrastructure, accumulating the stake, and
engineering the price, all occurred before the announcement
to enable the offer. Subsequent profit-taking by a concert
party member does not retroactively negate that prior
cooperation.
6.1.6. The "Contractual Compliance" and "Connected Adviser" Defense
6.1.6.1. The Respondents rely on standard ISDA text and argue that
concepts like "Connected Adviser" are foreign to South
African law.
6.1.6.2. The Panel's finding does not rest on foreign concepts but on
the factual coordination evidenced by conduct that overrides
standard contract text. The 17 July 2024 meeting and the 12
November 2024 conversion instruction prove that the parties
operated on a basis different from the "cash-settled" ISDA
boilerplate.
6.1.6.3. Furthermore, the Respondents' own OTC Derivative Trading
Client Agreement (Clause 10) explicitly acknowledges their
independent responsibility for disclosure under JSE Listing
Requirements when trading derivatives of an issuer where
they hold directorships. They cannot now disclaim this
contractual duty. Whilst this ruling is not anchored on non-
compliance with exchange rules, the wording of this clause
clearly points out that the ISDA arrangements are not there to
absolve a party of their own statutory or contractual
obligations.
6.2. The Sophisticated Regulatory Arbitrage
6.2.1. The comprehensive scheme reveals a sophisticated understanding of
regulatory boundaries specifically designed to exploit perceived loopholes
while circumventing shareholder protection requirements.
6.2.2. The elaborate structural design for regulatory evasion employed separate
legal entities to obscure operational relationships and common control,
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complex lease arrangements creating plausible deniability while enabling
coordination, CFD mechanisms avoiding direct shareholding disclosure
below regulatory thresholds, and physical integration disguised as a
routine commercial relationship to avoid regulatory scrutiny.
6.2.3. The sophisticated timing and coordination strategy involved hedge fund
positioning strategically before documented client activity to create the
appearance of independence, systematic price engineering over
extended periods to establish sustainable offer conditions, perfect
coordination without formal documentation to avoid regulatory detection,
and early mandate establishment enabling systematic coordination while
maintaining legal separation.
6.2.4. The systematic accumulation toward a pre-determined price target
elements included coordinated trading specifically designed to establish
artificial price levels benefiting the transaction, exploitation of information
advantages for proprietary profit while serving client objectives, market
preparation serving private strategic interests rather than genuine price
discovery, and systematic circumvention of disclosure requirements and
fairness protections for shareholders.
7. APPLICATION OF LEGAL TEST
7.1. Investigator's Appropriate Framework
Dr. Phakeng's position reflected the appropriate legal framework for concert party
analysis
7.1.1. The investigator's interpretation of "acting in concert" drew support from
established legal authorities. Henochsberg on the Companies Act
(Delport & Vorster) confirms that "The category of parties who may act in
concert is broad." UK Panel Statement 1989/13 acknowledges that
"Evidence is almost invariably circumstantial." The UK MWB Group
Holdings Plc (2024) case identifies mutual arrangements and business
ties as relevant indicators.
7.1.2. The core argument recognises that the definition is intentionally broad to
prevent sophisticated evasion. Since direct evidence of explicit
agreements is rare, circumstantial inferences from coordinated actions,
mutual arrangements, and business ties provide the appropriate
65
evidentiary basis. The Panel must apply its combined experience to
evaluate such evidence holistically.
7.2. Element 1: Action pursuant to an agreement
Finding: The coordinated trading activities constitute comprehensive "actions"
within the statutory definition:
7.2.1. Systematic brokerage services facilitating controlled accumulation over
months
7.2.2. Parallel hedge fund trading supporting price levels and providing market
intelligence
7.2.3. Coordinated market preparation and strategic execution over extended
periods
7.2.4. Integrated operational activities serving common strategic objectives
7.3. Element 2: Action pursuant to an agreement between or among two or more
persons
7.3.1. Finding: Satisfied
The statutory requirement for "agreement" must be interpreted in
accordance with sections 5(1), 7, and 158 of the Act, which mandate
purposive interpretation to give effect to legislative intent. The Panel finds
that the totality of conduct provides compelling evidence of tacit
understanding constituting an "agreement" within the meaning of section
117(1)(b).
7.3.2. Statutory Interpretation: "Agreement" Does Not Require Written
Documentation
Section 117(1)(b) requires "action pursuant to an agreement" but does not
specify that such agreement must be express, written, or formally
documented. To interpret the provision as requiring explicit written
agreements would render it easily circumventable by sophisticated parties
who would simply avoid documentation while maintaining operational
coordination.
7.3.3. The legislature could not have intended such a result. The purpose of the
concert party provisions, as articulated in section 119(1), is to ensure "the
66
integrity of the marketplace and fairness to holders of relevant securities."
This purpose would be fundamentally undermined if parties could avoid
concert party status by the simple expedient of not reducing their
coordination to writing.
7.3.4. Section 158 Mandates Purposive Interpretation of "Agreement"
7.3.4.1. Section 158 commands the Panel to prefer interpretations that
promote the Act's purposes where provisions can reasonably
bear more than one meaning. The term "agreement" in section
117(1)(b) admits of two reasonable interpretations:
7.3.4.1.1. Interpretation A (Narrow): Only express written
agreements with explicit documentation
constitute "agreements" for concert party
purposes; or
7.3.4.1.2. Interpretation B (Purposive): "Agreement"
encompasses tacit understandings that can be
inferred from sustained patterns of deliberate,
mutually reinforcing conduct.
7.3.4.2. Section 158 mandates that the Panel prefer Interpretation B
because:
7.3.4.2.1. It promotes transparency by capturing
coordination regardless of whether parties
reduce it to writing;
7.3.4.2.2. It prevents circumvention by sophisticated
parties who understand that avoiding
documentation defeats regulatory oversight;
7.3.4.2.3. It gives effect to section 119(1)'s mandate to
ensure "the integrity of the marketplace and
fairness to holders of relevant securities"; and
7.3.4.2.4. It improves the realisation of shareholders' rights
to transparent markets and protection from the
covert accumulation of control.
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7.3.4.3. Interpretation A, while grammatically possible, would directly
contravene Section 158's command. It would enable
systematic circumvention of concert party rules through the
simple expedient of avoiding written documentation, the
opposite of promoting the Act's transparency objectives.
7.3.5. The interpretive framework established by sections 5(1), 7, and 158
requires that the Act be interpreted to promote transparency (s7(b)(iii)),
efficient regulation (s7(l)), and the spirit and purpose of the legislation
(s158(b)(i)). Consistent with this mandate, "agreement" must encompass
tacit understandings and meetings of the minds that can be inferred from
sustained patterns of deliberate, mutually reinforcing conduct.
7.3.6. Comparative Regulatory Approach
UK Panel Statement 1989/13 acknowledges that in concert party
determinations, "Evidence is almost invariably circumstantial." The UK
case of MWB Group Holdings Plc (2024) identifies mutual arrangements
and business ties as relevant indicators of concert party relationships.
While these authorities are not binding, they reflect the reality that explicit
written agreements regarding concert party coordination are exceptionally
rare precisely because sophisticated parties understand the regulatory
implications.
7.3.7. South African regulatory authorities have similarly recognised that
agreements may be inferred from conduct. The purposive interpretation
required by our statutory framework is consistent with this established
regulatory approach.
7.3.8. Inference from the Totality of Conduct
The critical question is not whether an explicit agreement can be
produced, but whether there is any credible explanation for the sustained
pattern of coordinated conduct other than tacit understanding and
common purpose. Applying this test to the evidence:
7.3.8.1. Early Strategic Planning and Infrastructure
7.3.8.1.1. The Mustek-specific mandate was established
on 30 August 2023, fourteen months before the
Firm Intention Announcement. This was not
68
generic brokerage preparation; Mr Benatar
confirmed under oath that the mandate
"constitutes the sole and entire agreement...
concerning the facilitation of brokerage
services... relating to acquisition of any Mustek
shares or derivative instruments in relation to
shares issued by Mustek Limited."
7.3.8.1.2. The early establishment of Mustek-specific
infrastructure, combined with the hedge fund's
anticipatory positioning commencing in April
2024 (44 days before any documented client
instruction), demonstrates systematic
preparation for the acquisition strategy. The
Respondents' alternative explanation, that the
mandate and the hedge fund positioning were
unrelated to the eventual transaction, strains
credibility. The Panel does not accept that a
Mustek-specific mandate would be established
14 months in advance, and that a hedge fund
would begin accumulating the same illiquid stock
months later, by coincidence unrelated to the
coordinated strategy that subsequently
unfolded.
7.3.8.2. Structural Integration Creating Coordination Capability
The physical, financial, and operational integration between
the parties created the infrastructure necessary for tacit
coordination:
7.3.8.2.1. Physical co-location through the Aktiv lease
arrangement, with Suite 704 functioning as the
operational base for both broker and client
controllers;
7.3.8.2.2. Financial dependency through lease payments,
creating structural alignment of interests;
69
7.3.8.2.3. Routine presence of A² principals (Zetler and
Van der Veen) at the broker's premises during
the relevant period, as evidenced by their
inclusion on all deal recaps;
7.3.8.2.4. Operational proximity enabling real-time informal
coordination while maintaining formal legal
separation.
7.3.8.2.5. No credible explanation exists for this level of
structural integration if the parties were
genuinely maintaining arm's-length
independence. Independent brokers do not
lease premises from their clients' controllers, do
not routinely host client principals in their offices,
and do not structure operations to facilitate the
level of informal interaction evidenced here.
7.3.8.3. Behavioural Coordination Demonstrating Common Purpose
The systematic coordination of market activities over 14+
months demonstrates a unity of purpose inconsistent with
independent actors:
7.3.8.3.1. Hedge fund anticipatory positioning commenced
months after the Mustek-specific mandate
establishment but 44 days before any
documented client instruction, demonstrating
advance preparation using pre-established
infrastructure;
7.3.8.3.2. Substantial temporal and strategic alignment
between hedge fund proprietary trading and
client brokerage activities, with no materially
conflicting trades during the critical pre-
announcement accumulation phase that would
have undermined the common strategic
objective of building toward the mandatory offer
threshold;
70
7.3.8.3.3. Systematic price engineering toward the R13.00
level over months, with both client instructions
and hedge fund trading supporting this precise
target;
7.3.8.3.4. Coordinated liquidity provision, as evidenced by
the hedge fund's 221,173-share sale on 5 July
2024, two days after the client's massive 3.5
million share instruction.
7.3.8.4. The Respondents offer no credible alternative explanation for
this pattern. To accept their position requires believing that:
7.3.8.4.1. the Mustek-specific mandate created 14 months
in advance was unrelated to the eventual
transaction;
7.3.8.4.2. the hedge fund independently identified the
same investment opportunity and price target;
7.3.8.4.3. the perfect coordination over 14+ months was
coincidental; and
7.3.8.4.4. structural integration was irrelevant to trading
decisions.
7.3.8.5. Communication Evidence Confirming Coordination
The email record demonstrates systematic coordination
through an irregular communication structure. All trades
originated from verbal instructions by Mr Zetler to Mr Benatar,
with Numus then sending post-execution confirmations to
CFO Wright while copying the A² principals who had given the
verbal instructions. This pattern documents:
7.3.8.5.1. Precise timing specifications (e.g., "17:04");
7.3.8.5.2. Exact price parameters (repeated "1300c"
specifications establishing the eventual offer
price);
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7.3.8.5.3. Strategic volume allocations demonstrating
sophisticated accumulation planning;
7.3.8.5.4. Systematic bypass of the designated corporate
representative (Wright) in favour of direct verbal
coordination between the broker and the
ultimate beneficial owners, with Wright receiving
only after-the-fact confirmations.
7.3.8.6. The Critical Question: Alternative Explanation
The determinative question is whether any credible
explanation exists for this comprehensive pattern of conduct
other than tacit understanding and cooperation toward a
common purpose. The Panel concludes that no such
explanation exists.
7.3.8.7. Each element, the early Mustek-specific mandate, the
structural integration, the anticipatory positioning, the perfect
coordination, the systematic price engineering, the
communication pattern, the absence of conflicts, might
individually admit of innocent explanation. However, their
cumulative effect, sustained over 14+ months with systematic
consistency, demonstrates tacit agreement on a balance of
probabilities.
7.3.8.8. The alternative explanation offered by Respondents, that all
of this was coincidental alignment between truly independent
actors, requires acceptance of implausibilities that multiply
with each additional fact. The Mustek-specific mandate was
established 14 months early by coincidence. The hedge fund
independently identified the same opportunity at the same
time by coincidence. The structural integration was irrelevant
by coincidence. The perfect trading alignment occurred
without coordination by coincidence. The R13.00 price level
was reached independently by both parties by coincidence.
7.3.8.9. At some point, the accumulation of required coincidences
crosses the threshold from possible to implausible to
incredible. This case crosses that threshold. The only rational
72
explanation for the sustained pattern of coordinated conduct
is tacit understanding constituting an "agreement" within the
meaning of section 117(1)(b).
7.3.8.10. Conclusion on Element 2
The Panel finds that action pursuant to an agreement is
established through the inference of tacit understanding from
the totality of deliberately coordinated conduct sustained over
an extended period. This interpretation gives effect to the
legislative purpose, prevents sophisticated circumvention,
and reflects the commercial and operational reality of the
relationship between Numus and Novus.
7.4. Element 3: Co-operate/Cooperation
7.4.1. Finding: Clearly Satisfied Based on 'Additional Steps' Analysis
7.4.2. Applying the unitary interpretive approach to Section 117(1)(b), "co-
operate" must be understood purposively. The text does not define the
scope of cooperation, requiring contextual and purposive analysis. The
evidence demonstrates cooperation extending far beyond routine broker-
client relationships, constituting the type of coordination the legislature
intended to capture:
7.4.2.1. Information and Strategic Coordination:
7.4.2.1.1. Hedge fund's confident premium trading
(R15.41) indicates access to non-public
transaction intelligence;
7.4.2.1.2. Perfect timing coordination demonstrates shared
strategic planning and intelligence;
7.4.2.1.3. Absence of competing positions demonstrates
coordinated rather than independent objectives;
and
7.4.2.1.4. Systematic market preparation benefiting
common strategic goals.
7.4.2.2. Market and Operational Coordination:
73
7.4.2.2.1. Both entities systematically supported R13.00
price level establishment over months
7.4.2.2.2. Hedge fund provided strategic liquidity during
major client acquisitions (July 2024 sale)
7.4.2.2.3. Parallel accumulation without market conflicts or
competing strategies
7.4.2.2.4. Coordinated market timing and strategic
execution
7.4.2.3. Structural and Strategic Coordination:
7.4.2.3.1. Shared physical premises and operational
integration facilitating coordination
7.4.2.3.2. Pre-established Mustek-specific infrastructure
enabling systematic implementation
7.4.2.3.3. Financial dependency relationships supporting
operational alignment
7.4.2.3.4. Combined activities creating market conditions
enabling successful offer implementation
7.4.2.4. Purpose-Driven and Systematic Cooperation
The cooperation served the specific, systematic purpose of
enabling the mandatory offer through comprehensive market
preparation, controlled stake building, strategic price
engineering, and coordinated implementation of a
sophisticated acquisition strategy.
7.4.2.5. Cooperation Transcending Normal Service Provision
The evidence demonstrates cooperation extending far beyond
routine broker-client relationships. Unlike standard brokerage
execution, Numus's activities constituted additional steps that
were functionally indispensable to the acquisition strategy,
including:
74
7.4.2.5.1. anticipatory market positioning before client
instructions;
7.4.2.5.2. systematic accumulation consistent with a
predetermined price target (R13.00), as
evidenced by alleged verbal instructions from Mr
Zetler, corroborated by post-execution deal
recaps sent by Numus to Novus CFO Craig
Wright and copied to A² principals "at 1300c"
months before the Firm Intention
Announcement;
7.4.2.5.3. structural dependency enabling coordination;
7.4.2.5.4. perfect temporal alignment, eliminating conflicts.
These factors collectively transform the relationship from
service provision to collaborative participation in a unified
scheme
7.5. Element 4: For the purpose of...proposing an affected transaction (The Critical
"But-For" Analysis)
7.5.1. Finding: Definitively Satisfied
7.5.2. The coordinated activities were not merely incidental to, but were integral
and constitutive of, enabling the mandatory offer:
7.5.2.1. Early Preparation and Strategic Infrastructure:
7.5.2.1.1. Mustek-specific mandate established on 30
August 2023, 14 months before the Firm
Intention Announcement, creating a purpose-
built infrastructure exclusively for the eventual
acquisition of Mustek exposure, contradicting
claims of generic or reactive brokerage services;
7.5.2.1.2. Hedge fund positioning months before client
instructions, preparing favourable market
conditions; and
75
7.5.2.1.3. Systematic development of operational
capabilities specifically designed for coordinated
accumulation.
7.5.2.2. Market Preparation and Conditions Creation:
7.5.2.2.1. Hedge fund's systematic accumulation prepared
favourable liquidity and pricing conditions
7.5.2.2.2. Strategic price engineering established
sustainable R13.00 offer level over months
7.5.2.2.3. Market intelligence gathering and confidence
building through coordinated professional
execution
7.5.2.2.4. Creation of market environment conducive to
successful offer implementation
7.5.2.3. Threshold Achievement and Strategic Implementation:
7.5.2.3.1. Coordinated brokerage services enabled
systematic, controlled stake building below
disclosure thresholds
7.5.2.3.2. CFD facilitation allowed covert accumulation
avoiding premature disclosure
7.5.2.3.3. Combined activities systematically built toward
mandatory offer threshold
7.5.2.3.4. Perfect timing coordination enabled optimal offer
announcement and market conditions
7.5.2.4. Offer Implementation and Strategic Success:
7.5.2.4.1. R13.00 price level, systematically established
through coordination, became the exact offer
price
7.5.2.4.2. Coordinated market preparation ensured offer
viability and market acceptance
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7.5.2.4.3. Systematic strategic implementation supported
offer success and shareholder response
7.5.2.4.4. Comprehensive coordination created optimal
conditions for transaction completion
7.5.3. The Definitive "But-For" Test
Applying the critical "but-for" test: The mandatory offer, characterised by
its precise R13.00 price point, its timing, and the covert, cost-effective
accumulation of the triggering stake, could not have occurred in that
specific form but for the systematic coordination between Numus and
Novus. The early infrastructure development, anticipatory market
positioning, systematic price engineering, and coordinated strategic
implementation were not merely helpful or facilitative; they were essential
and constitutive elements of the affected transaction as ultimately
proposed and executed.
8. PANEL'S DETERMINATION
8.1. Primary Finding
Based on a comprehensive analysis of overwhelming evidence and applying the
proper legal framework, the Panel determines that Numus Capital Proprietary
Limited acted in concert with Novus Holdings Limited for the purposes of the
mandatory offer to Mustek Limited shareholders.
8.2. Comprehensive Basis for Concert Party Finding
This determination rests on five established factors:
8.2.1. the August 2023 Mustek-specific mandate establishing purpose-built
infrastructure 14+ months before the offer;
8.2.2. structural integration through Suite 704, enabling real-time coordination;
8.2.3. anticipatory hedge fund positioning 44 days before documented client
instructions;
8.2.4. email instructions proving systematic coordination on timing ("17:04"),
pricing ("1300c"), and strategy;
77
8.2.5. board documents using ownership language ("23% of the equity",
"funding"), proving conscious treatment of CFDs as beneficial interests.
The detailed evidence supporting these findings is set out in paragraphs
5 to 7 above;
8.2.6. the dual statutory foundation for beneficial interest, section 1 (direct
beneficial interest through control of disposition) and section 56(2)(c)
(deemed beneficial interest through co-operation for acquisition), each
independently establishing Novus's disclosure obligations; and
8.2.7. the commercial irrationality of 'independent' competition, establishing that
no rational broker would compete with its largest client unless the interests
were unified by agreement (paragraph 5.6).
8.3. Credibility Assessment
8.3.1. The Panel finds that the sworn testimony must be assessed against the
objective documentary evidence. The explanations offered for the
systematic coordination patterns, characterising them as coincidental
alignment between truly independent actors, require acceptance of
multiple improbabilities that, cumulatively, strain credibility:
8.3.1.1. The Mustek-specific mandate established 14 months (and
associated trading activity), before the mandatory offer was
announced, was unrelated to the eventual affected
transaction;
8.3.1.2. The hedge fund independently identified the same investment
opportunity, timing, and R13.00 price target;
8.3.1.3. The structural integration through Suite 704 had no bearing
on coordination;
8.3.1.4. The systematic bypass of designated corporate channels
occurred without significance;
8.3.1.5. The significant alignment of trading activities over 14+ months
was coincidental.
8.3.2. When objective documentary evidence directly contradicts sworn
assertions, and when explanations require acceptance of cumulative
78
improbabilities, the reliability of those explanations is materially
undermined.
8.4. Defence Arguments Addressed
8.4.1. The "Pure Agency" Defence
The comprehensive email evidence and systematic coordination patterns
clearly prove Numus provided extensive strategic coordination on timing,
pricing, and execution, completely contradicting claims of non-
discretionary agency. The integration of brokerage and proprietary trading
under single management while serving the same transaction architects,
combined with physical co-location, structural dependency, and
systematic advance preparation, is inconsistent with any claim of
operational separation or genuine agency status.
8.4.2. The "Independence" Defence
The comprehensive structural dependency through the Aktiv lease,
combined with early establishment of Mustek-specific mandate
infrastructure, perfect systematic coordination over 14+ months, and
complete absence of conflicting positions, demonstrates comprehensive
integration rather than independence. Genuine arm's-length relationships
do not exhibit such systematic behavioural alignment, require such
extensive coordination mechanisms, or involve such comprehensive
structural and operational integration. The independence defence is
further addressed in paragraph 5.6, which establishes that conduct
described as 'independent' would be commercially self-destructive for any
rational actor, thereby demonstrating that the characterisation is false.
8.4.3. The "Economic Contradiction" Defence
The hedge fund's systematic trading above R13.00, particularly the
R15.41 premium purchase, demonstrates sophisticated inside knowledge
and confidence in transaction success rather than independence. The
willingness to pay substantial premiums to the offer price demonstrates
privileged access to information about the transaction's likelihood of
success, potential for offer price increases, and strategic development,
supporting rather than contradicting concert party status.
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8.4.4. The "Chinese Walls" Defence
As detailed in Section 7.2.4, the claim of effective Chinese walls is both
procedurally and practically impossible given the structural integration,
single management oversight, financial dependency, and perfect
coordination patterns. The systematic coordination evidenced over 14+
months constitutes affirmative proof that no genuine segregation ever
existed or could have existed, given the operational reality. This finding is
reinforced by the analysis at paragraphs 5.6 and 5.7, establishing that if
Chinese walls had genuinely separated operations, the hedge fund would
have been competing with the firm's largest client without any
documented rationale or conflict management, conduct no rational actor
would undertake.
8.4.5. The "Explicit Agreement" Requirement
The defence's interpretation requiring explicit written agreements would
create a massive loophole enabling sophisticated circumvention of all
concert party obligations, directly contrary to the legislative intent to
protect shareholders through substantive regulatory oversight rather than
formalistic compliance with documentation requirements.
8.4.6. Conclusion on Board Documents
8.4.6.1. The board documents prove Mr Zetler was the operational
architect executing a deliberate acquisition strategy from Suite
704 (Numus's premises) using ownership language
("shareholding", "23% of the equity", "funding") to describe
CFDs while pursuing control-focused objectives ("gain
absolute control", "block M&A", "board representation"). The
mandatory offer was planned from the outset, including
explicit contemplation of forming concert party relationships.
8.4.6.2. These documents transform the concert party determination
from inference to proof: when the client's strategic controller
operates from the broker's premises while designing an
acquisition strategy, and the broker's hedge fund trades the
same security with significant alignment, and both parties
systematically use ownership language to describe derivative
80
positions, coordination through shared strategic intelligence
arising from structural integration is proven.
9. REGULATORY IMPLICATIONS AND ORDERS
9.1. Immediate Disclosure Requirements
Novus Holdings Limited and its concert parties must immediately announce to the
market within 3 business days of this ruling that Numus Capital Proprietary Limited
has been determined to be a concert party, with specific reference to the
systematic coordination findings and regulatory implications. They must also file
amended disclosure documentation with the Panel and JSE reflecting Numus's
concert party status retroactive to the commencement of coordinated activity in
August 2023, including all material relationships and dependencies. Furthermore,
all historical disclosure obligations must be reassessed and amended to take
comprehensive account of Numus's trading activities as a concert party member
from May 2024 onward, when email instructions specifying R13.00 and systematic
accumulation commenced, coinciding with the initiation of negotiations with Mustek
executives and the DK Trust.
9.2. Regulation 111(6) creates immediate and automatic shareholder impact through
mandatory price adjustment
9.2.1. The purchase of 3,000 Mustek shares at R15.41 on 28 November 2024
triggers an automatic price increase obligation because this transaction
by a concert party member represents an 18.54% premium to the R13.00
offer price. Regulation 111(6) mandates that the offer consideration for all
shareholders be set at the highest price paid by any concert party
member.
9.2.2. Immediate Regulatory and Market Consequences:
9.2.2.1. Automatic obligation to increase offer price to R15.41 for all
shareholders;
9.2.2.2. Demonstration of serious market impact from undisclosed
concert party relationships;
9.2.2.3. Proof of direct financial harm to shareholders from regulatory
circumvention; and
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9.2.2.4. Evidence of systematic coordination designed to benefit
insiders at shareholder expense.
9.2.3. Broader Systemic Implications:
This regulatory consequence demonstrates the critical importance of
proper concert party disclosure for shareholder protection and the serious
market disruption caused by sophisticated schemes designed to
circumvent regulatory requirements.
9.3. Mandatory Price Adjustment Under Regulation 111(6)
9.3.1. The Factual Trigger and Retrospective Application
9.3.1.1. On 28 November 2024 (13 days after FIA), the Numus
regulated hedge fund purchased 3,000 Mustek shares at
R15.41 per share, representing an 18.54% premium to the
R13.00 offer price. This transaction occurred 13 days after the
Firm Intention Announcement of 15 November 2024 and
before the offer closed.
9.3.1.2. The Panel has determined in this ruling that during the period
from August 2023 to 15 November 2024 (when the mandatory
offeror was announced, and through the offer period and
beyond, Numus Capital acted in concert with Novus Holdings.
This determination is not the creation of a new legal status but
a declaration of the existing factual reality, based on the
parties' conduct, structural integration, and systematic
coordination established in paragraphs 5 to 7 above.
9.3.2. Concert Party Status is Factual, Not Created by Determination
9.3.2.1. Section 117(1)(b) defines "acting in concert" based on
conduct: parties either do or do not cooperate pursuant to an
agreement for the purpose of proposing an affected
transaction. This is a factual relationship that exists (or doesn't
exist) based on the parties' actions, regardless of whether it
has been formally declared.
9.3.2.2. The Panel's determination performs a declaratory function, it
recognises and gives legal effect to a pre-existing factual
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relationship. It does not create concert party status as of the
determination date.
9.3.2.3. Accordingly, when Regulation 111(6) refers to "any person
acting in concert with" the offeror, this language captures
persons who were factually acting in concert at the time of the
acquisition, not merely persons who had been formally
declared concert parties by that date.
9.3.3. The Statutory Framework Confirms Retrospective Operation
This interpretation is compelled by the structure and purpose of
Regulation 111 read as a whole:
9.3.3.1. Regulation 111(2) establishes that "any person acting in
concert with the offeror" who acquired securities in the six
months before the offer period must have their acquisition
prices reflected in the offer consideration. This provision
operates retrospectively, it looks back to pre-offer acquisitions
and requires price matching regardless of whether concert
party status was disclosed or known at the time;
9.3.3.2. Regulation 111(6) uses identical language, "any person acting
in concert with" the offeror, and serves the same protective
purpose: ensuring shareholders receive the benefit of the
highest prices paid by the concert party group;
9.3.3.3. If Regulation 111(2) applies to factual concert parties
(including undisclosed ones) for pre-offer acquisitions,
Regulation 111(6) must apply the same way for post-
announcement acquisitions. The identical statutory language
admits of no distinction; and
9.3.3.4. The legislature did not write "any person determined by the
Panel to be acting in concert" or "any person disclosed as
acting in concert." The actual statutory language, "any person
acting in concert", is status-neutral and focuses on factual
conduct.
9.3.4. The Alternative Interpretation Would Destroy Shareholder Protection
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9.3.4.1. To interpret Regulation 111(6) as applying only to concert
parties that were formally declared as such at the time of
acquisition would create an untenable loophole:
9.3.4.1.1. Sophisticated parties could deliberately conceal
concert party relationships through structural
separation, undocumented instructions, and
false representations;
9.3.4.1.2. The undisclosed concert party could then make
acquisitions above the offer price during the offer
period, knowing these acquisitions would not
trigger price adjustment obligations if
concealment succeeded;
9.3.4.1.3. By the time the Panel investigated and
determined concert party status, the offer would
have closed, shareholders would have been
paid the lower price, and the price adjustment
obligation would be deemed inapplicable; and
9.3.4.1.4. This would reward parties for successful
concealment and create perverse incentives to
avoid disclosure—precisely the opposite of the
transparency principles in sections 119(1) and
122.
9.3.4.1.5. This interpretation would directly violate Section
158's mandatory command that the Panel "must
promote the spirit, purpose and objects of this
Act" and "must prefer the meaning that best
promotes the spirit and purpose." An
interpretation enabling parties to bank the
benefits of non-disclosure through successful
concealment is the opposite of promoting
Chapter 5's transparency purposes.
9.3.4.2. The legislature cannot have intended such a result. The
protective purpose of Regulation 111(6) requires that
shareholders receive the benefit of the highest price paid by
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any member of the concert party group, regardless of when
that membership is formally determined.
9.3.5. This Case Exemplifies Why Retrospective Application is Essential
9.3.5.1. The facts here demonstrate precisely why Regulation 111(6)
must apply to retrospectively determined concert parties:
9.3.5.1.1. Numus and Novus systematically concealed
their concert party relationship through structural
separation, verbal-only instructions, and material
misrepresentations to this Panel;
9.3.5.1.2. The concert party relationship existed factually
from as early as about August 2023 (certainly
around early 2024, namely around March that
year), as evidenced by the Mustek-specific
mandate, structural integration through Suite
704, and systematic coordination over 14+
months;
9.3.5.1.3. This concealed concert party relationship
enabled Novus to: - Accumulate 35%+ of Mustek
through coordinated trading - Trigger mandatory
offer obligations at R13.00 - Avoid disclosing
Numus's role until the investigation commenced;
9.3.5.1.4. During the post-announcement period, while
concert party status remained concealed, the
Numus hedge fund purchased 3,000 shares at
R15.41—18.54% above the offer price;
9.3.5.1.5. Under respondents' interpretation, this above-
offer purchase would escape Regulation 111(6)
because concert party status wasn't formally
determined until after the offer closed; and
9.3.5.1.6. Shareholders would thus be denied the benefit
of the R15.41 price paid by a concert party
member, solely because that member
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successfully concealed its status during the offer
period.
9.3.5.2. This outcome would reward sophisticated regulatory evasion
and fundamentally undermine shareholder protection. It
cannot be correct.
9.3.6. The Conduct Was Unlawful From the Outset
9.3.6.1. The respondents' failure to disclose their concert party
relationship in offer documents constituted non-compliant
conduct under the takeover provisions from the moment of
omission. The systematic coordination established in this
determination was unlawful concealment, not lawful conduct
that only became problematic upon subsequent
determination.
9.3.6.2. To treat this unlawful concealment as creating a "safe harbor"
from Regulation 111(6) obligations would have a devastating
chilling effect on market integrity. It would signal that parties
can bank the benefits of non-disclosure—including escaping
price adjustment obligations—as long as they successfully
delay Panel investigation until after offer closure.
9.3.6.3. The regulatory framework requires consequences for unlawful
conduct. Those consequences include mandatory price
adjustment under Regulation 111(6) for acquisitions made
during the period of unlawful concealment.
9.3.7. Regulation 111(6) Imposes Non-Discretionary Obligation
9.3.7.1. Regulation 111(6) operates automatically and imposes strict
liability upon the occurrence of the specified trigger:
9.3.7.1.1. No materiality threshold, the volume of
shares acquired is irrelevant;
9.3.7.1.2. No intent requirement, the purpose or
characterisation of the acquisition is irrelevant;
86
9.3.7.1.3. No exception for trading strategies, labels such
as "arbitrage" or "market-making" do not create
exemptions;
9.3.7.1.4. Mandatory language, "must increase" admits of
no discretion.
9.3.7.2. The respondents may contend that the 3,000-share purchase
was "short-term arbitrage" rather than "strategic
accumulation," particularly given the subsequent sale of
132,261 shares at R15.30 on 3 December 2024. This
characterisation is legally irrelevant.
9.3.7.3. If sophisticated actors could circumvent Regulation 111(6) by
labelling post-announcement purchases as "arbitrage" rather
than "accumulation," the shareholder protection would
become illusory. The regulation applies based on the fact of
acquisition above the offer price, not the subjective
characterisation of the acquisition's purpose.
9.3.8. Attribution of Hedge Fund Trading to Numus Capital
9.3.8.1. The hedge fund operates under the sole management and
control of Numus Capital, with Mr Isaac Benatar as director.
Under basic principles of corporate attribution, the hedge
fund's trades are attributable to Numus Capital for purposes
of concert party obligations.
9.3.8.2. Moreover, the absence of effective Chinese walls between
Numus's brokerage and proprietary operations (see
paragraph 6.1.4) means that for regulatory purposes, the
hedge fund cannot be treated as operating independently of
Numus Capital's other activities. The structural integration and
single-director management establish functional unity for
regulatory attribution purposes.
9.3.9. Reconciliation with Inspector's Report
The Inspector's report focused primarily on pre-announcement
coordination and did not comprehensively analyse post-announcement
trading patterns or their implications for Regulation 111(6). The Panel's
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independent analysis of the complete trading record establishes that the
highest post-FIA acquisition was R15.41.
9.3.10. Mandatory Application is Restorative, Not Punitive
The mandatory application of Regulation 111(6) is not punitive but
restorative of the legislative scheme's integrity. To decline the price
adjustment would reward sophisticated actors for structuring transactions
to evade core disclosure obligations while maintaining the technical ability
to claim regulatory compliance. Such an outcome would undermine the
fundamental protective purpose of the Takeover Provisions and create
perverse incentives for regulatory arbitrage.
9.3.11. Mandatory Order
9.3.11.1. Accordingly, Novus Holdings Limited must immediately
increase the offer consideration to all Mustek Limited
shareholders to R15.41 per share.
9.3.11.2. This adjustment is mandatory and automatic, flowing from the
operation of Regulation 111(6) upon the established facts.
The increased consideration must be communicated to
shareholders within 3 business days of this ruling and
reflected in all offer documentation.
9.3.11.3. The Panel notes that Regulation 111(3) permits the Panel to
agree to adjusted consideration in appropriate circumstances.
However, no application has been made under Regulation
111(3), and even if made, this would not be an appropriate
case for adjustment given the systematic concealment of
concert party status and the importance of shareholder
protection principles.
9.3.11.4. The Panel's determination under Section 117(1)(b) is
declaratory, not constitutive. It does not create a concert party
relationship ex nunc (from now on); it formally recognises a
factual relationship that existed ex tunc (from the outset).
Therefore, strictly as a matter of fact and law, Numus was a
concert party on 28 November 2024 when it purchased shares
at R15.41. To hold otherwise would allow parties to benefit
from their own concealment.
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9.4. CFD Structure and Section 122 Disclosure Obligations
The Panel addresses the CFD disclosure issue because concealment was not
coincidental, but a deliberate feature of the scheme designed to create legislative
arbitrage. The Inspector's analysis, while thorough on most issues, applied the
narrowed definition of "securities" in section 117(1)(j) to the disclosure obligation
under section 122. However, section 122 is a transparency provision aimed at
economic exposure, not merely voting control, and must be read with the broad
definition of "securities" in section 1 of the Act.
9.4.1. Beneficial Interest Under Section 1: Control of Disposition Through
Relationship
9.4.1.1. Independent of the section 56(2)(c) analysis below, the Panel
finds that Novus held a beneficial interest in Mustek shares
directly under the section 1 definition throughout the
Designated Period.
9.4.1.2. Section 1 defines "beneficial interest" as the right or
entitlement of a person, "through ownership, agreement,
relationship or otherwise", to—among other things—"dispose
or direct the disposition" of the company's securities.
9.4.1.3. The phrase "relationship or otherwise" is deliberately
expansive. It signals that beneficial interest can arise through
mechanisms beyond formal contractual instruments. The
question is whether Novus had a de facto right or entitlement
to direct the disposition of the underlying Mustek shares,
arising through the relationship with its prime brokers.
9.4.1.4. The evidence establishes that Novus exercised actual control
over the disposition of the underlying Mustek shares at every
critical juncture:
9.4.1.4.1. Solicitation of specific sellers:
Mr Zetler admitted instructing Mr Benatar to
"reach out to certain identified Mustek
shareholders" including Old Mutual to determine
whether they would dispose of their shares
(Zetler affidavit, 11 November 2025, para
89
8.1.2.2). Peresec subsequently acquired exactly
the block Novus identified—4,753,935 shares on
22 July 2024—coinciding with Old Mutual's
disposal announced on 24 July 2024.
9.4.1.4.2. Direction of transfers between brokers:
When Standard Bank reached its credit limit, Mr
Zetler "approached Peresec" who "took transfer
of the underlying Mustek Shares from SBG"
(Zetler affidavit, 11 November 2025, para 9.5.4).
The shares moved between custodians at
Novus's direction—not through market sale. If
Novus had no control over these shares,
Standard Bank would have sold them into the
market.
9.4.1.4.3. Coordinated final exit:
Upon CFD termination, Novus "expressed its
willingness to acquire these shares from
Peresec through a market purchase" (Almeida
affidavit, 8 December 2025, para 8.2.6). Peresec
sold 22.03% of Mustek; Novus acquired to
35.07%—same day, coordinated timing. There
is no evidence Peresec marketed the shares to
anyone else or considered alternative buyers.
9.4.1.5. At no point did the prime brokers exercise independent
judgment about disposition. At every point, the shares went
exactly where Novus directed:
Event Novus's Direction Outcome
Old Mutual Identified target, Peresec acquired
block instructed exact block
solicitation
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SBG exit Approached Shares
Peresec, arranged transferred (not
transfer sold) to Peresec
Final exit Expressed Peresec sold
willingness to 100% to Novus
acquire
9.4.1.6. The Respondents may argue that actual control is not the
same as a "right or entitlement"—that just because Novus's
directions were followed does not mean Novus had a legal
right to direct. This argument faces three difficulties:
9.4.1.6.1. The statutory language:
Section 1 explicitly contemplates beneficial
interest arising "through... relationship or
otherwise"—not just through contract. The
consistent pattern of deference to Novus's
directions, arising from the relationship between
Novus and its prime brokers, is precisely what
this language captures.
9.4.1.6.2. The purposive interpretation mandate:
Section 158(b) requires the Panel to "promote
the spirit, purpose and objects of this Act." The
purpose of the beneficial interest disclosure
regime is market transparency—ensuring
investors know who controls significant stakes.
A narrow interpretation permitting parties to
maintain actual control while disclaiming
beneficial interest because that control is not
formalised would defeat this purpose.
9.4.1.6.3. The implausibility of coincidence:
The Respondents' position requires accepting
that Peresec "coincidentally" acquired exactly
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the block Novus identified, that Standard Bank
"coincidentally" transferred (rather than sold)
shares when Novus arranged an alternative
warehouse, and that Peresec "coincidentally"
sold 100% of its position to Novus upon CFD
termination. At some point, the accumulation of
coincidences becomes implausible. When every
disposition aligns precisely with what Novus
wanted, the inference that Novus controlled
disposition becomes unavoidable.
9.4.1.7. The ISDA documentation's provisions regarding cash
settlement and dealer autonomy do not defeat this finding.
Those provisions describe the contractual framework; the
evidence describes the operational reality. Where the
operational reality demonstrates consistent control over
disposition, that control constitutes beneficial interest
regardless of what the contracts say.
9.4.1.8. Applying the interpretive framework established by sections
5(1), 7, and 158, a construction that permits parties to exercise
actual control while disclaiming beneficial interest because the
control is not formalised would defeat the transparency
purpose of the disclosure regime. The Panel declines to adopt
such a construction.
9.4.1.9. The Panel accordingly finds that Novus held a beneficial
interest in the underlying Mustek shares under the section 1
definition, arising through its right or entitlement "through
relationship or otherwise" to "direct the disposition" of those
securities. This finding is independent of, and additional to, the
section 56(2)(c) finding below.
9.4.2. Deemed Beneficial Interest Under Section 56(2)(c): Co-operation for
Acquisition
9.4.2.1. Section 56(2)(c) deems beneficial interest where parties "act
in terms of an agreement... for co-operation between them for
the acquisition, disposal or any other matter relating to a
92
beneficial interest." This provision does not require contractual
rights; it captures conduct.
9.4.2.2. The evidence satisfies this test:
9.4.2.2.1. Novus identified specific sellers (Old Mutual) and
instructed solicitation;
9.4.2.2.2. Peresec acquired exact blocks Novus identified;
9.4.2.2.3. Novus directed transfer of shares between
brokers (SBG to Peresec);
9.4.2.2.4. Upon CFD termination, Novus acquired exact
shares Peresec held;
9.4.2.2.5. Timing coordinated throughout (both parties
aware of other's activities).
9.4.2.3. The ISDA cash-settlement provisions are irrelevant to this
analysis. Section 56(2)(c) looks to conduct, not contract. The
conduct here, active solicitation, directed transfers,
coordinated exit, satisfies the statutory test regardless of
derivative documentation.
9.4.2.4. The Panel accordingly finds that Novus held deemed
beneficial interest in Mustek shares throughout the
Designated Period by virtue of section 56(2)(c). The CFD
arrangements with SBG and Peresec constituted
"agreements" under which parties "co-operated for
acquisition" of securities.
9.4.3. The underlying Mustek shares are "securities" under section 1, and
Novus's CFD arrangements conferred a "beneficial interest" in them
through:
9.4.3.1. Rights to dividends under section 1(a) of the definition; and
9.4.3.2. Rights to disposition via physical settlement under section
1(c).
9.4.3.3. The Panel's Statutory Interpretation Authority
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9.4.3.3.1. The Inspector's conclusion that CFDs do not
trigger section 122 disclosure appears to rest on
interpreting section 117(1)(j)'s narrowed
definition as excluding CFDs entirely from
Chapter 5's disclosure regime. With respect, this
interpretation conflates two distinct concepts:
9.4.3.3.1.1. Whether CFDs themselves are
"securities" (they are not, as they
lack voting rights); and
9.4.3.3.1.2. Whether CFDs create "beneficial
interests IN securities" that do
have voting rights (they do).
9.4.3.3.2. Section 122(1)(a) requires disclosure when a
person acquires a "beneficial interest in any
particular securities." The critical linguistic point
is that the section addresses beneficial interests
IN securities, not beneficial interests that ARE
securities.
9.4.3.3.3. The Panel has independent authority under
section 170(1) to make legal determinations on
matters arising from investigations. On pure
questions of statutory interpretation, the Panel is
not bound by the Inspector's legal conclusions,
though it accords great weight to the Inspector's
factual findings.
9.4.3.4. The Three-Step Statutory Analysis
9.4.3.4.1. Step 1: The Underlying Mustek Shares Are
"Securities" Under s117(1)(j). The underlying
Mustek shares are unquestionably "securities"
as defined in section 117(1)(j):
9.4.3.4.1.1. They are securities of Mustek
Limited (a regulated company);
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9.4.3.4.1.2. They carry voting rights at
shareholders' meetings;
9.4.3.4.1.3. They therefore meet the
narrowed Chapter 5 definition.
This is not disputed by any party.
9.4.3.4.2. Step 2: CFDs Create "Beneficial Interest"
Under Section 1. Section 1 defines "beneficial
interest" to include:
9.4.3.4.2.1. Rights to "receive or participate in
any distribution in respect of the
company's securities"33 ;
9.4.3.4.2.2. Rights to "dispose of, or direct the
disposition of, the company's
securities, or any part of a
distribution in respect of the
securities"34.
Novus's CFD arrangements conferred both
categories of beneficial interest:
9.4.3.4.2.3. Distribution Rights: The CFD
terms35 provided for payment of
dividend equivalents when
Mustek paid dividends to
underlying shareholders. This is a
right to "participate in any
distribution" under s1(a).
9.4.3.4.2.4. Disposition Rights: The CFDs
included physical settlement
options, giving Novus the right to
33 See the definition of beneficial interest in section 1 of the Act, at sub-paragraph (a)
34 See the definition of beneficial interest in section 1 of the Act, at sub-paragraph (c)
35 Copies of the Peresec and SBG CFD mandates are attached hereto, marked [Annexures C1 and C2].
95
direct disposition by requiring
delivery of underlying shares.
Over 15 million shares were
ultimately physically settled,
proving this was not theoretical
but actual. This constitutes a right
to "direct the disposition" under
the definition of beneficial interest
in section 1 of the Act, at sub-
paragraph (c).
9.4.3.4.3. Step 3: CFDs Create Beneficial Interest "IN"
Securities. The CFDs create beneficial interests
IN the underlying Mustek shares:
9.4.3.4.3.1. The beneficial interest
(distribution + disposition rights)
exists IN the underlying
securities;
9.4.3.4.3.2. Those underlying securities ARE
"securities" under s117(1)(j) (they
have voting rights);
9.4.3.4.3.3. Therefore, CFDs create
"beneficial interest in securities"
for purposes of section 122(1)(a).
The distinction is crucial because section 122
does not require the beneficial interest itself to
be a "security." It necessitates the disclosure of
beneficial interests IN securities. The CFDs
represent beneficial interests, while the
underlying Mustek shares are securities.
Therefore, the requirements of section 122 are
satisfied.
9.4.4. The Absence of Genuine Hedging Demonstrates Direct Economic
Exposure
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9.4.4.1. The respondents may argue that CFDs create only synthetic
exposure because counterparties (Standard Bank, Peresec)
hedged their positions by holding underlying Mustek shares.
If true, this would mean Novus's beneficial interest was in the
CFD contracts themselves, not directly in Mustek shares.
9.4.4.2. However, when directly questioned about counterparty
hedging, respondents provided only:
9.4.4.2.1. The contractual CFD terms (mechanism
documentation);
9.4.4.2.2. No evidence of actual share holdings by
counterparties;
9.4.4.2.3. No trading records showing counterparties
purchased Mustek shares to hedge CFD
exposure;
9.4.4.2.4. No beneficial interest disclosures by
counterparties under section 122 (which would
be required if they held 5%+ as hedge).
9.4.4.3. The counterparties demonstrated ability to deliver over 15
million Mustek shares on demand for physical settlement
demonstrates they either:
9.4.4.3.1. Held the underlying shares throughout (making
them beneficial interest holders who should have
disclosed); or
9.4.4.3.2. Could procure shares immediately when needed
(proving no genuine hedge existed, as genuine
hedging requires holding throughout).
9.4.4.4. In the absence of evidence proving genuine hedging, the
Panel concludes that Novus's CFDs created direct beneficial
interests in underlying Mustek securities, not merely synthetic
contract exposure.
9.4.4.5. Novus's own characterisation reinforces this conclusion. If
Novus genuinely believed CFDs created only synthetic
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exposure to contracts rather than beneficial interests in equity,
they would not have described them to their board as
"shareholding" and "23% of the equity." The
contemporaneous characterisation by sophisticated financial
decision-makers is the most reliable evidence of economic
substance.
9.4.5. The Irrelevance of Counterparty Hedging to Novus's Disclosure Obligation
9.4.5.1. The SENS announcements confirm that both Standard Bank
and Peresec acquired underlying Mustek shares and filed
Section 122 notices:
9.4.5.1.1. 13 June 2024: SBG disclosed 5.21% beneficial
interest;
9.4.5.1.2. 9 July 2024: SBG disclosed 14% beneficial
interest; and
9.4.5.1.3. 23 July 2024: Peresec disclosed 23.09%
beneficial interest.
Zetler's affidavit confirms that counterparties "acquired
Mustek shares to hedge their exposure under the CFDs
issued to Novus."
9.4.5.2. The respondents may argue that because counterparties
hedged their CFD exposure by holding underlying shares,
Novus's exposure was merely "synthetic" and did not
constitute a beneficial interest in securities requiring
disclosure. This argument misunderstands the statutory
scheme. Section 122(1)(a) imposes disclosure obligations on
the party acquiring the beneficial interest. The fact that SBG
and Peresec filed their own Section 122 notices does not
extinguish Novus's independent obligation.
9.4.5.3. Novus's CFDs conferred direct economic rights in relation to
the underlying Mustek shares:
9.4.5.3.1. Rights to dividends (s1(a) of beneficial interest
definition)
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9.4.5.3.2. Rights to disposition via physical settlement
(s1(c)).
These rights constituted a "beneficial interest IN securities"
under Section 122(1)(a), regardless of counterparty hedging
practices. What matters is the nature of the interest acquired
by Novus, not the risk management practices of its
counterparties.
9.4.5.4. The parallel disclosure patterns are revealing:
9.4.5.4.1. SBG and Peresec filed Section 122 notices
disclosing their holdings
9.4.5.4.2. Novus filed no Section 122 notice despite 23%+
CFD exposure
9.4.5.4.3. All three parties held interests in the same
underlying Mustek securities
This demonstrates the regulatory arbitrage: using CFDs to
accumulate economic control while avoiding the transparency
obligations that direct shareholders face. Section 122's focus
on "beneficial interests IN securities" was designed to prevent
precisely this form of circumvention.
9.4.5.5. The ultimate physical settlement of over 15 million shares
demonstrates that Novus's interest was not merely synthetic
derivative exposure but a direct beneficial interest in the
underlying securities throughout the period. The
counterparties' ability to deliver these shares on demand
demonstrates that the hedging structure supported, rather
than negated, Novus's beneficial interest in the underlying
Mustek equity.
9.4.6. The Admission That CFDs Were Described As "Shareholding"
9.4.6.1. In his affidavit of 26 November 2025 (paragraph 6.3-6.4), Mr
Zetler makes an admission that is fatal to the Respondents'
section 122 defence. He acknowledges that in board
documents there are references to "shares in Mustek",
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"shareholding in Mustek" and states these were "informal
descriptions of the CFD transactions" and that "the relevant
members of the Novus Board had known that the reference to
these terms were in fact references to CFDs (as opposed to
actual Mustek Shares)."
9.4.6.2. This admission demonstrates that Novus consciously chose
ownership language to describe CFDs despite knowing they
were CFDs. The significance of this choice cannot be
overstated for the section 122 analysis.
9.4.6.3. The Significance of Conscious Language Choice
9.4.6.3.1. When sophisticated financial decision-makers, a
board making capital deployment decisions of
R60-126 million, consciously choose to describe
derivative contracts using ownership
terminology, this choice reveals their
understanding of the economic substance of
those contracts.
9.4.6.3.2. This was not casual imprecision or loose
language. The ownership terminology was used:
9.4.6.3.2.1. In formal board proposals
requesting authority
9.4.6.3.2.2. In progress reports to the board
9.4.6.3.2.3. In board minutes documenting
strategic decisions
9.4.6.3.2.4. Consistently over a six-month
period
9.4.6.3.2.5. Across multiple separate
documents
9.4.6.3.3. The fact that board members used identical
terminology ("shares", "shareholding", "equity")
to describe both cash purchases and CFDs
demonstrates they viewed the two mechanisms
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as functionally equivalent for ownership
purposes. They differed in financing structure;
hence, CFDs were described as "funding", but
not in creating beneficial interests in equity.
9.4.6.3.4. This language was used when the board was
making strategic decisions about:
9.4.6.3.4.1. Whether to authorise the
acquisition
9.4.6.3.4.2. How much capital to deploy
9.4.6.3.4.3. What strategic objectives to
pursue (control, blocking rights,
board representation)
9.4.6.3.4.4. Whether to escalate from 15% to
30%
9.4.6.3.4.5. How to "gain absolute control"
9.4.6.3.5. In this context, precision matters. If board
members believed CFDs created no beneficial
interest in equity, they would not have described
them as "shareholding" when requesting
strategic authority.
9.4.6.4. The Ownership Language Throughout the Documents
9.4.6.4.1. The pattern of ownership language is systematic
and pervasive:
9.4.6.4.1.1. 23 May 2024 board proposal:
Zetler seeks authority to "acquire
this stake" providing "an attractive
toehold position for us to explore
further ways to increase our
position."
9.4.6.4.1.2. 17 July 2024 progress report:
Zetler reports that Novus has
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"purchased c7.9m shares" and
has become the "second largest
shareholder."
9.4.6.4.1.3. 22 August 2024 board minutes:
The position is described as
"R126 million (23% of the equity),
which comprised of R73 million in
cash and R53 million in funding."
9.4.6.4.1.4. Throughout documents:
References to "our stake",
"shareholding", "shares in
Mustek", "equity position",
"second largest shareholder."
9.4.6.4.2. Mr Zetler's admission confirms that when these
documents referred to "shares" and
"shareholding", board members knew these
were CFDs. The conscious use of ownership
language despite this knowledge demonstrates
they viewed CFDs as creating economic
ownership, precisely what section 122's
beneficial interest concept captures.
9.4.6.5. What the Ownership Language Proves About Beneficial
Interest
The contemporaneous ownership language is powerful
evidence that CFDs created beneficial interests under section
122:
9.4.6.5.1. By describing CFDs as "shareholding" and
"equity", Novus proved they understood CFDs
gave them economic exposure to Mustek
securities. Economic exposure is the essence of
a beneficial interest; it captures the substance
(economic risk and reward) rather than the form
(legal title).
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9.4.6.5.2. By aggregating R73 million in cash and R53
million in CFDs as a combined "23% of the
equity", Novus proved they viewed the two
mechanisms as creating the same type of
interest, beneficial ownership of equity. If CFDs
were fundamentally different in nature (mere
derivatives vs. ownership), they would not be
aggregated this way.
9.4.6.5.3. By describing CFDs as "funding", Novus
revealed their true understanding: CFDs were a
leveraged financing mechanism for acquiring
beneficial interests in equity, not speculative
derivatives. One does not describe derivative
speculation as "funding."
9.4.6.5.4. The board documents show the strategy's
objectives were to "gain absolute control", "block
M&A", "pursue board representation", and
"execute an MBO." These control objectives
require beneficial ownership; they cannot be
achieved through derivative exposure alone.
The fact that Novus pursued these objectives
through a combination of cash and CFDs
demonstrates they understood CFDs created
beneficial interests enabling control.
9.4.6.6. Cannot Disclaim What You Contemporaneously Claimed
Having described CFDs as "shareholding" and "23% of the
equity" to their own board, Novus cannot now argue to the
Panel that these same instruments created no beneficial
interest requiring disclosure:
9.4.6.6.1. Novus represented to its board that CFDs were
"shareholding" and "equity" when seeking
strategic authority. They cannot now adopt an
inconsistent position to avoid regulatory
obligations.
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9.4.6.6.2. Mr Zetler's affidavit confirms board members
knew the instruments were CFDs but chose
ownership language. This admission binds
Novus; they cannot now claim the language was
mere imprecision when their own affidavit
confirms it was a conscious choice.
9.4.6.6.3. The internal characterisations by decision-
makers, made contemporaneously for strategic
purposes, are more reliable evidence of
economic substance than ex post facto
defensive characterisations made to avoid
regulatory obligations.
9.4.6.6.4. Section 122 exists precisely to prevent parties
from avoiding disclosure by structuring beneficial
interests through derivative forms. Novus's
attempt to disclaim beneficial interest, after
describing CFDs as "equity" when seeking
strategic authority, is exactly the regulatory
arbitrage section 122 prevents.
9.4.7. The Context-Dependent Characterisations Reveal Consciousness
9.4.7.1. The contrast between how Novus characterized CFDs in
different contexts reveals consciousness of their regulatory
significance and demonstrates Novus understood CFDs
created beneficial interests requiring disclosure:
Context Audience How CFDs Purpose of
Characterised Characterisation
Board Novus "shares", Obtaining
Proposals directors "acquire", authority for
(May-July making "increase our capital
2024) strategic stake", deployment and
decisions "shareholding" control
acquisition
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Board Novus board "23% of the Recording
Minutes documenting equity", R53m investment
(August 2024) strategic as "funding" position for
position governance
purposes
Annual Market, Technical Compliance with
Financial regulators, disclosure as financial reporting
Statements shareholders CFDs per requirements
(2024) accounting
standards
TRP Defence Takeover "Mere Avoiding section
(November Regulation derivatives", "no 122 disclosure
2025) Panel beneficial obligations
interest", "no
voting rights"
9.4.7.2. The Pattern of Strategic Characterisation
This pattern reveals several significant facts:
9.4.7.2.1. When addressing their own board for strategic
purposes, obtaining authority, reporting
progress, documenting positions, Novus used
ownership language because that reflected
economic reality. The board needed to
understand they were acquiring equity, not
merely speculating with derivatives.
9.4.7.2.2. In annual financial statements where technical
accounting treatment was required, CFDs were
properly disclosed as such. This shows Novus
was capable of technical precision when
compliance required it.
9.4.7.2.3. Only when regulatory exposure became
apparent did Novus adopt minimising language
emphasising derivative form over economic
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substance. This shift occurred precisely when
the stakes changed from strategic authority to
regulatory obligation.
9.4.7.3. The Consciousness This Pattern Reveals
The context-dependent characterisations prove
consciousness in two ways:
9.4.7.3.1. The use of ownership language internally
demonstrates Novus understood CFDs created
beneficial interests in equity. If they genuinely
believed CFDs were "mere derivatives" with "no
beneficial interest", they would not have
described them as "shareholding" and "23% of
the equity" to their own board.
9.4.7.3.2. The shift to minimizing language precisely when
regulatory obligations arose demonstrates
Novus understood the characterisation mattered
for regulatory purposes. If they genuinely
believed no disclosure was required, there would
be no reason to emphasise the derivative form in
defence while having used ownership language
internally.
9.4.7.4. Why Internal Characterisations Are Most Reliable
The ownership language used internally is more reliable
evidence of economic substance than the defensive
characterisations offered to the Panel:
9.4.7.4.1. When a board is deciding whether to deploy
R60-126 million in capital, whether to pursue
control objectives, and whether to "gain absolute
control", accurate characterisation of what is
being acquired is essential. Imprecise language
in this context would be dysfunctional, the board
needs to understand whether they are acquiring
ownership or mere derivative exposure.
106
9.4.7.4.2. The internal characterisations were made before
any regulatory investigation or enforcement
action. There was no defensive motivation to
minimise or emphasise any particular aspect of
the instruments; the characterisations reflected
genuine understanding.
9.4.7.4.3. The internal characterisations were made
contemporaneously with the strategic decisions,
when understanding of economic substance was
most relevant. The defensive characterisations
are ex post facto, crafted after regulatory
exposure became apparent.
9.4.7.4.4. The internal characterisations were made by and
to the actual decision-makers who designed and
approved the strategy. These are the people
whose understanding of economic substance is
most relevant, they decided what to acquire and
why.
9.4.7.5. The Admission Confirms Consciousness
Mr Zetler's affidavit admission that board members "had
known that the reference to these terms were in fact
references to CFD's (as opposed to actual Mustek Shares)"
confirms the consciousness:
9.4.7.5.1. Board members knew the instruments were
CFDs but chose to describe them as
"shareholding" and "equity." This was not
imprecision or confusion; it was conscious
choice revealing their understanding of
economic substance.
9.4.7.5.2. Having admitted board members knew they
were CFDs, Novus cannot now claim the
ownership language reflected confusion or
imprecision. The choice to use ownership
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language despite this knowledge demonstrates
it reflected genuine understanding.
9.4.7.5.3. The admission binds Novus to the internal
characterisations. They cannot now claim the
board misunderstood what CFDs were or
imprecisely described them, the admission
confirms board members knew exactly what they
were and consciously chose ownership
language.
9.4.7.6. The Arbitrage Attempt Section 122 Prevents
9.4.7.6.1. Section 122's requirement to disclose beneficial
interests regardless of legal form exists precisely
to prevent the regulatory arbitrage Novus
attempted:
9.4.7.6.1.1. Novus used CFDs rather than
purchasing shares outright,
creating beneficial interests
through derivative form while
seeking to avoid disclosure
obligations triggered by direct
ownership.
9.4.7.6.1.2. Internally, Novus described CFDs
using ownership language
reflecting economic substance.
Externally, when disclosure
obligations arose, they
emphasised a derivative form to
avoid obligations.
9.4.7.6.1.3. Novus sought the strategic
benefits of beneficial ownership
(control acquisition, blocking
rights, board representation)
while avoiding the regulatory
obligations of beneficial
108
ownership (disclosure under
section 122).
9.4.7.6.2. This is exactly the manipulation section 122 is
designed to prevent. By focusing on beneficial
interest rather than legal form, section 122
ensures that parties cannot avoid disclosure by
structuring ownership through derivative
instruments while retaining economic substance
9.4.7.7. Conclusion on Context-Dependent Characterisations
The pattern of context-dependent characterisations,
ownership language internally, derivative language in
defence, demonstrates Novus understood CFDs created
beneficial interests requiring disclosure under section 122.
The internal characterisations by strategic decision-makers,
made contemporaneously for strategic purposes, are the most
reliable evidence of economic substance. That evidence
unequivocally supports the Panel's conclusion that CFDs
created beneficial interests in Mustek securities, triggering
disclosure obligations under section 122.
9.4.7.8. Contractual Acknowledgement of Duty
The Respondents' attempt to characterise CFDs as non-
disclosable derivatives is further undermined by their
own OTC Derivative Trading Client Agreement with Standard
Bank. Clause 10 of that agreement explicitly states: "You are
responsible for obtaining the necessary approvals and making
the relevant disclosures required in terms of the Listing
Requirements of the JSE in respect of any OTC Derivative
Instruments where you are a director... of the issuer of the
Underlying Assets."
9.4.7.9. Having contractually accepted this disclosure responsibility,
Novus cannot credibly argue to this Panel that its CFD
positions created no disclosure obligations under the JSE's
Listing Requirements, which incorporate the principles of
Section 122 of the Act.
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9.4.8. This confirms that the CFD structure was a vehicle for the covert
accumulation of beneficial interest in Mustek shares, deliberately
designed to circumvent the 5% disclosure threshold mandated by section
122. The legislative scheme under sections 119(1) and 122 is designed
to provide early warning of creeping acquisitions, enabling shareholders
and the market to respond to emerging control positions. The systematic
use of CFDs to accumulate a 23%+ position while avoiding any disclosure
constitutes a serious breach of the transparency principles fundamental
to the regulatory framework.
9.4.9. Statutory Interpretation: Section 158 Mandates Purposive Construction
9.4.9.1. Section 158's Direct Command to the Panel
Section 158 of the Act provides a mandatory interpretive
framework that applies directly to this determination:
"When determining a matter brought before it in
terms of this Act... the Panel... (i) must promote
the spirit, purpose and objects of this Act; and (ii)
if any provision of this Act... can be reasonably
construed to have more than one meaning, must
prefer the meaning that best promotes the spirit
and purpose of this Act, and will best improve the
realisation and enjoyment of rights."
This is not a discretionary guideline. Parliament has
commanded the Panel, using mandatory language ("must
promote", "must prefer"), to interpret provisions purposively
when making determinations under the Act36.
9.4.9.2. The interpretive methodology established in Natal Joint
Municipal Pension Fund v Endumeni Municipality [2012]
ZASCA 13 requires a unitary exercise giving simultaneous
36 Section 158(b) states: When determining a matter brought before it in terms of this Act, or making an order
contemplated in this Act the Panel (i) must promote the spirit, purpose and objects of this Act; and (ii) if any
provision of this Act, or other document in terms of this Act, read in its context, can be reasonably construed to
have more than one meaning, must prefer the meaning that best promotes the spirit and purpose of this Act, and
will best improve the realisation and enjoyment of rights.
110
consideration to language, context, and purpose. As Wallis JA
explained:
"Interpretation is the process of attributing meaning to the
words used in a document... having regard to the context
provided by reading the particular provision or provisions in
the light of the document as a whole and the circumstances
attendant upon its coming into existence."
9.4.9.2.1. Section 158's command to "promote the spirit,
purpose and objects of this Act" is consistent
with the Endumeni approach but imposes an
additional, mandatory obligation specifically
upon the Panel. Where the Endumeni
methodology permits consideration of purpose
as one factor among several, section 158
elevates purposive considerations to a position
of primacy in Panel determinations. The Panel
"must promote" the Act's purposes; this is not
discretionary but obligatory.
9.4.9.2.2. The Panel has applied this combined
methodology throughout this determination:
9.4.9.2.2.1. Language
The statutory text of sections
117(1)(b), 122, and the section 1
definition of "beneficial interest"
has been carefully analysed, with
particular attention to phrases
such as "agreement," "co-
operate," "through relationship or
otherwise," and "beneficial
interest in securities."
9.4.9.2.2.2. Context
The concert party and disclosure
provisions have been read within
the broader framework of Chapter
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5, which establishes a
comprehensive scheme for
regulating affected transactions,
protecting shareholders, and
ensuring market transparency.
The provisions cannot be
interpreted in isolation but must
be understood as components of
an integrated regulatory
architecture.
9.4.9.2.2.3. Purpose
The purposes identified in
sections 7 and 119(1),
transparency, market integrity,
shareholder protection, and
fairness, have been given
primacy in accordance with
section 158's mandatory
command. Where interpretive
choices existed, the Panel has
preferred meanings that advance
these purposes over meanings
that would facilitate
circumvention.
9.4.9.2.3. This methodology produces coherent results,
namely: the broad definition of "agreement"
(encompassing tacit understandings), the
substance-over-form approach to "beneficial
interest," and the declaratory nature of concert
party determinations all flow naturally from
applying Endumeni principles within section
158's purposive mandate.
9.5. The Panel's Interpretive Approach to Concert Party Determinations
9.5.1. This determination applies the following interpretive principles:
112
9.5.1.1. Concert party provisions must be interpreted purposively to
protect shareholders and ensure market integrity, not in a
manner that enables sophisticated circumvention through
formal legal separation;
9.5.1.2. The inquiry focuses on commercial and operational reality
rather than formal legal structure;
9.5.1.3. The statutory 'agreement to cooperate' encompasses tacit
understandings inferred from sustained patterns of conduct
demonstrating common strategic purpose;
9.5.1.4. The critical question is whether the nature and degree of
cooperation indicate parties acting as a functional unit toward
proposing or implementing an affected transaction.
9.5.2. Applied to these facts, the evidence reveals cooperation that transcended
normal commercial relationships and became constitutive of the affected
transaction itself.
9.5.3. Statutory Basis for Purposive Interpretation
This determination is not an exercise of policy discretion but a mandatory
application of the Companies Act's interpretive framework. Sections 5(1),
7, and 158 collectively require that the concert party provisions be
construed to achieve their protective purpose, not to enable evasion
through formalistic separation. The legislature intended the definition in
section 117(1)(b) to be broad, functional, and responsive to the realities
of modern capital markets. This ruling gives effect to that intention.
9.6. The Implausibility of Independence and Information Barriers
9.6.1. The evidence establishes that Numus Capital's brokerage operations
possessed material non-public information concerning Novus's
accumulation strategy, while its regulated hedge fund traded the same
security with significant temporal alignment. The absence of any
documented Chinese walls, compliance protocols, or personnel
separation to manage this structural conflict of interest renders the
claimed operational independence between the brokerage and
proprietary arms highly implausible.
113
9.6.2. This evidentiary gap, combined with the precise alignment of trading
patterns, raises serious questions about the effectiveness of information
barriers within Numus.
10. PROCEDURAL MATTERS
10.1. Confidentiality Claim Under Section 212
10.1.1. In the course of this investigation, Numus Capital asserted that certain
information, including trading data and correspondence, was confidential
and subject to a general confidentiality undertaking from the Panel and
the Inspector.
10.1.2. Section 212 of the Companies Act, 2008, establishes a specific statutory
process for such claims. This process requires:
10.1.2.1. A claimant to support their assertion with a written statement
explaining why the information is confidential [s212(2)]; and
10.1.2.2. The Panel to consider the claim and make its own decision on
the confidentiality of the information, providing written reasons
[s212(3)].
10.1.3. The Panel has duly considered Numus's general claim. The claim is
deficient as Numus failed to provide the required written statement
justifying confidentiality under section 212(2). Consequently, the claim
amounts to a bald assertion unsupported by the statutory process.
10.1.4. In exercising its discretion under section 212(5), the Panel finds that even
if a properly substantiated claim had been made, the public interest in
transparency and market integrity would overwhelmingly outweigh any
private interest in non-disclosure in this instance. The information is
central to a ruling on a mandatory offer and a finding of acting in concert,
matters of critical importance to market participants and shareholder
protection under section 119(1) of the Act.
10.1.5. The Panel therefore determines that the information is not confidential for
the purposes of this ruling. The Panel's prior administrative undertakings
are subject to and superseded by its statutory duties and the requirements
of the Act. The information has been taken into account and is disclosed
114
herein to the extent necessary to provide a reasoned and transparent
basis for this determination.
10.1.6. The Panel's prior undertakings were given subject to the requirements of
the Act and the public interest. They do not operate as a bar to disclosure
where the statutory conditions for transparency are met.
10.1.7. Publication and Public Document Status
For the avoidance of doubt, the Panel makes the following explicit
determinations regarding the confidentiality status of this ruling and the
information contained herein:
10.1.7.1. None of the information contained in this ruling is confidential
for purposes of section 212;
10.1.7.2. This determination is a public document that must be
published in its entirety to fulfil the Panel's mandate under
section 119(1);
10.1.7.3. The public interest in transparency and market integrity,
particularly regarding concert party determinations affecting
mandatory offers and shareholder rights, overwhelmingly
outweighs any private interest in non-disclosure;
10.1.7.4. All parties are on notice that this ruling will be published on the
Panel's website, Mustek's website, and announced via SENS
within 3 business days of delivery.
10.1.8. The Panel's determination on confidentiality is binding and conclusive.
Any subsequent attempt by any party to restrict publication, circulation, or
disclosure of this ruling or any portion thereof based on confidentiality
claims would be:
10.1.8.1. Inconsistent with this express determination made under
section 212;
10.1.8.2. Contrary to the statutory framework requiring transparency in
affected transactions;
10.1.8.3. Undermining of the regulatory process and the Panel's
mandate; and
115
10.1.8.4. Subject to enforcement action to ensure compliance with
publication obligations.
10.1.9. The Panel notes that confidentiality concerns, if any existed, could have
been addressed through proper substantiation under section 212(2),
reasonable redaction proposals, or appropriate protective measures. The
general assertion of confidentiality without supporting justification,
followed by failure to engage meaningfully on specific confidentiality
issues, forfeits any claim to confidential treatment. Parties cannot avoid
regulatory transparency by making bald assertions of confidentiality and
then refusing to participate in the statutory process for evaluating such
claims.
10.2. Appeal Rights
Any person affected by this ruling may apply to the Takeover Special Committee
for a hearing regarding the ruling within:
10.2.1. 5 business days after receiving this ruling; or
10.2.2. Such longer period as may be allowed by the Takeover Special
Committee on good cause shown, as provided in Regulation 118(8).
10.3. Publication And Effective Date
10.3.1. This ruling shall be published on the Panel's and Mustek's websites within
3 business days of issuance and announced on SENS via Mustek's ticker
for immediate release, to ensure full market awareness of the concert
party determination and its implications.
10.3.2. All parties must announce this determination to shareholders within 3
business days of receipt, with specific, comprehensive reference to the
concert party finding, regulatory implications, potential price adjustments,
and ongoing compliance requirements.
10.3.3. This ruling takes immediate effect upon delivery to the parties and
establishes binding regulatory determinations affecting all future conduct
and compliance obligations.
10.3.4. All market participants, professional advisors, and regulatory bodies are
put on notice that this ruling demonstrates the Panel's approach to concert
party determinations involving structural integration, systematic
116
coordination, and the importance of substance over form in regulatory
analysis.
11. FINAL OBSERVATIONS AND REGULATORY COMMITMENT
11.1. This matter represents a sophisticated scheme that exploited formal legal
separation through verbal-only instructions, shared premises under an oral sub-
lease, and anticipatory proprietary trading to conceal operational unity,
fundamentally undermining market integrity.
11.2. Observations on the Pattern of Explanations
This matter reveals how formal legal separation, when systematically undermined
by informal operational practices, can be deployed to obscure substantive
coordination. The evidence demonstrates a consistent pattern: whenever
documentary evidence contradicted the Respondents' position, explanations were
offered that required accepting remarkable coincidences rather than
acknowledging the documented coordination. The Respondents' explanations for
the documented patterns of coordination require the acceptance of a series of
remarkable coincidences:
11.2.1. That a Mustek-specific mandate created 14 months pre-offer was merely
"routine preparation," despite no comparable mandate existing for other
clients.
11.2.2. That the hedge fund's anticipatory trading was "independent analysis,"
despite commencing after the mandate was in place and aligning perfectly
with the client's subsequent strategy.
11.2.3. That the systematic shift to buying only at R13.01 was "market-driven,"
despite occurring months before the offer and establishing the exact offer
price to the cent.
11.2.4. That the "independent client base" trading in Mustek shares coincidentally
consists almost entirely of the Offeror's own directors and their families.
11.2.5. The Respondent submitted a formal sub-lease agreement to evidence
independence. However, the Panel must assess the substance of the
relationship over its form. The evidentiary record (specifically, the email
correspondence regarding the lease negotiation) demonstrates that Mr
Benatar negotiated the terms directly with the landlord on behalf of the
117
Offeror's director, thereby bypassing the nominal sub-lessor. This
conduct, combined with the admitted sharing of a single office suite,
indicates a relationship of trust and common purpose that exceeds the
scope of an ordinary commercial tenancy or independent brokerage
arrangement.
11.2.6. That the sworn denial of knowledge of hedging mechanics (Affidavit of I.
Benatar, 02 Dec 2025, Para 28) was an innocent error, despite being
directly contradicted by the contemporaneous email record of the 17 July
2024 strategy meeting (SBG Securities Email, 'FYI Malc. Hi Zac...').
11.2.7. The cumulative improbability of these coincidences, when executed by
sophisticated financial professionals, leads the Panel to the only
reasonable inference: deliberate coordination followed by systematic
concealment.
11.2.8. The Respondent's reliance on standard ISDA and mandate
documentation is undermined by the operational reality evidenced in daily,
granular allocation emails and specific conversion instructions, which
demonstrate an unwritten consensus to manage the stake accumulation
jointly.
11.2.9. The Panel notes that the Respondent's sworn affidavit dated 02
December 2025 explicitly denied knowledge of the specific hedging
arrangements of the Prime Broker. This denial is directly contradicted by
the written confirmation from SBG Securities detailing the 17 July 2024
meeting, at which the arrangements were not only discussed but also
agreed upon. Where a party's sworn version is contradicted by objective
third-party documentation, the Panel is entitled to draw adverse
inferences regarding the transparency of their broader defence.
11.2.10. The Respondent relies heavily on standard ISDA and mandate
documentation to assert a 'passive' client relationship. However, the
Panel has reviewed substantial contemporaneous correspondence
('Allocation Emails') characterised by a high degree of informality, speed,
and manual intervention. This daily, granular direction of the back-office
settlement process by the Respondent is inconsistent with a passive
arm's-length mandate. Under Section 6 of the Companies Act, the Panel
places weight on this operational reality, which evidences an unwritten
consensus to manage the accumulation of the stake jointly.
118
11.3. Throughout this matter, the Respondents maintained formal structures that created
an appearance of proper governance and arm's-length dealing, while the
operational reality reflected something entirely different:
Formal Structure Operational Reality
Board approval sought before trading. First trade executed before any
director responded.
Wright is designated as the authorised All instructions from Zetler; Wright
representative in the formal documents. received only confirmations.
Written mandate with Novus Packaging. Verbal-only instructions through
private email channels.
Separate legal entities Single operational base at Suite 704.
(Novus/Numus/Aktiv).
"Non-discretionary" brokerage. Hedge fund trading anticipatorily in
the same security.
ISDA cash-settlement provisions. Physical settlement of 15+ million
shares.
CFDs are described as "derivatives" to CFDs were described to the board as
the Panel. "shareholding" and "equity".
Dated at Johannesburg this 24 day of December 2025
Zano Nduli
Deputy Executive Director
Takeover Regulation Panel
119
SCHEDULE 1: CHRONOLOGY OF COORDINATED CONDUCT
Date Event Description Evidence Source
30 Aug 2023 Mustek-Specific Numus/Novus Adrian Zetler Affidavit
Mandate Packaging mandate 11-11-2025
concluded.
9 Apr 2024 Hedge Fund Numus Hedge Fund Annexure 1 - Numus
Accumulation Starts begins buying Hedge Fund Trades
Mustek.
23 May 2024 First Novus Trade & 1.6m share purchase Contract Note (2).pdf
Board Proposal executed; Zetler & Combined
seeks board Annexures
authority.
17 Jul 2024 SBG/Numus Risk Agreement to cap email of 17 July 2024
Meeting CFDs at 2.4m shares, from Nick Higham
convert excess. (SBG Securities) to
Isaac Benatar
22 Jul 2024 Massive CFD Unwind Novus sells 7.9m Contract Note
CFD units. (14).pdf
23 Jul 2024 SBG S122 Disclosure SBG discloses MST Disclosure
disposal, holding Document 23 July
drops to 0.02%. 2024.pdf
Sep-Nov 2024 Price Pegging at All Novus purchases Contract Notes 15,
R13.01 occur at R13.01. 17, 18
12 Nov 2024 CFD-to-Equity Numus instructs Annexure 4 (003).pdf
Conversion "convert all MST to
stock."
28 Nov 2024 R15.41 Premium Numus Hedge Fund Annexure 1 - Numus
Purchase buys 3,000 shares at Hedge Fund
R15.41. Trades.pdf
SCHEDULE 2: KEY EVIDENTIARY DOCUMENTS
Annexure Ref Description Source Reference (Party
Submission)
A The "Risk Meeting" Record Annexure B to the Affidavit of
(17 July 2024) Adrian Zetler dated 11
November 2025.
(Email from SBG to Benatar)
B The Conversion Instruction Annexure 4 to the Affidavit of
(12 Nov 2024) Isaac Benatar dated 21
November 2025.
(Email: "convert all MST to
stock")
C SBG Disposal Notice (23 July Annexure F1 to the Affidavit of
2024) Lester Bailey (Peresec) dated
8 December 2025.
(Form TRP 121.1)
D Evidence of Price Annexure A3 to the Affidavit of
Engineering Adrian Zetler dated 21
November 2025.
(Trade Schedule showing
shift to R13.01)
E Hedge Fund Trading Data Annexure 1 to the Affidavit of
Isaac Benatar dated 11
Showing R15.41 purchase)
November 2025.
F Evidence of Captive Client Annexures 3, 6, 11, and 12 to
Base the BVPG Letter to the Panel
dated 21 November 2025.
(Mandates for Aktiv, A2
Subco, NPort)
G Evidence of Operational Email Bundle submitted with
Integration the BVPG Letter to the Panel
dated 31 October 2025.
(Allocation Emails / Deal
Recaps)
121
H OTC Mandate (Director Annexure C to the Affidavit of
Liability) Adrian Zetler dated 11
November 2025.
(Clause 10)
I Novus Internal Board Annexures A15 and A16 to
Documents the Affidavit of Adrian Zetler
dated 26 November 2025.
(Mustek Plan & Minutes)
J The Lease Invoices Annexure 8 to the BVPG
Letter to the Panel dated 21
(Shared Premises)
November 2025.
Date: 07-01-2026 08:06:00
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