Case  CCT 344/24
[2026] ZACC 40

Hearing Date: 17 February 2026

Judgement Date: 09 October 2026

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 9 October 2026, the Constitutional Court handed down judgment in an application for leave to appeal a decision of the Supreme Court of Appeal (SCA), hearing a matter on appeal from the High Court of South Africa, Western Cape Division (High Court).

This application was the culmination of some 16 years of continuous litigation by Grancy Property Limited (Grancy) against Mr Gihwala, the Dines Gihwala Family Trust (DGFT) and Mr Manala, to obtain an accounting from them to show how its funds were utilised in the investments it participated in, and to quantify its claims against them. The application before this Court concerns two investments - the Cape Gannet and the Scharrig investments.

In relation to the Cape Gannet investment, Grancy’s case was that this investment was concluded by Messrs Gihwala and Manala contrary to the agreement known as the Spearhead agreement, as it was without Grancy’s consent. Furthermore, Grancy alleged that Messrs Gihwala and Manala breached their fiduciary duties and claims for disgorgement of the secret profits earned by them since the transaction was concluded without its consent.

Regarding the Scharrig investment, Grancy’s case was that the debt owed was determined after a statement and debatement process, and as such, it was unliquidated. Grancy argued that based on this, the in duplum rule did not apply to this debt.

The High Court rejected Grancy’s claim for the disgorgement of the secret profits holding that the central principle underlying this claim is to ensure that a fiduciary’s interests do not conflict with those of the principal. It held that there was no conflict between the interests of Grancy and those of Messrs Gihwala and Manala. The High Court held that, as Grancy was aware of the investment, the profits were not “secret”. The High Court rejected Grancy’s claim that the debt arising from the Scharrig investment was unliquidated and, therefore, concluded that section 2A(5) of the Prescribed Rate of Interest Act 55 of 1975 (PRI Act) does not apply. The High Court refused to permit the relaxation of the in duplum rule, either generally or in relation to statement and debatement of account matters.

The SCA agreed with the High Court’s finding that Grancy’s claim regarding the Scharrig investment was for liquidated amounts as it was either quantified in the particulars of claim or capable of prompt and speedy ascertainment. The SCA further held that the interest claimed by Grancy was arrear interest which is subject to the in duplum rule. The SCA concluded further that it was impermissible to introduce the argument on the development of the common law at the end of the trial. The SCA cautioned against courts intruding into the realm of the Legislature when decisions of law reform are to be made. On the disgorgement claim, the SCA upheld the High Court’s decision on the basis that the purpose of a claim of this nature is to ensure that a fiduciary’s interests do not conflict with those of the principal. Crucially, the SCA found that there was no conflict between Grancy’s interests and those of Messrs Gihwala and Manala, and therefore there was no breach of fiduciary duties.

In a unanimous decision penned by Mlambo DCJ (Dambuza J, Kollapen J, Mhlantla J, Nuku AJ, Opperman AJ, Rogers J, Savage J and Tshiqi J concurring) this Court found that Grancy failed to establish that the Court’s jurisdiction is engaged in relation to both claims.

In relation to the Cape Gannet investment (secret profit claim), Grancy requested this Court “to correct the SCA’s misapplication of the law pertaining to secret profits”. In Grancy’s pleadings it vacillated between arguing that the SCA misapplied the law, and that it incorrectly applied or misinterpreted it. The Court noted that these wavering lines of argument continued in Grancy’s oral submissions, putting the Court in the undesirable position of deciphering what Grancy’s argument actually was.

The Court found that the SCA did not misconstrue, misstate or reshape the law on secret profits and the no-conflict and no-profit rules. Disgorgement of profits under the no-conflict rule arises when a conflict of interest is proven between the fiduciary’s personal interests and those of the principal. The Court noted that, in its founding affidavit, Grancy stated that “the key question is the proper remit of the no-conflict of interest rule”. Furthermore, the Court found that the SCA’s finding that the interests of Grancy and Messrs Gihwala and Manala were aligned is not a statement of law, but a factual finding. Finally, the Court held that an argument that the SCA conflated the no-conflict rule with the no-profit rule cannot be sustained. The Court therefore concluded that its jurisdiction was not engaged regarding the disgorgement claim.

The Court observed that Grancy’s submissions on the Scharrig investment similarly evinced several inconsistencies. Grancy initially submitted that the SCA made an “error of law” in mischaracterising the nature of its claim as liquidated when, in its view, it was plainly unliquidated. Grancy then averred that the SCA made an “erroneous application of the law”, in that its claim was for an unliquidated debt as shown by the oral and expert evidence, which indicated that the quantification of the debt depended on a number of unknown factors and required determination by the Court. Finally, Grancy averred that the SCA erred in misconstruing the notion of a claim for an unliquidated amount, and thus erroneously denied Grancy the benefit of section 2A(5) of the PRI Act.

The Court subsequently held that the SCA, in finding that the claims were “capable of prompt and speedy ascertainment”, appreciated the correct legal standard to apply in establishing whether a debt is liquidated or unliquidated, and that, whether a debt is capable of speedy ascertainment is a decision that is left to the discretion of the trier of fact in each particular case, resulting in an inherently factual inquiry. The Court reiterated its reluctance to interfere with factual findings made by lower courts. The Court, therefore, found Grancy’s submission that the SCA misconstrued its claims as liquidated, as unsustainable, and held that it did not meet the required threshold for engaging the jurisdiction of the Court.

On the alternative argument of the development of the common law relating to the in duplum rule, the Court stated that it is so that in cases involving the development of the common law, this Court’s constitutional jurisdiction is engaged. However, although argument was heard in the High Court and the SCA, the development of the common law was not pleaded. In the absence of pleading the development of the common law in the High Court, the Court stated that the respondents were not forewarned of the case they had to meet, which would result in prejudice to the respondents should this argument be entertained. Further, the High Court declined to develop the common law and so did not shape the development in any way. The Court noted that the proper pleading of the development of the common law was important in the present case, and Grancy’s proposed formulation could place a creditor in a potentially abusive position, as it can indefinitely allege that it has not been furnished with a full account with no suggestion or discussion of a temperance of this position.

The Constitutional Court made the following orders. Leave to appeal was refused and the applicants were ordered to pay the first, second and fourth to eighth respondents’ costs in this Court, including the costs of two counsel where so employed.

The Full judgment  here