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Why your dispute resolution clause is as critical as the deal itself

The dispute resolution mechanisms in complex commercial agreements can be as important as the deal itself. Well thought-out dispute resolution mechanisms ensure strong safety nets that benefit the commercial interests of all parties to a transaction.

A dispute resolution clause in an agreement is more than a boilerplate provision; it is a critical risk allocation tool that deserves the same attention as the substantive terms of the agreement. A defective dispute resolution clause can have unintended and costly consequences, whereas a well-negotiated and carefully crafted clause saves costs, time and resources.

The clause should contain broad language that covers disputes ‘arising out of or relating to’ the agreement. This ensures it will apply to all possible issues relating to the contract’s formation, validity, performance, interpretation and termination. Non-contractual obligations, such as delict or misrepresentation, may also be included in the clause. A clear trigger notice, such as a formal ‘Dispute Notice’, should be included to start the clock on any dispute resolution procedural timelines.

The level of control that should be exercised in the event of a dispute must also be considered. Parties should decide at the beginning of the transaction whether institutional (administered) arbitration or ad hoc (self-administered) arbitration is best suited to the transaction type and value.

Administered arbitration takes place under the rules and using the procedures of a particular organisation, which provides institutional oversight and structure. Some examples include the Arbitration Foundation of Southern Africa (AFSA), the London Court of International Arbitration (LCIA), or the International Chamber of Commerce (ICC). In contrast, ad hoc proceedings, which commonly take place under the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, are flexible but need more active management by the parties and/or the appointed arbitral tribunal.

All parties must also be aware of their interim relief options. Arbitral tribunals and courts can act to protect a position before a final award is rendered, but the choice of forum and timing matter.

The cost and speed of arbitrations are another consideration. Parties to a transaction must take care when including a tiered dispute resolution clause that calls for escalating steps, such as negotiation, mediation or expert determination before arbitration. While these procedures can facilitate early dispute resolution and preserve relationships, each step must be clear and time-bound and should not be used to delay a referral to arbitration. The number of arbitrators, the venue, the applicable rules, and the appeal mechanisms all impact the duration and cost of the proceedings.

The seat of the arbitration determines the procedural law governing the proceedings and the supervisory court. This, together with the nationality and expertise of the arbitrator(s), will have a significant bearing on the neutrality, or perceived neutrality, of the process.

South African courts are supportive of arbitration, and our country provides a reliable, pro-enforcement environment for international commercial disputes. It would be wise to consult jurisdiction-specific experts when considering other possible arbitration seats or when attempting to enforce an award in another jurisdiction.

An award that is issued in one party’s favour is only the first step; the enforcement of the award is critical. When negotiating a dispute resolution clause, bear in mind the legal frameworks, court attitudes and asset locations in each relevant jurisdiction. A key consideration is the location of the counterparty’s assets and if the chosen seat supports enforcement under the New York Convention. The Convention requires that its member states recognise and enforce foreign arbitral awards, ensuring they receive similar treatment to domestic awards.

Under the Convention, the grounds on which a court may refuse recognition and enforcement are limited, reinforcing the finality and cross-border reliability of international arbitration awards. The real question will then be how expansively local courts interpret these grounds and whether they adopt a pro-arbitration stance.

A commercial agreement is only as strong as its ability to survive a dispute. By treating a dispute resolution clause as a primary commercial term rather than a secondary legal requirement, businesses can ensure that if a dispute arises, it is considered a hurdle that may be overcome through procedural orderliness, rather than a deal-breaker.

Jonathan Barnes is a Partner and Samantha Mason a Senior Associate | Bowmans

This article first appeared in DealMakers, SA’s quarterly M&A publication.

PODCAST: No Ordinary Wednesday | The economics of tourism in SA

Listen to the podcast here:

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South Africa’s growth challenge is shifting from reform to delivery. Tourism is part of that test.

International arrivals rose 12.3% in the first half of 2026. And phase III of the government-business Partnership now puts the sector firmly on the growth agenda, with a focus on air access, visas, safety and infrastructure.

On No Ordinary Wednesday, Jeremy Maggs and Investec economist Lara Hodes examine what it will take to turn that momentum into investment, jobs and sustained growth.

Listen to the full conversation to find out more. Read more on www.investec.com/now

Hosted by seasoned broadcaster, Jeremy Maggs, the No Ordinary Wednesday podcast unpacks the latest economic, business and political news in South Africa, with an all-star cast of investment and wealth managers, economists and financial planners from Investec. Listen in every second Wednesday for an in-depth look at what’s moving markets, shaping the economy, and changing the game for your wallet and your business.

Also on Apple Podcasts, Spotify and YouTube:

Stay invested; stay protected

International Titans Basket Ltd provides diversified international equity exposure with built-in capital protection, helping investors navigate periods of heightened market volatility. This dollar-denominated listed share, promoted by Investec, offers a measured way to stay “in the game” while staying covered.

Investors entered 2026 hoping for greater stability, but volatility has remained a defining feature of markets. Investors have had to contend with sharp swings in sentiment driven by geopolitics, inflation concerns and shifting growth expectations. However – zooming out from daily shifts – the trendlines have been extraordinarily resilient.

In May, Reuters (citing LSEG data) reported that “stunning profit strength” was pushing US markets, writing: “…S&P 500 companies are on track for their highest quarterly earnings growth in more than four years.” By June, the S&P 500 had added 9% year to date, reports finance-specialist publication The Motley Fool. “For context,” they continue, “the S&P 500 had added less than 2% at this point in 2025”.

It hasn’t been a smooth upward journey, though. The same index slipped into almost correction territory in Q1, and by late June, Reuters writes: “Concerns around debt-backed spending by [AI] hyperscalers and ​mounting fears of a more hawkish Federal Reserve have fuelled the market downturn this week [24 June] that has erased more than $1 trillion in market value from the Nasdaq 100.”

Taking money off the table? A more measured perspective

CNN’s Fear-Greed index – used to gauge the mood of the market stock, what’s driving market movements and whether stocks are fairly priced – places fear firmly in the driver’s seat. We see the same nerves in retail investors. According to the Q2 2026 Quarterly Market Perceptions Study from Allianz, “just one in four (25%) Americans think it is a good time to invest in the market right now, down from 34% last quarter”. Some 62% report worrying that “a major recession is right around the corner”.

As the adage goes, ‘it’s not about timing the market, but about time in the market’. Periods of market volatility can tempt investors to reduce their exposure. However, reacting to panic can come at the expense of long-term investment outcomes. Hartford Funds produces annual research on the impact of mistiming and market exits. Their 2026 report – using Morningstar data of the S&P 500 Index 1996-2025 – finds that “76% of the stock market’s best days have occurred during a bear market or during the first two months of a bull market”.

Bloomberg data provides a similar insight into the effect of time invested, comparing cash (via money market account) to equity exposure (with the MSCI All Country World Index Net Total Return as proxy for equities). The graph below shows the value of $100 invested each year in global equities (total of $2,100 invested since April 2006). Even with the worst timing – buying at the highest point each year – the cumulative investment value of equities is higher than the return one would see having put $100 into a money market fund at the start of each year.

Building in resilience

A global investor insights survey from Schroders – conducted in Q2 – found 85% of respondents (wealth managers, intermediaries, and institutional investors) were expecting “greater market volatility in the next year”. These professionals were “building more resilience into their portfolios with a greater emphasis on diversification (84%) and downside protection (83%)”.

“Traditionally a 60/40 mix of equities and bonds was seen as an ‘all weather’ approach to building a balanced portfolio. Bonds have tended to perform in opposition to equities,” says James Cook, Investec Structured Product Specialist.  “But that’s less clear cut today. If we look at the data from 2022 onwards, global equities and global bonds seem to move in the same general direction. This begs the question whether a ‘traditional balanced portfolio’ provides sufficient diversification.”

Balancing exposure and safety nets

Structured products with capital protection and defined risk-return profiles offer a compelling diversification tool for investors and their clients, combining downside protection with greater certainty over investment outcomes.

International Titans Basket Ltd (ITBL) is a listed, Guernsey-incorporated company for which Investec Bank Limited acts as investment adviser – and is an example of one such structured product. Fully externalising the investment in USD, the company purchases financial instruments that create a structured product payoff profile for investors.

An investment in ITBL provides exposure to the growth of a broad-based basket of equity indices[1], and will return the growth of the index basket multiplied by a participation rate of 125%[2]. The index basket growth is capped at 40% – for a maximum return of 50% in USD (i.e., 40% x 125%). The term of the investment is five years and one month, with the potential to exit the investment early under normal market conditions.

With 100% capital protection[3] at maturity in USD, this offering reduces downside risk from future equity market shocks while providing a predefined return profile with capped upside participation.

Layered protections

ITBL achieves capital protection by investing in a credit-linked note issued by Investec Bank Ltd, with additional credit linkage to the subordinated Tier 2 debt of large international investment-grade banks. At maturity, the proceeds from this debt instrument are used to repay 100% of the company’s capital, irrespective of equity market performance. Capital is at risk only in the event of a default or credit event affecting the issuer or reference entities.

While risk cannot be eliminated, this structure replaces a portion of equity market risk with investment-grade credit risk, reducing downside equity exposure.

For more information, visit our website. Applications close on 16 October 2026 with a minimum investment amount of USD 14,000.

For full regulatory disclosures, please click here

Watch Japie Lubbe present key slides from the product presentation on YouTube:

Or listen to the podcast here:


  • [1] S&P 500 (35% weighting), Euro Stoxx 50 (25% weighting), Nikkei 225 (20% weighting), FTSE 100 (20% weighting), and iShares MSCI Emerging Markets ETF (10% weighting)

[2] The participation is dependent on market conditions on trade date (the current participation is 125%).

[3] Structured products provide capital protection through the assumption of credit risk. They are intended for sophisticated investors who understand this risk and are willing to take it. There is credit risk on the debt issuer, each reference entity (the credit risk relates to the subordinated debt issued by such reference entities), and the equity investment provider(s). A default by any such party(ies) may cause the value of such investment of the company to be reduced or to become zero, which may adversely affect the share price or cause the share to become worthless.

A cup of revolution please, no sugar

Almost every empire in history has feared the same thing. It isn’t an army; it’s a room full of caffeinated people with contrarian opinions.

The story of coffee begins with goats.

The goats belonged to an Ethiopian goatherd named Kaldi, sometime around the ninth century (or so the story goes). Kaldi noticed his animals were behaving oddly – and by oddly I mean manically jumping all over the hillside – after nibbling the bright red berries from a certain shrub. Curious, Kaldi had a taste, felt the same jolt of energy, and immediately carried a handful of berries off to the nearby monastery to inform them of his miracle find.

A disapproving monk flung them into the fire in disgust, only for the characteristic roasting aroma to fill the room. The world’s first cup of coffee was brewed shortly thereafter. Our mornings have never been the same again.

It’s a wonderful story. It’s also almost certainly complete nonsense.

For one thing, the miraculous tale of Kaldi the caffeinated goatherd doesn’t appear anywhere in writing until 1671, some eight centuries after it supposedly happened, when a Roman scholar named Antoine Faustus Nairon worked it into a treatise. By then it had acquired all the hallmarks of a legend: the cavorting goats, the skeptical monk and the fortuitous fire. The only thing it was missing was evidence that it actually happened.

The truth is duller by comparison. Coffee cultivation and the practice of brewing the roasted beans emerged in Yemen around the fifteenth century, when Sufi monks drank it to stay awake through their night prayers. The true origin is less goat-inspired hillside epiphany, and more practical clergy looking for a way to keep their eyes open. 

The tired monks are less fun to imagine than the goats, but they do remind us that coffee has served a very particular purpose from the very beginning. It kept people awake, alert, and – crucially – talking.

Ban the bean

One thing about a substance that both sharpens the mind and loosens the tongue: people in charge tend not to like it.

In 1511, the governor of Mecca, a man named Khair Beg, banned coffee outright. His reasoning was that coffee was being consumed in coffeehouses, and coffeehouses were where people gathered. Where people gathered and drank coffee, they talked, and when they talked, they occasionally decided that the governor was doing a poor job.

Coffee, according to Khair Beg, stimulated the kind of radical, unsupervised thinking that a governor who wants to keep his job needs to nip in the bud.

Sadly for him, his ban didn’t last; the Sultan overruled him, declared coffee sacred, and (according to legend) had Khair Beg executed. This set the pendulum swinging. For the next two centuries, coffee would be banned, unbanned, exalted and re-banned across the Ottoman empire.

Sultan Murad IV of Istanbul took the anti-coffee stance further than anyone. In the 1630s, he banned coffeehouses across the empire, claiming that they were breeding grounds for political dissent and idle plotting. Enforcement was famously brutal, and Murad is said to have prowled the streets of Constantinople himself in disguise, carrying a giant broadsword that he used to behead anyone caught drinking or roasting coffee.

Even under the threat of (rumoured) broadsword-induced death, the bans never really stuck. People just moved their coffee drinking underground.

An ocean away, the tea-loving English caught the same fever. When coffeehouses spread through seventeenth-century London, they earned the nickname “penny universities”. For the price of a single penny, anyone could buy a cup of coffee, sit in a coffeehouse and argue for hours about politics, science and business with whichever academic or philosopher wandered in.

Lloyd’s of London, which is now one of the largest insurance markets on earth, began as Edward Lloyd’s coffeehouse, a cosy spot where ship-owners and merchants would gather to gossip about which vessels had sunk. The London Stock Exchange has similarly caffeinated roots in Jonathan’s Coffee House.

King Charles II saw all this chatter and drew the same conclusion as the departed Khair Beg. In 1675, he issued a proclamation shutting down the coffeehouses, condemning them as places where “idle and disaffected persons” spread scandalous reports about his government. It was a thinly-veiled admission that the king was afraid of what his subjects were saying about him over coffee.

The public – no doubt jonesing for their caffeine fix – made it clear that they were having none of it. Within 11 days, the king was forced to back down and the coffeehouses reopened. Baristas: 1, Royalty: 0.

Perhaps you can outlaw a bean, behead a coffee roaster, brick up a coffeehouse or draft a proclamation in your most threatening royal font. What you cannot do is ban a conversation – and coffee, inconveniently for the people in charge, has always been just the excuse for people to sit down and have one.

Victory, served piping hot

Three centuries later, the once-seditious beverage has completed its journey from feared contraband to the most respectable drug on the planet.

The world now drinks over 2.25 billion cups of coffee every single day, according to the International Coffee Organization. The global coffee market is valued around $250 billion (estimates vary, but all of them are enormous), a figure that would have made every governor, sultan or king who ever tried to ban it weep tears of lost tax revenue. In the United States, 67% of American adults now drink coffee each day, with consumption at a 20-year high – an average of three cups per person, per day.

The world’s most devoted drinkers, though, are the Finns: Finland consistently tops global per-capita consumption at around 12 kilograms of coffee per person per year (an average of over 4 cups per day).

And the market is still climbing, with projections that it will reach nearly $380 billion by 2033, driven by the twin engines of specialty coffee and the fast-growing markets of Asia, where China’s coffee consumption is expanding rapidly among a burgeoning urban middle class. 

There is a certain poetry in it, isn’t there?

It was never really the taste. It was caffeine and an excuse to sit down together, stay awake, and talk. Every ruler who tried to stamp it out understood that instinctively. Every one of them lost.

Khair Beg lost. Charles II lost. Sultan Murad IV lost. The berries won.

This is worth remembering the next time you’re in one of coffee’s modern temples. It could be your local gossip venue with familiar faces, or a garagiste roastery, or one of the recognisable brands.

It looks so domesticated now, as a place to answer emails and queue for flat whites. But you’re sitting in the direct descendant of what was once the most feared room in the world – the penny university, the den of dissidents, the place governors executed men to shut down.

The censors were right to be afraid, in the end. They just couldn’t have imagined that the revolution they were trying to prevent would win so completely that we’d stop noticing it was ever dangerous at all. And since I believe that all goats are inherently anarchists, I think Kaldi’s goats, if they were ever real, would be delighted.

Forward this to your boss the next time your coffee break is denied. And if you are that boss, give it careful thought – do you rank your job security above kings and sultans?

About the author: Dominique Olivier

Dominique Olivier uses her love of storytelling and ideation to help brands solve problems.

Her first book, Lessons from Loss, has been published by Penguin Random House.

She is a weekly columnist in Ghost Mail and collaborates with The Finance Ghost on Ghost Mail Weekender, a Sunday publication designed to help you be more interesting.

You can learn more about her work at dominiqueolivier.com and she can be reached on LinkedIn here.

African M&A Analysis H1 2026 (excluding South Africa)

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Africa’s M&A market remained active in the first half of 2026, although dealmaking slowed compared with the same period last year. Against a backdrop of heightened geopolitical uncertainty and a more cautious global investment environment, investors have become more selective, but the underlying appetite for Africa’s longer-term growth opportunities remains evident.

DealMakers AFRICA recorded 166 M&A deals across the continent, excluding South Africa, during H1 2026, with a combined value of US$5,58 billion. This represents a 10% year-on-year decline in deal value and a c.13% decline in deal volumes.

Source: DealMakers Online

West Africa remained the standout region, with 55 transactions accounting for one-third of all reported activity. East Africa followed with 39 deals and North Africa with 34. Nigeria led the individual country rankings with 39 transactions, followed by Kenya with 25, Egypt with 18 and Morocco with 15.

While many investors are taking a more cautious approach, Africa’s natural resources continue to draw strategic and opportunistic capital. Upstream energy and mining were notable areas of activity, with transactions in Angola, Ghana and Equatorial Guinea contributing a combined $1,21 billion. This resilience in resource-related dealmaking reflects the continued strategic importance of Africa’s commodities and energy assets, particularly as global investors position themselves for the energy transition and growing demand for critical resources.

Private equity remained an important component of Africa’s deal landscape, accounting for 76 transactions in the first half of the year. However, the longer-term trend points to a more challenging environment: private equity deal numbers have fallen from 136 transactions in 2023. The decline reflects not only greater investor caution but also the increasingly difficult exit environment facing private equity investors on the continent. For managers, deploying capital remains only one part of the equation; creating viable exit routes is becoming equally important.

Source: DealMakers Online

Africa’s entrepreneurial ecosystem is showing similar resilience. According to Africa: The Big Deal, fintech remained the leading sector for start-up funding, followed by Logistics & Transport. Agri & Food, Waste Management, and Energy & Water completed the top five. Perhaps more significant is the changing funding mix. Equity and debt are now almost evenly balanced, a notable shift from 12–18 months ago when African start-up funding was considerably more equity-driven.

Short-term caution should not obscure the structural drivers that continue to underpin Africa’s investment case. Rapid urbanisation, abundant natural resources, the energy transition and the expansion of the middle class all point to significant long-term opportunities. For investors willing to look beyond the immediate uncertainty, sectors such as ESG, fintech and value-added financial services remain areas with considerable potential.

The latest magazine can be accessed and downloaded the DealMakers AFRICA website

Who’s doing what this week in the South African M&A space?

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Standard Bank is reportedly in early-stage negotiations to acquire a minority stake in the Nigeria-focused fintech platform OPay. This move aims to deepen the bank’s footprint in the rapidly expanding African digital payments and mobile-lending sectors. The potential investment comes as OPay prepares for its initial public offering on Wall Street, targeting a valuation of c.US$4 billion.

Balwin Properties has received shareholder approval for the PIC-backed buyout and delisting of the business. The deal announced in May this year, offered shareholders R4.35 per share implying a value for the company of R2,3 billion. The deal is expected to be implemented by 19 October with delisting from the JSE and A2X effective October 20, 2026.

Combined Motor Holdings (CMH) is to acquire various properties the company currently rents from related parties. CMH will acquire 13 properties in Gauteng and KwaZulu-Natal for R745 million – a 4.5% discount to the value attributed to the assets in April 2026.

KAP has restructured its October 2025 Southern Cape forestry transaction due to the non-fulfilment of original merger conditions. Under the newly revised, binding agreement, PG Bison Southern Cape will now be sold to Cape Pine Investment Holdings (CPIH). This restructured deal gives CPIH an 88.68% stake in MTO Forestry. CIPH will, in turn, be a wholly-owned subsidiary of Cape Forest Products – which will be 49% held by PG Bison and 51% held by Wild Peach Investments. The transaction scheduled to close on 1 October 2026.

Yellow, a fintech providing asset-backed credit for smartphones and off-grid solar products across sub-Saharan Africa, has closed a Series C funding round led by Convergence Partners and Susquehanna Sustainable Investments. The funding will be used to broaden its impact on the continent

HR tech startup Jem has raised US$8,4 million in a Series A funding round led by Quona Capital. University Technology Fund, E4E Africa, Next176 and a group of angel investors also participated in the round. The Cape Town-based firm will use the funding to expand its workforce management platform. The company was founded in 2019 as SmartWage and rebranded in 2022.

Weekly corporate finance activity by SA exchange-listed companies

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In terms of its Dividend Reinvestment Plan (DRIP), Sirius Real Estate has on behalf of shareholders electing this option, purchased 418,910 shares in the open market of the LSE at an average price of £0.99 per share and 2,891,945 shares in the local market at an average price of R22.32 per share.

Following the results of the scrip dividend election, Acsion will issue 8,924,378 new ordinary shares in the company in lieu of an interim dividend, resulting in a capitalisation of the distributable retained profits in the company of R83,6 million. The shares were issued based on a reinvestment price of R9.37 per share.

Aimia has applied for the admission of its common shares to trading on the LSE’s AIM market. The company will maintain its current listings on the Toronto Stock Exchange and the JSE.

PSG Financial Services has received approval from the Listing Executive of the Stock Exchange of Mauritius to voluntarily withdraw the trading of its shares on the exchange. The withdrawal will take effect after the market close on 31 August 2026. The company’s ordinary shares will remain unaffected on its primary markets – the JSE and the Namibian Stock Exchange.

Sebata’s financial results for the year ended 31 March 2026 will be further delayed. The revised date had been given as 14 August, but this too was not met. An update will be provided once a reliable timetable for completion has been established.

This week the following companies announced the repurchase of shares:

In March 2026, Quilter commenced a £100 million share buyback programme, to reduce the share capital of the company and return capital to shareholders. The maximum aggregate purchase price payable by the company under Tranche 2 is up to C.£30 million. During the period 10 to 14 August 2026, Quilter repurchased 74,038 shares on the LSE with an aggregate value of £147,169 and 12,000 shares on the JSE with an aggregate value of R520,670.

In June 2026, Greencoat Renewables announced its intention to commence a second tranche of the repurchase programme to return a further €25 million of capital to shareholders. The second tranche repurchase will be complete by end-December 2026. This week 668,501 shares were repurchased for an aggregate €524,432.

Bytes Technology announced in May 2026 its intention to implement a new share repurchase programme to purchase the company’s shares for an aggregate value of up to £25,0 million. This week the company repurchased 559,112 shares at an average price per share of £4.16 for an aggregate £2,33 million.

British American Tobacco has again extended its share buyback to end on 12 October 2026. All shares repurchased will be cancelled. Over the period 10 to 14 August 2026, the company repurchased a further 610,000 shares at an average price of £42.10 per share for an aggregate £25,68 million.

Anheuser-Busch InBev’s US$6 billion share buy-back programme continues. The shares acquired will be kept as treasury shares to fulfil future share delivery commitments under the group’s stock ownership plans. Over the period 10 to 14 August 2026, the group repurchased 561,884 shares for €39,21 million.

During the period 10 to 14 August 2026, Prosus repurchased a further 2,069,018 Prosus shares for an aggregate €81,36 million and Naspers, a further 734,000 Naspers shares for a total consideration of R605,39 million.

Five companies issued profit warnings this week: Exxaro Resources, Blu Label Unlimited, RCL Foods, Cashbuild and Libstar.

Four companies announced, renewed or withdrew cautionary notices: Combined Motor Holdings, Efora Energy, Dipula Properties and Trustco.

Who’s doing what in the African M&A and debt financing space?

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Equinor has signed an agreement with Harmattan Energy Limited, a Chevron subsidiary in Namibia, to acquire a 17.4% participating interest in Petroleum Exploration Licence 90 (PEL 90) in the Orange Basin offshore Namibia. The licence relates to Block 2813B, which is operated by Chevron. Prior to the transaction, Chevron’s subsidiary owned an interest of 52.5% in PEL 90, with the other partners in the licence being QatarEnergy (27.5%), Trago Energy (10%) and the state-owned oil company NAMCOR (10%). Financial terms were not disclosed.

A.P. Moller Capital announced that A.P. Moller Capital – Emerging Markets Infrastructure Fund II and APM Capital Morocco Fund have signed an agreement to acquire a majority stake in Globex Investissement (Globex), a Moroccan logistics company. Financial terms were not disclosed.

Panoro Energy has entered into a definitive agreement with DNO ASA to acquire the entire share capital of DNO’s wholly owned subsidiary DNO CI LLC which holds an indirect 9.09% interest in the high-quality gas producing Block CI-27 offshore Côte d’Ivoire, for US$80 million. Block CI-27 contains Côte d’Ivoire’s largest reserves of non-associated gas which is produced, together with condensate and oil, at a low unit cost of just $6/boe from four offshore fields (Foxtrot, Mahi, Manta and Marlin) tied back to two fixed platforms.

In Egypt, Exits MENA, an investment platform and advisory firm focusing on startups and SMEs, announced the signing of a multi-seven-figure transaction in partnership with ACE’s existing local management to acquire Avanz Capital Egypt (ACE), a private equity and asset management firm. Financial terms were not disclosed. ACE will be rebranded to Exits Manara as the private capital and asset management subsidiary of Exits MENA.

Terra Industries, the defense technology company that builds autonomous security systems to protect critical infrastructure across the Global South, has raised an additional US$18 million. The strategic funding closes its seed round at $52 million. Existing investors 8VC, Silent Ventures, Nova Global, Belief Capital, and SV Angel participated, alongside new investor Norleo Space Investments and angel investor Grant Gordon. Terra will use the funding to open its first international office in London, expand manufacturing capacity, accelerate deployments across the Global South, and grow its engineering, operations, and business development teams. Terra’s main operating base and flagship manufacturing facility (Pax-1) is located in Abuja, Nigeria, with an expanding major production hub (Pax-2) in Accra, Ghana.

Genser Energy Investments, an integrated energy company in West Africa, has announced the successful completion of a €456 million term and revolving credit facilities package arranged by RMB, Absa CIB and Standard Bank. The funds provide working capital to support the completion of ongoing EPC projects, strengthen the Company’s balance sheet, and provide additional financial flexibility to support its strategic priorities and continued growth.

Tusker Minerals has entered into a binding Share Sale Agreement with AuKing Mining under which AuKing will acquire 100% of the issued shares in Green Exploration Limited (GEL), a wholly owned subsidiary of Tusker’s Australian subsidiary Green Exploration (Australia). GEL is the registered holder of a portfolio of Malawian exclusive prospecting licences. Upon Completion, AuKing will acquire control of GEL and therefore the Machinga REE Project together with the Ngala Hill, Salambidwe and Karonga projects. The Agreement replaces and terminates the earlier exclusivity and proposed offer arrangement between the parties relating solely to the Machinga Project. In consideration for 100% of the issued shares in GEL, AuKing will pay A$800,000 in cash payable at Completion; Fully paid ordinary shares in AuKing with an aggregate value of $1,000,000 (issued at the same price as AuKing’s recent capital raising of $0.025 per share; $50,000 cash payable within 90 days after Completion; $1,250,000 cash payable on the date that is 12 months after Completion; plus two performance considerations valued at $1,750,000.

Save the hostilities for Christmas dinner

Hostile takeovers are as close to Hollywood-worthy action and drama as M&A gets. They usually involve a bidder seeking control over a listed company without the support of the target’s board, with a recent example being the Netflix-Paramount-Warner Bros. matter. In this article, we consider whether a similar high-stakes transaction could occur in South Africa.

South African law does not prohibit hostile takeovers and they are theoretically possible. However, there are limited viable mechanisms to effect a hostile takeover, particularly one where 100% of the shares are successfully acquired.

A scheme of arrangement (the preferred route in friendly arrangements) may only be proposed to the shareholders by the target board, effectively taking this option off the table for the hostile bidder. A hostile bidder is therefore left with one principal tool: a general offer made directly to shareholders. While this allows the hostile bidder to bypass the target board, success remains heavily dependent on the actions of the board, alongside other uncertainties.

Once a firm offer is made, the target board has a duty to adopt a passive stance and allow shareholders to consider the offer on its merits. This prevents the board from outright frustrating the offer. However, it is not a case of absolute passivity. The board retains several lawful defensive measures, including:
•encouraging opposition of the offer;
•soliciting a more welcome, competing offer;
•providing critical commentary on the merits of the offer, including price; and
•ensuring strict compliance with the letter of the law and all regulatory requirements.

These measures can stifle even the most well-planned of hostile bids.

A significant challenge faced by a hostile bidder is the misalignment between the competition law approval process and the takeover timetable.

According to the Takeover Regulations, a hostile bidder must declare an offer unconditional as to acceptances within 45 business days of the offer’s opening date. In other words, it must declare that it has received sufficient acceptances for it to proceed. However, if a general offer does not become wholly unconditional within 65 business days of the opening date, shareholders are entitled to withdraw their acceptances. In contrast, merger approvals under competition law often take far longer than this. The full process, often including frequent extensions, can take months.

This mismatch creates fundamental transaction uncertainty. Because shareholders can withdraw acceptances while awaiting competition approval, a hostile bidder cannot gauge its offer’s success before the deal goes fully unconditional.

In a hostile environment, where the target board may create additional hurdles for the competition process, including being lawfully obstructive in the provision of necessary information, delays and uncertainty persist.

Another key constraint lies in the strict confidentiality regime governing takeover activity. Before a firm intention announcement is made, negotiations between the bidder and the target board remain confidential. Even thereafter, the bidder’s ability to engage directly with shareholders is limited. While guidelines permit approach to a limited number of major shareholders under controlled conditions, broader engagement is restricted and subject to non-disclosure requirements and market abuse rules.

This creates a practical challenge, as a hostile bidder has limited opportunity to build shareholder support or publicly advocate for the transaction. Institutional investors may be reluctant to engage early, as doing so could restrict their trading in the target’s shares.

A hostile bidder may offer shares in itself as part of the purchase consideration, but such transactions may trigger additional corporate and regulatory requirements, including shareholder approvals, stock exchange disclosures and, in some cases, the preparation of a prospectus. These requirements can introduce further delays and increase execution risk, particularly where the target board limits access to target company information.

A cash offer is accordingly easier in the hostile context, but requires being able to raise sufficient capital, a challenging requirement in current economic conditions.

Often, the ultimate objective of a takeover is acquiring 100% of the shares – a difficult outcome to achieve if a scheme of arrangement is unavailable.

A bidder needs to acquire at least 90% of the voting rights (excluding those it may already hold) to initiate a “squeeze-out” of minority shareholders and acquire full ownership. Larger shareholders often delay accepting an offer without a certain prospect of success, making this threshold objectively challenging in a hostile environment. As mentioned, acceptances may also be withdrawn if the regulatory approval process drags on.

If a bidder falls short of the squeeze-out threshold, it will not achieve its full ownership goal. While it may consider acquiring a lesser number and then trying again, it is tough to achieve a squeeze-out on the second bite. The hostile bidder’s own shares in the target are excluded from the calculation of the squeeze-out threshold, making it difficult to obtain sufficient take up from the remaining shareholders to hit the 90% threshold.

If it does not acquire 100% of the shares, the bidder must deal with having minority co-shareholders, and faces practical difficulties and inconveniences in fully integrating with the target: often an unappealing prospect.

It is easy to see why hostile takeovers remain rare and seldomly successful in South Africa. The regulatory framework places significant practical constraints on unsolicited bidders; constraints which become near impossible to overcome with a target board that actively opposes the transaction at every procedural stage. Should the regulatory toil be overcome, the hostile bidder also holds no certainty in achieving the desired outcome of its bid.

While possible, hostile takeovers are far from easy. Any bidder may be better served by saving the hostilities and focusing on getting the target board on board.

Ian Hayes is Practice Head, Yaniv Kleitman, is a Director and Keagan Hyslop is an Associate | Corporate & Commercial at Cliffe Dekker Hofmeyr

This article first appeared in DealMakers, SA’s quarterly M&A publication.

Dear Private Equity: It’s complicated

Dear Private Equity,

I’ve been meaning to write this for a while. I started a few times and stopped, because I didn’t want to sound needy.

But here goes…

I like you – I always have. Everyone in my world does, really. We talk about you constantly, we dress up our best businesses hoping you’ll notice, we rehearse what we’ll say if you call. You’re clever, you’re patient, and you’ve got the kind of capital that turns a good company into a great one.

So, this isn’t a break-up letter. If anything, it’s the opposite.

After enough years walking founders across the room to you, a girl starts to notice things. The way you say one thing on the buy side and something quite different on the sell. The way you fall for her hardest when somebody else is watching. The way your patience keeps a calendar in its back pocket.

This is less a letter than a diary. The kind you write at midnight about someone you adore but cannot quite figure out. And like all good diary entries, it isn’t meant to be read by anyone. Except, well, here we are. Because lately, some of the things you tell me don’t quite add up:

1. You keep saying you don’t like a crowd
“Please,” you tell me, “don’t bring me anything that’s in process.” You want it quiet, off-market, no other suitors in the room. And I get it, nobody wants to feel like one of many.

But here’s the thing: you only really decide you want her once you can see that somebody else does too. You want her to be wanted; you just don’t want to watch it happen. You want the certainty that competitive tension creates and the price discipline it removes, both at once. And when it’s your turn to sell, you’ll run the tightest, most beautifully organised process this market has ever seen – funny, that.

2. There’s this thing about her history
“I don’t want anything that’s already been owned by one of the other funds,” you say. You want her fresh, untouched and, ideally, cheap. But we both know that one day, you’ll be the seller, standing there hoping the next fund looks at everything she’s been through – the systems you built, the governance you installed, the earnings you cleaned up – and decides she’s worth more for it, not less.

You want to buy the promise and sell the polish. It’s hard to be a discount buyer of the very thing you plan to charge a premium for.

3. Now I say this gently: you tell two different stories about the same girl
When you’re deciding whether to commit, you’re all caution. The market’s uncertain, the timing’s tricky, the multiple has to reflect the risk. Very sensible, but the moment you picture the exit, suddenly she’s remarkable, the market’s deep, everyone can see how special she is, and the multiple expands to match. Same company, same fundamentals, but two entirely different worldviews, and which one you reach for seems to depend on whether you’re the one paying or the one being paid.

4. And there’s a thing about time
You tell me you’re a long-term partner. Five years, seven years, a full business cycle. But the moment a portfolio company misses its quarterly EBITDA by a whisker, the calls get shorter, the reporting packs get thicker, and the board meeting has a very different energy. Long-term, yes, but only if the short-term keeps cooperating.

I don’t hold it against you; the LP clock is real. I’m just saying, don’t be surprised when the founder who ran the place for twenty-six years on instinct and relationships finds the quarterly cadence a little… suffocating. They built something real. They just weren’t expecting a new performance review every ninety days.

I’m not writing to catch you out.

None of this makes you wrong to want a good deal, and you’re better at it than almost anyone. I’d just love it if the game were a little more even.

And if I’m being honest with myself, which is the whole point of a diary, I keep setting you up on these introductions because the best version of you is genuinely extraordinary. The fund that comes in with real operational support. That brings the governance without the grief. That gives the founder a seat at the table, not just a cheque and a handshake. I’ve seen it. It’s rare, but I’ve seen it, and that version of you is worth writing letters for.

The people I really care about aren’t the funds, or even the advisers. They’re the founders, the families who spent thirty years building something real and asked me to introduce them to you. They deserve to feel chosen for what they are, not quietly picked up on a slow afternoon and dressed up for someone else later.

They deserve an investor who reads the room, not just the model. Someone who understands that behind the number on page four of the IM is a person who lay awake last night wondering if this was the right decision.

So this is me, still hopeful, asking the same thing I always do. Let’s talk… properly. Same table, cards up, both sides of the bread buttered fairly. I’ve long thought we’d be good together.

Yours (as ever),
An adviser who keeps setting you up on dates

Kosie Kritzinger is a Director, Corporate Advisory | Baker Tilly Greenwoods

This article first appeared in Catalyst, DealMakers’ quarterly private equity publication.