ON the night of September 27 2005, Brett Kebble climbed into his silver-grey Mercedes-Benz S600 and drove into the Johannesburg dark. Near a bridge over the M1 in the city’s northern suburbs, he stopped the car and rolled down the window. Moments later, several shots rang out. Hit six times, he managed to drive a short distance before crashing and dying at the scene.
The flamboyant mining magnate, political fixer, arts patron and alleged architect of one of corporate South Africa’s most notorious frauds was 41 years old. Whether he was murdered or, as later testimony suggested, had staged an assisted suicide dressed up as a hit, was never resolved in court. Nobody was successfully prosecuted for his killing.
By then, the world around him was already collapsing. For years Kebble had dominated three JSE-listed mining companies whose names once carried real weight: JCI, the old Johannesburg Consolidated Investment Company originally founded by Barney Barnato; Randgold & Exploration, an investment company holding valuable listed assets including shares in Mark Bristow’s London-listed Randgold Resources; and Western Areas, which owned 50% of South Deep, one of South Africa’s great deep-level gold deposits.
The trouble was that the empire was running out of money. JCI needed liquidity to stay afloat, while Western Areas required substantial capital to develop South Deep — a burden made heavier by a disastrous hedge that left it exposed when the gold price rose. The solution, according to R&E’s later claims, was to raid R&E’s most valuable asset: its Randgold Resources shareholding. By the time Kebble was forced out of all three companies on August 30 2005, a forensic investigation had found that roughly 14.4 million Randgold Resources shares were missing. R&E was suspended from the JSE and delisted from Nasdaq after failing to publish its 2004 results.
Less than a month later Kebble was dead, and the companies diverged sharply. Western Areas, whose main asset was its 50% stake in South Deep, was acquired by Gold Fields, which also bought the remaining half from Barrick Gold. JCI, suspended from the JSE in 2005, was eventually delisted in 2013 and placed into voluntary liquidation in 2021. R&E, stripped of the assets that had once given it substance, was left to seek recovery through the courts.
Over the years, some of those claims produced real cash. A settlement with JCI delivered roughly R600m in Gold Fields shares and about R300m in newly issued JCI shares, enabling R&E to distribute approximately R1bn to shareholders. A $2m settlement with financier Paul Main followed in 2012-13. In 2014, auditor PwC paid R150m — without admitting liability — to settle claims over its audit work for the 2000-2003 financial years. In 2018, former auditor Charles Orbach & Co settled for R21.75m. Each settlement helped keep R&E’s listing alive after its reinstatement in 2010, while funding the legal machinery needed to pursue the larger unresolved action.
Gold Fields claim
That action is the claim against Gold Fields Operations Ltd — a Gold Fields subsidiary and the successor entity to Western Areas — which R&E and its subsidiary African Strategic Investment Holdings launched in the Johannesburg high court in 2008. The case alleges that the controlling minds of JCI and Western Areas conspired to misappropriate R&E’s Randgold Resources shares, using them to raise funds for working capital, settle liabilities and preserve financial stability across the structure, while also rewarding the individuals who controlled it.
Gold Fields denies liability. It has argued, among other things, that earlier settlements with other alleged wrongdoers should reduce any damages, and that R&E’s own weak internal controls contributed to the losses. It has also joined other Kebble-era parties to the proceedings, notifying them under the Apportionment of Damages Act that it may seek a contribution if found liable.
What makes the case extraordinary is the quantum. R&E has moved to narrow its claim to 10.56 million Randgold Resources shares and the dividends that would have accrued on them. Because Randgold Resources merged with Barrick Gold in 2019 — with Randgold shareholders receiving 6.128 Barrick shares for every Randgold share — those 10.56-million shares translate into 64.7-million Barrick shares. At current market values, that component alone is worth roughly R44.5bn, before dividends or interest. Barrick’s share price has risen about 190% since the merger, carried higher by the surge in the gold price.
The legal remedy underpinning the claim amplifies this further. R&E is pursuing condictio furtiva, the Roman-Dutch action for the recovery of stolen property, under which damages are referenced to the replacement value of the asset today rather than what it was worth at the time of the alleged theft. The longer the matter remains unresolved and gold shares continue to climb, the larger the potential damages number becomes.
Gold Fields has disclosed the claim as a contingent liability in its financial statements but has raised no provision, arguing that the ultimate outcome cannot be determined and that no sufficiently probable, measurable liability therefore exists. The last figure computed by R&E, in May 2017, put the maximum value of the claims at R43.7bn under the older formulation — a number that has since grown considerably as Barrick’s share price has risen.
Critical amendment
The immediate procedural question is whether R&E will be permitted to amend its particulars of claim to the narrower formulation. A hearing has been set down for October 19 and 20 in the commercial court. R&E director Hilton Gischen says the amendment would make the case “far simpler and easier” to prove. Gold Fields is opposing it, with an obvious interest in holding R&E to the original, more complex claim. If the amendment is refused, R&E will have to reconsider how to prosecute the broader action.
If it succeeds, Gold Fields must file an amended plea, pleadings would close, and counsel would apply for a trial date. Much of the witness-statement preparation is already complete. The commercial court process may also require formal mediation before any trial proceeds — which could in turn create a structured opportunity for the parties to negotiate.
That possibility is not entirely hypothetical. Gischen confirmed at the recent AGM that Gold Fields had already approached R&E about a possible settlement. R&E’s legal advisers recommended holding off until after the amendment ruling — a sensible position, since neither side has a clean negotiating basis until the permitted scope of the claim is established.
R&E’s financial position adds a secondary dynamic. The company holds liquid investment assets of about R50m against an annual cash burn of roughly R12m, implying around four years of runway. Gischen and CEO Marais Steyn have indicated that costs will decline as the bulk of legal preparation winds down, and that the directors will not allow the company to run out of money. Funding options are said to be available, and given the scale of the claim, a shareholder-backed capital raise would presumably not be difficult to execute if needed.
The cash arithmetic may nonetheless strengthen the commercial logic for a sensible settlement at some point, without forcing R&E into accepting a poor one.
Two decades on, the Kebble saga has cost shareholders, creditors and counterparties an enormous amount. R&E’s continued listing is a reminder of that history — a legal claim wrapped in a listed shell, waiting for resolution.
For Gold Fields, the strategic calculus is becoming harder to ignore. The longer the matter drags on, the more expensive a loss becomes. Had a settlement been reached years ago, the quantum would almost certainly have been far lower. Whether that arithmetic eventually brings the parties to the table is now one of the more consequential unresolved questions in South African corporate litigation.
A version of this article first appeared in the Financial Mail.
