Marika Sboros: Inside MFF’s boardroom war — answering affidavits fail to bury it

Key topics

• MFF court battle over alleged governance collapse, director delinquency and MOI non-compliance

• Respondents’ affidavits attacked as procedural, political and light on substantive rebuttal

• “Ghost email”, conflict-of-interest claims and admitted funding deviations under scrutiny

Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox every morning on weekdays. Register here.

Support South Africa's bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.

If you prefer WhatsApp for updates, sign up to the BizNews channel here.

By Marika Sboros

There is a "tell" in litigation, a subtle sign, behaviour or tactical move that seasoned practitioners will instantly recognise: respondents innocent of conduct alleged against them want the matter heard quickly, openly and on merit.

The three respondents to the ongoing application in the Western Cape High Court involving the Mauerberger Foundation Fund (MFF), appear not to want any of this.

All three are MFF directors – Dianna Yach, chair, managing director and granddaughter of the foundation’s legendary industrialist-philanthropist founder, Morris Mauerberger, and her board allies, attorney Igshaan Higgins and Prof Brian Figaji, Cape Peninsula University of Technology Chancellor.

Their answering affidavits, filed close to deadline on April 30, 2026, are not so much a defence as a campaign of attrition. They are dense, procedurally elaborate and calibrated to consume the applicants' time, resources and patience.

The applicants are also MFF directors: Dianna Yach’s first cousin, Steven Levy, a Durban-based businessman and the board's longest-serving director at nearly 40 years; and her brother, Dr Derek Yach, a US-based medical doctor and global health expert. 

Their 1,100-page founding affidavit filed on April 13 alleges a deliberate, systematic "governance collapse" and "methodology of financial misrepresentation" behind more than 11 years of constitutional non-compliance with the MFF's Memorandum of Incorporation (MOI). The matter will be heard in October, 2026.

The interim relief sought was the respondents’ immediate suspension, and an “Independent Person” appointed to oversee the MFF's operations and grant-making. That’s a governance safeguard designed precisely for situations where a captured board cannot be trusted to self-regulate. 

The final relief sought is a court declaration that the respondents are "delinquent directors" – the law's most serious rebuke of fiduciary failure, carrying a minimum seven-year disqualification.

Against that backdrop, the respondents’ answering affidavits show different rhetorical approaches united by a shared strategy: attack urgency, attack procedure, reframe the entire proceeding as something other than what the founding papers claim it is.

Dianna Yach's affidavit is overall more political counter-offensive than sober governance defence. Her position, stripped to its skeleton, is that the applicants' “true gripe” is ideological and they are sore losers of a boardroom battle intent on a power grab.

Her arguably most revealing admission is paragraph 141. She swears under oath that "on advice, and … to protect myself, my co-directors and the Foundation, I keep the applicants at arm's length". Any "familiarity is unsafe", she writes. 

 "Where the MOI or the Companies Act permit me to ignore one of the applicants' ploys, that is what I attempt to do."

Three statements, on oath, in one paragraph together describe a deliberate, advised, strategic posture of disengagement from two of five directors of a charitable foundation who hold statutory equal rights to the chair's.

The arbiter of when the MOI and Companies Act "permit" her to ignore fellow directors is, on her version, herself. She is chair and MD, two offices concentrated in the MFF's executive authority. 

That cannot be the law. Section 163 of the Companies Act protects directors from conduct that "unfairly prejudices" or "unjustly disregards" their interests. 

A chairperson who, on legal advice, confines communications with colleagues to what the law strictly compels and ignores their governance contributions wherever (in her own assessment) the law permits, does not describe a defence to a section 163 claim. 

She proves it.

On the interim relief sought, her contempt is equally undisguised. 

She dismisses the applicants' “Independent Person” request as a "risible invention" and a reconstituted board as "a court-sanctioned hostile takeover of the (MFF)”. 

She uses the word, “risible”, presumably, because ridicule is easier than rebuttal.

She does not engage with why the applicants say an Independent Person is necessary, or the filing’s documented pattern of blocked complaints, self-serving resolutions and MOI non-compliance underpinning the request. 

Instead, on ideological framing, she argues that what’s really at play is “a matter of policy or politics, concerning the state of affairs in Israel and the Middle East", adding, “as I see it”. 

That phrase is the framing and the framing becomes the evidence. 

She has possession of the applicants’ nine formal complaints and 34 proposed resolutions. She does not point to a single line of those documents as evidence.

Crucially, the record runs the other way. 

As a University of Cape Town (UTC) Council member, Dianna Yach swore an affidavit in the ongoing Mendelsohn judicial review on UCT’s adoption of the politically contentious "Gaza Resolutions". 

Telfed CEO Dorron Kline filed a confirmatory affidavit recalling her statements to him in person in March 2025, linking the MFF's funding posture to "Israel's reaction to the Hamas atrocity of 7 October 2023”. 

She has not answered the substance to that public record under oath.

On urgency, she argues that the applicants have known about every alleged governance failure for years. She ignores their founding affidavit’s 22 paragraphs addressing that issue.

She does not rebut specific financial irregularity allegations – the stalled Book Project, classification of an MFF donation to Gift of the Givers in September 2025, and the Boiskin Fellowship redirection – beyond asserting board-approval. 

She acknowledges leaving "many of the applicants' litany of complaints" unaddressed. 

Therefore, she leaves a substantial portion of the applicants' case unanswered.

She also ignores the blatant conflict of interest in her dual position as chair and MD. It is, after all, highly irregular, especially in a PBO (public benefit organisation), as the MFF is registered.

It leaves the lingering possibility that were it not for her dual position, this case may not have arisen at all. 

Higgins's affidavit is legally precise and disciplined, as expected of an attorney and former acting High Court judge. In places, it reads of someone with a direct, personal stake in the outcome, carefully managing what he admits, contextualises and declines to address.

He opens by boldly reframing the application as "a politically motivated SLAPP (Strategic Lawsuit Against Public Participation) action" designed to seize control of "approximately R350 million in charitable capital".

He advances this as a beneficiary of MFF funding to the very museum at the centre of the applicants’ conflict-of-interest allegation – the Cape Heritage Museum, of which he is founder-curator-director.  

Despite being a lawyer, he appears oblivious to the obvious conflict. 

He argues that his museum involvement was publicly known at his appointment, he has never received a salary from it and he funds its operational costs, acquisitions and staff expenses out of his “own resources".

He presents this as exculpatory. It is the opposite.

If he is personally underwriting the museum's running costs, then every additional rand the MFF grants him – grants that have grown from R100,000 to a healthy R600,000 annually in just five years – is a rand he no longer has to advance from his own pocket. 

That’s a personal financial interest of precisely the kind that section 75 of the Companies Act was enacted to capture, salary or no salary.

Higgins’s defence, properly read, deepens conflicts it was offered to resolve.

He calls the ghost email at the heart of the applicants’ case "the Higgins Draft", insisting it is "a neutral and accurate descriptor". He admits to preparing an objection to Levy’s attempted oversight into the grant to the Cape Heritage museum on March 6 and forwarding it to Dianna Yach who emailed it to the board under her name.

He says the 16-minute window in which he prepared the objection is “not implausible” as he was “already familiar” with the matters.

That does not explain why neither he nor she mentioned the preparation of the objection when the applicants first raised it. It does show that the characterisation as an innocent exchange between two directors arrived after, not before, it became contentious.

Higgins’s most legally precise point is that "two directors who agree with each other are not a voting bloc and are not a conspiracy". 

That's possible, as anything is. 

It does not explain why every significant vote went the same way, or why the board majority consistently declined to investigate formally any of the applicants’ nine major complaints.

On interim suspension, Higgins argues that removing all three respondents would leave "a rump of two to run a charitable fund without oversight, accountability, or checks" and would lead to "governance destruction", not protection for the MFF. 

That conveniently makes interim relief against the majority practically self-defeating. It ignores the applicants’ documented contention that the respondents’ continued presence is itself the cause of the collapse.

Higgins says that the application is "designed to achieve a political and financial objective through the courts that was not achievable through the boardroom". He leaves unanswered whether the inverse holds: that the respondents’ defence is designed to protect a governance arrangement and grant-making direction that they could not achieve through transparent process.

Figaji’s affidavit is arguably the most carefully calibrated. He presents as a peripheral, unpaid, non-executive director for 30 years, swept up in a dispute about Dianna Yach’s executive conduct.

He claims that the applicants manufactured urgency "by delivering an ultimatum … designed to fail, then relying on the failure as a reason for urgency".

He is the only respondent to allege non-service of key documents – annexures addressed to him as a director, on which he himself voted, and for which his lawyer signed. 

Yet he responds on oath to the applicants’ sixth major complaint, which is in a document he claims not to have received. 

On the Section 163 “oppression” claim, Figaji directly addresses the complaint over his “systematic use of delegitimising language” across 29 emails over nine months. He declines to rebut each quotation and instead, addresses seven thematic categories. 

His categorical approach itself appears to be a concession.

He claims that his language was “robust” but “honestly held” and does not meet the delinquency threshold. That may be sound for section 162. The Sixth Complaint, however, was pleaded under section 163 oppression, with a materially lower threshold. Yet he does not engage with section 163 at all.

In defending himself, Figaji articulates the applicants' case against him.

He describes the "Transition Plan" he circulated in August 2025, proposing a strategy for MOI compliance by 2028, as "a responsible, operationally defensible pathway to compliance". 

The applicants call it "a programme of continued non-compliance, dressed in the language of gradualism".

On bloc-voting, he attributes his consistent alignment with Higgins and Dianna Yach to the “quality of the applicants’ proposals, not to collusion”, and claims that “defeat of minority proposals” does not establish “governance failure”.

His affidavit contains unredacted “Instructions Required” placeholders – a tell that it was filed before his instructions were complete.

His closing flourish warns that "a finding of delinquency in these circumstances would criminalise directorial candour and discourage the honest expression of views in board correspondence". 

That’s ironic. The very harm Figaji warns against is precisely what the sixth complaint alleges his language inflicted on the applicants. 

In the spaces between denials, the respondents concede the factual core of two of the most consequential allegations against them.

On the “ghost email”, Dianna Yach, at paragraph 56, accepts that she "copy/pasted (Higgins’s) wording into a blank email”, making only "minor amendments". Higgins, at paragraph 64, accepts that he "prepared the draft", provided it to her and that the substantive text she dispatched under her name was his drafting. 

That is now common cause. Neither deponent engages with the clear conflict of interest at its centre.

On MOI compliance, Figaji candidly accepts that “over a number of years, the Foundation’s actual distributions to Israeli entities fell below the 50% target in the MOI”, and claims board approval at Annual Directors’ Meeting.  

He does not identify a single resolution under the only MOI provision permitting such variation, which requires “exceptional circumstances” and a formal resolution. None of the answering affidavits identifies such a resolution for any year of the alleged 11-year deviation. 

The deviation is thus admitted and undocumented. 

It sits awkwardly alongside Dianna Yach’s sworn statement that her interactions are “governed strictly by the (MFF’s) MOI”.

Both propositions cannot be true simultaneously. Read together, the “ghost email” is no longer in factual dispute; the 11-year MOI deviation is admitted and undocumented on the respondents’ own evidence,. 

The defence is not a denial of the applicants’ case. In important respects, it is corroboration.

The respondents also mount a serious attack on Derek Yach’s candour. 

Higgins swears that no mention was made of the fact that Derek Yach himself proposed the MFF’s controversial grant to Gift of the Givers and a grant to Ben Gurion University in Israel. 

Figaji swears that the founding affidavit omits to mention that Derek Yach "voted in favour of the Transition Plan", recording this as of "fundamental significance."

These are serious allegations, advanced on oath, to support the "politically motivated SLAPP" narrative. They flounder on the founding papers themselves.

Derek Yach’s confirmatory affidavit of April 15 sets out precisely what the respondents claim is concealed: his support for the Gift of the Givers grant, subsequent votes in favour of respondent proposals and the circumstances in which he committed to reform. 

It was served on the respondents on April 21, nine days before they wrote a word in answer. Thus, the disclosure they deny, is in the document they were served with and on which they were deposing. 

There is no innocent reading of this.

Either they did not read the founding papers, making their attack on Derek Yach’s candour professionally indefensible; or they read them and attacked, knowing the disclosure was already on the record.

Their protest has the insistence of Lady Macbeth – tendentious in framing, expedient in purpose and paradoxical.

Lurking in the shadows is another unresolved presence: Cape Town law firm Fairbridges, the MFF's company secretary. 

In South African corporate governance, a company secretary is an officer of the company itself, not of any director or faction. Its duty runs to the directors collectively to anchor governance, not litigate it. 

That distinction has, on the answering papers, broken down.

Marcus Schaefer, the Fairbridges director who discharges the MFF's company secretary function, has filed sworn evidence in support of Dianna Yach, annexed inside her papers, against two of her co-directors. 

Schaefer records that he takes instructions from her only and presents this as exculpation. It is not. He effectively unholsters his company-secretary “gun” and fires at his own feet – and hers.

On his version, he concedes an MOI breach he was meant to police – an instrument providing that "no single person may directly or indirectly control the decision-making powers relating to the MFF".

 Of the applicants’ nine formal complaints, Schaefer addresses only one at length: the procedural opinion procured at Dianna Yach’s instruction.

He also fails to disclose that Levy has lodged an active Legal Practice Council complaint against him about this very conduct. 

As a matter of professional candour, a deponent subject to such a complaint about the conduct on which he gives evidence is required to disclose it. 

A company secretary carrying a bucket of whitewash in one hand and a paintbrush in the other does not serve the company well.

The respondents dismiss this case as political differences and a family squabble. Their answering affidavits do otherwise.

Non-profit companies occupy a peculiar space in South African law. Governed by the Companies Act, they lack enforcement mechanisms giving that governance teeth – no shareholders, limited regulatory oversight, beneficiaries who rarely have standing to intervene.  

The only meaningful check on misconduct is another director willing to go to court. Two do so here.

If procedural attrition and resource exhaustion can frustrate such an application, the system is exposed as fragile. If it succeeds, it establishes that section 162 applies not only to commercial fraud or state capture, but to governance failures of charitable institutions.  

In other words, fiduciary duty does not dissolve in philanthropy’s language.

The applicants’ filing, as their lawyer, Kumesh Moodley notes, is “not about politics but it is indeed about policy. 

“And the only policy that matters is the one set out in the MFF’s MOI.”

The applicants have trusted the institution. The court will decide in October whether that trust was well-placed.

*I emailed Dianna Yach, Brian Figaji and Igshaan Higgins, copied to their attorneys, requesting responses to specific questions based on their affidavits and giving more than 24 hours to respond. At the time of publication of this article, no response was forthcoming.