Blastrite (Pty) Ltd v Mineral Sands Resources (Pty) Ltd and Others (21897/15) [2015] ZAWCHC 166 (9 October 2015)

Parties

Procedural Posture

Final Interdict Application / Judgment After Referral to Oral Evidence

Legal Issues

1. 1 Whether clause 10 of the confidentiality agreement confers an exclusive right to Blastrite regarding garnet from the Tormin mine.
2. 2 Whether the confidentiality agreement remains extant or was superseded by the memorandum of understanding (MOU).
3. 3 Whether MSR is a subsidiary of MCL and thus bound by the MOU.

Ratio Decidendi

The court found that clause 10 of the confidentiality agreement, properly interpreted in its context and considering the circumstances of its conclusion, did not confer an exclusive right to Blastrite regarding garnet from the Tormin mine. The agreement was intended solely to protect confidential information exchanged during negotiations and did not restrict MSR from dealing with third parties. The wording of clause 10 limited the obligation to exclusive discussion and consideration, not to exclusivity in commercial dealings or sale. Furthermore, the agreement vested absolute discretion in the parties to accept or reject proposals, rendering it unenforceable as an agreement to negotiate....

Court Disposition

Application dismissed with costs, including costs of two counsel, costs for referral to oral evidence, and costs of discovery applications.

Orders

• The application is dismissed with costs, including the costs occasioned by the employment of two counsel, all costs occasioned for the referral to oral evidence, and the costs occasioned by the discovery applications, including the costs occasioned by the MCL parties' discovery application.