Gold Fields Ltd and Another v Harmony Gold Mining Co Ltd and Others (559/2004) [2004] ZASCA 106; [2005] 3 All SA 114 (SCA) ; 2005 (2) SA 506 (SCA) (26 November 2004)

Gold Fields Ltd and Another v Harmony Gold Mining Co Ltd and Others (559/2004) [2004] ZASCA 106; [2005] 3 All SA 114 (SCA) ; 2005 (2) SA 506 (SCA) (26 November 2004)

The Supreme Court of Appeal held that Harmony's offer to exchange shares was not an offer to the public for the subscription of shares as contemplated by section 145 of the Companies Act 1973. The offer was directed specifically to Gold Fields shareholders, who are not a section of the public at large, but rather owners of specific property. The statutory meaning of 'subscription' does not require consideration to be in cash, and the offer is not made to the public but to a defined group. The absence of a prospectus does not render the offer unlawful, as section 145 does not apply to this transaction. The appeal was accordingly dismissed.

Citation
[2004] ZASCA 106
Parties
Appellant: Gold Fields Limited; Appellant: Pieter Christiaan van Aswegen; Respondent: Harmony Gold Mining Company Limited; Respondent: The Securities Regulations Panel; Respondent: The Johannesburg Stock Exchange
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 November 2004
Case Number
559/2004
Procedural Posture
Civil Appeal / Appeal From High Court Judgment
Outcome
Appeal dismissed with costs, including costs of two counsel, payable jointly and severally by the appellants.
Judges
MPATI, STREICHER, FARLAM, NUGENT, COMRIE
Legal Topics
Offer to Public, Subscription of Shares, Companies Act Section 145, Prospectus Requirement, Share Exchange, Public Company Shares
Commercial and Corporate Civil Procedure Offer to Public Subscription of Shares Companies Act Section 145 Prospectus Requirement Share Exchange Public Company Shares

Case Brief

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Parties

Gold Fields Limited

Appellant

Pieter Christiaan van Aswegen

Appellant

Harmony Gold Mining Company Limited

Respondent

The Securities Regulations Panel

Respondent

The Johannesburg Stock Exchange

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether Harmony's offer to exchange shares constitutes an 'offer to the public for the subscription of shares' under section 145 of the Companies Act 1973.
  2. 2 Whether the absence of a prospectus renders the offer unlawful.
  3. 3 Whether the offer is made to the public or only to a specific group.

Ratio Decidendi

The Supreme Court of Appeal held that Harmony's offer to exchange shares was not an offer to the public for the subscription of shares as contemplated by section 145 of the Companies Act 1973. The offer was directed specifically to Gold Fields shareholders, who are not a section of the public at large, but rather owners of specific property. The statutory meaning of 'subscription' does not require consideration to be in cash, and the offer is not made to the public but to a defined group. The absence of a prospectus does not render the offer unlawful, as section 145 does not apply to this transaction. The appeal was accordingly dismissed.

Court Disposition

Appeal dismissed with costs, including costs of two counsel, payable jointly and severally by the appellants.

Orders

  • The appeal is dismissed.
  • The appellants are ordered to pay the costs of the appeal, including the costs of two counsel, jointly and severally.