Kego Mining (Pty) Ltd and Another v Woestalleen Holdings (Pty) Ltd and Others (5029/2024) [2024] ZAMPMHC 63 (18 November 2024)

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION (MIDDELBURG LOCAL SEAT)

CASE NO:5029/2024

In the matter between:

KEGO MINING (PTY) LTD

FIRST APPLICANT

SUBPROMEX (PTY) LTD

SECOND APPLICANT

AND

WOESTALLEEN HOLDINGS (PTY) LTD

FIRST RESPONDENT

KURT KNOOP N. O.

SECOND RESPONDENT

BALMORAL COMMODITIES (PTY) LTD

THIRD RESPONDENT

THE MINISTER OF MINERAL

FOURTH RESPONDENT

AND PETROLEUM RESOURCES

DIRECTOR-GENERAL: DEPARTMENT OF

FIFTH RESPONDENT

MINERAL AND PETROLEUM RESOURCES

REGIONAL MANAGER, MP DIVISION:

SIXTH RESPONDENT

DEPARTMENT OF MINERAL AND PETROLEUM RESOURCES

JUDGMENT: LEAVE TO APPEAL

CORAM: LANGA J

Introduction and Concise Facts

[1] In this application for leave to appeal the Applicants seek leave to appeal the whole judgment and order handed down by this Court on 21 October 2024 on an urgent in respect of Part A of the application lodged by the First Applicant, Woestalleen Holdings (Pty) Ltd (In Business Rescue), (Woestalleen) and the Second Applicant, Kurt Knoop N.O, who is the First Applicant’s business rescue practitioner (BRP).

[2] The essence of the order is that the First Respondent in the main application, (“Kego Mining (Pty) Ltd”) and the Second Respondent (“Subpromex (Pty) Ltd”) (who are the applicants in this leave to appeal), are interdicted, together with their agents, representatives, contractors, subcontractors and employees from conducting any mining operations on the mining area concerned and from dispatching, transporting and/or processing any coal in or from the mining area. The First and Second Respondents are opposing the application for leave to appeal. I will refer to the parties as cited in this application for leave to appeal.

Applicable legal principles for leave to appeal

[3] It is trite that applications for leave to appeal are now governed by the provisions of Section 17 of the Superior Courts Act 10 of 2013 (“the Act”)the Act. Although the Applicants have clearly not stated which provisions of section 17(1) of the Act they rely on, I nevertheless quote the section hereunder for ease of reference.

“Section 17 - Leave to appeal

(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b) the decision sought on appeal does not fall within the ambit of section 16(2)(a); and

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.”

[4] It is trite that the test for leave to appeal has changed substantially from the test ordained in terms of the repealed Supreme Court Act 59 of 1959. The current standard is captured succinctly in the case of The Mont Chevaux Trust (IT2012/28) v Tina Goosen and Others LCC14R/2014, (3 November 2014), at para 6, in which the Court stated that “the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act and that in terms of the former test the question was whether or not there was a reasonable prospect that another court might come to a different conclusion, See Van Heerden v Cronwright and Others 1985 (2) SA 342 (T) at 343H. The use of the word “would’ in the new statute is indicative of a measure of certainty that another will differ from the court whose judgment is sought to be appealed against.”

[5] This position has since been confirmed in several decisions in other Divisions of the High Court. See Magashule v Ramaphosa and Others (2021/23795) [2021] ZAGPJHC 405 (13 September 2021); Nedbank Ltd v Steyn NO 2020 JDR 0754 (GJ); MEC Health, Eastern Cape v Mkhita (121/15) [2016] ZASCA 176 (25 November 2016). It is generally accepted that the current section is now more burdensome than its predecessor. Smith J in the Valley of the Kings Thaba Motswere (Pty) Ltd [2016] ZAECGHC 137 (10 November 2016) acknowledged the new standard created by section 17 but added that the contextual construction of the phrase “reasonable prospect of success’ still requires of the Judge, whose judgment is sought to be appealed against, to consider, objectively and dispassionately, whether there are reasonable prospects that another court may well find merit in argument advanced by the losing party.”

[6] In Mkhitha, above the SCA held that "Once again it is necessary to say that leave to appeal especially to this Court, must not be granted unless there truly is a reasonable prospect of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that leave to appeal may only be given where the judge concerned is of the opinion that the appeal would have a reasonable prospect of success; or there is some other compelling reason why it should be heard.

An applicant for leave to appeal must convince the Court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal."

[7] Consequently, leave to appeal may only be granted if the court of first instance is of the opinion that the appeal would have reasonable prospects of success. There must therefore be merit in the applicant’s argument in support of the application for leave to appeal and the applicant must satisfy the court that the appeal would, not might, have reasonable prospects of success either on facts or the law. Furthermore, the peremptory provisions of Rule 49 (1) (b) require a litigant in an application of this nature to clearly and succinctly set out the grounds of appeal in unambiguous

terms. Songono v Minister of Law-and-Order 1996 (4) SA 384. See also in this regard The Public Protector of South Africa v The Speaker of the National Assembly and Others (8500/2022), Western Cape Division, delivered on 3 November 2022.

Grounds of Appeal

[8] As stated above, Rule 49(1) requires a party to clearly and succinctly set out the grounds of appeal in clear and unambiguous terms so as to enable the court and the respondent to be fully informed of the case the applicant seeks to make out and which the respondent is to meet in opposing the application for leave to appeal.

[9] The Applicants rely in essence rely on the following four grounds of appeal:

9.1 The first ground concerns the section 11 ministerial consent of 14 December 2023 which the Applicants contend constitutes an administrative action. The Applicant’s argument is that the said ministerial consent had direct, external legal effect and constituted administrative action under PAJA.

9.2 The second ground of appeal is based on Rule 6(5)(e) and in this respect the Applicants argue that because they delivered an urgent interlocutory application on 14 October 2024 seeking inter alia leave to introduce a further affidavit in Part A of the application; and because the Court did not adjudicate or pronounce on the urgent interlocutory application before judgment was delivered on 21 October 2024, the proceedings were therefore unfair, wrong and irregular and also infringed on their constitutional right of access to courts in terms of section 34 of the Constitution.

9.3 The third ground relates to the cession and here the Applicant

maintain their contention that the First Respondent, Woestalleen Holdings, does not have standing to claim the relief sought in Part A of the application because the of a cession supposedly concluded between Woestalleen and Balmoral.

9.4 The fourth ground is basically the contention that the Court erred

by not applying the requirements for a final interdict to Part A of the application.

[10] The Respondents resists the application on several fronts. The first challenge is that the order of 21 October 2024 is interim in nature and therefore not appealable. The second point taken is that the appeal is defective as the Applicants failed to specify which provision of section 17(1) they are relying on. Concerning the grounds of appeal raised, the Respondents submit that there is no merit in the arguments which should be dismissed.

Discussion and evaluation

[11] In the light of the issues raised, I will first deal with the argument that the order is not appealable before I deal with the grounds of appeal.

The order is not appealable

[12] The essence of the Applicants’ argument in this respect is that the order which the Applicants intend appealing against is not an interim order even though on the face of it, the order reads as an interim interdict sought pending the adjudication of an application for a final interdict. It is argued therefore that the court erred in considering the requirement of an interim interdict in circumstances where the order sought in Part A was final in effect.

[13] The Applicants argue that as the interdict will result in the retrenchment of the First Applicant’s employees, the loss of the mining contract with Balmoral and the closure of the coal preparation plant, the interdictory relief sought by the Applicants is final in nature and the consequences thereof cannot be undone.

[14] The Respondents on the other hand argue that the order is interim and does not meet the requirements for a final order. They argue therefore that it is not appealable. In Zweni v Minister of Law and Order 1993 1 SA 523 (A) at 523J-533A the court laid down the requirements of an order as follows:

"A judgment or order is a decision which, as a general principle has three attributes, first, the decision must be final in effect and not susceptible of alteration by the Court of first instance; second, it must be definitive of the rights of the parties; and third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.

[15] Although the Applicants argue that the order has the effect of a final interdict, it is clear from the order that does not satisfy any of the requirements in Zweni, above. Further, in Cipla Agrimed (Pty) Ltd v Merck Sharp Dohme Corporation 2018 960 SA 440 (SCA) at 453C-458B the Supreme Court of Appeal in dealing with the phrase final in effect held that “… that final in effect' means that an issue in the suit has been affected by the order such that the issue cannot be revisited either by the court of first instance or that hearing the action. The kind of prejudice relied on by Cipla was decisively rejected as a basis for appealability as far back as Globe and Phoenix. I know of no case where it has rendered a matter appealable.”

[16] I am not in agreement with the Applicants’ submission. In my view it is clear that the order complained of is interim. The following paragraphs of the judgment as well as the order itself are indicative of the nature and purpose of the order. In the following paragraphs ([50] and [51]) the court clearly considered the requirements of an interim interdict as acknowledged by the Applicants:

“[50] The relief sought is thus not final as it is sought pendente lite to avoid injustice and hardship suffered by Woestalleen. In Airoadexpress (Pty) Ltd v Chairman Road Transportation Board1986 2 SA 663 (AD) at 676C the court held that interim interdictory relief is the exercise of an inherent power by the court which is “a salutary power which should be jealously preserved and even extended where exceptional circumstances are present and where, but for the exercise of such power, a litigant would be remediless, ….”

[51] This part of the proceedings constitutes a prima facie determination of the facts and legal principles on the issues. The question of the prima facie right can consequently be argued when the final order is determined. I am accordingly satisfied that a proper case has been made out for the relief sought in Part A of the notice of motion.” (my emphasis).

[17] It is in my view clear from these paragraphs the order was meant to be and is an interim order for all intents and purposes. In addition, it is further clear from the following orders that this is an interim and not final order.

“ 2. That, pending the final determination of the relief sought by the applicants in Part B of the notice of motion, the First Respondent and the Second Respondent, together with their respective agents, representatives, contractors, subcontractors

and/or employees, be and are hereby interdicted, restrained and/or prohibited from:

2.1. conducting any mining operations on the mining area comprising Portions 1, 2 and 4 of the farm Sterkwater 317 JS and Portions 4 to 27 of the farm Klipbank 467 JS situated in the Mpumalanga Magisterial/Administrative District of Middelburg (“the mining area”); and

2.2. dispatching, transporting and/or processing any coal in or from the mining area; (my emphasis).

[18] Concerning the argument that the interim order may be appealed against if the interests of justice so dictate, I am not satisfied that this is the case in casu. No constitutional issue was raised by the Applicants during the adjudication of Part A justifying the consideration of the interest of justice criterion in this determination. Furthermore, this is an attempt to appeal an interim interdict when the door is clearly not closed to the Applicants as the still have the opportunity challenge the application for the final relief sought by the Applicants in Part B. There is therefore no merit in the interest of justice test relied on by the Applicants and this argument accordingly has no merit.

[19] I am consequently not persuaded that the order sought to be appealed against is a final order and therefore appealable. On this ground alone the application for leave to appeal should be dismissed and that should be the end of the matter. However, if I am wrong in this approach I will proceed to consider the Applicants’ grounds of appeal illuminated above.

[20] I therefore turn to the Respondents’ argument that the Applicants have failed to indicate which particular provision of section 17(1) of the Act the application for leave to appeal is premised. It is correct that the Applicants have not specified the relevant subsection of section 17(1) which they seek reliance on. The failure to do so may be prejudicial to Respondents who have to guess what case they are required to meet. Although this renders the application for leave to appeal defective, I am however not persuaded that the defect is so material as to justify the dismissal of the application.

[21] I will now proceed to consider the grounds of appeal. I must from the onset point out that the issues raised in the grounds of appeal have already been dealt with comprehensively in the judgment. Concerning the first ground of appeal, at the risk of repeating what is already in the judgment, the contention that the section 11 ministerial consent of 14 December 2023 had direct, external legal effect and constituted administrative action under PAJA is in my view incorrect.

[22] In the context of the dispute in question, the said ministerial consent in my judgment does not and cannot constitute a cession nor can it exist independently of a valid underlying cession. In the absence of the proof of the cession by the First Respondent to Balmoral, the purported ministerial consent of 14 December 2024 did not and could not have had any direct external legal effect for the purposes of sections 1 and 3 of PAJA. The Applicants’ reference and reliance to Oudekraal and Kirland does take the matter further.

[23] Likewise, the Applicants’ further contention that the Respondents were required to first set aside the ministerial consent before being entitled to approach the Court for purposes of the relief sought in Part A is incorrect. In addition, the latest argument that the ministerial consent "implies that that the mining right has been ceded by and transferred from Woestalleen to Balmoral also cannot stand. The court cannot on this basis conclude that there was a cession in circumstances where the Applicants have failed to prove same. I am accordingly not persuaded by this argument and this ground of appeal stands to fail.

[24] The second ground of appeal implicates the application of Rule 6(5)(e). The Applicants argue that because they delivered an urgent interlocutory application on 14 October 2024 seeking leave to introduce amongst other things, a further affidavit in Part A of the application and because the Court did not adjudicate or pronounce on the urgent interlocutory application before judgment was delivered on 21 October 2024, the proceedings were therefore unfair, wrong and irregular and also infringed on the Applicants’ constitutional right of access to courts in terms of section 34 of the Constitution.

[25] What is not stated in this respect is that the Court did not impede on or interfere with the Applicants’ constitutional right by not adjudicating their urgent interlocutory application. The court simply did not have that application before it. In any event, the fact that it was not adjudicated upon does not render Part A unfair of the application wrong or irregular. As the Respondents argued, all is not lost in this regard as the Applicants still have the opportunity to introduce their further affidavit in Part B of the application. But as far as the appeal goes, this cannot be a ground of appeal in circumstances where the court did not make a finding as the matter was not before it. The Applicants did not comply with the either the Rules of Court or the Practice Manual and Practice Directives of this Court in respect of the delivery of the urgent interlocutory application. As a result, there was no pending urgent interlocutory application before the Court and consequently no irregularity in failing to hear the Applicants. In the light of the above, this ground of appeal also falls to be dismissed.

[26] In their third ground of appeal the Applicants persist in their argument that Woestalleen does not have locus standi to claim the relief sought in Part A of the application premised on an alleged cession concluded between Woestalleen and Balmoral. As stated above, this issue was also dealt with in detail in the judgment. Again, and at the risk of repeating what is in the judgment, the Applicants did not succeed in casting doubt on the First Respondent’s mining right or the Second Respondent’s entitlement and obligation to protect that right. Once again it has to be pointed out that there is no proof that the mining right was ceded to Balmoral. I am therefore satisfied that the Respondents had the necessary standing to protect the mining right by instituting the application for an interim interdictory relief in Part A pending the final determination in Pan B. Consequently, this ground of appeal faces the same fate as others and ought to be dismissed,

[27] Concerning the fourth and last ground of appeal, the Applicants’ argument is basically that the Court erred by not applying the requirements for a final interdict to Part A of the application. This argument has been dealt with above where I deal with the question whether the order is appealable or not. It is therefore not necessary to repeat what has already been stated save to state that this ground of appeal also lacks merit. As stated in the preceding paragraphs, the order of 21 October 2024 does not comply with the test enunciated in Zweni read in conjunction with the Cipla matter.

[28] I conclusion I find that the interim order is just that and not a final order as contended. The order was clearly granted pendente lite to avoid injustice and hardship and was only a prima facie determination of the facts and legal principles on the issues in Part A. This is a matter in which both the facts and the legal principles can be revisited by the court hearing Part B as that court would not be bound by any finding made by this Court in Part B. I therefore find that this ground of appeal also lacks merit and should be dismissed.

[29] Consequently, I find that the Applicants have failed to show that the order of 21 October 2024 is appealable. Secondly, they have failed to satisfy the court that there are reasonable prospects of success in the appeal as required by ss 17(1)(a)(i) and/or (ii) of the Act. The application for leave to appeal thus ought to be dismissed with costs. Concerning the costs the rule that costs follow the results must clearly apply. The only question to decide is whether such costs should be on a punitive scale. The Respondents argue that it should be as the First Applicant is still continuing to mine despite the order. Although the Respondents argued that this is a case of the abuse of the legal process, I am not satisfied that there is support for that conclusion. I therefore conclude that the costs should be on scale C inclusive of the costs for the employment of senior counsel where so employed.

Order

[30] In the result I make the following order:

1. The application for leave to appeal is dismissed with costs on Scale C;

2. The said costs to include the costs attendant to the employment of senior counsel where so employed; and

3. Such costs to be paid jointly and severally, the one paying the other to be absolved by the respondents.

________________________

MBG LANGA

JUDGE OF THE HIGH COURT

Appearances:

For the Applicants:

Advocate L. VR. Van Tonder

For the Respondent:

Advocate PG Cilliers SC

Date heard:

01 November 2024

Date delivered:

18 November 2024

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date for hand-down is deemed to be the 18 November 2024 at 15h30.