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South Africa Judgment

Northern Cape High Court, Kimberley

Liciano Coal (Pty) Ltd v Assmang Ltd and Another (2406/2016) [2016] ZANCHC 36 (2 December 2016)

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01

Holding and result

The court found that Assmang was not entitled to refuse the applicant access to the property based on the late payment, as the relevant court order did not make access conditional on timeous payment to Ochre Shimmer. The alleged breaches raised by Assmang were not properly invoked under the Access agreement, which required written notice and an opportunity to remedy before any action could be taken. The court held that the applicant had no adequate alternative remedy, as damages would not provide similar protection to its rights to prospect on the property, especially given the limited time remaining under the agreement. The urgency of the matter was accepted due to the imminent expiry of the prospecting rights and the applicant's financial constraints. The court therefore granted the interdict and ordered restoration of access.

Court disposition

Application granted. Interdict and restoration of access ordered against first respondent. Costs awarded on party and party scale.

Orders

  • First respondent is ordered to restore the applicant's access to the property known as Farm Doornfontein 446 forthwith.
  • First respondent is interdicted and restrained from refusing or in any way prohibiting the applicant access to the property known as Farm Doornfontein 446.
  • First respondent is ordered to pay the costs of the application on the party and party scale.

02

Material facts

Parties

Liciano Coal (Pty) Ltd

Applicant Counsel: Adv. MJ Cooke

Assmang Ltd

Respondent Counsel: Adv. Y Alli

Ochre Shimmer Trade and Invest 78 (Pty) Ltd

Respondent

Amounts and remedies

  • Losses in Equipment Per Day: ZAR 35,000
  • Estimated Loss in Productivity Per Month: ZAR 4,000,000
  • Payment Ordered to Ochre Shimmer (previous Order): ZAR 1,387,700

03

Procedural history

  1. Posture

    Urgent Application / Final Order After Urgent Application

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant argued that it had complied with the previous court order by making the required payment to Ochre Shimmer, albeit late due to financial constraints. It contended that Assmang's refusal to restore access was unlawful and not justified by any breach of contract, as Assmang was not a party to the relevant agreement. The applicant further submitted that the alleged breaches raised by Assmang were either not material or not properly invoked under the Access agreement, and that the urgency was genuine due to the imminent expiry of the prospecting rights.
Respondent
Assmang argued that the applicant's late payment constituted non-compliance with the previous court order, causing the order to lapse. It further contended that the applicant had entered into subsequent agreements and made undertakings which had not been fulfilled, justifying the denial of access. Assmang also claimed that the applicant had alternative remedies, such as a claim for damages, and that any urgency was self-created by the applicant's own delays.

05

Court’s reasoning

  1. 01

    Setlogelo v Setlogelo 1914 AD 221

    A party seeking an interdict must show the absence of similar protection by any other ordinary remedy.

  2. 02

    Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326

    The test for contempt of a civil order is whether the breach was committed deliberately and mala fide; honest belief that non-compliance is justified avoids contempt.

  3. 03

    Access agreement clause 14

    Contractual breaches must be dealt with in accordance with the procedures set out in the contract, including notice and opportunity to remedy.

06

Ratio, limits and disposition

Ratio decidendi

The court found that Assmang was not entitled to refuse the applicant access to the property based on the late payment, as the relevant court order did not make access conditional on timeous payment to Ochre Shimmer. The alleged breaches raised by Assmang were not properly invoked under the Access agreement, which required written notice and an opportunity to remedy before any action could be taken. The court held that the applicant had no adequate alternative remedy, as damages would not provide similar protection to its rights to prospect on the property, especially given the limited time remaining under the agreement. The urgency of the matter was accepted due to the imminent expiry of the prospecting rights and the applicant's financial constraints. The court therefore granted the interdict and ordered restoration of access.

Obiter and limits

  • A claim for damages is not necessarily a bar to the granting of an interdict where it does not provide similar protection of rights.
  • Punitive cost orders are reserved for cases involving dishonesty, improper conduct, or fraud, and were not warranted in this case.
  • Assmang cannot rely on breaches of agreements to which it is not a party to deny access to the applicant.
  • The procedures for dealing with contractual breaches must be followed as set out in the contract, including notice and mediation or arbitration if necessary.

Court disposition

Application granted. Interdict and restoration of access ordered against first respondent. Costs awarded on party and party scale.

  • First respondent is ordered to restore the applicant's access to the property known as Farm Doornfontein 446 forthwith.
  • First respondent is interdicted and restrained from refusing or in any way prohibiting the applicant access to the property known as Farm Doornfontein 446.
  • First respondent is ordered to pay the costs of the application on the party and party scale.

Source and reliance status

Northern Cape High Court, Kimberley

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Authorities

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Setlogelo v Setlogelo 1914 AD 221

Case cited

Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326

Case cited

Peri-Urban Areas Health Board v Sandhurst Gardens 1965(1) SA TPD 683

Case cited

Mineral and Petroleum Resources Development Act, 28 of 2002

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