Liciano Coal (Pty) Ltd v Assmang Ltd and Another (2406/2016) [2016] ZANCHC 36 (2 December 2016)
- Citation
- [2016] ZANCHC 36
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Northern Cape High Court, Kimberley
- Panel
- Williams
- Case number
- 2406/2016
More details
- Court
- Northern Cape High Court, Kimberley
- Panel
- Williams
- Case number
- 2406/2016
On this page
Professional case brief
Research organized from the available case record
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 CookeAssmang Ltd
Respondent Counsel: Adv. Y AlliOchre Shimmer Trade and Invest 78 (Pty) Ltd
RespondentAmounts 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
Posture
Urgent Application / Final Order After Urgent Application
04
Questions and positions
Legal issues
- 01
Whether the applicant is entitled to restoration of access to the property known as Farm Doornfontein 446.
- 02
Whether the first respondent is entitled to refuse access based on alleged breaches and late payment.
- 03
Whether the applicant has an alternative remedy that precludes interdictory relief.
- 04
Whether the matter is urgent and urgency is self-created.
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
Legal principles
- 01
Setlogelo v Setlogelo 1914 AD 221
A party seeking an interdict must show the absence of similar protection by any other ordinary remedy.
- 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.
- 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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