Nuco Chrome Bophuthatswana (Pty) Ltd and Others v Mogale Alloys (Pty) ltd and Another (CIV F 05/10) [2011] ZANWHC 12 (11 March 2011)

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: CIV F 05/10

In the matter between:-

NUCO CHROME BOPHUTHATSWANA (PTY) LTD …............................First Appellant

DANIELINA CORNELIA BUTLER, NO and …....................................Second Appellant

PHILLIPUS ARNOLDUS OLIVER, NO

(AS EXECUTORS IN THE ESTATE OF THE LATE E C BUTLER)

GERRIT MARTHINUS VAN ZYL …..........................................................Third Appellant

and

MOGALE ALLOYS (PTY) LTD ….........................................................First Respondent

MARTIN ROSENBERG …................................................................Second Respondent

FULL BENCH APPEAL

HENDRICKS J; GUTTA J; MATLAPENG AJ

DATE OF HEARING : 04 FEBRUARY 2011

DATE OF JUDGMENT : 11 MARCH 2011

COUNSEL FOR THE APPELLANT : ADV P PAUW SC

with ADV C HARTFORD SC

COUNSEL FOR THE

FIRST RESPONDENT : ADV SA SOLOMON SC

with ADV KN TSATSAWANE

SECOND RESPONDENT : ADV P LEVENBERG SC

with ADV P STRATHERN

JUDGMENT

________________________________________________________________

HENDRICKS J

[A] Introduction:-

[1] This is an appeal with leave of the Court a quo per Lever AJ (as he then was) against certain of the interim interdicts granted on the 4th April 2008.

[2] The First Appellant is cited in the papers as Nuco Chrome Bophuthatswana (Pty) Ltd (“Nuco”), a company which had a prospecting right, issued in terms of the Mineral and Petroleum Development Resources Act, 2002 (“the MPRDA”), over certain land in the North West Province.

[3] Mr Edward Claude Butler (“Mr Butler”) and the First Respondent, Mogale Alloys (Pty) Ltd, (“Mogale”) allegedly entered into an agreement in terms of which 33% of the shareholding in Nuco was sold to Mogale. Litigation started during

February 2008, when Mogale applied for urgent relief against Nuco and Mr Butler in court a quo. The matter came before Gura J, who made an agreement a consent order of Court. The matter was to be fully argued on 3 March 2008.

[4] Mr Butler died on 20 February 2008. The executors of his estate, are his widow, Daneliena Cornelia Butler (“Mrs Butler”) and Phillipus Arnoldus Olivier (“Mr Olivier”). Mrs Butler and Mr Olivier comprise the Second Appellant in this appeal (“the Second Appellant”). The Second Appellant claims to be the majority shareholder in Nuco.

[5] As the Third Appellant is cited Gerhard Marthinus Van Zyl (“Mr Van Zyl”) who claims to be a shareholder and a director of Nuco. In the court a quo the Second and Third Appellants made common cause with each other. Mr Van Zyl, who claimed to be a director of Nuco purported to have authority to represent Nuco in those proceedings. Mr Van Zyl is however not a party to the present appeal proceedings as he opted to abide the decision of this Court.

[6] In the court a quo Mogale (as the First Applicant) sought an interim interdict, pending the outcome of an action to be instituted within 30 days from the date of grant of the interim interdict, preventing Nuco from mining and/or bulk sampling on the farms Boschfontein 286 JQ and Kookfontein 265 JO (“the mining property”). Mogale also sought an interim interdict against the late Mr Butler.

[7] During the period following the grant of the consent order, Mr Martin Rosenberg (“Mr Rosenberg”) got wind of the application made by Mogale. He applied for leave to intervene, which was eventually granted. He became the Second Applicant in the proceedings in the court a quo and laid claim to shares in Nuco by virtue of agreements concluded during 1989.

[8] Mr Rosenberg sought (in the court a quo) an interdict pending the outcome of an action or an application to be issued within 30 days from the date of the order seeking an order declaring that he is the owner of 45% of the issued share capital in Nuco. Pending the outcome of such action or application Mr Rosenberg sought inter alia to interdict and restrain the Appellants from directly or indirectly voting on, alienating or disposing of any shares in Nuco. Also that they be interdicted from issuing shares in Nuco as well as disposing of any of the assets of Nuco other than in the ordinary course of business.

[9] Further, Mr Rosenberg sought an interdict restraining the Appellants (as Respondents in the court a quo) from carrying out mining activities and/or bulk sampling on the mining property, as well as an interdict restraining them from extracting, removing and/or transferring out of the boundaries of the mining property, or selling or disposing of any material, except for core samples derived from diamond drilling extracted from the earth on the mining property in accordance with the current prospecting right relating to the mining property. Mr Rosenberg also sought the right to have access to the mining property on ordinary weekdays during the hours from 09H00 to 17H00.

[10] The matter came before Lever AJ. It was argued on the 3rd and 4th April 2008 and an interim order was granted on the 4th April 2008. Because of its importance, it is necessary to reproduce the orders in both the Mogale and Rosenberg applications.

In respect of the First Applicant [Mogale] the following order is made:-

“THAT

1. pending the final determination of an action to be instituted by the First Applicant within 30 (thirty) days from date of this order, the First, Second and Third Respondents ( ‘the Respondents’ ) are interdicted and restrained from:

1.1 conducting any bulk sampling on the farms Boschfontein 268 JQ and Kookfontein 265 JQ until such time as the relevant minister or the Department of Minerals and Energy furnishes permission in writing to the First Respondent to conduct bulk sampling on the said property;

1.2 removing and transferring out of the boundaries of the mining property, selling, disposing of any minerals, soil or any materials extracted from the mining property except for core samples derived from diamond drilling;

1.3 directly or indirectly from in any manner dealing with, or voting on, alienating or otherwise disposing of the 33% shareholding in the First Respondent, which is the subject matter of the sale of shares agreement – to the founding affidavit as annexure ‘FA3’.

2. Pending the final determination of the proceedings, the Respondent shall allow the First Applicant access to the mining property from Monday to Friday from 09h00 to 17h00 every day.

3. The Second and Third Respondents are directed to pay the costs of this application …

The cost referred to …”

In respect of the Second Applicant [Mr Rosenberg] the following order is made:-

“THAT:

1. Pending the final determination of an action or application (‘the proceedings’) to be issued by the Second Applicant within 30 (thirty) days of the date of this order seeking an order declaring that the Second Applicant is the owner of 45% of the issued share capital of the First Respondent, and/or, in the same or in a separate proceeding for final relief as set forth in paragraphs 1.3 to 1.6 herein, the First, Second and Third Respondents are interdicted and restrained from:

1.1 directly or indirectly voting on, alienating or disposing of any shares in the First Respondent;

1.2 issuing shares in the First Respondent;

1.3 disposing of any of the assets of the First Respondent other than in the ordinary course of business;

1.4 carrying out bulk sampling activities on the farms Bosch­fontein 268 JQ and Kookfontein 265 JQ until such time as the relevant as the relevant minister of the Department of Minerals and Energy furnishes permission in writing to the First Respon­dent to conduct bulk sampling on the said property;

1.5 extracting, removing and/or transferring out of the boundaries of the mining property, or selling or disposing of any material, except for core samples derived from diamond drilling extracted from the earth on the mining property, being the farms referred to in 1.4 above;

1.6 alienating, mortgaging or pledging any assets of the First Respondent.

2. Pending the final determination of the proceedings the Respondent shall allow the Second Applicant access to the properties referred to in 1.4 above from Monday to Friday from 09h00 to 17h00 every day.

3. Permitting the First Respondent to depart from the provisions of order 1 above in the event of that they obtain written consent from both the First and Second Applicants, but only in accordance with the terms of that written consent.”

[11] An application for leave to appeal was made and leave to appeal was granted on 06 May 2010. Full reasons were supplied and the following order was then made:-

“The applicants are granted leave to appeal to the full bench of the North West High Court, Mafikeng, against the orders granted on the 4 April 2008 and the relevant portions of the subsequent judgment related thereto, as follows:

(1) As relates to the Order in favour of the first respondent herein (first applicant in the court a quo);

(a) Leave to appeal is granted against the Order set out in paragraph 1.1 of the Order made on the 4 April 2008 in favour of the first respondent;

(b) Leave to appeal is granted against the Order set out in paragraph 1.2 of the Order made on the 4 April 2008 in favour of the first respondent;

(c) Leave to appeal is granted against the Order set out in paragraph 2 of the Order made on the 4 April 2008 in favour of the first respondent; and

(d) Leave to appeal is granted against the costs Orders set out in paragraph 3 and 4 of the Order made on the 4 April 2008 in favour of the first respondent.

(2) As relates to the Order in favour of the second respondent herein (second applicant in the court a quo):

(a) Leave to appeal is granted against the costs Order set out in paragraph 4 of the Order made on the 4 April 2008 in favour of the second respondent.

The costs relating to the application for leave to appeal, including the costs consequent upon the employment of two counsel, will be costs in the appeal.”

[B] Factual Background:-

[12] Lever AJ summarized the background facts in his judgment in the court a quo and I can do no better than to quote his summary. In summary, the factual background to the First Applicant’s case is that First Applicant entered into negotiations with the late Butler and made an offer to purchase 33% of the shares of the First Respondent subject to certain suspensive conditions. First Applicant alleges that Third Respondent played an active role in the formulation of this offer and that during these discussions and negotiations Third Respondent provided First Applicant with a copy of a shareholders agreement (FA2) concluded on the 12th July 2006 between First, Third, Fourth Respondents and the late Butler. The importance of this shareholders agreement (FA2) arises from the fact that it purported to supersede the First Respondents Articles of Association. The agreement (FA3), in which First Applicant claimed it had bought 33% of the share capital of the First Respondent, was concluded on the 24th August 2007.

[13] A further agreement between First Applicant, the late Butler, the Third Respondent and an entity known as Nuco Chrome Sands CC (“Nuco Chrome Sands” or “NCS”) was concluded on the 30th August 2007 (FA4). This agreement (FA4) provided for the sale of certain ore to NCS on certain conditions and Third Respondent

undertook not to exercise his right of pre-emption in Nuco arising from the terms of “FA3” as read with the shareholders

agreement (FA2). In giving effect to “FA3” Third Respondent signed a letter dated 28th August 2007 (“FA5”) addressed to Fourth Respondent informing Fourth Respondent of its rights of pre-emption in terms of “FA2”, the shareholders agreement.

[14] The response of Third Respondent to First Applicant’s allegations is that he does not recall supplying First Applicant with a copy of the shareholders agreement (FA2). Third Respondent denies that he was actively involved in the formulation of the offer (FA3) although he does admit that he was present in the late Butler’s home when such negotiations took place, but alleges that he had no knowledge of the contents of such negotiations. Third Respondent admits that he signed the letter addressed to Fourth Respondent informing Fourth Respondent of its rights of pre-emption. However, Third Respondent states that he was not the author of the letter and that he has no knowledge of whether such letter was ever sent or received by Fourth Respondent.

[15] Third Respondent then states that he signed the Nuco Chrome Sand agreement (FA4) at First Applicant’s offices without reading it as he assumed it was in order as the late Butler had already signed “FA3” and “FA4”. Third Respondent contends that he was later supplied with a copy of the Nuco Chrome Sands agreement (FA4) and it was only then that he read its terms and realized that he may have waived his rights of pre-emption. Third Respondent says approximately 2 weeks after receiving a copy of “FA4” he took legal advice, which advice is not disclosed as he claims the privilege to which he may be entitled, thereafter presumably as a result of such legal advice he sent a letter dated 22 November 2007 (FA10) to the late Butler purporting to exercise his rights of pre-emption claiming he had 180 days from the date of signature of “FA3” in which to exercise such right.

[16] On the 11th October 2007 the First Applicant sent a letter to the late Butler indicating inter alia that it was First Applicant’s understanding that the other shareholders of First Respondent had been given notice of their rights of pre-emption and that none of the other shareholders had exercised such rights within the relevant time. Such letter also set out that the R3 000 000 (three million Rand) part of the purchase price would be paid that day on the basis of that understanding. The late Butler was asked to respond immediately if his understanding of the position did not coincide with that of the First Applicant. On the following day, the R3 000 000 (three million Rand) was paid to the late Butler apparently through the offices of his then attorney Mr Van Niekerk (Van Niekerk). While there are significant disputes of fact it is common cause that the R3 000 000 (three million Rand) was paid and that some time around November 2007 First Applicant began prospecting on the mining property on behalf of First Respondent.

[17] The factual background to the Second Applicant’s case goes back to 1989 when the late Butler sought to obtain prospecting rights on the mining properties, which are owned by the Royal Bafokeng Nation (“RBN”). Apparently the late Butler was having trouble in contacting a person with the authority to represent the RBN in entering into agreements relating to the mineral rights then owned by the RBN. This is where Second Applicant came into the picture.

[18] Second Applicant had a relationship with the RBN at the time and he arranged what would now be called an “old order prospecting right” for First Respondent. In return for this service Second Applicant alleges he was given shares in First Respondent. This is evidenced by a shareholders agreement (annexure “L6” to Mr Lacob’s affidavit in the intervention application) between the late Butler, Errol Norman Keeton (“Keeton”) representing the Second Applicant and the First Respondent. In terms of this agreement the late Butler held 60 (sixty) shares and the Second Applicant, through a nominee Keeton held 40 (forty) shares.

[19] The Second Applicant’s name did not appear on any of the documents relating to First Respondent until Second Applicant filled in his name on a share transfer form which was signed in blank by Keeton. Keeton signed two share transfer forms in blank, the original shareholders agreement, as well as a declaration of trust and a letter of resignation as a director of the First Respondent. Second Applicant is in possession of the originals of these documents. In terms of this shareholders agreement (L6), the late Butler’s

shares were designated A class shares and the Second Applicant’s shares, held by Keeton as nominee, were designated B class shares. Although it now appears that these shareholdings were never recorded in the register of shareholders.

[20] In terms of the shareholders agreement A and B class shares held identical rights in the First Respondent. It is then alleged that this shareholders agreement was later amended by reducing the late Butlers holding in the First Respondent to 49 shares and increasing the Second Applicant’s shares in the First Respondent to 49 shares. In terms of this amended shareholders agreement two shares one A class and one B class were held by the resident director, one Mr Maree.

[21] On Second Applicant’s version Mr Maree held these shares as nominee for the late Butler and the Second Applicant respectively.

Keeton disputes the authority of the person who purported to represent him in entering into this amendment shareholders agreement.

Again these changes in shareholding do not appear to be recorded in the register of shareholders. At a later stage 10 (ten) shares were given to the RBN. Second Applicant states that he was not informed of this transaction, but states it had been contemplated by the late Butler and himself and he does not dispute it. Accordingly, Second Applicant presently asserts that he is the beneficial owner of 45 (forty five) shares in the First Respondent.

[22] Keeton deposed to an affidavit, which was filed by the Respondents, in which he stated that he had suffered a severe stroke in 1996 and that he has an impaired memory and that he does not remember some of the detail regarding this case. The detail that Keeton is very clear about, is that he held the shares referred to herein as Second Applicant’s nominee, he signed a declaration of trust, which from the terms of his affidavit he plainly concedes was in favour of Second Applicant. Keeton does not know whether his appointment as a director was actually effected and states he was never called upon to do anything as a director of First Respondent. It appears from Keeton’s affidavit that he agreed to be appointed as a director to represent Second Applicant even though he had his misgivings about the agreement and he wanted the late Butler and the Second Applicant to make alternative arrangements as soon as possible so that he could resign as a director of First Respondent.

[C] APPEALABILITY OF THE INTERIM INTERDICTS:-

[23] First Respondent in the proceedings before this court contended that the interim interdicts sought to be appealed against are not appealable and that the appeal ought to be dismissed with costs on this ground alone.

[24] In his reasons for granting leave to appeal, Lever AJ reasoned as follows:-

“[12]. By contrast the orders issued in terms of (a), (b) and (d) will not be re-visited as an issue to be decided or determined in the action pending in the South Gauteng High Court as they are not relevant to the first respondents’ claim for the transfer of shares in terms of the relevant sale of shares agreement. The orders contemplated in (a) and (b) were designed to protect the first respondent’s only real asset being the prospecting right. The contention was that if (a) or (b) were not granted and if the first respondent continued with its alleged conduct, the Minister might withdraw the prospecting right leaving the first respondent as a worthless shell. The order granted in respect of (d) was designed to allow the first respondent to determine whether the orders granted in terms of (a) and (b) were being adhered to by the first respondent. These orders are not relevant to the first respondent’s action pending in the South Gauteng High Court. In that sense they are final in effect and are definitive of the parties rights even if it is only for a limited period. In my view they fall into the category contemplated in the METLIKA matter and are appealable, subject of course to the other

jurisdictional requirement contemplated in the ZWENI matter, namely that the first respondents establish a basis for being granted leave to appeal in respect thereof.”

[25] It is contended on behalf of the First Respondent that it is clear from the above quoted paragraph that Lever AJ granted leave to appeal on the basis that the orders appealed against “are not relevant to the first respondent’s action pending in the South Gauteng High Court.” This is despite the fact that such orders were designed and granted in order “to protect the first respondent’s only real asset being the prospecting right” on the basis that if they “were not granted and if the first respondent continued with its alleged conduct, the Minister might withdraw the prospecting right leaving the first respondent as a worthless shell” effectively rendering the action in the South Gauteng High Court academic.

[26] For purposes of this appeal, in determining whether or not the interim interdicts are appealable, it is important to have regard to the general nature and purpose of the interim interdicts and in particular, the reason why Lever AJ granted them.

[27] Interim interdicts are generally and in their nature granted pendente lite. They are designed to protect the rights of a litigant pending the finalization of pending proceedings or proceedings to be instituted

by such litigant.

[28] In the present matter it is quite clear from the affidavits and indeed from the judgment of the court a quo that the issue to be determined in the action was whether the agreement of sale (FA3) was perfecta or not. This is apparent from the judgment itself where Lever AJ stated as follows:-

“These rights would of course flow from who has beneficial ownership of shares in the first respondent, which is in dispute. The purpose of the present application is to preserve and protect the rights and assets of the first respondent pending the outcome of the respective application or actions referred to in the Orders set out above. It is also necessary to bear in mind that no final relief was sought or granted against the first respondent (the first appellant). The effect of such Orders, insofar as it affects the first respondent, is to prohibit the first respondent from conducting "bulk sampling" and removing material from the mining property until the Minister or her representative authorises first respondent, in writing, to conduct bulk sampling and to remove and dispose of materials from the mining property. The said Orders also preserve the assets of the first respondent pending the outcome of the respective actions or application... Again, no final relief has been sought or granted against the first respondent.”

And later:-

“The right on which first applicant relies in order to seek all the interim relief set out above, flows from the agreement FA3 to purchase shares in the first respondent from the late Butler.”

(emphasis added.)

[29] It is quite apparent from the Judgment of the court a quo, that in dealing with the defences to the grant of the interim interdicts sought, the court a quo dealt with them on the basis that they are matters which would finally be determined by the court dealing with the contemplated action.

[30] The entitlement to such interim interdicts was substantially based upon the contractual terms and provisions of the sale of shares agreement (“FA3”), which provided for, inter alia, the following undertakings by the late Mr Butler on behalf of the company:-

the company shall not alienate or dispose of any material assets of the company;

the company shall undertake all such acts as are required to ensure that the terms and conditions of the issue of the permit are adhered to and no action is taken that will or may reasonably lead to the termination or lapsing of the permit.

[31] It was in order to afford the First Respondent such interim protection which was foreshadowed by the terms of the sale of shares agreement that led to the interim interdicts being granted. If the trial Court decides that the First Respondent had no entitlement to claim a 33% shareholding in the first appellant the interim protection afforded to it will fall away.

[32] In Zweni v Minister of Law and Order 1993 (1) SA 523 (A) the court held that:-

“8. 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 (Van Streepen & germs (Pty) Ltd case supra at 586I-587B, Marsay v Dilley [1992] ZASCA 114; 1992 (3) SA 944 (A) at 962C-F). The second is the same as the oft-stated requirement that a decision, in order to qualify as a judgment or order, must grant definite and distinct relief

...

In South African Druggists Ltd v Beecham Group Plc 1987 (4) SA 876 (T) at 880B-C the Full Bench held that unless an interlocutory order has a final and definitive effect on the main action it is not, for the purposes of s 20(1) of the Act, a ‘judgment or order’. Stated differently, it held that simple interlocutory orders are no longer appealable.

…

In the light of these tests and in view of the fact that a ruling is the antithesis of a judgment or order, it appears to me that, generally speaking, a non-appealable decision (ruling) is a decision which is not final (because the Court of first instance is entitled to alter it), nor definitive of the rights of the parties nor has the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings …”

[33] The above quoted passage from the Zweni case was considered by the Appellant Division in the matter of Knox D’Arcy Ltd and Others v Jamieson and Others, [1996] ZASCA 58; 1996 (4) SA 348 (SCA) at 357 C; 359 H; 372 C-F where the following was inter alia stated by EM Grosskopf JA:-

“In applying these principles one must first have clarity as to what 'the main proceedings' are to which reference is made. If one regards the application for an interim interdict as merely a procedural step in the action for damages, and that the action for damages constitutes the main proceedings, then the grant or refusal of an interdict would clearly not affect the outcome of the main proceedings. On that assumption a decision on such an application would then, applying the passage from Zweni's case, not be appealable. In my view that would, however, be a wrong way of looking at it. Although associated with a main action, the application for an interim interdict seeks to secure relief which is separate from that claimed in the action (see Bekker NO v Total South Africa (Pty) Ltd 1990 (3) SA 159 (T) at 164D-G). Its cause of action is different (as will be shown hereafter) and it may introduce additional parties. In its separateness it is analogous to the review dealt with in Trakman NO v Livshitz and Others 1995 (1) SA 282 (A) at 289G-290A and the application for recusal considered in Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service (AD),

unreported, judgment delivered 22 February 1996).”

[34] In Cronshaw and Another v Coin Security Group (Pty) Ltd [1996] ZASCA 38; 1996 (3) SA 686 (A) the Appellate Division (now the Supreme Court of Appeal) held that an interim interdict was appealable if it were final in effect and not susceptible to alteration by the court of first instance. In Metlika Trading Ltd & Others v Commissioner: SARS 2005 (3) SA 1 (SCA) the Supreme Court of Appeal held that:-

“In determining whether an order is final, it is important to bear in mind that ‘not merely the form of the order must be considered but also, and predominantly, its effect …

The order that steps be taken to procure the return of the aircraft to South Africa, as well as the other orders relating to the aircraft, were intended to have immediate effect, they will not be reconsidered at the trial and will not be reconsidered on the same facts by the Court a quo. For these reasons, they are in effect final orders …”

See also:- African Wanderers Football Club (Pty) Ltd v Wanderers Football Club 1977 (2) SA 38 (A).

[35] The Metlika case has been followed in, amongst others, South African National Defence Union (SANDU) v Minister of Defence & Others / Minister of Defence & Others v South African National Defence Union & Others 2007 (1) SA 402 (SCA). In paragraph [33] Conradie JA dealt with the appealability of interdicts preventing the SANDF from implementing a wide ranging transformation and restructuring programme pending resolution of a dispute through either conciliation or arbitration. In paragraph [39] Conradie JA said:-

“SANDU’s contention is that the first order is not appealable is misconceived. The order is not interim in the sense that it fate depends upon the final resolution of a dispute by the Court that granted it. It is temporary in nature, that is true, intended to fall away on the happening of a certain event, an award by the MAB, but it is not an interim order in the sense that it governs issues that will arise in the pending action and which entitle the Court which granted it to reconsider it.”

[36] It is trite law that, in determining whether a decision is appealable, “not merely the form of the order must be considered, but also, and predominantly, its effect.” What is

apparent from the above mentioned cases is that an order which is appealable has the following characteristics:-

The court a quo must not be able to correct it or set it aside at any time.

It must be definitive of the rights of the parties to the litigation.

It must dispose of a substantial portion of the relief claimed in the main action.

See also:- Pine Villa Country Estate v JR 209 Investments 2009 (4) SA 302 SCA.

[37] In Van Niekerk & Another v Van Niekerk & Another 2008 (1) SA 75 (SCA) the Supreme Court of Appeal refers to the Metlika judgment and, in the context of an Anton Piller order, said that it was not appealable, because it was procedural and aimed at the preservation of evidence. Mr Solomon SC correctly contended that the situation in the present case is analogous to the situation in that case.

[38] The interim interdicts were granted to protect the prospecting right pending the final determination of the action to be instituted. The nature of the interim interdicts granted were of the nature of an interim preservation order.

[39] The steps which had to be taken in the Metlika case are distinguishable from what the interim interdicts in this case relate to. The steps which had to be taken in the Metlika case were immediate and once-off steps. In this case, the duration of the interim interdicts albeit immediate is limited to the finalization of the action. They did not determine finally (or even partially), any of the rights of the parties. They were granted for a limited period and for a specific purpose.

[40] The issue whether or not an interim interdict pending an action to be instituted is final in effect does not depend solely on whether or not a court “will revisit it” in the main proceedings. In this case, if it is found in the action proceedings in the South Gauteng High Court that the First Respondent is not entitled to the shares which are in dispute, the interim interdicts will automatically fall away due to

the fact that they were granted on the basis that the First Respondent had established a prima facie right to the shares in dispute, and was thus entitled to interim protection (as foreshadowed in the agreement of sale) pending a decision on whether the First Respondent was entitled to transfer of the shares in question.

[41] The nature of the interim interdicts is such that they do not have to be reconsidered in the action. The relief sought in the action although in form is different from the relief sought in the interim interdict proceedings they are interlinked and inter-related and will lapse upon final adjudication of the trial proceedings. They were granted to ensure that the first respondent will, if successful in the main action, receive adequate and effective relief. For this reason, this purpose will be defeated if they are appealable before the final determination of the main action. Hence they are not final in form and effect.

[42] In addition, the interim interdicts in this case may have been set aside or amended by the court a quo if ministerial consent was granted to the first appellant to conduct bulk-sampling. It is clear from the interim interdicts that it was contemplated that upon receipt of ministerial consent to do bulk-sampling, the first appellant could approach the court a quo and satisfy it that it has obtained that consent and request the court a quo to either amend or set aside the interim interdicts though this never occurred. In the premises, by their very nature, the interim

interdicts in this case are not final in effect whereas this was not the case in the Metlika matter. It is common cause that none of the parties approached the court a quo for variation of the interim interdicts.

[43] The interim interdicts in issue in this appeal were granted pending the final determination of an action, (the main action) in the South Gauteng High Court. In the premises, the following is evident:-

(a) Pending the final determination of the action, either party to the litigation is free to approach the court a quo to correct or alter the interim interdicts. By way of an example, if the First Appellant obtained ministerial consent to conduct bulk-sampling, it would be perfectly entitled to approach the court a quo to correct or even set aside the interim interdicts. This is so due to the fact that the interim interdicts did not prevent the First Appellant from obtaining the necessary ministerial consent to do that which the interdicts prevent it from doing.

(b) The interim interdicts are not definitive of the rights of the parties. The interim interdicts were granted simply on the basis that the First Respondent established only a prima facie right to the shares, the transfer of which is sought in the main action. At issue in the main action is whether or not the First

Respondent is entitled to take transfer of 33% of the First Appellant’s issued share capital and this has not been determined by the court a quo. In the premises, the interim interdicts are not definitive of the rights of the parties.

(c) The main action relates to the transfer of 33% of the First Appellant’s issued share capital to the First Respondent. This is the main and only relief sought in the main action. The interim interdicts did not dispose of any portion of this relief. Accordingly no portion of the relief which is claimed in the main action has been disposed of. The interim interdicts were granted pending a determination of the issue of ownership concerning First Appellant’s shares, as such the interim interdicts did not dispose of any portion of the relief but simply provided a holding mechanism for the protection of the main asset of the First Appellant, viz the prospecting right, until such time as the ownership of the 33% shareholding could be determined.

[44] In my view, the court a quo, erred in having regard to the form of the interdictory relief granted rather than its substance when he granted leave to appeal. Had he considered the substance he would have been obliged to conclude that such interim interdicts were not “of a final nature” as contemplated in the cases referred to and for this reason, they are not appealable.

[45] An important consideration on this issue is the fact that Lever AJ did not grant the Appellants leave to appeal against the order interdicting and restraining them from “directly or indirectly from in any manner dealing with, or voting on, alienating or otherwise disposing of the 33% shareholding in the First Respondent which is the subject matter of the sale of shares agreement attached to the founding affidavit as annexure “FA3”. The dispute between the parties relates to these shares and nothing more. This means that Lever AJ was of the view that the first Respondent had established a prima facie right, though open to some doubt, to the shares and that leave to appeal on such issue could not be granted. The Appellants seem to have accepted this position as they did not apply for further leave to appeal against this finding to the Supreme Court of Appeal. In my view, the Learned Judge in the court a quo erred, in granting leave to appeal against the relief set out in paragraphs 1.1, 1.2 and 2 of his order and in fact should have held that such interim interdicts fell into the same category as the relief sought in paragraph 1.3. They are indeed inter-related and interdependent upon each other.

[46] Having concluded that the interim interdicts (orders) are not final in effect and therefore not appealable, there is no need to consider the merits of the appeal in any detail. Suffice to say that all the requirements for the granting of this interim relief was complied with and the court a quo correctly granted the said interim relief. The appeal should be dismissed on this ground alone.

[D] Locus Standi:-

[47] However, another aspect that needs to be considered is the locus standi of the First and Second Appellants in determining whether this appeal is properly before this Court.

[48] The relief sought by Mogale was opposed by the Second Appellants and Mr Van Zyl ostensibly on behalf of the First Appellant. Lever AJ in the court a quo found that the Second Appellants and Mr Van Zyl had no locus standi to represent the First Appellant. No appeal has been lodged against this finding and it therefore stands. As already indicated earlier on in this judgment, the issue is thus res judicata.

[49] Mr Van Zyl has not appealed against the interim orders granted and it is only the Second Appellant that has done so purportedly on behalf of the First Appellant. It is apparent from the judgment that the orders in respect of which leave to appeal was granted affected the First Appellant only. These interim orders concern bulk-sampling on the mine property by the First Appellant.

[50] The portion of the relief which affects the Second and Third Appellants and Mr Van Zyl is not the subject-matter of the present appeal. This is the relief concerning the interdict relating to the dealing with or voting on the 33% shareholding in the First Appellant. In light of the findings of the court a quo in regard to the Second Appellants’ and Mr Van Zyl’s lack of standing to act and represent the First Appellant the appeal should be dismissed.

[51] At the hearing of this appeal, two letters were handed in by counsel representing the First Respondent. Because of the importance of the contents, the said letters are reproduced hereinafter.

The First letter reads:-

“Sir

MOGALE ALLOYS (PTY) LTD / NUCO CHROME BOPHUTHATSWANA (PTY) LTD & THREE OTHERS

APPEAL: 4 FEBRUARY 2011

We refer to the abovementioned matter.

Please find attached a Notice of appointment as attorneys for the First Appellant that was served on our offices.

Kindly furnish us with your instructions.

Yours faithfully”

The notice attached to this letter reads:-

“NOTICE OF APPOINTMENT AS ATTORNEYS OF RECORD

BE PLEASED TO TAKE NOTICE THAT the First Appellant hereby appoints Attorneys Gary Rachbuch & Associates c/o Minchin & Kelly Inc.

BE PLEASED TO TAKE FURTHER NOTICE THAT all process and pleadings will now be received on behalf of the First Appellant at the address as set out below.

DATED at MAFIKENG on the 31ST JANUARY 2011”

The Second letter reads:-

“Dear Sirs

APPEAL – 4 FEBRUARY 2011

NUCO CHROME BOPHUTHATSWANA (PTY) LTD & OTHERS v MOGALE ALLOYS (PTY) LTD & MARTIN ROSENBERG

1. ……….

2. ……….

3. ……….

4. Finally, we place on record that we do not represent the First Appellant (Nuco) in the appeal.

[52] It is clear from the contents of the Second letter that the First Appellant is not legally represented at this appeal hearing – at least not by the attorneys representing the Second Appellants. Mr Pauw SC on behalf of the Second Appellants submitted that in view of the wording of the orders granted, the Second Appellant is properly before this Court on appeal in their personal capacity (because the orders affect them directly as well as in their representative capacity Danielina Cornelia Butler as heir of the shares of the late Mr Butler and together with Olivier as executors of the estate of the late Mr Butler).

[53] It is common cause that no resolution was passed by the First Appellant as a company, granting the Second Appellants the right to represent it. Authority to represent a company does not flow automatic from the fact that because a person is a shareholder in the said company therefore (s)he is entitled to represent the company and cloth with the necessary authority to do so.

[54] It is important to note the contents of the orders granting leave to appeal which are repeated in paragraph [11] above. These orders are very limited and specific with regard to the leave granted. Leave was granted to the First Appellant to appeal certain of the orders and not to the Second Appellants to do so on behalf of the First Appellant.

[55] Mr Solomon SC on behalf of the First Respondent submitted that in order to understand the orders granting leave to appeal, one must read same in conjunction with the notice of motion (before its amendment). The relief sought against the First Appellant is distinctly different

from that sought against the other Appellants. If one have regard to this, so it was submitted, it is not difficult to detect that Lever AJ erred in granting the orders in the manner he did. I find that there is merit in this submission. Second Appellants lacks the necessary locus standi to represent the First Appellant in the appeal proceedings. On this basis of lack of authority too, this appeal must be dismissed.

[E] COSTS:-

[56] In its judgment, the court a quo granted costs orders in favour of the Applicants (Respondents in this appeal) though this was interim interdicts. The court was mindful of the general practice applicable to the granting of interim interdicts, namely that the question of costs should be reserved for determination by the trial court.

[57] The court a quo felt that it was justified to depart from this usual practice “because of the way the Respondents (Appellants in this appeal) ran their case” in a “fast and loose” manner with the Applicants (Respondents in this appeal) and the court. The court a quo found that because of the existence of exceptional circumstances, it was justified to grant the aforementioned costs orders at that stage.

[58] In Maccsand CC v Macassar Land Claims Committee and Others 2005 (2) All SA 469 (SCA) the Supreme Court of Appeal held:-

“[13] I turn now to the costs order made by the learned Judge. Costs orders are, in the absence of exceptional circumstances, not generally made in interlocutory interdict proceedings since the court finally hearing the matter is in a better position, after hearing all the evidence, to determine whether or not the application is well founded (see EMS Belting Co of SA (PTY) Ltd and others v Lloyd and another 1983 (1) SA 641 (E) 644H, confirmed in Airoadexpress (Pty) Ltd v Chairman, Local Road Transportation Board, Durban, and others [1986] ZASCA 6; 1986 (2) SA 663 (A) at 683A).”

[59] It was contended on behalf of the First Respondent that although the Maccsand CC v Macassar Land Claims Committee & Others established that as a general rule costs would not be awarded in interlocutory interdict proceedings, this does not override a Court’s general discretion in respect of questions of costs provided the discretion has been exercised judicially.

Furthermore, it was contended that while a Court of appeal has the power to alter a decision as to costs, it will exercise this power sparingly. Before a Court of appeal will interfere with an order for costs it must be satisfied that there has not been a judicial exercise of the lower court’s discretion.

[60] It was also contended that the Court on appeal will interfere in the following circumstances:-

[i] where the exercise of the discretion has not been proper;

[ii] where the decision has been based upon a wrong principle;

[iii] where the decision has been based upon a wrong view of the facts;

[iv] where the Court has purported to exercise its discretion without sufficient legal grounds for doing so; or

[v] where the Court has wrongly held that it has no discretion at all; or

[vi] where some well-recognized principle or rule with regard to the awarding of costs has been violated.

[61] As far as Rosenberg is concerned, the court a quo granted leave to appeal against the costs order only. The case of Rosenberg that is before this Court, concerns the costs order only. The Second Respondent contended that because leave to appeal was granted in as far as he is concerned only against the cost order, the grounds and scope of appeal is extremely limited. This is indeed the correct approach. Both Respondents contended that although Lever AJ in the court a quo departed from the general rule concerning costs of an interim application, that court enunciated reasonable grounds for doing so.

[62] I have carefully considered the grounds listed by Lever AJ in his judgment on costs to determine whether or not they are exceptional and indeed so exceptional that it warranted to granting thereof at that stage of the proceedings. In my view, the circumstances listed by Lever AJ are by no means exceptional and indeed did not warrant the granting of the costs orders at that stage. It would have been more appropriate in the light hereof to have reserved the question of costs for the determination by the trial court.

[63] Mr Levenberg SC brought it to the attention of this Court that when the matter was before Gura J for a postponement, no order as to costs was made in favour of the Second Respondent. He contended that this Court can, I presume because of the inherent powers of review, rectify the situation and grant costs in favour of the Second Respondent for that date (03 March 2008). Mr Pauw SC, on behalf of the Second Appellants correctly pointed out that the Second Respondent should have taken this issue on appeal, which was not done. I find myself unable to accede to Mr Levenberg’s request.

[F] CONCLUSION

[64] In all the circumstances, I find that the interim interdicts are not appealable and leave to appeal should not have been granted in the first place. So too, does the lack of locus standi contribute to the fact that the appeal ought to be dismissed with costs.

[G] ORDER

[65] Consequently, the following order is made:-

[i] The appeal is dismissed with costs. Such costs to include the costs occasioned by the employment of two counsel.

[ii] The order of the court a quo in relation to costs is set aside and is substituted with the following:-

“Costs of the application are reserved and is to be determined by the trial court.”

R D HENDRICKS

JUDGE OF THE HIGH COURT

I agree.

N GUTTA

D I MATLAPENG

ACTING JUDGE OF THE HIGH COURT