Tegeta Exploration and Resources (Pty) Ltd and Others v Knoop and Others (035371/2023) [2024] ZAGPPHC 144 (20 February 2024)

REPUBLIC OF SOUTH

AFRICA

IN THE HIGH COURT OF

SOUTH AFRICA

GAUTENG DIVISION,

PRETORIA

Case No: 035371/2023

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3)

REVISED

DATE: 20/02/2024

SIGNATURE

In the matter between:

TEGETA

EXPLORATION AND RESOURCES

(PTY)

LTD

First Applicant

KOORNFONTEIN MINES (PTY) LTD Second Applicant

OPTIMUM COAL MINE (PTY) LTD

Third Applicant

OPTIMUM COAL TERMINAL (PTY) LTD Fourth Applicant

RONICA

RAGAVAN

Fifth Applicant

DHANASEGARAN

ARCHERY

Sixth Applicant

and

KURT

ROBERT

KNOOP

First Respondent

JOHAN

LOUIS

KLOPPER Second Respondent

JUANITO

MARTIN DAMONS

Third Respondent

KGASHANE

CHRISTOPHER MONYELA Fourth Respondent

In re:

TEGETA

EXPLORATION AND RESOURCES

First Applicant

(PTY)

LTD

KOORNFONTEIN MINES (PTY) LTD

Second Applicant

OPTIMUM COAL MINE (PTY) LTD

Third Applicant

OPTIMUM COAL TERMINAL (PTY)

LTD

Fourth Applicant

RONICA

RAGAVAN

Fifth Applicant

DHANASEGARAN

ARCHERY

Sixth Applicant

RAYMOND

PETER VAN ROOYEN

Seventh Applicant

KURT

ROBERT

KNOOP

First Respondent

JOHAN

LOUIS

KLOPPER

Second Respondent

JUANITO

MARTIN

DAMONS

Third Respondent

KGASHANE

CHRISTOPHER MONYELA

Fourth Respondent

PETRUS FRANCOIS VAN DEN STEEN N.O.

Fifth Respondent

ALL

AFFECTED PARTIES OF TEGETA

Sixth Respondent

EXPLORATION AND RESOURCES (PTY) LTD

AS REFLECTED IN “A”

ALL

AFFECTED PARTIES OF KOORNFONTEIN

Seventh Respondent

MINES (PTY) LTD AS REFLECTED IN “B”

ALL

AFFECTED PARTIES OF OPTIMUM COAL Eighth Respondent

MINE (PTY) LTD AS REFLECTED IN “C”

ALL

AFFECTED PARTIES OF OPTIMUM COAL Ninth Respondent

TERMINAL (PTY) LTD AS REFLECTED IN “D”

THE

COMPANIES AND INTELLECTUAL PROPERTY

Tenth Respondent

COMMISSION

Delivered: This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 20 February 2024.

JUDGMENT: APPLICATION

FOR LEAVE TO APPEAL

PHOOKO

AJ

INTRODUCTION

[1] This is an application for leave to appeal to the Supreme Court of Appeal against my judgment granted on 20 November 2023.

[2] Section 17(1) of the Superior Courts Act, Act 10 of 2013 ("the Superior Courts Act"), regulates applications for leave to appeal and provides:

‘(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.’

[3] The test in an application for leave to appeal before the promulgation of the Superior Courts Act was whether there were reasonable prospects that another court may come to a different conclusion. However, this is no longer the position. Section 17(1)(1) of the Superior Courts Act has raised the bar. In The Mont Chevaux Trust v Tina Goosen & 18 Others[1] it was held that:

'It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Cornwright & Others 1985 (2) SA 342 (T) at 343H. The use of the word "would" in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.'

[4] Consequently, in considering the application for leave to appeal this Court must remain cognizant of the higher threshold that needs to be met before leave to appeal may be granted.[2] There must exist more than just a mere possibility that another court will, and/or not might, find differently on both facts and law.[3]

[5] In so far as the leave to appeal against my judgment, I have carefully considered the written and oral submissions of the parties including the judgment of the Supreme Court of Appeal in Islandsite Investments (Pty) Ltd v The National Director of Public Prosecutions and Others[4] (“Islandsite”) which was delivered approximately two weeks post my judgment.

[6] I am of the view that on one hand, the respondent rehashed its arguments as made in the court a quo to the effect that the directors have the requisite authority to appoint attorneys to litigate on behalf of the company. On the other hand, I have noted the applicant’s submission in that the decision in Islandsite is clear in that the “distinction sought to be drawn between powers of management and governance of companies [is] unhelpful in the present enquiry”[5], and that “there are remedies available to interested parties such as directors”[6] where they seek to represent a company that is undergoing through the business rescue process.

[7] In light of the above observation, I am of the view that another court will come to a different conclusion.

[8] Rule 42(1) provides that a court may mero motu or on application, rescind or vary;

‘(a) …

(b) An order or judgment in which there is an ambiguity, error or

omission;

(c) …’

[9] Concerning the order about costs, it is important to reproduce the order I granted as is below:

‘(a) The application for condonation is refused.

(b) The application in respect of prayers 1, 3, and 4 is dismissed with costs on party and party scale including the costs of two counsel, one being senior counsel.

(c) It is declared that the authority of Van der Merwe and Van der Merwe attorneys have been established and that Van der Merwe and Van der Merwe attorneys are authorized to represent the Second Applicant in the removal application.

(d) It is declared that the authority of Van der Merwe and Van der Merwe attorneys have been established and that Van der Merwe and Van der Merwe attorneys are authorized to represent the Fifth Applicant in the removal application.

(e) It is declared that the authority of Van der Merwe and Van der Merwe attorneys have been established and that Van der Merwe and Van der Merwe attorneys are authorized to represent the Sixth Applicant in the removal application.

(f) The First to Fourth Respondents are ordered to pay the applicant’s costs on party and party scale including the costs of two counsel’.[7]

[10] Although I struggled to follow the applicant’s submissions about the ambiguity of the cost order concerning paragraph (f) as outlined in paragraph 9 above, I have nonetheless noted that there exists a possibility of ambiguity depending on how one reads the aforesaid paragraph 9. I accordingly vary that portion of my judgment in terms of Rule 42 (1) (b) and rectify it to read to the effect that the costs referred to in paragraph (f) are in respect of the relief granted in paragraphs (c), (d), and (e) of the judgment of the court a quo.

[11] In the result:

(a) Leave to appeal is granted to the Supreme Court of Appeal against paragraph 78(c) of the judgment and order handed down on 20 November 2023.

(b) The order of the court a quo on costs is varied to read “The First to Fourth Respondents are ordered to pay the applicant’s costs on a party and party scale including the costs of two counsels, these being costs granted in paragraph (f) in respect of relief granted in paragraphs (c), (d), and (e)”.

(c) Costs of the application for leave to appeal are costs in the appeal.

PHOOKO AJ

ACTING JUDGE OF THE HIGH COURT,

APPEARANCES:

Counsel for Fifth to Fourth: Adv GD Wickins SC and Adv LVR van Tonde Applicants: Instructed by: Smith Sewgoolam Incorporated Counsel for the Respondents: Adv L Van Gass Instructed by: Instructed by VDM Attorney Date of Hearing: 8 February 2024 Date of Judgment: 20 February 2024

[1] 2014 JDR 2325 (LCC) at para 6.

[2] See Fair-Trade Independent Tobacco Association v President of the Republic of South Africa and Another [2020] ZAGPPHC at para 6.

[3] Ibid.

[4] [2023] ZASCA 166 (1 December 2023).

[5] Ibid at para 21.

[6] Ibid at para 22.

[7] Judgment of the court a quo at para 78.