Samancor Chrome Limited v Bila Civil Contractors (Pty) Limited and Others (40526/19) [2019] ZAGPPHC 583 (30 September 2019)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED

CASE NO.: 40526/19

30/9/2019

In the matter between:

SAMANCOR CHROME LIMITED Applicant and BILA CIVIL CONTRACTORS (PTY) LTD RICHARD FANI BILA THOMAS TIME BILA PHINDILE PRECIOUS KHUMALO ELISAMINA SIBIYA First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Respondent

JUDGMENT

VAN DER WESTHUIZEN, J

[1] The present application is brought by way of urgency following on a previous urgent

application where an order interdicting the first respondent from continuing mining operations on two separate properties that the applicant owns and co-owns respectively. The relief sought in the present application relates to contempt proceedings against the respondents for non-compliance with that part of the order relating contained in paragraphs 89.1.1 and 89.1.2 of the previous order. Secondly, relief is sought in terms of the provisions of section 18 of the Superior Courts Act, 10 of 2013. In addition, the applicant seeks to join the second to fifth respondents, the directors of the first respondent, and that the contempt order is granted against them as well.

[2] The first respondent does not oppose the application to join its directors. Neither of the directors, sought to be joined, opposes the application for joinder. It follows that an order for joinder stands to be granted.

[3] The Constitutional Court held in Matjhabeng Municipality v Escom that whether the contempt is criminal or civil, it is punishable as a crime.[1]

[4] The applicant seeks that the contempt order be granted immediately following on the order for joinder. Non constat that such consent to be joined and such joinder being granted, implies that a contempt order can be summarily granted against them. Such approach by the applicant ignores the basic right that a party has, namely that it is entitled to be heard before an order is granted against him or her or it.[2] In my view it constitutes a summarily find of contempt without the respondents having the opportunity of being heard. The issue of urgency impacts upon the unfairness of the procedure followed for what follows.

[5] It was held by the Appellate Division (as it was known then) R v Keyser[3] that

“But counsel for the Crown fairly and properly admitted that in every case of contempt ex facie curiae dealt with by our courts without a criminal trial, the proceedings were commenced by an order, served upon the offender, containing particulars of the conduct alleged to constitute the contempt of court complained of, and calling upon the offender to appear before the court and to show cause why he should not be punished summarily for the alleged contempt of court.”

[6] In the present instance, the applicant seeks an order for contempt by way of urgency

upon joinder of the second to fifth respondents. The principle enounced in Keyser, supra, and endorsed in Matjhabeng, supra, has clearly not been complied with.

[7] Furthermore, the applicant seeks an order in terms of the provisions of section 18(1) of the Superior Courts Act simultaneously with the contempt order.

[8] It follows, in my view, that the applicant is not, upon the facts in this matter, entitled to obtain an order for contempt summarily against the respondents without them being granted an opportunity to be heard. The principle enunciated in Keyser, supra, has not been complied with and no explanation has been provided for a deviation of that principle.

[9] The application for a contempt order stands to be dismissed.

[10] As recorded earlier, the applicant seeks an order in terms of the provisions of section 18(1) of the Superior Courts Act. That section provides as follows:

“Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.”

[11] It was held in Ntlemeza v Helen Suzman Foundation et al[4] that on a proper interpretation of the provisions of section 18(1) of the Superior Courts Act, it is not a requirement that a pending application for leave to appeal is present before the provisions of that section may apply. The Supreme Court of Appeal held that all that was required was that further applications for leave to appeal were in the offing.[5]

[12] In the present matter, the order by Neukircher, J., was granted on 1 July 2019. On 2 July 2019, the first respondent filed an application for leave to appeal the order of 1 July 2019. That application was heard on 12 August 2019 and dismissed.

[13] The application for leave to appeal having been dismissed, there was nothing suspending the

operation of the order of 1 July 2019. It had to be complied with.

[14] However, on 19 August 2019, the first respondent advised the applicant that it would petition the Supreme Court of Appeal for leave to appeal. In terms of the dictum in Ntlemeza, supra, the applicant was acutely aware that the first respondent sought to employ the application for leave to appeal as a tool to suspend the operation of the order of 1 July 2019. It follows that the applicant is entitled to apply for the operation and execution of the order of 1 July 2019, pending the determination of the intended application for leave to appeal and the appeal itself.

[15] It is common cause that as at the date of the hearing of this application, the first respondent has not filed the intended application for leave to appeal. During argument, the first respondent was challenged to indicate whether it indeed intended to file such application and when it so intended to do.

[16] The challenge was accepted and it was submitted on behalf of the first respondent that such an application would indeed be filed within the following few days. The debate in respect of whether the time period set for the filing of such application had expired and whether an application, in the event that the time period have indeed expired, seeking that the lateness of the application for leave be condoned, is neither here not there. The stated intention to apply for leave to appeal directed at the Supreme Court of Appeal is, in my view, sufficient to warrant the application in terms of section 18(1) of the Superior Courts Act.

(a) Whether or not “exceptional circumstance” exist; and

(b) proof, on a balance of probabilities by the applicant of –

(i) the presence of irreparable harm to the applicant/victor, who wants to put into operation and execute the order; and

(ii) the absence of irreparable harm to the respondent/loser, who seeks leave to appeal.

[18] In the present matter, it is submitted on behalf of the respondent that the applicant has dismally

failed in proving compliance with the aforementioned requirements. This submission is without merit. The submission is partly premised

upon a wrong understanding of the judgment and order of Neukircher, J.

[19] The part of the order that the applicant seeks to put into operation and execute upon reads as follows:

“89.1 In respect of Remaining Extent of Portion 2 of the farm Elandskraal 469 JQ North West Province:

89.1.1 the first respondent, its employees and contractors and (sic) interdicted and restrained from conducting, facilitating or being involved in any manner of whatsoever in mining operations on this property;

89.1.2 the first respondent, its employees and contractors and (sic) interdicted and restrained from the removal of any material containing chrome or chrome ore or other minerals from this property outside of that allowed by its prospecting right.”

[20] The applicant holds a mining operation permit over the Remaining Extent of Portion 2 of the farm Elandskraal 469 JQ North West Province. It is common cause that it indeed conducts mining operations there. It is further common cause that the first respondent holds a prospecting permit over the same property, it having obtained such permit during 2018.

[21] A purposive reading of the afore quoted passage of the order of Neukircher, J., reveals that the first respondent is only interdicted from conducting mining operations on the said property and not in respect of its prospecting right. It is trite, and in fact common cause, what constitutes mining operations and prospecting operations and I need not determine that. It is also common cause that the first respondent does not hold a mining permit over the said property.

[22] It is further common cause that the applicant’s rights in respect of a valid permit over the said property has been found to exist by Neukircher, J.

[23] Thus, when determining whether the applicant has proven any irreparable harm that may accrue to the first respondent, it has shown:

(a) that the first respondent holds no mining operations permit over the said property;

(b) that first respondent may continue to exercise its prospecting right over the property;

(c) hence, that should the orders in paragraphs 89 of the judgment of Neukircher be declared

operational and enforceable, pending the filing of an application for leave to appeal and pending the appeal if leave is granted, the first respondent will suffer no irreparable harm. It may continue to exploit its prospecting rights.

[24] In my view, the applicant has further shown that:

(a) the first respondent’s conduct complained of constitutes mining operations, despite the first respondent’s protestations in that regard;

(b) the first respondent holds the information to gainsay any allegation by the applicant in that regard, but has decidedly chosen not to inform the court in that instance;

(c) accordingly, the only inference to be drawn in that respect is that the first respondent is in fact conducting mining operations over the said property as shown by the applicant’s uncontroverted evidence;

(d) the evidence placed before the court by the applicant at least prima facie shows the first respondent’s conduct complained of requires an answer that is not met by the first respondent, its protestations to the contrary nevertheless. The respondents hold the required information as demonstrated by the applicant;

(e) the applicant would suffer irreparable harm should the order of Neukircher, J., not be made operational and enforceable pending any possible application for leave to appeal and any appeal following thereon.

[25] In respect of the application in terms of the provisions of section 18(1) of the Superior Courts Act, the first respondent has been less than candid with the court. It has chosen to raise technical point and deliberately decided to ignore

the pertinent facts raised in the founding affidavit, where it is in a position to gainsay such allegations, it holding all the relevant detail of its conduct complained of.

[26] In my view, the applicant has in fact proven “exceptional circumstances” to succeed with its application for an order declaring that portion of the order of Neukircher, J., operational and enforceable. Furthermore, the applicant holds a pre-existing mining permit over the said property, whilst the first respondent only holds a prospecting right over the said property. The first respondent may not conduct operations other than that permitted by its prospecting permit.

[27] It follows that the applicant is entitled to an order in terms of the provisions of section 18(1) of the Superior Courts Act.

(a) The second to fifth respondents are joined as parties to this application;

(b) The application for contempt is dismissed with costs, such costs to include the costs consequent

on the employ of two counsel where applicable;

(c) It is declared that paragraphs 89.1.1 and 89.1.2 of the order of Neukircher, J. dated 1 July 2019 is operational and enforceable pending any application or petition for leave to appeal to the Supreme Court of Appeal and, where leave is granted, pending the finalisation of the appeal, in accordance with section 18(1) of the Superior Courts Act, 2013;

(d) The respondents are to pay the costs in respect of the declarator in paragraph (c) above jointly and severally, the one paying the other to be absolved, such costs to include the costs occasioned by the employment of two counsel where applicable on a scale as between attorney and client;

(e) It is declared that the employment of senior counsel on both sides was warranted.

C J VAN DER WESTHUIZEN

JUDGE OF THE HIGH COURT

On behalf of Applicant: J P Daniels SC

GD Wickins

Instructed by:

Malan Scholes Inc.

On behalf of Respondent: D C Mpofu SC

T Motloenya

Instructed by:

Mabuza Attorneys

ADDENDUM TO JUDGMENT DELIVERED

ON 30 SEPTEMBER 2019

[1] This addendum is to be read together with the judgment delivered on 30 September 2019.

[2] After delivering the judgment, it sprang to mind that I have not dealt with the so-called

counterclaim contained in the first respondent’s answering affidavit. Hence this addendum.

[3] Whether it is indeed a counterclaim and in the appropriate format, is not to be decided at this stage for what follows.

[4] It is trite that a counterclaim is an independent, separate and distinct claim. It

stands alone despite the fact that it might be interrelated to the main claim. A counterclaim does not require as of habit to be decided when the main claim is decided. It can be considered before the main claim, at the same time or at a later stage depending on the particular circumstances.

[5] The main claim was brought by way of urgency. The first respondent submitted that the main claim suffers from various ailments and should be dismissed for that reason alone. However, the first respondent did not advance any reasons why the counterclaim should be heard as a matter of urgency. It argued none.

[6] Furthermore, the counterclaim is not ripe for hearing, the applicant not being in a position to answer thereto due to the tight time constraints for the hearing of the matter.

[7] It follows that the counterclaim stands to be struck from the urgent roll.

[8] I recall the order granted on 30 September 2019 and substitute it with the following

order.

I grant the following order.

(c) It is declared that paragraphs 89.1.1 and 89.1.2 of the order of Neukircher, J. dated 1 July 2019 is operational and enforceable pending any application or petition for leave to appeal to the Supreme Court of Appeal and, where leave is granted, pending the finalisation of the appeal, in accordance with section 18(1) of the Superior Courts Act, 2013;

(f) The first respondent’s counterclaim is struck from the roll for want of urgency.

[1] 2018(1) SA 1 (CC) at [50]-[53]

[2] ibid at [58]

[3] 1951(1) SA 512 (A) at 518E-F endorsed in Matjhabeng, supra, at [79]

[4] 2017(5) SA 402 (SCA) at [25]-[32]

[5] Ibid at [31]

[6] Ntlemeza, supra, at [28]

[7] Incubeta Holdings (Pty) Ltd et al v Ellis et al 2014(3) SA 189 (GJ) at [16]