South African Women in Mining Investment Holdings (Pty) Ltd v Molobye and Others (3445/2019) [2021] ZAGPJHC 695 (17 November 2021)
- Citation
- [2021] ZAGPJHC 695
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- S Yacoob
- Case number
- 3445/2019
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- S Yacoob
- Case number
- 3445/2019
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicant failed to establish exceptional circumstances as required by section 18(1) of the Superior Courts Act. The hardship faced by the beneficiaries, while sympathetic, was not exceptional in the context of litigation delays. There was no evidence that deaths among shareholders were caused by the delay, nor that shareholders would suffer specific harm if payment was delayed. Although the court accepted that delay is an insult to dignity, this alone did not meet the threshold for exceptional circumstances. Furthermore, the applicant did not prove that respondents would not suffer irreparable harm if the order was granted, as premature distribution could result in funds being unrecoverable or dissipated. The statutory requirements were not met, and the application for enforcement pending appeal was dismissed.
Court disposition
Application for enforcement pending appeal dismissed with costs.
Orders
- The application in terms of section 18 of the Superior Courts Act is dismissed with costs.
02
Material facts
Parties
South African Women in Mining Investment Holdings (Pty) Ltd
Applicant Counsel: D C Mpofu SC and Ms K PillayNomsa Molobye
Respondent Counsel: S J Bekker SC and Ms I E TshomaBelinda Moleko
Respondent Counsel: S J Bekker SC and Ms I E TshomaDorothy Sefanyetso
Respondent Counsel: S J Bekker SC and Ms I E TshomaDelene Jacobs
Respondent Counsel: S J Bekker SC and Ms I E TshomaRuth Magwagwa
Respondent Counsel: S J Bekker SC and Ms I E TshomaBrenda Jansen
Respondent Counsel: S J Bekker SC and Ms I E TshomaSAWIMA: Gauteng
Respondent Counsel: S J Bekker SC and Ms I E TshomaSAWIMA: Northern Cape
Respondent Counsel: S J Bekker SC and Ms I E TshomaSAWIMIH – Gauteng
Respondent Counsel: S J Bekker SC and Ms I E TshomaBell Dewar Incorporated
Respondent03
Procedural history
Posture
Urgent Application / Application for Enforcement of Judgment Pending Special Leave to Appeal
04
Questions and positions
Legal issues
- 01
Whether the applicant has established exceptional circumstances justifying enforcement of the judgment pending appeal.
- 02
Whether the applicant will suffer irreparable harm if enforcement is refused.
- 03
Whether the respondents will suffer irreparable harm if enforcement is granted.
Party arguments
- Applicant
- The applicant argued that exceptional circumstances exist because the beneficiaries of the dividend are poor rural women who have waited a long time for empowerment and some have died while waiting. The applicant claimed irreparable harm would result from further delay, including harm to shareholders and the company's ability to function. It was submitted that respondents would not suffer irreparable harm as they would also benefit from the dividend distribution.
- Respondent
- The respondents contended that the circumstances described by the applicant are not exceptional but are the natural consequence of an appeal. They argued that prospects of success on appeal are good, and any prejudice to the applicant is not unduly harsh. The respondents maintained that if dividends are distributed before verification, they may go to the wrong people and be unrecoverable, and that directors may dissipate funds if released prematurely.
05
Court’s reasoning
Legal principles
- 01
Superior Courts Act, 10 of 2013
Section 18(1) of the Superior Courts Act allows a court to order enforcement of a judgment pending appeal only in exceptional circumstances.
- 02
Superior Courts Act, 10 of 2013
Section 18(3) requires the applicant to prove on a balance of probabilities that it will suffer irreparable harm if enforcement is refused and that the other party will not suffer irreparable harm if enforcement is granted.
- 03
Knoop NO and Another v Gupta (Execution) 2021 (3) SA 135 (SCA) at [49]
The court must consider prospects of success on appeal when exercising its discretion to grant enforcement.
- 04
Knoop NO and Another v Gupta (Execution) 2021 (3) SA 135 (SCA) at [50]
If statutory requirements are not satisfied, the court has no discretion and must dismiss the application.
- 05
University of the Free State v Afriforum and Another 2018 (3) SA 428 (SCA) at [14]
Exceptional circumstances are fact-specific and must be determined in the context of each case.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant failed to establish exceptional circumstances as required by section 18(1) of the Superior Courts Act. The hardship faced by the beneficiaries, while sympathetic, was not exceptional in the context of litigation delays. There was no evidence that deaths among shareholders were caused by the delay, nor that shareholders would suffer specific harm if payment was delayed. Although the court accepted that delay is an insult to dignity, this alone did not meet the threshold for exceptional circumstances. Furthermore, the applicant did not prove that respondents would not suffer irreparable harm if the order was granted, as premature distribution could result in funds being unrecoverable or dissipated. The statutory requirements were not met, and the application for enforcement pending appeal was dismissed.
Obiter and limits
- The court expressed sympathy for the poor rural women awaiting dividends but emphasized that justice must be administered equally to all parties.
- The deaths of some shareholders, while unfortunate, did not constitute exceptional circumstances without evidence of causation by the delay.
- The remedy for respondents would be empty if funds were dissipated before the appeal was decided.
Court disposition
Application for enforcement pending appeal dismissed with costs.
- The application in terms of section 18 of the Superior Courts Act is dismissed with costs.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 3445/2019
REPORTABLE:
NO
OF INTEREST TO OTHER JUDGES: NO
17/11/2021
In the matter between:
SOUTH
AFRICAN WOMEN IN MINING INVESTMENT HOLDINGS Applicant
(PTY)
LTD
and
NOMSA
MOLOBYE
First Respondent
BELINDA
MOLEKO
Second Respondent
DOROTHY
SEFANYETSO
Third Respondent
DELENE
JACOBS
Fourth Respondent
RUTH
MAGWAGWA
Fifth Respondent
BRENDA
JANSEN
Sixth Respondent
SAWIMA:
GAUTENG
Seventh Respondent
SAWIMA:
NORTHERN
CAPE
Eighth Respondent
SAWIMIH –
GAUTENG
Ninth Respondent
BELL
DEWAR
INCORPORATED
Tenth Respondent
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 17 November 2021
JUDGMENT
YACOOB J:
1. The first to ninth respondents unsuccessfully sought leave to appeal my judgment in this matter. The applicant (“SAWIMIH”) simultaneously sought an order that my order be nonetheless
enforceable should I grant leave to appeal. Since I refused leave to appeal the application for enforcement was not ripe. The first to ninth respondents (I will refer to them as the respondents in this judgment as they are the only respondents participating in these proceedings) have now lodged an application for special leave to appeal with the Supreme Court of Appeal, and I must now determine the enforcement application.
2. Section 18 of the Superior Courts Act, 10 of 2013 (“the
Act”) now governs the operation of a decision which is subject to an application for leave to appeal, or an appeal. The basis on which a court may order that a decision operates and may be executed on (if it is not an interim order) is provided for in subsections (1) and (3).
3. Subsection 18(1) permits the court to make such an order “in
exceptional circumstances”. In terms of section 18(3), a court may order the execution of a decision subject to an application for leave “if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders”
4. Section (3) does not ask the court to consider the balance of convenience between the parties. SAWIMIH in this instance must prove on a balance of probabilities (a) irreparable harm to itself if the order is not granted and (b) that there will be no irreparable harm to the respondents if the order is granted. It is not for the respondents to prove they will suffer irreparable harm if the order is granted, but for SAWIMIH to prove the respondents will not suffer irreparable harm if the order is granted.[1] This is in addition to satisfying the court that there are exceptional circumstances.
5. Should SAWIMIH satisfy these statutory requirements, the court then has a discretion to grant or refuse the application to execute. In exercising that discretion the court must consider prospects of success of the appeal.[2] If the statutory requirements are not satisfied, then the court’s does not have a discretion to exercise and the application must be dismissed.[3]
The existence of exceptional circumstances
6. As can be expected, the question of the existence of exceptional circumstances is a factual one and will differ in the context of each case.[4]
7. SAWIMIH contends that the exceptional circumstances in this case are that the beneficiaries who would benefit from the dividend being released to SAWIMIH in terms of my order are rural women who have been waiting a long time to benefit from a Broad-Based Black Economic Empowerment opportunity which was established to empower them. Some of them have died in the interim. They need the money so that their lives can be improved and some of them are living on the edge of starvation. They would not be afforded substantial redress if they have to wait until the appeal is decided. The attempt to appeal is a frivolous attempt to delay.
8. The respondents, on the other hand, contends that these are not exceptional circumstances. They are the natural consequences of the appeal in the circumstances and that prospects of success must be considered in determining whether there are exceptional circumstances. The respondents’ prospects are good and therefore any prejudice to SAWIMIH is not unduly harsh and does not result in exceptional circumstances.
9. While I have the utmost sympathy for the poor rural women who have invested their hard-earned savings in SAWIMIH in the hope of bettering their lives on whom SAWIMIH pins its case of exceptional
circumstances, I am not satisfied that these are in fact exceptional circumstances. The women have been waiting for a long time and if a final determination by a higher court adds a little to that time that is not exceptional. The question of the deaths of some of the women does not add to SAWIMIH’s case because there is no evidence that these deaths, as sad and unfortunate as they may be, resulted from the delay in the distribution of the dividend. In any event, the respondents and the women they represent are as exceptional and have been waiting equally long. The women represented by SAWIMIH are not more exceptional and are not entitled to justice and a remedy more quickly than the women on the other side.
10. Be that as it may, for completeness, I consider also whether SAWIMIH has established the remaining statutory requirements.
Has SAWIMIH established that it will suffer irreparable harm?
11. SAWIMIH submits that the irreparable harm it will suffer should its application not be granted because it needs money to function and because there is harm to shareholders if they are not paid their dividend as soon as possible. It relies also on the fact of shareholders having passed away while waiting for the fruits of their investment.
12. Again, it is sad that shareholders have not seen the fruits of their investments. There is however no evidence that their passing was caused by them not being paid, or that shareholders will suffer specific harm if their payment is delayed.
13. Nevertheless I accept that there is a continuing insult to the dignity of poor shareholders if the payment is delayed, and that the insult to dignity is irreparable.
Has SAWIMIH established that the first respondents will suffer irreparable harm?
14. SAWIMIH contends that the respondents will not suffer irreparable harm because they as shareholders will also benefit from the distribution of dividends.
15. In my view this misses the point of the respondents’ application for leave to appeal. If the dividends are distributed they may be distributed to the wrong people, if the respondents are correct that verification was not done correctly. The dividends will not be recoverable if this happens. Similarly if the respondents are correct that there is a basis to find delinquency and that the directors cannot be trusted to distribute the dividends correctly, and are likely to dissipate the funds, then releasing the money would be allowing them to do exactly that.
16. It was submitted for SAWIMIH that the respondents would nevertheless have a remedy if they succeed, but in my view this remedy would be empty if the money has already gone. Taking into account that the people the respondents represent are in the same situation as those SAWIMIH represents, the harm to them is at least equal if the money
is released as it would be to SAWIMIH if the money is not.
17. I am not satisfied that SAWIMIH has established that there would be no irreparable harm to the respondents if the application is successful.
18. For these reasons, I make the following order:
The application in terms of section 18 of the Superior Courts Act is dismissed with costs.
S.
YACOOB
JUDGE
OF THE HIGH COURT
Appearances
Counsel for the applicant:
D C Mpofu SC and Ms K Pillay
Instructed by:
Mabuza Attorneys
Counsel for the first to ninth respondent: S J Bekker SC and Ms I E Tshoma
Instructed by:
Faber Goertz Ellis Austen Incorporated
Date of hearing:
06 August 2021
Date of application to SCA: 22 October 2021
Date of judgment:
17 November 2021
[1] University of the Free State v Afriforum and Another 2018 (3) SA 428 (SCA) at [10]
[2] Knoop NO and Another v Gupta (Execution) 2021 (3) SA 135 (SCA) at [49]
[3] Knoop NO (above) at [50]
[4] UFS v Afriforum (above) at [14]
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