Liciano Coal (Pty) Ltd v Assmang Ltd and Another (2406/2016) [2016] ZANCHC 39 (2 December 2016)
- Citation
- [2016] ZANCHC 39
- 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 the applicant was entitled to restoration of access to the property, as the previous order of Pakati J did not lapse due to late payment. The payments referred to in the order related to obligations during the operation of the interim interdict, not the initial payment, and Assmang could not rely on late payment to deny access. The breaches alleged by Assmang were either not relevant to the applicant or not properly invoked under the Access agreement, which required written notice and opportunity to remedy. The court held that the applicant had no adequate alternative remedy, as damages would not provide similar protection, and the urgency was justified given the imminent expiry of the prospecting agreement and ongoing losses. The application was substantially successful, and costs were awarded on the ordinary scale.
Court disposition
Application granted; access to property restored; costs awarded to applicant.
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: MJ CookeAssmang Ltd
Respondent Counsel: Y AlliOchre Shimmer Trade and Invest 78 (Pty) Ltd
RespondentAmounts and remedies
- Daily Equipment Loss: ZAR 35,000
- Estimated Monthly Productivity Loss: ZAR 4,000,000
- Payment Ordered by Pakati J (plus Vat): ZAR 1,387,700
03
Procedural history
Posture
Urgent Application / Final Judgment 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 was justified in denying the applicant access to the property after payment was made.
- 03
Whether the order of Pakati J had lapsed due to late payment by the applicant.
- 04
Whether the applicant is entitled to interdictory relief despite the existence of an alternative remedy.
- 05
Whether the matter was urgent and urgency was not self-created.
Party arguments
- Applicant
- The applicant argued that it had complied with the previous court order by making payment to Ochre Shimmer, albeit late, and was therefore entitled to access the property. It contended that Assmang's refusal to allow access was unjustified, especially as the order of Pakati J did not lapse due to late payment. The applicant further submitted that the breaches alleged by Assmang were either not relevant to it or not properly invoked under the Access agreement, and that the urgency was genuine due to the imminent expiry of the prospecting agreement and ongoing financial losses.
- Respondent
- Assmang argued that the order of Pakati J had lapsed due to the applicant's late payment, and that the applicant had entered into subsequent agreements which imposed further obligations that were not disclosed. Assmang also contended that breaches of contract and environmental obligations justified denial of access, and that the applicant had an alternative remedy in damages. Assmang disputed the urgency of the application, claiming it was self-created by the applicant's delay in payment and launching the application.
05
Court’s reasoning
Legal principles
- 01
Order of Pakati J (21 August 2015)
A court order for interim interdict does not lapse due to late payment unless expressly stated; payment obligations are enforceable by execution, not by denying access.
- 02
Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326
Contempt of court requires both wilful and mala fide non-compliance; honest belief in justification negates contempt.
- 03
Setlogelo v Setlogelo 1914 AD 221
The absence of similar protection by any other ordinary remedy is required for an interdict; damages are not necessarily a bar to interdictory relief.
- 04
Access agreement between Assmang and Ochre Shimmer, clause 14
Contractual breaches must be addressed in accordance with the procedure set out in the contract, including written notice and opportunity to remedy.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant was entitled to restoration of access to the property, as the previous order of Pakati J did not lapse due to late payment. The payments referred to in the order related to obligations during the operation of the interim interdict, not the initial payment, and Assmang could not rely on late payment to deny access. The breaches alleged by Assmang were either not relevant to the applicant or not properly invoked under the Access agreement, which required written notice and opportunity to remedy. The court held that the applicant had no adequate alternative remedy, as damages would not provide similar protection, and the urgency was justified given the imminent expiry of the prospecting agreement and ongoing losses. The application was substantially successful, and costs were awarded on the ordinary scale.
Obiter and limits
- Assmang's reliance on breaches of agreements to which it was not a party is misplaced and cannot justify denial of access.
- The Environmental Management Plan does not prohibit prospecting during rehabilitation; rehabilitation is to be done concurrently or within 60 days of termination.
- A punitive cost order is not warranted unless dishonesty, improper conduct, or mala fides are shown.
Court disposition
Application granted; access to property restored; costs awarded to applicant.
- 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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