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Marabu Natursteinhandel GMBH and Another v Moloi and Others (UM15/2018) [2018] ZANWHC 49 (26 October 2018)

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In the High Court of South Africa

(North west division, mahikeng)

Case no: UM15/2018

In the matter between:

MARABU NATURSTEINHANDEL GMBH                                                  1st Applicant

GUNTHER KARL THUMM                                                                          2nd Applicant

And

MOSES BUTI MOLOI                                                             1st Respondent

VERSATEX TRADING 500 (PTY) LTD                                    2nd Respondent

In re: the main application between:

MOSES BUTI MOLOI                                                                                1st Applicant

VERSATEX TRADING 500 (PTY) LTD                                                       2nd Applicant

And

MARABU NATURSTEINHANDEL GMBH                                     1st Respondent

GUNTHER UWE THUMM                                                              2nd Respondent

ELCONA 139 (PTY) LTD                                                                 3rd Respondent

REITUMETSE BENEDICT PHIRI                                         4th Respondent CLASSIC

DIMENSION STONE MINING (PTY) LTD                           5th Respondent SOUTH

AFRICAN REVENUE SERVICE                                           6th Respondent

REGIONAL MANAGER OF THE DEPARTMENT OF MINERAL 

RESOURCES NORTH WEST PROVINCE                                               7thRespondent

DEPARTMENT OF MINERAL RESOURCES                                           8th Respondent

BAPHALANE BA RANKELENYANE COMMUNITY                               9thRespondent

KGOELE J

DATE OF HEARING                            :  17 AUGUST 2018

DATE OF JUDGMENT                         :  26 OCTOBER 2018

COUNSEL FOR APPLICANTS         :  Adv. RM Pearse SC

with Adv MCJ Van Kerckhoven

COUNSEL FOR RESPONDENTS    :  Adv. JPV Mc Nally with Adv S Wentzel

JUDGMENT

[1]       On 16 February 2018 this Court (per Gura J) granted prohibitory interdicts against five parties (including the two applicants in this interlocutory application) in respect of two distinct tranches of granite blocks.  The Order of Gura J (the Gura Order) operates as an interim relief pending the final determination of a number of complex legal issues, including whether the applicants have any rights to the granite blocks in question and any rights as alleged shareholders in Versatex Trading 500 (Pty) Ltd (the main application).

[2]        The applicants in this interlocutory application, Marabu and Thumm are foreign peregrini, being a German Company and a citizen, and are neither registered nor resident within the territorial jurisdiction of any South African Court.  There is a granite quarry near Rustenburg in respect of which the second respondent (Versatex) enjoys a prospecting right.  The first respondent (Moloi) holds at least 51% of the shares in Versatex.  Marabu and Thumm’s shareholding in Versatex and their right to the granite blocks as indicated above are subject to a hot debate in the main application.  I will not deal with the factual background which led to the dispute between the parties and the Gura Order being granted. The reason is that they had been succinctly summarized in the Gura judgment, and to avoid repetition, I will only refer to a few of those that are relevant in this application, with the aim to give a background and a proper understanding of the issues before this Court.

[3]        Some of the undisputed relevant facts to this application are that by no later than 27 September 2017, when the Department of Mineral Resources (DMR) instructed Versatex to cease prospecting operations at the quarry, certain granite blocks had already been produced at the quarry by a third-party contractor, Classic Dimension Stone Mining (Pty) Ltd (CDSM).  As at that date the blocks formed two tranches located at different places:-  A first tranche of blocks, which will be referred to herein-after in this application as “the impugned blocks” had already been loaded and transported away from the quarry to Richards Bay harbour which is beyond the territorial jurisdiction of this Court.  These are the only blocks of relevance to this application.  A second tranche of blocks, which Moloi and Versatex term “the additional blocks” remained in the stockyard of the quarry within the territorial jurisdiction of this Court.  These blocks are of no relevance to this application.

[4]        It was only on the 17 January 2018, that Moloi heard, via industry gossip, that the impugned blocks were in the process of being loaded.  A vessel containing all the impugned blocks set sail from South Africa to Italy on 18 January 2018.  On 19 January 2018 Moloi and Versatex launched the urgent application that gave rise to the Gura Order of 16 February 2018 which underpins this application.  In its terms, the Order grants interdictory relief against several respondents including Marabu and Thumm in respect of both tranches of blocks, including the impugned blocks.

[5]        For the sake of completeness the Gura Order is quoted verbatim hereunder:-

“MAIN APPLICATION

1.        THAT:   The applicants’ non-compliance with the Rules of this Court relating to service and time periods is condoned and the Court directs that this matter be heard as an urgent application in terms of Rule 6(12);

2.        THAT:   The first applicant is hereby granted the right to bring this application on behalf, and in the name of the second applicant in terms of section 165 of the Companies Act, 2008;

3.         THAT:   An interim interdict with the following terms is issued:

3.1       The first to fifth respondents are interdicted from taking any steps, directly or indirectly, to dispose of, ship, move, remove, encumber, alienate, sell, transport, transfer possession of or otherwise handle any granite blocks originating from the quarry owned by Versatex Trading 500 (Pty) Ltd (“Versatex”) at Portion 2 of the farm Nooitgedacht 287JQ in the Magisterial District of Rustenburg (“Versatex’s quarry”) (“the Versatex blocks”), whether in the Republic or abroad;

3.2       The fifth respondent is interdicted from performing any prospecting for, or prospecting operations (including quarrying for, moving, removing disposing of, selling or alienating) in respect of, any granite or granite blocks on, or originating from, Versatex’s quarry;

3.3       The first to fifth respondents are interdicted from asserting or exercising any rights of ownership in relation to the Versatex blocks, including the right to sell or dispose of the Versatex blocks;

3.4       Without derogating from paragraph 3.1, first to fifth respondents are interdicted from asserting or exercising any rights of ownership in relation to any granite blocks originating from Versatex’s quarry and shipped or exported on the vessel M/V St Andrew (“the impugned blocks”), which includes those blocks listed in the “amended packing list” (annexure “NoM1”) and the table headed “in the harbor to load on ship” (annexure “NoM2”);

3.5      The first to fifth respondents are interdicted from selling, alienating, disposing of, altering the state of or encumbering the impugned blocks, be it domestically or abroad.

4.        THAT:   The relief in paragraphs 3.1 to 3.5 operate as interim relief pending the final determination of an application to be launched by, inter alios, the applicants, within 20 court days of this order, which application shall determine, inter alia;  

4.1       whether the Versatex blocks, including the impugned blocks, are owned by Versatex;

4.2       whether the Versatex blocks, including the impugned blocks, have been unlawfully removed, disposed of, sold and/or exported; and

4.3       whether the fifth respondent has any right to perform any prospecting for, or prospecting operations (including quarrying for, moving, removing, disposing of, selling or alienating) in respect of, any granite or granite blocks on, or originating from, Versatex’s quarry.

COSTS

5.        THAT: The first to fifth respondents are ordered to pay costs jointly and severally, the one paying, the others to be absolved.

6.        THAT: Such costs to be taxed on the scale as between party and party.

7.        THAT: Costs to include costs for the employment of two counsel.

COUNTER APPLICATION

8.        THAT: The counter application is struck off with costs due to lack of urgency.

9.        THAT: Reasons for judgment are reserved.”

[6]        In this interlocutory application the Court is requested to rescind and set aside the Gura Order only insofar as it purports to grant interdictory relief against Marabu and Thumm in respect of the impugned blocks.    The applicants do not take issue with the Gura Order to the extent that it binds the other parties in respect of the impugned blocks or any of the parties (including the applicants) in respect of the other blocks.

[7]        The initial notice of motion in this interlocutory application was couched as follows when it was filed on the 6 June 2018:

“1.        condoning non-compliance by the applicants with the ordinary forms, processes and/or modes of notice and service provided for in the Rules of Court and disposing of this application, under Rule 6(12)(a), as a matter of urgency;

2.         Declaring that, to the extent that it seeks to constrain the applicants’ entitlement to dispose of or otherwise deal with all or any of the granite blocks that are listed in the schedule annexed marked NOM1 and NOM2 and were located in Italy at the time of judgment (“the impugned blocks”), Justice Gura’s interim order in this matter dated 16 February 2018 (“the Gura order”) is a nullity and thus of no force or effect;

3.         alternatively, rescinding the Gura order to the extent that it seeks to constrain the applicant’ entitlement to dispose of or otherwise deal with all or any of the impugned blocks;

4.         alternatively, varying the terms of the Gura order to the extent necessary to make plain that it does not constrain the applicants’ entitlement to dispose of or otherwise deal with all or any of the impugned blocks;

5.         directing the first and second respondents in this interlocutory application jointly and severally to post adequate security for (in a form reasonably acceptable to the applicants) and to pay the costs of storing any and all of the impugned blocks in Italy, including by:-

5.1       reimbursing the first applicant the amount of €13,188.00 already paid by it to the MV St Andrew’s supervising agent in Italy; and

5.2       securing and paying, as and when they fall due, such further storage related invoices as may be rendered from time to time in respect of the impugned blocks;

6.         directing the first applicant, if, when and to the extent that it receives the sales revenues contemplated in paragraph 85 of the founding affidavit, to place the net surplus of the transactions in trust with attorneys to be released by them in accordance with an agreement between the parties or failing agreement, by order or Court in respect of prayers 1.4 and 1.5 of the notice of motion in the main application, being;

6.1       to the first applicant in the event that prayers 1.4 and 1.5 are finally determined in favour of the applicants; and

6.2       to the second respondent in the event that prayers 1.4 and 1.5 are finally determined in favour of the respondent;

7.         Directing the respondents in this interlocutory application jointly and severally to pay the costs of this application, including the costs of two counsel.”

[8]        On 7 June 2018 I dealt with prayer 1 of their notice of motion and the matter was struck off the roll due to lack of urgency with costs.  The applicants are now before this Court on merits and seek an order only in terms of prayers 3 and 7 of their notice of motion.  In addition, they indicated that without any obligation but in good faith, the first applicant consents to an order in terms of prayer 6 of the notice of motion.  Only the first and second respondents who were the applicants in the Gura Order opposed the merits of this interlocutory application.

[9]        The gravamen of the dispute in this application is whether this Court had jurisdiction to grant the prohibitory interdicts against Germany-based parties in respect of Italy-based blocks.  The applicants’ case is that this Court as per Gura J lacked such jurisdiction when it granted the prohibitory interdicts against them and seek the rescission of the Gura Order to the extent that it binds them in respect of the impugned blocks.  The arguments of the applicants are two folded.  Their first leg revolves around a question whether a Court has jurisdiction to order foreign peregrini to do or not to do something in respect of a thing that is outside its territory.  The second leg of their argument relates to the status of an order given in the absence of jurisdiction.  The latter question will only arise if the first question is positively answered by this Court.

[10]      Advocate Pearse SC submitted on behalf of the applicants that the answer to the first question is that a Court does not have jurisdiction to order foreign peregrini to do or not do something in respect of a thing that is outside its territory.  He relied heavily on a number of authorities to support his arguments.  Only those that he placed much emphasis from will be referred to hereunder.

[11]      In as far as the status of an Order given without jurisdiction is concerned, he referred the Court to the case of MEC for Health, Eastern Cape & Another v Kirland investments (Pty) Ltd t/a Eye & Laser Institute 2014 (5) BCLR 547 (CC) wherein the Constitutional Court referred to the case of the Master of the High Court (North Gauteng High Court, Pretoria) v Motala NO and Others 2012 (3) SA 325 (SCA) with approval, and set out the following remarks in footnote 78:

“In the Master of the High Court (North Gauteng High Court, Pretoria) v Motala NO and Others [2011] ZASCA 238: 2012 (3) SA 325 (SCA) [also reported at [2012] JOL 28554 (SCA) – Ed] the Supreme Court of Appeal reaffirming a line of cases more than a century old, held that judicial decisions issued without jurisdiction or without the citation of a necessary party are nullities that a later court may refuse to enforce (without the need for a formal setting aside by a court of equal standing).  This seems paradoxical but is not.  The court, as the font of legality, has the means itself to assert the dividing line between what is lawful and not lawful.  For the court itself to disclaim a preceding court order that is a nullity therefore does not risk disorder or self-help”.

[12]      In support of his contention that the Order need to be rescinded he referred the Court to an unreported decision of the Supreme Court of Appeal (SCA) in the matter of Tranvelex Limited v Maloney 2016 JDR 1776 (SCA), wherein the Court was faced with an appeal against a refusal by a High Court to rescind an Order that was alleged to have been made without jurisdiction.  He maintained that the Court in that matter accepted this long-standing line of authority (as per the two cases mentioned in paragraph 11 above) but considered that the most suitable manner of dealing with such a decision was by rescission and remarked:

“I incline to the view that it a judgment or order has been granted by a court that lacks jurisdiction, such order or judgment is a nullity and it is not required to be set aside.  However, I agree with the view expressed in Erasmus Superior Court Practice, that if the parties do not agree as to the status of the impugned judgment or order, it should be rescinded.

That is the position in the instant matter where the appellant applied to have the order set aside on the premise that the court did not have jurisdiction.  Therefore, the usual requirements for a rescission application in terms of the common law or rule 42 do not apply”.

[13]      In amplification of the above contention he referred this Court to the case of the Department of Transport and others v Tasima (Pty) Ltd 2017 (1) BCLR 1 (CC) wherein the Constitutional Court confirmed that the proper approach to such a judicial decision is not merely to ignore it, but instead, to approach a Court to set it aside and remarked as follows:           

“The general rule is that orders that do not concern constitutional invalidity do have force from the moment they are issued.  And in light of section 165(5) of the Constitution, the order is binding, irrespective of whether or not it is valid, until set aside.”

“Therefore, while a court may, in the correct circumstances, find an underlying court order null and void and set it aside, this finding does not undermine the principles that damage is done in courts and the rule of law when an order is disobeyed”

[14]      Coming to the submission in as far as jurisdiction is concerned, he submitted that the jurisdiction of a Court to grant an interdict is summed up in the book of Forsyth on Private International Law: 5th Edition, at page 249 as follows:-

“The law on jurisdiction in regard to interdicts may thus be summed up as follows:-  First, if the respondent is an incola, the court may assume jurisdiction to grant an interdict (whether mandatory or prohibitory) no matter if the act in question is to be performed or restrained outside the court’s area.  Secondly, if the respondent is a peregrine, it is essential for reasons of effectiveness, that the act to be performed or restrained be within the court’s area”.

[15]      He submitted further that the SCA in Metlika Trading Ltd v Commissioner for SARS [2004] 4 All SA 410 (SCA) confirmed Forsyth’s view that for the purpose of interdicts relating to acts outside of the Court’s jurisdiction, the Court could grant such an interdict if the respondent in an incola of the Court.  This was according to the SCA because:-

“The order does not affect the sovereignty of a foreign court at all.  It is an order in personam against respondents subject to the court’s jurisdiction and not against third parties.  It will, if not complied with, be enforced in South Africa against the respondents concerned.  For the same reason there is no merit in the argument by the respondents that the order amounts to an impermissible attempt to enforce a South African revenue claim in a foreign state”

[16]      According to him this argument is supported by the decision in the case of Cathay Pacific Airways Ltd v HL [2017] 2 All SA 722 (SCA) where the Court was concerned with an Order of the High Court relating to the return by Cathay Pacific of two children and it remarked:

“[36]    As stated, the second order was also made on Saturday 26 July 2014, at around 3:20pm …. During that conversation the learned Judge enquired from Ms Swart why he should not order Cathay Pacific to return the children to South Africa… It is common cause that by this time the children were already on board flight CX748 and in international airspace…. The children had left the shores of this country and were beyond the jurisdiction of South African courts.  Courts cannot make orders which will have no effect, such as those to be enforced in foreign jurisdictions.

[37]      Counsel for the respondents placed rather tentative reliance on Metlika Trading.  That case is entirely distinguishable on the facts.  It concerned the return of a Falcon aircraft to South Africa from Switzerland.  This court held that, since the respondents in that case were incola, an order was competent to compel them to pursue all efforts to have aircraft returned to South Africa……

In the present instance, Cathay Pacific is a company duly registered and incorporated in Hong Kong, in the People’s Republic of China.  It is a peregrinus and any order for it to perform an act in a foreign jurisdiction (Hong Kong) will be of no force and effect”.

[17]      He also referred the Court to the case of Gallo Africa v Sting [2011] 1 All SA 449 (SCA) where in it was stated in paragraph 6 that:-

“Jurisdiction means the power vested in a Court to adjudicate upon, determine and dispose of a matter importantly, it is territorial.  The disposal of a jurisdictional challenge on exception entails no more than a factual enquiry, with reference to the particulars of claim, and only the particulars of claim, to establish the nature of the right that is being asserted in support of the claim.  In other words, jurisdiction depends on either the nature of the proceedings or the nature of the relief claimed or, in some cases, on both.  It does not depend on the substantive merits of the case or the defence relied upon by a defendant”

[18]      Further that in the case of Veneta Mineraria SPA v Garolina Collieries (Pty) Ltd (In liquidation) 1987 (4) SA 883 (A) 893 E-P and also in Ewing Mc Donald and Co Ltd v Mand M Products co [1990] ZASCA 115; 1991 (1) SA 252 (A) 260 B-D it was said that:-

“A Court can only be said to have jurisdiction in a matter if it has the power not only of taking cognisance of the suit but also of giving effect to its judgment”

[19]      In applying the facts to the law, applicants’ Counsel argued that the first step in the application that served before Gura J was for the Court as per Gura J to search for any appropriate jurisdictional connecting factor.  The second step was to check if the Court could give an effective Order.  According to him, these questions were and are tied to the nature of the proceedings including the nature of the prayers or both.  He emphasised that Moloi and Versatex (the respondents in the matter who were the applicants then) sought only an interdict in respect of the granite blocks, which are movables.  Interdicts according to him are treated differently and not treated like any other cases.  The pivotal factor in interdicts is whether the respondent is an incola or a peregrinis.  He referred to the book of Forsyth quoted supra where-in it says that if the respondent is an incola, the Court may grant an interdict even if the act to be performed or restrained is outside the Courts’s area and further that, if the respondent is a peregrinis, the Court may grant an interdict only if the act to be performed or restrained is within the Court’s area.  So, according him, Gura Order interdicted a Company in Germany to do or not to do anything as far as the blocks which were in Italy is concerned, which decision according to him is untenable.

[20]      On the other hand Advocate Mc Nally SC representing the respondents submitted that the matter cannot be revived before a different Judge in this Division.  He maintained that this is because the applicants were cited in the proceeding before Gura J; they participated fully in the proceedings (filing hundreds of pages of affidavit, as well as written heads of argument) and argued in detail the very same jurisdictional challenge they now rely upon.

[21]      He vehemently maintained that they lost that argument before Gura J. It  is  inconceivable  that  they  can  simply  repeat these arguments before a  different  Judge  in the  same Division. According to him the only way that the applicants’ arguments can be re-visited is by way of an appeal to the extent that an appeal is available in circumstances of an interim Order.   Further that, where an appeal is not available, the arguments can (and will in this case) be reconsidered in the main application.

[22]      In expanding on this submission he argued that there is no precedent which justifies a procedure whereby a party argued and lost a jurisdiction challenge before a High Court, and was then permitted to bring the same challenge back to the High Court as a Court a quo. This according to him is borne out by the cases relied upon by the applicants themselves in their heads of argument, one of which is the Metlika matter which dealt with an interim Order on the basis that, inter alia, the High Court, when granting the Order, lacked the jurisdiction to make the necessary Order. He argued that this case is not an authority for the proposition that the same argument can be brought back to the same Court a quo.  He submitted that in paragraph 23 of this case, the Court indicated 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”.

[23]      He also distinguished the case of Cathay Pacific Airways from our matter and submitted that it dealt with an appeal to the Supreme Court of Appeal against the finding of the High Court to the effect that the underlying Order had properly been granted.  He argued that it was not a case where, as in casu, a different High Court was approached again on the same issue.  He maintained that in contrast to the present case, Cathay Pacific was not represented before the Judge a quo and was never afforded an opportunity to argue any point. Moreover, the only reason the jurisdiction point was argued again in the High Court was because the applicants a quo instituted Contempt proceedings in such forum. He insisted that Cathay Pacific Airways is not authority for the proposition that, where the jurisdiction point has been debated and lost before the Court a quo, a High Court can again be approached in such regard. To the contrary, the jurisdiction point was first argued and lost in the contempt proceedings. Cathay Pacific Airways did not then approach a different High Court repeating its jurisdictional arguments. Instead, it took this argument on appeal.

[24]      To emphasize his contention he referred the Court to the case of Foize Africa (Pty) Ltd v Foize Beheer BV and Others 2013 (3) SA 91 (SCA) which dealt with the High Court's failure to grant an interim interdict based on a jurisdictional error. He submitted that in this matter the jurisdictional error was appealed to the SCA. There is according to him therefore no reason why the same principle should not apply when a High Court grants an order based on an alleged jurisdictional error. Similarly, in both Gallo Africa Ltd and Others v Sting Music (Pty) Ltd and Others 2010 (6) SA 329 (SCA) and Zhongji Development Construction Engineering Company Limited v Kamoto Copper Company Sarl 2015 (1) SA 345 (SCA) the respective High Courts found that they did not have jurisdiction to grant the relief sought. The unsuccessful party contended that these findings amounted to jurisdictional errors, and appealed the jurisdictional error to the SCA as well.

[25]      Summarising his arguments he submitted that, on the basis of the  aforementioned  authorities, the High Court can be approached to declare an Order made in its Division a nullity for want of jurisdiction by a party which was uncited or unrepresented in the proceedings a quo and where the argument was not raised and comprehensively dealt with.   But where a party was not only cited but also participated fully in the proceedings, and the issue of jurisdiction was fully canvassed and dealt with by the Court, as in casu, such party cannot again approach the High Court to re-argue the issue of jurisdiction, which it unsuccessfully argued in that Court. That issue, as between the parties, becomes, unless set aside on appeal, res judicata.

[26]      I fully agree with the submission made above by Advocate Mc Nally SC representing the respondents.  Firstly, the judgment of Gura J fully addressed the issue of the jurisdiction of the Court.  The starting point of Gura J’s judgment is reference to and reliance on the Metlika matter which was decided by the SCA.  Whether Gura J failed to appreciate that the facts in casu are distinguishable from those of Metlika or not is not a question to be answered at the present moment.  But all of this supports the submission made by the respondents’ Counsel that the issue of jurisdiction was dealt with pertinently by Gura J and cannot be revisited in the application before me.

[27]      Of significance is what is contained in paragraphs 202, 203, 204, 205 and 206 of Gura J’s judgment.  These paragraphs accords squarely within the submission by the respondent’s Counsel that Gura J considered the issue of jurisdiction after hearing the submissions made by both Counsel and the authorities referred to and exercised his discretion by making a finding that he has jurisdiction based on the facts of this matter, and that, even if he is wrong, it is a question of an appeal.

[28]      The paragraphs enumerated above further signifying that, as correctly submitted by the respondents’ Counsel, the doctrine of effectiveness as dealt with in the Metlika matter was raised before Gura J, and he was alive of this authority and others that he was referred to that supports this proposition.  To illustrate this, it was found in Metlika in paragraph 52 thereof that:-

“The order does not affect the sovereignty of a foreign Court at all.  It is an order in persona against respondents subject to the Court’s jurisdiction and not against third parties.  It will, if not complied with be enforced in South Africa against the respondent concerned.  For this some reason there is no merit in the argument by the respondents that the Order amounts to an impossible attempt to enforce a South African revenue claim in a foreign state.

[29]      Pivotal to the issue before this Court is that he applicants are saying that their authorities they referred to in the application before this Court are clear and demonstrate that the Gura Order is wrong.  The respondents on the other hand are saying that the question of jurisdiction requires a weighty of several factors, as the law no longer applies in the rigid way as proposed by the applicants. 

[30]      It should be emphasized that in paragraphs 199, 200 and 201 Gura J fully considered, amongst others, the Metlika judgment which the applicants also rely on.  He quoted extensively paragraph 36,48,50,51 and 52 that I have already quoted in paragraph 28 above.  I pause here to sound a caution that the quotations referred to in this judgment are not necessarily an indication that I am in agreement with Gura J’s Order as I am not a Court of Appeal, but just to illustrate, as the respondent’s Counsel did, that the issue of jurisdiction and the authorities referred mostly by the parties served before Gura J and were considered.  The respondent’s Counsel referred this Court to the cases mentioned hereunder to argue that the law is in the pre-constitutional era in line with modern commercial realities, and the Courts adopt a flexible approach wherein effectiveness is no longer decisive, but is now regarded as one of the factor to be put in a pot and is weighed with other factors to find jurisdiction.  Lastly that, the matter of jurisdiction depends largely on the facts of the case.  To avoid prolixity of this judgment only two will be referred to. 

[31]      The other case the respondents’ Counsel relied on is the case of Bid Industrial Holdings (Pty) Ltd v Strong 2008 (3) SA 355 (SCA) para 56 thereof where Howie JA, writing for a unanimous SCA, held that a Court can take cognisance of a suit against a foreign peregrinis in the absence of an attachment of property if there is "an adequate connection between the suit and the area of jurisdiction of the South African Court concerned from the point of view of the appropriateness and convenience of [the matter] being decided by that Court. Appropriateness and convenience are elastic concepts which can be developed case by case. Obviously the strongest connection would be provided by the cause of action arising within that jurisdiction."  The application of this authority can be clearly seen in paragraph 203 of Gura J although the Court did not specifically quote the citation of the case.

[32]      He also referred the Court to the case of Multi-Links Telecommunications Ltd v Africa Prepaid Services Nigeria Limited: In re Telkom SA Society Limited v Blue Label Telecoms Limited, 2014 (3) SA 265 (GP) which involved a delictual claim by an incola against a foreign peregrinus.  It was held in that matter that a Court must determine that it has the most real and substantial connection with the action in order for jurisdiction to be asserted on the basis of causes arising within its jurisdictional area. Fabricius  J  held  that  a  Court  must  consider  all  the  connecting  factors, including all background facts, convenience, the governing law, and the place where the parties reside or carry on business.  The fact that both Marabu and Thumm (the applicants) carry on business within this Court’s area of jurisdiction and that this fact was reconsidered by Gura J is found in paragraph 206 of his judgment.

[33]      As an emphasis he maintained that it appears that the recent approach by Courts, is that the doctrine of effectiveness and the traditional rule that the property forming the subject matter of the dispute must be within the Court’s jurisdiction, have been substantially watered-down.  In the Bid Industrial Holdings case in paragraph 57 thereof it was stated that:

“As to the principle of effectiveness, despite its having been described as ‘the basic principle of jurisdiction in our law’ it is clear that the importance and significance of attachment has been so eroded that the value of attached property has sometimes been ‘trifling’.   However, as I have said, effectiveness is largely for the plaintiff to assess and to act accordingly.”

[34]      I am of the view that the respondents’ Counsel are correct in their submission that the issue of jurisdiction is a matter of appeal in the circumstances of this matter.  The judgment of Gura J depicts that the Court was satisfied with the submission of Adcovate Mc Nally SC to the effect that jurisdiction issues depends on the fact of each case and/or connecting factors.  It is clear that the Court as per Gura J rejected the notion that was depicted in the authorities the applicants relied on that jurisdiction is solely determined by whether a person is a peregrini or not and/or whether the property concerned are in the Republic or not.  I am thus persuaded by the submissions that the issue of jurisdiction in the circumstances of this matter was fully ventilated and considered by Gura J and should be dealt with in an appeal, as it is res judicata.

[35]      There are more reasons which support the view that I took above.  A careful reading of the judgment of Gura J reveals that there were several issues that were raised before Gura J in addition to the issue of jurisdiction.  Amongst others, the issue of ownership of the granite blocks, whether Marabu was the shareholder or not in Versatex and importantly, whether the two applicants (Marabu and Thumm) surreptitiously removed the impugned blocks from the granite query, when they knew that their ownership were in dispute.  It appears, in my view and as correctly submitted by the respondents’ Counsel, Gura J put all of this in the same pot when evaluating whether he had jurisdiction or not to entertain the matter.  In any event, as we speak, the applicant entities have not established any valid claim to ownership of the blocks, which have, at all the times, remained the property of Versatex.  All of these factual averments served before Gura J and in his reasons where the Court considered jurisdiction he referred to all these under paragraph 203.

[36]      It also appears that according to the factual averments which the applicants also previously accepted, the applicants also submitted to this Court’s jurisdiction.  These factual averments also served before Gura J.  It also appears from the judgment of Gura J that according to these factual averments they sought and purported to assert and exercised their rights in relation to the Versatex quarry, the impugned blocks, and tried to challenge the DMR’s instructions in this very Court in November 2017.  Some of the respondents in that urgent bid were Versatex and Moloi, the respondents in this application.   The applicants removed that application from the roll and tendered costs to the respondents (Moloi and Versatex).  But of importance is that it appears from Gura J’s judgment that the applicants in that application held the view that this Court has jurisdiction.  I am not sitting as a Court of Appeal in this observation that I make so far in this application but it appears to me that the applicants attempt to probate and approbate at the same time.  This is further demonstrated by the fact that they, at some stage before they instituted this application, also instituted an appeal against Gura’s Order, withdrew it and once more attempted to revive it in this application as a conditional prayer.

[37]      The other factor which according to the respondents’ Counsel support their case is that the applicants also expressly required Versatex to serve previous Court papers on their South African legal representatives.   He maintained that the fact that the applicants have appointed attorneys within the jurisdiction of the South African Courts, and have themselves instituted an application for interdictory relief against Versatex and Mr Moloi to enforce and/or safeguard their alleged rights arising out of the main application and their averred shareholding in Versatex, including seeking the liquidation of Versatex, according to the respondents speaks to the required connection between it and this Court. This according to him incontrovertibly supports the case of the respondents to the effect that the applicants at some stages submitted to the jurisdiction of this Court which fact Gura took into consideration. Moreover, given that the impugned blocks are still under the control of the Marabu entities as they have not, physically, transferred to any purchaser.

[38]     The submission of the respondent’s Counsel to the effect that Courts clearly have jurisdiction to prevent abuse of process and to prevent injustice can also be traced from the judgment of Gura J.  It is clear that Gura J was of the view that a Court would thus readily assume jurisdiction to prevent unlawful acts and abuse, particularly over goods forming the subject matter of the application which have unlawfully, wrongfully and surreptitiously been taken beyond the jurisdiction of the Court in order to avoid its jurisdiction.  In addition to this, he took into consideration the fact that the main application also concerns the application of South African mining law and compliance with DMR directives. Paragraph 206 of his judgment speaks to this as the Court remarked as follows:-

“This Court has power to deal with Marabu and Thumm if they are in contempt of the Court Order.”

[39]     The matter of Foize Africa (Pty) Limited v Foize Beheer BV and Others [2012] JOL 29448 (SCA); 2013 (3) SA 91 (SCA) can also be persuasive.  In paragraph 15 thereof it was held that a local Court is the appropriate Court to grant an interdict against a perigrinis if the act sought to be restrained is occurring or is threatened within the jurisdiction of the Court.  The same applies to threatened non-performance of a contract where performance must occur within the jurisdiction of the Court.

[40]     Gura J also remarked as follows in paragraph 205 to signify that he entertain and assumed jurisdiction based on the arguments that  were for and against the issue:-

“In line with the case of Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd in an attempt to avoid a proliferation of applications, the doctrine of convenience provide that a court having jurisdiction over an aspect of the matter may and should assume jurisdiction over the entire matter”.

[41]     I therefore come to the conclusion that:-

      41.1     the applicants failed to demonstrate that the Gura Order is obviously and clearly wrong;           

    41.2     this Court as per Gura J has already pronounced on the jurisdictional argument;

    41.3     the only proper way for that pronouncement to be challenged     is by way of an appeal;

    41.4     the  issue  cannot  be  further  ventilated  in  this  Division  as            it  is  res judicata (or subject to the doctrine of estoppel);

    41.5     This accords with the jurisprudential basis for res judicata, namely that there should be a defined end to litigation. This principle is in the public interest because a defendant should not be compelled to defend itself twice on the same cause of action.   If it were not so, the Marabu entities could keep approaching the Court to set aside the Gura Order until they succeeded in obtaining an order that Gura J lacked jurisdiction.

41.6    the doctrine of estoppel holds that, where a Court, in giving final judgment on the dispute litigated before it, has determined a particular issue involved in that cause of action in a certain way, that determination may be raised as an estoppel in a subsequent action between the same parties. Even if the subsequent action is founded on a different cause of action, if the same issue is again involved and the right to recover depends on that issue, the plaintiff may be estopped from pursuing its action.

[42]         Moreover, the Constitutional Court has recently reaffirmed the principles applying to res judicata and issue estoppel as follows in the matter of Tasima relied upon by the respondents that:

"The exceptio rei judicata or issue estoppel is a defence that can be raised by a defendant in a later suit against a party who is demanding the same thing on the same grounds. So far as the defence of issue estoppel is concerned, it is described as follows in Boshoff: "[T]he decision set up as a res judicata necessarily involves a judicial determination of some question of law or issue of fact, in the sense that the decision could not have been legitimately or rationally pronounced by the tribunal without at the same time, and in the same breath, so to speak, determining that question or issue in a particular way, such determination, though not declared on the face of the recorded decision, is deemed to constitute an integral part of it as effectively as if it had been made so in express terms."

[43]      As has been stressed by the Supreme Court of Appeal in Patmar Explorations (Pty) Ltd v The Limpopo Development Tribunal 2018 JDR 0386 (SCA), High Court judges in the same division are bound by judgments of that Division unless they are clearly wrong. Thus, Gura J’s finding that he had the requisite jurisdiction cannot in my view, in any event, be lightly overturned. The applicants have made out no case for departing from Gura J's findings at all, let alone on the basis that he was clearly wrong.

[44]     Having now pegged its case solely on the absence of jurisdiction, there is no basis at all for this application to be dealt with by this Court. The alleged flaws in the judgment and Order of Gura J, including his alleged absence of jurisdiction, fall to be challenged in the ordinary way namely, on appeal.  On this ground alone, this application should be dismissed with punitive costs.

[45]     There is no need to deal with prayer 6 in the notice of motion of the applicants by virtue of the conclusion that I had reached above.

[46]      In as far as costs is concerned, I may hasten to say that this application is best described as opportunistic. The applicants ventilated their case fully before Gura J.   Having lost their case, at some stage then accepted this loss, electing not only to withdraw their application for leave to appeal, but also assuring Versatex and Mr Moloi that they would abide by the Gura Order.  It now appears they have also renegated from this position.  This application is clearly a thinly veiled appeal of aspects of Gura Order, where applicants repeated arguments that had been unsuccessful before Gura J.  Having leveraged this representation for procedural benefit, they now seek to renege on their representations, seeking to have the Gura Order declared a nullity, or rescinding or varying it.  The fact is that their argument was rejected. Whether the Gura Order is right or wrong, they cannot now seek the benefit of an appeal through the back door.  I am of the view that a punitive order of costs is warranted.

[47]      In the circumstances, the application is dismissed with costs on the scale as between attorney and own client, including the costs occasioned by the employ of two Counsel.

A M KGOELE

JUDGE OF THE HIGH COURT

ATTORNEYS

For the Applicant                             :         Bowman Gilfillan Inc.

                                                                   C/O Smit Stanton Inc.

                                                                   29 Warren Street

                                                                   MAHIKENG

For the Respondents                       :          Maree & Maree Attorneys

                                                                    11 Agate Avenue

                                                                     RIVIERA PARK

                                                                      MAHIKENG