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WD Mining (Pty) Ltd v New Venture Mining Investment Holdings and Others (M107/22) [2023] ZANWHC 163 (15 August 2023)

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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

Case No.: M107/22

In the matter between:

W D MINING (PTY) LTD Applicant

(Registration number: 2015/089250/07

and

NEW VENTURE MINING INVESTMENT

HOLDINGS First Respondent

(Registration number: 2004/018004/07)

THAYANG GODFREY MOCWANE Second Respondent

RAHJAHN ISHWAR Third Respondent

This judgement was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 15 August 2023.

ORDER

In the result, the following order is made:

(i) The application is dismissed.

(ii) The applicant shall pay the costs on attorney and client scale.

JUDGMENT

Mfenyana J

Introduction

[1] This matter served before me in the opposed motion court, having been set down by the respondents. In the notice of motion, the applicant seeks an order declaring that the respondents are in breach of the agreement concluded by the parties on 19 March 2019. The applicant thus further seeks an order that the respondents be ordered to perform their contractual obligations in terms of the said agreement.

[2] On the day of the hearing the applicant was represented by Mr Madisha as the director of the applicant. The respondents were represented by Mr Jorge.

[3] It appears from the record that Kholisile Lumka Incorporated had come on record as the applicant’s attorneys. They remain as such, as no notice of their withdrawal has been filed. They were not present in court when the matter was called on 19 January 2023. Mr Madisha sought a postponement of the matter. He stated that he required time to source funds in order to pay his attorneys as he had not been able to earn an income for the past few years. He admitted that he had been involved in prosecuting the application from the onset and had deposed to the founding affidavit when the application was instituted on 1 March 2022, and he was conversant with the facts of the matter. He further conceded that having instructed attorneys, his instructions were predominantly captured in the papers before Court.

[4] Mr Jorge, in opposing the application for postponement on behalf of the respondents, stated that a postponement is not for the mere taking and that the applicant had to show good cause why a postponement should be granted. He averred that the timeline in this matter is of particular relevance to the issue of postponement, it being so that the applicant instituted the proceedings in March 2022 whereafter it took no further action. Mr Jorge further submitted that when the respondent set the matter down in September 2022, the applicant had sufficient time to consider its financial position. He added that Mr Madisha was very vague in this regard. He further argued that Mr Madisha, as he had conceded, was fully aware of the facts of the matter. The applicant would not suffer any prejudice if the matter proceeded, as opposed to the prejudice that would be suffered by the respondents, in view of the time that had already lapsed together with the fact that the respondent had to take steps to have the matter heard, he said. Mr Jorge bemoaned the fact that the applicant waited until the day of the hearing to seek a postponement, which added to the prejudice suffered by the respondents.

[6] In reply, Mr Madisha stated that he had been waiting for a court date, and on that basis he would have sourced the necessary funds to pay his attorneys before the matter came to court. He further stated that his attorneys notified him of the court date, only a few days ago.

[7] I dismissed the application for postponement with no order as to costs. I consider it prudent to set out the chronological events leading up to the setting down of this matter.

[8] On 8 March 2022 the applicant instituted the present application.

On 16 March 2022 the respondents filed their notice of opposition followed by their answering affidavit on 7 April 2022. The applicant did not file a replying affidavit. From April 2022 to date of hearing, the applicant took no steps to bring the matter closer to finality, in a matter it had instituted.

[9] Two months later, on 9 June 2022, apparently frustrated by the applicant’s inaction, the respondents applied for a date for the hearing of the application. The notice thereof was served on the applicant’s attorneys of record on the same day. Ignorant of the fact that a date had already been allocated by the registrar, the respondents on 19 August 2022 served another application for hearing date on the applicant’s attorneys of record. Upon learning that a date had already been allocated, the respondents on 23 August 2022 served a notice of withdrawal of the second application for hearing date, in which they explained that a date had already been allocated. The upshot of this is that it clearly indicated that the respondents had every intention to have the matter heard. None of these steps taken by the respondents sparked any interest from the applicant.

[10] On 2 September 2022, the respondents served a notice of set down on the applicant, for 19 January 2023. Even after the notice of set down was served, there was no action from the applicant.

[11] It is trite that the postponement of a matter cannot be claimed as of right. An applicant seeking a postponement seeks an indulgence from the court. That party must show good cause and provide a comprehensive and satisfactory explanation for the postponement. The application itself, must be brought timeously. Prejudice on either party is one of factors to be taken into consideration when the court exercises its discretion to grant or refuse an application for postponement.

[12] The applicant dismally failed in providing a comprehensive explanation why it had taken no steps to advance its own application. Save for a vague explanation, Mr Madisha could not explain why for a period of over nine months, the applicant took no action in its own matter. He further could not explain why the applicant simply ignored the various attempts by the respondents to obtain a hearing date, and set the matter down, or and why miraculously the applicant’s attorneys informed him of the hearing date a mere two days before the hearing as alleged. Neither was this court taken into the applicant’s confidence as to when the financial issues referred to by Mr Madisha presented themselves. According to the record, all the applicant did was issue the application and no more.

[13] Discernible from the above is that the applicant either lost interest, or deliberately abandoned its own application. It is glaring that the postponement was sought mainly as a tactical manoeuvre and has no other effect than to delay the finalisation of the matter, the merits of which are fully set out in the papers filed by the parties.

Main application

[14] After the dismissal of the application for postponement, Mr Madisha made submissions in respect of the merits. He submitted that on 19 March 2020 the parties entered into a five- year agreement to “mine process”. It was later agreed that the applicant would be permitted to sell the product that it had mined. As part of the conditions, the applicant had to pay royalties in return for mining the product. Subsequently, their supporting funder moved back to India, as all their suppliers stopped. This was explained to the first respondent, and it was further agreed that the applicant would solicit funding from the banks, against its balance sheet. However due to Covid-19, their funding was depleted. On that basis a further agreement was concluded that in order to keep the agreement alive, the applicant would pay royalties. They continued with these payments for some time and paid a total amount of approximately R1.6 million. He subsequently requested a short adjournment in order to refresh some of his submissions.

[15] After the adjournment, Mr Madisha informed the court that he would not continue with his submissions as he is not legally qualified to do so and has a constitutional right to legal representation in the High Court.

[16] Mr Jorge, on behalf of the respondents, subsequently sought that the main application be dismissed with costs on an attorney and client scale, inclusive of travel costs. He argued that the relief sought by the applicant is incompetent, both in law and on the facts.

[17] It is common cause that the parties concluded an agreement on 19 March 2020. The terms of the agreement are also common cause. Notably, the first respondent, as a holder of a mining right, procured the services of the applicant to perform certain mining activities, and concurrent rehabilitation of the mined areas, on agreed payment terms.

[18] It is further common cause that the parties signed an addendum on 8 May 2020 in terms of which the applicant would mine chrome to a minimum of 10 000 and a maximum of 20 000 per month, at its own cost and for its own benefit. The applicant would then pay an amount of R60.00 per ton to the first respondent for chrome mined from the lower group 3 reef, and R120.00 per ton for chrome mined from the lower group 4 reef.

Submissions

[19] In its founding affidavit, the applicant contends that it complied with all its obligations in terms of the agreement, and paid all amounts as consideration for the work it had performed. In this regard, the applicant contends that it paid an amount of R1 760.000 as set out in annexure FA5 to the founding affidavit. Of relevance is that these payments were ostensibly made from 24 July 2020 to 12 October 2021.

[20] It is further the applicant’s contention that its services and access to the mine were abruptly halted. It later transpired that the respondents had failed to pay rental to the landowner. The applicant thus seeks the relief set out in the notice of motion.

[21] In opposing the application, the respondents in their answering affidavit contend that the applicant failed to comply with the terms of the agreement in that it did not produce the required minimum of 14 000 MT per month or the 10 000 tons in terms of the addendum. It is the respondents’ contention that as of 1 July 2020, the applicant failed to mine any chrome whatsoever. As a result of the applicant’s breach, the respondents on 1 July 2020 served a notice of breach requiring the applicant to remedy its breach and on 8 July 2020 cancelled the agreement as the applicant had failed to remedy the breach. They aver that the agreement was thus validly cancelled.

[22] On the basis of the above, the respondents contend that relief sought by the applicant is incompetent as no agreement exists. In the alternative, the respondents further contend that the agreement did not comply with the provisions of section 11 of the Mineral and Petroleum Resources Act, 28 of 2002 (MPRDA) which require the approval of the Minister. This, the respondents aver was due to a mistake common between the parties. The respondents further aver that the applicant is precluded from seeking specific performance, by account of the fact that it has failed to perform its obligations, which also resulted in the landowner preventing access to the site in 2021. The respondents thus concede that they failed to pay rental, but that this was because of the applicant’s failure to perform its obligations.

[23] It is further the respondents’ contention that following the cancellation of the agreement, the parties concluded two oral agreements in July 2020 and January 2021 in a bid to assist the applicant to raise funds and demonstrate its capability considering its previous failure and cancellation of the written agreement. According to the respondents, the relevance of this is that the payment schedule relied upon by the applicant is in respect of those agreements, and not the agreement of 19 March 2020. According to the respondents, the applicant deliberately misled the court in this regard.

Discussion

[24] The applicant did not file a replying affidavit.

[25] It is trite that an applicant who seeks final relief on notice of motion must, in the event of conflict, accept the version set up by his opponent unless the latter’s allegations are, in the opinion of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers.

[26] In Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA 371 (SCA) the court noted that:

“A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed.”[1]

[27] There can be no suggestion that the respondents have seriously challenged the applicant’s case. They have put into question its version and placed sufficient evidence in support of their opposition. Having elected not to file a replying affidavit, the respondent’s version remains unchallenged. The result is that “the facts as stated by the respondent, together with the admitted or undenied facts in the applicants’ founding affidavit”[2], must be accepted. These are that the applicant breached the agreement, consequent to which the respondents cancelled the agreement on 8 July 2020. They further contend that the agreement did not comply with the relevant provisions of the MPRDA which non- compliance renders the agreement null and void. They further argue that even if the court were to find that the agreement is still in force, the applicant is precluded from seeking specific performance on an agreement they themselves have failed to perform on.

[28] In Webster v Mitchell[3], Clayden J remarked as follows:

“The proper manner of approach is to take the facts as set out by the Applicant together with any facts set out by the Respondent which the Applicant cannot dispute and to consider whether, having regard to the inherent probabilities, the Applicant could on those facts obtain final relief at a trial. The facts set out in contradiction by the Respondent should then be considered, and if serious doubt is thrown upon the case of the Applicant he could not succeed.”

[29] In casu, there can be no doubt that the respondents have thrown

serious doubt upon the applicant’s case, as to dispose of it entirely. The application must therefore fail.

Costs

[30] The respondents seek costs on attorney and client scale. They contend that it was not necessary for the applicant to institute the current proceedings, as the true facts of the matter are within the knowledge of both parties. Notwithstanding this, the applicant in its founding affidavit deliberately sought to mislead the court, and set out untrue statements, knowing them to be untrue. This was not disputed by the applicant.

[31] The respondents further contend that it was open to the applicant after receiving the answering affidavit, to withdraw the application. This, they did not do. On that basis the respondents seek costs against the applicant, inclusive of travelling costs.

[32] The determination of costs is within the discretion of the court which discretion must be exercised judicially. A consideration of this matter clearly indicates that the applicant was not only lackadaisical in instituting the application, but the application itself was frivolous. The applicant was also not bona fide in its dealings with the court. Having initiated the proceedings, the applicant abandoned its own application, leaving the respondents with no option but to set the matter down so as to obtain some finality. The applicant further failed to file an replying affidavit. In those circumstances, I am of the view that the conduct of the applicant justifies an award of costs on a punitive scale.

Order

[33] In the result, I make the following order:

(iii) The application is dismissed.

(iv) The applicant shall pay the costs on attorney and client scale.

________________________________

S MFENYANA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTHWEST DIVISION, MAHIKENG

APPEARANCES

Date of Hearing : 19 January 2023

Date of Judgement Reserved : 19 January 2023

Date of Judgement : 15 August 2023