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[2016] ZAGPJHC 148
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Xander Resources Proprietary Ltd v Transnet Soc Limited and Others (39727/2015) [2016] ZAGPJHC 148 (8 April 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 39727/2015
DATE: 8 APRIL 2016
In the matter between:
XANDER RESOURCES PROPRIETARY
LTD
....................................................................
Applicant
And
TRANSNET SOC
LIMITED
......................................................................................
First
Respondent
SEBILO RESOURCES PROPRIETARY LTD
(IN BUSINESS
RESCUE)
.......................................................................................
Second
Respondent
ZAHEER CASSIM
N.O
.............................................................................................
Third
Respondent
NOBLE RESOURCES INTERNATIONAL
PTE
LIMITED
..........................................................................................................
Fourth
Respondent
J U D G M E N T
KEIGHTLEY, J
:
[1] For ease of reference I refer to the parties in this matter as
follows: I refer to the applicant as “Xander”, the
first
respondent as “Transnet”, the second respondent as
“Sebilo” and the fourth respondent as “Noble”.
The third respondent is cited in his representative capacity
following Sebilo being placed in business rescue. As Sebilo
played no active role in these proceedings, I need not refer to the
third respondent.
[2] The main issue in dispute concerns the competing claims of Xander
and Noble to ownership of a certain stockpile of manganese
ore (“the
ore”). The ore is currently stockpiled at Transnet’s
Port Elizabeth Port in two identified Bins.
[3] In the main application before me, Xander sought an order
declaring that it is the owner of the ore. Noble opposed this on
various grounds. One of these was that Noble claims that Sebilo
sold and transferred ownership of the ore to Noble prior
to the
transaction upon which Xander basis its claim for ownership.
[4] The dispute began as an urgent application launched by Xander on
12 November 2015. Xander was granted interim relief
in the form
of an order restraining second to fourth respondents from moving,
alienating or similarly dealing with the ore pending
the finalisation
of what became the application before me.
[5] It is necessary to record at this point that Xander originally
also sought urgent relief against Transnet. However, it
did not
pursue that relief when the matter was heard. Transnet actively
opposed the relief sought against it. The urgent
court reserved
the question of Transnet’s costs for determination in the main
application. Transnet’s continued
participation in the
matter to date has been restricted to pursuing its order as to
costs. I will deal with this issue later.
[6] First, it is necessary to briefly set out what transpired at the
hearing before me as regards the main issue.
[7] From the submissions made by counsel for both Xander and Noble it
became increasingly clear to me that there were disputes
of fact on
critical issues which simply could not be determined on the papers.
Indeed, counsel for both parties accepted
that this was so. The
question then became whether the matter should be referred to trial
or oral evidence, or, as counsel
for Noble submitted, whether I
should proceed to consider the matter on the basis of Noble’s
version in accordance
with the principles laid down in Plascon Evans.
[8] Perhaps anticipating that there might be material disputes of
fact, Xander submitted in its replying affidavit that if the
court
was unable to determine the issues on the papers, the question of
Xander’s ownership should be referred to oral evidence
or
trial.
[9] Mr Graves, for Noble, submitted that Xander had elected to
proceed on the basis of motion proceedings when it ought to have
anticipated that the matter involved disputes of fact, and that a
trial was the more appropriate course of action to follow.
He
contended that Xander should be held to its election. He also
submitted that it was impermissible for Xander to seek a
referral to
oral evidence or trial only in its replying affidavit.
[10] I considered Mr Graves’ submissions in opposing Xander’s
request, in the alternative, to the matter being referred
to oral
evidence or to trial. I advised counsel at the hearing that I
was not persuaded by those submissions. This
matter began its
life as an urgent application. It was in the interests of both
Xander and Noble that their competing claims
to ownership of the ore
(the issue reserved by the urgent court for determination before me)
should be determined as soon as possible.
In these
circumstances, I do not believe that Xander acted unreasonably in
electing to proceed by way of application, rather than
trial.
[11] In addition, Xander based its claim for relief largely on
documentation. In the normal course, this is a typical feature
of application proceedings. It was only as the matter evolved,
and particularly as the issues became clarified in the hearing
before
me that the extent of the factual disputes became starkly evident.
It also became evident that Noble’s own claim
to ownership
similarly was vulnerable to factual disputes.
[12] In my view, the interests of justice require that all of the
contested factual issues be ventilated before a court that has
the
benefit of hearing oral evidence and cross-examination.
[13] There was a further issue between Xander and Noble regarding
whether the matter ought properly be referred to oral evidence
or to
trial. Xander contended for the former, and Noble for the
latter. I requested both parties to discuss the possibility
of
reaching consensus in this regard. Subsequent to the hearing I
was advised that consensus had been reached, and that the
parties had
agreed that the matter be referred to trial.
[14] As regards the main issue, I make the order set out at the end
of the judgment under the heading “Order A”.
[15] I turn now to consider the remaining issue, viz. that of
Transnet’s costs.
[16] Transnet submits that it ought to be entitled to its costs in
that the relief sought in prayers 4 and 5 of the urgent notice
of
motion placed Transnet in an impossible position. This is
because, if that relief had been granted, it would have obliged
Transnet to act in breach of its contract with its customer, Sebilo.
Furthermore, the order would have obliged Transnet to
release the ore
without any provision being made for payment to Transnet for the
services it had rendered in respect of storage.
Prayers 4 and 5
of the original notice of motion would have caused Transnet to lose
its lien over the stockpile of ore.
[17] Accordingly, Transnet contends that it was justified in opposing
the urgent application insofar as prayers 4 and 5 were concerned.
It points out that Xander subsequently abandoned this relief,
indicating that its opposition was justifiable. In the
circumstances,
it says that Xander must pay its costs.
[18] On the other hand, Xander submits that Transnet’s
involvement in the urgent application could have been avoided if
Transnet had made its position clear from the start. Xander
says that Transnet did not squarely raise its real concerns in
the
correspondence preceding the institution of the urgent application.
Had Transnet done so, Xander avers that it would
not have included
prayers 4 and 5 in the notice of motion.
[19] In my view, Transnet is entitled to its costs. It was
eminently reasonable for Transnet to oppose the relief sought
in
prayers 4 and 5. The only issue is whether Transnet has itself
to blame for not dealing with its concerns fully enough
in the
correspondence between Xander and Transnet prior to the launch of the
urgent application.
[20] I do not believe that the blame should be placed at Transnet’s
door. It must be remembered that these were urgent
proceedings,
and time was of the essence. In those circumstances, issues
often become clouded and are only clarified once
the proceedings have
progressed. This is particularly so in a matter like the
present where Transnet was not a direct
party to the dispute.
Typically, letters fly between the various parties in the run-up to
the case. There is no time
for careful consideration of the
finer issues involved.
[21] At the end of the day, Transnet was drawn into the proceedings
as a party in circumstances where it was justified in filing
opposing
papers and becoming actively involved in the matter. Xander did
not pursue the relief that Transnet opposed.
To that extent,
Transnet’s opposition was successful.
[22] Accordingly, Transnet is entitled to its costs. In this
regard, I make an order in the terms set out under the heading
“Order
B”.
Order A
1. The relief
claimed by the applicant in prayer 3 of its notice of motion dated 10
November 2015 and as between the applicant and
the fourth respondent
is referred to trial;
2. The
applicant’s notice of motion will stand as a simple summons and
the applicant is to deliver its declaration within
20 days,
whereafter the normal Uniform Rules relating to action proceedings
will apply;
3. Pending the
final determination of the relief sought by the applicant in prayer 3
of the notice of motion, the interdict in paragraph
2.1 as read with
paragraph 3 of the order of Lamont J on 12 November 2015 will
continue to apply;
4. The costs to
date as between the applicant and the fourth respondent are to be in
the cause.
Order B
1. The applicant is directed to pay the costs of the first respondent
from inception of the application to the date of this order.
R KEIGHTLEY
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Date Heard: 23 February 2016
Date of Judgment: 8
April 2016
Counsel for the
Applicants: B M Gilbert
Instructed by: Hogan
Lovells
Counsel for Respondent:
N J Graves SC
Instructed by: Bowman
Gilfillan