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[2016] ZAGPPHC 327
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Vodafin Mining (Pty) Ltd v NKK Minerals and Construction CC and Others (4857/2016) [2016] ZAGPPHC 327 (16 February 2016)
IN THE HIGH COURT OF
SOUTH APRICA
(GAUTENG DIVISION,
PRETORIA)
16/2/16
CASE NO: 4857/2016
Reportable: No
Of interest to other
judges: No
In the matter between:
VODAFIN MINING (PTY)
LTD APPLICANT
and
NKK MINERALS AND
CONSTRUCTION CC 1
ST
RESPONDENT
MR RONAL
KGOSANA 2
ND
RESPONDENT
AFRICAN COMPASS
TRADING 565 CC 3
RD
RESPONDENT
LIVIERO MINING (PIY)
LTD 4
TH
RESPONDENT
JABULA PLANT HIRE
(PIY)
LTD 5
TH
RESPONDENT
BURGH PLANT HIRE (PTY)
LTD 6
TH
RESPONDENT
MR FRANS VAN
JAARSVELD 7
TH
RESPONDENT
JUDGMENT
KUBUSHl, J
[1] The application in
this instance was heard on 2 February 2016 in the urgent court and on
that day I reserved judgment and undertook
to hand it down on 4
February 2016. On 4 February 2016 I could not hand the judgment down
and undertook to do so on 16 February
2016. On 16 February 2016 I
granted an order dismissing the application with costs. On 29
February 2016 I received a request for
reasons for judgment from the
applicant's attorneys of record. It seems that by then the file had
already been filed at the basement
storage facility. I only received
it back on 7 March 2016. These are the reasons for my judgment.
[2] The applicant
launched an urgent application for interim relief against the first
and second respondents. There are seven respondents
cited in the
application but no specific relief is sought against the other
respondents except the first and second respondents.
Amongst others,
the main relief sought by the applicant is that the applicant be
placed in possession of a mining site which is
the subject matter of
these proceedings, for the full term provided for in the agreement
purported to exist between the parties
until the said agreement is
lawfully terminated or cancelled or until a court orders otherwise.
[3] The first and second
respondents are opposing the application and besides other defences,
have raised a point
in limine
which I intend to deal with
first in this judgment.
[4] The point
in
limine
raised in the first and second respondents' heads of
argument, and as argued by counsel before me, is to the effect that
the relief
sought by the applicant is for a final interdictory relief
rather than interim relief and as such the applicant has in its
papers
failed to demonstrate the existence of a clear right which is
a requirement for a final interdictory relief. It is on this basis
that the first and second respondents pray for the dismissal of the
application.
[5] The relief sought by
the applicant is couched as follows:
“
1. ….;
2. That, pending
finalisation of an action to be instituted by the Applicant against
the First and Second Respondents, within thirty
(30) days of granting
of this order, for inter alia, a declaratory order and specific
performance of an agreement entered into
between the Applicant and
First Respondent (Annexure "C" hereto), the following order
be issued as an
interim interdict
[my emphasis].
2.1. That Applicant be
placed in possession of a mining site known as the Kromkrans mine,
situated at portions 4, 34, 44, 45, 46,
57, 58, 59 as well as the
remaining extent of the farm Kromkrans 208 (hereinafter collectively
referred to as 'the Kromkrans mine
site'), for the full term provided
for in Annexure "C"' of these papers, until Annexure "C"
is lawfully terminated
or cancelled or until a court orders
otherwise. [Annexure "C" is a copy of the Management
Agreement alleged
by the appellant to
exist between the Applicant and the First
respondent].
2.2.
That the First and Second Respondents be prohibited and interdicted
to:
2.2.1. Interfere with the
mining operations of Applicant at the Kromkrans Mine Site, directly
or indirectly;
2.2.2. Report to any
third party that the Applicant has no right to be on the Kromkrans
Mine Site;
2.2.3. Fully cooperate
with the Applicant and Applicant's appointed agents and contractors
to immediately restore Applicant to the
Kromkrans Mine Site and allow
them full access to such site
2.2.4. That the Second
Respondent inform the Kromkrans community that the agreement is
binding and was never cancelled. . . ."
[6] It is evident from
the quoted passage that the applicant seeks an interim interlocutory
relief. However, the first and second
respondents contend that the
substance of the relief sought is not interim but final in nature.
For the applicant to succeed in
such an application, that is, for
final relief, it should establish the three requirements for a final
interdict, namely, a clear
right, injury actually committed or
reasonably apprehended, and the absence of similar or adequate
protection by any other ordinary
remedy, so it was argued. In this
regard the first and second respondents' counsel referred me to the
judgment in
Setlogelo v Setlogelo
1914 AD 221
at 227 as
authority for the requirements of a final interdict.
[7] It is trite that when
determining whether the relief sought is interim or final, a court
should look at the substance of the
relief sought rather than the
form in which the prayer is couched. According to counsel for the
first and second respondents, the
prayer in this instance is couched
in such a way that it makes it clear that the interdictory 'interim
relief is sought 'for the
full term provided for' in the Management
Agreement, that is, for a period of 36 months from 15 November 2015.
The submission being
that the fact that the applicant seeks relief
that will run until the expiry or earlier cancellation of the
Management Agreement,
renders the substance of the relief sought
final.
[8] I am in agreement
with the submission by counsel for the first and second respondents
that the substance of the relief sought
by the applicant renders the
interdictory relief final. It is evident from prayer 2.1 of the
notice of motion that the applicant
seeks the purported interim
relief to operate until the Management Agreement expires or
cancelled. It follows that the purported
interim relief is sought for
the full term provided for in the Management Agreement, that
is, for a period of 36 months from
15 November 2015. Put differently,
the relief is final in nature in the sense that the effect of the
order, should it be granted,
is that it will remain in place only
until the period of the agreement has run its course and will
thereafter lapse. The substance
of the relief sought is thus in my
view final. The format, in which it is couched, that is, to operate
as an interim interdict,
does not change its nature. It remains
final.
[9] Having concluded that
the interdictory relief sought by the applicant is final in nature,
it follows, therefore, that the applicant
should have, in its papers,
established a case for a final interdictory relief. As stated in the
Setlogelo
judgment above, referred to by counsel for
first and second respondents, the applicant should have in its papers
established the
three requirements for obtaining a final interdict,
namely, the establishment of a clear right, injury actually committed
or reasonably
apprehended and the absence of similar protection by
any other ordinary remedy.
[10] Without having to go
into the details of the applicant's papers, it is common cause that
the objective intent of the applicant's
case was for interim relief.
In its founding affidavit the applicant's deponent submits that the
applicant has a
prima facie
right to the relief requested in
the notice of motion. Nowhere in the papers is a clear right
canvassed. I concluded as such when
dismissing the application that
the applicant failed to establish a clear right in its papers.
[11] In the circumstances
I dismissed the application with costs.
_______________________
E. M. KUBUSHI,
JUDGE OF THE HIGH
COURT
APPEARANCES
HEARD ON
THE
:02 FEBRUARY 2016
DATE OF
JUDGMENT
:16 FEBRUARY 2016
APPLICANT' S
COUNSEL
: ADV J.L. VAN MERWE
APPLICANT’S
ATTORNEY
:TITINGERS INCORPORATED
1
ST
& 2
ND
RESPONDENT' S COUNSEL
:ADV. B C STOOP (SC)
1
ST
& 2
ND
RESPONDENT' S ATTORNEY
:ROOTH & WESSELS INCORPORATED