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[2009] ZAGPPHC 355
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Saidex (Pty) Ltd and Others v Minister Of Minerals And Energy N.O and Others (37651/2008) [2009] ZAGPPHC 355 (1 December 2009)
IN
THE NORTH GAUTENG HIGH COURT
GAUTENG
PROVINCIAL DIVISION
Case
No: 37651/2008
Date:
1 December 2009
In
the matter between
SAIDEX
(PTY)
LIMITED First
Applicant
FRITS
STEPHAN US
VISSER Second
Applicant
ESTE
MINERALS
CC Third
Applicant
D
& R DIAMOND
CC Fourth
Applicant
CS
DIAMOND
CC Fifth
Applicant
PLATINUM
SHADOW TRADE 101 (PTY)
LTD Sixth
Applicant
and
THE
MINISTER OF MINERALS & ENERGY
N.O First
Respondent
THE
DEPARTMENT OF MINERALS &
ENERGY Second
Respondent
S
A DIAMOND & PRECIOUS METAL REGULATOR
Third
Respondent
MARTIN
US MAMPHENYANE MONONELA N.O. Fourth
Respondent
JUDGMENT
SAPIRE.
AJ:
The
Applicants seek leave to appeal to the Supreme Court of Appeal
against my judgment and order refusing their application in terms
of
a Notice of Motion the prayers to which read as follows:
“
1.
Dispensing with the forms and services in terms of Rule 6{ 12) of the
Rules of the High Court and disposing of the matter as
one of urgency
in terms of that rule
2.
That, pending the final determination of the application made in the
above Honourable Court by the South African Diamond Producers
Organisation against the first and second respondents under case
number 98085/07 (the main application)
2.1
the respondents are restrained from taking any steps whatsoever
towards prohibiting-
(i)
the first applicant from continuing to conduct its business
activities in accordance with its diamond exchange certificate no
8.
issued in terms of section 47 of the Diamond Act. 56 of 1986. prior
to its amendment by the
Diamonds Amendment Act. 29 of 2005
. and the
Diamonds Second Amendment Act. 20 of 2005
(ii)
the second, third, fourth and fifth applicants from continuing to
conduct their business activities in accordance with their
diamond
dealer's licences, numbers DD628, DD005A, DD297A issued in terms of
section 29 of the Diamond Act. 56 of 1986. prior to
its amendment by
the
Diamonds Amendment Act. 29 of 2005
. and the
Diamonds Second
Amendment Act. 30 of 2005
. respectively
3.
In amplification of the above, specifically ordering:
3.1.
the third respondent and any of its employees and officials to
cooperate with and assist the first applicant insofar as it
may be
necessary for the tlrst applicant to run its Diamond Exchange
business at the premises (the particulars of such premises
are
reflected on the first applicant's diamond exchange certificate
(licence) above in the same manner4 as it did prior to 30 June
2008.
including inter aha to
3.1.1
assist and cooperate with the first applicant and any party wishing
to export through diamonds with the completion of all
necessary forms
and to assist with the insertion of such information as may be
necessary to complete the forms irrespective of
the stage that the
export process has reached when the third respondent’s
cooperation is requested;
3.1.2.
instruct at least one of its registering officers to the first
applicant's business to weigh any parcel of rough diamonds,
examine
its contents and describe the contents on such forms which require
such details as necessary to be inserted therein in
the same manner
as was done prior to 30 June 2008;
3.1.3.
authorise any and all forms and documentation in such manner as it
was required to do prior to 30 June 2008,
3.1.4.
refrain from interfering with all licensed diamond dealers and
licensed diamond cutters ibeneficiators). even if accompanied
or
assisted by such persons as were permitted in terms of the conditions
of the first applicant 's licence prior to 30 June 2008
to view the
diamonds at the first applicant’s diamond exchange and make
formal bids in writing for any parcel of rough diamonds
destined for
export, at the first applicant's diamond exchanges;
3.1.5.
order its registering offices to visit the first applicant's diamond
exchange for the purposes of further completing forms
and also for
the checking and weighing of rough diamonds in those cases where
rough diamonds had been available for viewing of
tour (4) days or
more and where bids of less than the reserved price were received by
the applicant,
3.1.6.
sign and stamp all further documents which may be required by an
exporter to enable the exporter to export the diamonds concerned
and
to sell all parcels of diamonds with a special seal of the first
applicant 's diamond exchange (which is unique to each parcel)
and
thereafter with a special seal of the third respondent (which is
unique to each parcel) at the third respondent's premises.
3.1.7.
do all things necessary at the premises of the third respondent to
enable the exporter to export the parcels of diamonds
which have
completed the pre-export process at the first applicant’s
diamond exchange, including the issuing of such certificates
as may
be necessary in terms of the Kimberley process and to grant the
exemption from export duty or certify that the necessary
export duty
has been paid if applicable.
3.2.
The third respondent to cooperate with the second, third, fourth and
fifth applicants insofar as it may be necessary for those
applicants
to run their diamond sales by tenders in their licensed premises (the
particulars of such premises are reflected on
the applicant's diamond
dealer's licence identified hereinabove in the same manner as it did
hitherto and inter aha to refrain
from
3.2.1.
interfering with the second. third, fourth and fifth applicants from
inviting foreigners to view the rough diamonds at its
aforesaid
premises provided that such foreigner is accompanied or assisted by a
licensed diamond dealer or licensed diamond cutter
(beneficiators);
3.2.2.
allowing all licensed diamond dealers and licensed diamond cutters
(beneficiators) to view diamonds at those applicants'
aforesaid
premises and make formal bids in writing for any parcel of rough
diamonds even if accompanied or assisted by such persons
as were
permitted by those applicants’ licences as it was done prior to
30 June 2008.
3.3
The third respondent and all its employees and officials to refrain
from in any way whatsoever restricting or preventing any
client of
the applicants from conducting business with the applicants in
accordance with their diamond exchange certificates and/or
diamond
dealer’s licences respectively, issued under the Diamond Act,
56 of 1986, prior to the amendments by the
Diamonds Amendment Act. 29
of 2005
and the
Diamonds Second Amendment Act, 30 of 2005
,
respectively.
4.
The respondents be restrained from taking any decision on the
application for a licence,certificate or permit in terms of
section
26
of the Diamonds.
Act
as amended by the legislation referred to in prayer 2 1. made by the
second, third, fourth, fifth and sixth applicants.
5.
Granting costs against those respondents who oppose this application
jointly and severally, the one paying the other to be absolved
6.
Granting the applicants further and/or alternative relief"
The
relief sought is identical to that eventually granted in a similar
application originally decided by me The relief granted by
me was
extended by Preller. J in terms of a consent by the respondent That
pan of the order granted by me was in terms of paragraph
1 and was
conceived to be a preservation order pending the outcome of an
application in which the constitutionality of provisions
of Acts 29
and 30 of 2005 is being tested.
The
remainder of the relief granted as 1 have observed, by consent goes
much further than that granted by me The relief sought by
the present
applicant comprises not only that granted by me but the further
provisions which were intended to amplify the terms
of my order.
As
I explained in my judgement I considered that it was not competent to
grant the relief in toto and for those reasons refused
to grant the
relief to the present applicant.
The
matter is not free of contusion and is apparently of great importance
certainly to the applicant The issues have not previously
been
considered by a Higher Court and in my view the possibility does
exist that another court may come to a decision different
to that
given by me.
I
have therefore decided to grant the leave to appeal sought by the
applicants and I order
1.
The applicants are granted leave to appeal against the judgement
given by me on 16 October
2008 to the Supreme Court of Appeal,
2.
The costs of this application are to be costs in the cause
SAPIRE.
A J
JUDGE
OF THE NORTH GAUTENG HIGH COURT
PRETORIA