THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 702/2023
In the matter between:
TRANSASIA 444 (PTY) LTD APPELLANT
and
THE MINISTER OF MINERAL RESOURCES
AND ENERGY FIRST RESPONDENT
DIRECTOR-GENERAL: DEPARTMENT OF
MINERAL RESOURCES AND ENERGY SECOND RESPONDENT
THE REGIONAL MANAGER: KWAZULU-NATAL
REGION THIRD RESPONDENT
UMSOBOMVU COAL (PTY) LTD FOURTH RESPONDENT
TRANSASIA MINERALS SA (PTY) LTD FIFTH RESPONDENT
In re:
UMSOBOMVU COAL (PTY) LTD APPLICANT
and
THE MINISTER OF MINERAL RESOURCES
AND ENERGY FIRST RESPONDENT
DIRECTOR-GENERAL: DEPARTMENT OF
MINERAL RESOURCES AND ENERGY SECOND RESPONDENT
THE REGIONAL MANAGER: KWAZULU-NATAL
REGION THIRD RESPONDENT
And
2
Case no: 707/2023
In the matter between:
TRANSASIA MINERALS (SA) (PTY) LTD APPELLANT
and
THE MINISTER OF MINERAL RESOURCES
AND ENERGY FIRST RESPONDENT
DIRECTOR-GENERAL: DEPARTMENT OF
MINERAL RESOURCES AND ENERGY SECOND RESPONDENT
THE REGIONAL MANAGER: KWAZULU NATAL
REGION THIRD RESPONDENT
UMSOBOMVU COAL (PTY) LTD FOURTH RESPONDENT
TRANSASIA 444 (PTY) LTD FIFTH RESPONDENT
In re:
UMSOBOMVU COAL (PTY) LTD APPLICANT
and
THE MINISTER OF MINERAL RESOURCES
AND ENERGY FIRST RESPONDENT
DIRECTOR-GENERAL: DEPARTMENT OF
MINERAL RESOURCES AND ENERGY SECOND RESPONDENT
THE REGIONAL MANAGER: KWAZULU NATAL
REGION THIRD RESPONDENT
Neutral citation: Transasia 444 (Pty) Ltd v The Minister of Mineral Resources and
Energy and Others (702/2023) & Transasia Minerals (SA) (Pty)
Ltd v The Minister of Mineral Resources and Energy and Others
(707/2023) [2024] ZASCA 145 (23 October 2024)
Coram: MOLEMELA P, ZONDI DP and UNTERHALTER JA and MANTAME and
DIPPENAAR AJJA
Heard: This appeal was, by consent between the parties, disposed of without an
oral hearing in terms of s 19(a) of the Superior Courts Act 10 of 2013.
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Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website,
and release to SAFLII. The date for hand down is deemed to be 23 October 2024 at
11h00.
Summary: Failure to cite party with direct and substantial interest in application to
compel disclosure of records held by the Director -General of the Department of
Mineral Resources and Energy relating to the application for the Ministerial consent
for the transfer of a mineral right under s 11 of the Mineral and Petroleum Resources
Act 28 of 2000 – disclosure order erroneously sought and granted as contemplated by
rule 42 (1)(a) of the Uniform Rules of Court – order issued by court considering
rescission supplementing the disclosure order incompetent – order set aside and
substitution order granted.
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___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Millar J, sitting as court
of first instance):
In relation to Transasia 444 (Pty) Ltd’s appeal under case number 702/2023:
1 The appeal succeeds.
2 The order issued by Millar J on 29 August 2022 is set aside and substituted
with the following:
‘(a) The application for rescission succeeds.
(b) The default order granted by Mngqibisa -Thusi J, on 8 July 2022, under
case number 10531/2022, is hereby set aside.
(c) The application for the joinder of the applicant as the fourth respondent in
the disclosure application under case number 10531/2022 is granted.
(d) The applicant is granted leave to oppose the disclosure application and to
file its answering affidavit within (15) fifteen) days from the date of this order.
(e) The fourth respondent in the rescission application (Umsobomvu Coal (Pty)
Ltd) is ordered to pay the applicant’s costs.’
3 The fourth respondent is ordered to pay the appellant’s costs of appeal
including the costs of the application for leave to appeal both in the high court
and in this Court.
In relation to Transasia Minerals (SA) (Pty) Ltd’s appeal under case number 707/2023,
the following order is issued:
1 The appeal succeeds.
2 The order issued by Millar J on 29 August 2022 is set aside and substituted
with the following:
‘(a) The applicant is granted leave to intervene as an applicant in the
application for leave to appeal.
(b) The applicant is granted leave to oppose the disclosure application and to
file its answering affidavit within 15 (fifteen) days from the date of this order.
(c) The fourth respondent in the rescission application (Umsobomvu Coal
(Pty) Ltd) is ordered to pay the applicant’s costs in the intervention application.’
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3 The fourth respondent is ordered to pay the costs of appeal including the costs
of application for leave to appeal both in the high court and in this Court.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Zondi DP (Molemela P and Unterhalter JA and Mantame and Dippenaar AJJA
concurring):
[1] The two appeals were heard simultaneously , as the issues they raise are
substantially similar, notwithstanding that they were not formally consolidated . The
appellant in the matter under case number 702/2023 is Transasia 444 (Pty) Ltd
(Transasia 444) and under case number 707/2023 the appellant is Transasia Minerals
(SA) (Pty) Ltd (Transasia Minerals). Transasia 444 and Tranasia Minerals, though they
are separate entities, are owned by a common shareholder , Transasia BVI, which is
incorporated and registered in the British Virgin Islands.
[2] The two appeals concern the validity of the order made by Millar J of the
Gauteng Division of the High Court , Pretoria in an application for rescission of the
order made by Judge Mngqibisa-Thusi of the same division on 28 June 2022. The
main issue before Millar J was whether Mngqibisa -Thusi J’s order should be
rescinded. Instead of expressly granting or dismissing the application for rescission,
Millar J issued an order which substantially changed the terms of Mngqibisa-Thusi J’s
order.
[3] The facts which gave rise to these appeals are largely common cause and are
the following. Transasia 444 and Transasia Minerals have been involved in a long-
standing dispute with the fourth respondent, Umsobomvu (Pty) Ltd (Umsobomvu). The
dispute relates to the transfer of certain mining rights Umsobomvu sold to Transasia
1 (Pty) Ltd, (Transasia 1) which the latter subsequently assigned to Transasia 444 .
Umsobomvu disputed the validity of the sale agreement and cancelled it . Transasia
Umsobomvu disputed the validity of the sale agreement and cancelled it . Transasia
444 disputed Umsobomvu’s right to cancel the agreement and sought to enforce it.
[4] Transasia 444 applied to the second respondent, the Director-General of the
Department of Minerals and Energy (Director-General) for ministerial consent in terms
of s 11 of the Mineral and Petroleum Resources Development Act 28 of 2002 (the
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MPRDA) for the transfer of the mineral right s to it. In support of the application,
Transasia 444 submitted to the Director -General various documents, some of which
were confidential, while others belonged to third parties, including Transasia Minerals.
Umsobomvu opposed the application . Despite its opposition, the Minister gave his
consent to the transfer of Umsobomvu’s mineral rights to Transasia 444. Umsobomvu
was aggrieved by the decision and lodged an appeal in terms of s 96 of the MPRDA.1
To prosecute the appeal, Umsobomvu was entitled to the record of the decision,
subject to disclosure under confidentiality protection.
[5] On 28 June 2022, Umsobomvu sought and obtained from the Gauteng Division,
Pretoria an order (Mngqibisa-Thusi J’s order) directing the first respondent (Minister
of Mineral Resources and Energy), the Director-General and the third respondent, (the
Regional Manager: KwaZulu -Natal Region), (collectively referred to as the
Department) to deliver all the records in respect of the appeal that Umsobomvu had
brought in terms of s 96 of the MPRDA . When this application was brought, Transasia
Minerals and Transasia 444 were not joined as parties, nor did they receive notice of
the application. Both were entitled to service of the application and to be cited as
parties to the application as they are both affected persons as envisaged in regulation
74(1) to the MPRDA. Some of the documents which were sought to be disclosed
contained material which they claimed to be confidential.
[6] Mngqibisa-Thusi J’s order reads as follows:
1 Section 96 of the MPRDA headed, ‘Internal appeal process and access to courts’ provides as follows:
(1) Any person whose rights or legitimate expectations have been materially and adversely affected or
who is aggrieved by any administrative decision in terms of this Act may appeal within 30 days becoming
[sic] aware of such administrative decision in the prescribed manner to-
[sic] aware of such administrative decision in the prescribed manner to-
(a) the Director-General, if it is an administrative decision by a Regional Manager or any officer to whom
the power has been delegated or a duty has been assigned by or under this Act;
(b) the Minister, if it is an administrative decision that was taken by the Director -General or the
designated agency.
(2)(a) An appeal in terms of subsection (1) does not suspend the administrative decision, unless it is
suspended by the Director-General or the Minister, as the case may be.
(b) Any subsequent application in terms of this Act must be suspended pending the finalisation of the
appeal referred to in paragraph (a).
(3) No person may apply to the court for the review of an administrative decision contemplated in
subsection (1) until that person has exhausted his or her remedies in terms of that subsection.
(4) Sections 6, 7(1) and 8 of the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000), apply to
any court proceedings contemplated in this section.’
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‘The Third respondent is directed to deliver all records required in terms of the Applicant ’s
notice of appeal in terms of Section 96 read with Regulation 74 of the Mineral and Petroleum
Resources Development Act, 2000 ('MPRDA and Application for the withdrawal of the decision
in terms of s 103(4)(b) and Application for suspension of the decision in terms of s 96(2)(a) in
respect of the decision made by the Director -General concerning the application made by
Transasia Minerals 444 (Pty) Ltd (registration number 2011/003954/07) (Transasia 444) for
Ministerial consent in terms of Section 11 of the MPRDA for the transfer of mineral right with
reference number KZN30/5/1/2/2/10021MR in respect of the property Farm terrace 3707
Portion 8 of the Farm Winkel no 5054, Remainder and Portion 1 of the Farm Eastkeal no 5138
Farm Lot W no.8610, the Farm Corby Rock no 11509, Remainder of Portion 3, Remainder of
Portion 4 and Portions 12 and 15 Farm Hazeldene no 12649 ( ‘Appeal’) in compliance with
Regulation 74(8) of the MPRDA within 5 days of the granting of the Order.’
Mngqibisa-Thusi J did not furnish reasons for her order.
[7] Aggrieved by the order of Mngqibisa-Thusi J, Transasia 444, on 15 July 2022,
brought an urgent application in the Gauteng Division, Pretoria seeking its rescission.
It simultaneously sought leave to be joined as the respondent in the disclosure
application and to be allowed to file its answering affidavit within 15 days from the date
of the order . Transasia 444’s complaint was that the order that was obtained by
Umsobomvu was granted without notice to it , even though Umsobomvu was aware
that it was an interested party. Tranasia 444 contended that, as an interested party, it
ought to have been joined as a party to the proceedings. The application for rescission
was brought under rule 42(1)(a) of the Uniform Rules of Court, alternatively under the
common law.
[8] Rule 42(1)(a) provides:
common law.
[8] Rule 42(1)(a) provides:
‘The court may . . . mero motu [of its own accord] or upon the application of any party
affected, rescind or vary:
(a) an order or judgment erroneously sought or erroneously granted in the absence of
any party affected thereby . . .’.
[9] The rescission application was heard by Millar J, who, after hearing arguments,
granted the following order without reasons:
‘1 By 5 September 2022, Third Respondent will deliver to the Applicant and the Fourth
Respondent a complete index of all copies of all documents pertaining to the Record of
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Decision concerning the application made by the Applicant in terms of section 11 of the
Minerals and Petroleum Resources Development Act, 2002 ("MPRDA") ("the Index").
2. By no later than 12 September 2022, the Applicant will instruct the Third Respondent
regarding which documents contained in the Index and the record is / are confidential.
3. The documents so identified by the Applicant shall be produced by the Third Respondent
as part of the Record, but under a separate folder to be titled “Confidential Portion of the
Record”, by no later than close of business on 23 September 2022.
4. For avoidance of doubt, the confidential and non -confidential parts so compiled must
contain a copy of each and every document in the Record in its original format (and may
not be redacted).
5. Only the legal representatives of the Fourth Respondent and the experts employed by
the fourth Respondent who sign the confidentiality undertaking attached as Annexure
“A” (“the Confidentiality Undertaking”) hereto and submit the Confidentiality Undertaking
to the Applicant's attorneys, shall be entitled to receive and inspect the Confidential
Portion of the Record.
6. For avoidance of all doubt, the Fourth Respondent and its directors and shareholders
and employees shall not be entitled to receive or inspect the contents of the Confidential
Portion of the Record.
7. Insofar as the Fourth Respondent (acting on advice received from its legal
representatives and/ or experts who have signed the Confidentiality Undertaking), wish
to challenge the classification of a particular document as a confidential document, the
dispute in this regard will be referred to by the Fourth Respondent and the Applicant to
a retired judge who will be appointed by the parties within 24 hours of a dispute being
declared. The retired judge so appointed will act as an expert and not as an arbi trator;
and will decide his/her own procedure, and whether or not evidence and argument is
and will decide his/her own procedure, and whether or not evidence and argument is
required and if so how it is to be presented. His/her decision on either of these issues
will be final and binding on the parties. If the parties cannot agree to the identity of the
retired judge to be appointed within 24 hours, the Chairperson of the Johannesburg Bar
shall be required to make such an appointment and shall be requested to do so on an
urgent basis. The determination of the dispute will be treated by th e parties and the
expert as an urgent matter. Any issues concerning the interpretation and/or application
of the confidentiality undertaking which may arise shall be referred to the retired judge
on the same basis.
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8. All submissions to the Minister making reference to the Confidential Portion of the
Record will be treated confidentially by the Fourth Respondent and submissions will be
treated in the same vein as the Confidential Portion of the Record.
9. Costs of two counsel from 15 July 2022 to the date of hearing (including the date of
hearing) are to be paid by the Applicant to the Fourth Respondent on a party and party
scale.’
This order followed the terms of the draft order that was handed up in court by counsel
for Umsobomvu. Th e order in the terms as proposed by Umsobomvu did not find
favour with counsel for Transasia 444 . He objected to it , stating that his instructions
were merely to seek rescission of Mngqibisa-Thusi J’s order and for Transasia 444 to
be given an opportunity to oppose the main application. Millar J d id not provide
reasons for his order, and none were requested by Transasia 444 before launching its
application for leave to appeal.
[10] Transasia 444 sought leave to appeal against the order of Millar J and sought
condonation for the late filing of its application for leave to appeal. Transasia Minerals
joined the fray. It applied for leave to be joined as an applicant in the application for
leave to appeal an d the rescission application , alternatively to intervene in the
application for leave to appeal and/or application for rescission. In turn, Umsobomvu
responded by bringing an application to compel compliance with the Mngqibisa-Thusi
J’s order and to hold the Department and Transasia 444 in contempt for failure to
comply with it; alternatively, for an immediate execution of the order in terms of s 18(3)
of the Superior Courts Act 10 of 2013. Although all three applications served before
Millar J on 20 January 2023, he only dealt with the application for leave to appeal and
the intervention application. He left the remaining application for determination at a
later stage.
later stage.
[11] Millar J granted Transasia Minerals leave to intervene as the applicant in the
application for leave to appeal and dismissed Transasia 444’s application for leave to
appeal with no order as to costs. In his judgment on the application for leave to appeal
and the intervention application, Millar J for the first time shed light on why he had
granted his original order. He explained that he had granted Transasia Minerals leave
to intervene in the appeal for it to be able ‘to exercise its rights together with Transasia
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444 inter alia in terms of paragraphs 2 and 7’ of his order of 29 August 2022. In other
words, according to Millar J the order that he fashioned affords Transasia Minerals
and Transasia 444 the right to have a say on what documents the Department could
release to the attorneys for Umsobomvu. He stated that in considering the rescission
application he had regard to the MPDRA and regulation 74(8) , regulating appeals,
which requires the Regional Manager, upon receipt of the notice of appeal, to send all
records pertaining to the decision appealed against to all identified affected persons.
[12] According to Millar J, Umsobomvu, being one of the parties contemplated in the
regulation, was entitled to be furnished with the record. In his view, Umsobomvu was,
however, not entitled to the document s in respect of which the appellants claimed
confidentiality or documents which were not relevant to the appeal and to which
Umsobomvu had no objection to their exclusion from the appeal record. Notably, Millar
J’s order does not stipulate in explicit terms whether he granted or refused rescission,
and his reasoning does not provide clarity. He says at para 30 of the judgment:
‘The order made on 29 August 2022 , insofar as the re scission of the order of 28 June 2022
was refused, accommodated, without objection by Umsobomvu, the rights and interests of
Transasia 444 (and now Transasia Minerals also).’
Millar J also says at para 19 of the judgment that his order does not vary Mngqibisa-
Thusi J’s order ‘but serves, in conjunction with [Mngqibisa-Thusi J’s] order, to impose
a regime in terms whereof the interests of Transasia 444 (and also Transasia Minerals)
could be represented and protected- in the way they would have been had either been
before the court on 28 June 2022 ’. (Own emphasis .) Millar J rejected Transasia
Minerals’ contention that the order he issued on 29 August 2022 was not a variation
of Mngqibisa-Thusi J’s order in its terms. He explained that his order was an addition
of Mngqibisa-Thusi J’s order in its terms. He explained that his order was an addition
to the order of Mngqibisa-Thusi J and had to be read in conjunction with it.
[13] Aggrieved by the order of Millar J dismissing leave to appeal , both Transasia
444 and Transasia Minerals petitioned this Court for leave to appeal. Leave to appeal
was granted by this court on 22 June 2023.
[14] Both Transasia 444 and Transasia Minerals submitted that Millar J’s order was
a nullity to the extent that it varied the final order of Mnqgibisa-Thusi J, alternatively,
that Millar J erred in refusing rescission. I disagree with the first proposition. Millar J’s
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order is not a nullity. I accept that it is not a model of clarity, and it is ambiguous, but
the fact that it lacks clarity does not render it a nullity. Millar J should ideally have
furnished his reasons for his order before the hearing of the application for leave to
appeal. But be that as it may, his intention must be ascertained from the language
of the judgment on the application for leave to appeal as construed according to the
usual, well-known rules.2 As in the case of a document, the judgment and his reasons
for giving it, must be read as a whole to ascertain his intention.3 It is now settled that,
when interpreting a document , including a court order, the point of departure should
be the language in question, read in context while also having regard to the purpose
of its provision and the background.4
[15] The Constitutional Court, in Democratic Alliance in re Electoral Commission of
South Africa v Minister of Cooperative Governance and Others ,5 had this to say
regarding the interpretation of court orders:
‘The order with which a judgment concludes has been described as the “executive part of the
judgment”, because it defines what the court requires of the parties who are bound by it. For
this reason, it was said in Ntshwaqela that although the order must be read as part of the
entire judgment, and not as a separate document, the order’s meaning, if clear and
unambiguous, cannot be restricted or extended by anything else stated in the judgment. The
modern approach is not to undertake interpretation in discrete stages but as a unitary exercise
in which the court seeks to ascertain the meaning of a provision in the light of the document
as a whole and in the context of admissible background material. This principle applies to the
interpretation of court orders, as decisions of this Court make plain.
The principle is unaffected by the circumstance that, for reasons of urgency, the order
The principle is unaffected by the circumstance that, for reasons of urgency, the order
preceded the reasons. Analogously, in International Trade Administration Commission , this
Court said that, in interpreting a court’s order, regard could be had to the court’s subsequent
judgment on an application for leave to appeal. A court order is made for particular reasons
2 Firestone South Africa (Pty) Limited v Genticuro AG [1977] 4 All SA 600 (A); 1977 (4) SA 298 (A) at
304D-E.
3 Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and Others [2012] ZASCA
49; 2013 (2) SA 204 (SCA) para 13.
4 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262
(SCA); 2012 (4) SA 593 (SCA) para 18.
5 Democratic Alliance in re Electoral Commission of South Africa v Minister of Cooperative Governance
and Others [2021] ZACC 30; 2022 (1) BCLR 1 (CC) para 12-13.
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and for particular purposes, and although these may be discerned from the order itself, greater
light is shed on them by the judgment.’ (Footnote omitted.)
[16] Properly construed , in the light of the judgment given on the application for
leave to appeal, the effect of Millar J’s order, although it does not say so in expl icit
terms, was to refuse rescission. This is, in fact, what he himself says in paragraph 30
of the judgment referred to in para 12 above. The effect of the refusal was that
Mngqibisa-Thusi J’s order remained extant. Instead of confirming Mngqibisa-Thusi J’s
order, Millar J then reformulated it. He was of the view that it was competent for him
to supplement Mngqibisa-Thusi J’s order by imposing a confidentiality regime which
would regulate the manner in which the appellants’ documents, which were in
possession of the Department, were to be disclosed to Umsobomvu. His explanation
for doing so is that, in his view, putting in place a confidentiality regime in the order
was nece ssary in order to address the concerns raised by the appellants which
Mngqibisa-Thusi J’s order had failed to do. In my view this was wrong. He either had
to grant or refuse rescission . If he had granted rescission , the question of a proper
confidentiality regime could have been traversed once the appellants had filed papers
in the disclosure application. If the rescission application had been correctly refused,
Mngqibisa-Thusi J’s order, being an order to compel disclosure, was an interlocutory
order, capable of amendment depending on the exigencies of the situation.
[17] The order of Millar J should be set aside. It was incorrect. He was faced with
the application for rescission under rule 42(1)(a), alternatively under the common law.
All that was required of him was either to grant rescission if a case for It was made out
or dismiss it , if he was not satisfied that t he order had been erroneously sought or
or dismiss it , if he was not satisfied that t he order had been erroneously sought or
erroneously granted. Based on the evidence that was presented to him, which was not
disputed, Millar J should have granted rescission. The appellants had not been joined
as parties to the main application before Mngqibisa -Thusi J . Nor did they receive
notice of the application. Both were entitled to service of the application and to be cited
as parties to the application because they were owners of the material which the
Director-General and/or the Minister were required to disclose . They were therefore
clearly interested parties. This fact was well known to Umsobomvu’s attorneys when
they brought the application to compel.
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[18] In the notice of appeal in terms of s 96 of the MPRDA that preceded the
application to compel, Umsobomvu’s attorneys identified the appellants as affected
parties as contemplated in regulation 74(1)(b) of the MPRDA Regulations and again,
in the correspondence that exchanged between the parties they were identified as
such. Mngqibisa-Thusi J’s order was therefore erroneously sought or granted within
the meaning of rule 42(1)(a).
[19] It was made in the absence of the appellants, who had a direct and substantial
interest in the proceedings by virtue of the fact that they were the owners of the
confidential material that was sought to be disclosed. Since they have a legal interest
in the subject-matter of the main application, they should have been served with the
application to compel.6 The appellants were necessary parties, and they ought to have
been joined. The appellants’ non-joinder rendered the proceedings irregular.
[20] Madlanga J, in Morudi and Others v NC Housing Services and Development
Co Limited and Others ,7 quoted with approval the following dictum by Brand JA in
Judicial Service Commission v Cape Bar Council:8
‘It has by now become settled law that the joinder of a party is only required as a matter of
necessity – as opposed to a matter of convenience – if that party has a direct and substantial
interest which may be affected prejudicially by the judgment of the court in the proceedings
concerned. The mere fact that a party may have an interest in the outcome of the litigation
does not warr ant a non -joinder plea. The right of a party to validly raise the objection that
other parties should have been joined to the proceedings, has thus been held to be a limited
one.’ (References omitted.)
[21] In Amalgamated Engineering Union v Minister of Labour,9 this Court held:
‘Indeed it seems clear to me that the Court has consistently refrained from dealing with issues
in which a third party may have a direct and substantial interest without either having that
in which a third party may have a direct and substantial interest without either having that
party joined in the suit or, if the circumstances of the case admit of such a course, taking other
adequate steps to ensure that its judgment will not prejudicially affect that party’s interests.’
6 De Villiers and Others v GJN Trust and Others [2018] ZASCA 80; 2019 (1) SA 120 (SCA) para 22.
7 Morudi and Others v NC Housing Services and Development Co Limited [2018] ZACC 32; 2019 (2)
BCLR (CC) para 29.
8 Judicial Service Commission v Cape Bar Council [2012] ZASCA 115; 2013 (1) SA 170 para 12.
9 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637(A) at 659.
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[22] It follows therefore that when Mngqibisa-Thusi J granted the order in the
absence of the appellants , she committed a procedural irregularity . She could not
validly grant an order in the main application without the appellants having been joined.
Therefore, Millar J was in error to have, in effect, refused the application for rescission
of the order of Mngqibisa-Thusi J.
[23] The next question is whether the matter should be remitted to the high court for
the consideration of the rescission application. Having regard to the fact that the entire
record is before this Court, and that the matter was fully argued before us , it would
serve no useful purpose other than to delay the finalisation of these proceedings to
uphold the appeal and remit the matter back to the high court for it to consider the
rescission application. In these circumstances, it would be in the interest of justice to
uphold the appeal , set as ide the order of Millar J, rescind the order granted by
Mngqibisa-Thusi J and grant Transasia 444 leave to oppose the disclosure application.
[24] Transasia Minerals’ position is different to that of Transasia 444. It was not a
party to the rescission application that was brought by Transasia 444 . It only joined
the dispute at the stage of the application for leave to appeal when it sought to be
joined in the application for leave to appeal and the rescission application, alternatively
to intervene in the application for leave to appeal and/or in the rescission application.
Transasia Minerals supported the rescission application. Millar J granted it leave to
intervene as an applicant in the application for leave to appeal but he dismissed
Transasia 444’s application for leave to appeal. This meant that although Transasia
Minerals was granted leave to intervene in the application for leave to appea l, it was
not afforded an opportunity to prosecute the appeal since the application for leave to
not afforded an opportunity to prosecute the appeal since the application for leave to
appeal was refused. Transasia Minerals is not entitled to a rescission remedy because
it was not a party to the rescission application. It will, however, enjoy the benefit of the
rescission granted by reason of the success of Transasia 444’s appeal. And in
consequence, Transasia Minerals is granted leave to oppose the disclosure
application.
The order
[25] In relation to Transasia 444 (Pty) Ltd’s appeal under case number 702/2023:
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1 The appeal succeeds.
2 The order issued by Millar J on 29 August 2022 is set aside and substituted
with the following:
‘(a) The application for rescission succeeds.
(b) The default order granted by Mngqibisa-Thusi J, on 8 July 2022, under
case number 10531/2022, is hereby set aside.
(c) The application for the joinder of the applicant as the fourth respondent in
the disclosure application under case number 10531/2022 is granted.
(d) The applicant is granted leave to oppose the disclosure application and to
file its answering affidavit within (15) fifteen) days from the date of this order.
(e) The fourth responde nt in the rescission application (Umsobomvu Coal
(Pty) Ltd) is ordered to pay the applicant’s costs.’
3 The fourth respondent is ordered to pay the appellant’s costs of appeal
including the costs of the application for leave to appeal both in the high court
and in this Court.
In relation to Transasia Minerals (SA) (Pty) Ltd’s appeal under case number 707/2023,
the following order is issued:
1 The appeal succeeds.
2 The order issued by Millar J on 29 August 2022 is set aside and substituted
with the following:
‘(a) The applicant is granted leave to intervene as an applicant in the
application for leave to appeal.
(b) The applicant is granted leave to oppose the disclosure application and to
file its answering affidavit within 15 (fifteen) days from the date of this order.
(c) The fourth respondent in the rescission application (Umsobomvu Coal (Pty)
Ltd) is ordered to pay the applicant’s costs in the intervention application.’
3 The fourth respondent is ordered to pay the costs of appeal including the costs
of application for leave to appeal both in the high court and in this Court.
16
_________________
D H ZONDI
JUDGE OF APPEAL
17
Heads of argument prepared by:
Case number: 702/2023
For the appellant: B C Stoop SC
Instructed by: Hammond-Smith Attorneys, Pretoria
Matsepes Inc, Bloemfontein
Case number: 707/2023
For the appellant: T N Ngcukaitobi SC
Instructed by: R Baloyi Inc, Johannesburg
Matsepes Inc, Bloemfontein.