IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No.: 5614/2020
In the matter between:
XIAMEN FUXIA IMPORT AND EXPORT CO. LTD First Applicant
SU JIANFENG Second Applicant
and
MILLION RISE TRADING (PTY) LTD First Respondent
SIZISA UKHANYO TRADING 830 CC Second Respondent
SU, JIANQIANG Third Respondent
COMPANIES AND INTELLECTUAL Fourth Respondent
PROPERTY COMMISSION
REGISTRAR OF DEEDS, KIMBERLEY Fifth Respondent
MINISTER OF MINERAL RESOURCES AND ENERGY Sixth Respondent
THE SHERIFF OF THE HIGH COURT , CAPE TOWN Seventh Respondent
JUDGMENT DELIVERED ELECTRONICALLY ON 07 FEBRUARY 2025
MANGCU -LOCKWOOD, J
A. INTRODUCTION
[1] The applicants seek an order declaring the third respondent in contempt of
three court orders , and his incarceration for a period of 90 days, or such other period
as may be appropriate . At the time the proceedings were lau nched, they also sought
other ancillary relief which is no longer necessary, due to developments since the
launching of the proceedings.
[2] Although the proceedings were launched on an urgent basis on 8 December
2023, the parties agreed to a court order pos tponing the matter to 18 March 2024 ,
including a timetable for the exchange of pleadings which included delivery of the
answering affidavit by 9 February 2024. The third respondent ’s answering affidavit
was only delivered on 5 March 2024, and he has broug ht an application for
condonation of its late filing , whic h, although it is opposed in the papers, was no
longer opposed at the hearing. The explanation for delay leaves much to be desired,
especially in the context of contempt proceedings. However, the on e-month period of
delay was minimal, and it has not been shown to have result ed in any prejudice to the
applicants who were afforded opportunity to deliver a replying affidavit. I am of the
view that it is in the interests of justice to consider the third respondent’s version in the
adjudication of the matter. The matter was eventually argued before me on 31
October 2024.
B. THE FACTS
[3] The second applicant and third respondent are brothers and businessmen who
originate from the People’s Republic of China (China). The second applicant is a
director of the first applicant, a company registered in China whose business is
mining , manufacturi ng and exporting of natural stone minerals . He is also a managing
director and chairman of the board of directors of the first respondent (‘Million Rise’),
which is a company in South Africa.
[4] In 2009 the third respondent moved to South Africa and facilita ted a transfer
agreement for the purchase of a members hip interest in the second respondent
(‘Sizisa ’) and a close corporation called Business Zone 1604 CC. The question of
whether the third respondent acted at the behest of the applicants when he bought
the members’ interest is the subject of pending legal proceedings between the
parties . The applicants state that they paid the full price of R8 000 000, 00 for the
purchase. When these proceedings were launched on 8 December 2023, the third
respondent held 70% members’ interest in Sizisa and had exclusive control over its
affairs, while 30% was held by Sizisa’s black empowerment partner, Ms Mymona Van
Wyk.
[5] On 27 March 201 2, Million Rise was registered, while Business Zone ceased
trading. The shareholding of Million Rise is in dispute and is also the subject of the
pending legal proceedings. The sole director and controlling mind of Million Rise was
the third respondent , whil st he also continued in his role as the sole controlling mind
over Sizisa . It is common cause that the applicants have no insight into the financial
affairs of Sizisa and Million Rise. In 2014 Million Rise obtained a mining permit.
[6] On 1 October 2016 Sizi sa, represented by the third respondent, purchased the
Upper and Lower Zwart Modder Farms (collectively referred to as the ‘Zwart Modder
Farm’ or ‘the farm’ ) for R10 520 640.80, where it had previously been conducting
mining operations in terms of a lease agreement. The ownership of the farm is also
the subject of the pending litigation between the parties.
[7] The second applicant ha s repeatedly demanded transfer of the 70% members’
interest in Sizisa to it, while the third respondent has steadfastly refused to oblige. As
a result, a litany of ligation has ensued over the years . On 12 November 2019 the
second applicant sought and obtained an interdict restraining the third respondent
from transferring the 70% membership in Sizisa, which was made final on 4 Feb ruary
2020 . He also obtained an arbitration award granting transfer of the membership
interest to him . The third respondent challenged the arbitration award in review
proceedings launched in China, which were subsequently dismissed. Still, the third
respondent refused to transfer the 70% membership interest.
[8] On 30 April 2020 the applicants launched urgent proceedings seeking a variety
of relief, includ ing an ord er making the arbitration award an order of court. In terms of
an order of court dated 21 November 2022 by Maher AJ, the arbitration award was
made an order of court whilst the remainder of the relief sought was referred to trial.
The third respondent subs equently brought applications for leave to appeal in the
Supreme Court of Appeal (SCA) and the Constitutional Court, both of which were
refused on 26 June 2023 and on 6 October 2023 , respectively .
[9] When the third respondent continued his refusal to transf er the 70% members’
interest following the Constitutional Court’s order, the applicants launched these
proceedings on 8 December 2023 . But unbeknown to the applicants , Sizisa had
ceased trading in August 2023, when, according to the third respondent, its m ining
permit and prospecting right lapsed , and it thereafter ceased operatin g in October
2023 . It was thereafter, on 21 February 2024 and after the launching of these
proceedings, that the third respondent handed over the membership interest in Sizisa
by p roviding the second applicant with a signed CK2 form and other documents
necessary to transfer 70% of the members’ interest in Sizisa to him.
[10] Another significant set of events concerns a company known as Golden Tropic
Mining P ty (Ltd) (Golden Tropic) which applied for a mining right and associated
environmental authorization and waste management licen ce in about June 2021 ,
proposing to mine granite on a portion of Zwart Modder Farm. The sole director of
Golden Tropic was Ms Van Wyk, and the address indicated in the mining right
application is the residential address of the third respondent. It is common cause that
Golden Tropic is currently conducting mining operations on the Zwart Modder Farm.
C. THE COURT ORDERS
[11] The first of the court or ders that are the subject of the se contempt proceedings
is dated 26 May 2020 , and its relevant terms were the following:
“2. [Million Rise, Sizisa and third respondent] a re interdicted and restrained
from shipping, disposing of, selling, transferring, d issipating, distributing
or disseminating, or in any way relinquishing possession and control to
any third party of any mining products (whether on route or otherwise)
excavated or derived from Million Rise or Sizisa’s mining operations;
3. [Million Rise, Sizisa and third respondent] are interdicted and restrained
from moving, disposing of, selling, transferring, dissipating, distributing
or disseminating or in any way relinquishing possession and control to
any third party of any of Million Rise or Sizisa ’s other assets (including
any mining equipment);
4. [Third respondent] is interdicted and restrained from applying for or
attempting to procure, or causing any third party from applying for or
attempting to procure a prospecting right, mining right or mining permit
from the sixth respondent in terms of the Mineral and Petroleum
Resources Development Act 28 of 2002 (“The MPRDA”) in relation to
any minerals in any of the properties whereupon Million Rise and
Sizisa’s mining operations are situated .
5. The third respondent is interdicted and restrained from selling,
transferring, alienating, disposing of, mortgaging or in any way
encumbering the property known as …the [Zwart Modder Mountain
farm]…
6. The fifth respondent is ordered to register a caveat over the property in
accordance with paragraph 5 above .
7. The third responden t is interdicted and restrained from taking transfer of
any other property in respect of which the first or second respondent has
been issued a reconnaissance, prospecting, mining right or permit in
terms of the M RPDA.”
[12] The above orders were to operate a s an interim order pending the outcome of
part B of the main application . The order also direct ed Million Rise and the third
respondent to disclose accounting information which had been previously demanded
by the applicants.
[13] The next relevant order, dated 8 July 2020, was granted p ursuant to an
application brought by Million Rise, Sizisa and the third respondent, and its relevant
terms were as follows :
“1. Pending the determination of Part B of the main application, Million
Rise, Sizisa and [the third respondent] will not ship, dispose of, sell,
distribute or relinquish possession of any mining products from Million
Rise and Sizisa’s mining operations, other than in the usual course of
the business of Million Rise and Sizisa;
2. Pending the determination of Part B of the main application, Million
Rise, Sizisa and [the third respondent] will not move, dispose of, sell,
transfer or in any way relinquish possession and control to any third
party, of any of Million Rise and or Sizisa’s other assets (including any
mining equipment), other than for the purposes of:
2.1. maintenance or repair;
2.2. employing for service in either of Millio n Rise or Sizisa’s operations;
or
2.3. the day to day requirements, or as may otherwise be necessary to
advance the commercial interests, of Million Rise or Sizisa ’s
businesses .
…
4. Million Rise, Sizisa and the third respondent shall provide to the
applicants:
4.1 details of exports currently at the Cape Town harbour;
4.2 monthly management accounts in respect of Million Rise and
Sizisa ’s businesses ;
4.3 monthly bank statements in the respect of Million Rise and Sizisa;
and
4.4 monthly details of the stock of granite in production in respect of
Million Rise and Sizisa.
5. [Million Rise, Sizisa and the third respondent ] shall provide copies of the
first set of the information listed in paragraphs 4,1, 4.3 and 4.4 (which
information shall be retrosp ective from 5 June 2020) above by 17 July
2020, and in respect of paragraph 4.2 by 14 August 2020 and thereafter on
the 10th of every succeeding month pending the determination of Part B of
the main proceedings, written agreement between them or variation of this
order.
6. Million Rise, Sizisa and the third respondent undert ake that, pending the
determination of Part B of the main proceedings :
6.1 Million Rise and Sizisa w ill incur expenditure only in the ordinary
course of business, which shall be reflected in the monthly
management accounts referred to in paragraph 4.2 (it being
recorded that such expenditure includes meeting Million Rise and
Sizisa’ commitments to their third -party lenders) ;
6.2 Neither Million Rise nor Sizisa w ill make repayment of capital or
interest in respect of the third respondent ’s loan claims, nor w ill they
declare dividends.
7. The applicants may appoint, at their cost, an independent forensic auditor
agreed to by the parties, or in the absence of agreement by 13 July 2020,
nominated by the chairman of SAIC A on the written request of the
Applicants , for the purposes of verificati on of the veracity of any information
required to be provided by the Respondents to the Applicants in terms of
this order, which auditor may take such steps or employ such means as
may be reasonably necessary, for the purposes of such verification .
8. The te rms of the order under the above case number dated 26 May 2020:
8.1 in paragraphs 1, 4, 5, 6 and 7 remain unchanged;
8.2 in paragraphs 2, 3, 9, 10 and 11 are replaced by this order. ”
[14] On 5 February 2021, the Xiamen Arbitration Commission issued an arbitration
award which included the following relevant terms:
1. It was confirmed that the “ entrusted shareholding relationship ” between the
second applicant and the third respondent regarding the 70% equity in
Sizisa was terminated on 5 December 2019; and
2. The third r espondent was directed to assist and cooperate with the second
applicant, within 10 days from the date of service of the ruling, to register
the change in the 70% equity and Sizisa into the second applicant’s name.
[15] As already indicated, o n 21 November 202 2, Maher AJ granted an order which
made the arbitr ation award granted by the Xiamen Arbitration Commission an order of
court i n terms of subsection 16(3) of the International Arbitration Act 15 of 2017 .
[16] Since the third respondent has complied with the November 2022 order by
effecting transfer of the membership interest in Sizisa, the thrust of the case concerns
non-compliance with the May and July 2020 orders in three main respects:
16.1 In direct breach of p aragraph 4 of the May 2020 order, h e allowed
Golden Tropic to apply for, and obtain, a mining right in respect of the
Zwart Modder Farm.
16.2 In breach of paragraph 1 of the July 2020 order, h e relinquished
possession of the Sizisa’s mining products from its mining operations,
other than in the usual course of Sizisa’s business.
16.3 The third respondent has failed to provide the applicants with
documentation referred to in paragraph 4 of the July 2020 order.
D. THE LAW ON CONTEMPT
[17] It is a crime to unlawfully a nd intentionally disobey a court order.1 The rule of
law and the supremacy of the Constitution – both founding value s of the Constitution
– require that the dignity and authority of the courts, as well as their capacity to carry
out their functions, should always be maintained.2 Similarly, section 165(5) of the
Constitution makes orders of court binding on ‘all persons to whom and organs of
state to which it applies’ .
[18] The Constitutional Court stated as follows in Pheko and Others v Ekurhuleni
Metropolitan Municipality (No 2) 3:
‘Contempt of court is understood as the commission of any act or statement
that displays disrespect for the authority of the court or its officers acting in
an official capacity. This includes acts of contumacy in both senses: wilful
disobedience and resistance to lawful court orders. … Wilful disobedience
of an order made in civil proceedings is both contemptuous and a criminal
offence. The object of contempt proceedings is to impose a penalty that will
vindicate the court’s honour, consequent upon the disregard o f its previous
order, as well as to compel performance in accordance with the previous
order. ’
[19] An applicant who alleges contempt of court must establish that : (a) an order
was granted against the alleged contemnor; (b) the alleged contemnor was served
with the order or had knowledge of it; and (c) the alleged contemnor failed to comply
with the order.
1 See Fakie NO v CCII Systems (Pty) Ltd (653/04) [2006] ZASCA 52; 2006 (4) SA 326 (SCA) (31
March 2006) para 6, quoting S v Beyers 1968 (3) SA 70 (A). See also aMatjhabeng Local Municipality
v Eskom Holdings Limited and Others; Mkhonto and Others v Compensation Solutions (Pty) Limited
(CCT 217/15; CCT 99/16) [2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC) (26
September 2017) para 50.
2 S v Mamabolo 2001 (3) SA 409 (CC) para 14.
3 Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2) (CCT19/11) [2015] ZACC 10; 2015
(5) SA 600 (CC); 2015 (6) BCLR 711 (CC) (7 May 2015) para 28.
[20] Once the applicant has proved the order, service or notice , and non -
compliance, wilfulness and mala fides are presumed, and the respondent bears an
evidentiary burden to establish a reasonable doubt. 4 Should the respondent fail to
discharge this burden, contempt will have been established.5 All the requisites of an
order , its service or notice , non-compliance , and wilfulness and mala fides , must all
be proved beyond reasonable doubt.6
[21] As confirmed in Fakie7, the normal principles applicable to the adjudication of
the motion proceedings find application. Conflicting affidavits are not a suitable means
for determining disputes of fact . However, a respondent may not raise fictitious
disputes of fact to delay the hearing of the matter or to deny the applicant its order.
There must be 'a bona fide dispute of fact on a material matter'. This means that an
uncreditworthy denial, or a palpably implausible version, can be rejected out of hand,
without recourse to oral evidence. In Plascon -Evans Paints Ltd v Van Riebeeck
Paints ( Pty) Ltd8, the court extended the ambit of uncreditworthy denials to
encompass not merely those that fail to raise a real, genuine or bona fide dispute of
fact, but also allegations or denials that are so far -fetched or clearly untenable that the
court is justified in rejecting them merely on the papers .
[22] A declarator and other appropriate remedies remain available to a civil
applicant on proof on a balance of probabilities.
E. GOLDEN TROPIC
[23] The applicants contend that the third respondent is in contempt of the May and
July 2020 orders in that he allowed Golden Tropic to apply for, and obtain , a mining
right in respect of the Zwart Modder Farm , and to conduct mining operations there.
4 Fakie NO v CCII Systems (Pty) Ltd para 42.4.
5 Secretary Judicial Commission of Enquiry into Allegations of State Capture v Zuma and Others 2021
ZACC 18 (2) 2021 (5) SA 327 (CC), para 37 .
6 Fakie NO v CCII Systems (Pty) Ltd (653/04) [2006] ZASCA 52; 2006 (4) SA 326 (SCA) (31 March
2006) at para 42.
7 Paragraph 55.
8 Plascon Evans Paints. Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
They all ege that Ms Van Wyk, the sole director of Golden Tropic is the third
respondent’s girlfriend, and that, in effect the third respondent is the controlling mind
behind Golden Tropic.
[24] In sum, the applicants highlight the following: Golden Tropic applied for a
mining right in respect of a property upon which the Sizisa had, until recently
conducted its mining operations. The third respondent was aware of the November
2022 order which compelled him to transfer 70% of the members’ interest in Sizisa to
the seco nd applicant. Golden Tropic applied for a mining right over Zwart Modder
Farm, a property which is registered in the third respondent’s name and over which
he has control. It is inconceivable that he, as the owner of the property, would be
unaware of a min ing right application made, by Golden Tropic, in respect of this
property and be unaware of mining operations being conducted upon his property.
[25] The third respondent denies that he controls Golden Tropic or that he caused it
to apply for a mining right. H e explains that, although he was previously its sole
director, he resigned from that position in March 2020 and was replaced on 1
September 2020 by Ms Van Wyk, and points to a CIPC report attached to the
applicants’ papers which indicat es that his resignat ion was with effect from that date .
He has also attached to his papers a letter from the current director of Golden Tropic
confirming that there is no affiliation between h im and the company. As a result, he
states that he is unable to produce Golden Tropi c’s share register to demonstrate that
he is not a shareholder in Golden Tropic because its director takes the position that
he is not entitled to request any information or documents relating to the company.
[26] The applicants’ retort is that, whilst the thi rd respondent may have resigned ,
the remaining sole director is the third respondent’s girlfriend , which is disputed by the
third respondent . The y point to the fact that the registered business address of
Golden Tropic indicated in its mining rights applic ation remains the residential
address of the third respondent. The third respondent is unable to explain why the
registered address of Golden Tropic remains his residential address, stating that he
cannot account for the current management’s conduct. The applicants state that,
even if Golden Tropic is not controlled by the third respondent, which they dispute,
then it is in any event a “ third party ” as contemplated by paragraph 4 of the May 2020
order. Therefore, on any construction, the third respond ent is in contempt of
paragraph 4 of the May 2020 order.
[27] In terms of paragraph 4 of the May 2020 order the third respondent was
interdicted and restrained fr om applying for or attempting to procure, or caus ing any
third party to apply for or attempt to procure a prospecting right, mining right or mining
permit fr om the Minister of Mineral Resources and Energy in terms of the Mineral and
Petroleum Resources Development Act 28 of 2002 in relation to any minerals in any
of the properties whereupon Million R ise and Sizisa mining operations are situated.
[28] It is common cause that Golden Tropic is conducting mining operations on the
Zwart Modder F arm, and that the application for that mining right was made in June
2021 whilst Sizisa was operating its mining ope rations there. But, by June 2021 when
the mining application was made, the third respondent had resigned from Golden
Tropic , and the applicants are not in a position to dispute that. T he applicants point
out that the circumstances of the third respondent’s resignation are curious in the fact
that, according to a letter penned by the current director of Golden Tropic , Golden
Tropic’s board of directors considered him incapable of fulfilling his position as a
director and “ revoked” his position as director in August 2020. This means that at the
time of third respondent’s supposed resignation (or revocation, as the case may be)
he was the sole director of Golden Tropic. Therefore, if the current director of Golden
Tropic is to be believed, the third respondent convened a meeting of Golden Tropic’s
board of directors (which consisted of him alone) and “ revoked” himself on the basis
that he considered himself incapable of fulfilling his position as a director. Regardless,
the fact of his resignation is indisputab le and must be decided in his favour in terms of
Plascon Evans .
[29] The same applies in respect of the allegation that Ms Van Wyk is the girlfriend
of the third respondent – an averment which is aimed at bolstering the allegation that
the third respondent continues to wield significant influence and control over Golden
Tropic. That too has not been established by the applicants, beyond the mere say -so
on the affidavit of the second applicant who is resident in China.
[30] As for the fact that the thi rd respondent’s residential address was the
registered address reflected on Golden Tropic’s documents when it sought a mining
right, that may be explained by the fact that he was previously its sole director and
that the address was not changed . Given the fact that he was previously the sole
director, I am not convinced that the only reasonable inference that may be drawn is
that the third respondent remained the controlling mind of Golden Tropic. In any
event , this is an issue that should rightly have been explained by Golden Tropic, and
it does not appear that any explanation was sought from them by the applicants. This
is in contrast to the third respondent who did approach Golden Tropic but received the
seemingly disinterested response already adverted t o earlier. In that context, the third
respondent’s response that he is not able to explain why Golden Tropic failed to
change the address, is not unreasonable .
[31] Stripped of the issues discussed above, w hat is left factually -speaking, is that
the third res pondent was a director of Sizisa which was conducting mining operations
at Zwart Modder Farm as at June 2021 when the mining right application was made
by Golden Tropic. The question is whether this establishe s beyond reasonable doubt
that the third respon dent applied for, or attempted to procure, or caused a third party
to apply for or to attempt to procure a prospecting right, mining right or mining permit.
This is a difficult hurdle for the applicants to mount .
[32] The argument on behalf of the applicants r esolved itself into stating that the
third respondent, as the owner of the farm, was aware of Golden Tropic ’s application
for mining rights, as well as their commenc ement and mining operation on the farm.
Although the argument is based on circumstantial evidence or inferences to be drawn,
its true force lies in the requirements set out by the MPRDA, in terms of which the
application was made. Section 22 of the MPRDA sets out the provisions applicable
when a pplying for a mining right as follows:
‘(1) Any person who wishes to apply to the Minister for a mining right
must simultaneously apply for an environmental authorisation and
must lodge the application -
(a) at the office of the Regional Manager in whose reg ion the land
is situated;
(b) in the prescribed manner; and
(c) together with the prescribed non -refundable application fee.
(2) The Regional Manager must, within 14 days of receipt of the
application, accept an application for a mining right if -
(a) the requirements contemplated in subsection (1) are met;
(b) no other person holds a prospecting right, mining right, mining
permit or retention permit for the same mineral and land ; and
(c) no prior application for a prospecting right, mining right or
mining perm it or retention permit, has been accepted for the
same mineral and land and which remains to be granted or
refused .
(3) If the application does not comply with the requirements of this
section, the Regional Manager must notify the applicant in writing
within 14 days of the receipt of the application .
(4) If the Regional Manager accepts the application, the Regional
Manager must, within 14 days from the date of acceptance, notify
the applicant in writing -
(a) to submit the relevant environmental reports, as r equired in terms
of Chapter 5 of the National Environmental Management Act,
1998, within 180 days from the date of the notice; and
(b) to consult in the prescribed manner with the landowner, lawful
occupier and any interested and affected party and include th e
result of the consultation in the relevant environmental reports.
(5) The Regional Manager must, within 14 days of receipt of the
environmental reports and results of the consultation contemplated
in subsection (4) and section 40, forward the applicati on to the
Minister for consideration.’
[33] Section 22 (2)(b) makes it clear that one of the grounds on which a mining
application may be refused is if an other person holds a prospecting right, mining right,
mining permit or retention permit for the same mineral and land . Further, in terms of
Regulation 3 of the Mineral and Petroleum Resources Development Regulations
published in terms of the MPRDA under GN R527 in GG 26275 of 23 April 2004 (‘the
MPRDA Regulations’) there must be meaningful consultation wi th interested and
affected persons, which includes public notification regarding a mining application and
invitation for written comments from the public. There is no indication of whether the
applicants in this case became timeously aware of any such noti ces, and whether
they submitted any comments in response thereto.
[34] Further, in terms of section 22(4)(b) of the MPRDA , if a mining application is
accepted, the applicant must be directed to ‘ consult in the prescribed manner with the
landowner, lawful occupier and any interested and affected party and include the
result of the consultation in the relevant environmental reports’. The prescribed
manner of that consultation is set out in Regulati on 39(1) of the Environmental
Impact Assessment Regulations (promulgated in 2014, and published under GN
R982 in GG 38282 of 4 December 2014 ), read with Regulation 3A of the MPRDA
Regulations , and provides that ‘if the proponent is not the owner or person in control
of the land on which the activity is to be undertaken, the proponent must, before
applying for an environmental authorisation in respect of such activity, obtain the
written consent of the landowner or person in control of the land to undertake such
activity on that land ’. This requirement is the closest indication that the third
respondent in this case must have been consulted and provided his consent to
Golden Tropic’s application to undertake its mining activities on the farm.
[35] However, despi te the fact that the applicants have attached a portion of Golden
Tropic’s application for a mining right, there are no details in the record regarding the
process in terms of which the mining right was granted to Golden Tropic, and
specifically whether an d how any of the highlighted provisions above were met. But, it
is common cause that Golden Tropic did resume mining operations on the farm ,
although it is not clear when. It is also common cause that the farm remains under the
control and ownership (thoug h disputed) of the third respondent . It must accordingly
be accepted that the third respondent was indeed consulted regarding Golden
Tropic’s mining application , in terms of the provisions highlighted above. The
conclusion that the third respondent must be aware of the circumstances pertaining at
the farm since Golden Tropic resumed operations is supported by his repeated firm
denials of the applicants’ allegations that Golden Tropic is currently using the mining
equipment of Sizisa at the farm. Far from claiming to have no knowledge, his denial in
that regard is firm, which suggests that he is aware of the circumstances.
[36] Still, none of the above conclusions meet the standard set by the clear terms of
paragraph 4 of the May 2020 court orde r. What it interdicted the third respondent from
doing is causing any third party to apply for, or attempt to procure, a mining right or
permit in relation to any minerals on the property. The fact that he may have been
consulted in terms of the provisions highlighted above, and even the fact that he may
have agreed when approached, does not mean that he caused the application . More
is required by way of evidence to reach that conclusion. And I have already rejected
the unsupported averments to the effect t hat the third respondent is the controlling
mind of Golden Tropic. I am accordingly not able to conclude that there has been
non-compliance with the provisions of the May 2020 court order in the circumstances
discussed above.
F. RELINQUISHING POSSESSION OF M INING PRODUCTS
[37] The next argument relates to paragraph 1 of the July 2020 order, in terms of
which the third respondent was ordered not to relinquish possession of any of Sizisa’s
mining products from its mining operations, other than in the usual course of Sizisa’s
busin ess. According to the applicants, t he fact that Golden Tropic is conducting
mining operations upon the farm where Sizisa’s mining operation was situated and
where its mining products were mined, must, by implication, mean that it is also
selling the produc ts mined by it on the farm in breach of paragraphs 3 and 4 of the
May 2020 order. Sizisa would not in the ordinary course of its business relinquish
possession of its mining products and/or its mine. These mining products were
Sizisa’s sole source of inco me. Furthermore, Golden Tropic must also be using
Sizisa’s mining equipment, which was situated at the Zwart Modder Farm whilst
Sizisa was mining there.
[38] The applicants complain that the third respondent is silent regarding the
whereabouts of the equipmen t, despite having being in sole and exclusive, control of
Million Rise and Sizisa. As I have already indicated, the third respondent denies that
Golden Tropic is using Sizisa’s (or Million Rise’s ) mining equipment, stating as
follows: ‘…neither Sizisa nor [Million Rise] have provided mining equipment to Golden
Tropic for use on the farms. I do not know what equipment Golden Tropic is using to
mine, but it is not Sizisa’s or Million Rise’s equipment’ .
[39] Although the applicants are skeptical of this response, they are not in a
position to dispute it, especially given that it is common cause that the third
respondent is in control of the property, and they are not. Furthermore, the conclusion
that Golden Tropic must be using Sizisa’s equipment is not the only i nference that
may be drawn from the agreed facts. It is also possible that the equipment is
elsewhere, or that some other corporate body is using it, which may also constitute
transgression of the court order, although not on the case made out by the appli cants.
[40] In any event , the applicants’ allegation s in this regard are speculative and are
set out as follows : ‘The fact that Golden Tropic is conducting mining operations upon
the farms must, by implication, mean that it is also selling the products mined by it
upon the farm… Moreover, it is probable that Golden Tropic is using Sizisa and/or
Million Rise’s equipment to conduct mining operations upon the farms… As far as I
know, Sizisa is mining, and related equipment was being used to conduct mining
operations at the farm at the time of granting of the May 2020 order ’. Even after the
applicants conducted investigations into Sizisa’s trading activities in preparation for
this applicatio n via a Mr Yongjian Yu, these averments remained speculative and
were put no higher that the assumptions set out in the above -quoted portion . The
averments are speculative and are denied by the third respondent.
[41] The applicants complain that the third resp ondent is silent about the
whereabout s of the equipment , which is the subject of the anti -dissipation paragraphs
of the July 2020 order . But the third respondent was not required to state the
whereabouts of the equipment in these proceedings. It is rather the applicants wh o
bear the onus to establish the non -compliance, and to do so beyond reasonable
doubt . I am not satisfied that the applicants have discharged that evidential burden.
[42] For all these reasons, it has not been established beyond reasonable doubt
that the third respondent caus ed Golden Tropic to apply for the mining right over the
Zwart Modder Far ms, or that he relinquished possession of Sizisa or Million Rise by
permitting Golden Tropic to use the mining equipment of Sizisa or of Million Rise . I
am therefore unable to conclude that the facts surrounding Golden Tropic discussed
in this judgment co nstitute non-compliance with the May 2020 and July 2020 court
order s.
G. DELIVERY OF DOCUMENTS
[43] In terms of paragraph 4.1 of the July 2020 order, the third respondent was
ordered to provide details of exports currently at the Cape Town harbour in respect of
both Million Rise and Sizisa. According to a letter from the third respondent’s legal
represen tatives dated 18 May 2021, those documents were provided soon after the
taking of the July 2020 order.
[44] As for the documents that the third respondent was ordered to provide in
terms of paragraph 4.2 of the July 2020 order, namely the monthly management
accounts in respect of Million Rise and Sizisa’s businesses , he failed to provide all of
the monthly management accounts in respect of Million Rise, specifically for the
months of July 2022 to February 2024 , but did so after receipt of the replying affidav it
in these proceedings .
[45] Similarly, although the third respondent was ordered to provide monthly details
of the stock of granite in production in respect of Million Rise and Sizisa i n terms of
paragraph 4.4 of the July 2020 order , he only provided them after receipt of the
replying affidavit in these proceedings, together with an explanation t hat there were
no mining operations conducted by Million Rise over the period July 2022 to February
2024.
[46] In answer to the charge of breach of the court orders until the institution of
these proceedings , the third respondent states that he complied with t hese orders to
the best of his ability by providing the documents required from time to time. To the
extent that he did not provide documents, he states that this was not deliberate or
intentional, but was ‘often the result of not yet having finalised vers ions of the
documents, or thinking that [he] had already provided the documents’ . Moreover, he
points to the fact that the second applicant did not ‘chase him' for production of the
outstanding documents.
[47] Furthermore, he states that prayer 5 of the July 2020 order is somewhat
ambiguous in that it seems to provide that it is only item 4.2 (monthly management
accounts) that should have been provided on a monthly basis. If so, he states that
he is not in breach of the order as he has provided the documents.
[48] He states that since the institution of these proceedings, he has done the
following: (a) he has tendered itemised documents listed in two Rule 34 tenders (with
the second tender including a tender to provide documents required in terms of the
July 2020 order that the applicants identify as not having yet been provided); (b) he
has delivered copies of the documents listed in paragraphs 1.1 to 1.5 of the second
tender.
[49] It is common cause that not all the documents in question were provided
within the tim eframes provided in the July 2020 court order. In terms thereof, the
information listed in paragraphs 4,1, 4.3 and 4.4 of that order was to be provided by
17 July 2020, and in respect of paragraph 4.2 by 14 August 2020 and thereafter on
the 10th of every s ucceeding month. The first to third respondents failed to comply
with th ose timeframes in respect of the items in paragraphs 4.2 and 4.4 . There is no
evidence that the third respondent ever indicated any confusion or lack of clarity
regarding what he was s upposed to provide. Besides, the July 2020 order was taken
by agreement between the parties, after the third respondent launched those
proceedings. T he third respondent has throughout been legally represented , and
would have received guidance if there was any lack of clarity or supposed ambiguity.
[50] The same goes for his explanation that he often thought that he had already
provided the documents . He was legally represented, and one assumes that th at
assistance would have included ensuring that he complied where he had fallen short.
If he had problems in finalizing the documents, whatever this means, one would have
expected him and his legal representatives to act with the requisite haste an d
diligenc e required of an individual who ha d deadlines set in terms of a court order. It
is clear from his explanations discussed earlier that, unless these proceedings were
instituted, the third respondent would have continued to disregard the court orders, of
which he has throughout been aware.
[51] However, what cannot be ignored is a letter dated 18 May 2021, which
emanated from the third respondents ’ attorneys. According to the evidence , this is
the last correspondence between the parties regard ing non-compliance with the
requirements to provide the documents mentioned in the July 2020 order, before the
launch of these proceedings . That letter indicates that , soon after the July 2020 was
taken, there was a considerable amount of engagement between the parties and a
certain auditor regarding the documents to be provided, and that most of the
documents had been provided to the applicant s by that date . In the letter, the third
respondents ’ attorneys also undertook to deliver further itemised documents , and to
liaise wi th the auditor regarding the exchange of further information and documents.
[52] Apart from this correspondence , there is no other evidence of the applicants
demanding the documents before the launching of these proceedings. As a result,
although the third re spondent failed to comply with the court order by providing all the
documents timeously, it has not been established that the non -compliance was wilful
or mala fide . The letter indicates the opposite. It must be remembered that, in order
to establish conte mpt, it is not enough to show that the contemnor merely
disregarded a court order. It must be shown to have been wilful and/or mala fide .
[53] Furthermore, as the third respondent states, the non-compliance is no longer
continuing because , by the time matter was heard he had complied with all the
requirements to provide documents in terms of the court orders. He also points to the
fact that the transfer of the members’ interest to the second applicant has now taken
place or is imminent, sta ting that the applicants will have access to all the documents
concerning Sizisa, including historical information and business records.
[54] The result is that the third respondent has discharged the imputation of
wilfulness and mala fides . Contempt of the July 2020 court order has accordingly not
been established.
H. COSTS
[55] Although the applicants have failed to establish contempt, it is commo n cause
that much of the compliance that was sought occurred once these proceedings were
launched. That includes the transfer of the 70% membership interest in Sizisa, which
was the subject of the November 2022 court order. And as I have already indicated ,
the grounds for non -compliance with , firstly, the requirement to deliver documents in
terms of the July 2020 order, and secondly, the delivery of the answering affidavit in
these proceedings , leave much to be desired.
[56] There is also to consider the thir d respondent’s disclosure of the Rule 34
tenders , contrary to the express provisions of the Uniform Rules which provide as
follows:
‘No offer or tender made without prejudice shall be disclosed to the
court at any time before judgment has been given. No reference to
such offer or tender shall appear on any file in the office of the
registrar containing the papers in the said case. ’9
“Any party who, contrary to this rule, personally or through any
person representing him, discloses such an offer or tender to the
9 Uniform Rule 34(10).
judge or the court shall be liable to have costs given against him
even if he is successful in the action.10’
[57] It was conceded by the third respondent’s counsel that Rule 34 tenders are
inappropriate in the context of contempt applications w hich concern compliance with
court orders, and that the third respondent’s tenders should probably not have been
disclosed to the Court. However, it was argued that their disclosure was aimed at
showing that there has been some compliance with the court o rders and to refute
any conclusions of wilfulness or mala fide motive on his part. There is no such
exception provided by the Rules, and I was not referred to any case law for such a
deviation. If such an approach were followed, every litigant would follow similar
conduct on the basis of some or other justification.
[58] It is also not disputed that it is the conduct of the third respondent, not also of
Sizisa and Million Rise, that is the cause of this application. I am therefore of the view
that the third res pondent should bear the costs of these proceedings on an attorney
and client scale.
I. ORDER
[59] In the circumstances , the following order is granted:
1. The applicants’ application is dismissed.
2. The third respondent is to pay the costs of this application, on an attorney
and client scale.
___________________________
N. MANGCU -LOCKWOOD
10 Uniform Rule 34(13).
Judge of the High Court
APPEARANCES
For the applicants : Adv D van Niekerk
Instructed by : Burrows Attorneys, Sandton
R Lane
England Slabbert Attorneys, Cape Town
N Slabbert
For the respondents : Adv S Rosenberg SC
Adv K Reynolds
Instructed by : Werksmans Attorneys, Cape Town
R Gootkin