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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRE.TORIA
CASE NO: 035371/2022
( l) REPORT AB LE: NO
(2) O F INT ERE ST TO O THER JUD GES : N O
(3) REV ISED.
DATE 29 /07 /202S r
In the interlocutory application between:
KURT ROBERT KNOOP
JOHAN LOUIS KLOPPER
JUANITO MARTIN DAMONS
KGASHANE CHRISTOPHER MONYELA
TEGETA EXPLORATION AND RESOURCES (PTY) LTD
OPTIMUM COAL MINE (PTY) LTD
OPTIMUM COAL TERMINAL (PTY) LTD
A nd
RONICA RAGAVAN
DHANASEGARAN ARCHERY
KOORNFONTEIN MINES (PTY) LTD
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
Fifth Applicant
Sixth Applicant
Seventh Applicant
First Respondent
Second Respondent
Third Respondent
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In Re:
In the matter between:
TEGETA EXPLORATION AND RESOURCES (PTY) LTD
KOORNFONTEIN MINES (PTY) LTD
OPTIMUM COAL MINES (PTY) LTD
OPTIMAL COAL TERMINAL (PTY) LTD
RONICA RAGAVAN
DHANASEGARANARCHERY
RAYMOND PETER VAN ROOYEN
And
KURT ROBERT KNOOP
JOHAN LOUIS KLOPPER
JUANITO MARTIN DAMONS
KGASHANE CHRISTOPHER MONYELA
PETRUS FRANCOIS VAN DEN STEEN N .O
ALL AFFECTED PARTIES OF TEGETA EXPLORATION
AND RESOURCES (PTY) LTD AS REFLECTED IN "A"
ALL AFFECTED PARTIES OF KOORNFONTEIN MINE
(PTY) LTD AS REFLECTED IN "B"
ALL AFFECTED PARTIES OF OPTIMUM COAL
MINE (PTY) LTD AS REFLECTED IN "C"
ALL AFFECTED PARTIES OF OPT IMUM COAL
TERMINAL (PTY) LTD AS REFLECTED IN "D"
THE COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
Fifth Applicant
Sixth Applicant
Seventh Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent
Nineth Respondent
Tenth Respondent
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Delivered: This judgment is handed down electronically by circulation to the Par
ties/their legal representatives by email and by uploading to Caselines. The date and
time of hand-down is deemed to be 14:00 on 29 July 2025.
JUDGMENT
LENYAI J
[1] Initially this matter was an opposed interlocutory application for a stay of the
main application enrolled for hearing on the 22nd July 2025, pending the final
adjudication and determination of an appeal under case number 312/2024 be
fore the Supreme Court of Appeal (SCA).
[2] It is common cause that the appeal was argued in the SCA on the 19th May
2025 and judgement was handed down on the 30th June 2025 in favour of the
applicants.
[3] The applicants aver that the appeal has been determined, and the relief sought
by them in the stay application is now moot and ineffective.
[4] The applicants submit that the first and second respondents (respondents) de-
livered an application for leave to appeal against the SCA's order to the Con
stitutional Court on the 15th July 2025. They have until the 29th July 2025 to
deliver their answering affidavit in opposition to the application for leave to ap
peal, which they intend to do.
[5] The applicants further submit that the respondents refused to consent to the
withdrawal of the stay application and also continue to refuse to stay the main
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application pending the outcome of their application to the SCA and eventually
the Constitutional Court.
[6] The applicants aver that they must now seek a stay of the main application
pending the outcome of the application for leave to appeal in the SCA. They
contend that the current stay application is moot and cannot serve that purpose
as it does not address the SCA's judgment nor the impending Constitutional
Court proceedings.
[7] The applicants aver that the current stay application is procedurally and sub
stantially outdated. They engaged the respondents and proposed that the stay
application be postponed so that the relief sought therein could be amended to
deal with the SCA's judgment and the application to the Constitutional Court.
The respondents rejected their proposal and insisted that the stay application
should proceed. The respondents are of the opinion that the current application
includes the SCA judgment and the Constitutional Court proceedings, even
though those events are not addressed in the current papers.
[8] The applicants submit that they are now before court to seek the leave of the
court to withdraw the stay application in terms of Rule 41. They further contend
that it is not the function of a Court to compel a party to persist with proceedings
against their will, nor to inquire into the reasons for a bona fide withdrawal. The
applicants rely on the matter of Levy v Levy 1991 3 SA 614 (A) at 6208.
[9] The applicants aver that the fundamental question is whether the respondents
will suffer any injustice as a result of the withdrawal of the interlocutory applica
tion. They submit that no such injustice arises as the respondents will be free
to pursue the main application should they elect to do so.
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[1 OJ As to costs, the applicants submit that the costs should be reserved for later
determination, either in the main application or in any subsequent stay applica
tion. That court will be better placed to assess the full factual context, including
the present developments and the reasons for the withdrawal. They further sub
mit that it would be artificial and premature for this court to traverse the entire
record, which has been overtaken by ever:its, solely to determine costs.
[11] The respondents on the other hand contend that the current stay application
should proceed as it includes the subsequent appeal to the Constitutional
Court. They seek a dismissal of the stay application of the main application,
together with costs.
[12] The respondents further contend that the withdrawal of the stay application will
cause further unreasonable delay as this would result in a fresh stay applica
tion by the applicants. They will suffer prejudice and injustice in that the appli
cants will rake in fees of R 2 million per month.
[13) The respondents submit that the stay application is an abuse of process
launched solely to delay the hearing of the main application launched during
October 2022, which is an application for the removal of the business rescue
practitioners and the granting of some declaratory orders.
[14) The respondents further argue that the applicants purported to withdraw the
stay application on the 18th July 2025 without the leave of the Court or their
consent which is contrary to Rule 41 (1 )(a). The respondents rely on the matter
of Levy matter referred to above wherein the Court dealt with the circumstances
wherein the Court can give consent to withdraw a matter.
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[15] The respondents further rely on the matter of APA AFRICA (PTY) LTD v MEL
ROSE ARCH INVESTMENTS HOLDINGS (PTY) LTD and 3 Others
(032219/2023) [2023] ZAGPJHC 510 (18 May 2023)@ paragraph 20, where
the court held that:
"It is trite that in terms of Rule 41(1)(a) a withdrawal of proceedings cannot
occur unilaterally once a matter has been set down (See: Border v Madzie
2017 (4) SA 166 at page 170 paragraph 8). In the absence of consent or leave
a purported notice of withdrawal will be invalid."
[16] At the heart of this withdrawal application is Rule 41 of the Rule of Court which
provides for withdrawal, settlement, discontinuance, postponements as well as
abandonment of proceedings. Specifically, Rule41 (1 )(a) provides as follows:
15.1 "A person instituting any proceedings may at any time before the matter
has been set down and thereafter by consent of the parties or leave of
the Court, withdraw such proceedings, in any of which events he shall
deliver a notice of withdrawal and may embody in such notice a consent
to pay costs, and the taxing master shall tax such costs on the require
ment of the other party."
[17] It is trite that Courts when making decisions are obliged to carefully consider
the specific facts of each case. I am of the view that the outcome of a matter
before a Court is not only determined by legal principles but also by the unique
circumstances of each matter and the evidence presented before court.
[18] Turning to the matter before me, it is common cause that the SCA had delivered
its judgment before the stay application could be heard. In my view the appli
cants are correct to submit that they cannot proceed with the application as it
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has now become moot and it would serve no purpose as the SCA has already
granted its judgment.
[19] The argument by the respondents that the application is broad enough to incor
porate the application for leave to appeal the SCA order and the impending
Constitutional Court proceedings does not find favour with the Court. The No
tice of motion for the stay application is crystal clear in that it states as follows:
"1. That the main application (under the above case number), dated
20 October 2022, be and is hereby stayed, alternatively, inter
dicted form being heard and/or adjudicated by the Honourable
Court, pending the final adjudication and determination of the ap
peal currently pending before the Supreme Court of Appeal (un
der case number 312/2024)."
[20] The stay application has been overtaken by events and despite engaging the
respondents to either postpone the stay application in order to amend the cur
rent notice of motion, to incorporate the application for leave to appeal the SCA
order and the impending Constitutional Court proceedings or to obtain consent
from the respondents, the applicants endeavours were rejected by the respond
ents.
[21] The APA matter does not assist the respondents as in that matter the issue
was still live and ongoing and shortly before the hearing the applicant sought to
withdraw the matter without tendering the costs. The matter before me is dis
tinguishable from the APA matter as the issue before the SCA has already
been decided and there is no live issue that is still to be decided by the SCA as
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contemplated by the stay application. The matter is now moot and there is no
reason for the stay application to proceed.
[22} I am of the view that the delay that the respondents are complaining about can
not be placed at the feet of the applicants as the respondents are free to pursue
the main application should they elect to do so.
[23) The applicants had no option but to bring the application to seek the leave of
the court to withdraw the stay application, as the withdrawal was occasioned
by the fact that the SCA has now delivered a judgment which vindicated them
and the relief sought has now become unnecessary as well as the fact that the
respondents have refused to consent to a withdrawal. Furthermore, it is imper
m issible for.the applicants to request an order for what they have not asked for
in the notice of motion.
[25] The applicants have requested that the issue of costs be postponed for deter
mination at a later, either in the main application or in any subsequent stay
application.
[26] Under the circumstances the following order is made:
1. The application to withdraw the stay application is granted with costs
reserved.
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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Appearances
Counsel for Appellants
Instructed by
Counsel for Respondent.
Instructed by
Date of hearing
Date of Judgement
Adv L van Tonder
SmitSew Attorneys
Adv L van Gass
VDM Attorneys
22 July 2025
29 July 2025
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