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DJ Smit, AJ
Introduction
[1] This is an application for leave to appeal against a judgment and order
(“decision”) given on 30 June 2025 . In this judgment, all terms used are as
defined in the decision.
[2] The applicants for leave to appeal (third and fifth respondents in the main
application) are Rappa Holdings and Three Palms. Northbound, the applicant in
the main application, opposed the grant of leave to appeal.
[3] Rappa Holdings and Three Palms launched the application for leave to appeal
on an urgent basis on 3 July 2025, three court days after judgment was given.
By that time, the Regulator had released the refining licence in issue to
Northbound as ordered in paragraph 2 of the decision.
[4] When Rappa Holdings and Three Palms applied for leave to appeal, they
foreshadowed that they would imminently bring an urgent application in terms of
section 18 of the Superior Courts Act, 10 of 2013. They sought a set-down of the
application for leave, together with the section 18 application, in the week of 21
July 2025. By agreement, the matter was set down for 24 July 2025.
[5] Rappa Holdings and Three Palms brought the section 18 application on 21 July
2025, three court days before the matter would be heard. The relief sought in the
section 18 application was to: (a) declare that the decision had the effect of a
final order and was thus suspended by the application for leave to appeal; (b) if
the decision does not have the effect of a final order, nevertheless suspending
its effect pending the application for leave to appeal and any appeal; and (c)
ordering Northbound to return its newly-released refinery licence to the Regulator
and ordering the Regulator to return the refinery licence previously issued to
Rappa Resources to Rappa Resources.
[6] Northbound objected against the late filing of the section 18 application and, by
agreement, the hearing of the application for leave to appeal did not proceed on
agreement, the hearing of the application for leave to appeal did not proceed on
24 July 2025 . Northbound filed its notice of intention to oppose the section 18
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application on 4 August 2025 and its answering affidavit – together with a
conditional counterapplication – on 22 August 2025. The conditional
counterapplication sought an order that , if the decision was final in effect, its
operation would not be suspended pending the outcome of the envisaged
appeal.
[7] Rappa Holdings and Three Palms did not file a replying affidavit, but indicated
on 25 September 2025 that they would no longer seek the relief envisaged in the
section 18 application, except for a declarator that the decision is final in effect.
They also indicated that if that declarator is granted, they would concede the
relief sought by Northbound in its conditional counterapplication
The grounds for leave to appeal
[8] Before I set out the grounds on which Rappa Holdings and Three Palms seek
leave to appeal, it is convenient to revisit the essence of the decision. The
decision (insofar as relevant to the grounds on which an appeal is sought) was
to issue an interim interdict compelling the Regulator to release a refinery licence
to Northbound pending an action to be instituted by Northbound declaring that
the sale of the refinery business to Northbound was valid. I was informed from
the bar that the action was instituted within the time frames set out in the decision.
[9] The essential grounds for the decision were as follows:
a. The Regulator indicated to Northbound in correspondence dated 13
February 2025 that it “is satisfied that Northbound complies in all respects
with the requirements for the issuance of a Refining Licence, which licence
has been issued on 10 January 2025”. (My emphasis.)
b. The Regulator set two preconditions for the release of the refinery licence
to Northbound which, it was common cause, were either satisfied or within
Northbound’s powers to satisfy.
c. Thus, Northbound had a prima facie right to the release of the refinery
licence based upon the fact that the Regulator had decided that Northbound
licence based upon the fact that the Regulator had decided that Northbound
had met all the statutory requirements for issuance of the licence, had
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decided to issue it and Northbound had satisfied or could satisfy the
additional requirements imposed for such release. In this regard, I found
that the so -called Oudekraal principle precluded the Regulator from
revisiting its decision to issue the licence and to release it upon satisfaction
of its preconditions, despite the dispute that had arisen after these decisions
had been taken about the validity of the sale of business.
[10] Rappa Holdings and Three Palms contend that I erred in several respects, which
I summarise below:
a. First, by finding Northbound was entitled to the release of the refinery
licence in circumstances where – on a proper interpretation of the Precious
Metals Act – the issuance of the refinery licence would only take place upon
the physical release of the licence to Northbound.
b. Second, by finding that Northbound was entitled to the release of the
refinery licence despite contentions that Northbound did not meet the
statutory requirements for the issuance of the licence.
c. Third, by finding that Northbound was entitled to the release of the refinery
licence despite what Rappa Holdings and Three Palms contend to be the
invalidity of the sale of business to Northbound (which the supports the
allegations that Northbound did not meet the statutory requirements for
issuance of the licence).
d. Fourth, by not attaching adequate weight to the harm that Rappa Holdings
and Three Palms would suffer if the sale of business agreement is, in effect,
upheld (at least until the action has unfolded).
[11] Rappa Holdings and Three Palms contended that the decision was appealable
based upon it having the effect of a final order, alternatively (if it is an interim
order) on the basis that the interests of justice favour its appealability.
[12] While Rappa Holdings and Three Palms state that their application for leave to
appeal is directed against the whole of the order of 30 June 2025, none of the
appeal is directed against the whole of the order of 30 June 2025, none of the
grounds of appeal were directed at paragraphs 1, 4, 5 and 6 of the order. Most
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importantly, Rappa Holdings and Three Palms do not contend that I should not
have struck their counterapplication from the roll for lack of urgency.
Discussion
[13] The parties addressed comprehensive and helpful submissions regarding the
nature of the order (whether final or interim), the interests -of-justice test in
respect of the appealability of interim orders and the test for the grant of leave to
appeal under section 17(1)(a) of the Superior Courts Act, i.e. that an appeal
“would have ” reasonable prospects of success or that there is some other
compelling reason why the appeal should be heard.
[14] In light of my conclusion, i t is only necessary to deal with reasonable prospects
of success and other compelling reasons, i.e. whether Rappa Holdings and
Three Palms have met the test for leave to appeal to be granted.
[15] In my view, the envisaged appeal would not have reasonable prospects of
success. The reasons are as follows.
[16] Northbound’s prima facie right to the release of the refinery licence is not
dependent upon either the actual issuance of the licence to it , or the validity or
lawfulness of the decision to issue the licence. The prima facie right is solely
based upon the Regulator’s decision to issue the licence, and to release it upon
satisfaction of certain extra-statutory preconditions – both as articulated in their
letter of 13 February 2025.
[17] It could be that Rappa Holdings and Three Palms are right in all respects upon
which they attack the Regulator’s decision to issue and to release the licence,
including on the statutory interpretation issue. In my view, that does not matter
to the Regulator’s obligation to release the licence once it has decided to issue
the licence, and to release it upon satisfacti on of the conditions it has set. The
Regulator is bound by the so-called Oudekraal principle as much as the court is.
[18] Rappa Holdings and Three Palms cannot, through opposing the mandamus
[18] Rappa Holdings and Three Palms cannot, through opposing the mandamus
sought by Northbound, achieve a backdoor review of – or even interim relief
suspending – an administrative decision that stands until it is set aside. Likewise,
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absent a review (or at least interim relief in regard to the administrative decision),
the Regulator cannot use self -help by backtracking on its own decision upon
representations by a third party that the decision was unlawful or invalid or
unwise. Not even in the counterapplication (to Northbound’s main application)
did Rappa Holdings and Three Palms seek such interim relief.
[19] Moreover, the harm which Rappa Holdings and Three Palms contend they suffer
while the refinery licence is in Northbound’s hands, does not flow from the
issuance of the licence to Northbound. The cause of the harm is the
implementation of the sale of business to Northbound, which divested Rappa
Resources from its refining business. Whether that sale of business was valid (or
should be overturned) was not the subject -matter of the decision, but is the
subject-matter of the proceedings instituted pursuant to paragraph 3 of the order.
[20] In any event, given the concession by Rappa Holdings and Three Palms in
regard to the section 18 application, the orders I made would remain in operation
at least until the envisaged appeal has been determined. The harm on which
Rappa Holdings and Three Palms rely would thus in any scenario endure for, at
least, more than a year. In addition, even if the envisaged appeal were to be
successful, the only effect would be to deprive Northbound of its refining licence.
It would not restore the refining business to Rappa Resources.
[21] Thus, the “ compelling reasons” upon which Rappa Holdings and Three Palms
relied in their application for leave to appeal are irrelevant to the decision and an
appeal court would likely not reach them. I did not finally decide (and neither, in
my view, would an appeal court finally decide) whether:
a. Under the Precious Metals Act, a refining licence can only be considered to
be “issued” once physical possession of the licence has been transferred
to the applicant for the licence.
to the applicant for the licence.
b. The sale of business agreement was valid or not (or void or voidable).
c. The VAT claim formed part of the assets of Rappa Resources for purposes
of assessing whether section 112 as read with section 115 of the
Companies Act have been complied with.
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Date of hearing: 1 October 2025
Date of judgment: 28 October 2025
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For the applicant (respondent in the
application for leave):
For the third and fifth r espondents
(applicants in application for leave):
IP Green SC with L Seegels-Ngcube
instructed by Nochumsohn Pretorius
L Holla nder instructed by APA
Attorneys