About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2026
>>
[2026] ZAGPJHC 295
|
|
Platmin South Africa and Another v Samancor Chrome (Pty) Ltd and Others (2025/088498) [2026] ZAGPJHC 295 (27 February 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number: 2025/088498
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED
In
the matter between:
PLATMIN
SOUTH
AFRICA
1
st
Applicant
SOUTHERN
SPHERE PLATMIN (PTY) LTD
2
nd
Applicant
And
SAMANCOR
CHROME (PTY) LTD
1
st
Respondent
SYLVANIA
METALS PROPRIETARY LIMITED
2
nd
Respondent
MINISTER
OF MINERAL AND PETROLEUM RESOURCES
3
rd
Respondent
DIRECTOR-GENERAL
OF THE DEPARTMENT OF MINERAL 4
th
Respondent
AND
PETROLEUM RESOURCES
DEPUTY
DIRECTOR -GENERAL OF THE DEPARTMENT
5
th
Respondent
OF
MINERAL AND PETROLEUM
REGIONAL
MANAGER: LIMPOPO REGION OF THE
6
th
Respondent
DEPARTMENT
OF MINERAL AND PETROLEUM
RESOURCES
JUDGMENT
MOTHA
J
1)
Dissatisfied with my judgment delivered on 12 November 2025, the
applicants lodged this application for leave to appeal.
Now,
confronting this court are two legal questions: whether an interim
order is appealable and whether the applicants have made
out a case
for leave to appeal.
2)
Despite
stiff resistance in a few cases,
[1]
the
test for determining the appealability of an interim order enunciated
in
Zweni
v Minister of Law and Order
[2]
has been supplanted. In the matter of
United
Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd
and Others
[3]
the
court explained that:
“
In
Zweni
,
it was held that for an interdictory order or relief to be appealable
it must: (a) be final in effect and not susceptible to alteration
by
the court of first instance; (b) be definitive of the rights of
the parties, in other words, it must grant definite and
distinct
relief; and (c) have the effect of disposing of at least a
substantial portion of the relief claimed in the main
proceedings.”
[4]
3)
Critiquing the law as spelt out in
Zweni
, the court in
UDM
put paid to all debates about
Zweni:
“
Whether an interim
order has final effect or disposes of a substantial portion of the
relief sought in a pending review is merely
one consideration. Under
the common law principle as laid down in Zweni, if none of the
requirements set out therein were met,
it was the end of the matter.
But now the test of appealability is the interests of justice, and no
longer the common law test
as set out in
Zweni
”
[5]
4)
Penning this judgment, Madondo AJ said:
“
What is to be
considered and is decisive in deciding whether a judgment is
appealable, even if the
Zweni
requirements
are not fully met, is the interests of justice of a particular case
and whether or not an order lacking one or
more of the factors set
out in
Zweni
constitutes
a “decision” for the purposes of
section
16(1)(a)
of
the
Superior Courts
Act.
[28
] Over
and above the common law test, it is well established that an interim
order may be appealed against if the interests
of justice so
dictate. It is thus in the interests of justice that the
impugned interim interdict is appealable on the allegation
that the
interdictory relief in question resulted in the infringement of the
right to freedom of expression.”
[6]
5)
This
decision has been cemented and reinforced in several matters,
including
in
City of Tshwane Metropolitan Municipality v Afriforum and Another
[7]
,
where the court said:
“
The common law
test for appealability has since been denuded of its somewhat
inflexible nature. Unsurprisingly so because
the common law is
not on par with but subservient to the supreme law that prescribes
the interests of justice as the only requirement
to be met for the
grant of leave to appeal. Unlike before,[12] appealability no
longer depends largely on whether the interim
order appealed against
has final effect or is dispositive of a substantial portion of the
relief claimed in the main application.
All this is now
subsumed under the constitutional interests of justice standard.
The over-arching role of interests of justice
considerations has
relativised the final effect of the order or the disposition of the
substantial portion of what is pending before
the review court, in
determining appealability.”
[8]
6)
Writing for the constitutional court, with all ten judges concurring,
Mogoeng CJ enunciated the law as follows:
“
What the role of
interests of justice is in this kind of application, again entails
the need to ensure that form never trumps any
approach that would
advance the interests of justice. If appealability or the grant
of leave to appeal would best serve the
interests of justice, then
the appeal should be proceeded with no matter what the
pre-Constitution common law impediments might
suggest. This is
especially so where, as in this case, the interim order should not
have been granted in the first place
by reason of a failure to meet
the requirements. The Constitution and our law are all about
real justice, not mere formalities.
Importantly, the
constitutional prescript of legality and the rule of law demand that
nobody, not even a court of law, exercises
powers they do not have.
Where separation of powers is implicated and forbids the grant of the
order sought to be appealed
against, the interests of justice demand
that even an order that is not of final effect or does not dispose of
a substantial portion
of the issues in the main application,
nevertheless be appealable.”
[9]
7)
Having examined the matter before me and having listened to both
counsel, especially the submission that my first order
has a final
effect, I am of the view that it is in the interest of justice that
the orders be appealable. Notwithstanding that,
an application for
leave to appeal rests on a totally different plane of existence.
Accordingly, it does not follow that if an
interim order is ruled to
be appealable, leave to appeal would,
ipso facto
, be granted.
8)
In
launching the leave to appeal, the applicants relied on ss
17(1)(a)(i) and (ii) of the Superior Courts Act, as reflected in
[10]
Samancor and Sylvania’s
submission that leave to appeal should be granted on the basis that
the appeal would have a reasonable
prospect of success. Further, they
submitted that there is compelling reason why the appeal should be
heard, if the Court grants
leave to appeal in respect of the order in
the counter-application it should on that basis alone grant leave
also in respect of
the order in the main application, since if the
appeal in respect of the counter-application is upheld the order in
the main application
will automatically have to be set aside
[11]
.
9)
There are four main grounds of appeal in respect of the
counterapplication and the main application:
The first is the court's
failure to consider the prospects of success in the .... review
application;
The second is the Court's
finding on the proper application of Trojan;
The third is the Court's
finding on the accounting that was tendered;
The last is the Court's
finding as to the effect on Samancor and Sylvania of requiring
Samancor to process all material from Grootboom
to less than 1mm.
10)
The law as set out in ss17(1)(a)(i) and (ii) of the Superior Courts
Act reads:
“
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that –
(i) the appeal would
have a reasonable prospect of success; or
(ii) there is some
other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.”
11)
Dealing
with 17(1)(a)(i) of the Act, the court in
Mont
Chevaux Trust v Goosen
[12]
held:
"It is clear that
the threshold for granting leave to appeal against a judgment of a
High Court has been raised in the new
Act…The use of the word
"would" in the new statute indicates a measure of certainty
that another court will differ
from the court whose judgment is
sought to be appealed against."
[13]
12)
Elucidating
the postulation which is inculcated in examining reasonable prospects
of success, the court in
Smith
v S
[14]
held:
“
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the
appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote but have a
realistic chance of succeeding.
More
is required to be established than that there is a mere possibility
of success, that the case is arguable on appeal or that
the case
cannot be categorised as hopeless. There must, in other words, be a
sound, rational basis for the conclusion that there
are prospects of
success on appeal.”
[15]
13)
Emphasizing
this point, the court in
Fusion
Properties 233 CC v Stellenbosch Municipality
[16]
“
The applicable
principles have over time crystallised and are now well
established…It is manifest from the text of s
17(1)
(a)
that an
applicant seeking leave to appeal must demonstrate that the envisaged
appeal would either have a reasonable prospect
of success, or,
alternatively, that 'there is some compelling reason why an appeal
should be heard'. Accordingly, if neither of
these discrete
requirements is met, there would be no basis to grant
leave.”
[17]
14)
In essence,
it is not enough for a court to focus solely on 17(1)(a)(i). It must
do more, as the Supreme Court of Appeal in
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
[18]
enunciated:
”
In order to be
granted leave to appeal in terms of s 17(1)(a)(i) and s 17(1)(a)(ii)
of the Superior Courts Act an applicant for
leave must satisfy the
court that the appeal would have a reasonable prospect of success or
that there is some other compelling
reason why the appeal should be
heard. If the court is unpersuaded of the prospects of success, it
must still enquire into whether
there is a compelling reason to
entertain the appeal. A compelling reason includes an important
question of law or a discreet issue
of public importance that will
have an effect on future disputes. But here too, the merits remain
vitally important and are often
decisive.[3] Caratco must satisfy
this court that it has met this threshold.”
[19]
15)
The takeaway from
Caratco
is that even when s17(1)(a)(ii) is
being examined, the merits of a case are of critical importance and
are often dispositive of
the matter.
16)
When perusing the reasons for leave to appeal, it is patent that the
judgment has traversed them at great length. Therefore,
it would be
otiose to regurgitate the judgment, save to say that the two
applications are diametrically opposed to each other,
despite being
joined at the hip. If the main application is granted,
ipso facto
,
the counterapplication cannot be ordered,
vice versa
.
17)
Pending the review hearing and mindful of the potential of job
losses, this court carved out what it considered to be a win-win
situation. The court cannot pay lip service to the rule of law or
promote a wanton disregard of the law. The separation of powers
must
be observed; the minister granted both parties rights to the same
mine but for different minerals. Inasmuch as the applicants
are
entitled to mine platinum, the respondents are also entitled to mine
PGMs.
18)
Having listened to counsel, especially on the point that the court
should have concluded that the applicants would prevail on
review, I
am satisfied that the appeal would have no reasonable prospects of
success and that another court would not come to a
different
conclusion. This court sneaked a peek at the review and concluded
that the Minister’s decision was likely to be
upheld.
Accordingly, there is neither sound nor rational basis for concluding
that there are reasonable prospects of success, nor
have the
applicants shown any.
19)
Furthermore, there are no compelling reasons why the appeal should be
heard.
Order
1.
The application for leave to appeal is dismissed with costs,
including costs of two counsel on scale
C.
MP MOTHA
JUDGE OF THE COURT
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
APPEARANCES:
Date
of Hearing:
27 February 2026
Date
of Judgment:
27 February 2026
For
Applicant:
ADV VAN VUUREN SC
With
ADV B MKHIZE
Instructed
by
WHITE & CASE LLP
For
1
st
to 4
th
Respondents:
ADV WESLEY SC
With
ADV JR VERWAY
Instructed
by:
MALAN SCHOLES INC.
[1]
Such as in TWK Agriculture Holdings (Pty) Ltd v Hoogveld
Boerderybeleggings (Pty) Ltd and Others (273/2022)
[2023] ZASCA 63
;
2023 (5) SA 163
(SCA) (5 May 2023)
[2]
1993
(1) SA 523 (A)
[3]
2023
(1) SA 353 (CC)
[4]
Supra
para 41.
[5]
Supra
para 43.
[6]
Supra
para 45.
[7]
(157/15)
[2016] ZACC 19
;
2016 (9) BCLR 1133
(CC);
2016 (6) SA 279
(CC) (21
July 2016)
[8]
Supra para 40
[9]
Supra para 41.
[10]
The applicant’s heads of argument para 16.
[11]
Supra
para 30.
[12]
2014
JDR 2325 (LCC).
[13]
Supra
para 6.
[14]
(475/10)
[2011] ZASCA 15
;
2012 (1) SACR 567
(SCA) (15 March 2011).
[15]
Supra
para 7.
[16]
(932/2019)
[2021] ZASCA 10
(29 January 2021.
[17]
Supra
para 18.
[18]
(982/18)
[2020] ZASCA 17
;
2020 (5) SA 35
(SCA) (25 March 2020).
[19]
Supra para 2.