REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2025-217224
In the matter between:
In the matter between:
PCM MINING SUPPLY (PTY) LTD Applicant
and
GLENCORE OPERATIONS SOUTH AFRICA (PTY) LTD Respondent
This judgment and the order incorporated herein is handed down electronically by circulation
to the parties’ legal representatives by e-mail and uploading to CourtOnline.
JUDGMENT
Moultrie AJ:
[1] This matter arises from a written agreement pursuant to which the applicant
was to provide mining-related services to the respondent for a period of five years
until 31 January 2027. On 30 October 2025, the respondent notified the applicant in
writing that the agreement would terminate 90 days later . It is common cause that
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
9 February 2026 ________________________
DATE SIGNATURE
the termination notice was issued pursuant to clause 24.1 of the agreement , which
states that “[ the respondent ] may terminate this Agreement on 90 (NINETY) days
written notice to [the applicant]”. It is also common cause that no reasons were given
in the notice.
[2] Contending that the termination notice was invalid, the applicant approached
the court seeking interim interdictory relief restraining the respondent from giving
effect thereto and ordering it to comply with the agreement pending the outcome of a
dispute resolution processes (including an arbitration) to be conducted in accordance
with the relevant provisions of the agreement . The applicant stated that “the core
question that the arbitrator will be asked to adjudicate is whether the respondent was
entitled to unilaterally terminate the agreement without furnishing the applicant with
the reasons” for the termination , and further that “the arbitrator will be asked to
refuse to enforce [clause 24.1] because it is against public policy when it is invoked
without furnishing reasons for the termination”. The applicant, who was represented
at the hearing by Mr Chabane , sought an order requiring the respondent to “pay the
costs of this application on scale B”.
[3] The respondent opposed the application on a wide front , including expressly
on the basis that “[u]nder clause 25.4 of the service agreement, each party expressly
consents to the arbitration being conducted on an urgent basis and irrevocably
authorises the other party to apply, on behalf of both parties, for such arbitration to
be conducted on an urgent basis” . Counsel for the respondent (Mr Clark, who
appeared together with Mr Lewis) argued that the applicant not only had an
alternative remedy, but also tha t it had failed to establish urgency because the
dispute could be determined in the arbitration proceedings . In its answering affidavit,
the respondent sought an order that the applicant be required to pay the costs of the
application, including the costs of two counsel where employed on Scale C. Punitive
costs were not sought.
[4] Subsequent to the hearing, the parties advised the court that the arbitration
proceedings had taken place and that an award has been given, with the result that
the application has been rendered moot other than in respect of the question of
costs. In view of the fact that what actually transpired was precisely the scenario
postulated by the argument referred to above, and given that counsel for the
applicant argued at the hearing that costs (including the costs of counsel ) should
follow the result, it is clear that the applicant should be ordered to pay the applicant’s
costs. The only remaining questions are whether these costs should include the
costs of one or two counsel , and whether such costs (i.e. of counsel) 1 should be
awarded on scale “B” or “C”.
[5] Although Uniform R ule 69(1) contemplates that the court may “authorise”
“fees consequent upon the employment of more than one advocate or attorney
having right of appearance in the Superior Courts and who appears ”, it does not
expressly stipulate the factors to be considered by a court in determining the
circumstances under which such authorisation should be given . As such, this is a
matter governed by the common law , under which the courts are entitled to exercise
a discretion on the basis of whether it considers that it was a “wise and reasonable
precaution” to employ additional counsel in view of the particular circumstances of
the case (or its consequences) , having regard to factors such as the amount
1 As was pointed out in Mashavha v Enaex Africa (Pty) Ltd and Others 2025 (1) SA 466 (GJ) para 5,
the award of costs on scale “A”, “B” or “C” only applies to the costs of counsel, in the sense of “any
legal practitioner, whether a referral advocate, a trust account advocate or an attorney with higher
appearance rights, who actually does the work of counsel”.
involved and the nature of the issues in dispute , the length of the hearing or
argument, the importance of questions of principle or of law involved, and the
number of legal authorities quoted.2
[6] With regard to the scale of fees, Rule 69(2) requires that “w here fees in
respect of more than one advocate or attorney having right of appearance in the
Superior Courts and who appears [sic] are allowed in a party and party bill of costs,
the fees to be permitted in respect of any additional advocate or attorney having right
of appearance in the Superior Courts and who appears, shall be on a scale in terms
of subrule (7), as directed by the court ”. Rule 67A(3) provides that the factors to
which the court “may have regard” when determining the scale of counsel’s fees in
terms of Rule 69 are (i) the complexity of the matter; and (ii) the value of the claim or
importance of the relief sought.
[7] I am of the view that the application was far from “straightforward and not
complicated”, as Mr Chabane was content to describe it in his heads of argument. To
the contrary, just some of the difficult questions with which I found myself grappling
prior to being advised of the mootness of the application included the following:
a. Was the applicant’s pleaded case truly a purely legal contention based on
the common cause fact that the respondent terminated the agreement
without “furnishing”, “proffer ing” or “ providing” its reasons , or did the
founding papers also advance two additional (apparently alternative)
contentions (both of which were factually disputed ), namely that that the
notice was unenforceable because: (i) there was no reason at all for the
2 See Van Loggerenberg et al Superior Court Practice. Looseleaf, RS26 (Juta, 2025) at D1 p. 69-3
and the cases cited there.
termination; and/or (ii) there was no “substantiated” reason therefor?3
b. Was the applicant entitled to expand its pleaded case in reply to include
the legal contention that the respondent was required to observe the
principle of audi alteram partem and afford the applicant an opportunity to
answer the (disputed) complaints against it “ in some form of an inquiry”
before issuing the termination notice , combined with the factual allegation
that this was not done?
c. Did the attacks on the termination notice operate at the level of
interpretation of the agreement ,4 at the level of the enforceability of the
agreement, or at the level of the act of termination itself?
d. Given that it was not the applicant’s pleaded case5 that a provision in any
private fixed-term contract allowing one of the parties to terminate it on
notice without furnishing reasons (or without reasons; or without valid
reasons; or without allowing audi) is unenforceable, what specific factual
features of the case were relevant and relied upon to render its
“invocation” in this particular instance unenforceable?
e. Given the consequent centrality of the factual matrix to the pleaded case,
whether the existence of a “ viable case” is the standard to be met by an
applicant seeking to establish a prima facie right, in view of the equal
3 In this regard, the applicant made the factual allegation that the issuing of the termination notice by
one of its general managers was “a decision influenced by personal whims and nothing else” and
that he “abused” the clause “to settle personal scores for whatever reason”. The applicant pre -
emptively alleged that that “any reason that will be proffered at this stage is an afterthought to
rationalise an otherwise sham decision taken by the general manager”
4 I was somewhat baffled by the contention in the founding papers that “ this clause did not envisage
a situation where the respondent can terminate the contract simply because it feels like doing so”.
5 I should note that this was Mr Chabane’s submission during argument.
‘split’ of the Constitutional Court in the recent Eskom6 case?
[8] It was precisely because there is (as Mr Chabane conceded) no established
authority directly in support of the novel relief sought (i.e. other than the general
statements made by the Constitutional Court in Beadica) that Messrs. Clark and
Lewis were justified in undertaking an extensive expedition through the sometimes
contradictory authorities dealing with the factors to be considered by a court before it
may conclude that the common law of contract should be developed on the basis of
Constitutional principles in specific factual circumstances. This task was also justified
by the financial consequences that might potentially arise should the applicant have
been successful : according to the respondent , the continuation of the agreement
would have required it to pay approximately R450,000 per month to the applicant.
[9] Taking all of this into consideration , I am of the view that it was a wise and
reasonable precaution for the respondent to have appointed two counsel to
undertake the complex and important task of preparing written and oral argument in
the limited time available. For the same reasons, I consider that the costs of both
counsel should be payable on scale “C”.
[10] In the circumstances, t he applicant is ordered to pay the respondent’s costs,
including the costs of two counsel where so employed on scale “C”.
___________________________
RJ MOULTRIE
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
6 Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd 2023 (4) SA 325 (CC).
For the Applicant: VJ Chabane instructed by Montjane Freedom Attorneys:
montjanef@yahoo.com, 076 094 9863
For the Respondent: M Clark and R Lewis instructed by Werksmans Attorneys:
dwillans@werksmans.com, 011 535 8000