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[2026] ZAGPJHC 475
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Olicacron (Pty) Ltd and Another v Black Mountain Mining and Others (2025/007239) [2026] ZAGPJHC 475 (4 May 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
Number: 2025-007239
In
the matter between:
OLICACRON
(PTY) LTD
[Registration
Number:2014/064500/07]
First
Applicant/ Second Third Party
HENMAG
HOLDINGS (PTY) LTD
[Registration
Number: 2010/018617/07]
Second
Applicant/ Third Third Party
And
BLACK
MOUNTAIN MINING (PTY) LTD
[Registration
Number: 2005/040096/07]
First
Respondent/ Applicant
OLD
MUTUAL ALTERNATIVE RISK
TRANSFER
INSURE LTD
[Registration
Number: 1966/010741/06]
Second
Respondent/ Respondent
LEAD
ENGINEERING & PROJECTS (PTY) LTD
[Registration
Number: 2012/147101/07]
Third
Respondent/ First Third Party
In
re:
BLACK
MOUNTAIN MINING (PTY) LTD
[Registration
Number: 2005/040096/07]
Respondent/
Applicant
And
OLD
MUTUAL ALTERNATIVE RISK TRANSFER
INSURE
LTD
[Registration
Number: 1966/010741/06]
Respondent
LEAD
ENGINEERING & PROJECTS (PTY) LTD
[Registration
Number: 2012/147101/07]
First
Third Party
OLICACRON
(PTY) LTD
[Registration
Number: 2014/064500/07]
Second
Third Party
HENMAG
HOLDINGS (PTY) LTD
[Registration
Number: 2010/018617/07]
Third
Third Party
Neutral
Citation
:
Olicacron
(Pty) Ltd & Henmag Holdings (Pty) Ltd v Black Mountain Mining
(Pty) Ltd & Old Mutual Alternative Risk Transfer
Insure Ltd and
Lead Engineering & Projects (Pty) Ltd (007239-2025) [2026]
ZAGPJHC ------ (04 May 2026)
Coram
:
Khaba AJ
Heard
:
28 April 2026.
Delivered
:
04 May 2026 – This judgment was handed down electronically by
circulation to the parties’ representatives by email,
by being
uploaded to CaseLines and by release to SAFLII. The date for
hand-down is deemed to be 04 May 2026.
Summary:
The
effect of a final winding-up order on interconnected legal
proceedings and the grant of a postponement
sine
die
to
prevent the piecemeal adjudication of inextricably linked issues in
violation of the statutory moratorium and the right
to a fair
hearing.
ORDER
1.
The application instituted by Black
Mountain Mining (Pty) Ltd against Old Mutual Alternative Risk
Transfer Insurance Limited under
case number: 2025-007209, together
with the Rule 13 third-party proceedings consequential thereon, is
removed from the roll of
28 April 2026 and postponed
sine
die
.
2.
The first respondent in this application,
Black Mountain Mining (Pty) Ltd is ordered to pay the costs of the
first and second applicants
on an attorney and client scale, such
costs to include the costs of senior counsel were employed and the
costs of junior counsel
on scale C.
APPLICATION FOR
POSTPONEMENT
JUDGMENT
KHABA AJ:
Introduction:
[1]
This
is an opposed interlocutory application for the postponement
sine
die
of
the main application. The applicants, Olicacron (Pty) Ltd and Henmag
Holdings (Pty) Ltd ("the applicants"), cited
as the second
and third parties in the main proceedings, seek an order removing the
matter from the roll of 28 April 2026. The
application is opposed by
Black Mountain Mining (Pty) Ltd ("BMM"), the applicant in
the main action. The second respondent
in the main application, Old
Mutual Alternative Risk Transfer Insured Ltd ("OMART"),
abides the decision of this court
but has filed an affidavit in
support of a postponement to avoid a piecemeal adjudication of the
dispute.
[2]
The
genesis of the postponement application lies in a supervening event,
the final liquidation of the principal debtor and first
third party,
Lead Engineering & Projects (Pty) Ltd ("Lead"), on 06
March 2026. The crisp question for determination
is whether, in light
of Lead's final winding-up and the consequential statutory suspension
of legal proceedings against it in terms
of section 359(1)(a) of the
Companies Act 61 of 1973, it is just and equitable for the main
application to proceed in Lead's absence.
[3]
Before
delving into the substance of the dispute, this court is compelled to
address a procedural irregularity that touches directly
on the
decorum and efficient functioning of this division. The practice
directives of this court are not mere guidelines or aspirational
suggestions; they are directives with the force of law, designed to
ensure the orderly and expeditious adjudication of disputes.
They
require,
inter
alia
,
the timeous filing of heads of arguments and a practice note by all
parties to an opposed motion. Despite the voluminous nature
of the
papers and the complexity of the legal issues, counsel for the first
respondent Mr. Peter SC elected not to file any heads
of argument on
behalf of BMM, let alone his practice note, in this interlocutory
application. When the court sought an explanation
for this flagrant
non-compliance with the consolidated directive 1 of 2004 as amended
of this division, no plausible or acceptable
reason was tendered.
This conduct is contrary to the practice directives of this division
and unacceptable. This conduct is disrespectful
to the court,
prejudicial to the opponents who had prepared their case in
anticipation of the arguments to be met and is unequivocally
condemned. It is a practice that strikes at the heart of our
adversarial system.
The
Comprehensive Factual Background:
[4]
The
factual matrix underpinning this application is intricate but can be
distilled to its essential commercial and procedural components.
[5]
The
genesis of the dispute: The dispute arises from an Engineering,
Procurement, and Construction ("EPC") contract
concluded on
25 October 2021 between BMM and Lead, wherein Lead undertook to
perform substantial works on an iron processing plant
for BMM. In
terms of the EPC contract, Lead was required to furnish certain
performance guarantees in BMM's favour. At Lead's behest,
OMART
stepped into the fray as guarantor and issued both advance payment
and performance guarantees in November 2021 and again
in February
2024.
[6]
The
demands and the fraud allegations
:
On
10 December 2024, BMM made formal written demands upon OMART for
payment under these guarantees, asserting that Lead was
in breach of
its repayment obligations under the EPC contract. The payment was
refused. OMART’s refusal was not arbitrary;
it was grounded in
a well-articulated position, communicated formally, that Lead had
raised serious and credible allegations of
fraud against BMM. Lead’s
attorneys, in a letter dated 16 December 2024, placed OMART on
express notice that they contended
BMM’s demands under the
guarantees were fraudulent, as no breach of the EPC contract had
occurred, and BMM knew it. OMART,
as a cautious stakeholder, took the
view that such grave allegations could not be unilaterally resolved
by a guarantor but required
judicial determination.
[7]
The
Institution of the main application: BMM launched the main
application on 22 January 2025, seeking payment from OMART.
OMART
delivered an answering affidavit, substantively relying on the fraud
exception to the autonomy principle of demand guarantees,
as famously
articulated in
Loomcraft
Fabrics CC v Nedbank and Another
1996
(1) SA 812 (A)
[1]
. OMART’s
defence is, in essence, the defence of Lead. Simultaneously, OMART
exercised its procedural rights under Uniform
Rule 13, serving
third-party notices on Lead, Olicacron, and Henmag. These three
entities, against whom OMART seeks an indemnity
in the event it is
found liable to BMM, joined forces in the litigation. They appointed
the same firm of attorneys, WJJ Badenhorst
Incorporated, delivered a
single, consolidated opposing affidavit.
[8]
The
centrality of lead: It is critical to appreciate the position of
Lead in this commercial and legal landscape. Lead is the
EPC
contractor. It is the protagonist in the underlying factual narrative
of contractual performance, breach, and the alleged fraud.
The
applicants, Olicacron and Henmag, are not parties to the EPC
contract. Their role is, in the words of their deponent, akin
to
sureties. They executed a Deed of Indemnity in favour of OMART. Their
liability is accessory to Lead’s. Their knowledge
of the EPC
contract’s implementation is derivative of Lead’s
knowledge. Their defence against OMART’s indemnity
claim, and
concomitantly against BMM’s main claim, is entirely symbiotic
with Lead’s defence. They aver in their founding
papers that,
without Lead, they are "compelled to rely on Lead's evidence"
and cannot present their case effectively
with "one hand tied
behind their backs."
[9]
The
supervening event: The Final Liquidation of Lead: The
equilibrium of the litigation was shattered on 02 March 2026 when
the
Honourable Acting Justice Stais in a considered judgment concerning a
different creditor, Ruwacon (Pty) Ltd, granted a final
winding-up
order against Lead. The order, annexed as "FA3" to the
founding papers, speaks for itself. Its legal consequence
is stark
and immediate. Section 359(1)(a) of the Companies Act 61 of 1973
(“The
Act”)
provides that "all civil proceedings by or against the company
concerned shall be suspended until the appointment of a liquidator."
Provisional liquidators have been appointed, but their certificates
of appointment are yet to be issued. They are, as a matter
of
practical reality, not in a position to give instructions, adopt,
amend, or abandon the forensic stance previously taken by
Lead’s
erstwhile management. The administration of Lead’s estate is in
a state of statutory paralysis.
The
Application for Postponement: The Applicants submissions:
[10]
Counsel
for the first and second third parties Ms. Ngakane, in
well-structured heads of argument and oral submissions, advanced
a
compelling case for the postponement
sine
die
,
founded on four mutually reinforcing pillars: the statutory
moratorium, the indivisible nature of the issues, the irreparable
procedural prejudice, and the balance of convenience.
[11]
The
First Pillar: The statutory imperative (section 359): The point
of departure is section 359 of the Companies Act. Ms. Ngakane
submitted that this provision is peremptory and fundamental to
the
concursus
creditorum
established
upon insolvency. The suspension of civil proceedings is designed to
protect the insolvent estate from piecemeal
attrition and to ensure
that all claims are adjudicated within the structured framework of
the insolvency, presided over by a duly
authorised liquidator who
acts in the interests of the general body of creditors. To proceed
with the main application, which directly
seeks to establish
liability upon which the indemnity against Lead’s estate will
immediately crystallise, is to circumvent
the statutory shield
erected by the legislature. It is to allow, through the back door of
the third-party proceedings, an adjudication
that directly and
profoundly affects Lead’s estate without its lawful
representative being at the helm.
[12]
The
Second Pillar: The inseparability of the issues (fragmented
justice): Ms. Ngakane argued forcefully against the artificial
compartmentalisation urged by BMM. BMM contended that since its claim
on the face of the notice of motion is only against OMART,
Lead’s
absence is legally irrelevant. This was met with the powerful
rebuttal that the principal defence to BMM’s claim
on the
merits is the fraud exception, a defence which is framed,
substantiated, and populated in its factual content exclusively
by
Lead. BMM’s demand asserted a breach of contract by Lead. The
fraud allegation asserts that BMM knew this statement was
false.
These are not two separate disputes; they are the opposing faces of a
single coin. To proceed against OMART alone is to
stage a trial on
the most contentious issues without the principal witness and party.
The court is left with the hollow shell of
a defence, presented by a
surety and a guarantor, both of whom have no direct knowledge. This
is a recipe for an adjudication that
is not only unfair but also
dangerously incomplete and unreliable.
[13]
The
Third Pillar: irreparable procedural prejudice: The prejudice to
the applicants is not merely that of inconvenience or
delay; it is
fundamental and structural. Ms. Ngakane submitted that if the matter
proceeds and BMM is successful, the judgment
will, by necessary
implication, contain findings that Lead breached the EPC contract and
that the fraud allegation was unsustainable.
Those findings will
be
res
judicata
against
Lead’s estate yet made in its absence and without its
participation. When a final liquidator is eventually appointed,
they
will inherit a materially compromised position, their hands tied by a
judicial pronouncement made without their input. For
the sureties,
Olicacron and Henmag, the prejudice is equally severe. They face a
judgment on an indemnity claim without the principal
debtor, whose
conduct is the very
causa
of
the dispute, being able to lead evidence, make submissions, or
protect the integrity of the factual narrative. They would
be held
liable in circumstances where the principal’s own defence, if
it could be properly articulated and advanced by a
liquidator, might
well have succeeded. This, counsel submitted, is a violation of the
section 34 constitutional right to a fair
hearing.
[14]
The
Fourth Pillar: The balance of convenience
:
In
weighing the prejudice, Ms. Ngakane invited the court to consider the
nature of the harms. BMM’s prejudice is commercial
and,
importantly, compensable. Its claim is for a monetary amount under
the guarantees. Interest continues to run. The delay, while
commercially frustrating, results in a quantifiable loss that can be
remedied by an award of interest and, if circumstances warrant,
a
future
ad
hoc
costs
order. Conversely, the prejudice to the applicants and to the
integrity of the judicial process is irremediable. An
unfair hearing
that produces a binding judgment cannot be unwound. The risk of a
multiplicity of proceedings, where a future court
may be called upon
to traverse the identical factual terrain once a liquidator is
appointed, is a profligate waste of judicial
resources that militates
overwhelmingly in favour of a single, coherent, and procedurally pure
hearing.
The
Position of the Second Respondent (OMART):
[15]
A
feature of this application that lends considerable weight to the
applicants’ case is the position adopted by OMART. In
an
affidavit deposed to by Ms. Cornelia Moll, OMART’s attorney of
record, and supported by a confirmatory affidavit from
Mr. Zakhele
Motha, OMART placed its institutional view before the court. OMART is
"ready to proceed" in the narrow sense
that it has its
papers in order. However, it does not subscribe to BMM’s vision
of a truncated hearing. Counsel on behalf
of the second respondent
Mr. Carelse endorsed the concerns raised by the applicants. OMART
confirmed that the factual substratum
of the fraud allegations lies
within the exclusive knowledge of Lead, that it cannot independently
advance this evidence, and that
it finds itself in an "invidious
position." OMART’s considered view, as expressed in its
correspondence and its
affidavit, is that a piecemeal adjudication
carries a real risk of duplication, inconsistent findings, and
prejudice to its rights
of recourse. The joinder of the respondent in
the main application to the substance of the applicants' concerns
transforms this
from a purely tactical defence application into a
broad consensus among all parties defending the case that the matter
is not ripe
for a fair and final hearing.
The
Opposition by BMM and its Failings:
[16]
BMM’s
opposition, articulated in the answering affidavit of Ms. Johanna
Alida Rossouw rested on two main contentions: first,
that BMM claims
no relief against Lead and therefore its absence is immaterial, and
secondly, that the prejudice of further commercial
delay is
overwhelming.
[17]
The
first contention has been addressed but must be robustly rejected
again. It exalts form over substance. The principle of independence
of guarantees does not grant litigants a license to ignore the
evidentiary and procedural realities of the dispute. When the
guarantor’s
sole defence is the beneficiary’s fraud, the
independence principle has already been breached by the nature of the
defence
itself. The court is then duty-bound to examine the
underlying contract. One cannot decide a case about whether Lead
breached a
contract and whether BMM lied about it, without Lead. To
hold otherwise would be to allow procedural sophistry to triumph over
substantive justice
[18]
On
the issue of delay, BMM’s deponent alleged that the applicants
had not acted promptly after the winding-up judgment of
02 March
2026. This submission, with respect, does not withstand scrutiny. The
chronology demonstrates that the applicants’
attorneys engaged
BMM and OMART on 31 March 2026, seeking a pragmatic accommodation.
BMM’s response was to challenge the
applicants to bring a
formal application "without delay." This was done on 16
April 2026. There was no
culpable
inertia
.
The criticism of delay is opportunistic, particularly in light of
BMM's own failure to seek a timely resolution.
The
Evaluation and Legal Analysis:
[19]
A
postponement is an indulgence. The party seeking it must show good
cause. The court retains a broad judicial discretion, to be
exercised
judicially, having regard to all the circumstances. The overriding
consideration is the interests of justice. It is not
a mechanical
balancing of prejudice; it is a qualitative assessment of what a fair
trial demands.
[20]
In
Cross
v Ferreira (1950 (3) SA 443 (C) 447
[2]
the
court held that a postponement should be granted where it is
necessary to prevent a situation where the ‘real issues’
cannot be properly adjudicated. This dictum resonates powerfully in
the present case. The "real issue" between BMM and
OMART is
the fraud exception. That issue is not merely better served by Lead’s
participation; it is, as a matter of evidentiary
reality, impossible
to justly determine without it. No amount of legal ingenuity by the
sureties or the guarantor can conjure the
direct factual knowledge of
the principal debtor.
[21]
Furthermore,
section 359 of the Companies Act is not a technicality. It embodies a
public policy imperative. Its purpose is to ring-fence
the insolvent
estate and centralize litigation. Allowing the main application to
proceed, with the inevitable consequence that
the liability of Lead’s
estate on the indemnity will be directly determined, would drive a
horse and cart through this protective
statutory framework. It would
allow an individual creditor (BMM), not to prove a claim in the
liquidation, but to reshape the liabilities
of the estate through the
back door of the principal proceedings, all before the liquidator can
blink.
[22]
I
am satisfied that the applicants have demonstrated not merely good
cause, but a compelling case for a postponement. The prejudice
to the
applicants and to the proper administration of justice in permitting
a fragmented hearing is immense and irreparable. The
prejudice to
BMM, while real and commercially significant, is the lesser of two
profound evils, and is one that can be ameliorated
through the
payment of
mora
interest
and an appropriately managed future allocation of a hearing date.
Costs:
[23]
This
brings me to the issue of costs. A party who succeeds in a
postponement application will not ordinarily be awarded costs.
However, this is an extraordinary case. BMM’s opposition was
wholly unreasonable. It was legally unsustainable on the facts,
as
demonstrated by the convergence of views between the applicants,
OMART, and the plain meaning of section 359. It was procedurally
blighted by counsel’s failure to file heads of arguments, let
alone a practice note, a form of professional discourtesy that
must
be met with a punitive costs sanction. The applicants’ founding
papers contained a tender to only seek costs in the
event of
opposition. That event has materialized, and BMM’s opposition
warrants the mark of this court’s strongest
disapproval. An
attorney and client costs order is justified.
Order:
[24]
In the result, the following order is made:
1.
The application instituted by Black
Mountain Mining (Pty) Ltd against Old Mutual Alternative Risk
Transfer Insurance Limited under
case number 2025-007209, together
with the Rule 13 third- party proceedings consequential thereon is
removed from the roll of 28
April 2026 and postponed
sine
die.
2.
The first respondent in this application,
Black Mountain Mining (Pty) Ltd, is ordered to pay the costs of the
first and second applicants
on an attorney and client scale, such
costs to include the costs of senior counsel were employed and the
costs of junior counsel
on scale C.
KHABA
AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
Appearances:
Counsel
for first and second
Third
Parties
Instructed
by:
Tel:
Email:
Email:
Adv.
T Ngakane
WJJ
Badenhorst Incorporated
083 414
5545
[email protected]
[email protected]
Counsel
for the First Respondent
Instructed
by:
Tel:
Email:
Email:
Adv.
J Peter SC
Tiefenthaler
Attorneys
011 807
0834
[email protected]
[email protected]
Counsel
for the Second Respondent:
Instructed
by:
Tel:
Email:
Email:
Adv.
C Carelse
Moll
Quibbell and Associates
010 446
5621
[email protected]
[email protected]
Date
of Hearing:
Date
of Judgment:
28
April 2026
04
May 2026
[1]
Loomcraft
Fabrics CC v Nedbank and Another 1996 (1) SA 812 (A).
[2]
Cross
v Ferreira
(1950 (3) SA 443
(C) 447.