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[1] This application concerns the execution of the order granted on 26 March
2026 pending the outcome of the application for leave to appeal and any
subsequent appeal.
[2] The respondents contend that the operation and execution of the order are
suspended in terms of section 18(1) of the Superior Courts Act 10 of 2013.
[3] The applicant disputes that the order is suspended and, in the alternative,
seeks relief in terms of section 18(3).
[4] Section 18(1) provides that, subject to subsections (2) and (3), the operation
and execution of a decision which is the subject of an application for leave to
appeal is suspended pending the outcome of such application or appeal.
[5] Section 18(3) empowers a court to order otherwise only if exceptional
circumstances exist and the party seeking execution proves on a balance of
probabilities that it will suffer irreparable harm if the order is not put into
operation and that the other party will not suffer irreparable harm if it is.
[6] The requirements are cumulative. The onus rests squarely on the applicant.
The threshold is intentionally high. Section 18 represents a departure from the
common-law position and is designed to ensure that execution pending
appeal is granted only in circumstances that are truly out of the ordinary.
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[7] The first enquiry is whether the order of 26 March 2026 is one whose operation
is automatically suspended under section 18(1).
[8] In my judgment refusing leave to appeal, I held that the order is expressly
interim in character. It does not finally determine the validity of the
respondents’ appointments as directors; it operates pending the institution and
finalisation of proceedings to determine that issue; and it preserves the status
quo and does not dispose of the substantive dispute between the parties. On
that basis, the order is interlocutory and not final in effect.
[9] Section 18(1) presupposes a decision whose execution would ordinarily be
suspended upon the noting of an appeal.
[10] Where an order is purely interlocutory and does not have final effect, its
operation is not automatically suspended unless it is appealable.
[11] The respondents’ characterisation of the order as final was rejected in the
leave to appeal judgment.
[12] The order does not preclude them from accessing the courts in their personal
capacities. It regulates who may represent the company pending
determination of a disputed directorship. It does not determine rights finally.
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[13] Even if I am incorrect in that characterisation, and even if the order is
suspended by operation of section 18(1), the applicant has established the
requirements for execution pending appeal in terms of section 18(3).
[14] Exceptional circumstances are those which take the matter out of the ordinary
and justify deviation from the default rule of suspension. They must be
assessed cumulatively and contextually. In this matter, several features
distinguish the case from an ordinary commercial dispute.
[15] First, the respondents’ authority to act on behalf of the applicant was found
prima facie unlawful. That finding was grounded in common-cause facts,
including the admitted non-vesting of shares in Alcucento and the irregularities
surrounding the appointment process.
[16] Second, it is common cause that a Form CoR39 lodged with the CIPC bore
forged signatures. That fact is not peripheral. It goes to the integrity of the
corporate governance process and the reliability of statutory filings.
[17] Third, the respondents have made clear, both in correspondence and in their
answering papers, that they intend to persist in acting on behalf of the
applicant notwithstanding the interim order.
[18] Fourth, mining operations continue at the mine under authority purportedly
derived from the respondents. The extraction of coal is not reversible. It
involves the depletion of a finite natural resource.
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[19] Fifth, a section 54 notice in terms of the Mine Health and Safety Act 29 of 1996
has been issued to Mamokebe Investments. That notice exposes the
applicant to regulatory consequences and potential sanction. The notice arose
in circumstances where the respondents, purporting to act for the applicant,
were associated with ongoing mining activities.
[20] Sixth, the mining right has been ceded and registered in favour of Mamokebe
Colliery. The continued assertion by the respondents that they may authorise
mining operations creates legal and regulatory instability.
[21] These factors, considered together, render the matter exceptional. It is not a
case of mere inconvenience or commercial rivalry. It concerns disputed
corporate authority, forged statutory filings, regulatory exposure, and ongoing
depletion of a mineral resource. The cumulative effect places the matter
outside the ordinary run of cases.
[22] The next enquiry is whether the applicant has established irreparable harm.
Irreparable harm is harm that cannot be adequately remedied by damages or
subsequent relief.
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[23] If the operation of the order is suspended, the respondents would be free to
continue acting on behalf of the applicant pending appeal. On the evidence,
that would permit continued mining operations under disputed authority. Coal
extracted and sold cannot be restored. The depletion of a finite resource is
irreversible.
[24] The section 54 notice demonstrates that the applicant faces regulatory risk.
Continued representation by persons found prima facie to lack authority may
expose the company to further statutory consequences. Reputational harm
and regulatory intervention cannot readily be undone.
[25] There is also a real risk that third parties contracting with the respondents may
seek to bind the applicant. The proliferation of agreements concluded under
disputed authority may generate further litigation and legal uncertainty.
[26] These forms of harm are ongoing and cumulative. They are not adequately
compensable by a damages claim.
[27] By contrast, the respondents will not suffer irreparable harm if the order
remains operative pending appeal.
[28] They are restrained only from acting or purporting to act on behalf of the
applicant, they are not prevented from instituting substantive proceedings to
vindicate their alleged rights or to oppose such proceedings, nor are they
deprived of personal property or liberty.
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[29] Their asserted prejudice is that they are prevented from participating in
litigation on behalf of the company. That consequence flows from the finding
that their authority has not been established prima facie. It is not irreparable
harm.
[30] If an appellate court or a court in the envisaged proceedings ultimately finds
that they were lawfully appointed, the interim restraint will fall away.
[31] The balancing exercise required by section 18(3) therefore favours the
applicant. The harm to the applicant if execution is withheld is immediate and
irreparable. The harm to the respondents if execution is granted is procedural
and reversible.
[32] The respondents further contend that the order has final effect because it
precludes them from participating in litigation. That submission misconceives
the nature of corporate personality.
[33] Litigation instituted in the name of a company belongs to the company.
Directors do not have a personal proprietary interest in company litigation.
Authority to represent the company derives from lawful appointment.
[34] An interim restraint on corporate representation pending determination of a
dispute does not amount to a denial of access to court in terms of section 34
of the Constitution of the Republic of South Africa, 1996 (the “Constitution”). It
regulates who may speak for the juristic person.
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[35] The urgency of the matter is apparent. Mining operations are continuous.
Regulatory processes have already been initiated. Delay pending appeal
would allow the very conduct the interim order was designed to prevent.
Justice would not be served by permitting the continuation of contested
authority and potentially unlawful operations during the pendency of an
appeal.
[36] The enquiry cannot be divorced from the broader constitutional and statutory
framework within which company law operates. Section 1(c) of the
Constitution establishes the supremacy of the Constitution and the rule of law
as founding values of the Republic. Section 2 affirms that the Constitution is
the supreme law and that conduct inconsistent with it is invalid, and further
that the obligations imposed by law must be fulfilled.
[37] These provisions are not abstract ideals , they demand legality, accountability,
and fidelity to statutory processes. Corporate authority exercised in the name
of a juristic person must therefore derive from lawful appointment and
compliance with the Companies Act 71 of 2008 (the “Companies Act”).
[38] The continued assertion of directorial authority in the absence of legal validity
at foundational level, implicates not merely private commercial interests but
the constitutional principle of legality itself.
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[39] Section 5(1) of the Companies Act requires that the Act be interpreted in a
manner that gives effect to the purposes set out in section 7. Those purposes
include promoting compliance with the Bill of Rights in the application of
company law; encouraging transparency and high standards of corporate
governance; creating optimal conditions for the aggregation and investment
of capital; encouraging the efficient and responsible management of
companies; and providing a predictable and effective environment for their
regulation.
[40] The integrity of directorial appointment lies at the heart of those objectives. To
permit persons whose authority is disputed and prima facie defective to
continue exercising the powers of directors pending appeal would undermine
transparency, corporate governance, regulatory certainty, and responsible
management.
[41] In these circumstances, the constitutional commitment to legality and the
statutory purposes of the Companies Act reinforce the conclusion that
execution pending appeal is justified. The interim order does not create new
rights; it safeguards the rule-based framework within which corporate power
must lawfully operate.
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[42] In my judgment refusing leave to appeal, I concluded that the constitutional
and statutory framework, in particular sections 1(c) and 2 of the Constitution,
read with sections 5 and 7 of the Companies Act, negate any reasonable
prospect that another court would interpret the Raubenheimer order as
creating lawful directorship where none existed in law. That conclusion is
relevant not only to prospects of success but also to the irreparable harm
enquiry under section 18(3).
[43] If the legal position is that no valid directorship existed, then the respondents
cannot suffer irreparable harm by being restrained from exercising powers
they did not lawfully possess. Section 18(3) does not protect an asserted
entitlement that is inconsistent with the rule of law or the statutory scheme
governing corporate authority. The restraint imposed by the interim order
therefore does not deprive the respondents of a lawful right; it prevents the
continued exercise of corporate power in circumstances where its legal
foundation has not been established. Any prejudice they assert is accordingly
not irreparable harm in the legal sense contemplated by the statute.
[44] By contrast, to permit the continued exercise of disputed directorial authority
pending appeal would risk normalising conduct that the constitutional principle
of legality and the Companies Act are designed to prevent. The irreparable
harm in this matter lies not in temporarily restraining unlawful authority, but in
allowing it to persist.
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[45] In the result, whether the order of 26 March 2026 is regarded as interlocutory
and not suspended, or whether it is regarded as suspended but subject to
section 18(3), the applicant is entitled to the relief sought.
[46] In relation to costs, I make the same costs order I made in the leave to appeal
judgment. The first, second and fourth respondents are cited before this Court
in their personal capacities, and the conduct giving rise to the present
proceedings is conduct allegedly undertaken by them personally and without
lawful authority. In those circumstances, there is no basis upon which the
company should bear the financial burden of this litigation, and no reason why
the costs order should not properly reflect that the first, second and fourth
respondents are liable for the costs in their personal capacities.
Order
1. The order of 26 March 2026 is interlocutory and not suspended for the reasons
dealt with in the judgment refusing leave to appeal.
2. Insofar as it may be contended that the order of 26 March 2026 is not
interlocutory and not suspended, it is ordered that the operation and execution
of the order of 26 March 2026 shall not be suspended pending the final
determination of any application for leave to appeal and/or appeal.