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[2026] ZANCHC 52
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Tau Mining Contractors (Pty) Ltd v Aveng Moolmans (Pty) Ltd and Another (Leave to Appeal) (2671/2024) [2026] ZANCHC 52 (5 June 2026)
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THE
HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 2671/2024
In
the matter between:
TAU
MINING CONTRACTORS (PTY) LTD
Applicant
and
AVENG
MOOLMANS (PTY) LTD
1
st
Respondent
BLACK
MOUNTAIN MINING (PTY) LTD
2
nd
Respondent
Coram: LEVER J
JUDGMENT
Lever
J:
1.
This is an
application for leave to appeal the refusal of relief under
section18(3) of the Superior Courts Act (the Act).
[1]
The matter started as an urgent application, which was heard on the
24 October 2024.
2.
In the said urgent application the applicant claimed it had been in
peaceful and undisturbed possession
of a certain identified portion
of the Gamsberg mine in the region of Aggenys in the Northern Cape.
The applicant claimed that
the first and second respondents despoiled
it of this peaceful and undisturbed possession of the relevant
portion of the Gamsberg
mine. I granted the applicant a
mundament
van spolie
in respect of the relevant portion of the said mine in
my judgment handed down on the 1 November 2024 (the spoliation
judgment).
Part of the applicant’s claim in the spoliation
application, which was upheld in the spoliation judgment, is that it
possessed
the relevant portion of the mine to exert both a
debtor-and-creditor lien as well as an enrichment lien.
3.
Both respondents sought leave to appeal the spoliation judgment. In
response the applicant sought the
right to enforce and execute the
spoliation judgment under the provisions of section 18(3) of the Act,
despite the applications
for leave to appeal.
4.
For various reasons there were significant delays in hearing both the
relevant applications for leave
to appeal and the section 18(3)
application. Which of the parties were responsible for the delays is
to some extent contentious.
However, this is not an issue that I need
to determine in the present circumstances. The said applications were
finally heard on
the 26 January 2026. Judgments in both the relevant
applications for leave to appeal and the section 18(3) application
were handed
down on the 6 February 2026.
5.
In the result, I granted both respondents leave to appeal the
spoliation judgment on various grounds.
In a separate judgment also
handed down on 6 February 2026, I refused the applicant relief under
section 18(3) of the Act and dismissed
such application. The refusal
of the 18(3) relief under the Act is the subject of the present
application for leave to appeal.
6.
The applicant now seeks leave to appeal the dismissal of the
application for relief under section 18(3)
in terms of section
17(1)(a)(i) of the Act. The applicant seeks leave to appeal to the
full Bench of this Division. The applicant
does not rely on the
provisions of section 17(1)(a)(ii) of the Act.
7.
The substantive grounds of appeal upon which the applicant relies are
set out in their Notice of Application
for leave to appeal as
follows:
7.1 The court
a quo
ought to have found and erred in not finding that:
7.1.1
The life of the mining area as opposed to the mine, and in respect of
which mining area the
Applicant sought to assert its liens, is 30
months. The life of the mine, 10 years, is not relevant to the liens
that the Applicant
sought to assert.
7.1.2
Given the life of the mining area, the mining of ore in the mining
area would, by the time that
the appeals of the Respondents are
finalised, result in the loss of the liens and the security afforded
thereby, being the leverage
correctly identified by the learned
Judge.
7.1.3
The Applicant sought restoration of possession in order to assert its
liens and the leverage
afforded thereby. It was such possession for
such purpose that was restored to the Applicant in terms of the Order
granted by the
learned Judge on the 1
st
November 2024.
7.1.4
The loss of the liens and the leverage in respect thereof as a result
of the mining of ore results
in the loss of the remedy that was
afforded to the Applicant in terms of the Order granted on the 1
st
November 2024.
7.1.5
The loss of the remedy in respect of the Order granted on the 1
st
November 2024 and the leverage afforded by the liens is absolute.
Once the liens and the leverage afforded thereby is lost, there
is no
replacement for the remedy. Whilst the Second Respondent is facing
winding-up proceedings, the applicant is left remediless
and thereby
its harm is irreparable.
7.1.6
Whilst the harm to the Applicant is irreparable, there is no
irreparable harm to the Second
Respondent as the Second Respondent is
able to mine ore elsewhere which includes the mine (as opposed to the
mining area) and Deeps
and Swartberg.
7.1.7
The prospect of success of the First and Second Respondents in their
appeals did not militate
against granting the Applicant the relief
sought by it in terms of the section 18(3) application.
7.1.8
The learned Judge ought to have granted the section 18(3)
application, with costs, and erred
in not doing so.
8
The
substantive requirements of what needs to be established to be
granted the necessary leave to appeal is now set out in s 17(1)
of
the Superior Courts Act
[2]
, the
relevant provisions of which read as follows:
“
17(1)
Leave to appeal may only be given where the judge or judges concerned
are
of the opinion that-
(a)
(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;
(b)
The decision sought on appeal does not fall within the
ambit of s
16(2)(a); and …”
9.
Having
regard to the change from ‘could’ to ‘would’
brought about by section 17(1)(a)(i) of the Act,
there existed some
differing approaches on how ‘reasonable prospects of success’
would be determined. Such controversy
as might have existed appears
to have been settled in the case of RAMAKATSA & OTHERS v AFRICAN
NATIONAL CONGRESS & ANOTHER
[3]
,
where Dlodlo JA set out the position as follows:
“…
The
test for reasonable prospects of success postulates 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 other words, the appellants in this matter
need to convince
this Court on proper grounds that they have prospects of success on
appeal. Those prospects of success must not
be remote, but there must
exist a reasonable chance of succeeding. A sound rational basis for
the conclusion that there are prospects
of success must be shown to
exist.”
[4]
(references
omitted)
10.
Mr Symon SC
appeared for the applicant in this application for leave to appeal.
Mr Symon argued on behalf of the applicant that:
In contrast to what
the second respondent asserts, a lien does have value; Reference was
made to section 83(11) of the Insolvency
Act
[5]
,
which authorised a trustee of an insolvent estate to take possession
of
inter
alia
an
immoveable property where the possessor exercised a right of
retention against the insolvent; The possessor who exercised a
right
of retention over the relevant immoveable property was obliged in
terms of the said section of the Insolvency Act to surrender
the
relevant property to the trustee subject to the holder of the right
of retention placing a value on his security; The court
was also
referred to the matter of KAHAN NO v HYDRO HOLDINGS (PTY) LTD
[6]
where the said section of the Insolvency Act was applied; Then the
argument proceeded that in the founding papers in the spoliation
application, the financial wellbeing and standing of the second
respondent was called into question; Instead of providing evidence
to
refute the contentions relating to the financial wellbeing of the
second respondent, the second respondent merely provided vague
assurances and conclusions without evidence relating to its financial
wellbeing; It was argued that the evidence that mattered
in this
context was the audited financial statements of the second
respondent; These audited financial statements were not put
into
evidence; It was further argued that the claims the applicant and
second respondent assert against each other are for huge
amounts that
run into billions of Rands; and In this context, it was submitted
that the court
a
quo’s
judgment in the section 18(3) application forced the applicant to
give up a real right, which the enrichment lien was, in return
for a
spes
that it can execute against the mine during its estimated economic
lifespan should it succeed in an enrichment claim against the
second
respondent.
11. The
debtor-and-creditor lien is not referred to in the argument because
the second respondent has furnished security in the
amount of R28
million in respect of this claim.
12. The import of this
argument raised by the applicant is that the loss of the real right,
constituted by the enrichment lien,
formed the basis of both the
exceptional circumstances and the irreparable harm in the context of
section 18(3) of the Act. That,
given the circumstances, another
court would come to a different conclusion than the court
a quo
.
13.
Mr La
Grange SC, who appeared for the second respondent herein, responded
to the above argument as follows: The irreparable harm
that applicant
originally contended had a narrow compass; The applicant has
broadened this substantially in its oral argument;
It was argued that
in the founding papers in the spoliation application, there was
simply a terse reference to the winding-up application
brought by the
applicant itself; It was contended that this winding-up application
constituted an abuse of the process of this
court; In this context it
was submitted that there was no
prima
facie
case relating to the second respondents financial wellbeing that the
second respondent was required to meet; Second respondent
drew the
courts attention to the fact that it could not simply mine elsewhere
and avoid the portion of the mine covered by the
lien, as it was
bound to the mining plan and was answerable under the MPRDA if it did
not adhere to the mining plan; This formed
part of the irreparable
harm that second respondent would suffer if relief was granted to the
applicant under section 18(3); It
was pointed out that the basis for
the applicants application and the submissions made on its behalf
related to the issues around
the depletion of the lien by virtue of
the ore underneath that area of the mine being mined out; It was
argued that a lien simply
gives a defence to a property owners claim,
it does not give the lien holder a cause of action against the
property owner or the
property over which the lien is exercised; The
lien itself has no independent or inherent value; There is no
correlation between
the value of the lien holder’s underlying
claims and the value of the property subject to such right of
retention; The court
was referred to the case of ROUX EN ANDERE v VAN
RENSBURG NO
[7]
, which dealt with
the KAHAN case; It was submitted that both of the said cases did not
support the aforesaid correlation; The court
had to find the
aforementioned correlation in order for the applicant to establish
applicant’s irreparable harm; The value
of the property subject
to the lien is irrelevant; and the applicant, on these grounds had no
reasonable prospect of success.
14. Mr Symon replied to
this that he accepts that a lien is a shield and is not a cause of
action, but that the second respondent’s
submissions were far
removed from commercial reality.
15. I understood from Mr
Symon’s reply that if the property subject to the lien had no
value it would have no effect or compulsion
on the said debtor to pay
his debt and clear his property from the right of retention. That in
effect the right of retention would
have no practical use in
circumstances where the property subject to the right of retention
had no value. In those circumstances
the right of retention would
afford no actual security.
16. After considering the
arguments from both the applicant and the second respondent in this
matter, it is clear to me that in
the section 18(3) application, I
did not consider the factor that the applicant would lose a ‘real’
right which the
judgment in the section 18(3) application held would
be adequately compensated by the hope of executing any enrichment
found to
be payable to applicant against the mine itself during its
expected lifespan. Another court might find that this constitutes
both
‘exceptional circumstances’ and ‘irreparable
harm’ in the context of section 18(1) as read with section
18(3) of the Act.
17. In the circumstances,
I must find that the applicant has established a sound rational basis
to show that there are prospects
of success on appeal. Accordingly, I
must grant leave to appeal.
18. The next question is
to which court the appeal should be referred. Mr Symon submitted that
the matter is principally an issue
of fact and, accordingly, it
should be referred to the full Bench of this division. Mr La Grange,
on the other hand, submitted
that the SCA is already involved in the
appeal in respect of the related spoliation matter. Furthermore,
there are novel issues
that warrant the SCA's attention. In my view,
Mr La Grange is correct, and the applicant will be granted leave to
appeal to the
SCA.
19. The last issue is the
issue of costs. Both Mr Symon and Mr La Grange agreed that if leave
to appeal is granted, costs should
be costs in the appeal. That is
indeed the order that will be made in this case.
20.
In the circumstances, the following order is made:
1)
Leave is granted to the applicant to appeal to the Supreme Court of
Appeal in respect of the section 18(3)
judgment herein.
2)
The costs of this application for leave to appeal will be costs in
the appeal.
L.G. LEVER
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION,
KIMBERLEY
Appearances
For
the applicant:
Adv S Symon (SC) & Adv L Hollander
Instructed
by:
Van De Wall Inc.
For
the respondent: Adv W
La Grange (SC) & Adv D Hodge
Instructed
by:
Duncan &
Rothman Inc.
Judgment
Heard:
01 June 2026
Judgment
Delivered: 05 June 2026
[1]
Act 10 of 2013.
[2]
Act 10 of 2013.
[3]
RAMAKATSA & OTHERS v AFRICAN NATIONAL CONGRESS & ANOTHER
(Case No: 724/2019)[2021] ZASCA 31 (31 March 2021).
[4]
Ramakatsa case above., para [10].
[5]
Act 24 of 1936.
[6]
1980 (3) SA 511 (TPD).
[7]
[1996] ZASCA 54
;
1996 (4) SA 271
(AD).