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[2026] ZAGPPHC 655
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Marico Chrome Corporation (Pty) Ltd and Others v Bahurutse Boo Manyana Traditional Community (Leave to Appeal) (2026-068596) [2026] ZAGPPHC 655 (2 July 2026)
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IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case
No. 2026-068596
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3) REVISED
DATE:
2 July
2026
SIGNATURE:
In
the matter between:
MARICO
CHROME CORPORATION (PTY) LTD
FIRST
APPLICANT
THEODORE
WILHELM VAN DEN HEEVER N.O.
(IN
HIS PURPORTED CAPACITY AS A RECEIVER OF MARICO CHROME)
SECOND
APPLICANT
KGASHANE
CHRISTOPHER MONYELA N.O.
(IN
HIS PURPORTED CAPACITY AS A RECEIVER OF MARICO CHROME)
THIRD
APPLICANT
OLCKERS
CHOPOLOGE KOIKANYANG N.O.
(IN
HIS PURPORTED CAPACITY AS A RECEIVER OF MARICO CHROME)
FOURTH
APPLICANT
and
BAHURUTSE
BOO MANYANA TRADITIONAL COMMUNITY
RESPONDENT
In
re:
In
the matter between:
BAHURUTSE
BOO MANYANA TRADITIONAL COMMUNITY
APPLICANT
And
MARICO
CHROME CORPORATION (PTY) LTD
FIRST
RESPONDENT
THEODORE
WILHELM VAN DEN HEEVER N.O.
(IN
HIS PURPORTED CAPACITY AS A RECEIVER OF MARICO CHROME)
SECOND
RESPONDENT
KGASHANE
CHRISTOPHER MONYELA N.O.
(IN
HIS PURPORTED CAPACITY AS A RECEIVER OF MARICO CHROME)
THIRD
RESPONDENT
OLCKERS
CHOPOLOGE KOIKANYANG N.O.
(IN
HIS PURPORTED CAPACITY AS A RECEIVER OF MARICO CHROME)
FOURTH
RESPONDENT
SAMANCOR
CHROME LIMITED
FIFTH
RESPONDENT
VEREENIGING
REFRACTORIES (PTY) LTD
SIXTH
RESPONDENT
COMPANIES
AND INTELLECTUAL PROPERTY OFFICE
SEVENTH
RESPONDENT
MASTER
OF THE HIGH COURT
EIGHTH
RESPONDENT
DIRECTOR-GENERAL:
DEPARTMENT OF MINERAL RESOURCES
NINTH
RESPONDENT
Coram:
Millar
J
Heard
on:
29
June 2026
Delivered:
2
July 2026 - This judgment was handed down electronically by
circulation to the parties' representatives by email,
by being
uploaded to the
CaseLines
system
of the GD and by release to SAFLII. The date and time for
hand-down is deemed to be 09H30 on 2 July 2026.
JUDGMENT –
LEAVE TO APPEAL
MILLAR J
[1]
On 28 May 2026, this Court granted various
orders in favour of the Bahurutse Boo Manyana Traditional Community
against Marico Chrome
and the second to fourth respondents. The
parties will be referred to as the Community (the respondent in the
application for leave
to appeal) and Marico Chrome and the second to
fourth respondents as the Receivers (the applicants in the present
application).
[2]
The application for leave to appeal has
been brought on two broad grounds. I do not intend to deal with
each specific ground
but rather thematically. The first that a
receivership can outlive the compromise that created it and the
second that the
Community and Mr. Mangope (as a member of that
Community) were not the Tribal Council and had no locus to bring the
application.
THE FIRST GROUND -
THAT A RECEIVERSHIP CAN OUTLIVE THE COMPROMISE THAT CREATED IT.
[3]
The first ground was that the Court order
sanctioning the scheme of arrangement conferred authority upon the
Receivers, quite aside
from the operation of the law, to maintain
control of Marico Chrome until the scheme had been realized in full.
In the judgment,
this argument was dealt with. The notification
by the Receivers to the Master of the High Court that Marico Chrome
was solvent
and had been revested with all its assets and all costs
of the provisional liquidation had been paid, resulted in their
discharge
as provisional liquidators.
[4]
While it may have been arguable that
qua
provisional liquidators, they were obligated and entitled to see
through the compromise to its end, this obligation does not survive
their release as provisional liquidators. Companies may find
themselves in three states – solvent (where they are controlled
by a board of directors), insolvent (where they are controlled by
liquidators) and in business rescue (
de
facto
insolvent but controlled by a
business rescue practitioner in the hope that they can be restored to
solvency). There is no
state of receivership for South African
companies. The law simply does not recognise this.
[5]
Marico Chrome was placed into provisional
liquidation. While in provisional liquidation, the Receivers,
as provisional liquidators
controlled it. In this capacity,
they entered the scheme of arrangement – an arrangement which
pre-supposed the continuation
of the provisional liquidation until
such time as it became solvent. This occurred. There is
no provision in the Companies
Act which recognises the office of
“Receiver” and a Court endorsed scheme of arrangement
(entered for the sole benefit
of the creditors and shareholders of
the company) could now create a new regulatory regime which excluded
certain shareholders
and operated for the benefit of others.
[6]
In the present matter, the basis for
remaining
in
situ,
on
the part of the Receivers, is their obligation to satisfy the
shareholder loans of the shareholders other than the Community.
Once the Receivers represented to the Master that the company was
solvent, their role ended. It is a matter of common sense
that
if the company was solvent, it was able to pay all its liabilities
which would have included shareholder loans or other obligations
that
had not yet been discharged. The representation to the Master
would have been reckless and in breach of their duties
as provisional
liquidators were it otherwise.
[7]
There are elements of this case which are
disquieting. The continuation of the provisional liquidators as
Receivers, remunerating
themselves as though they were provisional
liquidators is one of the elements.
[8]
The second is that the financial
statements, which have been produced, do not accurately represent
that Marico Chrome is in fact
a solvent and trading entity.
[9]
The third is that the auditors, who
prepared the financial statements, seem unaware of the basis upon
which Marico Chrome exists
– still reflecting it in the
financial statements that they have prepared as being
“
in
liquidation”.
This is years
after the provisional liquidation order was discharged. These
are all matters which a properly constituted board
of directors would
no doubt apply their minds to.
THE
SECOND GROUND - THAT THE COMMUNITY AND MR. MANGOPE (AS A MEMBER OF
THAT COMMUNITY) WERE NOT THE TRIBAL COUNCIL AND HAD NO LOCUS
TO BRING
THE APPLICATION.
[10]
The second ground was that the Court had
found that the Community was the shareholder in Marico Chrome and
that Mr. Mangope had
locus
to bring the application. The Receivers seek to draw a
distinction between the Tribal Council and the Community and contend
that it is the Tribal Council who have
locus
.
[11]
One need look no further than the original
shareholders agreement relating to Marico Chrome to dispose of the
submission that the
Community is not a shareholder.
[12]
In the shareholders agreement, the
shareholders are defined as
“
Samancor,
Verref and the Ba-Hurutshe”.
It
also defines
“
Ba-Hurutshe”
as
“
the Ba-Hurutshe Boo Manyana
Tribe, the owner of the property,
represented
herein by the Traditional Council.”
Lastly,
“
Ba-Hurutshe Shares”
are
defined as
“
the shares issued to
the Ba-Hurutshe constituting 15% of the shares in the issued share
capital of the Company.”
[13]
There can be no doubt that the shareholding
in Marico Chrome is held by the Community. While it may have
been represented
by the Tribal Council in the conclusion of the
agreement and subsequently, this does not elevate the Tribal Council
to ownership
in the shares or the status of shareholder.
[14]
The Community was and remains the
shareholder and it is on this basis that it was found that Mr.
Mangope
qua
member
of the Community (even though he was authorised to the litigation by
the Resolution of 24 May 2022) had locus to bring the
proceedings.
[15]
The
test to be applied in considering whether leave to appeal should be
granted is set out in s 17(1)
[1]
of the Superior Courts Act. It is trite that the test is
whether the appeal “
would
have a reasonable prospect of success”
or
that there is
“
some
other compelling reason”.
[16]
I have considered the grounds upon which
this application for leave to appeal has been brought against the
judgment granted on 28
May 2026, together with the heads of argument
filed by the parties and the submissions made on their behalf in
Court.
[17]
I am not persuaded that another Court would
come to a different conclusion or that there is a compelling reason
for leave to appeal
to be granted. In the circumstances, leave
to appeal will be refused.
[18]
Costs will follow the result. There
is no reason that the costs order should not be in the same terms as
granted in the main
application.
[19]
In the circumstances, it is ordered that:
[19.1]
The application for leave to appeal is
dismissed.
[19.2]
The Second, Third and Fourth Applicants will pay the costs of this
application,
jointly and severally, one paying the others to be
absolved on the scale as between attorney and client which costs are
to include
the costs consequent upon the engagement of two counsel,
one of whom is senior counsel (where so engaged) on scale C.
A MILLAR
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
HEARD
ON:
29
JUNE 2026
JUDGMENT DELIVERED
ON:
2
JULY 2026
APPLICANTS FOR
LEAVE TO APPEAL
COUNSEL FOR
APPLICANTS:
ADV. E THERON SC
INSTRUCTED BY:
DE VRIES INCORPORATED
REFERENCE:
MR. A BONNET
RESPONDENT IN
LEAVE TO APPEAL
COUNSEL:
ADV. G ROME SC
ADV.
R MAKOANYANA
INSTRUCTED BY:
THOMSON WILKS INC
REFERENCE:
MR. T KGAOBOESELE
[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;”