IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: ¥Ee/NO
(2) OF INTEREST TO OTHER JUDGES: ¥ES/NO
(3) REVISED
DATE: 2 JULY 2026
SIGNATURE:
Case No. 2026-068596
In the matter between:
BAHURUTSE BOO MANYANA TRADITIONAL
COMMUNITY
And
MARICO CHROME CORPORATION {PTY) LTD
THEODORE WILHELM VAN DEN HEEVER N.O.
{IN HIS PURPORTED CAPACITY AS A
RECEIVER OF MARICO CHROME)
KGASHANE CHRISTOPHER MONYELA N.O.
(IN HIS PURPORTED CAPACITY AS A
RECEIVER OF MARICO CHROME)
OLCKERS CHOPOLOGE KOIKANYANG N.O.
(IN HIS PURPORTED CAPACITY AS A
RECEIVER OF MARICO CHROME)
SAMANCOR CHROME LIMITED
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
VEREENIGING REFRACTORIES (PTY) LTD
COMPANIES AND INTELLECTUAL PROPERTY
OFFICE
MASTER OF THE HIGH COURT
DIRECTOR-GENERAL : DEPARTMENT OF
MINERAL RESOURCES
Coram: Millar J
Heard on: 29 June 2026
2
SIXTH RESPONDENT
SEVENTH RESPONDENT
EIGHTH RESPONDENT
NINTH RESPONDENT
Delivered: 2 July 2026 - This judgment was handed down electron ically by
circulation to the parties' representatives by email, by being uploaded
to the CaseLines system of the GD and by rblease to SAFLII. The
date and time for hand-down is deemed to be 1 0h00 on 2 July 2026.
JUDGMENT - SECTION 18(3) APPLICATION
MILLAR J
I ntrod u ct ion
[1] On 29 June 2026, I heard an application for leave to appeal against a
judgment and order handed down on 28 May 2026 togethbr with an application
in terms of section 18(3) of the Superior Courts Act1 (the Act). I also heard an
application for intervention.
1 10of2013 .
3
[2] At the conclusion of the hearing, I indicated that separate judgments would be
handed down in respect of each of the three separate applications.
[3] Today, on 2 July 2026, all three judgments are being handed down. The
sequence of the handing down of the judgments is firstly, in respect of the
application for intervention. Secondly, in the application for leave to appeal
and lastly, the present section 18(3) judgment. Both the application for
intervention and the application for leave to appeal have been dismissed with
costs as set out in the respel tive judgments.
[4]
[5]
In this judgment, the Appli~ant is referred to as the Community and the
Second, Third and Fourth Ri spondents as the Receivers.
The order granted on 28 May 2026, was as follows:
"[34.1]
{34.2]
{34.3]
{34.4]
{34.5]
The forms and service provided for in the Uniform Rules of Court
(Rules) are dispensed with and the matter is permitted to be heard
as one of urJency in terms of Rule 6(12). The Applicant's non
compliance wr the rules is condoned.
The authority of the Second, Third and Fourth Respondents to act
as receivers J the First Respondent has been terminated.
I
The order of this Court dated 9 June 2020, under case number
23881/2020 has been terminated by virtue of the discharge of the
provisional liq&idation order of the First Respondent.
The control aL management of the First Respondent has reverted
to its lawful corporate organs subject to and in accordance with the
provisions of the Companies Act 71 of 2008.
The Applicant and the Fifth and Sixth Respondents, as the
shareholders of the First Respondent, forthwith and in accordance
with the shaieholders agreement of July 2011, in the First
[34.6)
[34. 7)
[34.8)
[34.9)
[34.10)
4
Respondent, duly nominate and procure the appointment of their
respective directors of the First Respondent and undertake to take
all reasonably necessary steps to restore lawful corporate
governance in respect of the First Respondent.
The Second, Third and Fourth Respondents, within 7 (seven) days
of this order, are to deliver to the shareholders and directors of the
First Respondent all books, records, accounting documents,
contracts, operational information, bank records, keys, access
credentials, statutory records, and assets of the First Respondent
in their possession or under their control.
The Second, Third and Fourth Respondents are interdicted and
restrained from holding themselves out as authorised to act on
behalf of the First Respondent, save insofar as may be strictly
necessary to give effect to this order.
The Second, Third and Fourth Respondents will render a full written
account, within 14 (fourteen) days of this order, of all actions taken
by them in relation to the business, assets, affairs and finances of
the First Respondent from 22 September 2023 to date.
It is declared that any person acting through or under the authority
of the Second, Third and Fourth Respondents in purported
continuation of the receivership of the First Respondent after 22
September 2023 being the discharge of the winding up of the First
Respondent, has acted without lawful authority.
The Seventh Respondent, only to the extent necessary, gives effect
to this order, to correct anf or update the public records relating to
the First Respondent to reflect the legal consequences of the relief
granted by this Court.
[34.11]
Present application
5
The Second, Third and Fourth Respondents 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".
[6]. In the present application brought in terms of section 18(3)2, the Community
is required to demonstrate firstly, exceptional circumstances which justify the
execution of the order pending any appeal, secondly that they will suffer
irreparable harm if it is not executed, and thirdly that the Receivers will not be
irreparably harmed if the order is executed. 3
[7] The consideration of these three factors is through the lens of the prospects
of success of the prospective pending appeal.4 Furthermore, in considering
each of the factors, these are not to be considered in isolation but holistically
having regard to the entirety of the case.5
2 "1-8 Suspension of decision pending appea l
(1) Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders
otherwise, the operation and execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.
(2) Subject to subsection (3), unless the court under exceptional circumstances orders otherwise,
the operation and execution of a decision that is an interlocutory order not having the effect of a
final judgment , which is the subject of an application for leave to appeal or of an appeal, is not
suspended pending the decision of the application or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied
to the court to order otherwise, in addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does not so order and that the other party will not suffer
irreparable harm if the court so orders.
(4) If a court orders otherwise, as contemplated in subsection (1)
(i) the court must immediately record its reasons for doing so
(ii) the aggrieved party has an automatic right of appeal to the next highest court
(iii)the court hearing such an appeal must deal with it as a matter of extreme urgency and(iv)
such order will be automatically suspended , pending the outcome of such appeal.
For the purposes of subsections (1) and (2), a decision becomes the subject of an application for
leave to appeal or of an appeal, as soon as an applica tion for leave to appeal or a notice of appeal
is lodged with the registrar in terms of the rules. "
3 lncubeta Holdings (Ply) Ltd v Ellis 2014 (3) SA 189 (GJ) at para (16].
4 See Democratic Alliance and Others v Premier for the Province of Gauteng and Others (18577/20)
[2020] ZAGPPHC 330 (10 June 2020) paragraphs [11] - (13].
5 Tyte Security Services CC v Western Cape Provincial Government and Others 2024 (6) SA 175
(SCA) at paras (1 0] and (14].
6
Are there exceptional circumstances?
[8] The first stage of the enquiry, whether "exceptional circumstances" are
present depends on the peculiar facts of each case. 6 The exceptional
circumstances must be derived from the actual predicaments in which the
litigants find themselves.
[9] This matter is concerned with the governance of a company, Marico Chrome,
in which the Community is a shareholder. It holds 15% of the shares. Since
2016, when Marico Chrome was first placed in provisional liquidation, the
Community has had no say whatsoever in the management or affairs of
Marico Chrome.
(1 O] While under provisional liquidation, these were attended to by the Receivers
in their capacity as provisional liquidators and after their discharge as
provisional liquidators, by them. The purported capacity from that date was
as "Receivers".
(11] What is at stake in the present matter is the proper and lawful governance of
Marico Chrome. The right to this is self-evident and does not arise or reside in
either the order granted in the main application or through a "shareholder of a
shareholder" as the Receivers contend. The Community is the shareholder,
and this is apparent from the shareholders agreement. In this regard,
repeating what was stated in the judgment refusing leave to appeal:
"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."
6 University of the Free State v Afriforum 2018 (3) SA 428 (SCA).
7
"There can be no doubt that the shareholding in Marica 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."
[12] Additionally, the time for which the suspension of the order is likely to occur is
of necessity a factor to be considered.7 In the present instance, although the
original debts for which Marica Chrome was placed in provisional liquidation
amounted to some R74million, within two years of the sanctioning of the
scheme, those debts were paid in full together with all the costs of the
provisional liquidation. Since then, although the Receivers contend that the
last tranche of the scheme, the shareholder loans for certain shareholders are
outstanding, the Receivers have been paid some R68million in fees in
circumstances where they are neither directors nor liquidators.
[13] It was argued for the Community that the conduct of the Receivers in the way
they have run the affairs of Marica Chrome is also an exceptional
circumstance. They point to specific operational aspects. I need not go into
those - the fact that they are not lawfully entitled to deal with the affairs of
Marica Chrome is enough.
[14] Furthermore, the continued misstatement of the financial statements of Marica
Chrome as being in respect of a company in liquidation is to my mind
sufficiently exceptional on its own to warrant finding the existence of
exceptional circumstances.
[15] The default position in this matter is the suspension of the order granted. It
was argued for the Receivers that the finding of the court cannot on its own
be an exceptional circumstance. I agree. It is not the order but the facts which
were before the court, and which underpin the order that give rise to the
exceptional circumstances. By way of example - if an interdict is granted to
exceptional circumstances. By way of example - if an interdict is granted to
prevent harm to a person, it does not follow that if leave to appeal the interdict
7 Car Find (Pty) Ltd v Car Trader (Pty) Ltd 2016 JDR 0314 (GJ).
8
is granted that the person is obliged to submit to further harm while the appeal
is pending.
[16] If the default is an illegality which would continue then that militates in favour
of a finding that there are exceptional circumstances to consider granting the
execution order in this matter.8
[17] In lncubeta Holdings (Pty) Ltd v Ellis, 9 it was stated that:
"[27) In my view the predicament of being left with no relief, regardless of
the outcome of an appeal, constitutes exceptional circumstances
which warrant consideration of putting the order into operation. The
forfeiture of substantive relief because of procedural delays, even if
not protracted in bad faith by a litigant, ought to be sufficient to cross
the threshold of 'exceptional circumstances.'
[28) The plight of the victor alone is probably all that is required to pass
muster. Nonetheless, I am not unconscious of the undesirable
outcome that relief granted by the court becomes a vacuous gesture.
A court order ought not be to be lightly allowed to evaporate, a fate,
which seems to me, would tend to undermine the role of courts in the
ordering of social relations. "
[18] The Community is a shareholder. It is entitled to appoint directors to the board
and to be represented in decisions affecting Marico Chrome. The Community
has a judgment in its favour for the enforcement of the rights that accrue by
virtue of its shareholding. If the judgment is not put into operation, then it will
be nothing more than the "vacuous gesture" posited in lncubeta.
[19] For the reasons set out above, I find that there are exceptional circumstances.
Is there irreparable harm to the Community?
8 Colgate-Palmolive (Pty) Ltd v Glaxosmithkline Consumer Healthcare South Africa (Pty) Ltd 2019
JDR 1062 (GP) at paras [49]-[53]. Bahurutshe Boo Manyana Traditional Community and Another v
MNTK Enterprise (Pty) Ltd and Others 2026 JDR 1169 (GP).
9 lncubeta supra at paras [27] - [28].
9
[20] The second stage of the enquiry is regarding whether there is irreparable harm
to the Community. In this regard, the Community points to the conduct of the
Receivers over the period since the discharge of the provisional liquidation
order.
[21] It was argued on behalf of the Community that there are two separate basis
that it will be irreparably harmed if execution of the order granted in the main
case is suspended.
[22] The first is what was described as the "harm of continued unlawful governance."
If execution is refused and the order in the main case suspended pending an
appeal, Marica Chrome will continue to be run for the duration of the appeal
process by persons who are neither directors nor liquidators. Furthermore,
the very state of Marica Chrome will remain obfuscated through the lack of a
statutory framework peculiar to the rights and obligations of Receivers
together with financial statements that materially mis-state that Marica
Chrome is in liquidation when it is in fact not. The Community is a shareholder
and is entitled to be represented on the board and to take part in the
management of Marica Chrome.
[23] The second, is that it cannot be lost on the Receivers or the other shareholders
for that matter, that almost the entirety of the underlying reason for the
existence and viability of Marica Chrome is the very asset which belongs to
the Community. Its interest is not limited simply to the royalty payments which
have indeed been paid. These are a very small part of the total value of Marica
Chrome.
[24] The Receivers have operated the business since their discharge as
provisional liquidators for the sole benefit of the shareholders who still have
outstanding loans to the exclusion of the Community. The chrome is a finite
resource, and it does not assist the Community to be excluded from a say and
benefit from the entire value chain for so long as the Receivers remain in situ,
acting for the benefit of only certain shareholders.
10
[25] I am, for the reasons set out above, persuaded that the Community has
established that it would suffer irreparable harm.
Is there irreparable harm to the Receivers?
[26] The third stage of the enquiry is whether there is irreparable harm to the
Receivers if the order granted on 28 May 2026 is implemented. · The harm
must arise out of the implementation of the order.10
[27] On this score, the Receivers assert disruption to operations were the order to
be implemented. Accepting that the Receivers are professional persons, who
if ordered to do so would act in good faith to ensure an orderly handover in
the best interests of Marica Chrome, it is unfathomable that there could be any
irreparable harm to Marica Chrome.
[28] The Receivers are not Marico Chrome. They are not its shareholders, nor its
directors or its liquidators. They are performing a function for which they are
remunerated. If their advice to the Master is accepted that Mari co Chrome is
solvent, then they like any creditor, insofar as there may be any outstanding
costs which are lawfully due to them, can claim those costs. Even on their
own version, their claimed status prefers no preference on them in respect of
any payment.
[29] If the Receivers are granted leave to appeal and succeed with that appeal, the
only harm that they may have suffered would be the loss of remuneration in
respect of services (which they would not have rendered). Insofar as it may
possibly ultimately be found that they were entitled to act as they were, any
loss which they could demonstrate could be compensable.
10 Ntlemeza v Helen Suzman Foundation 2017 (5) SA 402 (SCA) at para [28].
11
[30] For the reasons set above, I am not persuaded that the Receivers would suffer
irreparable harm.
[31] I find that the Community have established exceptional circumstances and
that they would suffer irreparable harm if the order sought in terms of section
18(3) is not granted. I also find that the Receivers have failed to establish that
they will suffer irreparable harm if the order is granted. For these reasons, I
intend to grant the order below.
Costs
[32] Costs will follow the result. Both parties engaged two counsel and were ad
idem that if costs were to be awarded in respect of counsels' costs, these were
to be on scale C.
Order
[33] In the circumstances, it is ordered:
[33.1] Pending the final determination of any application for leave to
appeal, and of any appeal or further appeal that may be
prosecuted by the second to fourth respondents, the operation and
execution of the order granted by this Court on 28 May 2026 shall
not be suspended.
[33.2] The applicant is granted leave, in terms of s 18 of the Superior
Courts Act 10 of 2013, to execute and enforce the following
operative parts of the order granted on 28 May 2026 pending the
final determination of any application for leave to appeal, appeal
or further appeal:
12
[33.2.1] paragraph 34.2, declaring that the authority of the
Second, Third and Fourth Respondents to act as
receivers of the First Respondent has been terminated;
[33.2.2] paragraph 34.3, declaring that the order of this Court
dated 9 June 2020, under case number 23881/2020,
has been terminated by virtue of the discharge of the
provisional liquidation order of the First Respondent;
[33.2.3] paragraph 34.4, declaring that the control and
management of the First Respondent has reverted to
its lawful corporate organs, subject to and in
accordance with the provisions of the Companies Act
71 of 2008;
[33.2.4] paragraph 34.5, directing the Applicant and Fifth and
Sixth Respondents, as shareholders of the First
Respondent, forthwith and in accordance with the
shareholders agreement of July 2011, to nominate and
procure the appointment of their respective directors of
the First Respondent and to take all reasonably
necessary steps to restore lawful corporate governance
in respect of the First Respondent.
[33.2.5] paragraph 34.6, directing the Second, Third and Fourth
Respondents, within 7 days of the order, to deliver to
the shareholders and directors of the First Respondent
all books, records, accounting documents, contracts,
operational information, bank records, keys, access
credentials, statutory records and assets of the First
Respondent in their possession or under their control;
13
[33.2.6] paragraph 34.7, interdicting and restraining the
Second, Third and Fourth Respondents from holding
themselves out as authorised to act on behalf of the
First Respondent, save insofar as may be strictly
necessary to give effect to the order;
[33.2.7] paragraph 34.8, directing the Second, Third and Fourth
Respondents to render a full written account, within 14
days of the order, of all actions taken by them in relation
to the business, assets, affairs and finances of the First
Respondent from 22 September 2023 to date;
[33.2.8] paragraph 34.9, declaring that any person acting
through or under the authority of the Second, Third and
Fourth Respondents in purported continuation of the
receivership of the First Respondent after 22
September 2023 has acted without lawful authority;
(33.2.9] paragraph 34.10, directing the Seventh Respondent, to
extent necessary , to give effect to the order and to
correct and/or update the public records relating to the
First Respondent to reflect the legal consequences of
the orders granted by this Court.
[33.3] The Second, Third and Fourth Respondents, are directed to pay the
costs of this application jointly and severally, the one paying the
others to be absolved on the scale as between party and party which
costs are to include the costs consequent upon the engagement of
two counsel, one of whom is senior counsel, where so employed, on
scale C.
A MILLAR
JUDGE OF THE HIGH COURT
HEARD ON:
JUDGMENT DELIVERED ON:
APPLICANT IN THE S 18(3) APPLICATION
COUNSE L:
INSTRUCTED BY:
REFERENCE:
14
GAUTENG DIVISION, PRETORIA
29 JUNE 2026
2 JULY 2026
ADV. G ROME SC
ADV. R MAKOANYANA
THOMSON WILKS INC
MR. T KGAOBOESELE
RESPONDENT IN THE S 18(3) APPLICATION
COUNSEL:
INSTRUCTED BY:
REFERENCE :
ADV. E THERON SC
DE VRIES INCORPORATED
MR. A BONNET