IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION: JOHANNESBURG
CASE NO: 2026-044509
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES:
YES / NO
(3) REVISED: YES / NO
19 June 2026
DATE
SIGNATURE
In the application:
PLANTCOR MINING AND PLANT HIRE (PTY) LTD Applicant
and
HORIZON CHROME MINE (PTY) LTD First respondent
[in business rescue]
(Reg. no. 2015/057037/07)
PEMA; JAYANT DAJI Second respondent
CASSIM; ZAHEER Third respondent
THE COMPANIES AND INTELLECTUAL PROPERTIES COMMISSION Fourth respondent
ALL AFFECTED PERSONS Fifth respondent
BRIGHT MINERALS SA (PTY) LTD First intervening party / sixth respondent
NATIONAL UNION OF MINEWORKERS Second intervening party / seventh respondent
JUDGMENT
[2]
AMM, AJ
A. Introduction
[1] This application was called before me, and accommodated, in the Dedicated Insolvency
Motion Court on its urgent roll. There are many parts to this application. They include the
main application by Plantcor Mining and Plant Hire (Pty) Ltd (‘Plantcor’) for urgent interim
interdictory relief, and two intervention applications.
[2] Horizon Chrome Mine (Pty) Ltd [in business rescue] (‘Horizon’) is the first respondent.
Horizon’s two business rescue practitioners are the second and third respondent s (‘the
practitioners’).
[3] In its application, Plantcor seeks relief, in the main and in broad terms, interdicting the
implementation of the outcome of a 2 February 2026 creditors’ vote in Horizon’s business
rescue. The second intervening party, being National Union of Mineworkers (‘NUM’) joins
cause with Plantcor. It seeks to leave intervene in Plantcor’s application in order to
support Plantcor, and protect the interests of its members.
[4] Horizon and the practitioners vigorously oppose Plantcor’s application. The first
intervening party , being Bright Minerals SA (Pty) Ltd (‘Bright Minerals’) stands with
Horizon and the practitioners . Bright Minerals seeks to leave intervene in Plantcor’s
application in support of their opposition to Plantcor’s application,
[5] When the dust and smoke that ordinarily occupies a complex and voluminous application
such as this settles, it becomes apparent that the central disputes in Plantcor’s application
reside at the intersection of two parallel processes. The first concerns the pending
‘adjudication’ (actually expert determination0F
1) of Plantcor's disputed post-commencement
1 The process is referred to in the papers as an ‘ adjudication’ . This is not strictly correct because
the adopted business rescue plan, in its clause 7.5 ‘ dispute resolution’ provisions, provides for
[3]
finance (‘PCF’) claim in Horizon’s business rescue (discussed below). Plantcor contends
that the expert determination may significantly alter the creditor landscape within
Horizon's business rescue. The second concerns the fact, outcome and the
implementation of the vote at the 2 February 2026 creditors’ meeting.
[6] The accompanying or underlying factual and legal disputes focus on , and traverse ,
creditor rights, the status of the 2 February 2026 creditors’ meeting, voting legitimacy,
transparency, and the relationship, if any, between the business rescue plan, Plantcor’s
pending PCF determination, and the sale processes.
[7] Pursuant to my direction at the commencement of the hearing, the parties were invited to
address and argue all issues and aspects of the application and intervention applications
on the basis that a final determination of Bright Minerals’ and NUM’s interve ntion
applications would be made in due course. The invitation’s purpose was to consolidate,
streamline and expediate the argument and hearing. The parties agreed and the
argument proceeded on this basis.
B. Relevant factual background and matrix
[8] Set out below, as briefly and succinctly as possible, is the background that informs this
matter. It starts with Horizon being the holder of mining rights over, and engaged in mining
operations at, portions of the farms Rhuighoek 169 JP and Vogelstruisnek 173 JP in the
North West Province.
[9] On 26 July 2018, Horizon was placed under court order business rescue. As already
mentioned, t he second and third respondents are Horizon’s duly appointed business
rescue practitioners (i.e. ‘the practitioners’).
inter-alia disputes on the existence and quantum of creditor claims to be submitted to Mr. Swart
SC ‘ who shall determine the dispute as an expert’ .
[4]
[10] Following the practitioners’ appointment, various business rescue plans for Horizon have
been adopted, culminating in what can be labelled as a Third Revised Business Rescue
Plan, published during February 2021 and adopted during March 2021 (‘the adopted
business rescue plan’).1F
2
[11] The adopted business rescue plan contemplates the realisation and sale of Horizon's
assets, business and/or shares (individually or collectively). Clause 5.3.2 of the adopted
business rescue plan authorises the practitioners to market and sell, ‘in their s ole
discretion’, Horizon's assets by private treaty or public auction, subject to certain
conditions.2F
3
[12] Equally importantly, clause 7.5 of the adopted business rescue plan provides for an
agreed dispute resolution process should a dispute arise regarding the existence and
quantum of creditor claims in Horizon’s business rescue. The clause provides that these
disputes are to be submitted for expert determination to Mr. Swart SC.
[13] The available evidence demonstrates that Horizon experienced significant operational
and financial difficulties prior to Plantcor's involvement. The mine had ceased trading
operations, been non-operational since 2020, and its infrastructure had deteriorated. The
mine and its assets were also vulnerable to vandalism.
[14] Consequently, Plantcor and Horizon (represented by the practitioners) concluded a
Memorandum of Agreement . They did so during September 2021 . Plantcor was
appointed to restore the mine to a compliant and operational condition , and to conduct
mining operations. Plantcor thus undertook extensive remedial work at the mine and
underground development. It refurbished and replaced mining equipment, it rehabilitated
2 There is reference in papers to an addendum to the business rescue plan, but that the
addendum has not yet been approved / adopted by creditors terms of section 152 of the
Companies Act, 2008.
Companies Act, 2008.
3 These include the consent of the secured creditors if the proceeds of the sale will be insufficient
to settle the full extent of a secured creditor's claim; and a minimum aggregate purchase price
value of R180 million.
[5]
infrastructure, restor ed utilities, implemented a health and safety system , and it re-
established mining operations.
[15] Plantcor asserts that its interventions materially enhanced the value of the mine and
enabled the resumption of mining operations. In this regard, Plantcor states that it
advanced PCF for the benefit of Horizon of some approximately R200,6 million ,
comprising capital expenditure of R146.5 million, mine development costs of
approximately R53.1 million , and legal costs of approximately R941,000.00. Plantcor
contends that the value now sought to be realised through the proposed sale process is
largely attributable to Plantcor’s PCF and its interventions.
[16] During October 2024, the practitioners approved Plantcor’s PCF claim in an amount of
some R60.4 million. The balance of Plantcor’s PCF claim is disputed, and has been
referred for determination before Mr. Swart SC. In essence, Horizon and the practitioners
that these costs are Plantcor’s costs incurred for Plantcor’s benefit while it operated the
mine.
[17] Plantcor contends that the outcome of the Swart SC proceedings is of considerable
significance because, if Plantcor is successful, its ranking and voting rights as a Horizon
creditor, and the ultimate distribution to creditors in Horizon’s business rescue, will be
materially affected.
[18] Taking a brief step back in time, the practitioners continued to pursue a sale of Horizon's
assets during 2024 and 2025 in accordance with the adopted business rescue plan. The
practitioners regularly updated creditors about their efforts and their progress, and also
that various sale and disposal options were being considered. For example, at a 9 May
2025 creditors' meeting, the practitioners reported receiving two non-binding expressions
of interest in the approximate amounts of R440 million and R400 million. At a subsequent
meeting on 12 June 2025, the practitioners informed creditors that market interest in the
meeting on 12 June 2025, the practitioners informed creditors that market interest in the
mine had increased and that favourable chrome market conditions had generated
[6]
additional interest from potential purchasers, and that they would continue to explore sale
and disposal options.
[19] For its part, Plantcor submitted a written offer on 24 July 2025 of some R280 million to
purchase the mine and its assets as a going concern. Plantcor’s offer was accompanied
by its indicated willingness to waive a substantial component of its disputed PCF claim.
Plantcor contends that its offer was binding, commercially viable and beneficial to
creditors. Plantcor’s offer was not accepted, and lapsed in September 2025.
[20] The practitioners regarded Plantcor’s offer as being too low within the context of the
aforesaid R440 million and R400 million offers. Plantcor ’s riposte is that there was no
meaningful engagement concerning terms of its offer and that its offer was never properly
presented to or considered by creditors at any meeting.
[21] On 17 October 2025, the practitioners invited interested parties, including Plantcor, to
submit or resubmit offers for Horizon's mining assets, together with proof of funding, by
no later than 4 November 2025. Plantcor failed to submit a revised offer by the stipulated
4 November 2025 deadline.
[22] In fact , at a December 2025 meeting between Plantcor representatives and
representatives of the practitioners, Plantcor advised that it did not intend to pursue the
purchase of the mine. Additionally, Plantcor did not submit resubmit in the revised offer
prior to the 2 February 2026 creditors’ meeting.
[23] Turning now to the all -important 2 February 2026 creditors' meeting . The practitioners
convened the meeting. The practitioners presented only two short-listed offers received
from prospective purchasers to the meeting (referred to as ‘bidders’).
[24] The two ‘bidders’ were not identified. Bidder A’s offer was in an amount of approximately
R310 million. Bidder B’s’ offer was approximately R300 million.
[7]
[25] The practitioners called for a preference vote at the 2 February 2026 creditors' meeting
in respect of the two bidders and their respective offers. The voting process entailed a
binary choice (i.e. a vote for Bidder A or Bidder B only). The voting did not include to vote
to reject both bids, and also not for the vote to be deferred.
[26] When Plantcor sought to revive its offer at or after the meeting, it was informed that no
further offers would be accepted and that Plantcor could not be provided with an ‘unfair
advantage’. Plantcor did not participate in the 2 February 2026 creditors' vote. Plantcor
raises a panoply of complaints. They include, in addition to those already mentioned, the
following: (i) the process was fundamentally flawed and opaque, which includes an
unexplained transition from an auction process to a private treaty process, (ii) Plantcor’s
full PCF claim should have been provisionally recognised for voting purposes, which
would have caused it to be one of the largest voting creditors, (iii) creditors were asked to
vote on incomplete and conditional proposals, (iv) both offers were conditional on
Plantcor's agreement, (v) Plantcor’s offer was not disclosed to creditors and was not
tabled alongside the two shortlisted offers, (vi) creditors were denied the opportunity to
consider and vote on Plantcor's offer, which it claims may have yielded a more favourable
outcome under the applicable distribution waterfall, (v ii) the voting process lacked
transparency, (vi ii) material and important information was withheld from creditors ,
meaning that material information concerning the evaluation of the offers was not
disclosed, and (xi) the ballot ultimately precluded an informed and genuine creditor choice
and vote.
[27] Horizon and its practitioners deny that there is merit in Plantcor’s complaints . They
contend that (i) Plantcor's (original) offer had lapsed, (ii) Plantcor had failed to submit a
contend that (i) Plantcor's (original) offer had lapsed, (ii) Plantcor had failed to submit a
compliant bid before the stipulated 4 November 2025 deadline, and (iii) the 2 February
2026 creditors' vote merely sought to identify creditor preference b etween the two
shortlisted bidders.
[8]
[28] Bright Minerals was subsequently disclosed to be Bidder A , who was also the preferred
bidder in terms of the 2 February 2026 creditors' vote; albeit Plantcor did not know this at
the time. Bright Minerals contends that its offer is binding, superior in value, and not
conditional upon an agreement with Plantcor.
[29] Subsequent to the 2 February 2026 creditors' meeting, Plantcor sought to revive its offer.
It did so on 6 February 2026. It also objected to the implementation of the outcome of the
vote at the 2 February 2026 creditors' meeting (i.e. the preferred bidder process, and then
in favour of Bright Minerals).
[30] As foreshadowed above, Plantcor complains that the anticipated sale and the preferred
bidder process was conducted in a procedurally untransparent, unfair and flawed manner.
Plantcor, additionally, contends that the implementation of the outcome of the 2 February
2026 creditors' meeting vote should be interdicted pending Mr. Swart SC’s determination
of the disputed balance of Plantcor’s PCF claim, because such may, as already
mentioned, materially affect creditor voting rights, rankings, and distributions ( including
the applicable distribution waterfall).
[31] Correspondence was exchanged between the parties during the first week weeks of
February 2026. Plantcor requested inter-alia voting schedules, proxies, ballots etc. It also
sought undertakings that the outcome of the vote at the 2 February 2026 creditors'
meeting would not be implemented pending judicial intervention.
[32] The documents and undertakings requested by Plantcor were not provided – hence this
application. Plantcor seeks, in essence, interim relief restraining the practitioners from
implementing the outcome of the 2 February 2026 creditors' vote. pending (i) the
determination by Mr. Swart SC, and (ii) its contemplated challenge to the validity of the
creditors' vote at t the 2 February 2026 creditors' meeting.
[9]
[33] Plantcor contends that if it is not granted the relief it seeks, its rights would be irreversibly
prejudiced because inter-alia implementation of the vote would be irreversible, and would
include transferring to a third -party purchaser the value materially created by Plantcor's
capital expenditure and underground development, without it being adequately
compensated.
[34] Simply stated, Plantcor seeks interim relief to preserve the status quo that prevailed prior
to the 2 February 2026 creditors’ meeting pending the expert determination, and the
institution of separate adjudication proceedings to set aside the creditors' vote.
[35] For their part, the opposing respondents contend inter-alia that (i) the adopted business
rescue plan authorises the sale process, and this sale was contemplated as long ago as
2001, (ii) Plantcor’s offer had lapsed, (iii) Plantcor was afforded every opportunity to
participate in the sale process and the February 2026 creditors' vote, (iv) the pending PCF
determination has no bearing on the practitioners’ authority to implement the adopted
business rescue plan, and (v) that neither the unresolved PCF disput e nor the creditors'
vote provides a sustainable legal basis for the relief that Plantcor seeks.
C. The urgent interim interdict relief that Plantcor seeks in its application
[36] Plantcor seeks broad-ranging relief in its notice of motion. The specific relief sought in its
notice of motion requires restating for purposes of framing, not only its entitlement to the
relief that it seeks, but also the two intervention applications.
‘1 That the forms and service provided for in the Uniform Rules of Court be
dispensed with and that this application be heard as one of urgency in
terms of Rule 6(12).
2 Granting the Applicant leave, in terms of section 133(1)(b) of the
Companies Act 71 of 2008, to institute and prosecute these proceedings
against Horizon Chrome Mine (Pty) Ltd (in business rescue) and/or the
against Horizon Chrome Mine (Pty) Ltd (in business rescue) and/or the
business rescue practitioners, to the extent that such leave is required.
[10]
3 Pending finalization of the application processes stipulated in paragraph
5 below, the First and Second Respondents (“ the BRPs”) and the First
Respondent are precluded, with immediate effect, from implementing,
giving effect to, or taking any step directed at implementing the outcome
of the creditors’ vote, arising from the general creditors’ meeting of 2
February 2026.
4 The First to Third Respondents are specifically interdicted and restrained
for the period referred to in prayer 3 above from: -
4.1 implementing or enforcing any rights arising from the vote and/or
preferred bidder process referred to above;
4.2 concluding, signing, accepting, approving, or giving any binding
effect (whether conditionally or unconditionally) to any agreement,
transaction, term sheet, sale agreement, exclusivity arrangement,
option, memorandum of understanding, addendum, or simila r
instrument with Bidder A (or any other bidder arising from or related
to the same process);
4.3 granting any exclusivity, preference, deposit arrangement, right of
first refusal, “lock-up”, or other mechanism that directly or indirectly
impedes, forecloses, or materially prejudices alternative
outcomes; 3F
4
4.4 disposing of, encumbering, or otherwise dealing with any material
assets of the First Respondent, including the mining right and/or
related operational assets, in a manner that alters the status quo or
prejudices the Applicant’s statutory participation rights and/or claim
position;
4.5 taking any step that advances regulatory, statutory, or
administrative implementation, including submitting or progressing
any application, consent, notification, filing, or process for approval
regulator, authority or stakeholder premised on an “acceptan ce” of
Bidder A (including, without limitation, any processes for the
transfer of a mining right or cession/transfer of permits);
4.6 granting site access, occupation, operational control, mining
access, control of plant or equipment, or site establishment rights
access, control of plant or equipment, or site establishment rights
4 This prayer for relief is non-sensical. Plantcor abandons it in its proposed draft order discussed
below.
[11]
to Bidder A (or any third party) in a manner that changes
operational control or materially alters the status quo at the mine; 4F
5
4.7 placing personnel, equipment, security, or operational
management on site, or taking any step that changes operational
control or materially alters the status quo at the mine or conduct
which will displace the Applicant from site; 5F
6
4.8 representing to any creditor, regulator, stakeholder or third party
that any binding sale of the mine (or mining right) has been
concluded pursuant to the vote and/or preferred bidder process
referred to above, save to state that the process is subject to this
Court’s interdict.
5 The interdict in paragraphs 3 and 4 shall operate pending: -
5.1 the finalisation and determination by the adjudicator, Adv Swart SC,
in the pending adjudication proceedings, presently underway in
respect of the Applicant’s disputed post -commencement finance
claim (‘the PCF Adjudication’).
5.2 the finalisation and determination by the adjudicator, pertaining to
the Applicant’s claim for the setting side of the vote obtained from
the general creditors’ meeting of 2 February 2026 (the ‘ Setting
aside of the Vote-Adjudication’).
6 Directing the First and Second Respondents, within 48 (forty-eight) hours
of service of this order (or such other period as the Court may direct), to
deliver to the Applicant: -
6.1 the consolidated voting schedule(s), identifying each creditor, the
admitted voting amount, the class in which the vote was cast,
whether by proxy or in person, and the vote cast;
6.2 copies of all proxies and voting ballots received;
6.3 any tally sheets, count workpapers, and working schedules used to
compile the vote result, along with all amendments thereto;
5 The possibility of this relief possibly infringing on the business rescue practitioners ability to
exercise rights, and comply with responsibilities and duties, was raised with Senior Counsel for
Plantcor, was not pressed in argument and subsequently abandoned by Plantcor in terms of
its proposed draft order.
6 Ibid.
[12]
6.4 the timetable and mechanics for closing and declaring the result (if
not already done), including the treatment of any disputed voting
interests;
6.5 the final consolidated voting schedule and scrutineer’s certificate (if
applicable) upon close of the vote and the declared outcome.
7 Ordering the Respondents, jointly and severally, the one paying the other
to be absolved, to pay the costs of this application, including the costs of
two counsel (if so employed), on the scale as between party and party,
alternatively such costs order as the Court may deem fit.
8 Granting further and/or alternative relief.’
[37] In response to certain ‘concerns’6F
7 raised during argument regarding the formulation of the
relief it seeks in its notice of motion, Plantcor provided a draft order in the following terms:
‘1. The Applicant’s non -compliance with the Uniform Rules of Court with
regards to service, filing and prescribed time periods is condoned in terms
of Uniform Rule 6(12) and that the application is adjudicated upon as an
urgent application as contemplated in the said rule.
2. The Applicant is granted leave in terms of section 133(1)(b) of the
Companies Act 71 of 2008, to institute and prosecute these proceedings
against Horizon Chrome Mine (Pty) Ltd (in business rescue) and/or the
business rescue practitioners, to the extent that such leave is required.
3. Pending finalization of the adjudication processes, the Second and Third
Respondents (“the BRPs”) and the First Respondent are precluded, with
immediate effect, from implementing, giving effect to, or taking any step
directed at implementing the outcome o f the creditors’ vote, arising from
the general creditors’ meeting of 2 February 2026. The First to Third
Respondents are specifically interdicted and restrained from:
3.1 implementing or enforcing any rights arising from the vote and/or
preferred bidder process;
3.2 concluding, signing, accepting, approving, or giving any binding
3.2 concluding, signing, accepting, approving, or giving any binding
effect (whether conditionally or unconditionally) to any agreement,
transaction, term sheet, sale agreement, exclusivity
7 See footnotes 5 and 6 above.
[13]
arrangement, option, memorandum of understanding, addendum,
or similar instrument with Bidder A (or any other bidder arising from
or related to the same process);
3.3 disposing of, encumbering, or otherwise dealing with any material
assets of the First Respondent, including the mining right and/or
related operational assets, in a manner that alters the status quo or
prejudices the Applicant’s statutory participation rights and/or claim
position;
3.4 taking any step that advances regulatory, statutory, or
administrative implementation, including submitting or progressing
any application, consent, notification, filing, or process for approval
to any regulator, authority or stakeholder premised on an
“acceptance” of Bidder A (including, without limitation, any
processes for the transfer of a mining right or cession/transfer of
permits);
3.5 representing to any creditor , regulator, stakeholder or third party that
any binding sale of the mine (or mining right) has been concluded
pursuant to the vote and/or preferred bidder process referred to
above, save to state that the process is subject to this Court’s
interdict.
4. The Applicant is directed to initiate and/or institute adjudication
proceedings, within 30 days of this order, against the First to Third
Respondents pertaining to the Applicant’s claim for the setting aside of
the vote obtained from the general creditors’ meeting of 2 February 2026.
5. The interdict in paragraph 3 is to operate pending:
5.1 the finalisation and determination by the adjudicator, Adv Swart SC, in
the pending adjudication proceedings, presently underway in
respect of the Applicant’s disputed post -commencement finance
claim (“the PCF Adjudication”);
5.2 the finalisation and determination by the adjudicator, pertaining to
the Applicant’s claim for the setting aside of the vote obtained from
the general creditors’ meeting of 2 February 2026. .(the “Setting
aside of the Vote- Adjudication”).
aside of the Vote- Adjudication”).
6. The First to Third Respondents are directed to, within 48 (forty -eight)
hours of service of this order (or such other period as the Court may direct),
deliver to the Applicant:-
[14]
6.1 consolidated voting schedule(s), identifying each creditor, the
admitted voting amount, the class in which the vote was cast,
whether by proxy or in person, and the vote cast;
6.2 copies of all proxies and voting ballots received;
6.3 any tally sheets, count workpapers, and working schedules used to
compile the vote result, along with all amendments thereto;
6.4 the timetable and mechanics for closing and declaring the result (if
not already done), including the treatment of any disputed voting
interests;
6.5 the final consolidated voting schedule and scrutineer’s certificate (if
applicable) upon close of the vote and the declared outcome.
7. The First to Third Respondents are jointly and severally liable, the one
paying the other to be absolved, to pay the costs of this application,
including the costs of two counsel (if so employed), on the scale as
between party and party.’
D. Plantcor’s application is plainly urgent
[38] The first port of call in this judgment is a determination of the urgency question.
[39] Plantcor submits that the application is genuinely urgent. I agree.7F
8
[40] It is well -established that appropriate commercial interests are as much worthy of
protection as matters concerning threat to liberty, life or some other basic essential of
everyday life and, as such, justify involving uniform rule 6(12). 8F
9 Moreover, insolvency
8 See Hultzer v Standard Bank of SA (Pty) Ltd (1999) 20 ILJ 1806 (LC) 1809.
9 See inter-alia Avis Southern Africa (Pty) Ltd and Others v Porteous and Another 2024 (2) SA
386 (GJ) para 19 to 21, Cessions (Pty) Ltd v Stumrab (Pty) Ltd 1980 (2) SA 361 (W) 362C.
Twentieth Century Fox Film Corporation v Anthony Black Films (Pty) Ltd 1982 (3) SA 582 (W)
at 586F-G and CEZ Investments (Pty) Ltd v Wynberg Auto Body (Pty) Ltd [2021] ZAGPJHC
499 (29 September 2021) para 19.
[15]
related matters are, given their nature, increasingly being recognised as urgent. 9F
10
Business rescue litigation is indubitably included in this broad church.10F
11
[41] I am satisfied that Plantcor’s case for urgency satisfies (i) uniform rule 6(12)’s separate
considerations of the circumstances that render the application urgent, and the inability
to obtain substantial redress at a hearing in course, and (ii) the thresho ld an applicant
must meet when seeking urgent relief in the Dedicated Insolvency Motion Court and as
per the provisions of its Directives applicable to urgent applications.11F
12
[42] While I accept that the procedure set out in uniform rule 6(12) ‘is not there for the taking’,12F
13
even if there are any shortcomings in Plantcor’s case for urgency within a strict application
of the parameters of uniform rule 6(12) and this Court’s directives on urgency, regard is
still be had to then-Appellate Division decision in Safcor Forwarding.13F
14
[43] The relevant dicta in Safcor Forwarding14F
15 reads:
‘… it is for the Court to decide whether the matter is really one of urgency and
whether the circumstances warrant a departure from the normal procedures. To
hold otherwise would, in my view, make the Court the captive of the Rules. I
prefer the view that the Rules exist for the Court, rather than the Court for the
Rules.’
10 For example, see Imperial Logistics Advance (Pty) Ltd v Remnant Wealth Holdings 2022 JDR
3071 (SCA) which deals with liquidation applications.
11 See Tamela Mezzanine Debt Fund I Partnership v KT Wash Detergents (Pty) Limited and
Others 2026 (3) SA 606 (GJ) para 75 onwards, Koen v Wedgewood Village Golf and Country
Estate (Pty) Ltd 2012 (2) SA 378 (WCC) Matshazi and Others v Mezipoli Melrose Arch (Pty)
Ltd and Another [2020] ZAGHJHC 135 (3 June 2020) and Copper Sunset Trading 220 (Pty)
Ltd v Spar Group Ltd and Another 2014 (6) SA 214 (LP) para 19.
Ltd v Spar Group Ltd and Another 2014 (6) SA 214 (LP) para 19.
12 Dedicated Insolvency Court Directive, 10 March 2025 and see Tamela Mezzanine Debt supra
para 77.
13 East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd 2011 JDR 1832 (GSJ) para 6.
14 Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 1982 (3) SA 654
(A).
15 Supra 675 H.
[16]
[44] Applying an updated, normative and constitutional gloss to the aforesaid, the
Constitutional Court held in PFE International and Others v Industrial Development
Corporation of South Africa Ltd:15F
16
‘[30] Since the rules are made for courts to facilitate the adjudication of
cases, the superior courts enjoy the power to regulate their processes,
taking into account the interests of justice. It is this power that makes
every superior court the master of its own process. It enables a superior
court to lay down a process to be followed in particular cases, even if
that process deviates from what its rules prescribe. Consistent with that
power, this court may in the interests of justice depart from its own
rules.’
[45] The urgency in this application is driven by various factors and considerations. These
include (i) its trigger event being the creditors’ vote held on 2 February 2026, (ii) the
practitioners’ intention to implement the outcome of the vote, (iii) the practi tioners'
accelerated post-meeting implementation timetable, (iv) the practitioners' non -furnishing
of the requested undertakings, and (v) the genuine prospect that implementation of the 2
February 2026 creditors' vote will be accompanied by probable irreversible events. These
events include the conclusion of transaction documents, the transfer of operational control
of the mine and its assets, and the vesting of third-party rights.
[46] Plantcor’s submission that a restoration of the status quo may well, probably will, be
impossible and irreversible is well made, and so too its position that the aforesaid
consequence should not be permitted to materialise before inter-alia the full and true
extent of Plantcor's creditor status and voting interests is determined in the pending PCF
adjudication process.
16 2013 (1) SA 1 (CC) para 30.
[17]
[47] Whilst not aligning itself with Plantcor, NUM also relies on employee prejudice. It contends
that the implementation of the proposed transaction may negatively affect employees that
it represents.
[48] I am not persuaded that the counter-urgency arguments raised in opposition to Plantcor’s
application and NUM’s intervention application shift the urgency needle against Plantcor
and NUM. I am, for example, unpersuaded that the urgency is self-created. It matters not
that (i) the mine has been marketed for sale since 2021, (ii) the adopted business rescue
plan has always contemplated a sale process, and (iii) Plantcor is said to only attempt to
revive its offer after creditors had already considered the shortlisted offers.
[49] The immutable urgency trigger event, as already mentioned, is the creditors’ vote of 2
February 2026 its ensuing implementation , and the failure to furnish undertakings .
Plantcor explains that, on 12 February 2026, the practitioners refused requests made by
Plantcor, and on 18 February 2026 Plantcor requested various documents relevant to the
vote. If any criticism is to be laid at Plantcor’s feet is the delay between 12 or 18 February
2026, and 25 February 2026, in bringing its application. This criticism however does not
mean that Plantcor has been insouciant or supine in bringing its application, nor does it
materially erode the ultimate and inherent urgency in the application.
[50] Returning briefly to NUM’s intervention application and its ‘case’ for urgency, NUM asks
for the standard type urgent relief in paragraph 1 of its notice of motion . The opposing
arguments are (i) that NUM does not establish any grounds for its application to be dealt
with on an urgent basis, and (ii) that NUM meets none of the requirements for an urgent
application. Horizon’s and the practitioners’ position on this score is formalistic, and it was
correctly not vigorously pressed in argument. Moreover, it is obvious that the urgency that
correctly not vigorously pressed in argument. Moreover, it is obvious that the urgency that
accompanies Plantcor’s urgent application must, by ineluctable inference, both motivate
and accompany NUM’s urgent application. It would be a fool's errand for NUM’s
intervention application to be pursued and dealt with in t he ordinary course, and such
would defeat the very purpose of its intervention. Striking’s NUM’s case on the basis of
[18]
lack urgency would advance the the interests of justice because (i) it would permit the
effective hearing of Plantcor’s application, and (ii) NUM has – as discussed below - a right
to be heard in this application (it is already indirectly cited in the Plantcor application under
the rubric of the fifth respondent).16F
17
[51] All things considered, because I find that Plantcor’s is application is urgent, and so too is
NUM’s application.
[52] Therefore, In the exercise of my discretion, Plantcor and NUM (and obviously also Bright
Minerals) are entitled to the urgent condonation relief that forms the subject matter of
paragraph 1 of their respective notices of motion, and they are granted such relief.
[53] Before concluding this topic, I must apologise for the unforeseen and unavoidable delay
in the finalisation of this judgment. Horizon, the practitioners and Bright Minerals – as
responsible litigants – at the conclusion of the hearing of the argument in the application
undertook to take no further steps in implementing the 2 February 2026 creditors' vote
pending the handing down of this judgment.
[54] The undertaking was no doubt provided, and the need therefore appreciated, within the
context of inter-alia the following: (i) the great importance of the application for all parties,
(ii) the length of the papers (approximately 1,000 pages excluding referenced and other
necessary authorities), (iii) the length of the argument (which ran to after court hours), (iv)
the number of parties involved, (v) the number, nature and complexity of the factual and
legal issues requiring determination and accompanying materiality of these
considerations, (vi) the basis upon which the Dedicated Insolvency Court operates,17F
18 (vii)
that this matter in fact necessitated a special allocation by the Office of the Deputy Judge
17 See for example section 173 of the Constitution.
18 The roll of the judge sitting in the Insolvency Court includes all unopposed, opposed and urgent
insolvency related applications for that Insolvency Motion Court week.
[19]
President, and (viii) that the furnishing of Ministerial approval for any sale, so I was
advised, would in any event take some 18 months.18F
19
[55] The undertakings defused the immediate urgency in the application and, equally
importantly, permitted me an appropriate opportunity to consider, research and prepare
this judgment and, in so doing, hopefully do justice to the erudite, strong and well-made
arguments presented on behalf of the respective parties at the hearing. I thank the parties
for their patience.
E. Request for relief under section 133(1) of the Companies Act, 2008
[56] The need for Plantcor seeking and obtaining relief under section 133(1) of the Companies
Act, 2008 19F
20 was not pressed, and did not feature prominently (if at all ) in the argument
before me.
[57] This is understandably so because, as held in Moodley v On Digital Media,20F
21 section 133
finds no application in legal proceedings against a company in business rescue and its
business rescue practitioner in connection with the business rescue plan, including its
interpretation and execution towards implementation. As such, Plantcor does not require
the section 133(1)(b) leave of this Court to proceed with its application.
19 This consideration does not preclude the real possibility that vested and enforceable right may
be created in the interim, absent the undertaking.
20 Section 133(1) reads:
‘ 1. During business rescue proceedings, no legal proceeding, including
enforcement action, against the company, or in relation to any property
belonging to the company, or lawfully in its possession, may be commenced or
proceeded with in any forum, except—
(a) with the written consent of the practitioner;
(b) with the leave of the court and in accordance with any terms the court
considers suitable; …’
21 Moodley v On Digital Media (Pty) Ltd and Others 2014 (6) SA 279 (GJ) para 11. See also Elias
Mechanicos v Building & Civil Engineering Contractors (Pty) Ltd v Stedone Development (Pty)
Mechanicos v Building & Civil Engineering Contractors (Pty) Ltd v Stedone Development (Pty)
Ltd 2015 (4) SA 485 (KZD) para 9 and 10. I do not agree with the criticism in Booysen v
Jonkheer Boerewynmakerry (Pty) Ltd 2017 (4) SA 51 (WWC). I believe it is incorrect.
[20]
[58] In any event, even if I am wrong in the above regards, Plantcor is nevertheless the granted
leave contemplated under section 133(1)(b). I do so (i) only and as a matter of abundant
caution and to the extent necessary and required, and (ii) in the exercise of my discretion
and consequent upon to a consideration the application holistically. There are no terms
that accompany the aforesaid leave.
F. The Bright Minerals and NUM intervention applications
(a) Intervention: The legal position, test and principles
[59] The core test for intervention generally rests on the threshold of a ‘direct and substantial
interest’ in the subject matter of the litigation.21F
22 More specifically, a party seeking leave to
intervene is required to show a direct and substantial legal interest22F
23 in the order that the
Court is asked to make. 23F
24 As the Constitutional Court held in SA Riding for the Disabled
Association:24F
25
‘It is now settled that an application for intervention must meet the direct and
substantial interest test in order to succeed. What constitutes a direct and
substantial interest is the legal interest in the subject -matter of the case which
could be prejud icially affected by the order of the court. This means that the
applicant must show that it has a right adversely affected or likely to be affected
by the order sought. But the applicant does not have to satisfy the court at the
stage of intervention that it will succeed. It is sufficient for such applicant to make
allegations which, if proved, would entitle it to relief’.
[60] Accordingly, a qualifying intervention interest will include instances where a (legal) right
of the intervening party could be prejudiced by a Court’s judgment, its order or the
22 See uniform rule 12 (intervention).
23 This is something other than a mere four financial interest or indirect interest, which are
insufficient - Standard Bank of South Africa Ltd v Swartland Municipality 2010 (5) SA 479
(WCC) 482 et seq.
(WCC) 482 et seq.
24 SA Riding for the Disabled Association v Regional Land Claims Commissioner 2017 (5) SA 1
(CC) at para 10.
25 Supra paras 9 to 14.
[21]
outcome of the litigation. 25F
26 The possibility that a legal interest exists is sufficient. It is
therefore unnecessary for a Court to positively determine , on the probabilities, that the
interest does exist.26F
27
[61] Finally, I pause to mention that Horizon’s and the practitioners’ correctly accept that if an
intervening applicant ‘can demonstrate that it has some right which is affected by the
order in issued, permission to intervene must be granted.27F
28
(b) Bright Minerals intervention application
[62] I now turn to deal with Bright Minerals’ intervention application. Plantcor opposes Bright
Minerals’ intervention. As indicated above, Bright Minerals is ‘the preferred bidder’
pursuant to the 26 January 2026 creditors’ vote. It appears that Plantcor did not know this
at the time it brought its application.
[63] I share the same scepticism as Plantcor does on the question of Bright Minerals’ attorney
deposing to its founding affidavit in its intervention application .28F
29 The issue is however
addressed and somewhat remedied in and via its replying affidavit.29F
30 Accordingly, I am
not prepared to regard this issue as being decisive of Bright Minerals intervention
application.
[64] I am, however, unpersuaded by Plantcor’s statute-centric section 128(1)(a) argument. 30F
31
The essence of the argument is that because Bright Minerals is not an ‘affected person’,
26 Lebea v Menye 2023 (3) BCLR 257 (CC).
27 Peermont Global (KZN) (Pty) Ltd v Afrisun KZN (Pty) Ltd t/a Sibaya Casino and Entertainment
Kingdom and Others and a Related Matter [2020] 4 All SA 226 (KZP).
28 Horizon’ s and the practitioners’ heads of argument, CaseLines 006-62.
29 Levinsohn’ s Meat Products (Edms) BPK v Addisionele Landdros, Kleimoes en n’ Andere 1981
(2) SA 562 (NC)
30 See Unlawful Occupiers of the School of the School Site v City of Johannesburg 20025 (4) SA
1999 (SCA) para 14 to 16. Plantcor should also have invoked uniform rule 7 – Ganes and
1999 (SCA) para 14 to 16. Plantcor should also have invoked uniform rule 7 – Ganes and
Another v Telcom Namibia Ltd 2024 (3) (SCA) para 14 and 16.
31 The Companies Act, 2008.
[22]
as defined in section 128(1)(a), it has no locus standi in respect of (i) the integrity of the
business rescue process, or (ii) the protection of rights under the business rescue plan.
Accordingly, so Plantcor argues, Bright Minerals’ intervention application must fail.
However, this is not the test for intervention, having due regard to the test, principles and
threshold stated above.
[65] In the latter regard, Bright Minerals asserts that its direct and substantial legal interest
exists in its status as ‘preferred bidder’. To this bow, it adds the following strings: (i) Bright
Minerals has made a binding offer to purchase Horizon’s assets for R310 million; (ii) the
consequential pending negotiations between Bright Minerals and the practitioners may
have operational and legal consequences that ‘will permanently alter the legal and
commercial positions currently enjoyed by Bright and Horizon’ (which Plantcor concedes
that these consequences may be irreversible); and (iii) that if Plantcor is granted certain
of the relief its seeks in its notice of motion, Bright Minerals and the practitioners will be
restrained from finalising the pending sale. Bright Minerals also argues the practical effect
of a Court granting Plantcor’s relief would be the removal of its preferred bidder status,
and essentially a re-run of the bidding and voting process.
[66] I am not completely persuaded by Bright Minerals’ claimed legal right to protect and
preserve its ‘preferred bidder’ status as establishing an absolute right to intervene.
Plantcor benevolently describes Bright Materials’ interest as merely a ‘contingent
interest’. Bright Min erals has not concluded an agreement with Horizon and its
practitioners. Bright Minerals also cannot compel Horizon and the practitioners to
conclude an agreement with it. Bright Minerals’ ‘preferred bidder’ status does not provide
it with any enforceable, actionable or protectable rights vis-à-vis Horizon, the practitioners
it with any enforceable, actionable or protectable rights vis-à-vis Horizon, the practitioners
or the subject matter of its binding offer.
[67] At best for Bright Minerals, its ‘preferred bidder’ status entitles it to negotiate with Horizon
and the practitioners towards an agreement on an intended sale (albeit even then possibly
not on an exclusive basis, if a better offer were to be received). As such, I am also not
[23]
persuaded that Bright Minerals’ ‘preferred bidder’ status reaches the level of a pacta de
contrahendo (an agreement to agree); which by its nature is generally considered to be
legally unenforceable and void for vagueness.31F
32
[68] As such, I am not persuaded that Bright Minerals has established that it has the required
direct and substantial legal interest. 32F
33 That said, by all accounts, this is not the test. 33F
34 As
I understand our law, I am not called upon to positively determine that Bright Minerals’
interest does exist. The test is instead whether Bright Minerals possibly has the required
legal interest and, if this possibility exists, it is sufficient for intervention purposes.
[69] With the above in mind, a possibility exist s that Bright Minerals has the required legal
interest. Additionally, given (i) the seriousness of Plantcor’s application, (ii) that Bright
Minerals’ intervention application is not a frivolous application, (iii) Bright Minerals’ senior
counsel’s valuable contributions within the broader scheme of the arguments and debates
in Plantcor’s application, and (iv) out of an abundance caution and fairness,34F
35 the scales
in Bright Minerals’ intervention application tilt in its favour.
[70] In the above circumstances, Bright Minerals is granted the necessary leave to intervene
in Plantcor’s application. The costs of its intervention application are costs in the cause of
Plantcor’s application.
32 In Seale v Minister of Public Works [2020] JDR 2131 (SCA), the Supreme Court of Appeal
essentially found that, despite a possible implicit obligation to negotiate in good faith, an
agreement to agree does not create an enforceable agreement. the Supreme Court of Appeal
in Seale, highlighted the principle in Premier of the Free State Provincial Government and
Others v Firechem Free State (Pty) Ltd [2000] (4) SA 413 (SCA) that ‘ an agreement that the
parties will negotiate to conclude another agreement is not enforceable, because of the
parties will negotiate to conclude another agreement is not enforceable, because of the
absolute discretion vested in the parties to agree or disagree’ .
33 To use the language in Tshwane City v Nambiti technologies (Pty) Ltd 2016 (2) SA 494 (SCA)
504, albeit in the context of review proceedings: ‘There is no legal right to a contract’ .
34 Peermont Global (KZN) (Pty) Ltd v Afrisun KZN (Pty) Ltd t/a Sibaya Casino and Entertainment
Kingdom and Others and a Related Matter [2020] 4 All SA 226 (KZP).
35 Mentioned within the context of section 34 of the Constitution which provides (my
underlining):‘ Everyone has the right to have any dispute that can be resolved by the application
of law decided in a fair public hearing before a court or, where appropriate, another independent
and impartial tribunal or forum.’
[24]
(c) NUM’ s intervention application
[71] Num’s intervention application is slightly simpler to determine then Bright Minerals’
intervention application.
[72] NUM grounds its entitlement to intervene upon sections 144(1)(a)35F
36 and 144(3)(b)36F
37 of the
Companies Act, 2008. For its part, section 128(1)(a)(ii) and (iii) of the Companies Act,
200837F
38 includes, as a defined ‘affected person’, both employees and registered trade
unions representing employees of the company in business rescue. NUM also relies on
section 200 of the Labour Relations Act, 1995.38F
39
36 Section 144(1)(a) of the Companies Act, 2008 reads:
‘(1) During a company's business rescue proceedings any employees of the
company who are-
(a) represented by a registered trade union may exercise any rights set out in
this Chapter-
(i) collectively through their trade union; and
(ii) in accordance with applicable labour law; or … ’
37 Section 144(3)(b) of the Companies Act, 2008 reads:
‘(3) During a company's business rescue process, every registered trade union
representing any employees of the company, and any employee who is not
so represented, is entitled to-
…
(b) participate in any court proceedings arising during the business rescue
proceedings;’
38 Section 128(1)(a)(iii) of the Companies Act, 2008 reads:
‘(1) In this Chapter-
(a) 'affected person', in relation to a company, means-
…
(iii) if any of the employees of the company are not represented by a
registered trade union, each of those employees or their respective
representatives;’
39 Section 200 of the Labour Relations Act reads:
‘(1) A registered trade union or registered employers' organisation may act in
any one or more of the following capacities in any dispute to which any of
its members is a party-
(a) in its own interest;
(b) on behalf of any of its members;
(c) in the interest of any of its members.
(2) A registered trade union or a registered employers' organisation is entitled
(2) A registered trade union or a registered employers' organisation is entitled
to be a party to any proceedings in terms of this Act if one or more of its
members is a party to those proceedings.’
[25]
[73] It is not in dispute that NUM is a registered trade union. NUM claims that it represents
Horizon employees. There is, however, a factual dispute as to fact and/or the number of
Horizon employees represented by NUM.
[74] Horizon and the practitioners admit that ‘NUM represents some employees’ at the mine,
but claim that these employees ‘are employed by Plantcor’. They claim that Horizon has
no employees, and that NUM provides no documentary evidence of its members being
employed by Horizon. They also rely on (i) confusing, mixed and changing NUM
references in NUM’s affidavits to employees employed at the Horizon Chrome Mine, and
‘the workforce’, and (ii) NUM’s claim that ‘the workforce is not technically affected persons
[sic] as described in the Companies Act’.
[75] In answer to these claims, NUM asserts that Plantcor ‘only pays the payroll of the mines
employees, nothing more’, and also that a section 197 transfer 39F
40 of these employees to
Plantcor has not formally taken place.
[76] However, for the reasons that follow, a definitive or ultimate judicial determination of the
aforesaid disputes is immaterial and unnecessary.
[77] NUM, in order to found a basis for its intervention as a registered trade union of Horizon
employees, need only have one employee of Horizon as its member. I am satisfied, on
both the possibilities and the probabilities, and having regard to the terms of the adopted
business rescue plan, that NUM meets this relatively low threshold.
[78] As I read and understand the assertion in NUM’s founding affidavit regarding the
‘technical’ status of the employees, it must be understood and interpreted within the
context of the next paragraph in NUM’s founding affidavit reference to ‘[w]hatever label is
attached to the workforce for payroll purposes’ and, in turn, which phrase must be
40 Section 197 of the Labour Relations Act, 1995.
[26]
measured against that already stated regarding Plantcor paying the mine’s employees,
and the absence of a section 197 transfer process.
[79] Additionally, various provisions within the adopted business rescue plan point to Horizon
having employees. Clause 4.7.3 read with annexure C mentions Horizon 32 having
employees. Clause 4.8.4 references a liquidation dividend and includes ‘Total Preference
Employee Costs s 98A’.40F
41 Clause 5.5.9 provides that the successful implementation of
the business rescue plan will result in Horizon having 0 (nil) employees, contemplating a
successful section 197 transfer of employees.
[80] Over and above the aforesaid - despite the fact that the employees did not participate in
the 2 February 2026 creditors’ meeting vote, and at the risk of redundancy, having regard
to at least to 144(3)(b) of the Companies Act, 2008 - it cannot seriously be suggested that
an employee of Horizon and his or her registered trade union do not, at common law,
have at the very least a possible direct and substantial legal interest in the subject matter
and fate of Plantcor’s application. Albeit ultimately irrelevant for purposes of this
consideration, NUM’s counsel also made valuable contributions within the broader
scheme of Plantcor’s application.
[81] Accordingly, like Bright Minerals, NUM is granted the necessary leave to intervene in
Plantcor’s application. The costs of its intervention application are similarly costs in the
cause of Plantcor’s application.
41 Relating to salary and wages owing to employees.
[27]
G. The requirements for interdictory relief
(a) Introduction
[82] The foundational test, and peremptory requirements, for interim or temporary interdictory
relief are trite. 41F
42 The well-established and cited test is stated in Webster vs Mitchell 42F
43as
follows:
‘In an application for a temporary interdict, applicant’s right need not be shown by
a balance of probabilities; it is sufficient if such right is prima facie established,
though open to some doubt. The proper manner of approach is to take the facts as
set out by the applicant together with any facts set out by the respondent which
applicant cannot dispute and to consider whether, having regard to the inherent
probabilities, the applicant could on those facts obtain final relief at the trial. The
facts set up in contradiction by the respondent should then be considered, and if
serious doubt is thrown upon the case of applicant, he could not succeed. In
considering the harm involved in the grant or refusal of a temporary interdict, where
a clear right to relief is not shown, the Court acts on the balance of convenience. If,
though there is prejudice to the respondent, that prejudice is less than that of the
applicant, the interdict will be granted. Subject, if possible, to conditions which will
protect the respondent.’
[83] For its part, the Constitutional Court in National Treasury and others vs Opposition to
Urban Tolling Alliance and others (‘OUTA’)43F
44 held that the Setlogelo requirements still
apply in our constitutional democracy, albeit that such now fall to be viewed through a
constitutional lens, stating that (footnotes omitted):
‘[45] It seems to me that it is unnecessary to fashion a new test for the grant of an
interim interdict. The Setlogelo test, as adapted by case law, continues to be a
handy and ready guide to the bench and practitioners alike in the grant of interdicts
in busy magistrates’ courts and high courts. However, now the test must be applied
in busy magistrates’ courts and high courts. However, now the test must be applied
cognisant of the normative scheme and d emocratic principles that underpin our
42 Stemming from Setlogelo v Setlogelo (1914 AD 221) and refined by Webster v Mitchell (1948
(1) SA 1186 (W).
43 Supra.
44 2012 (6) SA 223 (CC) paras 45 and 50.
[28]
Constitution. This means that when a court considers whether to grant an interim
interdict it must do so in a way that promotes the objects, spirit and purport of the
Constitution.
…
[50] Under the Setlogelo test, the prima facie right that the claimant must establish
is not merely the right to approach a Court in order to review an administrative
decision. It is a right to which, if not protected by an interdict, irreparable harm would
ensue. An interdict is meant to prevent future conduct and not decisions already
made. Quite apart from the right to review and to set aside impugned decisions, the
applicants should have demonstrated a prima facie right that is threatened by an
impending or imminent irreparable harm. The right to review the impugned
decisions did not require any preservation pendente lite.’
[84] Accordingly, in order to be entitled to the interim relief it seeks, Plantcor must establish
the folloing in support of its applciation:
[84.1] that it enjoys a prima facie (legal44F
45) right;
[84.2] an injury suffered or reasonably apprehended;
[84.3] that the balance of convenience favours the granting of the interim relief; and
[84.4] the absence of any other satisfactory remedy (or similar protection by another
ordinary remedy45F
46).
[85] In addition to the aforesaid four trite interdict requirements must be added the following
three encompassing or enveloping considerations, namely:
45 Prest, The Law & Practice of Interdicts, Juta, 1996, 52.
46 LF Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town Municipality v LF
Boshoff Investments (Pty) Ltd 1969 (2) SA 256 (C) at 267.
[29]
[85.1] An interdict is an ‘extraordinary remedy’.46F
47 As such, there must be due compliance
with its requirements.
[85.2] The remedy of an interdict is a discretionary remedy.47F
48 Otherwise stated, a Court
has a general or overriding discretion to grant or refuse the interim relief.48F
49 There
is no comprehensive rule laid down for the exercise of a judicial discretion in
granting or refusing interdicts. Nevertheless, the discretion is to be exercised
judicially, having regard to the circumstances of each case, 49F
50 and subject to the
normative values articulated in National Treasury and OUTA above. The fact of
the Court’s discretion means that even if an applicant establishes the four
requisites for an interim interdict, the applicant may still not necessarily be granted
interim relief.
[85.3] The requirements for an interdict are not to be considered or evaluated separately
or in isolation.50F
51
[86] While I am mindful of the third (last) of the aforesaid considerations, I have - for purposes
of this judgment and its formulation - separated out at best as possible the four well -
established interim interdict requirements. I have nevertheless considered and evaluated,
for purposes of the orders granted in this application, the requirements for an interdict
holistically and on a unitary basis. These requirements must also be considered within
the context of that set out above in this judgment’s Topic B.
47 Setlogelo supra 223.
48 Knox D’ Arcy and others v Jamieson and others 1996 (4) SA 348 (A).
49 See See for example Knox D’ Arcy supra, Messina (Tvl) Development Co. Ltd v SAR&H 1929
AD 195 at 215, Yusuf v Abboobaker and Pi etermaritzburg Local Road Transportation Board
1943 NPD 244 at 247.
50 See Prinsloo v Luipaardsclei Estates and Gold Mining Co Ltd 1933 WLD 6 at 25.
51 Olympic Passenger Services (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D) 383E -F, Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton 1973 (3) SA 685 (A) 691F-G, Beechman
Motors (Welkom) Ltd v Protea Motors, Warrenton 1973 (3) SA 685 (A) 691F-G, Beechman
Group Ltd v B-M Group (Pty) Ltd 1977 (1) SA 50 (T) 540E, and Bredenkamp v Standard Bank
of South Africa Ltd 2009 (5) SA 304 (GSJ) 314H.
[30]
(b) Plantcor’ s prima facie rights
[87] As to the first requirement for an interim interdict, the Webster v Mitchell51F
52 test of a prima-
facie-right-though-open-to-some-doubt applies; being a right that need not be established
on a balance of probabilities. The right must also be a right which is being infringed, or
which the applicant apprehends will be infringed.52F
53
[88] Plantcor’s asserted prima facie right is hotly contested, and ultimately served as the focal
point of the argument.
[89] Plantcor has provided PCF to Horizon and the practitioners.53F
54 It is a creditor of Horizon,
albeit the value or amount of its full PCF claim is disputed. A creditor’s voting power
(voting interest) is determined with reference to the full value of the amount owed by the
company in business rescue to a creditor.54F
55
[90] Plantcor does not challenge the adopted business rescue plan. It challenges the integrity
its implementation. Stripped down to its core elements, Plantcor’s central and primary
complaints – which informs its prima facie rights – are the following (i) its ‘Full Voting Right
Complaint’ and (ii) its ‘Process, Information and Transparency Complaint’.
[91] I articulate the second of the aforesaid complaints first. Plantcor’s Process, Information
and Transparency Complaint pertains to a right to an informed and transparent decision
making process and in respect of, and on which, it is called upon to vote as a creditor
52 1948 (1) SA 1186 (WLD).
53 Zulu v Minister of Defence 2005 (6) SA 446 (T) and Coolair Ventilator Co (SA) (Pty) Ltd v
Liebenberg and Another 1967 (1) SA 686 (W).
54 Voting rights and voting interests are not con fined to pre -commencement creditors – see
Mashwayo v Wescoal Mining (Pty) Ltd 2025 (3) SA 441 (SCA) paras 20 to 23 and 34 to 36.
55 Ignoring for present purposes , irrelevant, consideration of ‘independent creditors' voting
interests’ .
[31]
regarding a fundamental aspect of both Horizon’s business rescue and the adopted
business rescue plan.
[92] Apropos Plantcor’s Full Voting Right Complaint: Plantcor takes issue with the common
cause fact that 2 February 2026 creditors’ vote took place at a time that the true or full
extent of its voting rights were the subject matter of contested pending adjudication
proceedings. Plantcor contends that it is a recognised PCF creditor and that its creditor
voting entitlement must be aligned with its full PCF claim. Plantcor’s case is that Horizon’s
practitioners are proceeding with the implementation of the busine ss rescue plan and
bidder-selection process, 55F
56 while Plantcor’s disputed PCF remains unresolved. Plantcor
claims its statutorily and contractually agreed right (as per the adopted business rescue
plan and then in terms of clause 7.5) to have its disputed PCF claims adjudicated
(determined) would be rendered meaningless should it not be granted interim relief. I
agree with Plantcor on the case and basis of that before me.
[93] In an endeavour to avoid the aforesaid, Horizon and the practitioners rely in their heads
of argument 56F
57 on clause 7.2.2 of the adopted business rescue plan. The clause reads:
‘For purposes of these proceedings the BRPs will not allow the holders of disputed claims
to exercise their voting interest, unless otherwise determined by the BRPs’.
[94] Horizon and the practitioners’, as I read their answering affidavit, did not place reliance
on clause 7.2.2 in their answering affidavit57F
58 and it was not traversed in Plantcor’s replying
affidavit. It is thus not a ‘pleaded issue’ in the application.
56 Subject to the temporary undertaking referenced elsewhere in this judgment.
57 CaseLines 006-88, para 63; 006-89, para 69; and 009-96, para 94.
58 In Swissborough Diamond Mines v Government of the RSA ,58 Joffe J quoted the following
paragraph from Hart v Pinetown Drive -in Cinema,58 with approval: ‘ [W]here proceedings are
paragraph from Hart v Pinetown Drive -in Cinema,58 with approval: ‘ [W]here proceedings are
brought by way of application, the petition is not the equivalent of the declaration in proceedings
by way of action.’ The aforesaid applies equally to answering affidavits.
[32]
[95] In any event, as I read and interpreted the provisions, clause 7.2.2 is tied to the disputed
claims referenced clause 7.2.1. This interpretation is support by the adopted business
rescue plan’s definition for ‘Claims’ in its clause 3.13 as meaning:
‘… all claims against the Company, the cause of action in respect of which arose,
prior to or on the Commencement date [sic] … and including , all claims arising out
of any agreement entered into by the Company on or prior to the commencement
date [sic];’
[96] The adopted business rescue plan’s clause 3.14 definition for ‘Commencement Date’ is
recorded to mean:
‘… The date upon which the court ordered that the Company commenced business
rescue proceedings being 26 July 2018;’
[97] Plantcor was not a creditor at the time of the adoption of the adopted business rescue
plan, and its claim s moreover relate to PCF . As such clause 7.2.2 does not apply to
Plantcor’s disputed PCF claims, nor the determination before Mr Swart SC. It is not the
salve Horizon and the practitioners argues it to be.
[98] Moreover, the clause itself is ambiguous. The clause does not address a situation where
a creditor, like Plantcor, holds both an accepted claim and a disputed claim and whether
the right to exercise any voting interest is completing exclude, or limited only to that portion
of the disputed. The clause’s ambiguity was nor debated, clarified or remedied via any
meaningful argument on its interpretation , nor was any argument made pertinent to the
practitioner’s discretion to ‘determine otherwise’. As such, I return to that already stated
regarding Horizon and the practitioners’ non -raising and pursuit of this point in the ir
answering affidavit.
[99] Horizon and the practitioners additionally argue that Plantcor ’s application fails at this
threshold because neither the Companies Act, 2008, nor the adopted business rescue
plan, afford an official “status’ to the 2 February 2026 meeting. Moreover, they argue that
[33]
the 2 February 2026 vote was consultative and not constitutive, and as such had no
binding effect . It was also suggested that there was no need for the meeting. I am ,
however, unable to agree with the se arguments. This is for the several reasons
(individually or collectively) that follow.
[100] As a convenient starting point, the ‘agenda’ for the 2 February 2026 meeting expressly
articulates the ‘motion’, and the need for creditors to vote on the ‘motion’, in the following
terms:58F
59
‘Having regard to the inherent risks of both offers, the BRPs propose acceptance of
the offer that enjoys the support of the majority of creditors.’
Motion – The BRPs should proceed with the acceptance and further negotiations
leading to transaction documents with the Bidder that enjoys the support of the
majority of creditors.’
[101] A neutral or non-partisan reader of the aforesaid, will be left with the indelible sense that
a purpose, albeit possibly not the only purpose, of the ‘motion’ is to absolve the
practitioners of the ‘inherent risks’ that accompanied both offers, or to share the ‘inherent
risks’ with creditors. As such, the probabilities are that the practitioners sought to or would
possibly in future, attach an official ‘status’ to the creditors’ meeting and the creditors’ vote
on the ‘motion’.
[102] In any event - outside the ambit of those expressly provided for events, court proceedings,
meeting etc. in Chapter 6 59F
60 of the Companies Act, 2008 - section 145 (1)60F
61 of the
Companies Act entitles every creditor to ‘notice’ of, most other things, each ’meeting or
other relevant event concerning the business rescue proceedings and, at leas t to ,
‘informally participate’ in such proceedings. Whilst a creditors right to participate is
59 CaseLines 002-86.
60 Chapter 6: Business rescue and compromise with creditors (ss 128-155).
61 Participation by creditors).
[34]
informal, the informal nature of its entitlement to participation is something separate to its
status, and voting interests, as a creditor.
[103] That said, It is irrelevant whether the 2 February 2026 meeting was a meeting of the type
expressly legislated, required or provided for under the Companies Act, or the adopted
business rescue plan , or both. This is because t he common cause facts are that the
practitioners deliberately chose the 2 February 2026 process.
[104] More specifically: (i) the practitioners elected to convene a meeting of creditors (and to
afford it such status61F
62), (ii) the meeting took place on 2 February 2026, (iii) creditors were
entitled and called upon to vote at the meeting , (iv) certain creditors did vote, (iv) t he
practitioners regard themselves as bound by meeting’s outcome (i.e. the creditors’ vote),
(vi) the practitioners pursue the implementation of that vote, and (vii) the practitioners now
seek to protect the vote and implementation.
[105] Horizon and the practitioners cannot approbate and reprobate (i.e. blow hot and cold). 62F
63
They cannot, at the same time, contend (i) that that there was no need for the creditor’s
meeting nor the vote, and that the vote has no binding effect, but (ii) invite creditor
decision-making and a vote, then act to enforce the vote and implement its outcome, and
afterwards oppose this application on the basis inter-alia of such vote.
[106] If the practitioners intended (i) to seek the support or direction of creditors via the 2
February 2026 creditors’ meeting, (ii) for the creditors’ meeting to have a purpose, (iii) for
creditors’ meeting outcome to have actionable value, and (iii) to implement and act in
terms of that actionable value – which the practitioners did - then the practitioners
themselves clothed the meeting with a formal status.
62 Moreover, t he meeting is referred to throughout Horizon and the practitioners’ heads of
argument as a ‘meeting of creditors’.
argument as a ‘meeting of creditors’.
63 Hlatswayo v Mare and Deas 1912 AD 242 at 259.
[35]
[107] Consequently, it must be that all creditors (i) had a right to participate meaningfully in, and
on an informed basis including within the context of the ‘inherent risks of both offers’ (i.e.
Plantcor’s Process, Information and Transparency Complaint ) at, the 2 February 2026
meeting, and (ii) should have been permitted to vote according to the full consequential
value of the ir respective claims (voting interests). For me to find otherwise, would not
permit a fair and reasonable balancing and recognition of the rights and interests of
Plantcor, as a creditor of Horizon, with those of Horizon’s other creditors.63F
64
[108] Moreover, Horizon and the practitioners appear to discount, if not ignore, the innate
intention and purpose of the binding expedited dispute resolution provisions in the
adopted business rescue plan in not permitting Plantcor to vote the full consequential
value of its claim (voting interest).
[109] Horizon and the practitioners furthermore argue that Plantcor’s complaints pertain to
procedural defects dissatisfaction, not the invasion of any legally recognised right. I again
disagree. Plantcor, like all creditors, has a right to have the disputed portion of its PCF
claim expertly determined by Mr Swart SC. Plantcor is entitled to act to protect this right.
It is an enforceable right. To find otherwise frustrates Plantcor’s rights as a creditor of
Horizon and as an affected person in its business rescue.
[110] Plantcor, as a common cause creditor of Horizon in respect of its undisputed PCF claim,
has a prima facie right tied to the practitioners’ responsibilities, duties, obligations etc.
within the context of this application (i) as an officer of the court, and (ii) to act in good
faith, with due care, skill and diligence.
64F
65 This is in addition to other fiduciary duties
business rescue practitioners may owe , premised on reasonable and fair dealings,
business rescue practitioners may owe , premised on reasonable and fair dealings,
64 Section 5(1) of the the Companies Act, 2008 provides that the Act must be interpreted and
applied in a manner that gives effect to the purposes set out in section 7. Section 7(k) of the
Companies Act, 2008 states that a purpose of the Act is to provide for the efficient rescue of a
financially distressed companies in a manner that balances the rights and interests of all
relevant stakeholders.
65 Being the same responsibilities, duties, obligations etc. imposed on directors under the
Companies Act, 2008 – see sections 75, 76, 77 and 140 of the Companies Act, 2008.
[36]
accountability and transparency vis-à-vis creditors. Simply put, business rescue
practitioners owe a panoply of statutory obligations and fiduciary duties to all affected
persons (including the company's creditors).
[111] Accordingly, business rescue practitioners, in addition to being transparent and providing
material and relevant information when reasonably requested (i.e. Plantcor’s Information
Transparency Complaint), must balance the interests of all stakeholders, ensuring that no
creditor is unfairly preferred or prejudiced without lawful justification.65F
66
[112] While the adopted business rescue plan permits the practitioners to sell the assets,
business and/or shares of Horizon at ‘their sole discretion’, this discretion is not
unencumbered. It is, at the very least, constrained by (i) the terms of the adopted business
rescue plan and an interpretation that prima facie limits this discretion to a sale by way of
public auction, or private treaty, (ii) and the practitioners’ responsibilities, duties,
obligations etc. as business rescue practitioners and, (i ii) an ac companying uberrima
fides66F
67 (i.e. utmost good or most abundant faith) obligation.
[113] I pause to mention that I appreciate the immediate and obvious tension between the ‘sole
discretion’ and ‘utmost good faith’ concepts. If I am incorrect regarding the interpretation
constrain on the ambit and extent of the discretion afforded to the practitioners, then this
tension must ease in favour of the ‘utmost good faith’ obligations, given the overriding
fiduciary duties and statutory obligations owed by the practitioners.
[114] Additionally, if the creditors’ vote has no inferred or actual ‘official status’, then nothing
stops the practitioners form ignoring the vote and proceeding in terms of the adopted
business rescue plan only.
66 See for example Tamela Mezzanine Debt Fund supra.
67 It requires at least full disclosure, honest and fair dealing.
[37]
[115] I disagree with the opposing respondents’ contentions that Plantcor’s rights and interests
are limited to the pending determination by Mr. Swart SC, and have no bearing on the
ultimate sale of the mine. This is for at least the following two reasons.
[115.1] The sale of the mine under the business rescue plan, as matters presently stand,
has its most recent origin, and its trigger, the creditors’ vote on at the 2 February
2026 creditors’ meeting which, in turn, is dependent upon creditors’ voting rights
which, in turn, is dependent upon the true and full nature and extent of Plantcor’s
voting rights which, in turn, is dependent upon the outcome of the pending
adjudication.
[115.2] While asserting an inferred irrelevance of the determination before Mr. Swart SC,
Horizon and the practitioners challenge Plantcor’s application within the context
of the admitted PCF claim and the referral of its disputed PFC claim to Mr Swart
SC. Horizon and the practitioners claim that Plantcor has no claim for
development expenses etc. It is not within the bailiwick of these proceedings for
me to determine the merits of PCF dispute referred to Mr Swart SC.
[116] I also disagree with the argument that creditors have already exercised their rights and
selected Bright Minerals as a preferred bidder. The argument ignores that just mentioned
regarding the true and original flaw in the voting process, and the claimed lack of
information and transparency around the process. Plantcor’s claims of lack of
transparency and defects in the voting process separately require considering, within the
context of interim relief. Plantcor has a right to the information it requested.
[117] Over and above everything else, the ‘agenda’ for the 2 February 2026 meeting expressly
references:67F
68 ‘Plantcor [sic] position is a factor in both bids and needs to be managed in
68 CaseLines 002-85, bullet point 7.
[38]
the interest of creditors’. Plantcor cannot be expected to occupy a position, or permitted
to be managed, without the required information and transparency.
[118] It is also not for me to determine whether Plantcor’s offer is ‘better’ than Bright Materials
or vice versa, or the merits of either offer – topics that occupy much of Bright Material’s
opposition to this application. It is also not for me to determine the merits or outcome of
the pending PCF claim determination, nor the setting aside relief that Plantcor wishes in
due course to pursue.
[119] I need only be satisfied on a prima facie basis that Plantcor has rights to the relief it seeks
and a prima facie basis for obtaining such relief (albeit it is an open question whether the
latter relief can be sought under the terms of the approved business rescue plan or
elsewhere). However, there is enough before me pointing to a prima facie determination
in due course of the relevant and factual legal questions in Plantcor’s favour.
[120] I am also satisfied that a determination in the proceedings before Mr. Swart SC may, if
not will, bear on: (i) Plantcor’s ranking as a creditor of Horizon, (ii) Plantcor’s section
145(4)’s voting interest, (ii ) Horizon’s financial position and liability profile , (iii) any
reasonable, if not prudent, assessment of the commercial acceptability or viability of the
proposed sales /offers, and (iv) a ny similar reasonable, if not prudent, assessment of
‘creditor return and distributable value under any sale outcome’. 68F
69 In simple terms, I am
prima facie satisfied that the determination of Plantcor’s PCF claim may inter-alia impact
on vote of the 2 February 2026 creditors’ meeting, and so too the sale of the mine as a
consequence of such vote, and the final stages of the business rescue proceedings
themselves.
[121] Additionally, and briefly returning to this topic, Plantcor’s prima facie right is informed by
its Process, Information and Transparency Complaint and namely the defects that
its Process, Information and Transparency Complaint and namely the defects that
69 See Plantcor’ s heads of argument, CaseLines 006-38, paras 76 and 77
[39]
Plantcor contends contaminated the voting process that took place at the 2 February 2026
creditors’ meeting. Information was only provided ‘at a high level’. I am also satisfied that
there the practitioners may have impermissibly strayed be beyond the implementation
discretion into a de facto amendment of the plan without such being formally adopted by
creditors – in terms of the proposed addendum / revision to the existing adopted business
rescue plan, or all.
[122] In the case before me, Plantcor’s prima facie rights are being, and have been infringed,
and they are worthy of judicial protection, especially having regard to the balance of the
interdict requirements and considerations.
(c) Irreparable harm
[123] The second requirement for an interim interdict is a well -grounded apprehension of
anticipated, or ongoing, irreparable harm if the interim relief sought is not granted.69F
70 Harm
is a broad church. Harm need not sound in a financial or pecuniary loss, but it may also
include an irremediable breach of an applicant’s rights. 70F
71 Harm thus includes a
‘discernible or intelligible disadvantage or peril that is capable of legal protection’.71F
72
[124] Plantcor’s irreparable harm argument is that the implementation of the creditor’s vote is
the product of its diluted or incomplete voting position, it will be displaced operationally,
and the value its claims to created vis-à-vis its funding and development expenditure will
be transferred to third parties.
[125] I am not persuaded that Plantcor’s reliance on its claimed ‘ funding and development
expenditure’, and that its displacement is threatened / anticipated from the mine, as harm
which is irreparable. This is because the mine will be, should be, sold at market value and
70 OUTA supra 231D and Tshwane City v Afriforum 2016 (6) SA 279 (CC) 300B.
71 Braham v Wood 1956 (1) SA 651 (D) 665B.
72 Thswane 300D-E and 301D-E.
[40]
Plantcor should make a recovery relative to its claim for PCF (whatever that may
ultimately be) via the waterfall. Moreover, Plantcor does not have an absolute or indefinite
right to conduct the mining operations.
[126] Nevertheless, Plantcor correctly labels the process being undertaken by the practitioners’,
being a process originating and pursued pursuant to of the contested creditors’ vote, as
the ‘final chapter’ and ‘irreversible’.
[127] Bright Minerals argues that if Plantcor’s concern relates to the waterfall distribution to
which it is entitled in Arising’s business rescue, then it’s remedy is an order precluding
any distribution of the proceeds of the sale assets pending the final outcome of the Swart
SC proceedings. I agree. But, as traversed elsewhere in this judgement, I understand
Plantcor’s concerns to be more fundamental, and its harm broader and more primary than
that which it may, or may not, receive via the waterfall. Plantcor’s true harm resides in the
pursuit and final implementation of the sale process on which it was entitled to vote, and
accordingly influence, according to the full extent of its PCF claim as a creditor of Horizon.
The full extent of its PCF claim is still to be determined.
(d) Balance of convenience
[128] The third requirement for an interim interdict is that the balance of convenience must
ordinarily weigh in favour of granting interim relief. This involves a consideration of the
prejudice that an applicant will suffer if the interim relief is refused agai nst the prejudice
to be suffered by the respondent if it is granted.72F
73
[129] I am satisfied that , on a conspectus , the balance of convenience weighs in favour of
Plantcor. As apparent in the time lines revealed in this judgement, there has already been
an extended delay in concluding Horizon’s business rescue. Granting the interim relief
73 Tshwane City v Afriforum supra 302B-C.
[41]
sought, and an ensuing delay, within the greater scheme of things of the existing delays,
will not derail Horizon’s business rescue, and it will also not be pernicious to creditors.
[130] If anything the opposite may well be the case. Plantcor’s argument that ‘should the sale
implemented …, the consequences will be irreversible and permanently alter the fate of
Plantcor and creditors alike’, has merit. As Plantcor further argues, until such time as its
disputed PCF claim has been determined, (i) Horizon’s creditors cannot properly assess
competing proposals, and (ii) ‘[t]he distributable proceeds cannot rationally be
ascertained and any projected return to creditors is necessarily speculative’.
[131] I also mention that it may be prudent for creditors to await the outcome of the PCF
determination. While the determination will be beneficial for Plantcor if the outcome is
favourable for it , such outcome may require creditors to readjust their position on the
creditors’ vote and its consequences given not be beneficial for the balance of creditors
because of the possible increase in Horizon’s business rescue liabilities , which in turn
may impact on the negotiations with Bright Minerals or for the practitioners to re-evaluate
the sales process.
(e) No other satisfactory remedy
[132] The fourth and final requirement for an interim interdict is that there must be an absence
for the applicant of another adequate ordinary remedy. Otherwise stated, the interdict
sought is the only remedy. This requirement is imbricated with the ‘irreparable harm’
requirement discussed above. This is because generally speaking the lack of any other
ordinary remedy is axiomatic to the existence of irreparable harm. 73F
74 It also overlaps, in
the circumstances of this case, with the balance of convenience consideration.
74 See Van Loggerenberg, Erasmus, Superior Court Practice , Second Edition, Appendices, D6
Interdicts, Service 28, 2025, D6-32, footnote 1.
[42]
[133] In the above regards, Horizon and the practitioners argue that creditors and affected
persons are adversely affected by the continued delay and possibility of the highest offer
not being accepted. Whilst there is merit in these contentions, they must be weighed and
measured against a sales process which commenced (should have commenced) as long
ago as 3 March 2021.
[134] While there is an obvious need for expedition in business rescue proceedings, the se
business rescue proceedings are correctly labelled by Plantcor as ‘long lingering’. There
is also no reason why the proceedings before Mr. Swart SC should result in any extended
delay, or why the other relief sought by cannot be pursued on an expedient basis.
[135] Horizon and the practitioners also contained that the opposed adjudication in respect of
the setting aside the vote is not a process recognised by the adopted business rescue
plan. While I agree with this statement, I do not agree with its their accompanying
contention that the setting aside a vote will have no factual and legal consequence within
context of the practitioner’s acting to implement the consequences of such vote.
[136] Bright Minerals argues that Plantcor’s present prejudice is self-created because Plantcor
failed to pursue available opportunities earlier in the process. This contention overlaps
with the considerations of the urgency in this application. I do not agree, for the reasons
addressed under this judgment’s topic of urgency. An extrapolation of Bright Minerals ’
argument is that Plantcor should have submitted or re-submitted itself timelessly. This
argument however discounts Plantcor’s various other complaints.
(f) This Court’ s discretion
[137] On a holistic consideration of this application, its circumstances, and its merits, I see no
reason why I should exercise my discretion against the granting of the interdictory relief
sought.
[43]
H. Other matters / considerations
[138] No sustainable reason is advanced as to the existence of any platform or basis justifying
the practitioners contesting Plantcor’s request for contemporaneous voting tallies, ballots,
proxy forms, tally workpapers related records etc.
[139] Whilst I do not suggest for a moment that this is the case, the practitioners should have
nothing to hide. They owe creditors a duty of good faith and transparency. If first, second
and third respondents have provided certain or all of the aforesaid in terms of their
supplementary affidavit of 12 March 2026, I have provided thereof in the paragraph 10 of
the orders below.
[140] In addition to that set out above, I have, at some length considered all the (other) claims,
submissions, arguments, considerations etc. made by and on behalf of the parties in this
application. None of them move to depart from the orders that follow.
Cost considerations
[141] To the question of costs now. The general rule is that, subject to the Court’s discretion,
costs ordinarily follow the result.74F
75
[142] I see no reason to depart from the general rule, and no arguments on this score were
presented to me.
[143] I am mindful of Plantcor’s abandonment of certain of the relief that it originally sought in
the notice of motion via their proposed draft order. There is no sustainable basis for
Plantcor to have pursued such relief, and no case was mad in its founding affidavit in
support thereof. That said, I do not believe that had Plantcor not originally sought such
75 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (2)
SA 621 (CC) 624 para 3 and Vassen v Cape Town Council 1918 CPD 360.
[44]
relief in its notice of motion that the application would have been unopposed by Horizon
and the practitioners . Horizon and the practitioners opposition extended far broader to
Plantcor’s abandoned relief. Moreover , Plantcor abandoned this relief at the hearing .
Additionally I don’t find that that pertaining and relevant to the abandoned relief in the
affidavits and heads of argument filed, and actual argument, warrants any discount of the
costs order in favour of Horizon and the practitioners.
[144] Additionally, the employment of senior counsel and two counsel (where such took place)
was both necessary and warranted. In the exercise of my discretion, costs are moreover
to be taxed on scale C.
[145] I have considered Plantcor’s proposed draft order. If regard is had to the orders granted
below, it will be noted that certain of the proposed relief in the draft order is narrowed and
curtailed to the vote at the creditors’ meeting of 2 February 2026 and the creditors’
meeting, given that this is the mast to which Plantcor pinned its colours in its founding
affidavit.
[146] Finally, I must express my appreciation to the various senior and junior counsel who
appeared and argued before me. The application had, and has, many moving parts, and
is both complex and voluminous. Counsel were required to deal with and argue a complex
and voluminous urgent application on the hoof. Despite that the hearing and argument
enduring for the entire day until after 16:00 pm, counsels’ arguments were invaluable,
succinct, pithy and free of hyperbole and needless emotion. Equally importantly, the
relevant concessions were made when required. I express my gratitude and appreciation.
Counsel were professional in every respect. I again also wish to express my gratitude to
the parties for their patience in waiting for this judgment.
I. Conclusion and orders
[147] For the reasons set out above, the following orders are granted:
[45]
1. The respective applications of (i) the applicant, (ii) Bright Minerals SA (Pty) Ltd
(the first intervening applicant) , and (iii) National Union of Mineworkers (the
second intervening applicant) are found to be urgent and their respective non -
compliance with the relevant uniform rules of court for purposes of the urgent
bringing of the respective applications is condoned.
2. The first, second and third respondents are permitted to file their supplementary
affidavit dated 12 March 2026.
3. Bright Minerals SA (Pty) Ltd (the first intervening applicant) and National Union of
Mineworkers (the second intervening applicant) are granted leave to intervene in
the application as the sixth and seventh respondent’s respectively - the costs of
their respective intervention applications are costs in the cause of the applicant’s
application.
4. The applicant is granted, to the extent required, the necessary leave in terms of
section 133(1)(b) of the Companies Act 71 of 2008, to institute and prosecute its
application against the first respondent, being Horizon Chrome Mine (Pty) Ltd [in
business rescue ], and the second and third respondents , being it s business
rescue practitioners.
5. The first, second and third respondents are interdicted, restrained and precluded
from acting in terms of, implementing, giving effect to, and/or taking any step(s)
towards implementing (directly or indirectly), the fact and/or outcome of the
creditors’ vote (‘the Creditors’ Vote ’) at the general creditors’ meeting of 2
February 2026 in the first respondent business rescue (‘the Creditors’ Meeting’).
6. Without (i) derogating form the generality of paragraph 5 above, and (ii) being
exhaustive, the first, second and third respondents are specifically interdicted,
restrained and precluded from:
[46]
6.1 pursuing, implementing and/or enforcing any rights accruing and/or arising
from the Creditors’ Vote and/or the Creditors’ Meeting;
6.2 concluding, signing, accepting, approving, or giving any binding effect
(whether conditionally or unconditionally) to any agreement, transaction,
term sheet, sale agreement, exclusivity arrangement, option,
memorandum of understanding, addendum, or similar instrument with
‘Bidder A’, the sixth respondent, or any other bidder arising from or related to
the Creditors’ Vote and/or the Creditors’ Meeting;
6.3 disposing of, encumbering, or otherwise dealing with – in terms of and/or
pursuant to the Creditors’ Vote and/or the Creditors’ Meeting - any of the
first respondent’s material or substantial assets, including the mining right
and/or related operational assets, in a manner that alters the status quo or
prejudices the applicant’s statutory participation rights and/or claim
position;
6.4 taking any step (s) that advances regulatory, statutory, or administrative
implementation, including submitting or progressing any application,
consent, notification, filing, or process for approval to any regulator,
authority or stakeholder premised on an ‘acceptance’ of ‘Bidder A’, the
sixth respondent, or any other bidder arising from or related to the
Creditors’ Vote and/or the Creditors’ Meeting (including, without limitation,
any processes for the transfer of a mining right or cession/transfer of
permits); and
6.5 representing to any creditor, regulator, stakeholder or third party that any
binding sale of the mine (or mining right) has been concluded pursuant to
the Creditors’ Vote and/or the Creditors’ Meeting, save to state that such
is subject to this order.
[47]
7. The orders in paragraphs 5 and 6 above operate immediately, and are and
will be of full force and effect , pending:
7.1 the determination by the expert, Mr. Swart SC, in the presently
pending referral to him of the dispute(s) pertaining to the applicant’s
disputed post commencement finance claims; and
7.2 the determination of competent legal, review, arbitral or adjudication
proceedings to be pursued by the applicant pertaining to the
applicant’s claim for the setting aside of the Creditors’ Vote and
which are to be pursued and determined , where possible, on an
expedited basis.
8. The applicant is directed to refer, initiate, bring, launch and/or institute the
proceeding referred to in paragraph 6.2. above within 15 (fifteen) court days
of the first, second and third respondents complying with their obligations
in paragraph 9 below. Should the applicant fail to do so, paragraph 7.2 of
this order will immediately lapse and be of no force and effect.
9. The first, second and third respondents are ordered and directed to deliver
and provide to the applicant’s attorneys of record – within 7 (seven) court
days of their obtaining notice or knowledge of this order - the following:
9.1 consolidated voting schedule(s), identifying each creditor, the
admitted voting amount, the class in which the vote was cast,
whether by proxy or in person, and the vote cast;
9.2 copies of all proxies and voting ballots received;
9.3 any and all tally sheets, count workpapers, and working schedules
used to compile the vote result, along with all amendments thereto;
[48]
9.4 the timetable and mechanics for closing and declaring the result (if
not already done), including the treatment of any disputed voting
interests; and
9.5 the final consolidated voting schedule and scrutineer’s certificate (if
applicable) upon close of the vote and the declared outcome.
10. If the first, second and third respondents claim that any of that set in
paragraphs 9.1 to 9.5 above:
10.1 has already been provided in terms of the first, second and third
respondents supplementary affidavit dated 12 March 2026;
10.2 does not exist;
10.3 cannot be located; and/or
10.4 is not within their possession,
the first, second and third respondents shall then state - on oath within the
aforesaid 7 (seven) court day period - (i) as much, and (ii) succinctly set in
respect of paragraphs 9.2 to 9. 4 above out the efforts and endeavours
undertaken to locate same, and/or their whereabouts, if known.
11. The first, second, third and sixth respondents - jointly and severally, the
one paying the other to be absolved - are to pay the applicant’s and the
seventh respondent’s party and party costs. Such costs shall be on Scale
C and shall include the applicant’s costs of both senior and junior counsel
(where employed). The seventh respondent only employed one counsel.
[49]
AMM AJ
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG
Electronically submitted:
Delivered: This judgment was prepared and authored by the Acting Judge whose name is
reflected above. This judgment is handed down electronically by circulation to the parties / their
legal representatives by email and/or by uploading it to the electronic file of this matter on
CaseLines.
COUNSEL FOR THE APPLICANT: Mr. A Subel SC
Mr. JC Viljoen (Adv.)
INSTRUCTED BY: Cox Yeats Attorneys
COUNSEL FOR THE RESPONDENT: Mr. N Redman SC
Mr. GJ Lötter (Adv)
INSTRUCTED BY: Vezi De Beer Inc.
COUNSEL FOR FIRST INTERVENING
APPLICANT:
Mr. ARG Mundell SC
INSTRUCTED BY: WJJ Badenhorst Inc.
COUNSEL FOR SECOND INTERVENING
APPLICANT:
Mr. L VR van Tonder (Adv.)
INSTRUCTED BY: Steyn Inc.
ENROLLED AS MATTER: UIA-3
DATE OF ARGUMENT: 13 March 2026
DATE OF JUDGMENT: 19 June 2026