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[2026] ZAMPMHC 54
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Kego Mining (Pty) Ltd v Liberty Coal (Pty) Ltd (1260/2024) [2026] ZAMPMHC 54 (4 August 2026)
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THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MIDDELBURG
CASE NO:1260/2024
(1)
Reportable: No
(2)
Of interest to other Judges: No
(3)
Revised: No
DATE
04 August 2026
SIGNATURE
In
the matter between:
KEGO
MINING (PTY) LTD
DEFENDANT/EXCIPIENT
and
LIBERTY
COAL (PTY) LTD
PLAINTIFF/RESPONDENT
Delivered: This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The
date and time for
hand-down is deemed to be 04 August 2026..
JUDGMENT
Leso
AJ
INTRODUCTION
[1]
Kego Mining (Pty) Ltd filed an exception against Liberty Coal Ltd’s
amended
particulars of claim. Liberty Coal’s cause of action is
based on the cession agreement dated 21 March 2024, wherein Optimum
Coal Mine (Pty) Ltd ceded its rights to claim against Kego. Liberty
Coal’s claim is structured as follows:
1.1
Claim 1: Vindication (return of coal or payment).
1.2
Claim 2: Damages (payment for wrongful conduct).
1.3
Claim 3: Enrichment (payment for unjust enrichment).
[2]
Liberty Coal claims compensation for damages as a result of the
alleged unjust enrichment
resulting from wrongful conduct by Kego
Mining and seeks an order for payment of R168 146 557. Liberty Coal
further seeks indemnification
for all losses in the form of the
return of all coal mined, processed, and/or removed, as well as
interest at the prescribed rate
from the date of demand to the date
of payment and the legal costs.
[3]
Liberty Coal is opposing the exception on the basis to be discussed
henceforth.
Parties
[4]
Liberty Coal (Pty) Ltd is a private company with limited liability,
duly registered
and incorporated in accordance with the Companies Act
71 of 2008 (Companies Act) and the laws of the Republic of South
Africa,
the plaintiff in the main action and the respondent in this
application.
[5]
Kego Mining (Pty) Ltd is a private company with limited liability,
duly registered
and incorporated in accordance with the
Companies Act
and
the laws of the Republic of South Africa, the defendant in the
main application and the excipient in this action.
[6]
Optimum Coal Mine (Pty) Ltd is a private company with limited
liability, duly registered
and incorporated in accordance with the
Companies Act and
the laws of the Republic of South Africa, in
business rescue, the holder of the converted mining rights in terms
of the Minerals
and Petroleum Resources Development Act which were
initially granted to Glencore Billiton Energy Coal South Africa
Limited (Glencore).
[7]
For convenience, Kego Mining (Pty) Ltd will be referred to as the
excipient and Liberty
Coal will be referred to as the respondent. The
acronym “OCM” will be used to refer to Optimum Coal Mine
(Pty) Ltd.
FACTUAL BACKGROUND
[8]
Glencore was granted two converted mining rights in terms of the
Mineral and Petroleum
Resources Development Act 28 of 2002 (the
Act/MPRDA) held under file reference numbers MP30/5/1/2/2/264MR and
MP30/5/1/2/2/267MR
in respect of coal in the areas in Witbank as
follows:
8.1
Klipbank 467 JS portion 3;
8.2
Klipbank 467 JS remaining extent of portion 2; and
8.3
Klipbank 467 JS portion of mineral area 1.
[9]
The mining rights commenced on 5 June 2005 and remain in force for 20
years, ending
on 4 June 2028. The rights consist of the right to mine
portions of various farms totalling 37 719.4 hectares in the
Magisterial/Administrative
District of Middleburg, including the
Klipbank Portions.
[10]
On 19 June 2008, Glencore ceded its mining rights to OCM mining right
(as amended/varied). The
mining rights continue to be in force for a
period of 20 years, ending on 4 June 2028, and consist of the
portions of various farms
measuring 37 719.4 hectares in the
Magisterial/Administrative District of Middleburg, including the
Klipbank Portions.
[11]
It is common cause that OCM is vested with the sole and exclusive
right to mine and to recover
coal in/on and under the Klipbank
Portions for its own benefit and account, as well as to deal with,
remove, and sell, or otherwise
dispose of the coal, subject to the
terms and conditions of the mining right (as amended/varied), the
provisions of the Act and
any other relevant law in force for the
duration thereof.
[12]
In claim 1 (vindication), the respondent pleaded that, during the
period from 1 April 2023
to 21 June 2023, the excipient mined,
processed and/or removed 232 864 tons of coal from the Klipbank
Portions (the coal)
and OCM became the owner of the coal immediately
upon its severance from the earth in the Klipbank Portions. The
respondent pleaded
that the excipient is in possession of the coal;
alternatively, if the excipient is no longer in possession of the
coal, it disposed
of the coal knowing that OCM was the owner
thereof.
[13]
The respondent pleaded that the value of the coal is R168 146 557,
calculated as the difference
between the market price of the coal and
the costs of mining the coal and/or producing the coal in saleable
form. And that despite
demand, the defendant has failed, refused
and/or neglected to deliver the coal, alternatively make payment to
OCM in the aforesaid
amount.
[14]
Alternative to Claim 1, the respondent claims damages (Claim 2) due
to the defendant’s
conduct in mining, processing and/or
removing the coal as aforesaid. The respondent claimed that the
excipient’s action was
intentional and wrongful in that it
infringed and interfered with OCM’s mining right (as
amended/varied) read with the aforesaid
provisions of the Act. The
defendant’s unlawful conduct caused OCM to suffer damage in the
amount of R168 146 557.
[15]
Alternative to claim 1 and claim 2, the respondent claims that the
excipient has been unjustly
enriched (Claim 3) at the expense of OCM
in the amount of R168 146 557 after the excipient
misappropriated the coal from
OCM.
SUMMARY OF SUBMISSIONS
The ground on which
the exception is founded
[16]
Without repeating the common cause issues as the excipient did in the
ground on which the exception
is founded, the grounds are summarised
as follows:
16.1
Section 11 of the MPRDA prohibits, amongst other things, the cession,
transfer, assignment, alienation, or
other form of disposal of a
mining right or an interest in any such right without written
Ministerial consent.
16.2
Clause 9 of the mining rights similarly prohibits
inter alia
the cession, transfer, assignment, alienation, or other form of
disposal of the mining rights or an interest or participation in
the
right without written Ministerial consent.
16.3
The validity of the alleged cession by OCM to the respondent, on 21
March 2024, of OCM’s alleged right
to each of the respondent’s
claims against the excipient is accordingly dependent on the written
Ministerial consent in terms
of section 11 of the MPRDA.
16.4 In
the absence of Ministerial consent in terms of section 11 of the
MPRDA. The cession of the mining rights
and/or the consolidated
mining rights or an interest in such rights is void alternatively
unenforceable for want of compliance
with the peremptory provisions
of section 11 of the MPRDA; and the respondent has no right to claim
the relief in any one or more
of the alternative causes of action
pleaded in paragraphs 6 to 17 of the amended Particulars of Claim.
16.5 In
order for the amended Particulars of Claim to sustain the alternative
causes of action pleaded in paragraphs
6 to 17 thereof, it was
accordingly necessary to aver that the Minister’s written
consent, as required by section 11 of the
MPRDA, had been granted in
respect of the alleged cession by OCM to the respondent, on 21 March
2024, of OCM’s alleged right
to each of the respondent’s
alternative claims against the excipient.
16.6 In
the result, the respondent has failed to make the necessary
allegations in its amended Particulars of
Claim to disclose a cause
of action.
Respondent
submissions
[17]
In the amended Particulars of Claim, the respondent alleges that,
during the period from 1 April
2023 to 21 June 2023, the excipient
mined, processed, and/or removed 232 864 tonnes of coal from the
Klipbank portions and that
OCM became the owner of the coal
immediately upon its severance from the earth in the Klipbank
portions.
[18]
The respondent’s counsel commenced his submission by attacking
the excipient’s counsel’s
oral submissions that the
cession is invalid because the cedent did not derive any value for
ceding the claim for coal or the value
from it by pointing out that
the issue of deriving benefit from the transaction was not raised in
the exception. The exception
counsel referred to paragraphs 1.1.1;
2.1; 2.1.13 and 2.1.15 of the cession agreement, which demonstrate
that OCM was in a business
rescue and, in terms of the cession
agreement, a sale agreement was concluded on 11 June 2021 to show
that there was value derived
as a result of the sale.
[19]
The exception is framed as an attack on the plaintiff’s
locus
standi
arising from the cession by OCM. Properly analysed, the
exception is confused in its formulation and incorrect in its
premise.
It moves between alleging:
(i)
a cession of the mining right itself,
(ii) a cession of an
“interest in” that right; and
(iii) a cession of the
plaintiff’s claims.
[20]
The exception does not identify with precision what juridical
transaction is said to have occurred
to trigger the requirement of
the Ministerial consent under section 11 of the MPRDA.
[21]
On a plain reading of the plaintiff’s claim, the pleaded
transaction is clear: it is the
written cession by OCM of “its
right to each of the aforesaid claims against the defendant”.
The plaintiff’s
standing is expressly founded on the cession of
those accrued personal rights of the action. The plaintiff’s
cause of action
and
locus standi
are founded on the cession of
the accrued personal claims arising from that unlawful conduct.
[22]
The plaintiff’s cause of action does not plead or rely on; any
transfer or cession of the
mining right itself; any transfer of an
undivided share in the mining right; any lease, sublease, encumbrance
or other registrable
disposition of the mining right; any transfer of
a controlling interest in OCM; or any entitlement on the part of the
plaintiff
to exercise any of the incidents of the mining right. The
mining right is pleaded solely as the juridical source of OCM’s
exclusivity and the wrongfulness of the defendant’s conduct.
[23]
The exception never identifies with clarity whether it complains of a
cession of a mining right,
a cession of an “interest in”
that right, or a cession of personal claims derived from it. It does
not identify, with
precision, what is said to have been transferred
to trigger the section 11 Ministerial consent, nor what essential
allegation is
missing from the particulars of claim. On that basis
alone the exception is conceptually confused, internally inconsistent
and
procedurally defective, and it should fail.
Excipient
submissions
[24]
The excipient contends that, on the plaintiff’s own pleaded
case, the cession of claims
representing the value of coal allegedly
extracted pursuant to a mining right constitutes the disposal of an
“interest in
a mining right” as contemplated in section
11 of the MPRDA. On a purposive interpretation of section 11, such a
transaction
being a transfer of the economic benefit derived from the
mining right required prior written Ministerial consent. In the
absence
of any allegation that such consent was obtained, the
plaintiff’s particulars of claim fail to disclose a cause of
action
and are excepiable.
[25]
The excipient’s case is that, properly interpreted, section 11
of the MPRDA and clause
9 of the mining rights prohibit not only the
formal disposal of the mining right itself, but also the disposal of
an interest or
participation in that right, without prior written
Ministerial consent. The phrase “interest” in section 11
is not
to be given a narrow, formal or purely technical meaning. It
must be interpreted purposively.
[26]
It was further argued that, on that interpretation, the wholesale
transfer of the economic fruits
of a mining right, or of a claim
representing the value of minerals allegedly won pursuant to that
right, constitutes the disposal
of an “interest” in the
mining right. An interpretation which excludes such transfers from
the ambit of section 11
would permit a holder to retain nominal title
to a mining right while divesting itself entirely of the value
derived from that
right, whether through the cession of proceeds,
revenue streams or claims. Such an interpretation would undermine the
statutory
scheme, defeat the objects of the MPRDA, and render section
11 susceptible to circumvention by form.
[27]
It is argued that the plaintiff has pleaded not merely a procedural
entitlement to sue, but a
substantive transfer of the entire economic
benefit of a claim deriving directly from the exercise, and alleged
infringement, of
the mining right
Issues for
determination
[28]
The issue for determination by this court is whether, on the
plaintiff’s pleaded case,
the cession of claims arising from
the alleged unlawful extraction of coal constitutes the disposal of
an “interest in a
mining right” as contemplated in
section 11 of the MPRDA, thereby requiring prior Ministerial consent,
and, if so, whether
the absence of any pleaded consent renders the
particulars of claim expiable.
Analysis and
application of the law
[29]
The arguments by counsel in this matter move between the merits of
the cession agreement, the
interpretation of section 11 of the MPRDA,
contractual interpretation, and the law relating to exceptions. In an
exception, the
court is not required to decide whether the cession is
valid. The court is only required to determine whether Rule 23
permits the
amended particulars of claim to disclose a cause of
action assuming the pleaded facts are true.
[30]
Rule 18(4) and (5) provide as follows:
(4)
“
Every pleading shall contain a clear and concise
statement of the material facts upon which the pleader relies for his
claim, defence
or answer to any pleading, as the case may be, with
sufficient particularity to enable the opposite party to reply
thereto.
(5)
When in any pleading a party denies an allegation
of fact in the previous pleading of the opposite party,
he shall not
do so evasively but shall answer the point of substance
”
.
[31]
A pleading must allege the facts that are required in order to
disclose a cause of action or
defence. A pleading that states
conclusions and opinions instead of material facts, or that draws a
conclusion without alleging
the material facts which, if proved,
would warrant that conclusion, is defective
[1]
.
An exception may be raised where a pleading is vague and embarrassing
or lacks averments necessary to sustain a cause of action.
An
exception is directed at the legal sufficiency of the pleading and
not the correctness of the allegations contained therein.
For
purposes of determining the exception, every factual allegation
contained in the particulars of claim must be accepted as correct
[2]
.
[32]
The excipient bears the onus of satisfying the court that upon every
reasonable interpretation
which the pleading can bear, no cause of
action is disclosed. If evidence may be required to determine the
dispute, or if the pleading
is capable of sustaining a cause of
action on any reasonable interpretation, the exception must fail.
This is a trite principle
in our law.
[33]
In
Trope
v South African Reserve Bank
,
[3]
the court considered the meaning and scope of the basis for an
exception on the ground that a pleading is vague and embarrassing.
The court stated that:
“…
An
exception to a pleading on the ground that it is vague and
embarrassing involves a two-fold consideration. The first is whether
the pleading lacks particularity to the extent that it is vague.
The
second is whether the vagueness causes embarrassment of such a nature
that the excipient is prejudiced
.”
(My emphasis.)
The respondent's
pleaded case
[34]
The respondent alleges that it is entitled to institute an action
based on
rei vindicatio
, undue enrichment, and payment on the
basis of the cession agreement concluded on 21 March 2024, in which
OCM ceded its right to
claim the above. The cession agreement and its
terms and conditions are common cause between the parties.
[35]
The respondent does not allege that OCM transferred or ceded its
mining right. It pleads that
OCM ceded to it the personal rights of
action arising from the alleged unlawful extraction of coal by the
excipient. The pleaded
cession is therefore one of accrued claims
sounding in vindication, damages and enrichment.
[36]
The mining right is pleaded merely as the source of OCM’s
entitlement, the basis upon which
the alleged unlawfulness is
established, not the subject matter of the cession. This is an
important distinction.
Whether the exception
correctly identifies the pleaded cause of action
[37]
The excipient’s argument proceeds on the premise that the
respondent pleads a cession of
a mining right or an interest in a
mining right. However, the particulars of claim do not expressly
plead either. Rather, they
plead a cession of personal claims.
Whether section 11 of
the MPRDA is capable of determination on exception
[38]
The excipient contends that the cession falls within section 11 of
the MPRDA because it constitutes
the disposal of an “interest”
in a mining right. Deciding that question requires considerably more
than simply reading
the pleadings. The court would have to determine:
38.1
What constitutes an “interest”;
38.2
Whether accrued claims constitute such an interest;
38.3
Whether economic value is synonymous with an interest in a mining
right;
38.4
The legal effect of clause 9;
38.5
The purpose of section 11; and
38.6
Whether ministerial consent was legally required.
[39]
Enquiry into each of these issues involves statutory interpretation,
potentially interpretation
of the cession agreement and potentially
evidence. These are matters ordinarily determined at trial.
[40]
The present exception necessarily assumes that the cession agreement
amounted to a disposal contemplated
in section 11. Whether that
assumption is correct depends upon the proper interpretation of the
cession agreement read together
with the MPRDA. Courts are generally
reluctant to determine contractual interpretation upon exception
unless the document is unambiguous.
[4]
[41]
The question is not whether consent was obtained. The question is
whether the respondent is required
to plead the Minister’s
written consent in order for its particulars of claim to disclose a
cause of action? This is really
the decisive issue.
[42]
If the pleaded cession is merely a cession of accrued personal
claims, then ministerial consent
is not self-evidently a
jurisdictional fact. Only after deciding that section 11 applies
could the court conclude that consent
became a necessary allegation.
Since that first issue cannot be determined on exception, the second
cannot succeed.
[43]
The excipient’s submissions ultimately invite the Court to
pronounce upon the validity
and enforceability of the cession
agreement. Those are issues falling to be determined upon the
evidence at trial. The present
enquiry is considerably narrower. It
is confined to whether the amended particulars of claim disclose a
recognisable cause of action.
[44]
Claim 1 (Vindication), Claim 2 (Damages), and Claim 3 (Enrichment)
are each recognised in law.
Each is pleaded through the cession.
Whether the respondent ultimately proves its entitlement is another
matter.
[45]
The exception therefore proceeds from a premise different from the
pleaded cause of action.
Conclusion
[46]
The excipient has not demonstrated that upon every reasonable
interpretation of the amended particulars
of claim the respondent has
failed to disclose a cause of action. The exception depends upon
accepting, as a matter of law, that
the cession of accrued personal
claims necessarily constitutes the disposal of an interest in a
mining right requiring Ministerial
consent under section 11 of the
MPRDA. That conclusion is neither self-evident from the pleadings nor
capable of determination
without interpreting both the cession
agreement and the statutory framework. Those are matters more
appropriately determined at
trial.
[47]
None of the narrative on interpretation fills the void of what the
applicant must prove under
the application exception. Their argument
should mirror the principles of the exception. The exception must
accordingly fail.
[49]
WHEREFORE THE FOLLOWING ORDER IS MADE
Order
1.
The exception should be dismissed with costs including the costs of
two counsel,
one being senior counsel.
JT LESO
ACTING JUDGE OF THE HIGH
COURT
MPUMALANGA DIVISION,
MIDDELBURG
Appearances
For
the Defendant/Excipient:
Adv.
P.G. Cilliers SC with Adv. J.L. Mÿburgh
Instructed
by:
JW
Botes Incorporated
For
the Respondents:
Adv
G. Wickins SC with Adv L. VR. Van Tonder
Instructed
by:
Smit
Sewgoolam Incorporated
Heard:
3
March 2026
Delivered:
04
August 2026
[1]
Buchner
v Johannesburg Consolidated Investment Co Ltd
1995
(1) SA 215
(T)
at
216I–J
,
where the court was dealing with a simple summons, but referred to
rule 18(4), which applies to pleadings
[2]
See
Colonial
Industries Ltd v Provincial Insurance Co Ltd
1920
CPD 627
at 630,
the the court said the following:
‘
...the
form of pleading known as an exception is a valuable part of our
system of procedure if legitimately employed: its principal
use is
to raise and obtain a speedy and economical decision of questions of
law which are apparent on the face of the pleadings:
it also serves
as a means of taking objection to pleadings which are not
sufficiently detailed or otherwise lack lucidity and
are thus
embarrassing
.’
Also in
Kahn
v Stuart
1942
CPD 386
at 391: Where the court stated that ‘
the
exception is used, apparently, once to be thought that the
object of an exception was to embarrass your opponent. That
is not
the true object of an exception at all. The true object of an
exception is either, if possible, to settle the case, or
at least
part of it, in a cheap and easy fashion, or to protect oneself
against an embarrassment which is so serious as to merit
the costs
even of an exception. In my opinion, the court should not look at a
pleading with a magnifying glass of too high power.
If it does so,
it will be almost bound to find flaws in most pleadings —
except formal replications, but certainly including
the present
exception itself. It is so very easy, especially for busy counsel,
to make mistakes here or there, to say too much
or too little, or to
express something imperfectly
.’
[3]
Trope
v South African Reserve Bank and Another and Two Other Cases
1992 (3) SA 208
(T) at 211A-B.
[4]
Cilliers
et
al
“Herbstein and Van Winsen: Civil Practice of the High Courts
and the Supreme Court of Appeal of South Africa” 5th
Ed, 2009,
ch22-p639.