THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
In the matter between:
THE NORWEGIAN INVESTMENT FUND
FOR DEVELOPING COUNTRIES
and
ONE THOUSAND AND ONE VOICES AFRICA I
(MAURITIUS) LIMITED
MDI CONSULTANCY SERVICES AG
REDSUN DRIED FRUIT AND NUTS
(PROPRIETARY) LIMITED
JOHANNES JOUBERT SMIT
Reportable/Not Reportable
Case no: 2026 - 186153
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Neutral citation: The Norwegian Investment Fund For Developing Countries v One
Thousand and One Voices Africa I (Mauritius) Limited and Others
(2026 - 186153) 28 August 2026.
Coram: Mamosebo J.
Heard: 14 August 2026.
Delivered: 28 August 2026.
2
Summary: Urgent application - Interim interdictory relief - Application challenged
on three grounds - (a) Jurisdiction, (b) Urgency, and (c) Availability of substantial
redress in due course - Requirements for an interdict not met-Application dismissed.
ORDER
1. The forms, service and time periods provided for in the Uniform Rules of Court
are dispensed with, and the applicant's non-compliance therewith is
condoned, and the matter is heard as one of urgency in terms of Rule 6(12).
2. The application is dismissed with costs, such costs to include those
consequent upon the employment of two counsel on scale C as set out in
Rule 67 A read with Rule 69 of the Uniform Rules of Court.
JUDGMENT
MamoseboJ
[1] The Norwegian Investment Fund for Developing Countries ("the Fund")
approached this Court on an urgent basis, seeking an interim interdict pending
arbitration of the parties' dispute in respect of four ordinary shares in the third
respondent, Redsun Dried Fruit and Nuts (Proprietary) Limited ("Redsun").
Essentially, the interdict sought would in effect (a) restrain the first respondent,
One Thousand and One Voices Africa I (Mauritius) Limited ("1K1V"), from
dealing with the four shares, and restrain Redsun from registering, recording or
recognising a transfer of the shares in its securities register; and (b) restrain
1 K1V from selling and alienating in any manner its four ordinary shares in
Redsun to any person other than the Fund.
3
[2] 1 K1V opposed the application on three grounds: first, lack of jurisdiction;
second, lack of urgency or that the alleged urgency was self-created; third, the
availability of substantial redress for the Fund in the ordinary course. I consider
the three grounds below.
Lack of jurisdiction
[3] Ms Pillay SC, appearing for 1 K1V, referred the Court to clause 29.2 of the
Shareholders' Agreement (FA3) which stipulates:
'Each party hereby consents and submits to the non-exclusive jurisdiction of the South
Gauteng High Court for the purposes of all or any legal proceedings arising from or
concerning this Agreement.'
[4] Counsel pointed out that these proceedings were brought before this Court
despite the Fund's knowledge of the existence of clause 29.2, and under the
circumstances where only Redsun has its place of business within the
jurisdiction of this Court. In this regard, Ms Pillay submitted that 1 K1V is
Mauritius-incorporated; the second respondent, MDI Consultancy Services AG
is Swiss-incorporated with its registered address in Switzerland; and the fourth
respondent, Mr Johannes Joubert Smit resides in Somerset West, Western
Cape Province. Mr Roux SC, for the Fund, submitted that this Court's
jurisdiction is founded on s 21(2) of the Superior Courts Act1 in that a Division
which has jurisdiction over a cause also has jurisdiction over a person outside
its area who is joined as a party to that cause. This reflects the common law
principle of causa continentia, so argued Counsel.
[5] Section 21 of the Superior Courts Act stipulates:
'Persons over whom and matters in relation to which Divisions have jurisdiction
(1) A Division has jurisdiction over all persons residing or being in, and in relation to
all causes arising and all offences triable within, its area of jurisdiction and all
other matters of which it may according to law take cognisance, and has the
power-
1 10 of 2013.
4
(c) in its discretion, and at the instance of any interested person, to enquire into
and determine any existing, future or • contingent right or obligation,
notwithstanding that such person cannot claim any relief consequential upon
the determination.
(2) A Division also has jurisdiction over any person residing or being outside its area
of jurisdiction who is joined as a party to any cause in relation to which such court
has jurisdiction or who in terms of a third party notice becomes a party to such a
cause, if the said person resides or is within the area of jurisdiction of any other
Division . .. .'
[6] Mr Roux further relied on clause 29.3 of the Shareholders' Agreement, which
provides that any High Court with jurisdiction can be approached for relief on
an urgent or interlocutory basis. Ms Pillay, relying on Hamissie v Minister of
Police and Another,2 argued that the causes of action against 1K1V and the
causes of action against Redsun are both factually and legally distinct. Only
once the Fund succeeds in obtaining an interdict can the relief against Redsun
be reached. Therefore, Counsel argued, causa continentia cannot provide a
basis for this Court to have jurisdiction.
[7] Leach JA in Foize Africa (Pty) Ltd v Foize Beheer BV and Others3 ("Foize
Africa)" reaffirmed the principle that the parties cannot by contract oust the High
Court of jurisdiction conferred to it by statute or common law. The Court has a
discretion as to whether to enforce the forum-selection clause, having
considered all the facts and circumstances of a particular case.
[81 It is necessary to distinguish between the existence of jurisdiction and the
exercise thereof. A contractual forum-selection clause does not, without more,
deprive a High Court of jurisdiction otherwise conferred by statute. It remains
open to a court with jurisdiction to determine whether, in exercising its discretion
and having regard to the parties' Agreement, it should entertain the matter. The
and having regard to the parties' Agreement, it should entertain the matter. The
2 (740/22) [2026] ZANWHC 113 (14 April 2026).
3 2013 (3) SA 91 (SCA) paras 20-22.
5 •
enquiry is therefore not confined to whether this Court has jurisdiction, but is
also about whether sufficient grounds have been established for departing from
the forum selected by the parties.
[9] The parties have consented to the jurisdiction of the South Gauteng High Court.
The Fund has not advanced any compelling reasons why this Court should not
give effect to the parties' freely negotiated forum selection. Nor has the Fund
demonstrated that the enforcement of the forum-selection clause would be
unreasonable, oppressive, contrary to public policy, or productive of substantial
injustice.4 In commercial matters, considerations of certainty and predictability
ordinarily favour the enforcement of freely negotiated forum-selection clauses.
[10] Section 21 of the Superior Courts Act, in my view, does not override a
contractual forum-selection clause but merely identifies when a Division has
jurisdiction. Likewise, clause 29.3 of the Shareholders' Agreement cannot be
construed as conferring jurisdiction upon a court that otherwise lacks it.
Properly interpreted, the clause preserves the parties' entitlement to seek
urgent or interlocutory relief in a court otherwise possessing competent
jurisdiction, but does not create jurisdiction where none exists.
[11] It may well be that this Court would ordinarily have jurisdiction in so far as the
relief sought against Redsun is concerned. However, I am not persuaded in
respect of the interconnectedness of the causes of action for the principle of
causa continentia to apply. In other words, I am not convinced that this Court
can be said to have jurisdiction "over a part of a cause" wherein it has not been
established that the relief sought against Redsun is not merely
consequential/accessory to the relief sought against 1 K1V.5 Even the deponent
to the founding affidavit, Mr Johan Andries Ismael Kemp, said the following at
paragraph 1 0: 'the applicant seeks limited accessory relief against the third
paragraph 1 0: 'the applicant seeks limited accessory relief against the third
respondent. and as such, no costs are sought against the third respondent
unless the third respondent elects to oppose this application.' Importantly, the
4 See generally Beadica 231 CC and Others v Trustees, Oregon Trust and Others 2020 (5) SA 247
(CC); 2020 (9) BCLR 1098 (CC) para 102.
5 See generally Permanent Secretary, Department of Welfare, Eastern Cape, and Another v Ngxuza
and Others 2001 (4) SA 1184 (SCA) at 1201.
6
parties, in this instance, have included the forum-selection clause in the
Shareholders' Agreement to serve a legitimate commercial purpose. The Fund
has not made a strong case that it should not be bound by the Agreement and
that this Court should exercise its discretion to the Fund's favour.
(12] It is also desirable, as affirmed in Foize Africa6, to avoid a multiplicity of actions
in different courts with the associated potential of conflicting decisions. It
follows, therefore, that in the light of the facts argued before me as well as the
surrounding factors pertaining to jurisdiction, I am not satisfied that the Fund
has made a case for causa continentia to apply. Accordingly, 1 K1V's opposition
ground based on lack of jurisdiction stands to be upheld. Even if I am wrong in
my conclusion regarding jurisdiction , the application falls to be dismissed for
the additional reasons discussed below relating to urgency and the substantive
requirements for interim interdictory relief.
Urgency
[13] As alluded to above, the Fund seeks interim interdictory relief pending the final
determination of the dispute declared by the Fund on 20 July 2026 in
accordance with clause 23 of the Shareholders' Agreement concluded on or
about 11 April 2022 ("ROFO Dispute"), including any arbitration arising from
that dispute. To ground the urgency relied upon, the Fund contended that:
(a) if 1 K1V were to transfer the four ordinary shares to Mr Smit, the transferee,
before the ROFO Dispute has been resolved, the transferee will not be a
party to the agreement and will not be bound by the arbitral process;
(b) an award in the Fund's favour will not without more procure registration of
the shares in the Fund's name;
6 Supra fn 3 para 28.
7
(c) the Fund will be compelled to litigate against the third party and possibly
other affected parties to vindicate its asserted rights to the First Offer
Shares;
(d) the Fund will incur additional delay and costs in attempting to reverse a
completed transaction; and
(e) the practical efficacy of the agreed arbitration will be materially diminished.
[14] The Fund, invoking the principle in Nelson Mandela Metropolitan Municipality
and Others v Greyvenouw CC and Others, 7 also contended that, because it first
attempted to explore a commercial solution by involving a potential joint sale of
the respective shareholdings, it cannot be faulted for the delay in bringing the
urgent application because the process would have avoided this application.
According to the Fund, the delay is only of 4 days. The Fund denies that the
urgency is self-created.
[15] 1 K1V countered the aforementioned submission on urgency, on three grounds.
First, that the Fund did not rise up to the test as elucidated in Luna Meube, to
justify the extent to which timelines have been abridged in bringing the
application; second, that the alleged urgency is self-created; and third, that the
Fund can obtain substantial redress in the ordinary course.
[16] Rule 6(12) of the Uniform Rules of Court requires the applicant to set out
explicitly the circumstances rendering the matter urgent and the reasons why it
cannot obtain substantial redress at a hearing in due course.9 The enquiry into
urgency is not limited to whether an applicant ultimately faces prejudice. The
applicant must also explain, with particularity, why the matter could not have
proceeded in accordance with the ordinary Rules and why the degree of
7 2004 (2) SA 81 {SE).
8 Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (tla Makin's Furniture Manufacturers)
1977 (4) SA 135 (W) at 137F.
9 East Rock Trading 7 (Ply) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767)
[2011) ZAGPJHC 196 {23 September 2011); 2011 JDR 1832 (GSJ) paras 6 and 7.
8
procedural deviation adopted was justified. The greater the departure from the
ordinary processes of the Court, the more compelling the explanation required.
[17] 1 K1V contended that the Fund failed to act with expedition, effectively letting a
period of eight weeks to lapse despite being aware eight weeks prior that 1 K 1 V
had taken a stance on the Fund's conditional acceptance of the four ordinary
shares (ROFO shares). There was also no explanation for the severely
truncated timelines within which 1 K1V was to file a notice to oppose the
application, or for the filing of its answering affidavit, so argued 1 K1V.
[18] Insofar as the Fund's contention of first exploring a commercial solution is
concerned, 1 K1V not only argued that the facts in Nelson Mandela Metropolitan
are distinguishable, but also maintained that the Fund was engaged in a
different process concerning its potential exit as a shareholder which had
nothing to do with the ROFO shares. The Fund knew from 9 June 2026 when
1 K1V informed it that it was not willing to accept the Fund's conditional
acceptance of the four ordinary shares. The Fund nevertheless held back until
31 July 2026 thus launching this application about eight weeks later.
[ 19] Even accepting in the Fund's favour that commercial discussions were pursued
in good faith and in an attempt to avoid litigation, the papers do not satisfactorily
explain why the application thereafter proceeded on the highly truncated
timetable ultimately adopted. The fact that parties engage in settlement
discussions does not, without more, relieve an applicant of the obligation to
approach the Court with due expedition once the imminence of litigation
becomes reasonably foreseeable.
The requirements for an interim interdict
[20) The requirements for an interim interdict are trite, namely (a) a clear right or a
prima facie right, though open to some doubt; (b) an injury actually committed
or reasonably apprehended; (c) the balance of convenience must favour the
or reasonably apprehended; (c) the balance of convenience must favour the
applicant; and (d) the absence of similar protection by any other ordinary
9
remedy.10 These requisites must be met for an applicant to succeed in obtaining
interim interdictory relief.
Prima facie right
[21] The Fund averred that it has established a prima facie right, even if open to
some doubt, arising from its unconditional acceptance of the ROFO shares. It
relies on its response marked "FAT' dated and signed on 29 May 2026 that its
acceptance was unconditional, establishing, as it is, a prima facie right. It is
necessary to quote FA7 in full:
'RE: REDSUN DRIED FRUIT AND NUTS PROPRIETARY LIMITED - RIGHT OF
FIRST OFFER NOTICE DATED 30 APRIL 2026
1. We refer to our letter dated 15 May 2026 (Information Request) in which Norfund
requested certain documents and information to enable it to properly assess the
right of first offer notice dated 30 April 2026 issued by 1 K1V (ROFO Notice).
2. Capitalised terms used in this letter but not defined herein bear the meaning given
to them in the ROFO Notice.
3. We acknowledge receipt of the email response to our Information Request dated
25 May 2026. Norfund records that this response is wholly inadequate to enable
Norfund to make a properly informed assessment of the ROFO Notice, including
the valuation methodology underpinning the First Offered Purchase Price. Norfund
notes, in particular, that certain of the information requested in the Information
Request would, in the ordinary course, have been made available to the third party
purchaser to enable it to formulate a bona fide offer for the First Offered Shares at
the First Offered Purchase Price. 1 K1 V's failure to furnish Norfund with equivalent
information is noted and Norfund reserves all of its rights in this regard.
4. In light of the inadequacy of the information provided, Norfund is unable to confirm
its agreement with the valuation methodology underlying the First Offered
Purchase Price. Norfund's acceptance of the First Offer (as set out below) shall not
be construed as an endorsement of, or agreement with, such evaluation
be construed as an endorsement of, or agreement with, such evaluation
10 Setlogelo v Setloge/o 1914 AD 221 at 227.
10
methodology. Notwithstanding the foregoing, the ROFO acceptance period expires
today, 29 May 2026.
5. Norfund hereby accepts the First Offer as contained in the ROFO Notice to acquire
the First Offered Shares (being a total of 4 ordinary par value shares in the
Company) for the First Offered Price (being an aggregate amount of
ZAR 8 786 127).
6. As requested in terms of paragraph 5.1 of the ROFO Notice, Norfund's
countersigned ROFO Notice is attac~ed hereto. Norfund confirms that it has
accepted the First Offer in respect of all (and not only part) of the First Offered
Shares and that its acceptance is unconditional.
7. As you are aware, in terms of clause 12 of the Shareholders Agreement, in
connection with Norfund's investment in the Company, 1 K1V and MDI undertook
to provide Norfund with a USO IRR of a minimum of 8% on its investment in the
Company. Norfund records that the First Offered Purchase Price shall be included
in Norfund's investment in the Company for purposes of calculating its uso IRR
return on investment upon the occurrence of an IRR Trigger Event (as defined in
clause 12.2 of the Shareholders Agreement). For the avoidance of doubt, the
acquisition by Norfund of the First Offered Shares does not constitute, and shall
not be deemed to give rise to, an IRR Trigger Event.
8. Norfund is ready to consummate the acquisition of the First Offer Shares within the
20-business day period contained in clause 13.6 of the Shareholders Agreement.
9. Nothing in this letter, including Noriund's acceptance of the First Offer, shall
constitute a waiver of any of Norfund's rights under the Shareholders Agreement,
at law or otherwise, including (without limitation) any rights Norfund may have
arising from 1 K1V's failure to adequately respond to the Information Request or
any non-compliance by 1K1V with the provisions of the Shareholders Agreement
in connection with the ROFO Notice. All such rights are expressly reserved.'
(Emphasis added.)
(Emphasis added.)
[22] Mr Roux referred the Court to 001-97 (FA4) in the papers where the following
appears to bolster the Fund's contention of a prima facie right: 'By
countersigning and returning a signed copy of this letter to 1 K1V and the
11
Company, you hereby accept the First Offer on the terms and conditions set
out in this letter and agree that this letter shall constitute the agreement reached
between 1K1V and yourself on this matter'. At 001-98 (FA5) paragraph 5, the
Fund also wrote: 'To enable Norfund to fully and properly assess the ROFO
Notice on an informed basis, please provide the following documents and
information: .. . ' The request was denied by email on 25 May 2026 (FA6).
[23] It is not necessary at this stage finally to determine the proper interpretation of
the Shareholders' Agreement or the legal effect of the Fund's correspondence.
Those issues may ultimately fall for determination in arbitration proceedings.
The present enquiry is narrower, namely whether the Fund has demonstrated
a prima facie right, though open to some doubt, sufficient to warrant interim
protection.
[24] Clause 13.5 of the Agreement states that acceptance of the first offer may not
be subject to any conditions. Contract law requires acceptance to be clear,
unequivocal, and unambiguous.11 In paragraph 9 of the purported acceptance
letter, the Fund expressly reserves its rights to later contest aspects of the terms
of the transaction and alleges non-compliance with the Shareholders'
Agreement. In paragraph 4, the Fund expressly records its disagreement with
the valuation methodology and reserves its rights in that regard. Paragraph 7
introduces additional statements regarding the treatment of the acquisition for
purposes of calculating the Fund's IRR.
[25] At the very least, the contents of paragraphs 3, 4, 7 and 9 of the letter create
substantial uncertainty as to whether the acceptance relied upon by the Fund
was clear, unequivocal and entirely unqualified as contemplated by clause 13.5.
An objective reading of the correspondence reveals an acceptance
accompanied by reservations relating to valuation methodology, future rights
and the treatment of the acquisition for IRR purposes.
11 Boerne v Harris 1949 (1) SA 793 (A) at 808-9.
12
[26) Whether these reservations ultimately amount to conditions is a matter that may
require determination in arbitration. However, they materially weaken the
Fund's contention that an immediately enforceable contractual entitlement has
been established. Viewed objectively, and without finally deciding the issue, the
Fund's purported acceptance does not plainly accord with the requirements
contemplated by clause 13.5 of the Shareholders' Agreement. In the
circumstances, it does not follow that the Fund has established a prima facie
right, even if open to some doubt.
Reasonable apprehension of harm
[27] According to the Fund, 1 K1V asserts that it will transfer the First Offer shares
under clause 13.7 of the Agreement. In this regard, the Fund's contention is
that its apprehension of harm stems not only from 1K1V's refusal to preserve
the shares but also from 1 K1V's failure to disclose when the transfer will occur.
Once the shares are placed in the hands of a person who is not a party to the
Shareholders' Agreement and thus not bound by the arbitral proceedings, it
would be difficult to reverse that transaction without experiencing delays and
incurring costs.
[28) 1 K1V maintains that the Fund still bears the onus to demonstrate that it has a
well-grounded apprehension that it will suffer irreparable harm should the
interim relief it seeks not be granted. 1 K1V argued that the harm pleaded by
the Fund is that the ROFO shares will pass to a person who is not a party to
the arbitral process, thereby undermining the efficacy of the agreed process
and compelling the Fund to litigate against the third party to vindicate its
asserted rights to the First Offer shares. It was submitted that nothing stops the
Fund from continuing with the arbitration process and in the likelihood that the
award is in its favour, 1K1V has 237 ordinary shares in Redsun from which the
four ordinary shares can be transferred. 1 K1V maintains that the Fund has not
four ordinary shares can be transferred. 1 K1V maintains that the Fund has not
alleged irreparable harm under the circumstances .
13
[29) The Constitutional Court in Tshwane City v Afriforum and Another12 ("Tshwane
City") insightfully remarked:
'Within the context of a restraining order, harm connotes a common-sensical,
discernible or intelligible disadvantage or peril that is capable of legal protection. It is
the tangible or intangible effect of deprivation or adverse action taken against
someone. And that disadvantage is capable of being objectively and universally
appreciated as a loss worthy of some legal protection, however much others might
doubt its existence, relevance or significance. Ordinarily the harm sought to be
prevented through interim relief must be connected to the grounds in the main
application.'
[30) The difficulty with the Fund's case is that the harm alleged is predicated largely
upon anticipated procedural inconvenience, additional litigation, delay and
costs. While these considerations are not irrelevant, they do not, on the papers
before me, establish that any subsequent arbitral award or other competent
relief would be rendered ineffective. The Fund has not shown that the
consequences of a transfer would be incapable of reversal or incapable of being
addressed through appropriate legal remedies.
The Constitutional Court further pronounced13:
'Irreparable [harm] implies that the effects or consequences cannot be reversed or
undone. Irreparable therefore highlights the irreversibility or permanency of the injury
or harm. That would mean that a favourable outcome by the court reviewing allegedly
objectionable conduct cannot be an order that would effectively undo the harm that
would ensue should the interim order not be granted.'
I am not persuaded that the Fund has made out a case of irreversible harm. It
is clear that the harm, should it be found to exist at the arbitration proceedings,
can still be undone. It follows that the Fund has not established a well-grounded
apprehension of harm and also fails in this score.
Balance of convenience
12 2016 (6) SA 279 (CC) para 56.
Balance of convenience
12 2016 (6) SA 279 (CC) para 56.
13 Ibid para 59.
14
[31] This Court must weigh the prejudice the Fund would suffer if the shares are
transferred before the arbitration proceedings, against the prejudice to 1 K1V if
the shares are preserved pending arbitration. The Fund contended repeatedly
that the shares will pass to a non-party, that the efficacy of the arbitration will
be impaired, and litigation will be unavoidable. The Fund relies on the following
to bolster its argument that the balance of convenience favours it: the prejudice
that will be suffered by ~ K1V is relatively limited because the interim relief
neither declares the Fund as owner nor orders immediate transfer; the duration
of the restraint lasts only until the arbitral award which will determine the ROFO
dispute; the order will lapse should the Fund fail to refer the dispute to arbitration
after the expiry of the 21-day period; should the Fund succeed it will pay the
First Offer price specified by 1K1V; and should the Fund not succeed in the
arbitration, however, the restraint will lapse and 1K1V may exercise its rights
as stipulated in the Shareholders' Agreement.
[32] 1K1V contended that the Fund seeks to constrain how 1K1V deals with its
shares for an indefinite period. To dispel the assertion by the Fund that the
balance of convenience is in its favour, 1 K1V invoked Tshwane City14 where
the Constitutional Court described balance of convenience in this fashion:
' ... This requirement recognises that in an application for a temporary restraining order
there will invariably be at least two competing interests. And those interests are
inextricably linked to the harm a respondent is likely to suffer in the event of the order
being granted and the harm likely to be suffered by an applicant if the relief sought is
not granted.'
Having considered the submissions concerning prejudice on either side, should
the relief be granted or not be granted? I am not satisfied that the balance of
convenience favours granting the Fund the interim relief sought. The Fund has
convenience favours granting the Fund the interim relief sought. The Fund has
not persuasively demonstrated the prejudice that it is likely to suffer.
[33] Furthermore, the strength of an applicant's asserted right remains an important
consideration when assessing the balance of convenience. Where the
14 Ibid para 62.
15
existence of the prima facie right relied upon is itself open to substantial doubt,
the prejudice said to be suffered by an applicant must carry correspondingly
less weight in the balancing exercise.
Alternative remedies
[34) The Fund argued that although the parties have contractually agreed to
arbitration as the agreed remedy, arbitration does not restrain a transfer
pending the arbitral award, hence clause 23.4 of the Shareholders' Agreement
permitting urgent relief. Whether the Fund will pursue a damages action, an
application to reverse the transaction, or an attempt to obtain substitute shares;
all of these will require additional proceedings, which the Fund is trying to
prevent. For the aforementioned reasons, the Fund contended that there is no
adequate alternative remedy. To counter the Fund's submission, 1 K1V is
adamant that the Fund's available alternative remedy to enforce its rights
according to the Shareholders' Agreement is arbitration. Should the arbitrator
find that the sale of shares was unlawful, there are a host of other remedies
available to the Fund, so argued 1 K1V.
[35) A party must show that no alternative remedy exists and that the court should
grant the relief sought. The existence of an alternative remedy does not require
that such remedy be identical to the relief sought in these proceedings. The
question is whether the available remedy affords substantial redress. The Fund
correctly points out that arbitration does not by itself preserve the status quo
pending determination of the dispute. However, the Fund has not demonstrated
on the papers that the arbitral process, together with any consequential
remedies that may flow from a favourable award, would be ineffective or
incapable of affording it meaningful relief/substantial redress. The availability of
arbitration and other remedies that may offer substantial redress following a
favourable award therefore weighs against the granting of interim interdictory
relief in the circumstances of this matter.
relief in the circumstances of this matter.
[36] There was a notice filed by 1 K1V in terms of Rule 6(5)(e) of the Uniform Rules
of Court in which Mr Trent Jordan Hudson was seeking this Court's indulgence
16
to file an additional affidavit to clear up the averments made by the deponent of
the replying affidavit. The parties did not entertain this application during their
oral submissions; therefore, nothing turns on it.
[37] It bears emphasis that the Court has not determined finally the parties'
contractual rights arising from the Shareholders' Agreement or the disputed
ROFO process. Those issues remain capable of determination in the agreed
arbitral forum. The findings contained in this judgment are confined to the
requirements for urgent interim relief and should not be understood as finally
disposing of the substantive dispute between the parties.
[38] .I am now left with the question of costs. The generally trite principle is that costs
follow the result, and I have no reason to deviate therefrom. The parties
submitted that the matter was complex and justified the employment of senior
and junior counsel. I agree.
[39] As a result, the following order is made:
1. The forms, service and time periods provided for in the Uniform Rules of
Court are dispensed with, and the applicant's non-compliance therewith
is condoned, and the matter is heard as one of urgency in terms of
Rule 6(12).
2. The application is dismissed with costs, such costs to include those
consequent upon the employment of two counsel on scale C as set out in
Rule 67A read with Rule 69 of the Uniform Rules of Court.
MC MAMOSEBO
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Appearances
For the Applicant:
Instructed by:
For the 1st Respondent:
Instructed by:
Adv. B Roux SC with Adv . R Pottas
Baker McKenzie Inc
c/o Van de Wall Inc
Adv. K Pillay SC with Adv . S Ebrahim
Webber Wentzel Attorneys
c/o Elliott Maris Attorneys
17