National Union of Mineworkers v Optimum Coal Terminal (Pty) Limited and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Chetty J |
| Judgment Date | 01 March 2023 |
| Docket Number | D531/2023 |
| Hearing Date | 16 February 2023 |
| Court | KwaZulu-Natal Local Division, Durban |
Chetty J:
The applicant in this matter, the National Union of Mineworkers (NUM) launched an urgent application to intervene in the main dispute between Optimum Coal Mine (OCM), Optimum Coal Terminal (OCT) and Richards Bay Coal Terminal (RBCT) and in which it sought interim relief pending the determination of the main application. This application was issued on Thursday, 2 February 2023 and set down for hearing on Monday, 6 February 2023. The papers were served on the first respondent (RBCT) on 2 February 2023. RBCT was the only entity that opposed the application. At the same time, various other voluminous affidavits were filed in the main application involving OCM, OCT, the National Prosecuting Authority (NPA) as well as the second and third respondents, being Templar Capital and Liberty Coal respectively. When the matter came before my colleague, Balton J, in the motion court on 6 February 2023, the papers had expanded to being in excess of 6 000 pages. It was impossible for all of these papers to have been read over the weekend, and the application was accordingly adjourned by consent of the parties, who were able to secure an earlier date of 16 February 2023 for the hearing of the matter on the opposed roll.
It is perhaps prudent at the outset to record that while access to the courts is guaranteed to all to have their disputes adjudicated, courts are not to be abused by
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litigants with a deluge of papers at short notice, only for the legal representatives to conclude amongst themselves that it would not be possible for the court to hear the matter on the allocated date when it was originally set down. Litigants are to be mindful of the case load of judges, particularly where it is expected that apart from other matters on the motion court roll, attention should also be given to reading several thousand pages at short notice. Convenience to the court and the judges presiding is an important consideration when deciding to launch urgent litigation of this nature. The failure to do so, in my view, is tantamount to an abuse of the court process.
As stated earlier, the urgent relief sought by NUM was for it to be granted leave to intervene as a 'third party' in the main application between OCT and OCM against RBCT. The main application in essence concerns a contractual dispute in which RBCT terminated, on 31 January 2023, OCM and OCT's entitlement to use the facilities at the coal terminal in Richards Bay for the purpose of exporting coal. On 6 February 2023 an order was taken by consent in terms of which NUM was granted leave to intervene as an applicant in the main application and that its founding affidavit in the intervening application, be admitted as part of the papers in the main application. The parties, subject to other procedural issues concerning the exchange of further affidavits, agreed to have NUM's interim application for a status quo order argued on 16 February 2023. Accordingly, the issue for determination was that set out in paragraph 4 of the notice of motion, which reads as follows:
That the status quo (as it existed before 31 January 2023) be preserved by interdicting RBCT with immediate effect from doing any of the following until this court finally determines the urgent relief claimed in the main application by the first and second applicants:
interfering with or preventing the first applicant's use of the Richards Bay Coal Terminal ('the Terminal') and the land, buildings, machinery, plant, equipment, and installations as they exist at the terminal in the same way as first applicant or its nominees or agents have been using these facilities at all material times before 31 January 2023, for the exportation of coal through the terminal;
transferring or terminating the first applicant's right to use the Terminal and the land, buildings, machinery, plant, equipment, and installations as they exist at the terminal in the same way as first applicant or its nominees or agents have been
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using these facilities at all material times before 31 January 2023, for the exportation of coal through the terminal; and
initiating a transfer of ownership of the first applicant's shareholder interest (as defined in clause 1.1.52 of the Shareholders Agreement).'
By the time the matter came before me, NUM had whittled down the papers to just over 800 pages, which it contended were relevant to the determination of the relief it sought. RBCT on the other hand contended both in its answering affidavit and in its heads of argument that the relief sought by NUM could not be determined in a silo, and divorced from the main application. For that reason, RBCT contends that the application is intrinsically linked to the main application pursued by Optimum [1] , and therefore this application by NUM is either to be dismissed or adjourned for determination at the time of the main application being heard. At the request of RBCT's legal representatives, a further set of documents was filed, increasing the volume of documents in excess of 2 500 pages. In either eventuality (of the application being dismissed or adjourned to be heard with the main application), RBCT contends that it should be awarded its costs in opposing the application. NUM on the other hand contends that the relief which it seeks, described as 'interim interim relief' is urgent in light of the impact that the contractual dispute between the parties in the main application, has for their members, and the adverse impact on their right to earn a livelihood.
At the hearing on 16 February 2023, counsel for the applicants in the main application as well as those appearing on behalf of the business rescue practitioners were present, but did not participate in the merits of the application. Conspicuously, there was no appearance for the NPA, which had secured an order in the Gauteng High Court, Pretoria on 23 March 2022, in terms of which all shares held in the OCT as well as the business of OCM were preserved in terms of s 38 of the Prevention of Organised Crime Act 121 of 1998.
The judgment of the Gauteng High Court by Justices Fourie and Mbongwe further prevented the disposal of the business of OCM unless the curator bonis appointed by the court (Mr P F van den Steen) and the business rescue practitioners
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in respect of OCM and OCT agreed to do so in writing, or where the court has issued an order authorising such disposal. Importantly, in terms of the order referred to above, the curator bonis was authorised to 'assume control of the property'. To the extent that the curator was clothed with the necessary authority with regard to the shares and shareholding forming part of OCT and OCM, the order directed that the curator 'act as shareholder in place and stead of the relevant owners'.
In their opposing affidavit, RBCT pointed out that neither the NPA nor the curator were joined as parties in the application brought by NUM. To this end, it was contended by RBCT's counsel that the court is entitled to take into account what the NPA (who have been granted leave to intervene as a party in the main application) stated in its affidavits in the main application. Similarly, it was contended that regard could be had to the report filed by the curator pursuant to the order of the Gauteng High Court. During the course of his argument, counsel for NUM referred to extracts from the NPA's affidavit, which it submitted supported NUM's claim to the relief it seeks in this application. That was disputed by RBCT. Reference will be made below to those particular aspects of the NPA's affidavit.
Prior to the commencement of the hearing RBCT filed an application in terms of Uniform rule 7(1) challenging the authority of those representing NUM to bring the present proceedings. In this regard a supporting affidavit to the challenge contended that on the basis of a newspaper article, the deponent to the affidavit filed by NUM, namely Mr Richard Zenzile Mguzulu (Mr Mguzulu), did not have the necessary authority to launch the application to intervene, particularly as the branch which he purports to represent, no longer exists. In Ganes and another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) para 19 the court held:
'. . . The deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorised.'
A resolution taken by the leadership of NUM, however, confirmed that Mr Mguzulu was indeed duly authorised, and that the attorneys acting in the present application, were also duly authorised to do so. After considering the proof of
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authority, I was satisfied that the challenge in terms of Uniform rule 7(1) had been properly met.
It is not necessary to set out in any great detail the interrelated web of the Optimum business entities, save to record that both OCT and OCM have been placed into business rescue. OCM operates a mine while OCT is a shareholder and derives an entitlement to use the RBCT facility to export coal, on the assumption that it is not in breach of any provision of the Shareholders Agreement. Since being placed into business rescue, OCM has effectively outsourced the mining activities to mini-pit operators, who employ miners, the latter being members of NUM. It is in this context that NUM essentially contends that the actions by RBCT have a 'knock-on' effect for its members, depriving them of their right to a livelihood. The founding affidavit goes a step further, contending that the conduct of RBCT 'directly and irreversibly affects the rights and interests of thousands of NUM members'. Of particular importance is that the business rescue practitioners (BRPs) of OCM have...
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