Siyakhula Sonke Empowerment Corporation (Pty) Ltd and another v Vantage Goldfields SA (Pty) Ltd Leave to Appeal

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Greyling-Coetzer AJ
• Judgment Date: 09 May 2023
• Docket Number: 2870/2021
• Hearing Date: 09 May 2023
• Court: Mpumalanga Division, Mbombela

Greyling-Coetzer AJ:

[1]

This court found in favor of Siyakhula Sonke Empowerment Corporation (Pty) Ltd (hereinafter "SSEC") and Flaming Silver Trading 373 (Pty) Ltd (hereinafter "Flaming Silver") in the application against Vantage Goldfields SA (Pty) Ltd (hereinafter "Goldfields") and ordered that:

(a)

the Sale of Share Agreement entered into on 1 November 2017 and

2023 JDR 1394 p2

Greyling-Coetzer AJ

amended on 21 December 2017, lapsed on 3 January 2018, and is accordingly void and of no force and effect;

(b)

the second- and third addenda to the Sale of Share Agreement, purportedly concluded on 3 May 2018 and 2 August 2018, are void ab initio and their terms are of no force and effect;

(c)

Goldfields to pay R1 million to SSCE, together with interest calculated at the applicable prescribed rate as from 8 August 2018 to date of final payment; and

(d)

Goldfields to pay the costs.

[2]

Goldfields now apply for leave to appeal to the Full Bench of this Division, alternatively to the Supreme Court of Appeal, against the judgment and order so granted.

[3]

The relevant factual matrix and arguments presented in the application was set out in the judgment and will thus not be repeated herein.

[4]

Various decisions by our courts have dealt with the requirements spelled out in Section 17 of the Superior Courts Act 10 of 2013. Section 17(1) provides, in the relevant part, that:-

"(1)

Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a)

(i)

the appeal would have a reasonable prospect of success; or

(ii)

there is some other compelling reason why the appeal should be heard, . . ."

[5]

Therefore, Goldfields must demonstrate that the envisaged appeal would either have a reasonable prospect of success, or alternatively that there is some compelling reason why an appeal should be heard. If neither of these requirements are met, there would be no basis to grant leave to appeal.

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Greyling-Coetzer AJ

[6]

As held in Four Wheel Drive Accessory Distributors CC v Rattan N.O. 2019 (3) SA 451 (SCA), there must be a sound, rational basis for the conclusion that there are prospects of success on appeal. Thus, there ought to be more than a mere possibility of success, that the case is arguable or that the case is not hopeless.

[7]

Goldfields essentially rely on three grounds of appeal which can conveniently be referred to as :-

i.

Res judicata : in re parties;

ii.

Res judicata : in re issues; and

iii.

Finding that second and third addenda was void ab initio.

[8]

Although Goldfields limited their oral argument to the finding by this court in respect of the second and third addenda, the first two grounds were set out in in the application for leave to appeal. In respect of the first it was contended that this court failed to consider the fact, as recorded in footnote 23 of the judgment by the honorable Acting Judge Roelofse (which should have read paragraph 61 of said judgment) that SSEC expressly waived its right to be joined in the 2019 application. Therefore, it was submitted another court would reasonably find that as Flaming Silver and Goldfields were parties to the 2019 application, and the requirement that the parties be the same ought to be relaxed.

[9]

The issue in respect of the waiver by SSEC to be joined to the 2019 application was not dealt with in the opposing papers, nor in the heads of argument. Now in the leave to appeal it is contended that said waiver originating from paragraph [61] of the judgment by Acting Judge Roelofse which ought to have been considered. It was not an issue which was properly raise and therefor ventilated by the parties in the application leading to the judgment Goldfields seek leave to appeal against. Waiver is a question of fact which must be pleaded and the onus to establish same befalls the party seeking to rely

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Greyling-Coetzer AJ

thereon. From the judgment by Acting Judge Roelofse the waiver of SSEC was dealt with in considering whether SSEC should be joined as a party to that application (the 2019-Application). The court held that SSEC did not have a real and substantial interest of a legal nature in the main agreement or the third and fourth addendum, therefore not a necessary party to that 2019-Application.

[10]

In motion proceedings it is the notice of motion and affidavits which define the issues between the parties. In Molusi and Others v Voges NO and Others [1] it was held that:

"It is trite law that in application proceedings the notice of motion and affidavits define the issues between the parties and the affidavits embody evidence. As correctly stated by the Supreme Court of Appeal in Sunker:

'If an issue is not cognisable or derivable from these sources, there is little or no scope for reliance on it. It is a fundamental rule of fair civil proceedings that parties . . . should be apprised of the case which they are required to meet; one of the manifestations of the rule is that he who [asserts]. . .must. . . formulate his case sufficiently clearly so as to indicate what he is relying on.'

[11]

To mount an argument in respect of waiver at this junction, seeking the court to infer as a fact that SSCE waived any right to participate in support of issue estoppel which was also belatedly raised not only offends above principle, but does not impugn the finding that no circumstances justifying the relaxation of the requirements was placed before the court.

[12]

I am therefore not persuaded that another court would find differently on the basis contended for and in respect of the relaxing of the same parties' requirement under the prevailing circumstances.

[13]

In respect of the second ground of appeal in respect of the issue of res judicata is contended that this court failed to consider the fact that in the 2019- Application, Flaming Silver sought specific performance by Goldfields of its obligation in terms of the fourth addendum to the Sale of Share Agreement,

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Greyling-Coetzer AJ

and a finding concerning the validity of the Sale of Share Agreement and addenda thereto would be essential in that regard.

[14]

The fact that Flaming Silver sought specific performance in the 2019-Application was considered together with the recordal of the common cause facts, issues identified by the court for determination, issues actually determined and order granted. The issue identified and pronounced upon in the 2019-Application was the validity of the ratification of the resolution to conclude the addendum. Issue estoppel was raised in the heads of argument and absent facts, reasons, or circumstances before the court to justify the relaxation argued, I am similarly not persuaded that another court would find differently on this basis and in respect of the relaxing of the same party's requirement...