THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 835/2020

In the matter between:

BASSANI MINING (PTY) LTD
APPELLANT

And

SEBOSAT (PTY) LTD
FIRST RESPONDENT

MASHALA RESOURCES (PTY) LTD
SECOND RESPONDENT

KURT HERMAN
THIRD RESPONDENT

ANDREA AVRIL ANDERSON                                  FOURTH RESPONDENT

Neutral Citation:
Bassani Mining (Pty) Ltd v Sebosat (Pty) Ltd & others
(835/2020) [2021] ZASCA 126 (29 September 2021)

Coram:
NAVSA ADP, MATHOPO, MOLEMELA, PLASKET and
MOTHLE JJA

Heard:

16 August 2021

Delivered:
This judgment was handed down electronically by
circulation to the parties’ legal representatives by email, publication on the
website of the Supreme Court of Appeal and release to SAFLII. The date and
time for hand-down is deemed to be 10h00 on 29 September 2021.

Summary: Civil procedure – common law remedy – anti-dissipation interdict –
whether it was a requirement for an anti-dissipation interdict for an applicant to
prove that the dispositions were made with the intention of thwarting an
applicant’s pending damages claim or whether there were exceptional
circumstances where a lesser threshold applied – whether appellant satisfied
the requirements of an interim anti-dissipation interdict – foundational
requirements of interim interdict not met.  Appeal dismissed with costs including
costs of two counsel.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Gauteng Division of the High Court, Johannesburg (Bhoola
AJ sitting as court of first instance):
The appeal is dismissed.
The appellant is ordered to pay the respondents’ costs, including the costs
of two counsel.
______________________________________________________________

JUDGMENT
______________________________________________________________

Mothle JA (Navsa ADP, Mathopo, Molemela and Plasket JJA concurring):
[1] In 1996, this Court in Knox D’Arcy Ltd and Others v Jamieson and
Others (Knox D’Arcy)1 reaffirmed the existence in our law, of a distinctive
interdict, which provides a remedy where an applicant has shown on the
established basis for an interim interdict: (a) a claim against a respondent; and
(b) that the respondent is concealing or dissipating assets with the intent of
frustrating the claim.2 This court, in Knox D’Arcy, reluctantly accepted the

1Knox D’Arcy Ltd and Others v Jameson and Others 1996 (4) SA 348 (A); [1996] 3 All SA 669
(A).
2 At 372 D-F and at 373F-H. There is a brief reference at 370 J to a comparable remedy in
England, namely a ‘Mareva Injunction’, from the English case of Mareva Compania Naviera
SA v International Bulkcarriers SA [1980] 1 All ER 213, coupled with a warning that using that
appellation might suggest that English principles are automatically applicable.

description of this remedy as an ‘anti-dissipation interdict’3. That description
has stuck and it is now in common usage.

[2] Before turning to consider a very specific dictum in Knox D’Arcy, on
which the appellant in the present appeal relies, it is necessary to have regard
to the factual background, which appears hereafter.

[3] On 19 February 2020, the first respondent, Sebosat (Pty) Ltd (Sebosat),
represented by the third respondent, Mr Kurt Herman (Herman), its sole
director and shareholder, entered into a written sub-contract agreement with
the appellant, Bassani (Pty) Ltd (Bassani). The essential terms of the
agreement, for present purposes, were that Bassani, as the subcontractor,
would mine coal at Wesselton Mine on behalf of Sebosat, as the contractor.
Clause 16.5 stipulated that for the first three months, Bassani would only be
entitled to payment of its invoices within 48 hours after the coal mined had been
sold and Sebosat had received payment from its client, the second respondent,
Mashala Resources (Pty) Ltd (Mashala). Clause 2.1.11 defines the ‘Main
Agreement’ as an ‘[a]greement entered into between the Client and Contractor’,
meaning Mashala and Sebosat respectively. The agreement recorded that
Mashala was the holder of the mining rights over the mineral area at the
Wesselton Mine. In clause 18 of the subcontract agreement, Sebosat agreed
that the coal mined would be used to provide security to Bassani for its
obligations, for any amounts due by Sebosat to Bassani for mining operation.

[4] Bassani mined the coal from March 2020 until 31 May 2020. At the end
of May 2020, a dispute arose between Bassani and Sebosat. Bassani claimed
that Sebosat owed it monies, evidenced by unpaid invoices, while Herman, on
behalf of Sebosat, alleged that Bassani had failed to mine the coal as agreed,
in that the coal that it mined fell short of agreed tonnage targets. Sebosat,
instead of dealing with a contractual breach notice issued by Bassani,
terminated the agreement on 1 June 2020. Bassani was adamant that

3 372 A-C.

Sebosat’s termination of the agreement was without foundation. It asserted that
at the time of the termination Sebosat owed it an amount of R14 530 824-90.

[5] Following on the termination there were attempts by the parties to settle
the dispute amicably. It appeared, at first, that these attempts might bear fruit,
with Bassani of the belief that the parties were on the brink of settling amounts
owing and the terms of a handover, including the retrieval of its equipment.
Communications then broke down.

[6] During July 2020, according to Bassani, it discovered for the first time,
through its attorneys, certain crucial facts, which Herman allegedly failed to
disclose at the time the parties concluded the subcontract agreement. These
were that: (a) Mashala had been under business rescue since 20 November
2014; (b) the ‘Main Agreement’, supposedly concluded between Sebosat and
Mashala, purporting to be the authority for Sebosat to act as contractor, did not
exist; (c) Sebosat was a shelf company with no business address and assets,
and was allegedly interposed by Herman for the purposes of the subcontract
agreement, to shield Mashala from any liability; (d) Bassani had thus mined the
coal for the benefit, not of Sebosat, but of Mashala; and (e) as a consequence,
Bassani at all material times never had security for payment of its amounts due
in terms of clause 18 of the subcontract agreement.

[7] Consequently, Bassani alleged that Herman had fraudulently
misrepresented facts relating to his relationship with Mashala, and also
Mashala’s relationship with Sebosat. Further, that as a result of the alleged
fraudulent misrepresentation, Bassani was induced to conclude the sub-
contracting agreement with Sebosat. Bassani further alleged that Herman
fraudulently interposed Sebosat as a contractor, in what it described as an
unconscionable abuse of juristic personality, with the intent to prevent or shield
Mashala from any liability that would arise from the mining operations.

[8] Herman’s alleged fraudulent misrepresentation moved Bassani to
institute an urgent application for an interdict in the high court, seeking relief
pendente lite, against Sebosat, Mashala, Herman and his co-director, Andrea

Avril Anderson (Anderson), cited as the fourth respondent. Bassani sought an
order restraining the respondents from alienating, encumbering or removing
directly or indirectly coal, to the value of R25 million from Wesselton Mine,
pending an action for damages. There was a further claim for the return of
equipment, which is not significant to this appeal as that aspect was settled
before the hearing in the high court.

[9] In opposing the relief sought, Sebosat and Herman contended as
follows. First, that the contract was terminated because Bassani had failed to
meet certain production targets; second, that the coal mined by Bassani had
been sold; third, that Bassani had refused to submit the dispute to arbitration,
provided for in terms of the agreement; and fourth, that Bassani could not prove
that the coal had been sold with the intent to thwart execution on the pending
damages claim.

[10] The high court considered that Bassani first, had to meet certain
‘threshold’ requirements in relation to an interim interdict, which it identified as:
(a) a prima facie right, albeit open to some doubt, (b) a well-grounded fear of
irreparable harm were an interim interdict to be refused, and (c) the absence of
a satisfactory alternative remedy.

[11] The high court took into account that the coal that was mined for Sebosat
had already been disposed of by Mashala in the ordinary course of its business
and that there is no further coal on the premises that had been mined by
Bassani.   Essentially, the high court found that Bassani had failed to prove that
there was ‘a real risk’, that in the intervening period before the damages claim
was heard, that the respondent would ‘dissipate and/or diminish their assets in
order to avoid the efficacy of a court order and to leave it with a hollow
judgment, should it succeed.’ The high court stated the following: ‘…this means
that [Bassani] has not met the second threshold requirement for obtaining an anti-
dissipation interdict’. Thus, it dismissed Bassani’s application. It is with leave of
the high court that this matter is before us.

[12] Sensing the problems it faced in establishing the foundational
requirements for the grant of the relief sought, Bassani relied on the following
passage in Knox D’Arcy:
‘The question which arises…is whether an applicant need show a particular state of
mind on the part of the respondent, ie that he is getting rid of the funds, or is likely to
do so, with the intention of defeating the claims of creditors. Having regard to the
purpose of this kind of interdict, the answer must be, I consider, yes, except possibly
in exceptional cases. As I have said the effect of the interdict is to prevent the
respondent from freely dealing with its own property to which the applicant lays claim.
Justice may require this restriction in cases where the respondent is shown to be
acting mala fide with the intent of preventing execution in respect of the applicant’s
claim.’4 (Emphasis added).

[13] The submission on behalf of Bassani was that this was an ‘exceptional’
case, as envisaged in Knox D’Arcy, and that in such instances a lower bar
applied and that an interdict might be granted even when there was a bona fide
disposition of property. This submission was with reference to what is said, in
those terms in Knox D’ Arcy at 377 A-E. It was also submitted on behalf of
Bassani that this lower bar was recognised in Carsten and Another v Kullmann
and Others.5 It was contended that this was a case in which the respondents
structured their affairs in such a way so as to leave Bassani with a hollow
judgment in the event of it being successful in the prosecution of its claim.

[14] There are several problems with Bassani’s quest to overturn the order
of the high court. First, the conclusion by the high court that there are no longer
any identifiable assets belonging to Sebosat against which execution could be
levied, is irrefutable. On Bassani’s own version of events it is a shell company
and it was common cause that the coal Bassani had mined had been disposed
of. Bassani has no claim of any kind against any of the mine’s assets, especially
in the light of the Business Rescue proceedings.

4 372F-H.
5 Carsten and Another v Kullmann and Others (49174/2017) [2018] ZAGPJHC 2 (4 January 2018) at
paras 25 and 33.

[15] Second, Bassani had no contractual nexus with Mashala. It had made
no representations to Bassani and had no contractual links with it. According
to the business rescue practitioners they had given no permission for mining
activities during the period in question, contrary to what was asserted by
Herman. Mashala could thus, as a corporate entity, have made no
representations of any kind while it was under the control of the business
rescue practitioners. This must be so, on Bassani’s own version, as set out in
its replying affidavit.

[16] Third, at para 8 of its founding affidavit, Bassani stated emphatically that
the application for the interdict was brought urgently to restrain the respondents
from concealing or dissipating assets ‘ie coal that was mined by Bassani’. As
pointed out above that horse has bolted.

[17] Fourth, the fraud on which Bassani relied, was allegedly perpetrated by
Sebosat and Herman. Bassani did not implicate Mashala as a corporate entity,
other than stating that Mashala is now reaping the rewards and that in the
envisaged damages action it will feature as a defendant. From that factual
premise, it appears to involve an enrichment claim. No evidence was placed
before the high court, indicating what Mashala’s financial position was and
which assets, if any, it had or presently has, at its disposal.

[18] Fifth, it is unclear from the papers, following the business rescue
process, whether Mashaba continues to conduct mining operations. There are
no details about which company now holds a controlling stake in it and there is
no clarity concerning its financial state, including whether it has assets and how
it is dealing with them. Equally, there is no clarity or details concerning
Herman’s assets and how he might be dealing with them.

[19] Sixth, the difficulty for Bassani in placing reliance on the aforesaid
passage in Knox D’Arcy is that there, this Court was speculating about
circumstances in which it might possibly be argued that the base requirements
for an anti-dissipation interdict might be relaxed. The possible ‘exceptional’
circumstances were not identified. Moreover, it was not for the purposes of that

case necessary for this Court to have engaged in that exercise. There, the base
requirements for the interdict had not been met and it was considered
unnecessary to take the discussion on exceptional circumstances any further.
The same applies to Carsten and Another v Kullmann and Others. I hasten to
add that I have great difficulty, in circumstances where the base requirements
have not been met, imagining what such ‘exceptional’ circumstances might be.
It must be borne in mind that the application was premised on the dissipation
of assets, which in light of the facts set out above, has not been proved. Simply
put, the jurisdictional facts for the grant of the remedy sought were
conspicuously absent.

[20] Bassani, as demonstrated above, was not out of the starting stalls in
establishing the right to an interim interdict. It certainly did not, for all the
reasons aforesaid, establish that it was entitled to an anti-dissipation interdict
against any of the respondents.

[21] In the result, I make the following order:
The appeal is dismissed.
The appellant is ordered to pay the respondents’ costs, including the
costs of two counsel.

_______________________
SP MOTHLE
JUDGE OF APPEAL

APPEARANCES:

For the appellant:

A J Eyles SC
Instructed by:

Hogan Lovells, Inc, Johannesburg

Webbers Attorneys, Bloemfontein

For the respondent:

N Cassim SC
Instructed by:

Hulley & Associates Inc, Johannesburg

Peyper Attorneys, Bloemfontein.
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

29 SEPTEMBER 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Bassani Mining (Pty) Ltd v Sebosat (Pty) Ltd & Others (835/2020) [2021] ZASCA 126 (29
September 2021)
Today the Supreme Court of Appeal (SCA) handed down judgment dismissing, with costs, an appeal
against a decision of the Gauteng Division of the High Court, Johannesburg (the high court).
The issue before the SCA was whether there could be possible exceptional circumstances dispensing
with or lowering the base requirements of an anti-dissipation interdict, pending a damages claim.
On 19 February 2020, Sebosat (Pty) Ltd (Sebosat),represented by Mr Kurt Herman (Herman), its sole
director and shareholder, entered into a written sub-contract agreement with the appellant, Bassani
(Pty) Ltd (Bassani). The essential terms of the agreement were that Bassani, as the subcontractor,
would mine coal at Wesselton Mine on behalf of Sebosat, as the contractor. Furthermore, Bassani
would only be entitled to payment of its invoices after the coal mined had been sold and Sebosat had
received payment from its client, Mashala Resources (Pty) Ltd (Mashala). Bassani mined the coal from
March 2020 until 31 May 2020. At the end of May 2020, a dispute arose between Bassani and Sebosat.
Bassani claimed that Sebosat owed it monies. During July 2020, according to Bassani, it discovered
for the first time, that, inter alia, Mashala had been under business rescue since 20 November 2014,
that the agreement concluded between Sebosat and Mashala, purporting to be the authority for Sebosat
to act as contractor, did not exist, and that Sebosat was a shelf company with no business address and
assets. Mashala was the beneficiary of the coal that Bassani had mined.
Bassani launched an anti-dissipation interdict, pending a damages claim in the high court. The high
court found that Bassani failed to prove that there was ‘a real risk’, that in the intervening period before
the damages claim was heard, that the respondents would ‘dissipate and/or diminish their assets in
order to avoid the efficacy of a court order and to leave it with a hollow judgment, should it succeed.’
The SCA found, inter alia, that the conclusion by the high court that there were no longer any identifiable
assets belonging to Sebosat, against which execution could be levied, was irrefutable. Furthermore,
Bassani had no contractual nexus with Mashala. The fraud on which Bassani relied was allegedly
perpetrated by Herman and Sebosat.  According to the business rescue practitioners, they had given
no permission for mining activities during the period in question, contrary to what was asserted by
Herman. The SCA therefore concluded that Bassani failed to establish the foundational requirements
for an interdict, nor did it establish that it was entitled to an anti-dissipation interdict against any of the
respondents. The possible ‘exceptional’ circumstances justifying a lower bar for the anti-dissipation
interdict were not identified. It was thus considered unnecessary take the discussion on ‘exceptional’
circumstances any further. The appeal was dismissed.
~~~~ends~~~~