The court considered an appeal of the judgment handed down in the lower court, granting an interim interdict.
The respondents in the matter argued that a court of appeal should not interfere with the discretion of the lower court, unless compelling reasons exist to do so.
The requirements for an interim interdict are that the applicant must prove 1) a prima facie right. 2) a well-grounded apprehension of irreparable harm occurring 3) a balance of convenience must favour the granting of the interim relief and 4) it must be the only satisfactory relief available.
The court found that despite the requirements, a court has a discretion on whether to grant such a relief. Despite the existence of the requirements, the court held that there are no comprehensive guidelines that can be laid down to prevent a court from using the discretion.
The court after weighing up the delay in the court a quo and the public interest in the project, came to the conclusion that the appropriate relief was one which protected the right of the respondents to claim relief through damages.
The court restrained the appellants from interfering or obstructing any agents, employee or experts employed by the respondents from carrying out tests or investigations for the purposes of establishing and estimating the damages.
The court granted the interim prohibitory interdict.
C OF A
(CIV) NO. 38 OF 1994
LESOTHO COURT OF APPEAL
ATTORNEY GENERAL OF LESOTHO
DIAMONDS MINES (PTY) LTD
to the granting of the order in the above appeal, a letter dated 18th
October 1995 from the Attorneys for the Appellants
was received by
the Registrar. The letter is self explanatory and is attached hereto
marked Annexure "B".
concerns expressed in the letter can perhaps best be addressed by the
the delivery of that portion of the reasons for judgment
the issue concerning interim protection prepared by myself. These
reasons for judgment were awaiting-incorporation
in a composite
judgment which would have dealt with
issues including the reasons why this Court ordered the striking down
of the Revocation Order. The President of the Court
of Appeal has
directed that that part of the reasons for the judgment could be
delivered today. It is concurred in by all the members
of the Court.
These reasons are the following.
evident from the contents of the Court's order (Annexure A hereto),
we have on appeal departed very significantly from the
form of relief
granted by the Court a quo. We did so for the following reasons.
relief granted by the Court below included a temporary interdict
which conditionally restricted the Second Appellant from carrying
its activities within certain described areas. In substance the
Court's Order conformed with Respondents' prayers for relief
out in their application. In opposing the appeal Counsel for
Respondents submitted that it is trite that a Court of Appeal
not interfere with the exercise of a discretion by a lower Court
unless there are compelling reasons to do so.
however have a very real concern about the manner in which the Court
below dealt with the issues surrounding whether it should
interdict and the form in which it couched the relief it decided to
scrutiny of the judgment shows that the learned Chief Justice devoted
a great deal of time and care to considering the
which involved the constitutionality and propriety of the Revocation
Order. However, having found that there had been an
Respondents' rights, he proceeded to grant the order without any real
evaluation of the material facts. Neither
did he have regard to the
considerations that require to be weighed in deciding whether the
Respondents' were entitled to protection
by way of interdictory
relief and, if so, how he could best ensure that the form of order
that he made took due account of the
respective interests of the
follows that we are obliged to undertake this task. It accordingly
becomes necessary to summarise some of the facts more pertinently
relevant, and to proceed to examine whether it is right to grant
Respondents either the relief they sought or such order as the
facts and all the circumstances may require.
clear from the record that Respondents acquired the rights they
allege they have on the" 26th October 1988. It would
that at about the same time Second Appellant was already conducting
fairly extensive activities, having commenced operations
during about June 1988.
example a camp had been established at Ha Lejone as early as
June/July 1988 - this being in the Rampai area. Mr Putsoane,
Manager of the infrastructure division of Second Appellant
specifically avers that "when Applicants were granted rights
October 1988 the contractors were already in the lease area and were
'interfering' with Applicants' rights."
Respondents' own experts confirmed their appreciation of the
potential risks posed to their operations by the activities
Second Appellant. Thus, for example Loxton, Venn and Associates in
their report dated November 1988 state the following:
" In the anticipated event that these applications are
successfully concluded, it is recommended that those mining lease
areas likely to be affected by the L.H.W. Scheme be evaluated and
mined first in order to obviate the possibility of diamondiferous
deposits being lost to flooding."
Putsoane avers that in his many visits to the area "I have never
seen evidence of any works or activities carried out
letter dated 24 October 1988 Respondents" Attorneys wrote to the
Commissioner of Mines and Geology and stated "Whilst
it is so
that some of these areas may be partially flooded as a result of the
Lesotho Highlands project, our client believes that
diamonds may be
extracted from those areas for the mutual benefit of our client and
the Kingdom of Lesotho before this happens.
Once these applications
are approved our client believes that such possibilities should be
exploited on a priority basis."
also important in determining whether to grant Respondent's relief
and settling its form, to have regard to both the quality
rights, the vigilance with which they have both pursued and sought to
protect such rights as 'well as their
learned Chief Justice has in his judgment referred to the substantial
body of evidence that questions the probability that Respondents'
likely to find precious stones (diamonds) in the areas over which
they allege they have acquired rights. After recording that
the evidence is optimistic concerning those prospects he says "....
Other affidavits are extremely pessimistic. I
think it safe to say
that some of the latter affidavits indicate that the recovery rate
for diamonds in the lease area is such,
that mining is not a viable
proposition. At least one affidavit suggests that Swissborough and
Rampai's claim is baseless and opportunistic,
in view of the
necessary activities of the Fourth Respondent." (Second
a quo then relates the significance of this evidence to an attack
made on the character of Respondents' principal shareholder.
learned Chief Justice says: "And the Court is being asked in
effect to shut out the Applicants from this Court, because,
said they have put themselves above the law. -For my part, I observe
that if the Applicants have not paid their due taxes,
then let the
law take its course. If Mr van Zyl is in financial difficulties
elsewhere, I do not see how that impinges on the claims
Court .... It is said that he has behaved aggressively towards local
inhabitants, if that is so, then I observe that
the law has already
taken its course. It is inferred that the claim against the fourth
is spurious, then let Swissborough and Rampai prove such claim."
do in general terms agree with the approach adopted, it is
significant that the learned Chief Justice directs his comments
principally at arguments related only as to whether he should grant
Respondents relief in respect of the violation of their rights,
not to the form of such relief. Nowhere for example does he refer to
the fact that there was significant delay on Respondents'
pursue their rights in situ until the time they were wrongfully
prevented from doing so. Neither does he note the fact
Respondents from a very early stage talk the language of compensation
as distinct from the vigorous pursuit and assertion
of their rights
comment applies to the significance to be attached - in determining
the nature of the relief to be granted - to the national
of the massive undertaking of the second Appellant. In this regard
the Court says the following in its judgment: -
have of course considered the aspect of the national importance of
the work of the fourth respondent. But then the legislation
for the uninterrupted progress of its work, and in the course
thereof, the payment of due compensation to , anyone suffering
or damage thereby. Again, the interim interdict of 18th July, 1991,
uplifted by agreement, and the order now sough by the
seek the lease possible interference with the work of the fourth
respondent. The Court indeed was in the very process
inter alia the aspect of such interference when its
jurisdiction was snatched from it.
brings me, I believe, to the main consideration affecting the Court's
discretion. I have dealt all along with the interest
of the parties
and in particular the injustice done to the applicants by the
Revocation Order. But of national importance is the
aspect that the
Order represents a deliberate and absolute frustration by the
legislature of the exercise of the judicial power,
apparently firm in
the belief that the legislature could pass any law. I am then
inclined to agree with the submission of learned
Counsel for the
applicants that at this stage the Court's discretion resolves into a
clear that the Court was, quite correctly, directing its attention to
addressing the argument that it should decline any relief
exercise of such discretion as it might have. However, the Court does
not appear to have applied its mind to the consequences
an interdict in the wide terms sought upon the work being undertaken
by the Second Appellant -more especially when
it is to be weighed
against the nature and quality of Respondents' rights.
situation is aggravated by the fact that the learned Chief Justice
took 28 months to make the order he did.. The evidence before
states the compounding effect of the delay and the significance of
the work as at the date of the hearing of the appeal - in
the date the application was heard - in the following terms. (the
affidavit is by the deponent Putsoane aforesaid):
"During the abovesaid period of 28 months, Applicant proceeded
as it was legally obliged to do in terms of contracts
concluded with contractors in the. months prior to the hearing of the
application and in accordance with planning studies completed
before Respondents' application to Court, with the construction of
the dam wall at Katse, with the construction of the transfer
and with ancillary works at the tunnel inlet near the bridge over the
Malibamatso River, and within the Rampai lease area.
The Katse dam is
outside" the Rampai lease area, but the reservoir which the dam
will create will eventually flood a portion
of the Rampai lease area.
The tendered prices for the construction of the dam and the tunnels
which are to transport water from
Lesotho into the Republic of South
Africa were to the order of M2 billion."
Putsoane then proceeds to elaborate on this theme and says the
pouring of concrete for construction of the dam wall only commenced
on- 21 June 1993. Prior to that and on 19 October 1992
foundation " for the dam was under construction. The cost of
these activities, which were carried out during the period
hearing of application CIV/APN/145/92 and before judgment was handed
down, amounted to many hundreds of millions of
Maloti. If these
activities had been stopped immediately, or shortly after the
hearing, alternative arrangements to accommodate
caused by the interdict issued by the High Court could have been
considered and implemented. Due, however, to
the delay in giving
judgment and the interdependency of the various elements of the
project and the intricate scheduling to be
followed in regard
thereto, it was necessary to continue with the works. The
construction process relating to the said dam and
reached an advanced stage where it is now anticipated with
confidence that the impounding of water will commence
the works had been stopped in May or June 1992, Applicant would, it
is true, have been exposed to claims by the contractors
amounts of money. However, if the works in the Rampai area are now
stopped, the claims will be far greater because
the difficulties and delays which will be caused to the interrelated
activities and because of the delays in recovering revenues
sale of water.
if Applicant had known earlier that an interdict had been granted,
it would have been in a position to urgently institute
a claim or
counterclaim for cancellation of the Rampai Mining Lease.
Respondents have alleged in papers before this Honourable
there is a substantial dispute of fact relating to Applicant's
contentions in this regard which dispute of fact can
resolved after hearing viva voce evidence.
Applicant does not admit that this is necessarily so, but if it is
so, then I am advised and verily believe that the matter could
finalised before the date when filling of the dam must commence."
deponent concludes his contentions in this regard by saying:
the date of hearing in - CIV/APN/145/1992 in May 1992 certain design
changes to the water transfer tunnel had to be effected
not anticipated previously. These changes which were finally put
into effect in September 1994 relate to the fact
originally only about 6 1/2 kilometres of tunnel would be lined with
concrete, it has since been decided for technical
reasons that 45
kilometres now have to be lined with concrete. This means that civil
engineering works which have to be performed
on the Rampai lease
area in the critical period between the date of judgment and the
date when the dam commences to fill, area
for more extensive and
more urgent than was the case in 1992.
this stage in the concreting works will be critical and cannot be
caught up and thereby delays will be incurred or can
only be caught
up with additional costs being incurred.
it is submitted that Applicant could hardly have dealt with the
rights in the interim because of the uncertain status of the
Revocation Order and because the whole matter would be
is accordingly respectfully-submitted that Applicant was badly
prejudiced by the delay of 28 months in delivering judgment."
relief of the kind sought in the present case is designed to provide
urgent (speedy) temporary relief. The fact that
judgment was delayed
for some 28 months in a sense defeated the very objective an urgent
interdict is designed to resolve and resulted
in the most unfortunate
situation indicated by the evidence cited above. This placed the
Second Appellant in far greater jeopardy
and deprived it of taking
steps to accommodate such needs of the Respondents as could
reasonably have been taken into account at
the time the application
was made. However, to the detriment of both Appellants and
Respondents the lis between the parties could
not be resolved. Whilst
therefore one could understand that the Court needed time to
formulate its reasons, there should have been
no need to delay the
announcement of its decision and the form of order it thought
appropriate to make.
satisfied that Respondents' fundamental rights have been violated.
There are however residual but fundamental disputes between
parties that require to be resolved. Pending their resolution and
provided that Respondents establish the requirements for
of interim relief they are prima facie entitled to have such rights
as they are able to
protected in an appropriate form. The questions are, what have they
proved and if they have established rights prima facie,
should the relief granted them take. This requires an examination of
the principles upon which a Court should approach
applications for an
interdict pendent© lite.
his work "The Requirements for the Grant of Interlocutory
interdicts in South African Law - A Dissertation for a Degree
Doctor of Laws at the University of Stellenbosch" - puts it well
when he says: (at p. 255)
"The interim interdict is an essential part of the South African
legal system. The problem lies, not in its existence, but
application. If the aims and objects of the remedy can be achieved by
simple and ready application, then it retains the
vitality of its
intended role. If its application becomes cumbersome and laborious,
or its aims and objects can be defeated by
manoeuvre, ruse or
stratagem, it loses its effectiveness and becomes pedestrian and
pedantic. It cannot be overemphasised that
its strength lies in its
flexibility and ability to produce a speedy answer to a pressing
requisites for the granting of an interim interdict in South African
law is well known. The seminal judgment in Setlogelo v.
1914 AD 221 laid down these requirements in a form adopted by both
Appellants' and Respondents' counsel. Erasmus et al
points out in
their work Superior Court Practice at EB-1.2 that the practice of the
South African courts concerning the applicability
strength of case" as a threshold test is ambivalent. Indeed,
refinements have been made from time to time but
the approach as
formulated by the Court of
in Setlogelo has received consistent endorsement.
case of an interlocutory interdict the requirements an Applicant must
establish can be summarised thus:
prima facie right;
well grounded apprehension of irreparable harm;
balance of convenience in favour of the granting of interim relief
absence of any other satisfactory remedy.
also clear that these factors should not be assessed "separately
or in isolation" (Erasmus op cit E8-9) but in conjunction
one another. (See Eriksens Motors (Welkom) Pty Ltd v. Protea Motors
(Warrenton) 1973 (3) SA 685 (A) at 691(F) .
ambivalance referred to above relates to the question as to whether
the "threshold test" should be regarded as proof
least a prima facie right on the part of an applicant. The English
Courts have since the decision in American Cyanamid Company
Co. 1975 All E.R. 504 (HL) departed from this approach and elevated
the "balance of convenience" to being "the
See Erasmus (op cit) and Prest (op cit) at p 11 and pp 256 - 257.
Certainly in both Eriksens Motors (supra) and
in Olympic Passenger
Services (Pty) Ltd v. Ramalagan 1957 (2) SA 382 (0) an approach was
adopted which both Prest and Erasmus consider
to be "nothing but
an application of the "American Cyananid" approach -
(Erasmus op cit) or "equivalent to
a serious question to be
tried" (Prest citing "American Cynanid"
at p 510)
. However, that may be, there can be no doubt as to the overriding
discretionary nature of the remedy. Whilst such discretion
always be exercised judicially, no comprehensive strictures can be
laid down which can be held to exclude this discretion.
See in this
regard Prinsloo v Luipaardsvlei Estates and Gold Mining Co. 1933 WLD
6 at 25, Kemp, Sacs and Nell Real Estate Bpk v.
Soll 1986 (1) SA. 673
(0) at 690, Zuurbekom Ltd v Union Corporation Ltd 1947 (1) SA 514.
(A) SA 479 at 537 and Harnischfeger Corporation
v Appleton 1993 (4)
SA 479 (W) at 490 (W) at 490 (G) - 491 (B) . That delay on the part
of the applicant is a consideration to
which regard can be had in
exercising the Courts discretion is also-clear. See Juta and Co. v.
Legal and Financial Publishing Co.
(Pty)Ltd 1969 <4)SA 43 <C) .
had regard to all the considerations referred to above. We have
considered the strength of the prima facie case established
Respondents, we have given due weight to the flagrant disregard of
the First" Appellant for the fundamental human rights
Respondents, we have had regard to Respondents' conduct in general
and in also the speed and commitment with which they
alleged claims.. We have also given due consideration to the nature
of the Appellants opposition to Respondents'
claims and the weight to
be accorded to the various defences raised by them. There are however
several factors of particular and
special significance in deciding
whether to grant relief and the form in which it should be couched.
is the existence of an alternative remedy by way of damages and
Respondents' clear prediliction for this form of remedy.
is the massive nature of the public interest in the completion of the
project upon which Second Appellant is engaged.
Account also has to
be taken of the effect of the delay on the ability of Second
Appellant to mitigate the jeopardy to the public
attributable both to the dilatory pursuit of their case by the
Respondents' and further compounded by the delay in the
the Courts order. Most significantly the balance of convenience -
having regard to the public interest on the one hand
when compared to
the nature and quality of Respondents' claims and all the other
circumstances associated with its cause, have
prompted us to confine
the nature of the relied granted to the protection of Respondents'
right to claim relief by way of damages.
When granting interim relief
we are seized with an obligation to ensure that in determining the
form in which we couch it we duly
balance "the risk of doing
injustice." (per May LJ in Cayne and Another v Global Natural
Resources P/C 1984 (1) All E
R 225. (ca) AT 237.
true that Respondents will inevitably sustain some prejudice in
having their alleged rights limited in this way. However,
for some years now been engaged upon an exercise of quantifying the
losses they anticipate they may sustain. We note
Appellants are the Government of the Kingdom of Lesotho and a
parastatal entity supported by international agencies.
therefore need not have any real concern that, should they succeed in
of their claims, they will be able to recover such damages as they
may establish are due to them. Moreover the limitation
operates only in respect of one area over which they were granted
rights. It also is an area on which there is significant
persuasive evidence that their claims are either "baseless"
or not economically viable.
confined Respondents' to certain designated areas within the Rampai
lease area. We invited the parties to furnish us with
information as to target or priority areas to enable us to make an
order which was perhaps most efficacious. This
invitation was however
not accepted. We were therefore obliged to do the best we could on
the information before us. However, we
were convinced that:
had established sufficient of a prima facie case to entitle them to
an appropriate form of interlocutory interdictory
relief should be limited in the manner set out in the order and,
more particularly insofar as that part of the Rampai lease
concerned which will be affected by the flooding of the dam, to a
claim for damages and16
we would give Respondents both free and unfettered access to the
areas concerned as well as sufficient time to be able to
tangible evidence to support such claims for damages as may flow
from a successful pursuit of their cause of action.
for these reasons that we granted interim interdictory relief in the
form set out in the attached order marked "A".
JUDGE OF APPEAL
on the .........day of October, 1995.
C. OF A
(CIV) NO 38 OF 1994
General of Lesotho 1st Appellant
Highlands Development Authority 2nd Appellant
Diamonds Mines (Pty) Ltd 1st Respondent
Diamond (Pty) Ltd 2nd Respondent
Diamonds (Pty) Ltd 3rd Respondent
Diamonds (Pty) Ltd 4th Respondent
Diamonds (Pty) Ltd 5th Respondent
Diamonds (Pty) Ltd 6th Respondent
following order is substituted for the order made by the Court a quo:
revocation of Specified Mining Leases Order (NO.7 of 1992) is
declared to be void and of no force or effect in law.
and second respondents are directed to ensure that the proceedings
under Civil Application No. 198 of 1991 and Civil Application
of 1991 are properly enrolled forthwith and expeditiously prosecuted
in terms of the relevant Rules of Court,
respondents are directed to enrol the proceedings
Civil Application No. 394 of 1991 forthwith and expaditiously to
prosecute the said Application in terms of the Rules of court;
the respondents referred to in paragraphs 2 and 3 fail to enrol and
prosecute the applications referred to in these sub-paragraphs
directed herein, the relevant respondents in the said applications
shall be so entitled (after notice to the relevant applicants)
enrol the said applications for determination by the Court,
the period commencing from the date of this order and expiring at
midnight on the 31st of July 1995 the appellants are
restrained from interfering with, obstructing or impeding any agent,
employee or expert engaged by or in the
employment of the
respondents (and who is lawfully entitled to be in Lesotho)
conducting any tests or investigations in the press identified in
schedule A hereto, for the bona fide purposes of estimating
quantifying any damages suffered by the respondents or any of them,
in consequence of any unlawful acts perpetrated by
or on behair of
or at the instance of the appellants.
using equipment, machinery or materials
conduct such tests or investigations, in the said areas, whether such
equipment, machinery, or materials already exist within
area covered by Schedule A or is introduced for that purpose after
the date of this order.
in tha Court a quo
Paragraph 4 of the order of the Court a quo in respect of the
proceedings in that Court is confirmed.
respondents shall pay 25% of the costs of the second appellant.
Such costs shall include the costs consequent upon the employment
of two counsel;
first Appellant shall pay 29% of the coats of the respondents. Such
costs shall include costs consequent upon the employment
for the costs referred to sub-paragraphs (a} (b) the parties shall
bear their own costs.
Priority Exploration Target Areas identified by Dr
in his Preliminary Report "The effect of Khanse Dam on Diamond
Exploration Activities in the Rampai Mining Lease,
with the Annexures thereto. (pp 520-537 of the record).
REFERENCE ATTORNEYS, NOTARIES AND CONVEYANCERS
Molyneaux/fv - L95/5003
1st Floor, Lesotho Bank Centre, Kingsway, Maseru, Lesotho Tel. 313916
Fax 310066 P.O. Box 1176 MASERU 100
Henry James Newdigate, B.A. (Stell.), B.C.L. (Oxon.)
David Rees Samuel, B. Com. (UPE), LL.B (UOFS)
Colin Cilliers, B. Com, LL.B (UOPS), LL.D (Leiden)
Daniel Gerhardus Roberts, B. Juris (Potch.), LL.B (UOFS) Joseph
Teboho Moiloa Moiloa, LL.R (UBLS) Mark Frederick Webber, B.Com,
(Natal) Denis Peter Motyneaux, B.Com., LL.B. (Rhodes)
Lebohang Aaron Molete B.A, LL.B (NUL)
Eugene Holtzhausen, B.Proc (LIORS)
Registrar High Court of Lesotho
OF LESOTHO AND ANOTHER/SWISSBOURGH DIAMOND MINES (PTY) LIMITED AND
OTHERS (C OF A (CIV) NO 38/1994
are writing to you with the respectful request that this letter be
placed before the Honourable President and the other Honourable
Judges of the Court of Appeal.
Order in the above matter was issued on 13 January 1995, after
argument had been addressed to the Honourable Court of Appeal,
it was intimated that reasons for the Order would follow in due
course. Nine months have since passed and, for the reasons
hereunder, delivery of the Court of Appeal's Judgement is urgently
Judgement related to two main issues namely:
lawfulness of the Revocation of Specified Mining Leases Order No. 7
of 1992; and
protection to Respondents by way of interdict preventing interference
with their activities in the Rampai Lease Area.
Honourable Court of Appeal's Order striking down the Revocation
Order speaks for itself and is no longer in issue.
that part of the Honourable Court's Order dealing with interim
protection to respondents is of particular interest because
court applications against the operations of the LHDA in the Rampai
Area, and particularly flooding of the area are threatened.
Naturally the reasoning behind
the Court of Appeal's Order is of great importance to the parties In
or resisting any fresh applications of this nature.
is submitted with the greatest diffidence that the present state of
uncertainty is undermining the efficacy of a project of
importance to the Basotho nation. It would accordingly be greatly
appreciated if you would place the respectful request
Judgement before the Judges of the Court as a matter of utmost
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law