Johannesburg - ENSafrica's troubles keep mounting following a request for the High Court to charge its employee with contempt of court in the ongoing battle for mining rights.
Transasia Minerals asked the Gauteng North High Court to charge ENSafrica’s lawyer Senzo Mbatha with contempt of law for violating section 165 (3) of the Constitution.
This was after Mbatha, who represents Umsobomvu Coal against Transasia - on behalf of ENSafrica, allegedly ordered the Department of Mineral Resources and Energy to attend a court hearing and bring confidential documents of Transasia and its directors at Palm Ridge Magistrate Court on April 20, 2022.
The information allegedly includes books, papers, records and documents, and all correspondences, including electronic communication between Transasia and the Department of Mineral Resources and Energy.
The law firm also wanted the Kwazulu-Natal Mineral Resources and Energy deputy director Gladness Matshali to give evidence on behalf of the state.
In his affidavit, one of the directors, Mathews Phosa, said Mbatha should be declared in contempt of court for intentionally violating the terms of the court order delivered on August 29, 2022, by Judge Anthony Millar.
Phosa added that ENSafrica and Mbatha must also be declared in constructive contempt of court for intentionally seeking to undermine the pending application for leave to appeal before the Supreme Court of Appeal (SCA) in respect of Millar’s order.
“They should also be declared to be in violation of section 165(3) of the Constitution for issuing the subpoena because they are intentionally seeking to interfere with the functioning of the court by undermining the pending appeal before the SCA,” said Phosa in the affidavit.
This is not the first time ENSafrica and Umsobomvu have demanded documents belonging to Transasia. Last year, ENSafrica and its client applied to the Gauteng North High Court demanding the Department of Mineral Resources and Energy to send Transasia confidential documents in their application to appeal the mining rights license.
The order, which was granted by Judge Mngqibisa Thusi last year, was challenged after it was found that Transasia did not receive notice of the application.
In his ruling in August 2021, Judge Anthony Millar said Thusi had no power to grant the impugned order at the insistence of Umsobomvu in the absence of an agreement between Transasia and Umsobomvu. Millar added that Thusi also erred when he ordered Transasia to pay the costs of two counsels during the hearing.
Phosa, who appointed advocate Tembeka Ngcukaitobi to represent Transasia, said the conduct of ENSafrica and Umsobomvu amounts to contempt of court because they know there was a court order that regulated how the documents may be accessed.
He said the order remained valid and had not been set aside.
“Knowing fully that Umsobomvu has no right of access to the documents, Mr Hector Kunene (owner of Umsobomvu) and Mr Mbatha have decided to issue the current subpoena to access the very same documents which they currently cannot access because of the court order and because there are pending proceedings before the SCA,” said Phosa.
He continued: “The clear intention is to undermine both the court order of Judge Millar and the pending proceedings before the SCA. If documents are issued in terms of the subpoena, that will render the appeal superfluous and will undermine the court order of Judge Millar.
Both Kunene and Mbatha are aware of this. But they have decided to act in a manner that undermines the courts. For this reason, they should be found guilty of contempt of court or acting in a manner designed to frustrate the functioning of the court in terms of section 165(3) of the Constitution."
He said the matter's sufficient urgency is set to be heard on March 14, 2023. However, Mbatha said the subpoena should not be set aside, saying Phosa’s application constitutes abuse. He said there have been various allegations made against him in the context of Transasia seeking a declarator that he acted in contempt of court.
Mbatha said Phosa made egregious and baseless allegations against him, and that he attacked his credibility as an attorney and officer of the court gratuitously and without any basis.
“The deponent (Phosa) himself as an attorney and an officer of the court ought to appreciate that this conduct is unacceptable and deserving of censure. The allegations made against me were defamatory and were also unnecessary."
However, in his replying affidavit, Phosa said: “Given the conduct of Mr Mbatha which has prejudiced the applicants, it is urgent that there must be consideration of his conduct. Contempt is aimed at restoring the dignity and integrity of the court, and it is urgent that there must be no delays in this regard.”
The fight between Transasia and Umsobomvu started when the two mining companies entered into a Sale of Prospecting Agreement in 2012. Umsobomvu was expected to permit Transasia to take carriage of any applications pending in the Department of Mineral Resources under section 11(1) of the Mineral and Petroleum Development Act of 2022 (MPRDA) or for the grant of mining, as agreed.
Kunene was obliged to apply, but after receiving R14 million from Transasia, it is said he failed to do so and created blockages for Transasia.
Transasia was entitled to the transferred mining rights for both Malonjeni and Cambrian mining projects in Kwazulu-Natal, in which they invested with 0% contribution for Kunene.
Transasia was granted mining rights by the Department of Mineral Resource and Energy last year in January. But the decision aggrieved Umsobomvu, who challenged it in court.