The Court of Appeal has reserved to February 8 a judgment of an appeal case in which Norilsk group had applied for leave of court to commence arbitration in the London Court of Arbitration. A panel of three judges being Presiding judge, Frederik Daniel Brand, Justice Lakhvinder Walia and Zibani Makhwade heard the appeal.
The marathon case has been running for the past three years since the defunct BCL who had entered into an a agreement to buy the Nkomati mine in South Africa owned by Norilsk at a cost of USD 270 million failed to take place subsequent to the two parties not agreeing on the sale price.Norilsk through its attorney of record, Collins Newman and Company approached the Court of Appeal having lost the first application at the high court where Justice Godfrey Radijeng refused their application to start the arbitration in London.
The purpose of the application was caused by the fact that it was agreed that Norilsk was selling the mine to BCL, but the dispute arose when BCL liquidator raised concerns that some of the conditions of sale have not been met, the main one being that the South African government where the Nkomati mine is situated, has not issued its consent.
They argued that without the consent, there was no obligation to pay the agreed purchase price of USD270 million. Norilsk is unshakeable in its position. They want the matter before the London Court of Arbitration but have approached the court because the Company Act states that, “before you launch proceedings against a company in liquidation, you have to get leave from court”.The Liquidator has also argued in a South African court that the Creditor (BCL) who in this case is Botswana Government does not have the resources to argue the matter in London.
The Norilsk application was first brought to court in December 2016, but was heard in December 2018 before Justice Ketlogetswe who was later transferred to the Francistown High Court. It was subsequently handed over to Justice Zein Kebonang. In order to ensure compliance, at some stage Norilsk through their lawyers alerted the London Court of Arbitration that they believe they have acted contrary to the Companies Act when they filed the matter in London and therefore requested them to wait or delay the proceedings since they needed to comply with the Act by seeking permission from Botswana court.
In his judgment, Justice Radijeng said before one can participate in liquidation, one first has to prove that one claims with the liquidator. However, Norilsk argues that the claim is not yet final. The appeal seating which took close to two hours could not end without the judges expressing their concerns and unhappiness as well as bashing the respondent’s attorneys.Justice Brand was not pleased with the line of approach to the appeal taken by the liquidator’s attorney. They had filed supplementary heads of arguments of an international case a week before hearing showing that one does not need the court’s authority to bring court proceedings in another country.
The liquidator had brought in a lot of paper work and this annoyed the judge to an extent of wanting to postpone the matter or even award costs against the Liquidator. The case has attracted great legal minds with Norilsk represented by Advocate Franklin SC assisted by Advocate Botha instructed by Virgil Vegeer and Walter Mushi of Collins Newman company, while the Liquidator is represented by Advocate Vivian SC assisted by Advocate Bheena instructed by Attorney Msiya Kindiano.