SA High Court rejects ZCCM’s arbitration appeal with costs

The South Gauteng High Court in Johannesburg has denied ZCCM Investment Holdings leave to appeal against its judgement where it ordered the said company to withdraw the winding-up proceedings against Konkola Copper Mines (KCM) in the Lusaka High Court, pending final determination of the arbitration.

On July 23, the South Gauteng High Court granted Vedanta Resources Holdings Limited an urgent interim injunction against ZCCM-IH and KCM provisional liquidator, Milingo Lungu.

Gauteng High Court judge, L R Adams granted Vedanta leave to move the application as one of urgency and further declared that ZCCM-IH had breached and continues to breach the Shareholders’ Agreement through the institution of the winding-up proceedings against KCM in the Lusaka High Court.

He directed ZCCM-IH to immediately withdraw the winding-up proceedings, pending final determination of the arbitration and further ordered ZCCM-IH to restrain from taking any further steps in the furtherance and prosecution of the winding-up proceedings and to further restrain from instituting any winding-up application against KCM, pending final determination of the arbitration.

But ZCCM-IH had applied for leave in the said court to appeal against the whole judgement and order.

However, Judge Adams has dismissed ZCCM-IH’s application with costs and further ordered it to pay Vedanta cost of the application, including the cost consequent upon the employment of three counsel, one of whom was a senior counsel.

He stated that an appeal defeated the purpose of the interim order granted on an urgent basis.

“In casu (in this case) the interest of justice does not, in my view, favour appealability. If anything, it is in the interest of justice that leave to appeal be refused. I say so because my order envisages a prompt referral of the disputes between the parties to arbitration, where after time will start running again. Secondly, I granted the order pursuant to an urgent application,” Justice Adams stated.

He added that nothing new had been raised by ZCCM-IH in its application, adding that in his original judgement, he had dealt with most of the issues raised and it was not necessary to repeat those in full.

He stated that he was not persuaded that the issues raised by ZCCM-IH in its application were issues in respect of which another court was likely to reach a different conclusion to those reached by him.

“The appeal does not, in my judgment, have a reasonable prospect of success. Leave to appeal should, therefore, be refused,” ruled judge Adams.

He further removed from the roll, ZCCM-IH’s ‘Conditional Interlocutory Application’ to have declared unconstitutional article 17J (3) of Schedule 1 to the International Arbitration Act, Act 15 of 2017.

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