The death knell reached another crescendo for beleaguered Selibe Phikwe-located copper nickel company BCL when it lost its appeal against disposal solutions company InfoBuild Marketing (PTY) Ltd over a breach of contract lawsuit amounting to over P700 million.
Three Court of Appeal judges led by Lord Hamilton were anonymous in their ruling that
BCL had taken a High Court decision for granted by arguing that it had issued a “fatally defective” order to interdict and restrain the company from re-tendering for the project for the third time.
The ruling says BCL failed to negotiate in good faith with InfoBuild by involving a third party in the tendering process without the company’s consent.
The three judges said that it was evident from the Memorandum of Agreement (MoA) that InfoBuild was on a three-year contract with BCL to design a plant to recycle water which would be sold to the mine as well as enjoy the benefits of collecting and dispensing impurities found in the process.
Judge Hamilton was stern at what he described as failure to comply with Court of Appeal and High Court rules regarding the process of an appeal.
“In my view the judge at the High Court was right to make an interdict and restraining order against BCL to stop tendering without the consent of Infobuild. I conclude that what she had in mind was that the application did not fall to be dismissed in totality on the basis that there were irresolvable issues of fact but that there was sufficient resolvable material on which an interim order might properly be made albeit final resolution as prescribed on the Memorandum of Agreement,” said Hamilton
Hamilton said there was no doubt that judges should be circumspect about making orders which are not “expressly sought by a party or parties before them but I find no fatal defect in what the judge did in this case”.
The judge struck out the appeal and ordered that BCL bear the costs.
InfoBuild’s attorney, Sidney Pilane had submitted that his client was entitled to P25 200 000 being loss of profit for the installation of the water treatment plant and P747 861 217.00 for the profit to be generated from the running of the facility reaching a total of P773 061 217.
Pilane argued that Infobuild stood to lose from the use of its ideas, labour and financial.
“The loss is irreparable in that the amount of goodwill that would be generated by a project of this nature, we submit, is unquantifiable. This is so because it is impossible to approximate the impact the project will have on the stature and reputation of the applicant within the industry other than to say it will be positive,” Pilane argued
On its founding affidavit, InfoBuild revealed that the MoA entered into with BCL was preceded by two “non-disclosure agreements” concluded by the two parties on the March 13 and July 17, 2014.
InfoBuild was represented by Pilane and Meshack Mthimkhulu while BCL had Thapelo Attorneys in their corner.