Nkwe Platinum Limited and Another v Genorah Resources (Pty) Ltd and Others

Nkwe Platinum Limited and Genorah Resources (Pty) Ltd were joint holders of a mining right under the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), holding 74% and 26% interests respectively. Nkwe, a Bermuda-registered company, concluded an amalgamation agreement under Bermuda company law with another foreign company. Genorah contended that this amalgamation resulted in an unlawful transfer of the mining right or a change in control of Nkwe without ministerial consent under s 11 of the MPRDA, alternatively that Nkwe had been deregistered for purposes of s 56 of the MPRDA, causing Nkwe’s interest in the mining right to lapse. The High Court upheld Genorah’s contentions. Nkwe appealed to the Supreme Court of Appeal. Prior to the appeal hearing, the parties settled, but because the High Court order included an order in rem, the SCA was required to determine the merits.

The appeal was upheld. The orders of the Gauteng Division of the High Court, Pretoria, were set aside and replaced with an order dismissing the application, with no order as to costs.

The case clarifies the application of ss 11 and 56 of the MPRDA to foreign corporate restructurings, confirming that an offshore amalgamation that does not dissolve the company or alter its controlling interest does not constitute a transfer, disposal, or deregistration of a mining right holder. It underscores the need for South African courts to correctly interpret foreign company law when assessing the regulatory consequences under the MPRDA.