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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

JOHANNESBURG

CASE NO: 01/12591

2001-05-29

In the matter between

PRESS, CHARLES GREGORY................................................................................... Applicant

and

DE BEERS CONSOLIDATED MINES LTD..............................................................Respondent

JUDGMENT

WILLIS. J: At 13:15 this afternoon while I was on duty as the urgent duty Judge in the motion court, I received a "notice of application for leave to oppose" in which appears the following:

"Please take notice that the applicant intends bringing an

application to the above Honourable Court today, 29 May 2001,

at 2.00 for an order in the following terms:-

1. Dispensing with the usual form and time period and disposing of the matter as a matter of urgency.

2. Postponement of the matter until proper documents can be prepared to apply for the relief described in paragraphs 7, 8, 9, 10, 11 and 12 of the affidavit attached in support of this application.

3. Permission to intervene in Case No. 01/7404 for a declaratory order that the applicant may apply for leave to appeal against the order made today in Case No. 01/7404.

4. Alternative or further relief."

I was aware that this morning the highly publicised application by De Beers Consolidated Mines Ltd for the sanctioning of its Scheme of Arrangement was to have been heard by Du Toit AJ. I immediately approached him to ascertain what had happened in connection with this matter and he advised me that he had indeed sanctioned this scheme. He also advised me that the applicant in the present matter had sought leave to intervene and that he had declined permission for this.

The applicant, when the matter was argued before me, denied that this is in fact what happened and said that his lordship Du Toit AJ had declined to hear him. A transcript of the proceedings has been handed to me and it would appear that his lordship Du Toit AJ said that "I cannot find that Mr Press had any interest in the matter and his request to intervene and that the matter stand down is therefore refused". I am in a difficult position of having a colleague on the bench whose word is disputed by the applicant who appears in person.

I may pause to mention that Case No. 01/7404 is in fact the application brought ex parte by De Beers Consolidated Mines Ltd for the sanctioning of the scheme of arrangement.

Mr Plewman, who appears for the respondent in this application, drew my attention to the fact the previous week his lordship Budlender AJ had heard a similar, albeit more wide ranging application, and had given a judgment, a copy of which I have received in which he dismissed the application and ordered the applicant to pay the respondent's costs on the attorney and client scale.

The applicant in this matter contends that the matter heard before Budlender AJ was not between the same parties and concerning the same matters. The first respondent in that matter was the same person who is the respondent in the matter the same person who is the respondent in the matter before me today; the second respondent was the Minister of Justice; the third respondent his brother, Clifford Press; the fourth respondent the Executors of the Estate of Sydney Arnold Press, his father who are also beneficiaries of the Linconian Trust. The fifth respondent Rabbi and Mrs Shnerb in their capacities as foster parents of Zane Press, his son, and Rabbi Rappeport and Rabbi Harris in their capacities as Judges of the Bethdin and as members of the Union of Jewish Orthodox Synagogues with an oversight responsibility over Rabbi Shnerb.

In prayer 14 of the application brought before Budlender AJ the application sought the following relief:

"Interdicting the first respondent (i.e. the same person who is the respondent in the proceedings before me today} from proceeding with its plans for restructuring and relocating until Parliament has voted on the said act and until after the applicant has submitted his alternative proposal to summon all of the parties or bodies whose approval for the transaction has already been implicitly or tacitly given, namely the President of South Africa, the Reserve Bank, the Competition Board and the National Union of Mine Workers."

Mr Plewman took the point of res Judicata. I think it would be unfair to the applicant to decide the matter on this basis with further ado. Mr Plewman took certain other points, and I do not consider it necessary to deal with all of these. I shall simply deal with that which I consider to be decisive in this matter.

The applicant has sought relief which would have far-reaching consequences were it to be granted. He motivates his coming to court as an applicant as follows in paragraph 1 of is affidavit"

"In terms of section 38(a)(d) of the Constitution a person who is acting in their own interest and anyone acting in the public interest may approach a court and allege a right in the Bill of Rights is being infringed or threatened. In my own and in the public interest I am making this application in terms of section 25(4)(b) of the Constitution." This section relates to the unlawful deprivation of ownership of property. The point which I believe the applicant has to grasp is that however laudable his motives, however noble his intentions, however

glorious his ideals, he has set out no basis recognised in law upon which he can seek to challenge the implementation of the scheme.

Accordingly he must, on this simple basis alone ------------- and it is unnecessary in my view to consider the various other points raised by Mr Plewman------ fail in the application.

Mr Plewman asked me to make an order directing that the applicant could not seek in any further application to try to impede the respondent from implementing the scheme unless the applicant had paid the costs which it had been ordered to pay in the application brought before Budlender AJ and which he submitted would naturally follow in this particular case.

In view of the respondent's experience this morning, this afternoon and last week, I believe it is fair that there should be some teeth given to the costs order which I must make following upon the dismissal of the application.

Consequently the following order is made:

1. The application is dismissed with costs.

2. The applicant may not issue any new application which seeks to intervene or postpone implementation of the Scheme of Arrangement under Case No. 01/7404 and unless and until the applicant has paid to the respondent in full all costs which he was ordered to pay under Case No. 01/11815and the costs order made by myself in paragraph 1 above.

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