South Africa: High Courts - Gauteng

You are here:
SAFLII >>
Databases >>
South Africa: High Courts - Gauteng >>
2005 >>
[2005] ZAGPHC 59
| Noteup
| LawCite
Gold Fields Limited v Connellan NO and Others (7450/05) [2005] ZAGPHC 59; [2005] 3 All SA 142 (W) (20 May 2005)
(WITWATERSRAND LOCAL DIVISION)
CASE NO: 05/7450
In the matter between:
GOLD FIELDS LIMITED Applicant and RICHARD CONNELLAN N.O. First Respondent NORMAN LOWENTHAL N.O. Second Respondent HARMONY GOLD MINING COMPANY LIMITED Third Respondent THE SECURITIES REGULATION PANEL Fourth Respondent
SNYDERS, J:
BACKGROUND FACTS The applicant, Gold Fields Limited (hereinafter referred to as “Gold Fields”) is a gold mining company in South Africa, West Africa and Australia, with shares listed on the JSE Securities Exchange in South Africa, the New York Stock Exchange, the London Stock Exchange, the Euronex Stock Exchange and the SWX Swiss Exchange. The first respondent is Richard Connellan the Executive Director of the fourth respondent, The Securities Regulation Panel (hereinafter referred to as the “SRP”). The first respondent is cited in his official capacity only (hereinafter referred to as “the Executive Director”). The second respondent, also cited in his official capacity only, is Norman Lowenthal (hereinafter referred to as “Lowenthal”) the Chairman of the Executive Committee of the SRP. The fourth respondent, Harmony Gold Mining Company Limited, (hereinafter referred to as “Harmony”) is a gold mining company in South Africa, with shares listed on the JSE Securities Exchange in South Africa, the New York Stock Exchange, the London Stock Exchange and the Euronex Stock Exchange. On 18 October 2004 Harmony announced that it proposed to acquire the entire issued share capital of Gold Fields. In terms of this expressed proposal Harmony posted a written offer and circular to Gold Fields’ shareholders on 20 October 2004. The offer fell to be regulated by the SRP Established and authorized in terms of sections 440A-N of the Companies Act, 61 of 1973, as regulatory body in respect of take-overs and mergers. in terms of its Code and Rules. In the written offer and circular (hereinafter referred to as the “offer document”) by Harmony the nature and structure of the offer is set out in great detail. The offer consists of two parts termed the early settlement offer and the subsequent offer, structured as two immediately consecutive offers. The early settlement offer was for 34,9% of Gold Fields issued shares, and this part of the offer remained open until 12:00 on 26 November 2004. Harmony irrevocably undertook, upon closing of the early settlement offer, to make an immediate follow-on offer, called the subsequent offer for the balance of the entire issued share capital of Gold Fields. Both parts of the offer were subject to certain conditions. The most significant of these for purposes of the current proceedings, is the second condition to the subsequent offer:
“Harmony receiving valid acceptances of the subsequent offer from Gold Fields shareholders holding in excess of 50% of the entire issued
share capital of Gold Fields (including those Gold Fields shares settled by Harmony under the early settlement offer and those Gold Fields shares in respect of which Norilsk
Norilsk Nickel, the largest shareholder of Gold Fields, irrevocably committed to Harmony to accept the subsequent offer
in respect of its entire shareholding of 20,03% of the issued share capital of Gold Fields. has irrevocably undertaken to accept the subsequent offer).”
Harmony sought the direction of the SRP prior to announcement and posting of the offer document and obtained rulings from the Executive
Director of the SRP in this regard already on 18 October 2004. As early as 20 October 2004 Gold Fields sought certain rulings from
the SRP in relation to the offer which included a ruling:
“that the early settlement offer and the subsequent offer (as defined in the offer) is one composite transaction under the panel’s
jurisdiction and accordingly should be extended on the same terms and conditions, particularly as to settlement, and should be subject
to the same conditions precedent.”
A hearing on this rulings sought by Gold Fields were conducted firstly by the Executive Committee, whose ruling of 5 November 2004 was appealed to the full Panel of the SRP Section 440C(4)(d) of the Companies Act, 61 of 1973, provides for appeals from decisions of the Executive Director to the Executive Committee, the Executive Committee to the Panel. Section A(2)(d) of the Code determines the quorum of the Executive Committee to be three members of the SRP and for purposes of appeal to the full panel, a quorum of five members. that handed down a ruling, with reasons to follow, on 29 November 2004. The SRP ruled:
“In the context of considering whether there has been an ‘affected transaction’, the following rulings are made:
1.
‘the transaction’ is the offer by Harmony for the entire issued share capital of GFL.
A reference to Gold Fields.
2.
The transaction, upon its implementation, will have the effect of vesting control of GFL in Harmony.
3.
The transaction is to be implemented in two stages through the early settlement offer and the subsequent offer.
4.
The division of the implementation of the transaction into two stages does not detract from the fact that there is a single composite transaction, namely, Harmony’s offer for all
of the issued share capital of GFL.
5.
In addition and, in any event the early settlement offer and the subsequent offer are part of a series of transactions or scheme which
upon its implementation, will have the effect of vesting control GFL in Harmony.
6.
In the premises the panel has jurisdiction over the early settlement offer.”
The written reasons for the ruling became available on 15 February 2005. Shortly after the aforestated ruling and before 2 December 2004 the Executive Director approved another circular submitted by Harmony to him, which involved the subsequent offer. The time periods contained in the offer document posted on 20 October 2004 pertaining to the subsequent offer were slightly different in the subsequent offer document. The subsequent offer document was posted on 2 December 2004. Towards the end of January 2005 requests were made by Harmony to the Executive Director for the extension of the time period in Rules 28.6 and 28.7 in respect of the subsequent offer and Gold Fields conveyed their refusal to consent to an extension in terms of Rule 28.6. On 25 January 2005 the Executive Director granted Harmony an extension in terms of Rule 28.7 until 18 March 2005 Founding affidavit, annexure NJH17(a), p. 365. for the fulfilment of some conditions. On 26 January 2005 Harmony expressly waived the condition as to minimum acceptances to the subsequent offer. On 27 January 2005 Harmony withdrew its application for consent in terms of Rule 28.6. On 28 January 2005 Gold Fields noted an appeal Founding affidavit, annexure NJH11, p. 274. against the extension in terms of Rule 28.7 granted by the Executive Director on 25 January 2005. The basis of the appeal was that the Harmony offer has lapsed in terms of Rule 28.6, therefore that no extensions were competent. On 4 February 2005 Harmony applied, by letter of their attorneys, Cliffe Dekker, asking for another extension of the time period in Rule 28.7 until 18 March 2005 for the fulfilment of other conditions. On 17 February 2005 the Executive Director informs Gold Fields’ attorneys of this request and asks them to make written submissions by 12:00 on 18 February 2005. No submissions were forthcoming from Gold Fields as their attorneys did not become aware of the previous day’s letter from the Executive Director, and the extension Founding affidavit, annexure NJH17(b), p 366(a). sought was granted on 18 February 2005 until 18 March 2005. On 25 February 2005 Gold Fields also noted an appeal against the latter decision. Another extension under Rule 28.7 and appeal thereto followed. Consequent on the appeals noted by Gold Fields a hearing of the Executive Committee was scheduled for 16 March 2005. JOINDER During the course of hearing this application only, the question was raised by Harmony whether there is a need to join the Gold Fields shareholders in these proceedings. Some shareholders, it was argued, have accepted the Harmony offer and consequently are in a contractual relationship with Harmony for the sale of shares. Those shareholders would, by reason of these contracts, have a direct interest in the present proceedings. A declaration that the Harmony offer has lapsed, would void these contracts. If those shareholders are not joined, they may approach the court on the same issue and obtain a conflicting decision. Such a scenario would be wholly undesirable and not in the interests of justice. In Home Sites (Pty.) Ltd. v Senekal 1948 (3) SA 514 AD at 520-521 a similar issue was dealt with as follows:
“It is true that if she remains outside the litigation a decision … would be res inter alios acta as far as she is concerned and would not be binding by way of res judicata upon her. But if such a decision were given by this Court it would be an authority on the legal issues which would be directly in
point and calculated to operate with decisive effect upon her claim to be entitled to the servitude. Accordingly it seems to me that she has, in the language used in Collin v. Toffie (1944, A.D. 456 at p. 464), a direct and substantial interest in the results of the decision of this issue, which cannot properly be decided without
her being joined as a party.”
(See also Toekies Butchery (Edms) Bpk en andere v Stassen 1974 (4) SA 771 (T) at 774F-H.) The Gold Fields’ answer to this point was twofold: firstly, that the point is not a valid one in the circumstances; secondly, that if it is valid, that Gold Fields be granted an interim order on the basis that it makes out a prima facie case, and that such rule then be served on Gold Fields’ shareholders. The latter contention elicited a unanimous response from Harmony and the SRP, that the issue of a interim order has not been properly considered or ventilated. I was urged, in the event of being prima facie in favour of Gold Fields’ second contention, to notify the parties and continue the hearing on this point. Mindful of this, I continue. In the matter of Vandenhende v Minister of Agriculture, Planning and Tourism, Western Cape, and Others 2000 (4) SA 681 (C) the locus standi of the applicant was in issue. In resolving that issue the court was guided by the approach adopted by our courts when considering the joinder of parties. At 686J-687D. Specific reference is made to the matter of United Watch & Diamond Co (Pty) Ltd and others v Disa Hotels Ltd and Another 1972 (4) SA 409 (C) At 415A-C. on this point. The similarity of the principles relating to issues of locus standi and joinder is clear. In Jacobs en ‘n Ander v Waks en Andere [1991] ZASCA 152; 1992 (1) SA 521 (A) the following was said: At 533J-534E.
“Die weg is nou gebaan vir ‘n oorweging van die locus standi van die applikante. In die algemeen beteken die vereiste van locus standi dat iemand wat aanspraak maak op regshulp ‘n voldoende belang moet h
by die onderwerp van die geding om die hof te laat oordeel dat sy eis in behandeling geneem behoort te word. Dit is nie ‘n tegniese begrip met vas omlynde grense nie. Die gebruiklikste manier waarop die vereiste beskryf word, is om te s
dat ‘n eiser of applikant ‘n direkte belang by die aangevraagde regshulp moet h
(dit moet nie te ver verwyderd wees nie) ; andersins word daar ook ges
, na gelang van die samehang van die feite, dat daar ‘n werklike belang moet wees (nie abstrak of akademies nie), of dat dit
‘n teenswoordige belang moet wees (nie hipoteties nie) – sien, in die algemeen, Cabinet of the Transitional Government for the Territory of South West Africa v Eins 1988 (3) SA 369 (A) op 387J-388H, 398I-390A, en die vorige beslissings wat daar bespreek word (sommige waarvan hieronder genoem sal word). In die omstandighede van die huidige saak is dit veral die vereiste van ‘n direkte belang wat op die voorgrond staan. Wat dit
betref, is die beoordeling van die vraag of ‘n litigant se belang by die geding kwalifiseer as ‘n direkte belang, dan
wel of dit te ver verwyderd is, altyd afhanklik van die besondere feite van elke afsonderlike geval, en geen vaste of algemeen geldende re
ls kan neergel
word vir die beantwoording van die vraag nie (sien bv Dalrymple and Others v Colonial Treasurer 1910 TS 372 per Wessels R op 390 in fine, en vgl Director of Education, Transvaal v McCagie and Others 1918 AD 616 per Juta Wn AR op 627). Vorige beslissings kan behulpsame algemene riglyne vir bepaalde soort gevalle aandui, maar meestal het dit
weinig nut om die besondere feite van een geval te vergelyk met di
van ‘n ander. Met dit in gedagte benader ek die feite van die onderhawige saak.”
Only the facts relevant to the Harmony subsequent offer are relevant to the present consideration. As the subsequent offer is still open for acceptance two broad categories of shareholders exist, those who have accepted and those who have not, but may. I did not understand Mr Loxton to argue that the latter category has an interest necessitating their joinder and it could safely be said that to the extent that they have an interest, it is hypothetical. In respect of the first mentioned category Gold Fields placed an affidavit before me in the dying moments of the hearing, which contains the figures relating to this category of shareholders. There was a limited objection by Harmony to that affidavit, that I could see it, but that as it comes at a very late stage, has not been answered or dealt with by any of the other parties and is irrelevant, it does not meet with any of the requirements for recognition. The contents of the affidavit consists of readily ascertainable facts, i.e. the daily published share prices, mathematical calculations easily verified and conclusions based on those facts. As such no prejudice flows from admitting this affidavit. It was argued that they represent an infinitesimal percentage of the total issued shares of Gold Fields. Four South African shareholders, representing 431 Gold Fields shares and approximately 43 international shareholders representing less than 50 000 shares of the total of 492 000 000 issued shares, have accepted the subsequent offer. However, the smallness in number does not define the nature of the interest in the litigation for the individual and does not answer the joinder issue. The following facts, however, do. Ever since early December 2004, until 20 May 2005, the date of judgment in this matter, the value of Harmony shares offered to Gold Fields’ shareholders has been persistently less than the value of each Gold Fields share. In terms of the subsequent offer, Harmony offers 1,275 Harmony shares for every Gold Fields share. The number of Harmony shares that equals the value of a Gold Fields share has been persistently more than what is offered. Although some shareholders nonetheless accepted the offer, it could safely be concluded that no shareholder could be harmed or prejudiced by an order declaring the offer lapsed. Although an interest is not only to be defined as to value, the mere fact of a contractual relationship in the present circumstances, means an academic and theoretical interest not sufficient for purposes of joinder. The battle between the parties in this matter has been widely published. It has involved many stages of consideration in various fora without any shareholder having been joined. At no stage has any shareholder of Gold Fields sought to be joined. Although not determinative of the issue, this is another consideration in assessing the existence and nature of an interest worthy of joinder. Consequently I find that there has not been a non-joinder by the applicant. In view of that conclusion the need for a further hearing does not arise. RECENT EVENTS THAT LEAD TO THIS APPLICATION Gold Fields’ ground of appeal in respect of all extensions granted in terms of Rule 28.7 was the same: that the offer has lapsed on midnight 18 December 2004 in terms of Rule 28.6 and that no extension of the offer was therefore competent. Rule 28.6 of the SRP reads:
“28.6
Final day rule (fulfilment of acceptance condition, timing and announcement)
(a)
Except with the consent of the Panel, an offer (whether revised or not) may not become or be declared unconditional as to acceptances
after midnight on the 60th day after the day the initial offer document was posted. The Panel’s consent will normally only be granted –
(i)
if a competing offer has been announced (in which case both offerors will normally be bound by the timetable established by the posting
of the competing offer document); or
(ii)
if the board of the offeree company consents to an extension.
(b)
Except with the consent of the Panel, on the 60th day after the day upon which the initial offer document was posted (or any other date beyond which the offeror has stated that its
offer will not be extended) a press release shall be made by 17:00 as to whether the offer is unconditional as to acceptances or
has lapsed.”
Gold Fields relied on the facts that Harmony had not declared the offer unconditional as to acceptances prior to the lapse of 60 days, i.e. prior to 18 December 2004 and that no consent had been granted to Harmony by the SRP for an extension in terms of Rule 28.6. The day before the hearing of the appeal the parties received a bundle of documents from the Executive Director, compiled by him for the appeal hearing. It contained two letters, the existence and contents of which came as a complete surprise to Gold Fields. The first letter, dated 18 February 2005, is written by Hayes, a director of Cliffe Dekker, attorneys for Harmony, addressed to the Executive Director. One paragraph in that letter was particularly relevant to the appeal:
“We confirm that you are in agreement that on or about 1 December 2004, following the ruling of the Panel issued on 29 November 2004,
you approved Harmony’s supplementary circular dated 2 December 2004 and the timetable contained therein and consented to all
the relevant time periods, including the 60 day period referred to in Rule 28.6 of the Code, commencing on the date of opening of
the subsequent offer, being 2 December 2004.”
This was the first intimation to Gold Fields ever of any consent to an extension in terms of Rule 28.6, the very absence of which Gold Fields relied upon for its appeal. This letter contained a handwritten emendation by the Executive Director in response to this paragraph, read out by the Executive Director at the appeal hearing:
“Discussed this clause with Ian Hayes. We at the Panel did not give consent as to the best of my knowledge and belief. This issue was not raised at the time. We did approve the timetable. It is possible to argue that having approved the timetable by implication
the other time periods were consented to. Requested I. Hayes to submit a corrected letter.”
The “corrected letter” called for by the Executive Director was the second letter that Gold Fields had no knowledge of prior to seeing it in the bundle. It is dated 21 February 2005 and the body thereof reads:
“We refer to our telefax of 18 February 2005 and your subsequent discussion with the writer.
We confirm your agreement that you consider the content of our telefax to be true and correct in all respects save that in your view the words ‘by implication’ should have been inserted after the word ‘consented’ in the second
paragraph.”
The Executive Director did not respond to this letter. On an objective reading of these letters Gold Fields faced the following situation: •
ΙτωασδριϖινγαναππεαλβασεδοντηεαβσενχεοφχονσεντβψτηεΣΡΠφορανεξτενσιονιντερμσοφΡυλε
•
Λατεοντηεεϖεοφτηισαππεαλτηεψωερεχονφροντεδβψτηεχοντεντσοφτηεσελεττερσφορτηεϖερψφιρσττιμε
•
ΤηελεττεροφΦεβρυαρψχονϖεψστηαττηεΕξεχυτιϖεΔιρεχτορεξπρεσσλψχονσεντεδτοανεξτενσιονοφτηεδαψπεριοδιντερμσοφΡυλε
•
ΤηεΕξεχυτιϖεΔιρεχτορ’σνοτεινρεσπονσεχονϖεψσ
-
that “to the best of [his] knowledge and belief” no such consent was given, however, that it was arguable that such consent was impliedly given;
- that he discussed this with Hayes; - that he asked Hayes to write a “corrected letter”. •
ΤηεσεχονδλεττεροφΦεβρυαρψρεχορδσαναγρεεμεντβετωεενΗαψεσανδτηεΕξεχυτιϖεΔιρεχτορτηαττηελαττεριμπλιεδλψχονσεντεδτοανεξτενσιονοφτηεδαψπεριοδιντερμσοφΡυλε
ΤηεσενεωφαχτσνεωτοΓολδΦιελδσαμβιγυουσαστηεψωερεαττηετιμεστρυχκαττηεϖερψχορεοφτηεΓολδΦιελδσαππεαλΙτωαστηερεφορενοσυρπρισετηαταποστπονεμεντωασσουγητονβεηαλφοφΓολδΦιελδσΙτσοονβεχαμεχλεαρτηαταποστπονεμεντωασνοτφορτηεασκινγΗαρμονψϖεηεμεντλψοπποσεδτηεγραντινγοφαποστπονεμεντεξχεπτφορτηεπυρποσεοφπρεπαρινγφοραν
ομνιβυσαππεαλ
This was defined at the hearing: “That we invite Gold Fields to note an Appeal in respect of the consent that was granted on the 1st December, that that Appeal together with the Appeal that is before you today, as well as an Appeal that has been noted in respect
of a further extension that was granted … and that all of these Appeals, which I support an omnibus Appeal should be heard
before a Panel such as yourselves at the soonest possible time.” Record of Hearing p. 15; Founding Affidavit, p. 193. proposed by it. The Executive Committee was reluctant to allow any further delays.
“CHAIRPERSON: … In the interests of the commerciality of this and the market-place, a further delay would be certainly not in
the interests of both sides by the looks of things; just by the looks of things, I’m not prejudging this. Therefore, if we
are able to proceed and bring this matter to finality it would be in everybody’s interest.” Record of Hearing p. 12; Founding Affidavit, p. 190.
The argument on behalf of Gold Fields was, in short, that the appeal was not ready for hearing in view of the surprise that Gold Fields faced and Gold Fields wanted an opportunity to launch an attack on the implied consent and have it set aside in the High Court on the basis of a material irregularity in the proceedings. The postponement was refused in the following terms:
“Gentlemen, we are not persuaded to postpone this appeal. We believe that this Committee is properly constituted in terms of the Code.
We’re not persuaded that the introduction of the letter of the 18th of February changes the whole tenor of the appeal. We believe that the parties have every right to High Court review, but that this
does not usurp the function of the SRP to hear this appeal that was requested by Gold Fields.”
Founding affidavit, annexure NJH4, p. 226.
Lowenthal, the Chairman of the Executive Committee, re-stated these reasons in his answering affidavit:
Answering affidavit, p. 604,
19.
“19.1
even if the Executive Director had given consent under Code Rule 28.6 on or around 18 February 2005 (which
we did not understand to be the case), this did not change the issues to be determined in the appeal before us;
19.2
the Executive Committee on appeal was duly constituted to hear the appeal and the appeal had been brought by Gold Fields itself;
19.3
the matter was of grave importance to all of the interested stakeholders, including the financial markets as a whole and required expeditious determination.”
Upon being refused a postponement Gold Fields withdrew its appeal, whereupon the Executive Committee, having been requested to do so by Harmony, dismissed the appeal. Hence Gold Fields approached this court on an urgent basis seeking the following relief:
“2.
2.1
Insofar as the First Respondent made a decision on or about 1 December 2004 in which he purported to give consent for the expiry of
the 60-day period referred to in rule 28.6 of the Securities Regulation Code on Takeovers and Mergers (‘the Code’) to
be extended until 31 January 2005 in respect of the Third Respondent’s offer to acquire the entire issued share capital of
the Applicant (‘the Harmony offer’), reviewing and setting aside that decision;
2.2
Insofar as the decision referred to in paragraph 2.1 was made in response to an application by the Third Respondent to have the expiry
of the 60-day period referred to in rule 28.6 of the Code extended in respect of the Harmony offer, substituting the following in place of the First Respondent’s decision: The application for an extension
of the 60-day period in terms of rule 28.6 of the Code is refused;
3.
3.1
Reviewing and setting aside the decision of the First Respondent taken on or about 25 January 2005 in which the First Respondent purported to give consent in terms of rule 28.7 of the Code for an extension until
18 March 2005 of the time by which the relevant conditions precedent in the Harmony offer were required to be fulfilled;
3.2
Substituting the following in place of the decision referred to in paragraph 3.1 above: The application for an extension of time in
terms of rule 28.7 of the Code is refused;
4.
4.1
Reviewing and setting aside the decision of the First Respondent taken on or about 18 February 2005 in which the First Respondent purported
to give consent in terms of rule 28.7 of the Code for an extension until 18 March 2005 of the time by which the relevant conditions
precedent in the Harmony offer were required to be fulfilled;
4.2
Substituting the following in place of the decision referred to in paragraph 4.1 above: The application for an extension of time in
terms of rule 28.7 of the Code is refused;
5.
5.1
Reviewing and setting aside the decision of the First Respondent taken on or about 10 March 2005 in which
the First Respondent purported to give consent in terms of rule 28.7 of the Code for an extension until 20 May 2005 of the time by
which the relevant conditions precedent in the Harmony offer were required to be fulfilled;
5.2
Substituting the following in place of the decision referred to in paragraph 5.1 above: The application for an extension of time in
terms of rule 28.7 of the Code is refused;
6.
6.1
Reviewing and setting aside the decision of the Executive Committee of the Fourth Respondent under the
chairmanship of the Second Respondent (‘the Executive Committee’) taken on 16 March 2005 in which the Executive Committee refused
to grant the Applicant a postponement in order to allow it an opportunity to review the decision referred in paragraph 2 above, and
dismissed the appeal by the Applicant against the decisions of the First Respondent referred to in paragraphs 3 and 4 above;
6.2
Substituting the following in place of the decision of the Executive Committee referred to in paragraph 6.1 above:
(a)
The appeal against the decision of the Executive Director dated 25 January 2005 is upheld. The order of the Executive Director dated 25 January 2005 is replaced with the following order: the application for an extension of time in terms of rule 28.7 of the Code is refused.
(b)
The appeal against the decision of the Executive Director dated 18 February 2005 is upheld. The order of the Executive Director dated 18 February 2005 is replaced with the following order: the application for an extension of time in terms of rule 28.7 of the Code is refused.
7.
Declaring:
7.1
that the Harmony offer lapsed on 18 December 2004;
7.2
that the Applicant has not, subsequent to 18 December 2004, been subject to the provisions of the Code or any Code Rules affecting
a target company or an offeree company;
7.3
that the Harmony offer was not capable in law of being revised or reinstated after it lapsed on 18 December 2004, and that the Harmony
offer is not capable in law of being revised or reinstated at the current time;
7.4
that the Third Respondent is precluded from making any further offer for the shares of the Applicant for a period of twelve months
from 18 December 2004;
8.
In terms of s 7(2)(c) of the Promotion of Administrative Justice Act 3 of 2000, exempting the Applicant from the obligation to exhaust the internal appeal procedures provided for in the Code before it reviews the decisions of the First Respondent and the decision of the
Executive Committee referred to in paragraphs 2, 3, 4, 5 and 6 above;
9.
Directing that those Respondents who oppose any of the relief sought herein should be ordered to pay the costs hereof on a joint and
several basis, the one paying the others to be absolved;”
The Executive Director and the SRP oppose this application on a limited basis, explained by the Executive Director in his affidavit as follows:
“Our opposition hereto is to be directed only against the allegations made against us based upon alleged bias, perceived bias, institutionalised
bias and other irregularities (collectively ‘the bias’) allegedly perpetrated by us in our dealings herein.”
Answering affidavit, p. 397,
3.
However, SRP and the Executive Director sought costs against Gold Fields as contained in the ultimate paragraph of the answering affidavit:
“… I submit that the allegations do not bear scrutiny and whilst agreeing to abide the decision of this Honourable Court in relation
to the relief sought by Harmony
This should be a reference to Gold Fields. as set forth in its Notice of Motion, I nevertheless request this Honourable Court on my own behalf and on behalf of the SRP to grant an order that the costs of the First and Fourth Respondents against
the Applicant, Gold Fields, be borne and paid by Gold Fields on the attorney and client scale, including the costs consequent upon the employment of two Counsel.”
Answering affidavit, p. 461,
85.2.
Harmony’s opposition to the application is varied. It involves the following issues, shortly stated: •
ΤηατΓολδΦιελδσωασοβλιγεδτοεξηαυστιτσιντερναλρεμεδιεσβυτφαιλεδτοδοσο
•
ΤηατιμπλιεδχονσεντωασγιϖενφορανεξτενσιονιντερμσοφΡυλε
•
Τηαττηεφαχτσδονοτσυβσταντιατεαφινδινγοφπερχειϖεδβιασ
• ΤηατΓολδΦιελδσηασβεεντρεατεδπροχεδυραλλψφαιρλψ •
ΤηαττηεΕξεχυτιϖεΔιρεχτορδιδνοτχομμιτανερροροφλαωινηισαππλιχατιονοφτηεΒοδεανδΡυλεσοφτηεΣΡΠ
ΗαρμονψτηερεφορεασκσφορτηεδισμισσαλοφτηεαππλιχατιονωιτηχοστσωηιχηαρετοινχλυδετηεχοστσοφτηρεεχουνσελΙντηεαλτερνατιϖεανδχονδιτιοναλυποντηεαππλιχαντοβταινινγανορδερασπραψεδφορΗαρμονψασκσφορανορδεριντηεφολλοωινγτερμσ
Τηεφαιλυρεοφτηετηιρδρεσπονδεντ’σ‘Ηαρμονψ’οφφερφορτηεαχθυισιτιονοφτηεσηαρεσοφτηεαππλιχανττοβεδεχλαρεδορτοβεχομευνχονδιτιοναλαστοαχχεπτανχεσαφτερμιδνιγητοντηεσιξτιετηδαψαφτερτηεδατεονωηιχητηεινιτιαλοφφερδοχυμεντινρεσπεχτοφτηατοφφερωασποστεδισεξχυσεδιναχχορδανχεωιτητηεπροϖισιονσοφρυλεοφτηεΣεχυριτιεσΡεγυλατιονΒοδε‘τηεΒοδε’ανδΗαρμονψ’σωαιϖεροφτηεμινιμυμαχχεπτανχεσχονδιτιονινρελατιοντοτηατοφφερουτσιδεοφτηεπεριοδχοντεμπλατεδινρυλε‘τηεωαιϖερ’ισηερεβψαυτηορισεδαλτερνατιϖελψχονσεντισγιϖενιντερμσοφρυλετοτηεπεριοδβεινγεξτενδεδυπυντιλτηεδατεοφτηεωαιϖερ
ΗαρμονψισγραντεδανεξτενσιονοφτηετιμεπεριοδσφορτηεφυλφιλμεντοφτηεχονδιτιονσοφιτσοφφερασχοντεμπλατεδινρυλεοφτηεΒοδευντιλσυχητιμεαστηεπρεσεντηεαρινγβεφορετηεΒομπετιτιονΤριβυναλρελατινγτοτηατοφφερισφιναλλψδεαλτωιτηαλτερνατιϖελψτηεφαχττηαταλλοφτηεχονδιτιονσοφτηεΗαρμονψοφφερωασνοτφυλφιλλεδωιτηιντηετωεντψονεδαψπεριοδχοντεμπλατεδινρυλεοφτηεΒοδεισεξχυσεδ
ΑλτερνατιϖελψτοπραψερσανδΗαρμονψισεξχυσεδφρομτηεπροϖισιονσοφρυλεοφτηεΒοδεανδιστηυσνοτπροηιβιτεδφρομμακινγανοφφερφορτηεσηαρεσοφτηεαππλιχαντωιτηιντωελϖεμοντησφρομΔεχεμβερορσυχηοτηερδατεονωηιχητηεΗαρμονψοφφερμαψηαϖελαπσεδ
Τηεαππλιχαντισορδερεδτοπαψτηεχοστσοφτηισαππλιχατιον ΣομεοφτηερελιεφσουγητισδεπενδαντονιμπλιεδχονσεντιντερμσοφΡυλεηαϖινγβεενγιϖενΙφνοττηερεισνοτηινγτορεϖιεωανδΓολδΦιελδστηενσεεκσαδεχλαρατορΗοωεϖερεϖενβεφορετηατφαχτυαλθυεστιονισανσωερεδτηεθυεστιοναρισεσωηετηερΓολδΦιελδσισεντιτλεδτοβεβεφορετηισχουρτονανψοφτηερελιεφτηατιτσεεκσΤηεανσωερτοτηατισσυειστοβεφουνδιντηειντερπρετατιονανδαππλιχατιονοφτηεΠρομοτιονοφΑδμινιστρατιϖεϑυστιχεΑχτοφηερειναφτερρεφερρεδτοασΠΑϑΑ ΠΑϑΑ ΤηεΣΡΠισχονστιτυτεδιντερμσοφσεχτιονσΑΝοφτηεΒομπανιεσΑχτοφασασελφρεγυλατορψσπεχιαλισεδβοδψσετυπτορεγυλατεανδσυπερϖισεμεργερσανδτακεοϖερσσοαστοενσυρεφαιρνεσστοτηεηολδερσοφρελεϖαντσεχυριτιεσΑσσυχητηεΣΡΠωιτητηεαππροϖαλοφτηεΜινιστεροφΙνδυστριεσΒομμερχεανδΤουρισμμακεοραμενδρυλεσιντερπρετσιταππλιεσιτανδχονδονεφαιλυρεστοχομπλψωιτηιτΤηερυλεσοφτηεΣΡΠπροϖιδεφορατιεραππεαλπροχεδυρεφρομτηεΕξεχυτιϖεΔιρεχτορτοτηεΕξεχυτιϖεΒομμιττεεμεμβερσανδφρομτηελαττερτοτηεφυλλΠανελμεμβερσΕαχηαππεαλινϖολϖεσαρεηεαρινγΤηεδεσιγνοφτηεφυνχτιονσοφτηεΣΡΠανδιτσΒοδεανδΡυλεσισσυχηαστοπρομοτεαφλεξιβλεαππροαχηβψεξπερτσιναηανδσονεξπεδιτιουσωαψ ΤηεπαρτιεσωερεαγρεεδτηαττηεΠρομοτιονοφΑδμινιστρατιϖεϑυστιχεΑχτοφαππλιεσιντηισχασε S 1(b) of PAJA defines “administrative action” for purposes of the Act, inter alia, as: “… any decision taken, or any failure to take a decision, by – (a) an organ of state, when – (i) exercising a power in terms of the Constitution or a provincial constitution; or (ii) exercising a public power or performing a public function in terms of any legislation; or (b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision …” PAJA codifies the grounds of judicial review of administrative action, in s 6 thereof. In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs [2004] ZACC 15; 2004 (4) SA 490 (CC) at 506 [25] the interrelationship between PAJA, the common law and the Constitution, Act 108 of 1996, was settled in the following dictum:
“[25] The provisions of s 6 divulge a clear purpose to codify the grounds of judicial review of administrative action as defined in
PAJA. The cause of action for the judicial review of administrative action now ordinarily arises from PAJA, not from the common law as in the past. And the authority of PAJA to ground such causes of action rests squarely
on the Constitution.”
S 7(2)(a) of PAJA dictates the limitations to review of administrative action by providing:
“Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this Act unless any internal remedy provided for in any other law has first been exhausted.”
It is common cause that Gold Fields has not appealed the alleged implied consent of 1 December 2004 nor the refusal of a postponement and dismissal of its appeal by the Executive Committee on 16 March 2005. The internal remedies provided for in the Code and Rules of the SRP have thus not been exhausted by Gold Fields. S 7(2)(c) provides the exception within which Gold Fields will have to bring its case, in order to escape the provisions of s 7(2)(a):
“(c)
A court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt
such person from the obligation to exhaust any internal remedy if the court or tribunal deems it in the interest of justice.”
Gold Fields relies on a reasonable perception of bias on the part of the Executive Director and procedural unfairness as “exceptional circumstances” which “in the interest of justice” demand a departure from the obligation to exhaust internal remedies, as well as constituting the required ground for judicial review in terms of s 6(2)(a)(iii) and 6(2)(c) respectively of PAJA, which provides:
“(2)
A court or tribunal has the power to judicially review an administrative action if –
(a)
the administrator who took it –
(iii)
was biased or reasonably suspected of bias;
(c)
the action was procedurally unfair.”
Gold Fields relies on various incidents as constituting its case of bias, reasonable suspicion of bias or procedural unfairness. First incident On 18 October 2004, two days prior to the posting of the offer and circular, upon Harmony seeking a ruling on its intended offer from the Executive Director, the latter made the rulings sought. Founding papers p 356. The ruling reads:
“The Executive hereby rules that, insofar as may be necessary, the Securities Regulation Panel (‘the SRP’) has consented,
as contemplated in Rule 32.1, to the subsequent offer (as defined in the abovementioned letter) being made immediately after the
closing of the initial offer (as defined in the abovementioned letter); and the SRP has, in terms of Rule 30.1 waived the obligation
on Harmony to keep the initial offer open for the 21 day period referred to in Rule 30.1 in the event that Harmony increases the
offer consideration under the initial offer.”
Rule 30.1:
“30.1 Offer open for 21 days after revision Save with the consent of the Panel, an offer if revised, shall be kept open for at least 21 days following the date on which the revised offer document is posted. Subject to such consent, no document revising the offer may therefore be posted within the 21 days ending on the last day the offer may become unconditional as to acceptances. 32.1 Delay of 12 months before subsequent offer Except with the consent of the Panel, where an offer has been announced or posted but has not become or been declared unconditional and has been withdrawn or has lapsed, neither the offeror, nor any person who acted in concert with the offeror in the course of the original offer, nor any person who is subsequently acting in concert with any of them, may within 12 months from the date on which such offer is withdrawn or lapses either – (a) make an offer for the relevant securities of the offeree company; or (b) acquire any securities of the offeree company if the offeror or any such person would thereby become obliged under Rule 98 to make an offer.”
Gold Fields was not notified that the ruling was being sought, nor that the ruling had been made. The ruling has a bearing on the
hotly debated and contested issue between Gold Fields and Harmony whether the offer was a single offer or two separate offers. On
22 October 2004 Gold Fields sought a ruling from the Executive Director whether “the early settlement offer and the subsequent offer (as defined in the offer) is one composite transaction under the panel’s
jurisdiction”. Still Gold Fields were not notified of the ruling of 18 October 2004, which impacted on the issue raised by Gold Fields in
the request of 20 October 2004. Only when the Gold Fields appeal on this issue came before the Executive Committee on 29 October
2004 did Gold Fields learn about the fact of this ruling from the bundle of documents prepared by the Executive Director for the
hearing. The actual document reflecting the ruling was only made available to Gold Fields during the actual hearing on 29 October
2004, upon its specific request.
The Executive Director, in answer, emphasizes that, at all times, he acted in a diligent, objective and honest manner. He points out that the rulings referred to were published in the offer document, as such came to Gold Fields knowledge and they could have appealed it. Mysteriously, the revised offer document that Harmony placed before the Executive Director on 15 October 2004, and which was approved contains a reference to the rulings which were sought and expected to be made, however, those rulings are not contained in the offer document that was posted. A comparison of the offer in Gold Fields’ possession at p. 155 of the papers, para 18.12 thereof and the offer in possession of the executive director p. 577, para 18.12, reveals that the former does not contain the ruling of 18 October 2004, whereas the latter does. As such Gold Fields could not have acquired knowledge of the rulings through that channel. Harmony’s answer to the issue is that the Executive Director was entitled to make rulings without reference to Gold Fields, that the latter had the right to appeal and that Gold Fields ultimately brought the same issue before a full Panel. The facts that crystallized from these events are: the ruling was made prior to the offer, Gold Fields was not called upon to make submissions, Gold Fields was not informed of the rulings until much later, Gold Fields raised its dissatisfaction about not having been notified of the hearing before the full Panel during November 2004. Answering affidavit, p. 715, 155.1. If a party has been treated procedurally unfairly it is no answer to say that there is a right of appeal. The right to appeal does not necessarily cure the infringement of a right to procedural fairness. Second incident On 4 February 2005 Harmony sought an extension of the period prescribed in Rule 28.7 for the fulfilment of certain conditions. It sought such ruling to be made before 25 February 2005. On 17 February 2005 the Executive Director sent a letter to Gold Fields’ attorney, Mr Michael Katz (hereinafter referred to as “Katz” of Edward Nathan informing him of the request and requiring written submissions by noon the next day. This letter did not come to Katz’s attention until after noon the next day. Despite having heard nothing from Katz, the Executive Director went ahead and granted the extension. Upon receiving the bundle of documents for the hearing before the Executive Committee on 16 March 2005, Gold Fields discovered a letter dated 17 February 2005, sent by Harmony’s attorneys, Cliffe Dekker to the Executive Director. Founding papers p 364. The first two paragraphs thereof are relevant:
“We refer to our meeting yesterday and, in particular, our discussion regarding the request for further extensions under Rule 28.7,
details of which were set out in our letter dated 4 February 2005.
We confirm that you have granted the requested extensions and that you will record same in writing shortly.”
No letter from the Executive Director controverting the statement in the last paragraph followed. This leads Gold Fields to the following
justifiable conclusion in its founding affidavit:
Founding affidavit p. 43
84.
“It follows, if the apparently uncontroverted recordal by Cliffe Dekker is correct, that the Executive Director had made up his mind
to grant the request (and had communicated the fact of that grant) prior to inviting Edward Nathan to make its submissions on behalf
of Gold Fields and prior to issuing the published ruling of 18 February 2005.”
The Executive Director explains that he was waiting for the reasons of the full Panel for its ruling on 29 November 2004, before dealing with the Harmony request for a further extension. Those reasons were imminent at the time and became available on 15 February 2005. However, this reasoning still does not explain why Gold Fields was not notified earlier than 17 February 2005, why they were only given hours within which to respond, why, when they did not respond, the Executive Director went ahead and made his ruling, knowing full well that the issue between Harmony and Gold Fields about extensions was deep-rooted and persisting. The Executive Director’s further explanation is that he was desirous to have the Gold Fields appeal and the Harmony request for further extension heard by the Executive Committee before 18 February 2005, because of the veracity of the dispute between the parties. Only on 15 February 2005, once the reasons became available did the Executive Director attempt to timeously convene an Executive Committee. He failed, and realised that he would have to deal with the Harmony application for extension. He did so and granted the extension during the afternoon of 18 February 2005. The Executive Director denies the confirmation by Cliffe Dekker in the letter of 17 February 2005 that he granted the extension during a meeting the previous day. He explains that he never would have called on Katz to make submissions on behalf of Gold Fields if he had already granted the extension. Yet, the confirmation in the letter went uncontroverted at the time and the Executive Director does not deny nor explain the purpose, nature or content of the meeting between him and the Harmony attorneys on 16 February 2005. Harmony, in its answering affidavit, insists that its attorneys’ letter of 17 February 2005 correctly records that the Executive Director granted the extension on 16 February 2005. Therefore there exists a fundamental dispute of fact between the only parties that could know what happened. This dispute is fundamental to the questions of a reasonable perception of bias and procedurally unfair action. On the Executive Director’s version: •
ΓολδΦιελδσωασνοτιφιεδοφτηεχονσεντσουγητλατεονΦεβρυαρψωηερεαστηεΕξεχυτιϖεΔιρεχτορρεχειϖεδτηερεθυεσταλρεαδψονΦεβρυαρψ
•
ΓολδΦιελδσωασγιϖενανινορδινατελψσηορττιμεωιτηινωηιχητορεσπονδ
•
ΓολδΦιελδσδιδνοτγετανοππορτυνιτψτομακεσυβμισσιονσβεφορετηερυλινγωασμαδε
•
ΔεσπιτεΗαρμονψηαϖινγμαδεουτιτσχασεινιτσαττορνεψ’σλεττεροφΦεβρυαρψτηεΕξεχυτιϖεΔιρεχτορηαδαμεετινγωιτηΗαψεσονΦεβρυαρψ
ΟνΗαψεσ’ϖερσιονανδιναδδιτιοντοτηεαβοϖε •
ΤηεΕξεχυτιϖεΔιρεχτορηαδαμεετινγωιτηΗαψεσονΦεβρυαρψδυρινγωηιχητηεΗαρμονψαππλιχατιονφορεξτενσιονωασδισχυσσεδανδγραντεδβεφορεΓολδΦιελδσωασεϖεννοτιφιεδοφτηεαππλιχατιον
Τηιρδινχιδεντ ΦορτηεπυρποσεοφινϖεστιγατινγωηετηερβιασοραρεασοναβλεπερχεπτιονοφβιασεξιστσινρελατιοντοτηεαλλεγεδιμπλιεδχονσεντγιϖενονΔεχεμβερΙδονοταττηισσταγεεμβαρκονανενθυιρψωηετηερσυχηιμπλιεδχονσεντεξιστσορνοτΙντηεηιστορψλεαδινγτοτηισαππλιχατιονΙηαϖεαλρεαδψρεφερρεδτοτηελεττερστηατχονταιντηεαλλεγατιονσοφανιμπλιεδχονσενττοανεξτενσιονιντερμσοφΡυλεΤηεσελεττερσανδτηεσυρρουνδινγχιρχυμστανχεσιλλυστρατετηεφολλοωινγφαχτσ •
ΑσαττηεηεαρινγονΜαρχητηερεωασαγρεεμεντβετωεενΗαρμονψ’σαττορνεψσανδτηεΕξεχυτιϖεΔιρεχτορτηαττηερεωασιμπλιεδχονσεντγιϖενονΔεχεμβερ
•
ΒοντραρψτοτηεπροϖισιονσοφπαραγραπηΑεοφτηεΒοδεοφτηεΣΡΠτηειμπλιεδχονσεντωασνοτχονφιρμεδινωριτινγ
A.2(e) “All rulings by the Executive Director, Executive Committee or the Panel shall be confirmed in writing.”
•
ΤηεεξιστενχεοφσυχηιμπλιεδχονσεντωασρεχορδεδινωριτινγφορτηεφιρσττιμεονΦεβρυαρψβψΗαρμονψ’σαττορνεψσνοττηεΕξεχυτιϖεΔιρεχτορ
•
ΓολδΦιελδσωασνοτινφορμεδοφτηειμπλιεδχονσεντυντιλΜαρχηδεσπιτειτσαππεαλνοτεδλατεϑανυαρψηαϖινγβεενβασεδοντηεαβσενχεοφχονσεντ
•
ΓολδΦιελδσωασνοταφφορδεδανοππορτυνιτψτομακεσυβμισσιονσβεφορετηερυλινγωασμαδεοραππροϖαλωασγιϖεντηατγαϖερισετοτηειμπλιεδχονσεντ
•
ΒψνοτινφορμινγΓολδΦιελδσοφτηειμπλιεδχονσεντιτωασνοταφφορδεδανοππορτυνιτψτολοδγεαναππεαλχηαλλενγινγσυχηιμπλιεδχονσεντ
•
ΩηενΗαρμονψραισεδτηεισσυεοφχονσεντονΦεβρυαρψφορωηατεϖερρεασοντηεΕξεχυτιϖεΔιρεχτορνοτονλψφαιλεδτοινφορμΓολδΦιελδσβυτφαιλεδτοινϖολϖεΓολδΦιελδσιντηεδεβατε–τοτηεεξτενττηατιτωασονε–ινανοπενανδτρανσπαρεντωαψΤηεισσυεωαστοτηεκνοωλεδγεοφτηεΕξεχυτιϖεΔιρεχτορϖιταλφορΓολδΦιελδσ’αππεαλ
ΑττηεηεαρινγονΜαρχητηελεττερφροματτορνεψσΒλιφφεΔεκκερδατεδΦεβρυαρψωηιχηρεχορδστηεαγρεεμεντβετωεενΗαψεσανδτηεΕξεχυτιϖεΔιρεχτοραστοιμπλιεδχονσεντωασνοτχηαλλενγεδβψτηεΕξεχυτιϖεΔιρεχτορΔυρινγτηατηεαρινγτηεΕξεχυτιϖεΔιρεχτορωασινϖιτεδτορεαδηισεμενδατιονοντηελεττεροφϑανυαρψιντοτηερεχορδΗεδιδσοΜρΚυπερονβεηαλφοφΓολδΦιελδσαλσοασκεδτηεΕξεχυτιϖεΒομμιττεετοασκτηεΕξεχυτιϖεΔιρεχτορωηετηερηεχονφιρμσορδενιεστηατχονσεντωασγιϖενυνδερΡυλεΤηελαττερρεθυεστωασνοταχχεδεδτοωιτηουτανψρεασονσΔεσπιτεΜρΥντερηαλτερονβεηαλφοφΗαρμονψστρεσσινγτηαττηελεττεροφΦεβρυαρψρεχορδσαγρεεμενταστοιμπλιεδχονσενττηεΕξεχυτιϖεΔιρεχτοραχθυιεσχεδιντηισϖιεωΤηεεντιρεαππλιχατιονφοραποστπονεμεντβψΓολδΦιελδσωασδονεοντηεβασιστηατσυχηιμπλιεδχονσεντεξιστεδαστηερεωασαγρεεμεντρεχορδεδβετωεενΗαρμονψανδτηεΕξεχυτιϖεΔιρεχτορτηατιτδιδ ΤηεεξπλανατιονβψτηεΕξεχυτιϖεΔιρεχτοριντηεσεπαπερστηατηεωασνοταπαρτοφτηεηεαρινγβεφορετηεΕξεχυτιϖεΒομμιττεετηερεφορεηεδιδνοτπαρτιχιπατετοπυτηισϖερσιονοφτηεφαχτσβεφορετηεΕξεχυτιϖεΒομμιττεεισωεακανδυνχονϖινχινγΗεσατβψωηιλσταλλτηεπαρτιεσχοντινυεδωιτητηεπροχεεδινγσοντηευνδερστανδινγμιστακενιντερμσοφτηεΕξεχυτιϖεΔιρεχτορ’σανσωερινγαφφιδαϖιττηατΗαρμονψανδτηεΕξεχυτιϖεΔιρεχτορωερειναγρεεμενττηατιμπλιεδχονσεντεξιστεδ ΑφτερτηερεφυσαλοφτηεποστπονεμεντανδονΜαρχηΓολδΦιελδσ’αττορνεψσωροτετοτηεΣΡΠινφορμινγιτοφΓολδΦιελδσ’ιντεντιοντοτακετηεδεχισιονωηιχηγαϖερισετοτηειμπλιεδχονσεντονρεϖιεωανδηαϖειτσετασιδεΙντηεσαμελεττεριτυργεδτηεΕξεχυτιϖεΔιρεχτορτοεξπλιχιτλψχονφιρμορδενψτηατιμπλιεδχονσεντεξιστσΤηερεχορδοφτηεπροχεεδινγστηατγαϖερισετοτηειμπλιεδχονσεντωασαλσορεθυεστεδ ΙνρεσπονσεονΜαρχηΦεινστεινσαττορνεψσονβεηαλφοφτηεΣΡΠχονϖεψεδτηεφολλοωινγ Founding papers p 269.
“2.4
to the best of Connellan’s recollection, the Panel’s comments to the subsequent offer circular
were dealt with telephonically (Connellan has no diary entry of any meeting nor does he expressly recall having had such a meeting).
The Panel’s notes on the circular are as reflected in the drafts thereof, copies whereof are enclosed collectively marked ‘C’, for your information. The draft subsequent offer circular incorporating the salient dates (Annexure ‘B’ hereto) was confirmed and Connellan orally consented to the posting of the subsequent offer circular prior to the 2 December 2004;
2.5
Connellan did not during the aforesaid discussions on or about the 2 December 2004 or thereabout, consent to the extension of the
60 day period referred to in Rule 28.6 of the Code (‘the period’) or rule that the period was extended. The mere fact
that attorney Ian Hayes may by implication or otherwise have assumed such to be the case, is of course his prerogative but, with
respect, it is not binding on our client nor does our client consider itself to have been or be bound thereby in any respect. The
salient dates in the relevant circulars speak for themselves;
2.6
it is common cause that the SRP makes all rulings in writing and where a specific consent or ruling is requested, it is the SRP’s practice to invite the party
seeking same to motivate the request in writing and the Panel then grants or declines the request in writing. This would have been
all the more so, taking into consideration the hostility between the parties and had Connellan furnished any consent or granted any
extension in regard to the period, then he would most certainly have reduced same to writing and both parties would have been advised thereof. The mere fact that the alleged consent or ruling is not in writing, speaks
for itself;
2.7
in the circumstances therefore Connellan, in his capacity as the Executive Director of the SRP, unequivocally states that he did not
consent to the extension of the period nor make any ruling in such regard, either on the basis to which you have alluded or at all.”
For the first time Gold Fields was informed that the SRP, more particularly the Executive Director, contrary to prior indications, was of the view that no consent, implied or otherwise existed. The events since 15 March 2005 has given rise to allegations by Gold Fields that the SRP has prejudiced it. This the SRP denies. Both parties have reserved its rights in this regard, giving rise to an impression that, on this issue at least, they see themselves in opposing camps. In the present proceedings the SRP and the Executive Director asks for costs against Gold Fields on the attorney and client scale, further enforcing their opposing stance. Harmony has persisted throughout that implied consent has been given, as such creating a fundamental dispute between it and the SRP of vital importance to Gold Fields’ contentions. As the issue stands at the moment the response of the Executive Director to the letter by Hayes of 18 February 2005 and lack of response to the letter of 21 February 2005 is even more curious. In view of the attitude by the SRP and the Executive Director taken in the Feinsteins letter of 23 March 2005 and in the answering affidavit there was only one response to both the February letters, namely that was that no consent was given. What business was it of the Executive Director to ponder whether Harmony could successfully argue the existence of implied consent?
It is inconceivable that this debate was entertained by the Executive Director at all in view of a letter written by him to Harmony’s
attorneys on 25 January 2005, advising of his ruling granting an extension of the time period in terms of Rule 28.7:
Founding papers p 365.
“3.1
It must not be construed that the ruling given in 3 above includes any extension of time as set down
in Rule 28.6. As stated in 2 above this issue will be dealt with separately on 27 January 2005.”
The reference to an issue to be dealt with on 27 January 2005 is a reference to an application by Harmony for an extension in terms
of Rule 28.6. This application was ultimately withdrawn.
This incident illustrates: •
ΤηαττηεΕξεχυτιϖεΔιρεχτορωασπρεπαρεδτοεντερταιναδεβατεωιτηΗαρμονψτοτηεεξχλυσιονοφΓολδΦιελδσαβουτωηετηερχονσεντωασιμπλιεδλψγιϖενορνοτ
•
ΤηαττηεΕξεχυτιϖεΔιρεχτορδιδνοτονλψρεφραινφρομινφορμινγΓολδΦιελδσαβουττηεδεβατεβυταλσοοφτηερεσυλτοφτηεδεβατεδεσπιτειτβεινγφυνδαμενταλτοΓολδΦιελδσ’πενδινγαππεαλ
•
ΤηαττηεΕξεχυτιϖεΔιρεχτορρεφραινεδφρομρεχορδινγαττηεηεαρινγονΜαρχητηεφαχτσασηεσαωιτδεσπιτεβεινγπρεσεντωηιλσττηεδεβατεωασχονδυχτεδοντηευνδερστανδινγτηατηεανδΗαρμονψαγρεεδτηατχονσεντωασιμπλιεδλψγιϖεν
Φουρτηινχιδεντ
ΟνϑανυαρψανδΦεβρυαρψτηεΕξεχυτιϖεΔιρεχτοργραντεδεξτενσιονστοΗαρμονψοντηειρρεθυεστσιντερμσοφΡυλεΟνΜαρχηΗαρμονψρεθυεστεδανοτηερεξτενσιονιντερμσοφΡυλεωηερευποντηεΕξεχυτιϖεΔιρεχτορινϖιτεδΓολδΦιελδστομακεσυβμισσιονσΙνιτσσυβμισσιονσΓολδΦιελδσμαδετηεποινττηατανεξτενσιονυνδερΡυλεωασνοτχομπετενταστηεοφφερηασλαπσεδιντερμσοφΡυλε ΟνΜαρχητηεΕξεχυτιϖεΔιρεχτοργραντεδτηεεξτενσιονσουγητανδρεσπονδεδασφολλοωστοΓολδΦιελδσ’ποιντ Founding papers p 377.
“With regard to Edward Nathan’s arguments as contained in paragraphs 6.1 to 13.3 and 15 of their letter of 7 March 2005, in giving
my rulings dated 25 January and 18 February 2005 regarding extensions under Rule 28.7 I had already applied my mind to the provisions
of Rule 28.6 as it applies to the Harmony offer. As such, at this juncture it would be inappropriate for me to re-apply my mind to issues relating to the interpretation of Rule 28.6
in the context of the Harmony offer.”
On 25 January 2005 the Executive Director wrote to Harmony that the issue of an extension in terms of Rule 28.6 would only be considered on 27 January 2007. That never took place due to Harmony’s withdrawal of their application in terms of Rule 28.6. It is therefore unclear when, if at all, the Executive Director “had already applied [his] mind to the provisions of Rule 28.6 as it applies to the Harmony offer”. If he did, Gold Fields was not called upon to be involved in that consideration and it is unclear whether Harmony was. If he did not, he was closing his mind to the submissions made by Gold Fields. The answer by the Executive Director to the effect that he considered Rule 28.6 because it was necessary to do so in considering Rule 28.7 because of the inter-relationships between the two is no answer at all, as he was not previously called upon to consider the point raised by Gold Fields. Fifth incident Shortly after posting of the Harmony offer Gold Fields raised the point for ruling that Norilsk Nickel (Norilsk) which holds 20,03% of Gold Fields shares is a concert party In Section B of the Code, Rule 3 defines “concert party” as “… any person acting in concert with any other person in relation to an affected transaction;” with Harmony in the offer. It requested the Executive Director for a ruling in this regard because certain rules of the Code are applicable to concert parties. Gold Fields knew about documents in possession and believed it to be relevant to this issue. Therefore on 11 November 2004 it requested the Executive Director to call upon Harmony to produce these specifically identified documents in terms of s 440D of the Companies Act, 61 of 1973 “440D Investigation by panel (1) For the purposes of performing its functions in terms of this Chapter, the panel or any committee thereof may – (a) summon any person who is believed to be able to furnish any information on the subject of an investigation or to have in his or her possession or under his or her control any book, document or other object which has any bearing upon that subject, to lodge such book, document or other object with the executive director within the period specified in the summons, or to appear before the panel or a committee thereof at a time and place specified in the summons, to be interrogated or to produce such book, document or other object; and (b) interrogate any such person under oath or affirmation administered by the chairperson or a person appointed by him, and examine or retain for examination any such book, document or other object: Provided that any person from whom any book, document or other object has been taken and retained under this subsection shall, so long as such book, document or object is in the possession of the panel or a committee thereof, at his request be allowed, at his own expense and under the supervision of the investigating officer, to make copies thereof or to take extracts therefrom at any reasonable time.” in preparation for the full Panel hearing on the issue. Gold Fields were aware of the documentation as it was supplied to Gold Fields by Harmony in terms of an order by the Competition Tribunal, another forum at which Harmony and Gold Fields crossed swords in relation to the offer. Some of the documents were, however, protected by an order of confidentiality and as such Gold Fields could not use the documents before the SRP. Feinsteins attorneys on behalf of the SRP responded to the Gold Fields request. They asked for a full explanation as to how, when and where Gold Fields learnt about these documents, evidencing an unfounded suspicion of Gold Fields and what it conveyed. The allegation of the existence and relevance of the documents were made by Gold Fields, giving rise to a belief that the documents had a bearing on the subject that the full Panel had to investigate and decide. The SRP refused to accede to the Gold Fields’ request and to act in terms of s 440D of the Companies Act. It explained this decision as follows: Founding papers p 385.
“2.
It is clear from paragraph 2 of your letter under reply that you are in fact already in possession
of ‘the material and relevant documents’ which you seek that our client obtain from Harmony and provide to you. It is also clear that the documents were furnished to you subject to the confidentiality undertaking as
forms part of the order granted by the Competition Tribunal. In the circumstances not only is such documentation subject to the confidentiality
undertaking, but also your insight into the contents thereof and its purported relevance to the ‘concert party issue’.
Had you not seen the documentation, you would not be directing this request to our client.
3.
In the circumstances your request that our client make available such documents would appear to
be nothing other than an attempt to overcome the confidentiality undertaking given by you. Our client will not be party to any breach
of the confidentiality undertaking. Should the documents be as relevant as you contend, perhaps your request should be directed to Harmony and/or Norislk Nickel.
4.
In any event, we do not believe that any obligation exists upon the part of our client to secure
such documentation and to make same available to you, regardless of any confidentiality undertaking.”
Gold Fields eventually resorted to argument before the full Panel to bring the relevant documents before the full Panel. During the
course of those efforts it received from the Executive Director a transcript of a telephone conversation on 17 November 2004 between
the Executive Director and Hayes from attorneys Cliffe Dekker, Harmony’s attorneys:
“EXTRACT FROM CONVERSATION BETWEEN Richard Connellan at the SRP and Ian Hayes at CLIFFE DECKER on 17 November 2004 at approximately 14h15
Ian Ian Hayes RJC Richard Connellan – How are you….. Ian Yes Richard
RJC
Hi. Ian in the bundle that you got you might see that there has been some correspondence with ourselves
and Edward Nathan.
And then I wrote a letter to you yesterday. I felt I had to call for certain information by five this afternoon.
Can you give me an indication whether you are going to comply or not?
Ian We are. RJC Oh. You are. Thank you Sir. I appreciate that.
You know what worries me was that I had seen the confidentiality and you can see that we had a bun fight since last Thursday with
Edward Nathan on this.
Ian
Let me just put it this way we are busy working on it. We will be delivering certain documents to
you. We are desperately trying to get them to you by five o’clock. I certainly hope that will be able to achieve that.
RJC OK – if you tell me it is coming over I won’t invoke section 440D. Ian However, we will be claiming confidentiality on certain issues.
RJC
So you want me only to give it to the Panel. Not to the other side.
Ian Correct.
RJC
OK. Alright that’s fine the Code makes provision for that so I will make it only available to the
Panel members.
Ian
And we will set out clearly in our letter – the one thing that they desperate to get there hands on are the things that came out at the Competition Tribunal and then made there way into the press and you will see all the
allegations been made, although they had them already.
RJC
Yes I know, but you see they wanted to use me to legitimize those, that is why I was fighting them.
Ian
At the end of the day though Richard they have those.
RJC
But they can’t use them unless of course what you haven’t got yet….. I have got an
affidavit from Lee Mendelsohn to the effect that the Competition Commission took away the confidentiality.
Ian
We dispute that. Let me just make my point here, there were certain presentations made prior to Harmony starting this offer, those presentations we claimed confidentiality there was a dispute between us and Edward Nathan whether that was listed or not.
Clearly from our point it was not, and they were only made available for the purposes of the Tribunal hearing. Those are the ones
they are desperate to get into the SRP hearing, those ones you will see when we give our letter to you we have no objection to them
using them, and, so sorry we have no objection to them being made available to them because they have got them already and we have no objection
to them using them in the appeal on Friday.
RJC OK. Ian We will respond to them. RJC OK. Ian We will set this out in our letter. RJC OK.
Ian
We will respond to the appeal on Friday. The balance of the documents are for the Panel’s
eyes only because it is Board information and we believe that there are issues that are confidential, that’s our approach.
I know what they want and we have no difficulty with them raising it in the appeal and we are ready to answer them, but we are limiting
it to the Appeal.
Once again we don’t want them walking out of the room and giving copies to the media, so we will set it all out in our letter,
you will get it today.
RJC
I think what you should do again is to ask the Chairman to declare this hearing to be in camera.
Ian
We will, that’s what we intend to do we will setting it out in our letter.
RJC Because that’s what he said in the independence issues….. Ian Who was the Chairman on that issue
RJC
On that other issue it was Cyril Jaffe, Mervyn King and I have forgotten who the third guy was.
Ian
Richard let me just ask you one thing if for some reason we don’t make it by 5h30 and I phone
you as you are heading for home, would first thing tomorrow morning
RJC No that’s OK – I mean yes, I believe you it’s just that…..
Ian
We are going to comply, they might not like what we’ve given them and might say there’s more on that, and it might become a disputed issue. We are going to comply but it might only
be first thing tomorrow.
RCJ
No that’s OK – and then I will just shoot it across to the other side so that they can
get it.”
(my emphasis)
The conversation, particularly the underlined portions, is indicative that the Executive Director was discussing issues which were to serve before the full Panel privately with one of the parties, and was aligning himself to some extent with the stance of one of the parties, Harmony. The Executive Director and the SRP are to act in an independent way in investigating, considering and ruling on issues that arise. It has the power in terms of the Companies Act to perform that function. Adopting a defensive attitude about privilege of a party to proceedings that the SRP is in the process of regulating would hardly constitute an independent approach. It was for Harmony to rely on privilege not for the SRP or the Executive Director. The answer by the Executive Director is that he was cautious about breaching confidentiality, hence his approach. However, he is not the keeper of a party’s confidentiality. It is his duty to investigate and if documents are believed to be relevant to an issue, to call for them. It is for the party who claims confidentiality to raise it. Then the issue is out in the open and could be debated. The Code specifically provides for a scenario where a party claims confidence to certain documents or information. Code Section A(2)(e): “However, a party may wish to present evidence which is of a confidential commercial nature. In such cases, if such course is considered justified, the evidence in question may be received in the absence of some, or all, of the other parties involved.” TEST FOR BIAS, REASONABLE SUSPICION OF BIAS Having referred to the incidents relied upon by Gold Fields as events giving rise to a perception of bias, on the part of the Executive Director, the question needs to be answered whether Gold Fields is correct in this contention. The declared objectivity, honest diligence and integrity of the Executive Director is relevant to this consideration, but not decisive. In Turner v Jockey Club of South Africa 1974 (3) SA 633 (AD) at 646H the following was said:
“In addition to what may be described as the procedural requirements, the fundamental principles of justice require a domestic tribunal
to discharge its duties honestly and impartially (Dabner v. S.A. Railways and Harbours, 1920 A.D. 583 at p. 589). They require also that the tribunal’s finding of facts on which its decision is to be based shall be ‘fair
and bona fide’ (Jockey Club of S.A. v. Transvaal Racing Club, supra at p. 450). It is, in other words, ‘under an obligation to act honestly and in good faith (Maclean v. Workers’ Union, supra, at p. 623).”
However, the test involves a much wider enquiry, which manifests in the context of recusal applications. In that context the terms
“apprehension of bias” and “suspicion of bias” have been regarded as synonymous. Therefore in order to define and apply the test whether an official is “reasonably suspected of bias”, it is appropriate to consult authorities on recusal applications. The following was said in President of the RSA v Sarfu [1999] ZACC 9; 1999 (4) SA 147 (CC) at p 171E-F, paragraph [37]:
“[37] In the BTR judgment itself and in other South African and foreign judgments, the formulation of the test for recusal on the ground
of perceived bias has used the expression ‘apprehension of bias’ as an equivalent for ‘suspicion of bias’.
Thus, the following passage from the BTR judgment:
‘The law does not seek … to measure the amount of his [the judicial officer’s] interest. I venture to suggest that the matter stands no differently with regard to the apprehension of bias by a lay litigant. Provided
the suspicion of partiality is one which might reasonably be entertained by a lay litigant a reviewing Court cannot, so I consider,
be called upon to measure in a nice balance the precise extent of the apparent risk. If suspicion is reasonably apprehended, then
that is an end to the matter.’”
The reference to the BTR judgment is to the matter BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers’ Union and Another [1992] ZASCA 85; 1992 (3) SA 673 (A).
At [48] page 177B-E of the same judgment the test in relation to a recusal was stated as follows:
“[48] It follows from the foregoing that the correct approach to this application for the recusal of members of this Court is objective
and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct
facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that
is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed
in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training
and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They
must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the
same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer
should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that
the judicial officer, for whatever reasons, was not or will not be impartial.
Recusal was again considered in the matter of South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) [2000] ZACC 10; 2000 (3) SA 705 (CC) where it is stated:
“[14] The Court in Sarfu further alluded to the apparently double requirement of reasonableness that the application of the test imports. Not only must the
person apprehending bias be a reasonable person, but the apprehension itself must in the circumstances be reasonable. This two-fold
aspect finds reflection also in S v Roberts, decided shortly after Sarfu, where the Supreme Court of Appeal required both that the apprehension be that of the reasonable person in the position of the litigant
and that it be based on reasonable grounds.
[15] It is no doubt possible to compact the ‘double’ aspect of reasonableness inasmuch as the reasonable person should
not be supposed to entertain unreasonable or ill-informed apprehensions. But the two-fold emphasis does serve to underscore the weight of the burden resting on a person alleging judicial bias or its appearance.
As Cory J stated in a related context on behalf of the Supreme Court of Canada:
‘Regardless of the precise words used to describe the test, the object of the different formulations is to emphasise that the
threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into
question an element of judicial integrity.’
[16] The ‘double’ unreasonableness requirement also highlights the fact that mere apprehensiveness on he part of a litigant
that a Judge will be biased – even a strongly and honestly felt anxiety – is not enough. The court must carefully scrutinise
the apprehension to determine whether it is to be regarded as reasonable. In adjudging this, the court superimposes a normative assessment
on the litigant’s anxieties. It attributes to the litigant’s apprehension a legal value and thereby decides whether it
is such that it should be countenanced in law.
[17] The legal standard of reasonableness is that expected of a person in the circumstances of the individual whose conduct is being judged.
The importance to recusal matters of this normative aspect cannot be over-emphasised. In South Africa, adjudging the objective legal value to be attached to a litigant’s apprehensions about bias involves especially fraught considerations.
This is because the administration of justice, emerging as it has from ‘the evils and immorality of the old order’ remains
vulnerable to attacks on its legitimacy and integrity. Courts considering recusal applications asserting a reasonable apprehension
of bias must accordingly give consideration to two contending factors. On the one hand, it is vital to the integrity of our courts
and the independence of Judges and magistrates that ill-founded and misdirected challenges to the composition of a Bench be discouraged.
On the other hand, the courts’ very vulnerability serves to underscore the pre-eminent value to be placed on public confidence
in impartial adjudication. In striking the correct balance, it is ‘as wrong to yield to a tenuous or frivolous objection’
as it is ‘to ignore an objection of substance’.”
The wording used in s 6(2)(a)(iii) of PAJA is “reasonably suspected of bias”, a phrase similar to that used in the case quoted in relation to recusal applications. The test stated in the present context is that the onus is on Gold Fields to show that, on the facts a reasonable person in the position of Gold Fields would reasonably apprehend or suspect that the Executive Director is biased against it. The incidences raised by Gold Fields as evincing a reasonable suspicion of bias on the part of the Executive Director satisfy the test. The facts relied upon by Gold Fields are essentially not in dispute, and illustrate, in broad summary:
That in a scenario of ferocious opposition between the offeror and offeree, Gold Fields were denied, on a number of occasions, the
opportunity to make submission on a ruling that affected the very essence of the disputes between the parties; Gold Fields were not
informed of rulings sought and rulings made; the Executive Director was defensive of the rights of Harmony and was reluctant to exercise
his powers in terms of s 440D of the Companies Act; Gold Fields were afforded an inordinately short period of time within which to
make submissions; Gold Fields were left under a misapprehension of the SRP version of the alleged implied consent, and the Executive
Director closed his mind to the issue around the meaning of Rule 28.6.
In a scenario where objectivity and independence is required of a Regulator, as in the case here, incidents like these should not arise. Because they did, the question inevitably arises why it happened. Is it required that one speculates about the reason that it happened – due to pressure, bias, ignorance, etc? No. If a reasonable person in the position of Gold Fields reasonably comes to the conclusion that it happened due to bias, the test has been satisfied. All of the incidents mentioned favoured Harmony and prejudiced Gold Fields. No incident of the same nature has been pointed out which prejudiced Harmony and favoured Gold Fields. Consequently the conclusion of a reasonable suspicion of bias is an inevitable one. A number of the facts relied upon by Gold Fields that give rise to a reasonable suspicion of bias are also examples of procedurally unfair action. The best examples are the implied consent never having been conveyed to Gold Fields until 15 March 2005, the ruling made on 16 February 2005 when Gold Fields were only asked late on 17 February 2005 to make submissions within a few hours and the SRP’s reluctance to utilise its powers under s 440D of the Companies Act in the interest of resolving an issue between Gold Fields and Harmony. It was argued on behalf of Harmony and the SRP that the Code of the SRP entitles the Executive Director to make rulings after consulting only the applicant. For this argument reliance is placed on A(2)(c) of the Code: “A ruling on the application or interpretation of the Code is generally given in the first place by the Executive Director on the basis of hearing the applicant alone. In some cases, however, it may not be possible for a ruling to be given unless the Executive Director is able to hear the views of other parties.” As a general proposition the submission on behalf of Harmony is sound. However, the nature of the current offer demands of the SRP to adjust its adherence to the general approach because the demands of the current situation is all but general. The Executive Director alleges that South Africa has only seen about 6 hostile takeover bids in the past 11 years. General application of the Code needs to make way for a very specific application in view of the extreme hostility of the current bid. It is hardly appropriate to argue that in the current scenario decisions could be taken and rulings made without allowing Gold Fields to make any submissions and vice versa, particularly so in respect of highly contentions issues between the parties. “INSTITUTIONAL BIAS” All the incidents thus far referred to involve action or inaction on the part of the Executive Director. Harmony made the point that even if Gold Fields succeeds in showing a reasonable suspicion of bias on the part of the Executive Director that such suspicion does not extend to the Executive Committee or the full Panel. Particularly so in view of the broad spectrum of members available to constitute a full Panel and the flexibility under the Code for the constitution of a Panel hearing. Code: Rules under sections 440C(4)(a), (b), (c), and (f) of Act No 61 of 1973, as amended, Rule 1.11.1 and 1.11.3. Gold Fields has included allegations against the Executive Committee of the SRP in its case of a reasonable perception of bias. On 7 March 2005 Edward Nathan on behalf of Gold Fields wrote a letter to the Executive Director. In that letter a multitude of issues were raised, inter alia that “the executive of the Panel have demonstrated a bias in favour of Harmony”. This letter and the allegations therein were reported on in the media. Before the Executive Committee convened on 16 March 2005, its members discussed these allegations. Lowenthal in his affidavit states:
“It emerged during our meeting that my fellow Executive Committee members were aware of the allegations of bias in the press and in the letter of 7 March 2005 and we all held the view that these accusations were
devoid of substance against the regulatory body. In the circumstances we resolved to make an opening statement recording our concern. Mr Yeowart drafted such a statement to which we all agreed, and I read it out at the commencement of the hearing, …”
Answering affidavit, page 599
13.
The agreed statement by the Executive Committee was read into the record at the outset of the hearing: Founding papers p 180.
“Before we proceed with this Appeal, my colleagues and I wish to register our grave concern at the allegations of bias made against
the Executive and the uncalled for allegations of the functions of the SRP made by the Appellant’s attorneys. I’m making this is as a matter of record and not for discussion; just as an opening remark.”
These facts illustrate that the Executive Committee entered into a consideration of allegations of bias read in the 7 March 2005 letter as well as the media, without the issue having been placed before them for consideration and without all the facts being placed before them. Not only did they consider the allegations, they decided that it was “uncalled for” as such conveying that they regarded it to be without merit. On announcing this conclusion they then closed the issue by recording that they do not regard it as open for discussion. The debate on the postponement before the Executive Committee unravelled very quickly into skirmishes on a variety of fronts. It started off as a simple question of whether the hearing should be postponed because Gold Fields was surprised by a vital fact that went to the heart of their appeal. Founding papers, p 189 lines 18-20; p 190 lines 3-9; p 196 lines 12-16. The necessity for a postponement was obvious, a fact readily conceded on behalf of Harmony in this court. The debate before the Executive Committee ended up by Harmony and the Executive Committee being defensive about the procedures of the SRP and regarding the action that Gold Fields may take pursuant to the postponement as threatening of those procedures. Founding papers, p 193 lines 8-11; p 194 lines 11-25; p 200 lines 5-8; p 204 lines 8-16. During the debate Mr Kuper on behalf of Gold Fields addressed the Committee as follows: Founding papers, p 195 lines 8-18.
“We will allege that there was a fundamental breach of natural justice, failure of audi alteram partem and that it is attributable to a fatal defect in that decision. We will also raise, as we have done, the question of bias. Now it
is manifest that this Panel does not wish to entertain nor will it tolerate any suggestion of bias. The Chairman’s position
this morning on behalf of the Panel was a categoric statement that without discussing the merits and without allowing a discussion
of the merits, the question of bias would simply not be tolerated within the Panel and I can sympathise and understand why members
or senior members of the Panel should be protective of the position of the Executive Director.
But it does disqualify any possibility that this Panel could appropriately hear an argument which contains such an element of attack
in it.”
He was not controverted on this by any of the members of the Committee or Harmony, leaving the impression that his perception of the Committee’s attitude accorded with the actual attitude, which is that they decided to close the issue without it ever having been opened. Then came their refusal of the postponements, a surprising and unfounded decision in the circumstances. The Executive Committee, which was outside the fray until that stage, itself stepped into it by making the announcement that it did at the outset of the 16 March hearing. Since then more defined camps have formed in that in these proceedings the Executive Director, and the SRP are seeking costs against Gold Fields on an attorney and client scale. These events illustrate that the Executive Committee aligned itself with the Executive Director in respect of whom a reasonable suspicion of bias existed. The text of a reasonable suspicion of bias on the part of the Executive Committee has also been satisfied. Furthermore, the Executive Director is the door through which any party needs to go for access to the Executive Committee and the full Panel as the Executive Director selects both for hearings. The Executive Director is appointed by the Panel. FURTHER EXCEPTIONAL CIRCUMSTANCES There are further facts which would constitute “exceptional circumstances” in terms of PAJA s 7(2)(c): the SRP generally has not had to deal with hostile takeovers; this takeover bid has been exceptionally hostile; in the words of the Executive Director himself there has been huge pressure on him as a result of the demands of the parties herein and such pressure is evident from the letters written to the Executive Director; involved legal issues have arisen; there are fundamental disputes of fact between the Executive Director and Harmony. These considerations add to the conclusion that Gold Fields has shown exceptional circumstances within the requirements of PAJA. The exceptional circumstances stated above are such that it is in the interests of justice that this court decides the issues placed before it. IMPLIED CONSENT This brings me to the factual question whether implied consent was granted by the Executive Director on 1 December 2004 when he confirmed the timetable of the subsequent offer placed before him by Harmony. If implied consent exists Gold Fields seeks relief on the basis of review, however, if implied consent does not exist Gold Fields seeks a declarator. In the latter event Harmony seeks condonation in terms of Rule 34 of the Code for the failure to have sought an extension in terms of Rule 28.6. As at the end of the hearing on 16 March 2004 the facts were as stated in the letter by Hayes on 21 February 2005, that the Executive Director agreed with Hayes that implied consent was granted on 1 December 2004. In a letter by Feinsteins attorneys, on 23 March 2005 the Executive Director’s unequivocal denial of consent was recorded. In the answering affidavit the Executive Director states repeatedly that he did not give any ruling or consent to extend the 60 day period under Rule 28.6. Answering affidavit, p 417 21; p 421 30; p 422 30.3; p 432 45; p 433 48; p 448 64; p 460 84.2. Harmony has persisted with an attitude that the approval by the Executive Director of the timetable in Harmony’s subsequent offer amounts to implied consent. Harmony never asked for consent in terms of Rule 28.6 until 21 January 2005. The Executive Director did not apply his mind to consent under Rule 28.6. Both Harmony and the Executive Director, in line with their declared view of the nature of the offer, believed that the 60-day period in Rule 28.6 would only commence running on date of posting of the subsequent offer, 2 December 2004. Thus, the need for an extension could not have been further from their respective contemplation at the stage when the timetable for the subsequent offer was approved. This mindset is in line with Harmony’s application on 21 January 2005 for a Rule 28.6 extension. The allegation of the existence of implied consent was only made on 18 February 2005. No allegation is made of the date to which the implied consent extended. An indefinite extension would violate against the rather strict provisions of Rule 28.6. Rule 28.6 entitles the Executive Director to grant consent only when a competing offer has been made or when the offeree company has consented to an extension. The wording of the Rule therefore suggests that if neither of those circumstances are present that consent may only be granted in exceptional circumstances. Neither of those jurisdictional prerequisites were present. Harmony has not established, then or in the current proceedings, that exceptional circumstances operated. Furthermore, in line with the allegations by the Executive Director that no consent was given, no written confirmation of such a ruling followed in terms of section A(2)(e) of the Code. In addition a circular, as the one published with the subsequent offer, usually contains all the rulings and extensions already obtained relevant to the offer. No mention is made in the subsequent offer that an extension in terms of Rule 28.6 existed. These facts overwhelmingly indicate that there is no room for the conclusion that there was implied consent to the extension of the 60-day period in terms of Rule 28.6. Harmony submitted that all concerned, including Gold Fields and the Executive Director, acted even after 18 December 2005 as if the Harmony offer was still alive and well. Albeit correct, such behaviour could never found implied consent. The relevant facts and circumstances establish the opposite contention. The high water mark of Harmony’s submissions is stated as follows in the Heads of Argument:
“56.6
In our case, there can be no doubt that Harmony sought to continue with the subsequent offer conditional as
to acceptances until 31 January 2005, as reflected in the timetables contained in the offer document and subsequent offer document
it submitted to the Panel for approval in October 2004 and on 1 December 2004, respectively. There is moreover no doubt that the
Panel granted Harmony’s request by approving both offer documents, and thereby, by necessary implication, granted any consent
in terms of Rule 28.6 that was necessary in order to give this approval.”
This argument does not carry the day. The facts do not give rise to the necessary implication that there was implied consent. Rule 28.6 has very specific jurisdictional requirements which were not met and could not possibly be implied. When the timetable, which extended until 31 January 2005 was approved at least two options were available to Harmony to avoid the consequences of Rule 28.6; it could have applied for an extension or it could have declared its offer unconditional as to acceptances. These alternatives illustrate why a decision on 1 December 2004 could not give rise to a necessary implication of an extension. Even if the facts founded the implied consent alleged by Harmony, Gold Fields has made out a case for the review and setting aside of such consent. In view of the conclusion I have arrived at and due to the time pressures for completion of this judgment I go no further as to state that as a finding I would have made if implied consent existed. In view of this conclusion Gold Fields seeks relief in terms of paragraphs 7.1, 7.2, 7.3 and 8 of its Notice of Motion, having abandoned paragraph 7.4 in reply to Harmony’s submissions. DECLARATORY RELIEF I accept without specifically deciding, the submissions on behalf of Harmony that Gold Fields, in seeking declaratory relief does not escape the provisions of PAJA. For the reasons stated above I come to the conclusion that Gold Fields is entitled, in terms of PAJA, to be before this court and that it would be just and equitable to grant the relief sought, if Gold Fields succeeds in making out a case on the interpretation of the Rules. INTERPRETATION OF RULE 28.6 The declaratory relief sought by Gold Fields necessitates an interpretation of Rules 28.6(a) and (b):
“28.6
Final day rule (fulfilment of acceptance condition, timing and announcement)
(a)
Except with the consent of the Panel, an offer (whether revised or not) may not become or be declared unconditional as to acceptance
after midnight on the 60th day after the day the initial offer document was posted. The Panel’s consent will normally only be granted –
(i)
if a competing offer has been announced (in which case both offerors will normally be bound by the timetable established by the posting
of the competing offer document); or
(ii)
if the board of the offeree company consents to an extension.
(b)
Except with the consent of the Panel, on the 60th day after the day upon which the initial offer document was posted (or any other date beyond which the offeror has stated that its
offer will not be extended) a press release shall be made by 17:00 as to whether the offer is unconditional as to acceptances or
has lapsed.”
Gold Fields contends that the effect of Rule 28.6(a) is that if consent to an extension is not obtained, and if the offer is not timeously declared unconditional, the offer lapses. Albeit that Rule 28.6(a) does not expressly provide for lapsing of the offer, it is to be inferred from the provisions of Rule 28.6(b). Rule 28.6(b) compels the offeror to make a media announcement that the offer has lapsed, if it has not been declared unconditional, as such implying that it lapses if it has not become unconditional and no extension was granted. This view is enhanced by the provisions of Rule 28.4, so the argument goes, insofar as it refers to the consequence of expiry if an offer has not become unconditional as to acceptances:
“28.4
Offer to remain open for at least 14 days after unconditional as to acceptances
After an offer has become or is declared unconditional as to acceptances, the offer shall remain open for not less than 14 days after the date on which it would otherwise have expired. When, however, an offer is unconditional as to acceptances from the outset, a 14 day extension is not required but the position shall be set out clearly and prominently in the offer document.” (my emphasis) Harmony does not take issue with the words “lapse” or “expire” meaning “to become void” Oxford English Dictionary (1933), Vol 6. or “to fall or pass away finally”, Dawood v Abdoola and Another 1955 (2) SA 365 (N) at 368D-E. but stresses that neither words are used in Rule 28.6(a). Harmony refers, correctly so, to authorities that warn that attention should be paid to the words actually used by the lawgiver, rather than words that the lawgiver might have used, Standard Bank Investment Corporation Ltd v Competition Commission and Others [2000] ZASCA 20; 2000 (2) SA 797 (SCA) p 810-811, paras [16]-[17]. of the inherent dangers in failing to give proper attention to words actually used Poswa v Member of the Executive Council for Economic Affairs, Environment and Tourism, Eastern Cape 2001 (3) SA 582 (SCA) pp 586-587, paras [9]-[10]. and of the danger of speculating about the lawgiver’s true intention. Gene and Another v Van der Lith and Another [2003] ZASCA 118; 2004 (3) SA 333 (SCA) p 343, para [15]. These authorities lead Harmony to submit that only once the press release is made in terms of Rule 28.6(b) that the offer has lapsed, does the offer lapse, essentially because the wording of Rule 28.6(b) marks the giving of notice of lapsing as the moment of lapsing. Rule 28.6(a) imposes a prohibition on offers that are conditional as to acceptances. The prohibition is that it may not be declared unconditional as to acceptances after midnight, 60 days after posting of the initial offer document. Only with the consent of the Panel may it be declared unconditional as to acceptances after the said 60-day period. For Rule 28.6(a) to have any meaning the end of the 60-day period must hold some significance. It indicates a change in the position before to after the 60-day period. Rule 28.6(a) itself does not define the consequence of the expiry of the 60-day period without a declaration of unconditionality having occurred. If no provision is to be found in the Rules that determines this consequence, Rule 28(6)(a) is meaningless. The argument on behalf of Harmony that Rule 28.6(b) does not determine that consequence, is untenable. That argument includes the submissions that Rule 28.6(b) is determinative within itself of the end of the offer because it involves notice to offeree shareholders through publication. This interpretation leaves Rule 28.6(a) denuded of any meaning. Rules 28.6(a) and 28.6(b), as sub-rules under the same heading, deal with the same topic and have to be read together. Significantly the heading is “Final day rule”. Rule 28.6(b) refers to the same 60-day period as determined in Rule 28.6(a), a further reason why the two Rules need to be read together. Rule 28.6(b) is peremptory as to the making of a press release after the said 60-day period. It offers only two alternatives as to the contents of that press release, either that the offer is unconditional as to acceptances or that it has lapsed. This presumes that these two alternatives, in the absence of consent from the Panel, are the only two possible scenarios after the 60-day period. Rule 28.4 assists with the interpretation of Rule 28.6(a). It deals with the alternative scenario where the offer does become unconditional as to acceptances. It provides that such an offer shall remain open for “not less than 14 days after the date on which it would otherwise have expired” (my emphasis). This presumes that an offer that has not become unconditional as to acceptances expires on a particular date. That date is to be determined from a reading of Rule 28.6(a), being “on the 60th day after the day the initial offer document was posted”. My conclusion of the correct interpretation of Rule 28.6 is in line with the recommendation of the Van Wyk De Vries Commission of Enquiry into the Companies Act, published 18 February 1972 as well as the precursors to s 440 of the Companies Act, section 314(3)(c) of the Companies Act. Paragraph 73.04 of the Commissioner’s Report reads:
“73.04
We have considered the implications of the conditional take-over offer and there appears to be justification for
the introduction of some safeguards for the protection of the offeree shareholder. In our view a take-over offer should remain open
only for a reasonable period, during which the offeror should not be entitled to withdraw the offer unless a more favourable offer
has intervened. The offeror should however have the right to declare the offer unconditional at any time before the expiration of its period of validity, simultaneously having to declare
the number of shares in respect of which acceptances have been received and thereafter, for a limited time, the offer should remain
open and available to remaining shareholders. If there is no such declaration before the expiry date of the offer, the offer will
become void and the shareholders will be freed of their acceptances.”
Section 314(3)(c) of the Companies Act reads:
“(3) Subject to paragraph (c) of this subsection, no take-over offer shall be valid and capable of acceptance after the expiry of four months from the date of its issue and no take-over offer shall be withdrawn within
the said period unless –
(c)
the take-over offer is within the said period of four months declared by the offeror to be unconditional: Provided that if it is so
declared the take-over offer shall not be withdrawn within two weeks after such declaration and shall during the said two weeks remain available
for acceptance.”
Harmony is no stranger to this interpretation of Rule 28.6. In the letter by its attorneys to the SRP on 21 January 2005 in terms of which consent is sought for an extension of the 60-day period in terms of Rule 28.6, the SRP is urged in the following terms to consent to the extension to avoid the offer lapsing:
“If you do not consent to the extension, Harmony (and any other offeror in similar circumstances) will be severely prejudiced by the
fact that, prior to the approval of the offer by the Competition Authorities, it will be forced to waive the minimum acceptance condition
so as to avoid the offer lapsing.” (my emphasis)
DATE OF POSTING OF INITIAL OFFER DOCUMENT In order to determine the consequences of this interpretation of Rule 28.6 for Harmony it needs to be decided what is the date on which the initial offer document was posted, in the circumstances of the present offer. The Harmony offer involves an “early settlement offer” and a “subsequent offer”. The early settlement offer was posted on 20 October 2004 and the subsequent offer was posted on 2 December 2004. These dates are not in dispute. Which date constitutes the date on which the initial offer document was posted for purposes of Rule 28.6? Harmony contends it is 2 December 2004, whereas Gold Fields contends it is 20 October 2004, If it is 2 December 2004, the 60-day period expired on 31 January 2005. Because Harmony declared its offer unconditional as to acceptances on 26 January 2004 the offer would still be alive and well. If, however, the correct date is 20 October 2004, the 60-day period expired midnight on 18 December 2004 and the offer has lapsed. The determination of the correct posting date is dependent on deciding whether the Harmony offer is one composite offer or two separate and district offers. The Code seeks to regulate “affected transactions” which are defined in s 440A of the Companies Act and in the Code as:
“’affected transaction’ means any transaction including a transaction which forms part of a series of transactions or scheme, whatever form it may take, which
–
(a)
taking into account any securities held before such transaction or scheme, has or will have the effect of –
(i)
vesting control of any company (excluding a close corporation) in any person, or two or more persons acting in concern, in whom control
did not vest prior to such transaction or scheme; or
(ii)
any person, or two or more persons acting in concert, acquiring or becoming the sole holder or holders of, all the securities, or all the securities of a particular class, of any company (excluding a close corporation);”
In interpreting these provisions I associate myself fully with the conclusion reached by the full Panel as contained in its reasons,
published on 15 February 2005:
Reasons p 66, Founding papers p 340.
“What the legislature intended was that the hand of the Panel would be laid on a transaction which, if implemented, would have the
effect of resulting in a change of control.”
In applying the facts to the interpretation of “affected transaction” the full Panel, in my view, correctly came to the conclusion that the Harmony offer is an “affected transaction”. I state some of those facts, relevant for present purposes:
•
ΗαρμονψδεχλαρεδιντηεμεδιαανδτηεοφφερδοχυμεντανδχιρχυλαρποστεδονΟχτοβερτηαττηεπυρποσεοφιτσοφφερσωασαμεργερ
•
ΗαρμονψιμποσεδαχονδιτιοναστοαχχεπτανχεσοφαμινιμυμοφοφτηεεντιρεισσυεδσηαρεχαπιταλοφΓολδΦιελδστοβεαχθυιρεδτηρουγητηεεαρλψσεττλεμεντοφφερανδτηεσυβσεθυεντοφφερανδτηεαχθυισιτιονοφτηεΝοριλσκσηαρεηολδινγοφφορτηεπυρποσεοφαχθυιρινγχοντρολοφΓολδΦιελδσ
•
ΤηεοφφερινιτστωοσταγεσισφορτηεεντιρεισσυεδσηαρεχαπιταλοφΓολδΦιελδσ
•
ΒοτητηεεαρλψσεττλεμεντοφφερανδτηεσυβσεθυεντοφφερωερεπυβλισηεδινονεοφφερδοχυμεντονΟχτοβερανδινφορμεδτηαττηεσυβσεθυεντοφφερφολλοωεδ
ιμμεδιατελψ
υποντηεχλοσεοφτηεεαρλψσεττλεμεντοφφεροναδατεγιϖενασΝοϖεμβερ
•
ΤηεσυβσεθυεντοφφερωασιρρεϖοχαβλψυνδερτακενβψΗαρμονψτοφολλοωυποντηεχομπλετιονοφτηεεαρλψσεττλεμεντοφφερ
•
Τηε
ΦορμοφΑχχεπτανχεΣυρρενδερανδΤρανσφερ
αννεξεδτοτηεχιρχυλαρπροϖιδεσφοραχχεπτανχεοφτηεεαρλψσεττλεμεντοφφερανδτηεσυβσεθυεντοφφερ
•
ΤηεονλψματεριαλεφφεχτοφτηεοφφερδοχυμεντποστεδονΔεχεμβερωαστοαμενδτηεδατεσανδτιμεπεριοδσπερταινινγτοτηεσυβσεθυεντοφφερ
ΙνϖιεωοφαλλτηερελεϖαντφαχτστηεφυλλΠανελχορρεχτλψχονχλυδεδτηαττηεΗαρμονψοφφεραμουντστοασινγλεχομποσιτετρανσαχτιονΙντηεσεχιρχυμστανχεστηεινιτιαλοφφερδοχυμεντιστηεδοχυμενττηατωασποστεδονΟχτοβερ ΒονσεθυεντλψτηεΗαρμονψοφφερλαπσεδατμιδνιγητονΔεχεμβερ ΒΟΝΔΟΝΑΤΙΟΝ ΥπονρεαχηινγτηατχονχλυσιονΗαρμονψαππλιεσιντερμσοφΡυλεφορχονδονατιονοφιτσφαιλυρετοοβταιντηερελεϖαντχονσεντοφτηεΠανελιντερμσοφΡυλεΡυλερεαδσ
Πανελ’σγενεραλδισχρετιον
ΩιτηουτδερογατιονφρομανψσπεχιφιχπροϖισιονοφτηερυλεσωηερεβψτηεΠανελμαψγραντεξεμπτιονορδισπενσατιονφρομανψρεθυιρεμεντορπερμισσιονορχονσενττοδεπαρτφρομανψρεθυιρεμενττηεΠανελσηαλλενοψαγενεραλδισχρετιοντοαυτηοριζεσυβεχττοσυχητερμσανδχονδιτιονσασιτμαψπρεσχριβενονχομπλιανχεωιτηορδεπαρτυρεφρομανψρεθυιρεμεντοφτηεΒοδεανδτοεξχυσεορεξονερατεανψπαρτψφρομφαιλυρετοχομπλψωιτηανψσυχηρεθυιρεμεντ
ΗαρμονψχοντενδστηατΡυλεχονφερσυποντηεΣΡΠαγενεραλδισχρετιοντοεξονερατεανψρεθυιρεμεντοφτηεΡυλεσΤηατποωερισηοωεϖερνοτυνρεστριχτεδΡυλειτσελφλιμιτστηεγενεραλδισχρετιοντοινστανχεσωηερενοσπεχιφιχπροϖισιονεξιστσΣεχτιονΑαοφτηεΒοδεσετσουττηεγενεραλπρινχιπλεωηιχηΡυλεσερϖεσ
τηεΠανελισαλλοωεδαδισχρετιοντορελαξτηεαππλιχατιονοφαΡυλεινεξχεπτιοναλχιρχυμστανχεσφορεξαμπλεωηενιτχονσιδερστηατιτσστριχταππλιχατιονωουλδοπερατευνδυλψηαρσηλψ
ΗαρμονψλαμεντστηατγιϖενιντεραλιατηεχομπλεξιτιεσοφτηεματτερτηευναϖαιλαβιλιτψοφτηεΠανελ’σρεασονφοριτσρυλινγονΝοϖεμβερυντιλΦεβρυαρψανδτηεαππροϖαλοφτηετιμεπεριοδσοφτηεσυβσεθυεντοφφερβεψονδΔεχεμβερτηατιτχουλδνοτρεασοναβλψηαϖεκνοωντοασκφορανεξτενσιονιντερμσοφΡυλεβεφορεΔεχεμβερΒονσεθυεντλψιτσυβμιτστηαττηεαππλιχατιονοφτηεΡυλεσοπερατευνδυλψηαρσηλψαγαινστιτ ΤηεωορδινγοφΡυλεσπεχιφιχαλλψπροϖιδεσφορτηεχονσεθυενχεσοφνονχομπλιανχεΤογραντανεξεμπτιονφρομτηοσερεθυιρεμεντσοτηερτηανασπροϖιδεδιντερμσοφΡυλεωουλδχονστιτυτεαδερογατιονφρομτηεσπεχιφιχπροϖισιονσοφΡυλεΣυχηισιμπερμισσιβλειντηεϖερψωορδσοφΡυλε
ΙφτηεγενεραλδισχρετιοντοαυτηοριζεορχονδονενονχομπλιανχεωιτηρεθυιρεμεντσοφτηεΡυλεσιστοβεαππλιεδτοΡυλειτωουλδμεανηψποτηετιχαλλψτηαττηεφολλοωινγχουλδοχχυρΤηεοφφερλαπσεσιντερμσοφΡυλεσηαρεηολδερσοφτηεοφφερεεχομπανψωηοαχχεπτεδτηεοφφερσταρττραδινγτηειρσηαρεστηεοφφερεεχομπανψσταρττοαχτινωαψστηαταρερεστριχτεδιντερμσοφΡυλεωηεντηεοφφερισοπερατιοναλανδτηεντηεοφφερορισγραντεδχονδονατιονΑρεϖερσιοντοασχεναριοτηαττηεοφφερνεϖερλαπσεδμαψβειμποσσιβλεορχρεατειρρεϖερσιβλεπρευδιχε
ΙνμψϖιεωΗαρμονψισνοτεντιτλεδτοτηεβενεϖολενχεαϖαιλαβλειντερμσοφΡυλειντηεπρεσεντχιρχυμστανχεσ
ΟΡΔΕΡ ΤηεορδερτηατΙμακεισ
ΤηεΗαρμονψοφφερλαπσεδμιδνιγητονΔεχεμβερ
ΤηεαππλιχαντηασνοτσυβσεθυενττοΔεχεμβερβεενσυβεχττοτηεπροϖισιονσοφτηεΒοδεορανψΒοδεΡυλεσαφφεχτινγαταργετχομπανψορανοφφερεεχομπανψ
ΤηεΗαρμονψοφφερωασνοτχαπαβλεινλαωοφβεινγρεϖισεδορρεινστατεδαφτεριτλαπσεδονΔεχεμβερανδισνοτχαπαβλεινλαωοφβεινγρεϖισεδορρεινστατεδαττηεχυρρενττιμε
ΤηεχουντεραππλιχατιονβψΗαρμονψισδισμισσεδωιτηχοστσινχλυδινγτηεχοστσοφτηρεεχουνσελ
Τηεφιρσττηιρδανδφουρτηρεσπονδεντσαρεορδερεδτοπαψτηεχοστσοφτηεαππλιχατιονινχλυδινγτηεχοστσοφτηρεεχουνσελ
_________________________
ΣΣΝΨΔΕΡΣ
ϑΥΔΓΕΟΦΤΗΕΗΙΓΗΒΟΥΡΤ
ΒΟΥΝΣΕΛΦΟΡΑΠΠΛΙΒΑΝΤ
ΑδϖΜΔΚυπερΣΒ
ΒΟΥΝΣΕΛΦΟΡΤΗΙΡΔΡΕΣΠΟΝΔΕΝΤ
ΑδϖΒΔΑΛοξτονΣΒ
ΑδϖϑΒλου ΑδϖΑΕΒηαμ ΙΝΣΤΡΥΒΤΕΔΒΨ ΒλιφφεΔεκκερΑττορνεψσ ΑΤΤΟΡΝΕΨΣΦΟΡΦΟΥΡΤΗΡΕΣΠΟΝΔΕΝΤ Φεινστεινσ ΔΑΤΕΟΦΗΕΑΡΙΝΓ Μαψ ΔΑΤΕΟΦϑΥΔΓΜΕΝΤ Μαψ |