REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

CASE NO: 2020/35015

REPORTABLE: YES
OF INTEREST TO OTHER JUDGES: YES
REVISED. NO
DATE: 10 August 2021

In the matter between:

AMR MINING (PTY) LTD	Applicant

and

GLENCORE INTERNATIONAL AG	First Respondent
T D CLOETE	Second Respondent

CASE NO: 2020/17974

In the matter between:

GLENCORE INTERNATIONAL AG	Applicant

and

AMR MINING (PTY) LTD	Respondent

JUDGMENT

WEINER J
Introduction
[1]	Two related matters come before this Court. The applicant in the main application, Glencore International AG (‘Glencore’), under case 2020/17974, seeks to have an arbitration award (the ‘award’) made an order of court (the ‘award application’). In the related application under case number 2020/35015, the applicant therein, AMR Mining (Pty) Ltd (‘AMR’) seeks to review the arbitrator’s decision (the ‘review application’). 
Background to the dispute
[2]	In March 2017, Glencore and AMR entered into a written ‘Purchase of steam coal contract’ (the ‘Agreement’). On 27 June 2017 and 7 March 2018 respectively, the parties entered into two written addenda to the Agreement. The Agreement and addenda will collectively be referred to as the ‘Coal Supply Agreement’. In terms of the Coal Supply Agreement, AMR was required to deliver 25 000 metric tonnes of steam coal, of a specified quality, to Glencore during the period 1 February to 30 April 2018.
[3]	The parties agreed that any claim arising out of or relating to the Coal Supply Agreement, or any alleged breach thereof, would be settled by arbitration in Johannesburg, with the parties to mutually agree to the appointment of the arbitrator.
[4]	Glencore contended that AMR breached the Coal Supply Agreement by failing to deliver timeously (or at all) coal of the quality and quantity required. Glencore accordingly terminated the Coal Supply Agreement on or about 8 August 2018. Glencore instituted arbitration proceedings thereafter, seeking recovery of its damages caused by AMR’s aforesaid breaches.
[5]	On or about 31 January 2019, the parties entered into an arbitration agreement (the ‘Arbitration Agreement’). In the arbitration proceedings, Glencore claimed payment of an amount of R5 231 564.65 plus interest and costs, arising from the breach by AMR of the Coal Supply Agreement. 
[6]	It will be convenient to first deal with AMR’s review application and then, if that is not successful, I will deal with the Glencore application to have the award, dated 12 June 2020, made an order of court. AMR seeks an order reviewing and setting aside the arbitrator’s award in terms of s 33 of the Arbitration Act 42 of 1965 (the ‘Act’). The arbitrator, Judge Cloete, has been joined as a second respondent in the review application. 
[7]	Judge Cloete published his final award on 12 June 2020, and ordered AMR to pay Glencore an amount of R4 589 266.27 plus interest at the rate of 10,25% per annum, calculated from 8 August 2018 to date of payment, and the costs of the arbitration. AMR failed to make payment and Glencore then instituted the award application. 
[8]	In terms of s 33(2) of the Act, an application to set aside an award ‘shall be made within six weeks of the publication of the award.’ The six-week time period expired on 24 July 2020. AMR’s attorney had, on 23 July 2020, requested an extension in order to bring the review application by 31 July 2020. Glencore had refused this request. No application was launched on 31 July. 
[9]	In addition, AMR failed to timeously file its notice of intention to oppose the award application. Glencore’s application was therefore enrolled on the unopposed motion roll for 14 September 2020. 
[10]	On 8 September 2020, AMR served a notice of intention to oppose the award application, without seeking condonation or explaining why the notice was served late. Glencore thus sought to proceed with the unopposed application on 14 September 2020. However, the matter was argued on an opposed basis and removed from the roll with costs reserved.
[11]	AMR failed to file an answering affidavit in the award application. However, some three months after the expiry of the time period permitted in terms of the Act, it launched the review application. Such application was launched after the award application had been re-enrolled for 18 November 2020. It was only delivered on 6 November 2020. It is noteworthy that the notice of motion was dated 20 October 2020 and the founding affidavit was deposed to the same day. 
The review application
[12]	AMR seeks to review and set aside Judge Cloete’s award of 12 June 2020 in terms of s 33 of the Act. Glencore opposed the application, and filed its answering affidavit on 4 December 2020. No replying affidavit was filed by AMR. Glencore’s heads of argument were filed on 8 February 2021; AMR’s heads of argument were filed on 6 May 2021. Supplementary heads of argument, dealing with an additional ground of review, were filed later.
[13]	It is common cause that Judge Cloete is an experienced jurist, well-respected, and that he was appointed as arbitrator by agreement between the parties. 
[14]	AMR’s case in support of the relief it seeks is that Judge Cloete—
(a)	evidenced partiality in the conduct of the proceedings, and assisted the witnesses for Glencore in leading their evidence, whilst inappropriately cross-examining the witness for AMR, Mr Marino;
(b)	exceeded his jurisdiction by deciding the dispute in accordance with inapplicable foreign legal principles;
(c)	accepted the evidence of Glencore’s witnesses without criticism, and rejected Mr Marino’s evidence;
(d)	was biased in his approach to the evidence.
[15]	AMR relied on Dickenson & Brown v Fisher’s Executors in arguing that Judge Cloete’s misconduct included some wrongful and improper conduct. It submitted further that misconduct has also been described as requiring some personal turpitude on behalf of the decision maker.
[16]	AMR contended that bias will be held to exist, not only where the decision maker was in fact partial, but also where reasonable people might form the impression of bias. It relied on Mutual and Federal Insurance Co Ltd v CCMA, where the Labour Court stated:
‘… a commissioner does not need to be biased but it is the conduct of the commissioner which goes towards creating a suspicion and perception of bias which might be entertained by a lay litigant, which should be reviewed by this court. [In] BTR Industries SA (Pty) Ltd v Mawu & others (1992) 131 LJ 803… Hoexter JA also set out the test to be applied in assessing whether the Industrial Court could be said to have been biased. …
“For present purposes there may be adopted the definition of ‘bias’ stated in the House of Lords by Lord Thankerton in Franklin v Minister of Town & Country Planning 1948 AC 84 (HL) at 103. It was there stated that the proper significance of the word . . . ‘is to denote the departure from the standard of even-handed justice which the law requires from those who occupy judicial office or those who are commonly regarded as holding a quasi-judicial office.’”’
[17]	AMR contended that, it is clear from the transcripts of the proceedings that Judge Cloete questioned AMR’s witness, Mr Marino, in a hostile manner which amounted to cross-examination; but, when dealing with Glencore’s witness, he did not challenge the evidence or act in a manner which could be likened to cross-examination. It alleged that this was also the case with Glencore’s second witness, Mr Blumenthal. 
[18]	Glencore contended that:
(a)	firstly, in regard to condonation, the review application had to be filed by 24 July 2020, but it was only delivered some three months later on 6 November 2020;
(b)	AMR has failed to show good cause, as envisaged in s 38 of the Act, why the Court should extend the six-week time period by an additional three months. Further, that AMR deliberately delayed the launching of the application, the explanation given for the late launching is unacceptable, and that the affidavit deliberately omits certain material facts;
(c)	the applicant’s director, Mr Marino, has levelled serious allegations against Judge Cloete which are devoid of merit;
(d)	it is incorrect that Judge Cloete did not apply principles of South African law, or acted beyond his jurisdiction by having regard to relevant English authorities;
(e)	even if Judge Cloete erred, whether in fact or law, this does not constitute a legally recognisable basis to set aside the award.
[19]	Glencore submitted that AMR failed to disclose material aspects of the arbitration proceedings to this Court. One of the facts not disclosed, is that witness statements were exchanged between the parties which stood as evidence-in-chief for the witnesses. The importance of this is that AMR contended that Judge Cloete somehow assisted Glencore’s witnesses by leading their evidence, whereas all of the evidence was contained in their witness statements. 
[20]	As stated above, AMR alleged that Judge Cloete assisted Glencore’s witnesses, interfered in the cross-examination, and demonstrated bias toward Mr Marino. AMR makes reference to several passages in the transcript in order to demonstrate that Judge Cloete assisted Glencore’s witnesses and that Judge Cloete was hostile, and entered the arena in respect of Mr Marino’s evidence.
[21]	In Glencore’s heads of argument, it stated that Mr Marino was a dishonest and unreliable witness, and that Judge Cloete gave Mr Marino every opportunity to clarify his evidence – as appears from the record. It is submitted that Mr Marino’s version displayed inconsistencies and was misleading and vague. Further, in its heads of argument, Glencore set out the aspects in which Mr Marino’s dishonesty was demonstrated, and this was not challenged in AMR’s heads of argument – or during oral argument before Judge Cloete.
[22]	In regard to the allegation that Judge Cloete referred to English authorities and therefore exceeded his jurisdiction, AMR relied on Hos+Med Medical Aid Scheme v Thebe ya Pelo Healthcare Marketing & Consulting (Pty) Ltd, where Lewis JA held as follows:
‘In my view it is clear that the only source of an arbitrator’s power is the arbitration agreement between the parties and an arbitrator cannot stray beyond their submission where the parties have expressly defined and limited the issues, as the parties have done in this case to the matters pleaded. Thus the arbitrator, and therefore also the appeal tribunal, had no jurisdiction to decide a matter not pleaded….’
[23]	Glencore contended that:
(a)	the Hos+Med case was not applicable as the issue raised there was not the same as the issue raised in the present case. There is no allegation that the arbitrator decided issues that were not defined by the parties
(b)	Judge Cloete did not raise the application of retrospectivity in English law. The English authorities relating to retrospectivity were raised by Glencore’s counsel in the heads of argument;
(c)	the cases to which Judge Cloete made reference related to the issue of damages and have been referred to in South African authorities, and were relied upon by Glencore’s counsel in its initial heads of argument;
(d)	the English law authorities relied upon are in line with South African case law and principles on those particular issues, and the contention that Judge Cloete decided the matter on inapplicable foreign legal principles, is without merit.
Legal principles
[24]	Section 33 of the Act provides that the court may, on the application of any party, make an order setting aside an award. 
[25]	The grounds are limited and relate to instances where—
(a)	a member of the Arbitration Tribunal has misconducted himself in relation to his duties as arbitrator or umpire – s 33(1)(a).
(b)	an Arbitration Tribunal has committed a gross irregularity in the conduct of the arbitration proceedings, or has exceeded its powers – s 33(1)(b).
(c)	an award has been improperly obtained – s 33(1)(c).
[26]	AMR seeks to set aside the award under s 33(1)(b), that is, on the ground that Judge Cloete committed a ‘gross irregularity in the conduct of the arbitration proceedings, or has exceeded his powers.’ 
[27]	In order to set aside an award, the Court does not seek to reassess the facts, but need only deal with the procedure to determine the validity of the award itself. The appropriate standard of review of arbitral awards is one which preserves the autonomy of the forum chosen and minimises judicial intervention.
[28]	Ramsden states that the courts should respect the parties’ choice to resolve their disputes through the medium of arbitration, and recognise the arbitrator’s findings of fact and assessment of the evidence. Ramsden further states that the formation of judgments should be respected unless they can be shown to be unsupportable.
[29]	Even if a Judge takes a different view, one that is strongly held, this is no basis to set aside the award. It is impermissible for a court to substitute its judgment for that of the arbitrator in circumstances where the parties had mutually agreed to have the issue determined by arbitration.
[30]	Glencore contended that Judge Cloete did not exceed his jurisdiction by deciding the issue in accordance with the principles of foreign law. The award itself refers to South African law in regard to the issue of retrospectivity, and the issue of damages was raised by Glencore and dealt with in accordance with both English and South African authorities which are applicable. 
[31]	Having regard to the portions of the transcript to which AMR refers, and which I have considered seriously, it is my view that, although Judge Cloete may have spent some time in getting clarity on the issues to which Mr Marino was testifying, this was not done in such a manner that it demonstrated bias. It appears to me that, with both Glencore and AMR witnesses, Judge Cloete was simply attempting to clarify issues which formed the basis of the dispute, that is, the retrospectivity of the contract, and the whether or not there was an issue of impossibility of performance affecting damages. There appears to be nothing untoward in this approach, and it certainly does not amount to bias or gross irregularity.
[32]	AMR also criticises the arbitrator for filing a report which brought certain facts to the Court’s attention. However, if one has regard to the report, it is simply a chronology of events which cannot be disputed by AMR, and such chronology is confirmed by Glencore. It appears to have been filed in order for the court to have clarity on the sequence of events relevant to some of the attacks on Judge Cloete. In the report, the arbitrator stated the following:
‘[1] …
[2] I have already indicated to the parties, and requested them to bring this to the attention of this honourable court, that I shall abide the decision of the court.
[3] I nevertheless feel it incumbent upon me as the arbitrator to assist in facilitating a proper adjudication of the matter, by setting out the correct factual position and sequence of events. All of the facts to which reference will be made are either already before the court, or are objectively verifiable, cannot legitimately be disputed and should be uncontroversial. 
Retrospectivity of the Contract 
[4] The sequence of the heads of argument delivered in the arbitration, was as follows:
Glencore's main heads: 4 May 
AMR's answering heads: 11 May 
Glencore's replying heads: 15 May.
[5] The first time that English authority relating to retrospective operation of a contract was referred to or produced, was in Glencore's replying heads of argument, paras 4 and 5 of which read:
“4. Attempts at the time of preparing the main heads of argument, to source South African or foreign case law or authority dealing expressly or otherwise with the retrospective effect of agreements, were unsuccessful.
5. Further attempts subsequent to receipt of AMR's heads of argument, resulted in a judgment from the Queen's Bench Division in England, germane to the enquiry and reflecting the approach in England to the issue of the retrospective effect of an agreement, being sourced.”
Two cases were cited in Glencore's replying heads of argument. Copies of these cases were attached to the heads of argument emailed to me and to AMR's attorneys. A copy of this email is attached marked “TDC 1”.
[6] Three days later, on 18 May, Glencore's attorneys sent me a further email (copied to AMR's attorneys) advising that in addition to the two judgements sent together with Glencore's replying heads of argument, Glencore's legal representatives also intended relying on a further judgment (a copy of which was attached to the email), in so far as the retrospectivity issue was concerned. A copy of this email is attached marked “TDC 2”.
[7] On the same day, 18 May, I requested copies of further English cases. The first case requested (and the only one that referred to the retrospective operation of a contract) was Thameside Metropolitan Borough Council v Barlow Securities Group Services Ltd [2001] EWCA Civ 1. That case was referred to in para 41 of the case cited in footnote 3 of Glencore's replying heads delivered three days previously. A copy of my email requesting a copy of the case is attached to the founding affidavit as annexure “FA 12”. (The email is relevant also to what follows.)
Other cases requested from Glencore's attorneys. 
[8] It is correct, as stated in para 36 of the founding affidavit, that I requested Glencore's attorneys to source two English cases for me, as appears from my email dated 14 May, annexure “FA 10” to the founding affidavit. However, neither case had anything to do with the question of retrospectivity. The cases were: Robophone Facilities Ltd v Blank [1966] 3 All ER 128 (CA), and Interoffice Telephones Ltd v Robert Freeman & Co Ltd [1958] 1 QB 190 (CA).
[9] Robophone was referred to in Wireless Rentals Pty Ltd v Stander 1965 (4) SA 753 (T), a case that had been cited in footnote 5 of Glencore's main heads of argument delivered 10 days prior to my request. Wireless Rentals was subsequently referred to in Western Credit Bank Ltd v Kajee 1967 (4) SA 386 (N) at 393 C — 394B - and so were both of the English cases of which I requested a copy. 
[10] Interoffice Telephones was applied in England, in Robophone, and in South Africa, in Wireless Rentals in which Vieyra J said at 754 in fine — 755 that: “It seems to me that this [ie the English] approach is a valid one and consistent with our law.”
[11] It is also correct, as appears from annexure “FA 12” to the founding affidavit, that on 18 May (ie after Glencore's replying heads of argument had already been delivered) I requested Glencore's attorney to provide me (in addition to the Tameside case referred to in para 7 above) with copies of two other cases; and I mentioned two more. (Each of those four cases was referred to in the judgment of Jenkins LJ who delivered the main judgement in the Interoffice Telephones case.) My purpose in doing so appears from the last paragraph of annexure “FA 12”, which I quote for convenience: “I have the All ER reports for Thompson (WL) Ltd v Robinson (Gunmakers) Ltd [1955] Ch 177, [1955] 1 All E R 154; and Charter v Sullivan [1957] 2 QB 117, [1957] 1 All ER 809 (CA) that appear to be relevant. I do not need copies, but I mention these cases as I assume that the attorneys for both sides will draw the attention of their respective counsel to the various authorities referred to in recent correspondence.” 
None of the four cases to which I have just referred deals with retrospective operation of a contract. They all refer to the calculation of damages. 
[12] The extent to which I relied on English authority in making the Award (as opposed to referring to such authority), and whether there was a “failure to have engaged with South African legal principles” (as alleged in para 40 of AMR's founding affidavit), appear from the Award itself. I have nothing further to add in this regard in this litigation, but I must expressly reserve my rights.’
Further ground of review
[33]	AMR, after the affidavits had been filed in this matter, sought to raise a further ground of review. It relied, in this regard, on the decision in Halliburton Company v Chubb Bermuda Insurance Ltd, where the United Kingdom Supreme Court of Appeal dealt with principles concerning an arbitrator’s duty to disclose any facts which may affect impartiality. 
[34]	AMR submitted that an arbitrator has a legal duty to disclose the existence of potentially overlapping arbitrations, and that a failure to disclose is a factor that a fair-minded and informed observer may take into account in assessing whether there is a real possibility of bias. AMR contended that Judge Cloete had a legal duty to disclose the fact that he had been nominated and appointed in another arbitration involving Glencore (the ‘other Glencore arbitration’).
[35]	Glencore’s responded as follows to this argument:
(a)	the facts in the Halliburton matter are distinguishable from the facts in this matter;
(b)	the additional review ground has been raised almost a year after the arbitration hearing was finalised. AMR has been aware of Judge Cloete’s role as arbitrator in the other Glencore arbitration, at latest, since April 2020;
(c)	Judge Cloete’s appointment in the other Glencore arbitration took place well after his appointment in the AMR arbitration;
(d)	the hearing in the AMR arbitration took place and Judge Cloete’s award had been prepared and was available for publication at a time when the hearing in the other Glencore arbitration had not yet commenced and no evidence had been led.
[36]	Halliburton concerned the issue of when an arbitrator should make disclosure of circumstances which may give rise to ‘justifiable doubts as to his impartiality’. The case involved an accident that had caused extensive damage and loss of life and led to several claims before the US courts. The US Federal Court apportioned liability between several defendants, which included Halliburton and a company styled Transocean.
[37]	Halliburton and Transocean settled the claim instituted against them in the US. Halliburton then claimed the amounts back from Chubb Insurance Co in terms of its insurance policy. Transocean also claimed back from both Chubb and its other insurer. Chubb repudiated Halliburton’s claim and Halliburton commenced arbitration proceedings against Chubb in London. There were three arbitrators, including one R.
[38]	R subsequently, without Halliburton’s knowledge, accepted two other appointments in the arbitrations arising from Transocean’s claims against Chubb and its other insurer. Halliburton contended that R should have disclosed the further appointments, and that his response to the challenge to his impartiality resulted in an appearance of bias. Both Transocean arbitrations had commenced several months after the Halliburton arbitration.
[39]	In a unanimous decision, the Supreme Court accepted that, in order to promote the principles of impartiality and fairness, arbitrators have a legal duty to disclose any potential conflicts of interests they may have that may give rise to justifiable doubts about their impartiality. It, however, dismissed Halliburton’s appeal and found that a fair-minded and informed observer would not conclude that there were circumstances that would give rise to justifiable doubts about R’s impartiality.
[40]	The conclusions reached by the UK Supreme Court in Halliburton relate to the legal duty of disclosure (in terms of the UK law) and its impact on bias or impartiality in circumstances where an arbitrator had accepted an appointment in multiple references where ‘the same or overlapping subject matter with only one common party’ was at stake.
[41]	The issue of ‘the same or overlapping subject matter’ between the AMR arbitration and the other Glencore arbitration does not arise in the present case. AMR relied solely on the fact that Judge Cloete had been appointed as the arbitrator in the another arbitration in which Glencore was a party. Thus, the Halliburton decision is distinguishable.
[42]	However, in any event, the Arbitration Act (contrary to the UK Arbitration Act of 1996), although making provision for removals of arbitrators and setting aside award in appropriate circumstances, does not contain provisions dealing with the duties of impartiality resting on arbitrators.
[43]	The International Arbitration Act 15 of 2017, which came into operation during December 2017 (in the context of international arbitrations), incorporated the UNCITRAL Model Law (the ‘Model Law’) on international commercial arbitrations as applicable in South Africa. In terms of Article 12 of the Model Law, a duty to disclose arises in the event of ‘any circumstances likely to give rise to justifiable doubts as to his/her impartiality or independence’ existing. The UK Arbitration Act is in line with this provision.
[44]	In terms of Articles 12(2) and (3) of the Model Law, a challenge to an arbitrator’s appointment may only be made if circumstances exist that give rise to ‘justifiable doubts as to his/her impartiality or independence’. For the purpose of Article 12, ‘justifiable doubts’ requires ‘substantial grounds for contending that a reasonable apprehension of bias would be entertained by a reasonable person in possession of the correct facts’. Glencore contended that the statutory test imposed for international arbitrations should be applied to domestic arbitrations as well. Based on the chronological sequence of events, AMR has failed to demonstrate that Judge Cloete’s conduct fell within this definition.
[45]	The fact that Judge Cloete was appointed in the other Glencore arbitration, which does not arise from a similar event or overlapping issues, does not constitute ‘substantial grounds for contending for a reasonable apprehension of bias’ which would be entertained ‘by a reasonable person in possession of the correct facts’.
Condonation
[46]	AMR contended that it had demonstrated that it was in the interests of justice to grant condonation. It submitted further that it had set out the cause of the delay, which was not unreasonable. Mr Marino, the deponent to the founding affidavit, stated that he could not decide whether to pursue the application or not, and seeks to use this as a reason for the late filing. 
[47]	Glencore, however, points to the fact that that AMR had, by 24 July 2020, already decided to launch the review application but failed to do so. The review application was only served on Glencore’s attorneys on 6 November 2020, despite the founding affidavit having been signed and the notice of motion having been issued on 20 October 2020. 
[48]	Glencore submitted that AMR had failed to set out good cause for such delay. The explanation, considering the chronology of events, demonstrates that AMR intentionally delayed the filing of the review application until the last moment, and only did so after Glencore’s notice to set down the award application was served on it.
[49]	Glencore submissions are well founded. Good cause has not been shown. Thus, AMR’s application for condonation falls to be dismissed both on the grounds of a failure to explain the delay and on the merits.
[50]	The award application is unopposed, and Glencore has made out a proper case for such award to be made an order of court. 
Costs
[51]	Glencore seeks a punitive costs order, in that AMR has vexatiously sought to impugn the personal and professional integrity of Judge Cloete, without good cause. It contended further that the application for review is also frivolous and vexatious, and it has delayed the enforcement of the award. 
[52]	Having regard to the inordinate delays that AMR has caused in these proceedings, all of which appear to have been deliberate, and the malicious attacks on Judge Cloete’s integrity, Glencore’s submissions are well founded and a punitive costs order will thus be made.
Accordingly, the following order is made:
1.	The application for condonation of the review application is refused and the review application is dismissed, with costs to be paid by AMR Mining (Pty) Ltd on a scale as between attorney and client.
2.	The arbitration awards granted by the arbitrator, retired Judge TD Cloete, on 18 April 2020 and 12 June 2020 respectively, copies of which are attached to the Notice of Motion marked ‘NM1’ and ‘NM2’ are made an order of this Court in terms of s 31 of the Arbitration Act 42 of 1965 (the ‘Act’).
3.	Pursuant to s 35(4) of the Act, it is directed that the costs of the—
3.1.	postponement application (being the subject matter of the award dated 18 April 2020) be taxed by the taxing master of the Court on the High Court scale as between party-and-party, and to include the costs of counsel; and
3.2.	arbitration proceedings (being the subject matter of the arbitration award dated 12 June 2020) be taxed by the taxing master of the Court on the High Court scale as between party-and-party, and to include the costs of counsel.
4.	AMR Mining (Pty) Ltd is directed to pay the costs of this application, which are to include the costs reserved on 14 September 2020.

SE WEINER
JUDGE OF THE HIGH COURT 
GAUTENG DIVISION, JOHANNESBURG

This judgment was handed down electronically by circulation to the parties’ and/or parties’ representatives by email and by being uploaded to CaseLines. The date and time for hand-down is deemed to be 10h00 on 10 August 2021.

Date of hearing:	20 July 2021
Date of judgment:	10 August 2021

Appearances:
Counsel for the AMR Mining (Pty) Ltd:	Adv. R Potgieter SC
Attorney for the AMR Mining (Pty) Ltd:	Senekal Simmonds Inc
Counsel for the Glencore International AG:	Adv. A Subel SC 
Adv. A Lamprecht
Attorney for the Glencore International AG:	Werksmans Attorneys