The Johannesburg High Court has declined to grant a declaratory order sought by directors of the Gupta-linked Tegeta Exploration and Resources to prevent business rescue practitioners from progressing the rescue of Optimum Coal Terminal.
The judgment, handed down on Tuesday, has, however, immediately sparked an engagement between the business rescue practitioners of the Terminal and the National Prosecuting Authority (NPA), which has threatened to seek another interdict if talks fail.
The Optimum Coal Terminal is a coal export facility, and its rescue is linked to that of the Optimum Coal Mine. The drawn-out rescue of the mine, which is finally nearing completion, hinges on the successful rescue of the Terminal, through which – in the absence of a forthcoming supply contract with Eskom – Optimum Mine’s coal production will be funnelled.
In the matter, which was decided on Tuesday, Tegeta directors - led by Gupta associate Ronica Ragavan - had argued that they, not the business rescue practitioners of Tegeta, should have the power to vote on the business rescue plan of the Optimum Coal Terminal – of which Tegeta is a creditor.
The case follows a string of failed court bids by Gupta-linked affiliates seemingly intent on hobbling rescue proceedings of all formerly Gupta-owned entities.
The court dismissed the case, with punitive costs. An interim interdict, which had stopped the rescue practitioners from proceeding with a creditor’s meeting for the Terminal, has automatically been discharged.
While Tuesday’s judgment allows for the rescue of Optimum Coal Terminal to proceed, the NPA does not want the Terminal’s rescue to progress while its own bid to stop the sale of the Optimum Coal Mine remains underway.
"We are negotiating with the BRPs (business rescue practitioners) to avoid having to go to court to bring an urgent application, either for an interdict or for an interim preservation order," Sindisiwe Twala, spokesperson for the NPA’s investigative directorate, told Fin24.
Attorney for the BRPs, Bouwer van Niekerk, confirmed talks with the NPA are ongoing.
The sale of the Optimum Coal Mine to Liberty Coal is opposed by the NPA which last month approached the court to block the sale on the basis that it is allegedly being bought with the proceeds of crime. In line with the Prevention of Organised Crime Act (Poca), the NPA has applied for a preservation of property order – a precursor to an application for the asset to be forfeited to the state.
The respondents are due to file their papers later this month while the hearing is set down for March.
"From here, we intend to have a meeting in Optimum Coal Terminal, but we also know that we need to have finalise the Poca application," Van Niekerk said. "And we believe that we've made a proposal that allows for both."