CoA reserves judgment in Mupane saga
Mpho Mokwape | Monday May 11, 2026 06:00
On Tuesday, the country’s highest court said the date for the judgment will be announced in two weeks. Mupane closed in March 2024 and went up for auction in April 2025, attracting three bids.
At the CoA, the first appellant, Kopanang Thekiso, as the liquidator of the mine as well as Nova Africa Resources, the initial winner of the bidding for Mupane, filed an appeal after the sale of the gold mine was halted by a High Court interdict. The interdict was granted to Ulsan Botswana, a losing bidder that challenged the selection of Nova as the preferred buyer, citing irregularities in the tender process.
Last October, the High Court in Lobatse granted Ulsan Botswana’s urgent application to interdict the sale of the mine assets, effectively putting on hold any contracts, execution, or transfers tied to the takeover by Nova pending the outcome of full review proceedings. At the time of the interdict, Nova, a joint venture, was slated to purchase the mine for $21 million.
The question before the CoA centred on whether the appeal was properly before the court, as well as questions about joinder, legal standing, and the granting of the said interdict by the High Court in 2025. On Tuesday, Thekiso, represented by attorney Sipho Ziga, argued that there was substantial compliance with the rules of the CoA. Ziga said even if there were minor procedural shortcomings, these should not invalidate the appeal.
“The appeal should be considered properly before the court despite any technical concerns raised,” he said. Another major issue raised by the appellants is the alleged non-joinder of creditors in the earlier High Court proceedings and how the lower court judge did not consider the interest of the creditors.
Ziga submitted that the creditors were not given an opportunity to intervene in the matter, even though they are directly affected by the outcome. The High Court is said to have erred by hearing the application and granting an interdict without involving these creditors. “This was not a simple procedural oversight but a serious failure. The creditors have a direct financial interest in the sale of the mine.
“The interdict effectively prevents them from accessing money that would otherwise be due to them,” Ziga said. For this reason, the non-joinder was described as fatal to the proceedings, and the appellants further argued that the case represents a clear example of when joinder is required.
They stated that the creditors are central to the dispute because the proceeds from the mine sale are meant to benefit them. As such, excluding them from the proceedings undermines the fairness of the process.
Another issue raised is that of locus standi, or the legal standing to bring a case. The appellants argued that the party seeking the interdict, Ulsan, did not acquire any legal rights that would allow it to challenge the sale. According to the submissions by Ziga, Ulsan merely participated in a bidding process to purchase the mine.
He explained that Ulsan had submitted a bid and entered into a document referred to as a Request for Offer (RFO). Ziga argued that the document explicitly stated that it did not create any legal obligation. As a result, the appellants argued that Ulsan did not gain any enforceable rights through this process.
The court also heard that Ulsan offered a significantly lower amount compared to another bidder, and the liquidator ultimately considered the competing bids and made a decision. The appellants stressed that being a bidder does not automatically grant legal rights, especially when the process does not result in a binding agreement.
Based on this reasoning, the appellants argued that Ulsan lacks locus standi. “Ulsan is no different from any other unsuccessful bidder and cannot claim to be aggrieved in a legal sense. Losing a bid does not provide sufficient grounds to approach the court,” Ziga submitted.
The issue of a prima facie right was also discussed during the proceedings. The appellants argued that an interdict cannot be granted simply because a party intends to bring a review application. Instead, there must be a clear and identifiable right that has been infringed or is under threat.
According to the appellants, the judge in the High Court erred by treating the intention to review as sufficient to establish a prima facie right. They argued that the court should have examined whether Ulsan had any contractual or legal rights that were actually violated.
It was further submitted that Ulsan failed to identify any specific right arising from the alleged contract. The appellants maintained that no enforceable agreement existed and, therefore, no right could have been breached. As a result, the basis for granting the interdict was questioned.
The appellants also addressed the balance of convenience, which is a key consideration when deciding whether to grant an interdict. They argued that Ulsan’s actions are driven by profit rather than any legitimate legal interest. In contrast, the sale of the mine has broader implications for the public, and the court was told that the mine supports the livelihoods of many people and that delays in its sale could have serious consequences.
The appellants argued that the public interest requires the mine to be sold as quickly as possible. They claimed that the High Court failed to take this into account when granting the interdict. Munyaka Makuyana, attorney for the second appellant Nova Africa, also called for costs to be awarded on a punitive scale. He argued that Ulsan is attempting to bypass the interests of the creditors for its own benefit, emphasising that the role of the liquidator is to act in the best interests of the creditors, not to favour any particular bidder.
The court heard that Ulsan’s offer was significantly lower than the other bid that was accepted, and the appellants argued that it would be unreasonable for the court to uphold a lower offer when a higher one is available. They stressed that the liquidator’s duty is to maximise returns for creditors.
Kago Mokotedi, representing the first respondent, Ulsan, focused his argument on the validity of the appeal itself. He argued that the court must first determine whether the appeal properly exists before considering any other issues. He submitted that strict compliance with court rules is required for an appeal to be valid, and according to his argument, substantial compliance is not sufficient in such cases. Mokotedi urged the court to examine whether all procedural requirements have been fully met.
The contention raised was that if the appeal does not meet the necessary standards, it should not be entertained. This issue was presented as a threshold question that must be resolved before addressing the merits of the case.
The bench of Justices Tebogo Tau (CoA president), Isaac Lesetedi, and Lot Moroka said the date for the judgment would be communicated in two weeks.