COURT OF APPEAL JUDGMENT
Thekiso & Nova Africa JV v Ulsan Botswana (Pty) Ltd
INTRODUCTION
In a judgment delivered in Gaborone on 28 May 2026, the Court of Appeal of Botswana unanimously upheld appeals by the Liquidator of Mupane Gold Mining (Pty) Ltd and the successful bidder, Nova Africa Resources / Aone Commodities DMCC Joint Venture (“Nova Africa JV”), setting aside an interim interdict that had halted the liquidation sale of Botswana’s only gold mine.
The judgment addresses several important insolvency law issues, including:
- the standing of a disappointed bidder to challenge a liquidator’s conduct;
- mandatory joinder of creditors in liquidation proceedings;
- the requirement for leave under section 376(a) of the Companies Act; and
- the balance of convenience in interdict applications affecting winding-up proceedings.
At the centre of the dispute was a stark commercial contrast. Ulsan Botswana (Pty) Ltd offered USD 500,000 (with a conditional upside to USD 10 million) for the mine assets, while Nova Africa JV offered USD 21.5 million payable in full on completion. Creditors, including former employees whose unpaid wages had triggered the liquidation, unanimously approved the higher bid. Ulsan challenged the outcome successfully in the High Court, but that decision has now been decisively overturned.
“Quite evidently Ulsan was nothing but a grumpy loser with no conceivable right to protect, let alone a prima facie one, but intent on frustrating the liquidation process on the back of whimsical grounds.”
– Lesetedi JA, para 63
BACKGROUND
Mupane Gold Mining was placed under final liquidation on 13 February 2025 following an application by the Mineworkers’ Union on behalf of unpaid employees. Kopanang Thekiso, initially appointed provisional liquidator in November 2024, was confirmed as Liquidator.
At a creditors’ meeting on 20 May 2025, resolutions were passed authorising the Liquidator to dispose of the company’s assets at his discretion in the best interests of creditors.
The Liquidator subsequently issued a Request for Offers (“RFO”), with bids closing at 1600 CAT on 15 June 2025. Two bids were received: one from Ulsan and one from Nova Africa JV. At a creditors’ meeting on 26 August 2025, the Liquidator recommended acceptance of Nova Africa JV’s substantially higher bid, which creditors unanimously approved.
Ulsan complained to the Master of the High Court, alleging among other things that the bid deadline had unlawfully been extended from 13 June to 15 June 2025 to accommodate Nova Africa JV’s bid. The Master declined to intervene. Ulsan then launched urgent proceedings seeking an interim interdict pending a judicial review of the Liquidator’s conduct.
THE HIGH COURT DECISION
On 13 October 2025, the High Court dismissed the preliminary objections raised by the appellants and granted an interim interdict restraining:
- the Liquidator, Nova Africa JV and the Master from concluding or implementing the sale; and
- the Minister of Minerals and Energy from approving the transfer of mining licences.
The appellants appealed on an expedited basis. Before addressing the merits, the Court of Appeal dismissed a procedural challenge by Ulsan regarding the validity of the notices of appeal, holding that the issue had already been resolved and the Court was functus officio.
ISSUES ON APPEAL
The Court considered five principal issues:
- whether leave under section 376(a) of the Companies Act was required before instituting the proceedings;
- whether the creditors were necessary parties whose non-joinder was fatal;
- whether the interdict effectively amounted to a stay of liquidation proceedings under section 390;
- whether Ulsan had locus standi; and
- whether the requirements for an interim interdict had been met.
LEAVE OF COURT: SECTION 376(a)
Section 376(a) of the Companies Act prohibits the commencement or continuation of any “action or proceeding” against a company in liquidation without leave of court.
The High Court held that interim interdicts were merely preservatory remedies and therefore fell outside the provision. The Court of Appeal disagreed.
Unlike authorities dealing only with the term “action”, section 376(a) also refers to “proceeding”, which the Court held was intentionally broader. Applying ordinary principles of statutory interpretation, the Court concluded that interim interdict proceedings fall squarely within the leave requirement.
The Court also rejected the argument that urgency under Order 12 rule 12 of the High Court Rules could override the statutory requirement. Subsidiary legislation cannot dispense with obligations imposed by primary legislation.
FATAL NON-JOINDER OF CREDITORS
The Court held that the creditors were necessary parties whose rights would be directly and substantially affected by the proceedings.
By the time the interdict application was launched, the creditors had already resolved to accept Nova Africa JV’s offer. The decision under challenge was therefore not merely the Liquidator’s recommendation, but the creditors’ own decision.
Because the relief sought would directly affect creditors’ interests in maximising recovery from the estate, their absence from the proceedings rendered the application fatally defective.
“Their non-joinder was fatal and rendered the interim interdict proceedings a nullity.”
– Lesetedi JA, para 40
LOCUS STANDI: THE DISAPPOINTED BIDDER
The Court’s treatment of locus standi is likely to be the judgment’s most commercially significant aspect.
Under section 465(3) of the Companies Act, an “aggrieved person” may review a liquidator’s decision. The issue was whether Ulsan, as an unsuccessful bidder, qualified as such.
Relying on Sherashiya (Pty) Ltd v VRI Metal Industries and the UK Supreme Court decision in Brake v The Chedington Court Estate Ltd [2023] UKSC 29, the Court adopted a narrow interpretation of “person aggrieved”. Creditors and contributories plainly qualify; outsiders must demonstrate an adverse effect on a legal right.
The RFO expressly stated that:
- submission of a bid created no rights in favour of bidders;
- the Liquidator retained sole discretion to accept or reject offers; and
- the Liquidator would accept whichever offer best served creditors’ interests.
Having participated on those terms, Ulsan could not claim any protectable legal right arising from the rejection of its bid.
The Court held that Ulsan was simply a disappointed bidder “hopelessly out-bidden” by Nova Africa JV and therefore lacked standing.
THE MERITS: BALANCE OF CONVENIENCE
The Court further held that the High Court had materially misdirected itself in assessing the balance of convenience.
The High Court focused narrowly on preserving Ulsan’s review remedy, without properly considering the broader liquidation context. Relying on National Treasury v Opposition to Urban Tolling Alliance [2012] ZACC 18, the Court emphasised that the balance of convenience requires a holistic assessment.
Relevant considerations overlooked by the High Court included:
- the interests of former employees awaiting payment;
- the financial burden of delay on the estate;
- deterioration risks affecting the mine assets;
- the substantially higher value of Nova Africa JV’s bid;
- the need for expeditious winding-up proceedings; and
- the public interest in the integrity and finality of liquidation processes.
The Court concluded that these considerations overwhelmingly favoured allowing the liquidation to proceed.
OUTCOME
The Court:
- upheld the appeals with costs;
- set aside the High Court decision in full; and
- dismissed the interdict application.
Although the Court described the application as frivolous and lacking legal foundation, it declined to award punitive costs, accepting that the High Court had genuinely entertained the matter.
SIGNIFICANCE
The judgment makes several important contributions to Botswana insolvency jurisprudence.
First, it confirms that section 376(a)’s leave requirement applies to interim interdict proceedings in liquidation matters.
Second, it clarifies that unsuccessful bidders in liquidation sales generally acquire no enforceable rights merely by participating in the process, particularly where the RFO expressly excludes such rights.
Third, it reinforces the centrality of creditors’ interests in winding-up proceedings. Creditors are not passive observers, and any challenge affecting their decisions or interests requires their joinder.
Finally, the judgment signals that courts should approach attempts by commercial outsiders to halt liquidation proceedings with considerable caution. Applicants seeking such relief must establish a compelling case that outweighs the interests of creditors, employees, the estate, and the broader public interest in efficient winding-up processes.
