Founder: Turnaround Talk
The Lily Gold Mine tragedy was one of the most significant events in South Africa’s mining industry which has often been described as the foundation stone of the continent’s most diversified economy. The event also sparked a chain of events that proved to be significant in the business rescue profession.
On 5 February 2016, the crown pillar located between the roof of underground levels three and four collapsed and caved into the old underground workings of the Lily Gold Mine. As a result, the lamp room, which was part of the surface infrastructure, also fell in and was buried under the rubble. The rescue efforts to extract three trapped miners took close to six months (and were still unsuccessful), and the operations at what was once a profitable gold mine were put on hold for so long that the Lily Gold mine was placed into business rescue.
After four years of legal battles and wranglings, there is finally some clarity on the matter that the mines BRPs, Rob Devereux and Daniel Terblanche, can now publish an amended business rescue plan for creditor approval.
As it stands
The article points out that a four-year legal battle between Vantage Goldfields Limited (VGL) and Arqomanzi over who gets to control the Barbrook and Lily gold mines in Mpumalanga was settled in the Supreme Court of Appeal (SCA) last week – in favour of Arqomanzi.
The SCA has now dismissed two appeals by Vantage, the erstwhile operator of the mines, challenging Arqomanzi’s claim to be a creditor after it emerged as a front-runner to acquire control of the mines when it purchased loan claims from Standard Bank.
The article adds that this ruling made Arqomanzi the largest creditor in VGL, which was placed in business rescue in 2016 when a crown pillar collapse engorged a container with three miners inside – Pretty Nkambule, Solomon Nyirenda and Yvonne Mnisi. Their bodies have yet to be retrieved, as the tussle over who gets to restart the mines has been locked up in legal battles ever since. Arqomanzi, as the largest and independent creditor, must be given an opportunity to vote on the amended business rescue plans. This also makes it the most likely contender to take control of the mines.
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Legal challenges
The article points out that Vantage, owned by Australia’s Macquarie Metals, challenged the legality of Hong Kong-backed Arqomanzi acquiring Standard Bank’s loan claims of R391 million and R189 million in two of the companies that control Barbrook and Lily.
The Mpumalanga High Court had earlier ruled that the transaction was lawful, though Vantage disagreed and took it on appeal to the SCA. The SCA confirmed the lower court’s ruling. The SCA also rejected Vantage’s claim that Arqomanzi was not an independent creditor as it was not related to any of the Vantage companies.
The article adds that there was also a dispute as to whether the loan claims acquired by Arqomanzi were subordinated, which, if true, meant that Arqomanzi would have little or no voting power on the rescue plans of Lily Gold Mine
. This had already been decided in Arqomanzi’s favour in the Mpumalanga High Court, and the SCA agreed with this view. Costs were awarded against Vantage.
Ministerial approval
The article points out that another bone of contention was whether Macquarie Metals’ acquisition of Vantage in 2020 required ministerial approval under Section 11 of the Mineral and Petroleum Resources Development Act.
Vantage has a controlling interest in both Barbrook and Lily’s controlling company, Mimco. Control of these mines passed to Macquarie, but both the lower court and the SCA ruled that this requires ministerial approval.
The article adds that this means the mines cannot be operated by Vantage or any other operator without first obtaining ministerial consent.
Conflicting statements
The article points out that in a statement issued last week, Vantage Goldfields said the SCA ruling provided clarity “to allow [the] Vantage Goldfields investor group to access R450 million in secured funding to progress the way forward for the companies in business rescue”.
“We look forward to the long-awaited re-opening of the mines,” it said.
This was not how Arqomanzi, which put out a statement of its own, saw it.
“The BRPs have prepared drafts of new business rescue plans and Arqomanzi will be meeting with the BRPs during next week to progress towards publication of these plans and the convening of the meetings of creditors to consider and vote on them,” reads the Arqomanzi statement.
“Arqomanzi continues to actively engage with the BRPs and creditors will be informed of developments in due course.
“Finally, Arqomanzi wishes to remind creditors to carefully consider that Vantage has lost three cases in the High Court and has had two appeals dismissed by the Supreme Court of Appeal.
“Further, over a period of more than seven years, Vantage has done nothing to assist its former employees,” it added.
Creditors will now finally have a chance to vote on the Lily Gold Mine business rescue plans and decide who gets to operate the mines.
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A whole new world
Four years is a very long time in any industry, especially when one considers the radical global change that has occurred since 2020 and the geopolitical tensions currently putting the world under pressure.
There is a significant demand for commodities globally. However, they are for specific minerals such as coal and iron ore. The demand for gold is not what it was five years ago.
Added to this is the fact that Transnet is under severe pressure and is facing significant bottlenecks in its system. The SOE is planning to deliver the same amount of export products to ports as it did in 2016. This is an issue that is impacting all miners. Three coal miners have indicated to the National Union of Mine Workers that they would be entering into Section 189 discussions soon, and Kumba Iron Ore is being forced to stockpile product that it cannot get to port.
How will this changed environment impact the amended business rescue plan that Devereux and Terblanche are now tasked with devising?
