BCL liquidator asks SA court to nullify Nkomati deal
Brian Benza | Tuesday March 14, 2017 18:00
In 2014, BCL announced an agreement to buy 50% in South Africa’s Nkomati Mine from Russia’s Norilsk Nickel, a deal that only received regulatory approval from the minister, Mosebenzi Zwane last September, but never materialised as BCL was placed under liquidation a month later.
With the liquidator having declined to accept Norilsk Nickel as a creditor since last October, it is understood he has now gone a step further and filed for a judicial review of the SA minister’s approval arguing such authorisation should not have been granted as BCL did not fulfil the requirements to be a shareholder in the South African mine.
While Dixon-Warren declined to comment on the matter yesterday, industry sources close to the developments told Mmegi Business that the BCL liquidator commenced judicial review proceedings in South Africa last week.
“The Norilsk Nickel creditor claim was rejected because the BCL liquidator claimed that the Share Purchase Agreement (SPA) in respect of Nkomati was not effective as not all the conditions precedent had been fulfilled.
Norilsk on the other hand says the last condition precedent was the approval by the SA regulatory authorities, namely the mining minister.
The judicial review proceedings are based on the fact that the BCL liquidator now says that such approval should not have been granted as BCL did not fulfil the requirements to be a shareholder in Nkomati,” the source, who declined to be named due to the sensitivity of the matter, said.
BCL’s provisional liquidation case is back in the Gaborone High Court tomorrow after it was postponed last month with lawyers representing the liquidator saying they needed more time to assess a proposed deal to acquire the mine by an external investor.
Minerals, Energy and Green Technology minister, Sadique Kebonang yesterday said he was unaware of the South African court case as he has been out of the country, but confirmed that a company from the United Arab Emirate (UAE) was currently conducting due diligence on a proposed transaction to buy the BCL Group.
While reports have suggested that government is trying to strike a deal with Norilsk if the UAE deal is successful, the Russians also have a pending court case against BCL.
Following the abrupt closure of the mine last October, Norilsk Nickel in December filed a lawsuit against the BCL Group to recover $271.3 million plus damages it said it was owed from the sale of the Nkomati stake.
“BCL has failed to honour its obligations under the sale agreement concluded in October 2014,” Norilsk Nickel Africa’s chief executive, Michael Marriott said.
“The failure of BCL to abide by its obligations under the sale agreement is unacceptable in any business transaction.”