17:22

CONSULTANCY AGREEMENT

I ) between

Bl\l(Gfe.TLA-BA-l(Gl\r.ELA THADITIOll!Al

and

SHAEW 11\!VESTMENIS (PflOPRIETtlRV) LIMITED

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1. INTERPRETATION AND DEFINITIONS ................................................................................................ 1

2. RECORDAL ....................................................................................................................................... 2

3. APPOINTMENT OF THE CONSULTAIH .............................................................................................. 2

4. DURATION ....................................................................................................................................... 3

s. RENDERING OF SERVICES BY THE CONSULTANT.. ............................................................................. 3

6. FEES, .........................................................................................: ...·.................................................. 3

7. EXPENSES AND DISBURSEMENTS ..................................................................................................... 4

8. BREACH AND TERMINATION ............................................................................................................ 5

)
9. OVERDUE INTEREST ......................................................................................................................... 5

10. STANDARD OF SERVICES .................................................................................................................. 6

11. NO AUTHORITY TO REPRESENT THE COMPANY ............................................................................... 6

12. LIAISON WITH THE COMPANY ......................................................................................................... 6

13. COPYRIGHT AND DOCUMENTS ........................................................................................................ 6

14. CONFIDENTIAL/TY ............................................................................................................................ 7

15. GOOD FAITH .................................................................................................................................... 7

16. DIVISIBILITY AND SEVERABILITY ....................................................................................................... 7

17. ARBITRATION .................................................................................................................................. 7

18. DOMICIL/UM CITANDI ET EXECUTANDI ............................................................................................ 8

19. WHOLE AGREEMENT, NO AMENDMENT .......................................................................................... 9

20. COSTS .............................................................................................................................................10

)
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J.J.. The clause headings in this Agreernent are for convenience anc: shall be disregarded in

construing this agreement.

l.2. In this Agreernent, unle'ss the context indicates a contrary intention, the singular shall include

plural and vice versa.

l.3. In this Agreement, unless the context clearly indicates a contrary intention, the following

expressions shall bear the meanings set opposite them below and cognale expressions shall

bear corresponding 1neanings -

1.3.1. "Agreement" means this agreement and its annexures, if any, as amended fro1n time to

tilne;

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1.3.2. Con1panv 11 n1eans Bakgatla-Ba-Kgafela Traditional Administration, a traditional

council of the Bakgatla-Ba-Kgafela tribe, established and recognised in accordance

with section 3 of the Traditional Leadership and Governance Framework Act, f"o.41 of

2003 (as amended);

1.3.3. "Cornrnencernent Date" means notwithstanding the Date of Signature Hereof, 13

January 2012;

1.3.4. "Consultant" means Selaelo Investments (Pty) Ltd;

1.3.5. "Date of Slgna!Lire" means the date of signature of this agreement by the last

signatory hereto;

1.3.6. "DMR" means the Department of Minerals and Resources in the government of the

Republic of South Africa;

1.3.7. "Mining Right" means the mining right held by the Company under reference number

NW 30/5/1/2/2/333MR and Reference No.: 320 (Abandonment);

11
1.3.8. MPDRA11 means the Minerals and Petroleu1n Resources Development Act, No.28 of

2002 (as amended);

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:i..3.9. rneans Selae!o lnvestff1ents (Proprietar\') Urnlted (Regist(ation l\Jo.

/.OJJ./119795/07, a private cornpany dulv registered and incorporated in accordance

vJith the lav;s of the Republic of South Africa;

J..3.10. 1neans the Company and the Consultant and a reference to the "t:>:2tties"
shall e1nbrace each one of the1n individually. shall have the corresponding

1neaning

1.3.11. "Services" means all services to be providedby the Consult_ant to__the Company in

terms of this Agreement in order for the Company to effect the Transaction;

1.3.12. "Teri"J'lination Date" means the date upon which this Agreement expires or is

terminated for any reason whatsoever;

1.3.13. "Ti'ansact!on" 1neans the obtaining of approval by the Co1npany of its tnining work

programme from the DMR in terms of section 102 of the MPRDA in respect of the

application for consent submitted by the Company to the DMR with reference

number NW 30/S/1/2/2/333MR and Reference No.: 320 (Abandonment);

2. RECORDAl

It is recorded that:

2.1. The Co1npany is the owner anr:I lawful orcupiPr of an are8 of land covered by a r11ining right in

terms of the provisions of the MPRDA;

) 2.2. The Company wishes to finalise the Transaction which has been unduly delayed at the DMR;

2.3. The Consultant is able and willing to assist the Company with the Transaction;

2.4. The Company and Consultant therefore set out hereunder the terms under which the Company is

willing to appoint the Consultant and the Consultant is willing to render services to the

Company for purposes of finalising the Transaction.

3. APPOINTMENT OF THE CONSULTANT

The Company appoints the Consultant who accepts the appointment, with effect from the

Com1nencement Date, to render the Services to the Company.

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This Agreerrient shall corrirnence on the Co1nr11encer11ent Date and shall continue until con1pletion of

the Transaction unless ter(ninated in accordance vvith the provisions of clause 8 hereof.

5. t',ENDERll\!G or- §HIVIC<'S rN TME

5. 1. The -consultant undertakes to provide the Cornpany with inter alia, the Services.

5.2. In particular, __the_ Consult_a_nt underta_kes to _the _Company _wjth follo_.wlng services to

facilitate the Transaction, 1,vithin the thnelines stipulated in this Agreement:

5.2.1. Phase 1 of the Services, the Consultant shall procure the approval by the DMR of the

abandonment by ltereleng Bakgatla Mineral Resources (Proprietary) Limited of

the Sedibelo West portion of its mining right.

5.2.2. Phase 2 of the Services, the Consultant shall complete the following Services:

5.2.2.1. Approval by the DMR of IBMR sale of shares agreement;

5.2.2.2. Approval by the DMR of the Social Labour Plan or, to the extent applicable,

Amended Social labour Plan;

5.2.2.3. Approval by the DMR of the Environmental Management Plan or, to the

extpnt applicable, Amended Environmental IV!anagernent Plan;

5.2.2.4. Approval of by the DMR the Mining Works Programme or, to the extent

applicable, Amended Mining Works Programme.

6. r-EES

6.1. In consideration for the Consultant rendering the Services, the Company shall pay the

Consultant a consultancy fee of R20 OOO OOO.OD (Twenty million rands) excluding Value Added

Tax (the "Consultancy Fee"), which fee shall be payable in cash by way of electronic funds

transfer into the account of Selaelo lnvestments(Pty) Ltd.

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r:irst National Bank Benrnofe Gardens bfanch, account nurobet 623.!!-067936/

("f:::c,::0Lff1"i:") and subject ·(o Che Cornpany receiving a ·1:ai: invoice v1iithin 3 {three) davs of

cor11pletion of Phase l of the Services as conte1nplated in clause 5.2.1 hereof;

6.2; rhe Cotnpany to procure the transfer of the Consultancy Fee from the trust
.account of Attorneys DLA Cliffe Dekker Hofineyer, vvho hold such funds on behalf of the
Company, to the Account within 2 (two) business days of the submitting of invoice;

6.3. . All fees due_by the Company shall be paid to the Consultant in_ accordanc<?_ with the provisions of

clause 6.1 above on compliance by the Consultant with the provisions of said clause, free of any

set-off or counterclailn against such fees.

7. ElCPENSES AND DISBURSEMENTS

7.J.. All fees and expenses related to the Transaction and incurred by the Consultant including fees

related to any third party professional advisers whonlsoever as well as all costs and
disbursements incurred by the Consultant in relation to the Transaction shall be for the sole
account of the Co1npany, provided that the Consultant shall obtain the prior written consent of
the Co1npany before expending any such fees, expenses and/or costs.

7 .2. The Co1npany shall reirnburse the Consultant for all costs, charges and any other out-of-pocket

expenses incurred by the Consultant in relation to the Consultant' fulfilment of its obligations in

terms of this Agreement, provided that should any such individual cost and/or charge exceed an

amount of R2,000 (two thousand rand), the Consultant shall obtain the prior written

approval of the Company before the Consultant incurs such expense.

7.3. All amounts due and payable by the Company to the Consultant in terms of the provisions of

this Agree1nent, including without limitation all fees, costs and or reimbursements of expenses

shall be payable free of any set-off or counterclaims and exclusive of value added tax ("VAT"),

which VAT amount shall be calculated by the Company and included over and above all such

amounts due and payable, upon payment thereof.

7.4. Subject to clause 7.3 above, all amounts due and payable by the Company to the Consultant

shall be paid within 7 (seven) days of the presenting of a tax invoice In relation to each such

amount by the Consultant to the Company.

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0
o.

Either party shall have the right to terrriinate this Agceernent v11ithout prejudice to any rights \1vhich it

rnay have in lavv -

8.1. if the other part\' is liquidated or placed under judicial manage1nent, whether provisionally or

finally (except in circumstances where such party has been placed in liquidation for the

purposes of reconstruction); and/or

8.2. if there-ls a--6reacli -of this Agree1nent which is-remediable and the tlefalllting party fails to

remedy the breach within 7 (seven) days of the receipt of written notice requiring it to do so,
provided that if the breach Is not reasonably capable of being remedied within such period of 7
(seven) days, within such further extended period as may be necessary but not exceeding a

further period of 7 (seven) days; and/or

8.3. if there is a breach of the Agreement which is not capable of being remedied and the breach is
material and goes to the root of the Agreement

9. OVERDUE INTEREST

9.L Any amount falling due for payment by any Party to any other -

9.LL in terms of or pursuant to this Agreement, shall bear interest at the overdraft rate of
interest charged by the Consultant' bankers plus 3% (three per cent), calculated daily,
from the date upon which those damages are sustained to the date of final payment,
and compounded monthly;

9.1.2. by way of damages, shall bear interest at the overdraft rate of interest charged by the
Consultant' bankers plus 3% (three per cent), calculated daily, from the date upon
which those damages are sustained to the date of final payment, a.nd compounded
monthly.

9.2. Dan1ages for the breach of any warranty or representation as to a stipulated state of affairs as at

any date shall be deemed to have been sustained on the date to which such stipulation
relates.
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The Consultc:nt vvarrants that they are coropetent to the Services under this f\greernetYi: to a

reasonable standard. The Consultant undertakes to render the Services under this AgE"eeroent to the

reasonable satisfaction of the Company.

11. rJo 1-\UTMOmTV TO l'lEl'i':ES!:l\lf TME COMP?ll\lV

Notwithstanding anything to the contrary herein contained, the Consultant acknowledges that they

have no authoritY \Vhatsoever to represent the Company in any- capaCi(\1- Whatsoever. -In- pari:icular,

but without limiting the generality of the aforegoing, the Consultant shall neither be entitled to

conclude any contracts on behalf of the Company \Vith any of the Co1npany 1s clients nor to sign any
)
docu1nentation on behalf of the Company, except with express \Vritten authority of the chainnan of

the Company, who indemnifies the Consultant thereto.

12. Ll/-11501\l Wll'M TME COMP/-11\lV

12.1. The Consultant shall be obliged to liaise on a regular basis with the chairman of the Company

and to keep him fully informed of the progress of all work being undertaken by the Consultant

pursuant to this Agreement.

12.2. All Services to be rendered by the Consultant shall be rendered either at the premises of the

Company's clients or at the Company's premises as may be directed by the Company.

13. COPVRIGMT 1-11\lD DOCUMEl\lTS

13.1. Any di1covery or invention or secret process or in1provement in procedure rriade or discovered by

the Consultant in the course and scope of this Agreement between the Parties in connection with

or in any way affecting or relating to the business of the Company or capable of being used

or adapted for use by the Company or in connection with its business shall be disclosed to the

Company and shall belong to and be the absolute property of the Company.

13.2. All reports, rnanuals, financial staten1ents, budgets, indices, research papers, letters or other

similar documents (the nature of which Is not limited by the specific reference to the

aforegoing items) which are created, compiled or devised or brought into being by the

Consultant or come into the Consultant' possession during the course and scope of this

Agreement and all copies thereof will be the property of the Company and, up on the
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·re1-r11ination Date or earliei' if required by the Cornpany, such docun1ent and all copl<::s shall be
reiutned ·co the Cornpany.

Notv11ithstanding the termination of this Agreernent for any reason whatsoever -

14.1. any information concerning the conclusion of this Agreement or the terms hereof; and

14.2. any infonnation obtained by the Parties in terms_of_or. arising fro1n_the .i1npl_em.enJati_on o_f this

Agreement or the Consultant' involve1nent with the Co1npany in terms of this Agreernent,

shall be treated as confidential by the Parties and shall not be divulged or permitted to be divulged to
I
any person not being a party to this Agree1nent, \Vithout the prior written consent of the Parties.

15. GOOD Ff.\trM

The Parties shall in their dealings with each other display good faith.

16. DIVISIBILITY AND SEVERABILITV

Notwithstanding anything to the contrary contained in this Agree1nent, each provision of this

Agree1nent is severable the one from the other and if, in tenns of any judgment or order, any

provision in this Agreement is found to be defective or unenforceable for any reason, the remaining

provisions shall nevertheless be and continoe to be of fL1ll force ;:ind effect.

17. ARBITRATION

17.1. Save as otherwise provided for in this Agreen1ent, should any dispute arise between the Parties in

regard to -

17.1.1. the interpretation of; or

17.1.2. the carrying into effect of; or

17.1.3. any of the Parties' rights and obligations arising from; or

17.1.4. the rectification of; or

17.1.5. cancellation, termination, alleged cancellation or alleged termination of,

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this J\g(eernent, then that displlte shall be subtr-1itted 'lo and decided bv at·bilfation l\1hich shall
i:ie held at Sanc!ton anc.1 shall be subjeci: ·i;o ·i:he rules of the Arbitfztion ::ounclation of South

/.\fdca. The arbitfator appointed by the f-\rbitration Foundation of South /.\frica shall be an

independent attorney or advocate vi1ho has practised as such for at least 15 {fifteen) years in a

substantially cornmercial practice.

17.2. Not\'Jithstanding anything to the contrary contained herein, this clause shall not preclude any

Party from obtaining interim relief on an urgent basis fro1n a court of coropetent jurisdiction
pending th·e decision of the arbitrator-or fron1 instituting in-any court of coropetent-jurisdiction

any proceedings for an interdict or any other injunctive relief.

18. DOMICillllM CITl'J\JDI ET EHECUTANDI

18. 1. The Parties choose as their domicilia citandi et executandi for all purposes under this

Agree1nent, whether in respect of court process, notices or other documents or

co1nmunicatlons of whatsoever nature, the following addresses:

18.1.J.. the Company:

Physical: Main Hospital Road, Saulspoort

Postal: P.O. Box 200, Saulspoort, 0318
Telefax: 086 664 6599
En1ail:

18.1.2. the Consultant:

Physical: Unit 7, Garden's Business Park, Ateljee Street, RandparkRidge, 2169

Postal: P.O. Box 659, Randpark ridge, 2156
Telefax: 086 247 0201
Email: selaelolnvestments@gmall.com

18. 2. Each of the parties shall be entitled from time to time, by written notice to the other, to vary its
Domicilium to any other address which is not a post office box or paste restante.
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J.8.3. Any notice given and CHI\' pav.r1ent ff1ade by either Pai·iy to the o-i:her (the

1Nhich --

J.8.3.:t. sent by prepaid registered post (by ainnail if appropriate) in a correctly addressed
envelope to it at an address chosen as its do1niciliun1 citandi et executandi to vvhich
1
post is delivered shall be dee1ned to have been received on the 7 h business day after
posting (unless the contrary is proved);

18.3.2. delivered by hand to a responsible person during ordinary business hours at the

physical address chosen as its domicilium citandi et executandi shall be deemed to

have been received on the day of delivery; or

18.3.3. sent by telefax to its chosen telefax number stipulated in clause 18.1, shall be deemed to

have been received on the date of despatch (unless the contrary is proved); or

18.3.4. sent by e-mail to its chosen e-mail address stipulated in clause 18.1, shall be deemed to
have been received on the date of despatch (unless the contrary is proved).

18.4. Any notice given by either party to the other which is sent by telefacsimile to the address

referred to in clause 18.1 shall be rebuttably presumed to have been received by the

Addressee on the first business day succeeding the day on vvhich the telefacsirnile is

successfully transmitted.

19.1. This Agreement constitutes the whole agreement between the Parties relating to the subject

matter hereof.

19. 2. No amendment or consensual cancellation of this Agreement or any provision or term hereof or

of any agreement, bill of exchange or other document issued or executed pursuant to or in

terms of this Agreement and no settlement of any disputes arising under this Agreement and

no extension of time, waiver or relaxation or suspension of any of the provisions or terms of

this Agreement or of any agreement, bill of exchange or other document issued pursuant to or in

terms of this Agreement shall be binding unless recorded in a written document signed by the

Parties (or In the case of an extension of time, waiver or relaxation or suspension, signed by the

Party granting such extension, waiver or relaxation). Any such extension, waiver or
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felai;ation or suspension vl"hich is so given or n1ade shall be str'ictlv construed as relating sti·icilv to

the ffrfflter in respect 1_1,_1hereof Vi: v.Jas r11ad2 or given.

J.9.3. f\!o extension of tirne or vvaiver or relaxation of any of the provisions or tern1s of this

Agreeroent or any agreeroent, bill of exchange or other docu1nent issued or executed pursuant to
or in terms of this Agreernent, shall operate as an estoppel against any Party in respect of its
rights under this Agreernent, nor shall it operate so as to preclude such Party thereafter from

exercising its rights strictly in accordance with this Agree1nent.

19.4. To the extent permissible by Jaw no Party shall be bound by any express or implied term,
representation, warranty, promise or the like not recorded herein, vvhether it induced the
contract and/or whether It was negligent or not.

20. COSTS

The costs of and incidental to the drawing of this Agreement shall be paid by the Company.

Signed at _ _ _ _ _ _ _ _ _ _ _ _ _ _ this _ _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ _ 20 __.

As VJi'i.:nesses: for and on behalf ol:

BAKGATLA-BA-KGAFELA TRADITIOl\/At
ADMJl\llSTRATIOl\I

Nan1e:
Capacity:
2
who warrants that he I she is duly authorised thereto

Signed at _ _ _ _ _ _ _ _ _ _ _ _ _ this _ _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ 20__.

As vui'i.:nesses: for and on behalf of:

SELAELO 11\/VESTMEl\ITS (PROPRIETARY) LIMITED

Na1ne:
Capacity:
2
who warrants that he/ she is duly authorised thereto