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[2020] ZAGPJHC 171
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Minerals Council South Africa v Minister of Mineral Resources and Another (20341/19) [2020] ZAGPJHC 171 (30 June 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 20341/19
(43806/19)
In
the matter between:
Minerals
Council South
Africa Applicant
And
Minister
of Mineral
Resources First
Respondent
South
African Diamond and Precious Metals
Regulator Second
Respondent
JUDGMENT
The
Court
Introduction
and a telescopic view of the case
[1]
On
27 September 2018 the first respondent, the Minister of Mineral
Resources, acting in terms of powers conferred upon his office
by s
100(2) of Mineral and Petroleum Resources Development Act
[1]
(the MPRDA) published a
Broad-Based
Socio-Economic Empowerment Charter for the Mining and Minerals
Industry
[2]
(the 2018 Charter). The 2018 Charter is the last in a series of
Charters promulgated since the enactment of the Constitution
of
the Republic of South Africa, Act 108 of 1996 (the Constitution) and
the MPRDA, with the original Charter being promulgated
on 13 August
2004. One of these Charters, promulgated on 15 June 2017
[3]
(the 2017 Charter), is particularly relevant to the issues raised in
this matter.
[2]
The
applicant, the Minerals Council South Africa, is aggrieved by various
clauses in the 2018 Charter. Accordingly, it has brought
this
application wherein it seeks to review and set aside the said clauses
(the review application). Some of these clauses display
similarities
to ones contained in the 2017 Charter. The applicant was also
aggrieved by those clauses. It has successfully challenged
those
clauses in a matter that was before this Court
[4]
and which was presided over by a differently constituted bench (the
2017 matter/the 2017 case). That matter is now pending on appeal
before the Supreme Court of Appeal (the SCA case). A key issue in the
2017 case and in this case too, is whether the Charter is
law or
policy. The issue has been pronounced upon by this Court in the 2017
matter. The 2017 matter involved the same parties.
Other issues
relating to specific clauses in the two Charters have also been
pronounced upon by this Court in the 2017 matter.
Nevertheless, the
applicant deemed it appropriate to re-raise the same issues before
this Court, notwithstanding the fact that
they have already been
pronounced upon and are presently the subject of an appeal before the
SCA. Some
[5]
of the grounds that
the applicant relies upon for the relief it seeks in this matter are
identical to those it relied upon in the
2017 matter. There, as here,
it relied upon the provisions in the
Promotion
of Administrative Justice Act,
[6]
and in the alternative on the principle of legality enshrined in s
1(c) of the Constitution.
[7]
The
question as to whether this Court should pronounce on the same issues
between the same parties that are presently before the
SCA was raised
mero
motu
by
the Court. However, for reasons that will become obvious in due
course, it is not necessary to deal definitely with the question.
[3]
The respondents oppose the relief sought. They contend that
there is no merit in the complaint of the applicant. But, they say,
there is another serious problem with the application. It is that the
applicant has failed to join important, necessary and relevant
parties to the matter, and that until these parties have been joined
the merits of the applicant’s complaint should not be
adjudicated at all, alternatively it should be delayed until those
parties have been properly joined to the proceedings. The contention
was pertinently raised in the answering affidavit. In reply the
applicant disagreed with the respondents’ contention that
the
application should founder for failure to join any party. In its view
all the parties necessary, relevant and holding an interest
in the
matter have been brought to Court. It accordingly asked for the
non-joinder challenge of the respondents to be dismissed.
[4]
However, a while later the applicant reconsidered its stance.
It brought a conditional application wherein it requested this Court
to give directions as to which parties are to be joined and how
pleadings should be served on those parties. The request is
conditional
upon this Court being persuaded to agree with the
respondents that certain parties have to be joined in the matter. It
elected
not to file a founding affidavit in support of this
application. Instead, it relied on the contents of its replying
affidavit as
support for the conditional application. The respondents
delivered a lengthy answering affidavit expanding on the factual
averments
contained in its answer to the review application. The
applicant replied thereto. There are therefore two broad issues
before
this Court: the non-joinder of various parties and the merits
of the review application. The conditional application would only
be
relevant if the respondents succeed on the non-joinder issue. This is
so because the applicant remains firm and steadfast in
its conviction
that the non-joinder complaint lacks all merit and that the
counter-application only requires attention if this
Court were to
find it to be mistaken in that regard. At the hearing both issues
(the non-joinder and the merits) were addressed
comprehensively with
the understanding that, should the Court find merit in the
non-joinder point, it would only issue an order
consistent with that
finding while leaving the determination of the merits of the
applicant’s case for another day.
[5]
Before scrutinising the non-joinder challenge put up by the
respondents it is necessary to record that on 27 January 2020 the
applicant
issued a notice in terms of rule 16A of the Uniform Rules
of Court drawing the public’s attention to the application. The
notice was published on the notice board at court. The notice
informed any party interested in the application that it may “
with
the written consent of the parties … be admitted as amicus
curiae, upon such terms and conditions as may be agreed upon
in
writing by the parties
”; alternatively, that party should
apply to the Court to be admitted as an
amicus curiae.
In the
latter case that party should describe its interest in the
proceedings as well as set out “
clearly and succinctly the
submissions
” it “
shall advance, … the
relevance thereof to
” the proceedings, and “
the
reasons for believing that the submissions will assist the Court and
are different from the submissions of the other parties
.”
The applicant relies on the notice as part of its attempt to meet the
case of non-joinder raised by the respondents.
The
concept of non-joinder in our law
[6]
A
most helpful judgment on the issue of non-joinder remains the
decision of the Appellate Division in
Amalgamated
Engineering Union,
[8]
for it is a judgment that is comprehensive in scope and penetrating
in its analysis. Fagan AJA, extrapolating from the learning
in the
case of
Bekker
[9]
decided in 1844, recorded the two essential principles of our law as
being:
“
(1) that a
judgment cannot be pleaded as
res
judicata
against someone who was not a party to the suit in which it was
given, and (2) that the Court should not make an order that may
prejudice the rights of parties not before it.”
[10]
The
second principle applies even in a case where the necessary party had
an opportunity to intervene prior to the issuance of a
judgment, for
it is imperative that the Court should “
avoid
all possibility of prejudicing parties not before the Court.
”
[11]
This, Fagan AJA demonstrates, was a hallmark of all the decisions in
cases where the issue of non-joinder surfaced:
“
Indeed
it seems clear to me that the Court has consistently refrained from
dealing with issues in which a third party may have a
direct and
substantial interest without either having that party joined in the
suit or, if the circumstances of the case admit
of such a course,
taking other adequate steps to ensure that its judgment will not
prejudicially affect the party’s interests.
There may also, of
course, be cases in which the Court can be satisfied with the third
party’s waiver of his right to be
joined, e.g. if the Court is
prepared, under all the circumstances of the case, to accept an
intimation from him that he disclaims
any interest or that he submits
to judgment. It must be borne in mind, however, that even on the
allegation that a party has waived
his rights, that party is entitled
to be heard; for he may, if given the opportunity, dispute either the
facts which are said to
prove his waiver, or the conclusion of law to
be drawn from them, or both.”
[12]
[7]
The party that stands to be prejudiced is thus said to have “
a
direct and substantial interest
” in the litigation.
Essentially our law, in principle, holds that any party which has an
interest in a particular matter
should be joined in the matter. It
should not just be any interest but one that is “
direct and
substantial
”, which would make it a party necessary for the
finalisation of the matter (necessary party). The necessary party
would naturally
have an interest in the order that the court may
make. Should a plaintiff or applicant fail to join a necessary party,
the defendant
or respondent is entitled to demand the joinder of that
party.
[8]
There
is a concomitant duty on the court to enquire “
whether
the order it is asked to make may affect a third party not before the
Court, and, if so, whether the Court should make the
order without
having that third party before it.
”
[13]
The latter option should not be adopted if the order “
cannot
be sustained and carried into execution without necessarily
prejudicing the interest of parties who have not had an opportunity
of protecting their interest by reason of their not having been made
parties to the cause.
”
[14]
In that case the court would be required to either order such
joinder, or be satisfied that the third party had waived its right
to
be joined.
[15]
Once that party
had waived its right to be joined, it becomes bound by the order the
court will make in its absence.
[9]
The
concept of a direct and substantial interest means “
an
interest in the right which is the subject-matter of the
litigation
”.
[16]
The direct and substantial interest, in other words, has to be one
that gives rise to a legal right. It would therefore have to
be a
legal interest.
[17]
[10]
The
question whether the potentially affected interest is a direct and
substantial one that constitutes a legal interest,
[18]
needs to be determined on a case and context-specific basis.
Particular regard would have to paid to the special characteristics
of the case as well as to the impact the relief sought by an
applicant would have on the non-joined affected parties.
[19]
It is therefore important to discern the context within which this
litigation is conducted.
Context
of the litigation
[11]
This Court is seized with an application to review and set
aside certain challenged clauses contained in the 2018 Charter, which
was developed under the auspices of the first respondent. It is not
contested by the applicant that the first respondent was empowered
by
section 100(2) of the MPRDA to develop the 2018 Charter.
[12]
The
MPRDA is a specialised piece of legislation. It is one of a series of
interventions by the democratic legislature to give effect
to the
“
commitment
to a democratic, universalistic, caring and aspirationally
egalitarian ethos expressly articulated in the Constitution.
”
[20]
Our country, unfortunately, has to contend with a socio-historical
legacy left by a racially discriminatory past that produced
poverty
and inequality on a vast scale. It is a legacy that, according to the
Constitution, cannot and should not be evaded. And
that is
precisely what the MPRDA does not do. It attends to this legacy by
aiming to transform the process as well as the manner
by which the
mineral wealth and resources of the country are exploited; it is
directed at transforming access to the mineral wealth
and resources
of this country in a manner that benefits all its people, especially
those that belong to groups that were previously
excluded from
participating in and benefitting from the exploitation of this
mineral wealth. This transformative object of the
MPRDA has been
aptly captured in the following
dictum
from our apex Court:
“
[2]
That legislative intervention was in the form of [the MPRDA].
Its commencement had the effect of freezing the ability
to sell,
lease or cede unused old order rights until they were converted into
prospecting or mining rights with the written consent
of the
[Minister]. It also had the deliberate and immediate effect of
abolishing the entitlement to sterilise mineral rights,
otherwise
known as the entitlement not to sell or exploit minerals. This
ought to come as no surprise in a country with a
progressive
Constitution, a high unemployment rate and a yawning gap between the
rich and the poor which could be addressed partly
through the optimal
exploitation of its rich mineral and petroleum resources, to boost
economic growth.
”
[21]
[13]
Together
with the Preamble, the Objects of the MPRDA establishes a set of
principles that are required to guide every decision taken
in terms
of the MPRDA. It is evident therefrom that the legislature aimed to
rectify past economic and socio-political inequalities
while
providing for the sustainable development of the nation’s
mineral and petroleum resources and the creation of a mining
regime
that is internationally competitive and efficient.
[22]
When required to do so courts are bound to ensure that actions taken
in terms of the MPRDA are consonant with these principles.
[14]
The Objects of the MPRDA that are most relevant to
understanding the context within which this litigation must be
considered, are:
i.
promote
equitable access to the nation’s mineral and petroleum
resources to all the people of South Africa;
[23]
ii.
substantially
and meaningfully expand opportunities for historically disadvantaged
persons, including women and communities, to
enter into and actively
participate in the mineral and petroleum industries and to benefit
from the exploitation of the nation’s
mineral and petroleum
resources;
[24]
iii.
promote
economic growth and mineral and petroleum resources development in
the Republic, particularly development of downstream
industries
through provision of feedstock, and development of mining and
petroleum inputs industries;
[25]
iv.
promote
employment and advance the social and economic welfare of all South
Africans;
[26]
v.
provide for
security of tenure in respect of prospecting, exploration, mining,
and production operations;
[27]
and
vi.
ensure that
holders of mining and production rights contribute towards the
socio-economic development of the areas in which they
are
operating.
[28]
The
objective of the transforming the mining sector is candidly laid out
in these Objects. The message they convey is clear: while
all South
Africans should have access to the mineral wealth, there should be
substantial and meaningful expansion of opportunities
for persons
from historically disadvantaged groups to engage in and benefit from
the exploitation of this wealth; the manner in
which the mineral
wealth is exploited must be one that creates and not destroys
employment opportunities; and, particular attention
should be paid to
ensuring that the welfare of the communities living in and around the
mining operations is advanced.
[15]
That
these objectives are laudable is doubtless. In fact, in its papers
the applicant keenly indicated that it fully appreciates
and supports
not just these objectives in particular, but the entire
transformational project as set out in the MPRDA. However,
the
respondents in their answer indict it and its members on the charge
that they restrict the commitment to transformation largely
to the
theoretical level, while avoiding carrying it through with practical
effort. They enlist the launching of this application
as one piece of
evidence supporting their charge. For purposes of this judgment the
indictment is of no moment. Of importance though
is the need to
recognise that one way of achieving the transformational objectives
is by ensuring that the mining rights granted
provide for and promote
the transformation of the industry. And in this regard it is
imperative to bear in mind that “[l]
arge-scale
transformational legislation of this nature presents challenges of a
special kind
”.
[29]
[16]
Section
23 of the MPRDA empowers the first respondent to grant a mining right
to any person. It also compels the first respondent
to grant a mining
right if certain conditions are met by the applicant for the mining
right and if,
inter
alia
,
the granting of the right would advance the Objects referred to in s
2(d) and (f)
[30]
as well as
comply with the Charter (which presently is the 2018 Charter)
and the prescribed social and labour plan. It is
in this vein that
the legislature through s 100(2) imposed the following injunction on
the first respondent:
“
(a) To ensure the
attainment of the Government's objectives of redressing historical,
social and economic inequalities as stated
in the Constitution, the
Minister must within six months from the date on which this Act takes
effect develop a broad-based socio-economic
empowerment Charter that
will set the framework for targets and time table for effecting the
entry into and active participation
of historically disadvantaged
South Africans into the mining industry, and allow such South
Africans to benefit from the exploitation
of the mining and mineral
resources and the beneficiation of such mineral resources.
(b) The Charter must set
out, amongst others, how the objects referred to in section 2(c),
(d), (e), (f) and (i) can be achieved.
[17]
It is in this context then that the 2018 Charter, like its
predecessors, was born. It is clearly instrumental in pursuing and
materialising
the transformational objectives of the MPRDA. It is
also in this context that the challenge raised by the applicant must
be assessed.
And similarly so with regard to the point of non-joinder
raised by the respondents. However, there is one final element to the
context of the litigation, and that is the process followed by the
first respondent before finalising and promulgating the 2018
Charter.
For our purposes we need to confine the process to that which was
followed during the making of the 2017 Charter and which
was followed
through with the making of the 2018 Charter.
[18]
Following the promulgation of the 2017 Charter the applicant
launched proceedings in this Court challenging certain of its
clauses.
During the course of that challenge, certain other parties
applied to intervene or join in the proceedings. They are:
i. Mining Affected
Communities United in Action (MACUA), Women from Mining Affected
Communities United in Action (WAMUA), and Mining
Environmental
Justice Community Network of South Africa (MEJCON). All three of
these groups were represented by the Centre for
Legal Studies (CALS)
operating from the University of the Witwatersrand. Their complaint
was different from that of the applicant.
They maintained,
inter
alia
, that they were not consulted by the first respondent when
the 2017 Charter was formulated, and this failure on his part was
fatal
to the process. They were fundamentally interested parties
which were endowed with rights in terms of the MPRDA, which rights
were
affected by the 2017 Charter. Their application to intervene was
successful.
ii. Sefikile Community;
Lesethleng Community; Babina Phuthi Ba Ga-Makola Community; and
Kgatlu Community. They were represented
by the Lawyers for Human
Rights. They too complained,
inter alia
, that their interests
as mining communities were ignored when the 2017 Charter was
formulated as they were not consulted during
the formulation process.
Their joinder application was successful.
[19]
During the formulation of the 2018 Charter they were all
consulted and their interests were taken into account before the 2018
Charter
was finalised and promulgated. For ease of reference these
two sets of parties can be referred to as community parties.
[20]
The first respondent established a Mining Charter
Transformation Team (MCTT), which consisted of officials from his
department as
well as representatives from organised labour and
organised business – referred to as “
social partners
”
by the first respondent (the social partner parties). The mandate of
the team, it is not disputed, was “
to re-open discussions
and engagements on the Mining Charter with a view to develop a
Charter that advanced both growth and transformation
within the
mining sector.
” The applicant was part of the team. The
other parties were the Council for Geoscience (CGS), the South
African Mining Development
Association (SAMDA), and the trade unions
operating in the mining sector, namely, the Association of
Mineworkers and Construction
Union (AMCU), the National Union of
Mineworkers (NUM), Solidarity (Solidarity), and the United
Association of South Africa (UASA)
(the trade union parties).
Collectively they represent most, if not all, the employees
employed in the sector. These parties’
interests were taken
into account during the formulation of the 2018 Charter. At the same
time, by virtue of their participation
in the MCTT, they played a
significant role in its formulation.
The
non-joinder point and the conditional application
[21]
To recap. The respondents maintain that the parties referred
to in [18] and [20] above, would be prejudicially affected if we were
to grant the order sought by the applicant, but these parties have
not been cited by the applicant. It follows that they hold a
direct
and substantial interest in the matter. It is necessary for us to
take those interests into account, which can only be done
by
affording them an opportunity to be heard; those parties hold a legal
interest, thus making them necessary parties to the litigation.
The
point was pertinently raised in their answering affidavit. The
applicant vehemently disagreed with the submission, but
ex
abundante cautela
elected to bring the counter application.
[22]
The applicant’s case is that all the parties that are
necessary for a fair and exhaustive adjudication of the matter, and
for a just determination to be made, are before the Court. In its
written argument it claimed that the respondents’ non-joinder
challenge should be dismissed because the respondents failed to
identify which parties have a legal interest in the matter making
them indispensable to the proceedings. At best for the respondents,
it says, the respondents would want all the parties that stand
to
benefit from the provisions of the 2018 Charter to be joined to the
proceedings. These parties are too numerous and many of
them are
unidentifiable. It protests that under these circumstances it has
been left guessing who or which party/ies it failed
to join to the
proceedings. This claim was not, rightly in our view, pursued with
vigour during oral argument as it was clear that
the parties were
identified by the respondents in their papers. They are the ones
listed in [18] and [20] above. With regard to
these parties the
applicant says that they do not have a direct and substantial
interest in this matter. The parties may have a
passing interest in
the matter and therefore it may be convenient to include them.
However, their inclusion is not legally required
for the matter to be
fully ventilated and finally determined between it and the
respondents. Both it and the respondents have a
primary interest in
the matter, but the parties identified in [18] and [20] could only
have a secondary interest. They did not
promulgate the 2018 Charter
nor are they involved in enforcing it. They may have participated in
its formulation and they may even
potentially benefit from its
implementation, but that is insufficient to afford them a legal
interest in the matter: they are simply
not direct and substantial
enough to warrant them being joined to the proceedings.
[23]
It
was further contended by the applicant that these and any other
unidentified parties could only be said to have a
spes
[31]
arising from the provisions of the 2018 Charter. Having a
spes
does not give one a legal interest, so argued the applicant.
[24]
In modern terms a
spes
is understood to be a “
hope
or expectation
”. It is really a case of expectation that
something good or something that has been wished for will happen, and
in that sense
it is a case of looking forward to it happening. While
it is a wish or a hope of a forthcoming event, the right that may be
attached to it can be sold:
“
A
spes
can be sold; the prospect of a catch of fish can be sold;”
[32]
Or
even ceded:
“…
a right
or a spes may be saleable and yet not subject to attachment. …
[and hence] salary and even salary not yet due could
be ceded just
like any other incorporeal right or just as the chance (
spes
)
of any venture could be ceded.”
[33]
However,
it cannot be attached.
[34]
[25]
Understood in this sense, a
spes
, is restricted to a
specific legal person and to a specific thing. It is not general to
everyone and it is not open-ended. If
someone has a
spes
that can be ceded, it would as a matter of logic follow that that
person had acquired a direct and substantial interest in the
thing
that is expected to materialise. A
spes
can, therefore, in
certain circumstances constitute a legal interest in the hands of the
holder.
[26]
It would now be necessary to examine who the parties are that
are not joined to the proceedings and what interest do they have in
the proceedings.
The
community parties
[27]
The interest of the community parties referred to in [18] is
that the MPRDA confers rights upon them and the 2018 Charter makes
specific reference to community organisations in general in a quest
to give effect to those rights. Their interests are to be understood
in the context of who they are and what their complaint with the 2017
Charter was. These are:
i. MACUA represents a
number of communities. It has complained of not receiving benefits
form the mining of “
their
” land and of having to
“
bear the brunt of the health and environmental degradation
and impact of mining.
” A similar complaint was raised by
the community organisation, MEJCON. Another organisation, WAMUA, is a
women’s movement
within the MACUA structure. Its concern is
that women are marginalised by the mining industry in general and
that women’s
interests, in particular, are downplayed, if not
ignored, when mining rights are issued. During the process of
formulating the
2018 Charter the three community organisations joined
forces by raising common concerns, or by supporting each other’s
concerns
by emphasising the symbiotic relationship between their
respective individual ones.
ii. The Sefikile,
Lesethleng, Babina Phuthi Ba-Gamakola and Kgatlu are communities
which, in their words, “
are directly affected by the mining
or prospecting operations around them.
” Their respective
interests are to be understood in the context of who they are and how
they are affected by mining operations
in general, and by the rights
conferred upon them by the MPRDA and the 2018 Charter. These are:
a.
The Sefikile community is composed of approximately 4000 people who
live and farm on land purchased by their ascendants in 1910.
Since
1946 mining operations have been under the hand of a company that is
a member of the applicant, Anglo Platinum. These operations
take
place on approximately 40% of the land. The community has complained
that a majority of its members live in poverty, are unemployed
and
struggle to meet their basic needs.
b.
The
Lesethleng community
[35]
is
composed of approximately 40 families who collectively own the
Wilgespruit farm, which their ascendants purchased in 1918. In
2011
the Department of Mineral Resources granted a mining right to a
member of the applicant, Pilanesburg Platinum Mines. One of
their
complaints with the 2017 Charter was that it did not “
strengthen
the surface rights of hosting communities.
”
The 2018 Charter remedies this.
c.
The Babina Phuthi Ba Ga-Makola community is composed of 134
households. It claims to hold land rights on three farms (Boshkloof
331 KT, De Goedeverwachting 332 KT and Mooimeisjesfontein 363 KT)
from which they were forcefully removed in 1957. They presently
have
a land claim over the farms. In the meantime, prospecting and mining
rights to the mining and mineral resources on the farm
have been
granted to three companies, the Eastern Platinum, the Southern Sphere
Mining and Development Company and to SAMANCO Ferrochrome.
Members of
the community are “
scattered
” in the area
surrounding the farms. They called for the 2018 Charter to empower
them by conferring rights on hosting communities,
which they intend
to take advantage of.
d.
The Kgatlu community is composed of 100 families. It owns a farm
(Goedetrouw farm). A local subsidiary of a publicly traded company
listed on the Toronto Stock Exchange, Platinum Group Metals, has
succeeded in obtaining prospecting rights over the mineral resources
located on the land. As a hosting community it made common cause with
the other three communities.
iii. Both sets of
communities qualify as mine hosting communities in the 2018 Charter.
This is so because they either own or reside
on land where mining
operations take place, or they own or reside on land bordering the
mining operations.
[28]
In
Maledu
the Constitutional Court observed:
“…
given the
invasive nature of a mining right, there can be no denying that when
exercising her rights, the mining right holder, would
intrude into
the rights of the owner of the land to which the mining right
relates. And the more invasive the mining operations
are the
greater the extent of subtraction from a landowner’s dominium
will it entail. On their own version, the respondents
accept
that it is not possible for them to undertake their mining operations
whilst the applicants remain in occupation of the
farm. It must
follow from this that the applicants will be deprived of their
informal rights to the farm if the order evicting
them from the farm
were allowed to stand. “
[36]
[29]
The observation is particularly pertinent here. It amplifies
the respective competing rights and interests of the applicant and
the hosting communities. It is not disputed that the 2018 Charter
re-balances these competing rights and interests .
[30]
In their intervention application in the 2017 matter, these
communities maintained that they have a direct and substantial
interest
in the Charter and that they have factual and legal material
which needs to be brought to the attention of the Court so that the
matter can be fairly adjudicated. They claimed then that:
“
Justice cannot be
done, if only the perspective of big business and government are
presented to the Court.”
[31]
As a
result, the 2018 Charter conferred certain rights on community
organisations. These are intended to address the concerns of
these
community organisations. It is furthermore not disputed that all
these rights derive directly from the first respondent,
inter
alia
,
respecting the injunction imposed upon him to “
set
the framework for targets and time table for effecting the entry into
and active participation of historically disadvantaged
South Africans
into the mining industry, and allow such South Africans to benefit
from the exploitation of the mining and mineral
resources and the
beneficiation of such mineral resources.
”
[37]
These rights would be destroyed if the order sought by the applicant
is granted, thus endowing them with a legal interest in the
matter.
The
social partner parties
[32]
The trade union parties, too, share the same interests as the
community parties. They have enjoyed a distinct and unique role in
the formulation of the 2018 Charter. The applicant recognises them as
being indispensable to the sector. Like the trade union parties,
SAMDA played a prominent role in the formulation of the 2018 Charter.
It represents,
inter alia
, the interests of BEE entrepreneurs,
which by definition consists of the “
historically
disadvantaged persons
” referred to in s 100(2) of the
MPRDA. Its mission statement reads:
“
SAMDA’s
vision is to be the vehicle for the development of a vibrant and
sustainable junior mining sector which contributes
towards the growth
and prosperity of the mining industry. Its mission is: to create an
enabling environment for: raising finance;
developing technical and
other skills; practicing responsible environmental management and
sustainable development; and the maintenance
of standards of good
practice in the junior mining sector to lobby; government; organised
labour; and other stakeholders and institutions
to
promote mutual understanding to encourage local and international
investment to conduct research to understand the sector’s
needs
to promote beneficiation to build African and global alliances and to
facilitate the transformation of the mining industry
by promoting
emerging junior mining operations and those who are historically
disadvantaged
.”
[38]
(Emphasis added)
[33]
In
terms of the 2018 Charter host communities, members of the trade
unions (“qualifying employees”) and BEE entrepreneurs
acquired the right to benefit when new mining rights are granted, and
when existing rights are renewed or transferred.
[39]
The trade union parties, members of SAMDA and the host communities
are endowed with rights to share in the ownership of the mining
companies that are represented by the applicant. The 2018 Charter
insists that a minimum of 30% of the shareholding of these companies
should be transferred to persons from “
previously
disadvantaged groups
”
and prescribes the manner in which this shareholding should be
distributed. The prescriptions essentially confer rights
on the trade
union parties and the members of SAMDA. These issues of ownership are
central to the merits of this application,
[40]
and if the order is granted the rights that inhere in the prescribed
30% shareholding of the “
previously
disadvantaged groups
”
would be destroyed. The loss of these rights is no trivial matter to
these parties. It follows that they have a direct,
real and
substantial interest in the matter - a legal interest to be exact.
[34]
On this analysis it is crystal clear that we are not persuaded
by the contention that these parties simply have a
spes
derived from the 2018 Charter. It would only be a
spes
if the
provisions of the 2018 Charter were not implemented. In our judgment,
the 2018 Charter confers rights upon them and does
not leave them
with a mere “
hope or expectation
”.
[35]
The interests of stakeholders falling within these three
categories are protected in the 2018 Charter irrespective of whether
it
is law or policy. And, if these interests are considered in light
of the greater context of the Constitution and the MPRDA, then,
in
our view, these interests qualify as “
direct and substantial
legal interests
” in this litigation. It is ineluctable in
our view, that in the event that the applicant is successful in
obtaining an order
setting aside the challenged clauses, whatever
interests and rights conferred by the 2018 Mining Charter onto these
parties will
cease to exist. The order will therefore adversely
affect the interests of these parties and of any member represented
by these
parties. Thus, even though in strict legal terms the
judgment and order granting the relief sought by the applicant would
not be
res judicata
(a matter already judged) in relation to
these parties, they would nevertheless be unable to revive their
rights unless another
court of equal standing was to pronounce that
the present relief sought was not competent. In which case there
would be two conflicting
judgments on the same issue, and that is
most undesirable. It creates judicial uncertainty which is neither in
the interests of
the parties here, nor in the general public
interest.
[36]
We accept that there may be numerous other stakeholders,
especially those that would belong to the community parties, which on
our
analysis would be able to make out a case that they have a direct
and substantial interest in this litigation. But their existence
should not preclude the parties identified in [18] from being
included in this litigation. They are the parties that have taken
the
initiative, shown a deep level of interest and participated in the
formulation of the 2018 Charter. They have not only demonstrated
that
they have rights that require protection in the 2018 Charter, they
have through great effort and expense actually exercised
those
rights. Their exclusion from the litigation not only impoverishes the
proceedings but could result in them suffering harm
should the orders
sought by the applicant be granted. The same would apply to the
social partner parties.
[37]
The applicant contended that these or
any other party claiming to have an interest in the matter could take
advantage of the rule
16A notice and seek permission to enter the
proceedings as an
amicus curiae
.
This, it claimed, cured the defect of non-joinder. The respondents
raised a number of issues concerning the non-compliance with
the
provision of rule 16A by the applicant, which it says, effectively
sterilised the notice. For the reason that follows, we do
not believe
it is necessary to engage with this contention. They also contended
that the notice, as is the case in all rule 16A
notices, is bare in
substance in that it does not cover the evidence that is relied upon,
nor does it detail the legal submissions
that the applicant wished to
make. For this reason, they say, it does not cure the defect of
non-joinder.
[38]
In our judgment a rule 16A notice is not
and can never be a substitute for joining a necessary party to the
proceedings. A party
that stands to be prejudiced by an order has a
legal right to be joined to the proceedings so that it can protect
its interests.
It must be specifically identified, and the papers
must be properly served upon it. A rule 16A notice, which requires it
to apply
to be admitted as
amicus
curiae
, does not do this. More
importantly, even if the parties identified in [18] and [20] above
were to seek admission as
amicus
curiae
they bear the risk of only
being admitted “
upon such
terms and conditions as may be agreed upon
in writing
by the parties
” or by the court. In both cases they bear
the risk of being severely restrained in their ability to influence
the outcome
of the proceedings. This is because:
“
[5]
The role of an
amicus
is to draw the attention of the court to relevant matters of law and
fact to which attention would not otherwise be drawn. In return
for
the privilege of participating in the proceedings without having to
qualify as a party, an
amicus
has a special duty to the court. That duty is to provide cogent and
helpful submissions that assist the court. The amicus must
not repeat
arguments already made but must raise new contentions; and generally
these new contentions must be raised on the data
already before the
court. Ordinarily it is inappropriate for an
amicus
to try to introduce new contentions based on fresh evidence.”
[41]
[39]
Furthermore,
should any of the community or social partner parties succeed in
being admitted as an
amicus
,
it would be denied the opportunity to bring controversial evidence to
court. All its evidence would have to be common cause for
it to be
admissible.
[42]
It would
consequently endure disadvantage which not only prejudices it but
would also preclude the court from fully and fairly
determining the
issues before it. In the latter case, the submission made in their
intervention application that justice would
not be served if only the
voices of “
big
business and government
”
are heard is valid.
[40]
Accordingly, we find that the rule 16A
notice has no bearing on the issue of non-joinder.
[41]
Finally, the applicant submits that if
it failed on the non-joinder point, its conditional application
should be granted. We agree.
The conditional application asks that we
identify which parties must be joined and how the pleadings should be
served on these
parties. The request is not unreasonable. The parties
we say should be joined have clearly identified themselves in the
previous
litigation. In the case of the community parties, their
contact details have been furnished. They were satisfied with having
all
pleadings being served on their respective attorneys, CALS which
is located at the University of the Witwatersrand, and Lawyers
for
Human Rights. As for the social partner parties the applicant has
dealings with all of them, save for SAMDA. The details of
SAMDA
should be known to the applicant or can easily be ascertainable given
its involvement in the MCTT. In any event, the attorneys
for the
respondent could assist in this regard.
[42]
There is the issue of the
dies
that would apply to pleadings. We are presently experiencing
difficult social circumstances brought upon by the outbreak of a
pandemic in the world which has resulted in all of us being unable to
operate under circumstances we are normally acquainted with.
The
provisions of the
Disaster Management
Act, 57 of 2002
have been
implemented nationally. They have fundamentally disrupted normal
social life. For this reason, we hold that it is necessary
for us to
heed this fact when determining the
dies
that should apply to the pleadings.
Costs
[43]
Both parties agreed that costs should follow the result, and
that employment of two counsel was justified and that success in the
conditional application should have no bearing on the cost order. In
the circumstances the order will reflect this common ground.
General
[44]
The hearing in this matter took place remotely. It was made
possible by the co-operation that occurred between the legal
representatives
of the parties. It was also made possible by the
professional manner in which the entire matter was prepared and
presented. We
take this opportunity to express our gratitude to all
of them.
Order
[45]
In the circumstances the following order is granted:
1. The following parties
must be joined as respondents (the joined respondents) in this
application:
1.1. MACUA (Mining
Affected Communities United in Action); WAMUA (Women Affected by
Mining in Action); MEJCON (Mining and Environmental
Justice Community
Network of South Africa);
1.2. Bakgatla Ba Sefikile
Community; Lesethleng Community; Babina Phuti Ba Ga-Makola Community
and Kgatlu Community;
1.3. AMCU (The
Association of Mineworkers and Construction Union); UASA (United
Association of South Africa); NUM (National Union
of Mineworkers);
Solidarity; SAMDA (South African Mining Development Association);
2. All pleadings filed of
record are to be served upon the parties referred to in paragraph 1
above within 15 days of date of this
order;
3. Pleadings must be
served in the following manner:
3.1. on MACUA, WAMUA,
MEJCON by handing a copy of the pleadings to a responsible employee
or official at the main office of the
Centre for Applied Legal
Studies at the School of Law of the
University
of the Witwatersrand
;
3.2. on AMCU, UASA, NUM,
Solidarity and SAMDA by handing a copy of the pleadings to a
responsible employee or official at the main
office of each of these
parties;
3.3. on the Bakgatla Ba
Sefikile Community; Lesethleng Community; Babina Phuti Ba Ga-Makola
Community and Kgatlu Community by handing
a copy to a responsible
employee or official at the main office of the Lawyers for Human
Rights.
3.4. This order and the
amended Notice of Motion must also be published in a national
newspaper.
4. The joined respondents
referred to in paragraph 1 above, are afforded 15 days from the date
of publication or receipt of service
of the pleadings whichever
occurs later, within which to deliver a Notice of Intention to
Oppose;
5. Answering affidavits
must be filed within one month of notifying the applicant of the
intention to oppose.
6. The applicant and the
first and second respondents may file replying affidavits to the
answering affidavits of the joined respondents
within 15 days of
receipt of the answering affidavits
7. The applicant is to
pay the costs of the application, which costs are to include those
occasioned by the employment of two counsel.
________________________________
D
Mlambo
Judge
President of the Gauteng Division of the High Court
________________________________
B
Vally
Judge
of the Gauteng Division of the High Court
________________________________
E
van der Schyff
Judge
of the Gauteng Division of the High Court
Date
of the hearing:
5 May 2020
Date
of Judgment:
30 June 2020
Appearances:
Counsel
for the Applicant:
Adv. CDA Loxton SC with Adv. JL Gildenhuys
SC and Adv. L Sisilana
Instructed
by:
Norton Rose Fulbright South Africa Inc.
Counsel
for the Respondents: Adv. CHJ
Badenhorst SC with Adv. LI Schäfer
Instructed
by:
The State Attorney
[1]
Act 28 of 2002.
[2]
Government Notice 1002, Government Gazette No. 41934, dated 27
September 2018, and amended by the Amendment in Government Notice
1421, Government Gazette No. 42130, dated 20 December 2018.
[3]
This Charter is titled “
Reviewed
Broad Based Black-Economic Empowerment Charter for the South African
Mining and Minerals Industry
”
and it was promulgated on 15 June 2017 by publication in Government
Notice 581, Government Gazette No 40923. Both attend
to the same
subject matter and are both promulgated in terms of s 100(2) of the
MPRDA.
[4]
Chamber
of Mines of South Africa v Minister of Mineral Resources and Others
2018 (4) SA 581 (GP)
[5]
The applicant claims that it is only some of the grounds that are
the same. However, when asked which grounds were different,
it was
unable to elucidate.
[6]
Act. 3 of 2000.
[7]
Noting that South Africa constitutes a single, sovereign democratic
state, s 1(c) of the Constitution prescribes that “
the
supremacy of the Constitution and the rule of law
”
be one of its founding values.
[8]
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637 (A.D.).
[9]
Bekker
v Meyring, Bekker’s Executor
(1828-1849)
(2) Menzies 436.
[10]
Amalgamated
Engineering Union
,
n 8, at 651.
[11]
Id at 653.
[12]
Id at 659-660.
[13]
Amalgamated
Engineering Union
,
n 8, at 649;
Morudi
and Others v NC Housing Services and Development Co Limited and
Others
2019 (2) BCLR 261
(CC) at [32].
[14]
Bekker
,
n 9, at 442, quoted in
Amalgamated
Engineering Union
,
n 8, at 653.
[15]
United
Watch & Diamond Co (Pty) Ltd & Others v Disa Hotels Ltd &
Another
1972 (4) SA 409
(C) at 415E-F;
Rosebank
Mall (Pty) Ltd v Cradock Heights (Pty) Ltd
2004 (2) SA 353
(W) at [11].
[16]
National
Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and
Others
2015
(2) BCLR 182
(CC) paras [186]-[187];
International
Trade Commission v SCAW South Africa (Pty) Ltd
2012
(4) SA 618
(CC) paras [11]-[12];
Absa
Bank Ltd v Naude NO
2016
(6) SA 540
(SCA) par [10].
[17]
Pheko
and Others v Ekurhuleni City
2015
(5) SA 600
(CC) at par [56].
[18]
Gordon
v Department of Health, Kwa-Zulu Natal
[2008] ZASCA 99
;
2008
(6) SA 522
(SCA) at 529C.
[19]
Polokwane
Taxi Association v Limpopo Permissions Board and others
(490/2016) ZASCA 44 (30 March 2017) par [15].
[20]
S v
Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC) at
[262]
.
[21]
Agri SA
v Minister for Minerals & Energy
2013
(4) SA 1
(CC) at [2].
[22]
Agri
SA
,
n 20, at
[26];
Palala
Resources (Pty) Ltd v Minister of Mineral Resources and Energy and
Others
2014 (6) SA 403
(GP) at [57].
[23]
MPRDA
s 2(c).
[24]
MPRDA
s 2(d).
[25]
MPRDA
s 2(e).
[26]
MPRDA
s 2(f).
[27]
MPRDA
s 2(g).
[28]
MPRDA
s 2(i).
[29]
Agri
SA
, n
20 at [91].
[30]
See [14]ii and [14]iv above.
[31]
Spes was the goddess of hope in ancient Roman religion going as far
back as 5
th
century BC.
[32]
Mears v
Pretoria Eatate and Market Co
.1906,
T.S. 661 at 668.
[33]
Consolidated
Finance Co., Ltd v Reuvid
1912 TPD 1019
at 1023.
[34]
Mears
,
n 31 at 668.
[35]
The Lesethleng community was one of the applicants in
Maledu
v Itereleng Bakgatla Mineral
Resources
(Pty) Ltd
2019
(2) SA 1
(CC).
[36]
Id. at [102].
[37]
Section 100(2)(a) of the MPRDA.
[38]
http://www.samda.co.za/profile/
accessed on 4 June 2020.
[39]
Clauses
2.1.1.2; 2.1.1.4; 2.1.1.5; 2.1.1.6 and 2.1.3 of the 2018 Charter.
[40]
The issues converge around the phrase “
once
empowered, always empowered
”
commonly used by the parties. The phrase focusses on the ownership
of these companies.
[41]
In Re:
Certain amicus curiae applications: Minister of Health v Treatment
Action Campaign
2002 (5) SA 713
(CC) at [5].
[42]
Id at [8].