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[2010] ZAWCHC 196
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Swartland Municapality v Louw NO and Others (13703/09) [2010] ZAWCHC 196 (1 September 2010)
IN THE HIGH COURT OF
SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE
NO: 13703/09
Before the Honourable
Mr Justice A Le Grange
Wednesday
1 September 2010
In
the matter between:
SWARTLAND
MUNICIPALITY
…
...........................................
Applicant
and
HUGO WIEHAHN LOUW
N.O.
…..................................................
First
Respondent
CORNELIA JOHANNA
ELIZABETH LOUW N.O
….........................
Second Respondent
IGNATIUS
VIUOEN N.O
…...........................................................
Third
Respondent
IZAK BATHOLOMEAS VAN
DER VYFER N.O
….............................
Fourth Respondent
ELSANA
QUARRY (PTY) LTD
…....................................................
Fifth
Respondent
MINISTER
OF MINERALS AND ENERGY
…..................................
Sixth Respondent
MINISTER
OF LOCAL GOVERNMENTAL,
ENVIRONMENT
AND DEVELOPMENT
PLANNING,
WESTERN CAPE
…..................................................
Seventh
Respondent
ORDER:
[1]
There are two applications before me. The first is an application for
leave to appeal to the Supreme Court of Appeal by First
tot Sixth
Respondents against the whole of my judgment as delivered on the 21
st
of
December 2009, wherein I interdicting the Respondents from conducting
mining activities. The second, is an application by the
Applicant In
terms of rule 49(11) of the Uniform Rules of this Court for leave to
execute in the event that leave to appeal is
granted.
[2]
The test for granting leave to appeal is well-known. An Applicant
must show that there are reasonable prospects of success on
appeal.
[3]
In my judgment I held that the words
"any
relevant law/'
in
section 23(6) and section 25(2)(d) of the Mineral and Petroleum
Resources Development Act 28 of 2002 ("the MPRDA"),
include
the Land Use planning Ordinance No. 15 of 1985 (Cape) ("LUPO").
It was also held that if it did not, the proper
functioning of
municipalities to achieve integrated, sustainable and equitable
social and economic development in its area as a
whole would be
undermined.
[4]
Having heard counsel for the respective parties and having read the
papers filed of record, I cannot exclude the reasonable
possibility
that another court may come to a different interpretation in respect
of section 23(6) and section 25(2)(d) of the MPRDA
and that the words
"any
relevant laW
does
not include LUPO in the context of this case.
[5]
It follows that the application for leave to appeal should succeed to
the Supreme Court of Appeal as a result of the question
of law.
[6]
In respect of the second application, the Sixth Respondent abided by
the decision of this Court and the First to Fifth Respondents
opposed
the application.
[7]
It is trite that the Court to which an application for leave to
execute is made, has a wide general discretion to grant or refuse
leave. In the exercise of its discretion, the Court will have regard
to the following factors:-
7.1.
the potentiality of irreparable harm or prejudice being sustained by
the Appellant if leave to execute were to be granted;
7.2.
the potentiality of harm or prejudice being sustained by the
Respondent on appeal if leave to execute were to be refused;
7.3.
the prospects of success on appeal, including more particularly the
question as to whether the appeal is frivolous or vexatious
or has
been noted not with the
bona
fide
intention
of seeking to reverse the judgment, but for some indirect purpose;
7.4.
where there is the potentiality of irreparable harm or prejudice to
both Appellant and Respondent, the balance of hardship
or
convenience, as the case may be.
[8]
Having regard to the argument of counsel and weighing up all the
relevant factors, I am of the view that the potential of irreparable
harm and prejudice to the Applicant outweighs that of the
Respondents. Moreover, the fact that the Respondents may commit a
criminal
offence in pursuing their mining activities is a factor that
I cannot ignore. In lieu of the above, it is therefore just and
equitable
that the application for leave to execute should succeed.
[9]
In the result, the following order is made:-
Application
for leave to appeal is granted to the Supreme Court of Appeal with
costs to be costs in the appeal.
Application
for leave to execute in terms of rule 49(11) of the Uniform Rules of
this Court, is granted with costs. Costs to include
the costs
occasioned by the employment of two counsel.
Le Grange, J