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[2017] ZAECPEHC 41
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East Cape Game Properties (Pty) Limited v Brown and Others (2715/2016) [2017] ZAECPEHC 41; [2017] 4 All SA 414 (ECP) (29 August 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
Case No.: 2715/2016
Date
Heard: 10 August 2017
Date Delivered: 29
August 2017
In
the matter between:
EAST
CAPE GAME PROPERTIES (PTY)
LIMITED
Applicant
and
DUDLEY
GRAYAME
BROWN
First
Respondent
JOHNATHAN
DUDLEY BROWN
Second
Respondent
METRO
QUARRIES (PTY)
LIMITED
Third
Respondent
MINISTER
OF MINERAL
RESOURCES
Fourth Respondent
NELSON
MANDELA METROPOLITAN MUNICIPALITY
Fifth
Respondent
JUDGMENT
EKSTEEN
J:
[1]
The
application (the main application) relates to the first to third
respondents entitlement to mine sand on portion 105 of the
Farm
Kragga Kamma 23 (the property) pursuant to mining permits issued in
terms of section 27 of the Mineral and Petroleum Resources
Development Act, 28 of 2002 (MPRDA). As against the first
respondent the applicant contends that he has continued mining
on the
property after the lapsing of his permit. The “use
rights” granted by the fifth respondent in respect
of the
property in accordance with the Cape Land Use Planning Ordinance, 15
of 1985 (LUPO) lies at the heart of the dispute with
the second and
third respondents. No relief is sought against the fourth and
the fifth respondents.
The
relief claimed
[2]
In the main
application the applicant seeks an interdict in the following terms:
“
1.
That the First Respondent be interdicted:
1.1
from conducting mining
operations for the removal of sand or any other substance on the
immovable property, … whether through
the agency of the Third
Respondent or in any other manner;
1.2
from entering upon the Property
whilst so interdicted, or from causing any other person or entity to
do so, save for the purposes
of fulfilling any component of this
Order, and then only with prior written authority from the Applicant.
2.
That the Second and Third Respondents be interdicted:
2.1
from using the Property for the purposes of the mining or removal of
sand or any other substance
therefrom, and from causing any other
person or entity to do so on their behalf, unless and until the
Property is zoned in a manner
permitting mining in which event this
interdict will lapse;
2.2
from entering upon the Property whilst so interdicted, and from
causing any other person
or entity to do so, save for the purposes of
fulfilling any component of this Order, and then only with prior
written authority
from the Applicant.”
[3]
In the
alternative the applicant seeks to interdict the second and third
respondents from conducting mining operations on the property
or
removing sand or other materials therefrom other than in compliance
with the relevant mining permit. For the reasons which
are set
out later herein it is not necessary to consider this relief.
[4]
The
application has been vehemently opposed. Answering and replying
papers were duly filed and the applicant proceeded, as
it was
entitled to do, to enrol the matter for hearing. This prompted the
belated lodging of a counter application. The primary
relief
sought in the counter application is, remarkably, an order dismissing
the main application. In the alternative, however,
the counter
application seeks an order in the following terms:
1.
Staying the
respondent’s (applicant in the main application) main
application pending:
1.1
the final
outcome of the review application to be instituted by the first to
third applicants not later than 29 May 2017 in terms
of the Promotion
of Administrative Justice Act, 3 of 2000 (PAJA) for the review and
setting asides and/or correcting the decision
of the Nelson Mandela
Bay Metropolitan Municipality or its predecessor, being the third
respondent (the fifth respondent in the
main application) made in
terms of LUPO in which the zoning of the property was determined
(“the zoning decision”);
and
1.2
the final
determination by the Minister of Mineral Resources, being the second
respondent (the fourth respondent in the main application)
of the
application in terms of section 47 of the Mineral and Petroleum
Resources Development Act 28 of 2000 in respect of mining
permit
number EC442015 held by the second applicant (the second respondent(
in the main application) in respect of the property.
2.
Ordering the suspension of the zoning decision and/or the issue
of the
zoning certificate, pending the final outcome of the review
application referred to above.
[5]
The counter
application is also opposed. Answering and replying affidavits
were duly filed in the counter application and
prior to the hearing
thereof the applicant in the main application gave notice of its
intention to move to strike out the entire
counter application,
alternatively to strike out portions of the founding and replying
affidavits therein. I shall revert
below to consider these
various applications to the extent that it is necessary in resolving
the dispute. For purposes of
this judgment the parties in the
various applications will be referred to as in the main application.
Background
[6]
The
applicant purchased the property from the first respondent’s
father in 2011. The declared intention of the applicant
in
acquiring the property was in due course to seek the rezoning of the
property for purposes of residential development.
[7]
At the time
of the purchase of the property there was a sand mine on the property
where the first respondent conducted mining activities
in accordance
with a permit duly issued in terms of section 27 of the MPRDA (the
first permit) on a small site (the first site).
The property
measures 86 hectares in extent and the maximum area of the first site
demarcated under the permit amounts to 1.5 hectares.
The first
permit was due to expire in December 2015 and accordingly posed no
difficulty to the applicant’s intentions with
the property.
[8]
The
contract concluded between the applicant and the first respondent’s
father recorded at the time that the acquisition of
the property is
“subject to all third party rights to the quarry”.
It is not in dispute that the reference to
the quarry is intended to
refer to the sand mine. As set out earlier herein the only
“rights” which existed at
the time was the first permit.
It is common cause that the first permit has now lapsed. There
is some dispute on the
papers as to precisely when the first
respondent’s rights under the first permit terminated, however,
nothing turns on this
dispute.
[9]
In the
latter part of 2014 the second respondent too applied for a mining
permit (the second permit) on the property. The
second permit
was duly authorised for the mining of sand on a demarcated area on
the property (the second site). The
second site was
2,5 hectares in extent. Early in 2015 the applicant and the
first respondent entered into an agreement which
recorded,
inter
alia
,
that the applicant wished to take over the existing and future mining
activities of the first and second respondents and, on completion
of
such mining activity, to rezone the land and develop the property for
residential purposes. There is some dispute between
the parties
as to whether the first permit was in existence at the time, however,
the agreement records that the first respondent
held a mining permit
at the time for which an application for final renewal had been
lodged. The second respondent’s
application for approval
of the second permit was pending at the time. In terms of the
agreement the applicant would take
full control of the physical
mining and rehabilitation activities and would pay the first and
second respondents a royalty for
sand mined within the mining area.
[10]
The
applicant commenced to fulfil its obligations under the agreement and
continued to mine sand for a period in accordance with
the
agreement. Although there is some dispute between the parties
as to the reasons for the termination of this agreement
it is common
cause that the agreement was terminated during or about January 2016.
[11]
During 2015
one Watson, the deponent to the founding affidavit in the main
application, acquired the shares in the applicant.
At the
termination of the said agreement he instructed attorneys to advise
him in respect of the rights held by the first and second
respondent. An application in terms of the
Promotion of Access
to Information Act, 2 of 2000
was delivered to obtain documentation
from the Department of Mineral Resources. Copies of the first
and second permits together
with the applications for the granting of
such permits and the approved Environmental Management Plans in
respect of the respective
permits were obtained in accordance with
the said legislation. It emerged from the documentation in
respect of the first
permit that the first permit had lapsed and that
the first respondent had no mining rights under the permit.
[12]
The main
application was launched on 5 August 2016. As against the first
respondent the applicant contended that the first
respondent was
still mining on the first site notwithstanding the lapse of the first
permit. In respect of the second respondent
it is contended
that the property is zoned agricultural zone 1 in terms of the
applicable zoning scheme of the fifth respondent.
Notwithstanding averments contained in the answering papers in the
main application it was common cause in argument before me that
mining is not permitted as a primary or a consent use on property
zoned agricultural zone 1 in terms of the applicable zoning scheme.
In the circumstances, notwithstanding the grant of the mining permit
it would be unlawful to mine on the property unless and until
the
property is zoned so as to permit mining. (See
Maccsand
(Pty) Ltd v City of Cape Town and Others
2012 (4) SA 181
(CC).) Hence the launching of the main
application.
The
main application as against the first respondent
[13]
The dispute
in the main application as against the first respondent turns on the
narrow issue as to whether the first respondent
continued mining on
the first site pursuant to the first permit after the lapse of the
first permit and the lodging of the main
application. I have
alluded earlier to the dispute which exists between the parties in
respect of the date of the lapsing
of the final extension of the
first permit. The final extension of the first permit for a
period of one year occurred in
December 2014 and the first permit
accordingly lapsed in December 2015. The first respondent
alleges, however, that he was
first notified of the final extension
of the first permit during April 2015. He accordingly alleges
that the permit lapsed
in April 2016. The dispute is immaterial
as the application for an interdict was launched in August 2016.
Clearly the
first respondent can only be interdicted from a
continuing infringement which existed, or was anticipated, at the
time of the launching
of the main application.
[14]
The first
respondent, although contending that the first permit only came to an
end in April 2016, denies that he has at any time
continued mining
activities in terms of the first permit on the first site after April
2016. The foundation for the applicant’s
contention is to
be found in a report drawn by Dr Clark, who carried out an inspection
of the property in order to ascertain whether
the mining activities
were being conducted within the terms of the mining permits.
She noted what she considered to be mining
activities on the first
site which was clearly conducted after the lapse of the permit.
The first respondent does not deny
that activity was conducted on the
first site after the lapse of the permit but avers that it related to
the rehabilitation of
the site which he was obliged to carry out
after the lapse of the permit in terms of the Environmental
Management Plan approved
for the site. To that extent there is
a factual dispute between the parties in respect of the first
respondent’s activities
at the time that the main application
was launched.
[15]
It is now
well settled that where in proceedings on notice of motion disputes
of fact have arisen on the affidavits, a final order,
whether it be
an interdict or some other form of relief, may be granted if those
facts averred in the applicant’s affidavits
which have been
admitted by the respondent, together with the facts alleged by the
respondent, justify such an order. (See
Stellenbosch
Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd
1957 (4) SA 234
(C) at 235E-G; and
Plascon-Evans
Paints Limited v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(AD) at 634H-I.) In
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
,
supra
,
however, Corbett JA proceeded to state at 634I-635C:
“
The
power of the Court to give such final relief on the papers before it
is, however, not confined to such a situation. In certain
instances
the denial by respondent of a fact alleged by the applicant may not
be such as to raise a real, genuine or
bona
fide
dispute of fact … If in such a case the respondent has
not availed himself of his right to apply for the deponents
concerned to be called for cross-examination under Rule 6(5)
(g)
of the Uniform Rules of Court … and the Court is
satisfied as to the inherent credibility of the applicant's factual
averment, it may proceed on the basis of the correctness thereof and
include this fact among those upon which it determines
whether
the applicant is entitled to the final relief which he seeks …
Moreover, there may be exceptions to this general
rule, as, for
example, where the allegations or denials of the respondent are
so far-fetched or clearly untenable that the
Court is justified in
rejecting them merely on the papers ….”
[16]
I do not
consider the averments on behalf of the first respondent to be so
far-fetched or clearly untenable as to be rejected merely
on the
papers. It seems to me that a real, genuine or
bona
fide
dispute of fact has indeed been raised in respect of the activity of
the first respondent. Neither party has requested that
oral
evidence be heard in respect of the prayers as sought against the
first respondent and I do not think that the dispute can
be resolved
on the papers. In these circumstances I do not consider that it
can be held, accepting the approach set out in
the authorities to
which I have referred, that the first respondent has conducted any
mining activity since April 2016. The
application as against
the first respondent can therefore not succeed.
The
main application as against the second and third respondent
[17]
In respect
of the second and third respondents the applicant alleges that the
property falls within that portion of the fifth respondent’s
area of jurisdiction which prior to the establishment of the fifth
respondent in December 2000 fell under the jurisdiction of the
erstwhile Western Districts Council. It contends that the
property is zoned for agricultural zone 1 purposes as reflected
in
the records of the fifth respondent. The scheme regulations
published in accordance with section 8 of LUPO in December
1988
provides that the primary use of property zoned agricultural zone 1,
is “agriculture” with the secondary or consent
uses being
“additional dwelling units, farm store, farm stall, intensive
feed farming, riding school, nursery, service trade,
tourist
facilities”.
[18]
“
Mining”
is specifically provided for elsewhere in the zoning scheme
regulations only on property zoned “industrial zone
3”.
“Mining” is therefore not permitted on any property not
zoned “industrial zone 3”.
Applicant accordingly
contends that the mining activities conducted by the second
respondent, and the third respondent on behalf
of the second
respondent, in terms of the second permit, is unlawful.
[19]
In support
of the factual allegation that the property is zoned “agricultural
zone 1” the applicant’s founding
affidavit records that a
copy of an informal town planning enquiry issued by the fifth
respondent which reflects the said zoning
of the property “is
attached” to the affidavit. It was in fact not
annexed. The applicant contends
that this omission occurred due
to a
bona
fide
oversight. The oversight has no impact on the application for
the first to third respondents delivered a notice in terms
of the
provisions of rule 35(12) of the Uniform Rules of Court (“the
rules”) prior to the filing of the answering affidavit
to
request a copy of the informal town planning enquiry. It was
duly provided. The respondents were accordingly in
possession
of the informal enquiry at the time that the answering affidavit was
filed.
[20]
It is
necessary to consider the respondents’ stance as set out in the
answering affidavit to the allegations of zoning.
In the
answering affidavit on behalf of the respondents the respondents
state:
“
24.1
Firstly
,
the Applicant’s entire application is based on the premise that
Portion 105 is zoned “
Agriculture
1
”, in fact it
accepts that this as a
fait
accompli
. This,
however, is incorrect:
24.1.1 I am advised
that in motion proceedings the Applicant is required to set out its
case together with the
relevant supporting documentation in its
founding affidavit. This is necessary to afford the Respondents
an opportunity to
consider their position and to respond thereto.
There is no documentary evidence whatsoever supporting the
Applicant’s
allegations regarding the zoning of Portion 105.
24.1.2 …
24.1.3 ...
24.1.4 The First to
Third Respondents’ attorneys also made enquiries with the Fifth
Respondent as to the
correct zoning of the Portion 105, but have not
received any response yet. …;
24.1.5 I also point
out that because mining operations had been conducted on Portion 105
for a number of years
by my father, I was under the impression that
the use of Portion 105 for mining was permitted;
24.1.6 The Applicant
cannot deny this ….
24.1.7 It is also
clear from clause 13.3 of the Agreement of Sale which the Applicant
concluded with my father,
that the rights of third parties to mine
the sand quarries were preserved.
24.1.8 … I
reiterate that the Applicant does not place any documentary evidence
before the court to substantiate
the allegation that Portion 105 is
zoned Agriculture 1 and the First, Second and Third Respondents deny
that re-zoning is required
for the conduct of mining operations
thereon.
…
.
24.1.12 This I am advised will
constitute an abuse of this honourable Court’s process as the
Applicant effectively asks
the court to grant an order that will
constitute a contravention of the provisions, and that will frustrate
the objectives, of
the MPRDA
…
24.1.13 My legal advice is
further that the use of land for mining enjoys preference over other
uses. In this regard
I respectfully refer the honourable
Court’s attention to the provisions of sections 5(3) and 27(7)
of the MPRDA which grants
to the holder of a mining permit, the
express statutory right to use the land to mine and for purposes
incidental to mining.
24.1.14 …
24.1.15 …
24.1.16 As a precaution, and
although I had no confirmation of what the zoning of Portion 105 was,
I had previously requested
the Applicant to apply for a change of the
zoning to permit mining to the extent that it was not permitted.
The Applicant,
however, refused. Because the Applicant itself
and through the Third Respondent proceeded to mine the first quarry
in 2015,
I was under the impression that at the very least, the use
of Portion 105 for mining purposes was permitted.
24.1.17 … the First to
Third Respondents deny that the zoning of Portion 105 and at the very
least those portions where
the quarries are situated does not permit
mining …”
[21]
In response
to this challenge, the applicant called upon the fifth respondent to
designate an official to provide an affidavit for
purposes of the
main application confirming the correct zoning of the property to be
“agriculture 1”. The fifth
respondent adopted a
somewhat peculiar stance to this request. It refused to permit
any official to provide an affidavit
in respect of the correct zoning
by virtue thereof that it had not entered an appearance in the main
application and were accordingly
not embroiled in the application.
They did, however, provide a certificate signed by the Executive
Director: Human Settlements.
The certificate is dated 17
November 2016 and headed zoning certificate. The certificate
records:
“
PORTION
105 OF THE FARM KRAGGA KAMMA NO. 23
It is hereby confirmed that the above
property is zoned Agricultural Zone 1 in terms of the Section 8
Zoning Scheme.
The permitted land uses and
development parameters are as stipulated in the attached Section 8
Zoning Scheme.”
[22]
The
applicant accordingly annexed the certificate to its replying
affidavits as further confirmation of the facts set out in the
founding affidavit.
[23]
The
position adopted by the respondent that the use of land for mining
enjoys preference over other uses is clearly misguided.
Ms
Higgs
,
who appeared on behalf of the respondents, did not persist in this
argument. The issue has authoritatively been decided
by the
Constitutional Court in the matter of
Maccsand
supra
.
The sole basis of the opposition to the main application, ignoring
for the moment the counter application, is that the applicant
has
failed to make out a case that the property is zoned “agricultural
zone 1” as the applicant has annexed no documentation
to the
main application to establish this fact.
[24]
The counter
application was delivered in February 2017, nearly three months after
the replying papers. In the founding affidavit
to the counter
application the respondents put up a very different case to that
which was contained in the answering affidavit
in the main
application as a basis for its main relief, namely that the main
application should be dismissed. To this extent the
counter
application is clearly an abuse of the court process. A party
seeking to oppose relief sought by way of application
is required to
do so in its opposing papers.
[25]
In the
founding affidavit to the counter application, however, the
respondents’ state:
“
[I]n the event that this
counter-application is dismissed, with leave of this Honourable
Court, I ask that this affidavit be accepted
as a duplicating
affidavit and I respectfully request permission of this Honourable
Court to file this affidavit. The First to
Third Applicants do not
have an option but to deal with the new evidence that (the Applicant)
only sought to introduce in its replying
affidavit. … The
issues realised by (the Applicant) for the first time in its replying
affidavit, in particular the alleged
zoning of Portion 105, required
extensive research from our attorneys of record as (the Applicant)
failed to lodge the necessary
supporting documentation to its
replying affidavit.”
[26]
I am
unfamiliar with the term “duplicating affidavit” but I
can only assume that the respondents intended to seek the
leave of
the court to file the founding affidavit in the counter application
to serve also as a fourth set of papers in the main
application.
I shall refer to this affidavit as respondents’
fourth affidavit for purposes of the main
application. The
grounds advanced for doing so is the allegation that the zoning
certificate ought to have been contained
in the founding papers and
that the interest of justice required that the fourth affidavit be
received. I pause to record
that no condonation was sought for
the filing thereof when the application was argued. By virtue
of the conclusion to which
I have come and without making any finding
as to its admissibility for purposes of the main application I shall
nevertheless have
regard to its content.
[27]
In the
fourth affidavit the first respondent, on behalf of the respondents,
contends that he started mining sand on the property
when his father
retired in approximately 1997. Sand mining, he alleges, has
continuously been conducted on the property by
his father since at
least 1974. On this ground it is alleged that the factual
utilisation of the property as on 1 July 1986
(when LUPO came into
force) was that it was used for purposes of operating a sand quarry.
[28]
The
significance of these averments are to be found in the provisions of
LUPO. When LUPO came into force as aforesaid, all
property
which fell within the jurisdiction of local authorities was broadly
divided into two categories. Section 7 of LUPO
provided that
any town planning scheme in terms of the Townships Ordinance 1934,
which in the opinion of the administrator was
in force immediately
prior to the commencement of LUPO, would be deemed to be a zoning
scheme which was in force in terms of LUPO.
Section 8 of LUPO
provided for the administrator to make scheme regulations as
contemplated in section 9 of LUPO which would be
in effect from the
date of the commencement of LUPO in respect of all land situated in
the Province of the Cape of Good Hope to
which the provisions of
section 7 do not apply. It is common cause that the property
was not governed by section 7 of LUPO.
The scheme regulations
published in 1986, and amended in 1988, therefore apply to the
property.
[29]
Section
14(1) of LUPO provided that with effect from the date of the
commencement of LUPO all land referred to in section 8 shall
be
deemed to be zoned in accordance with the utilisation thereof as
determined by the council concerned. Section 14(3) of
LUPO
proceeded to provide that when land is deemed to be zoned as
contemplated in subsection (1) the most restrictive zoning permitting
of utilisation of the land concerned either in conjunction with a
departure or not, as the council concerned may determine, shall
be
granted.
[30]
The process
envisaged by section 14 of LUPO is a two-step procedure. In the
first instance the local authority is required
to objectively and
factually determine what the actual use of the property was as at 1
July 1986. This is a purely factual
enquiry. Once it has
factually “determined” the “utilisation” of
the land as at the relevant date
in terms of section 14(1), it is
required to “grant” a zoning selected from the zones
provided for in the scheme regulations
“permitting the
utilisation of the land concerned” which is “the most
restrictive zoning” in terms of section
14(3). (See
Hangklip
Environmental Action Group v Minister Agriculture, Environmental
Affairs and Development Planning, Western Cape and Others
2007 (6) SA 65
(C) at 72E-G.) This may involve the exercise of
a discretion.
[31]
On the
strength of the averments contained in this fourth affidavit the
first to third respondents contend that the granting of
a zoning
certificate in respect of the property pursuant to section 14 of LUPO
which does not permit mining would therefore be
unlawful and
consequently reviewable.
Application
of the legal principles to the main application
[32]
In order
for the applicant to succeed in obtaining an interdict it is required
to establish a clear right, an injury actually committed
or
reasonably apprehended and the absence of a satisfactory alternative
remedy.
[33]
It is
equally well-established that in application proceedings affidavits
fulfil the functions of both pleadings and evidence in
the matter.
An applicant is required to make out his case in his founding papers
and where he states a bald allegation of
fact this is done at the
applicant’s own risk since he will usually not be permitted to
set out a more complete case in reply.
(See for example
Riddle
v Riddle
1956 (2) SA 739
(C) at 748; and
Van
Aswegen v Pienaar
1967 (1) SA 571
(O).) It may also be necessary for the
applicant to refer to documents in his affidavit. If the
existence or content
of such document is admissible and essential to
his case, he should attach the document as an annexure to his
affidavit unless
he has reason to believe that the facts contained in
it will not be disputed. (See
Gemeenskapsontwikkelingsraad
v Williams and Others (2
)
1977 (3) SA 955
(W).) The requirement of completeness in the
founding affidavits must yield to circumstances, for example, when a
denial
of a fact set out in the founding affidavit could not
reasonably have been expected. (See
Park
Gebou-Beleggings en Wynkelders Beperk v Rogers and Hart (Pty) Ltd
1954
(3) SA 109
(T);
Morgendaal
v Ferreira
1956 (4) SA 625
(T); and
Ebrahim
(Pty) Ltd v Mohamed
and
Others
1962 (1) SA 90
(N).)
[34]
On behalf
of the applicants it is contended that they could never have expected
the respondents to deny the actual zoning of the
property as it had
always appeared to be common cause. It is necessary to consider
the background which emerges from the
annexures annexed to the
founding affidavit in the main application as expounded upon in the
further affidavit filed by the applicant
in reply to the respondents’
fourth affidavit. The first respondent applied for the first
permit in approximately 2009.
He engaged one Van As to prepare
an Environmental Management Plan which was approved by the Department
of Mineral Affairs.
The first respondent counter signed the
Environmental Management Plan approved on 22 July 2009. He
declared:
“
I,
DG Brown, the undersigned, have studied and understand the contents
of this document in it’s entirety …” (
sic
)
[35]
In the body
of the Environmental Management Plan it records:
“
Current zoning is agriculture
and since mining is seen to be a temporary change of land use, no
application for change of land use
is required, the repealed Minerals
Act 50 of 1991 and the current MPRDA 28 of 2002 has replaced the
previous Physical Planning
Act.”
[36]
On 5
February 2013 the applicant’s attorney wrote to the first
respondent and again informed him that the property was zoned
for
agricultural purposes only and referred him to the Constitutional
Court authority in
Maccsand
supra
which contradicts the understanding of the first respondent set out
in his Environmental Management Plan of 2009. The letter
of the
applicant’s attorney was responded to by the said Van As on
behalf of the first respondent on 12 February 2013.
Van As did
not deny the zoning of the property but rather stated:
“
This property as well as the
abutting property have been mining areas since the late nineties and
has (sic) been identified as a
strategic farm for mining based on the
quality of sand and dwindling good sand reserves in Port Elizabeth.”
[37]
Further
letters were forwarded to the first, second and third respondents on
29 March 2016 by the applicant’s attorneys in
which their
attention was drawn in each case to the zoning of the property and
the unlawfulness of the mining. The zoning
was never disputed.
[38]
In these
circumstances I do not consider that the applicant could possibly
have anticipated that the respondents would deny the
zoning.
(Compare the authorities set out earlier.)
[39]
I have set
out the basis for the denial in the answering affidavit in the main
application earlier herein. It is, in my view,
no more than a
bald denial unsupported by any factual basis. The respondents
did not contend that the property is zoned otherwise
nor that the
zoning which does exist entitles mining to be conducted on the
property. The averments in the applicant’s
founding
affidavit remain largely uncontested. In these circumstances I do not
consider that the introduction of the zoning certificate
in the
replying affidavit introduces new matter and it certainly does not
expand on the case made in chief. It was perfectly
permissible
in the circumstances of the present case for the applicant to respond
to the answering affidavit by annexing the zoning
certificate in
reply.
[40]
It appears
moreover from the content of the respondents’ fourth affidavit
that the respondents have misconstrued the import
of the zoning
certificate. It does not confer any new rights which did not
previously exist but constitutes merely a verification
of the
correctness of the averment contained in the founding affidavit,
namely that the property is zoned as agricultural zone
1 as reflected
in the records of the municipality.
[41]
At the
hearing of the matter Ms
Higgs
submits that the zoning certificate provided is of no assistance to
the applicant and has no evidential value. The argument
is
founded on the manner in which the zoning certificate was acquired.
On 14 November 2016 the applicant’s attorneys
wrote to the
fifth respondent as follows:
‘
We represent East Cape Game
Properties Pty Ltd which has filed an application in the local High
Court for an interdict prohibiting
the Respondent from continuing
with mining activities on our client’s land, namely, Portion
105 of the Farm Cragga (
sic)
Kamma No 23 on the basis
that mining is in contravention of the zoning. The property is
zoned agricultural.
The Respondent disputes the zoning.
Prior to the proceedings we enquired from the Municipality as to the
zoning. We
were given the attached informal Town Planning
Enquiry Certificate, a copy of which is attached for your
information. It
confirms the zoning is “Agricultural”.
We require an Affidavit from the
official heading up the Planning Department confirming the property
is zoned “Agricultural”.’
[42]
On this
basis it is contended that the relevant official of the fifth
respondent who issued the zoning certificate confirming the
actual
zoning of the property reacted merely to the instruction of the
applicant to certify that the property was zoned “agricultural”.
There is no merit in this submission. As recorded earlier the
certificate is signed by the Executive Director: Human
Settlements.
It is apparent from the correspondence which I
have referred to that the certificate was required for purposes of
litigation.
The submission by Ms
Higgs
suggests that I am to assume that the official of the fifth
respondent misrepresented the actual zoning of the property at the
instance of the applicant knowing full well that it was to be
presented to this court as evidence. There is no basis in logic
or in law for me to do so.
[43]
The
municipal records recording the zoning of properties as granted
pursuant to section 14 of LUPO are, in my view, public documents.
Section 14(1) requires of “the council concerned” to
determine the actual use of land as of 1 July 1986 and section
14(3)
requires of “the council concerned” to determine and
grant an appropriate zoning as set out earlier. A
recordal
thereof is therefore done by a public official in the exercise of a
public duty for public purposes. By virtue of
the provisions of
section 18(1) of the Civil Proceedings Evidence Act, 25 of 1965 it is
accordingly admissible in evidence on its
mere production and an
extract therefrom purporting to be signed and certified as a true
copy or extract by the officer to whose
custody the original is
entrusted, shall be admissible in evidence. Mr
Ford
SC
, who
appeared on behalf of the applicant, submits that the zoning
certificate issued constitutes such an extract. In my view,
the
submission is sound and it was not challenged on behalf of the first,
second and third respondents. The applicant is
entitled to rely
on it.
[44]
In these
circumstances I am satisfied that the applicant has indeed
established that the property is reflected in the zoning scheme
records as being zoned “agricultural 1”.
[45]
On behalf
of the respondents the first respondent deposed to the affidavits.
He alleges in the fourth affidavit that the granting
of a zoning
certificate in respect of the property pursuant to section 14 of LUPO
which does not permit mining, which was conducted
on the property in
1986, would be unlawful and consequently reviewable. He
proceeds to state that there is no evidence before
the court that the
factual utilisation of the property had objectively been established
or that it had even been considered by
the municipality. This,
Ms
Higgs
argues, the applicant was obliged to provide as no valid decision in
respect of the “granting” of a zoning could be
taken in
terms of section 14(3) of LUPO unless the factual enquiry had
previously been determined. (See in this regard
Hangklip
Environmental Action Group
supra
at
72G-H.)
[46]
In this
respect I am of the view that the first to third respondents
misconstrue the legal position. Where an official act
has been
executed, as is the case in the present matter, the maxim
omnia
praesumuntur rite esse acta
finds application. It is presumed in such circumstances that
any condition precedent to the validity of the official act
has been
complied with and that the official (or body of officials) was
qualified to perform the act in question and complied with
the
necessary formalities. (See
LAWSA
vol 18 (3
rd
ed) para [242] and the authorities referred to therein.) Once
the applicant has established, as I have found that it has,
that the
property is zoned “agricultural 1” then it is presumed
that every necessary preceding step was complied with
before the
zoning was granted. (Compare
R
v Hotz
1959 (1) SA 795
(T); and
S
v Malaka
1966 (1) SA 117
(T) at 120F-G.) In these circumstances, in
order to set up a dispute of fact the first to third respondents are
required
to put up facts to show the contrary. (Compare
S
v Malaka
,
supra.)
[47]
The case
made in the fourth affidavit is set out earlier herein. The
first respondent contends that his father had mined sand
on the
property during the 1970’s and 1980’s. He therefore
contends that sand mining has continuously been conducted
on the
property and was so conducted in July 1986. For this reason he
contends that in 1986 the property was “used”
for mining.
[48]
These
averments, however, are problematic for two reasons. First,
they are directly in conflict with the alleged history of
the
property which emerges from the first to third respondents’ own
papers. I have referred earli
e
r
to the Environmental Management Plan approved in respect of the first
permit. In the Environmental Management Plan approved
in
respect of the first permit which, as recorded earlier, was signed
and confirmed by the first respondent, it was recorded:
“
Mining
on the Farm Kragga Kamma 23 started in 1996 and a small section of
land was opened up for this purpose. At the start
mining
activities were very low-keyed since the contractor on site
represented only a small section of the building industry.
…
…
Two sites showed potential
and the management programme for these areas were compiled and
eventually approved early in 2004 ….
Unfortunately, the
quality of sand of Quarry A was not acceptable to the building
industry and Quarry B was developed. The
contractor had to
revert to the original mine area approved in 1996, once the mineral
was removed from Quarry B.”
[49]
This
version accords with the letter of Mr van As dated 12 February 2013
to which I have referred earlier herein where Van As confirmed
that
the mining activities on the property commenced in the 1990’s.
[50]
There is a
further difficulty, I think, with the allegation by the first
respondent. The first respondent makes merely a bald
allegation
that mining activities have been conducted on the property
continuously from the 1970’s to date. The allegation
is
unsupported by any documentary evidence or any primary facts.
[51]
In order to
set up a
bona
fide
dispute of fact the respondent is required to set out primary facts,
not merely secondary facts. Primary facts are those
capable of
being used for the drawing of inferences as to the existence or
non-existence of other facts. Secondary facts,
in the absence
of primary facts on which they are based, are nothing more than the
deponents own conclusions. (See
Die
Dros (Pty) Ltd and Others v Telefon Beverages CC and Others
[2003] 1 All SA 164
(C) para [28]. See also
Harms:
Civil Procedure in the Superior Court
B-47.) The first respondent does not take the court into his
confidence by disclosing the extent of any sand mining which
may have
occurred on the property as at 1986. The extent of the property
is reflected earlier in this judgment. It
is 86 hectare in
extent. The first permit permits mining on approximately 1.5
hectares while the second permit demarcates
an area of approximately
2.5 hectares. These represent only a very small portion of the
property. Even accepting that
sand was extracted from the
property in 1986 there is no allegation as to the volume of sand
extracted, the magnitude of the surface
area involved or the
lawfulness of the extraction. No photographic or documentary
support is put up. The first respondent
does not tell us what
the remainder of other property was used for and what the extent of
such activities were as at 1986.
In the circumstances there is
no evidence placed before the court which would enable the court to
determine what the fifth respondent
would have observed in its
factual enquiry in 1986 nor what the primary use of the property was
at the time.
[52]
In these
circumstances I do not think that the bald averment made in the
counter application raises a real, genuine or
bona
fide
dispute of fact. The applicant has accordingly made out a clear
right and an injury actually committed. The applicant
has no
alternative remedy which would satisfactorily address the difficulty
raised in para (2) of the notice of motion in the main
application.
Much is made in the papers of section 47 of the MPRDA. The
MPRDA, so it is alleged by the respondents,
provides an alternative
remedy where the holder of a mining permit: (a) is conducting
mining operations in contravention
of the MPRDA; or (b)
breaches any material term or condition of such permit; or (c)
is contravening the approved
environmental management program.
This alleged remedy is raised in respect of paragraphs (3) and (4) of
the notice of motion
in the main application. They find no
application to the relief sought in paragraph (2).
[53]
In all the
circumstances I am satisfied that the applicant has made out a proper
case for the relief which it seeks in para (2)
of the notice of
motion as against the second and third respondents.
[54]
The
alternative relief sought in prayers (3) and (4) in the notice of
motion is pursued only in the event that I refuse the relief
sought
in prayers (1) and (2). The relief sought in prayers (3) and
(4) relates only to the second and third respondents
and accordingly,
on a proper interpretation of the papers, it seems to me, that
prayers (3) and (4) arise only in the event of
my refusing the relief
in prayer (2). For the reasons set out earlier I consider that
the applicant is entitled to the relief
set out in prayer (2), unless
the respondents succeed in the counter application.
The
counter application
[55]
The relief
sought in the counter application is set out earlier herein.
For the reasons discussed above the principle relief
sought, namely
that the main application be dismissed cannot succeed.
[56]
In the
first alternative the first and third respondents seek an order
staying the main application pending the final outcome of
a review
application to be instituted by the first to third respondents in
terms of PAJA for the review and setting aside of and/or
correcting
the decision of the Nelson Mandela Bay Metropolitan Municipality or
its predecessor made in terms of LUPO in which the
zoning of the
property was determined. This relief proceeds on the
assumption, as its foundation, that the granting of use
rights in
terms of the zoning scheme under LUPO constitutes administrative
action as envisaged in PAJA. I shall accept, for
purposes of
this judgment, that it does indeed constitute administrative action.
Administrative action and the consequences
thereof remain valid and
binding until it is set aside by a court in proceedings for judicial
review. It exists in fact and it
has legal consequences that cannot
simply be ignored. (See
Oudekraal
Estates (Pty) Ltd v The City of Cape Town and Others
2004
(6) SA 222
(SCA) at 242A-C). The zoning which in fact occurred
is therefore binding until such time as it is set aside by a court in
proceedings for judicial review. This, no doubt, prompts the
first to third respondents’ prayer that I order the suspension
of the zoning decision pending the final outcome of the review
application. For the reasons set out in paragraphs 46-52 above
I am of the view that the respondents have not made a case which
would justify the latter relief.
[57]
A
contravention of or a failure to comply with provisions incorporated
in a zoning scheme in terms of LUPO constitutes a criminal
offence
(see section 39(2) as read with section 46(1) of LUPO). For as
long as the zoning allocated to the property stands
any mining
activity on the property would constitute a criminal offence.
What the first to third respondents seek in the
counter application
is that the court should sanction such criminal activity pending the
resolution of the review application.
This a court cannot do.
[58]
Once
I have found, as I have, that the applicant has established the
requirements for the interdict which it seeks then, it seems
to me
that the scope for refusing the relief is very limited indeed, if it
exists at all. This is particularly so where the
conduct in
issue would amount to criminal conduct (see
United
Technical Equipment Co. (Pty) Ltd v Johannesburg City Council
1987 (4) SA 343
(T) at 347. See also
Hotz
and Others v University of Cape Town
2017 (2) SA 485
(SCA) [29]; and
Lester
v Ndlambe Municipality and Another
2015 (6) SA 283
(SCA) [23] and [24]).
[59]
The court
does not have a general discretion to stay proceedings beyond the
recognised grounds, being abuse of process of the court
or
lis
pendens
(compare
Clipsal
Australia (Pty) Ltd and Others v Gap Distributors (Pty) Ltd and
Others
2010 (2) SA 289
(SCA) [16]-[19]; and
Abdulhay
M Mayet Group (Pty) Ltd v Renasa Insurance Co. Ltd and Another
1999
(4) SA 1039
(T) 1048. In the
Abdulhay
case
supra
Van Dijkhorst J at 1048H-1049A stated:
“
I
accept that I have a discretion to stay these proceedings pending the
respondents' application in terms of s 14 of the Act, but
at best for
the respondents this discretion is to be exercised sparingly and in
exceptional circumstances.
Fisheries
Development Corporation of SA Ltd v Jorgensen and Another
;
Fisheries
Development Corporation of SA Ltd v AWJ Investments (Pty) Ltd
and Others
1979
(3) SA 1331 (W)
at 1340D-1341A. There are no exceptional circumstances in this case.
The law of trade marks will fall into desuetude should every
infringer be allowed to defend himself by saying: I know that I am
acting unlawfully, but bear with me; there is a possibility
that my
actions may become lawful. The proper course for such infringer
would be to comply with the law and desist from
infringing until
the application to legalise such use is successful. I refuse a stay
of proceedings.”
I
agree with these comments and I find them to be apt in the present
matter. I therefore refuse to stay the proceedings
in the
main application.
[60]
The
provisions of section 47 of MPRDA are irrelevant to the zoning issue
for the reasons set out earlier herein. It is accordingly
unnecessary to consider the provisions of section 47. To the
extent, however, that it is raised as an internal remedy available
to
the applicant, as a third party to the mining permit, it is
misplaced. The argument was considered in the Supreme Court
of
Appeal in the matter of
Bengwenyama
Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd (formerly Tropical
Paradise 427 (Pty) Ltd) and Others (Bengwenyama-ye-Maswazi
Royal
Council Intervening)
[2010] 3 All SA 577
(SCA) [20] where Mpati P held:
‘
I
agree with the court a quo that section 47 of the Act does not
provide for an internal process which is “available to affected
third parties to have administrative decisions reviewed.” I
agree too that the section is an empowering provision in terms
of
which the Minister can take action if the holder of a prospecting
right exercises his or her right in contravention of the provisions
of the Act.’
In
the circumstances I am satisfied that the applicant is entitled to
the main relief which it seeks as against the second and third
respondents. The counter application can, for the reasons set
out above, not succeed. It falls to be dismissed with
costs,
including the costs of two counsel.
The
application to strike out
[61]
By
virtue of the conclusion to which I have come it is not necessary to
decide the application to strike out for purposes of the
main
application. Its relevance is limited to the issue of costs
incurred in bringing the application. For this reason
I set out
briefly my views in respect of this application. In the main
the applicant sought to strike out the entire counter
application
including the notice of counter application and the affidavit in
support of the counter application on the grounds
that it is
irrelevant. I have recorded earlier that I have concluded that
the counter application cannot succeed. I
do not, however,
consider that that necessarily rendered it irrelevant. Had
there been merit in the counter application it
would indeed have had
a material impact upon the outcome of the application. I would
therefore be disinclined to strike out
the entire counter application
this ground.
[62]
In
the alternative, however, the applicant sought an order that the
whole of the fourth affidavit (the duplicating affidavit) be
struck
out on the grounds that it is irrelevant and that it constitutes an
additional affidavit to those provided for in rule 6
of the Uniform
Rules of Court.
[63]
Rule
6(5)(e) provides for the filing of a fourth set of affidavits with
the indulgence of the court. It is required of the
court to
exercise a discretion as to whether to permit a fourth set of
affidavits and a party cannot take it upon herself/himself
to simply
file further affidavits without first having obtained the leave of
the court to do so. (See for example
Standard
Bank of SA Ltd v Sewpersahd
and
Another
2005 (4) SA 148
(C) at 153H;
Sealed
Africa (Pty) Ltd v Kelly
2006 (3) SA 65
(W) at 67B-E;
Hano
Trading CC v JR 209 Investments (Pty) Ltd and Another
2013 (1) SA 161
(SCA)2013 (1) SA 161 (SCA) at 165A-C.)
[64]
It
has also been held that where further affidavits are filed without
the leave of the court the court may rightly disregard such
affidavits as
pro
non scripto
.
(See
Standard
Bank of SA Limited v Sewpersahd
and
Another
supra
at 153H-154J.) As set out earlier herein, and by virtue of the
conclusion to which I came on the merits, I have had regard
to the
fourth set of affidavits. I consider, however, that there was
merit in the applicant’s application to strike
out the
“duplicating affidavit” for purposes of the main
application.
[65]
The
applicant sought to strike out paragraph 8.12, 8.21 and 8.31.1 of the
founding affidavit in the counter application on the basis
that it
constitutes inadmissible hearsay evidence, argument and speculation
and is accordingly irrelevant. Ms
Higgs
acknowledged that these paragraphs constitute hearsay and conceded
that these paragraphs were inadmissible. In the circumstances
I
would have been inclined to strike out these paragraphs on these
grounds.
[66]
The
applicant further sought to strike out the contents of paragraph 8.29
and 8.30 of the supporting affidavit on the basis that
the content
thereof are irrelevant. The paragraphs deal with the contract
concluded between the applicant and the first to
third respondents
authorising the applicant to mine the sand on the property to which I
have referred earlier. The contract
was introduced by the
applicant in its founding papers and dealt with extensively therein.
In these circumstances, but for
the fact that I would have been
inclined to strike out the entire “duplicating” affidavit
I would be disinclined to
hold that these paragraphs are irrelevant.
[67]
Finally,
the applicant sought to strike out paragraphs 11 and 12 together with
annexure CAR5 and paragraph 34.2 of the replying
affidavit in the
counter application. These paragraphs introduce new matter
making out a case at variance with that set out
in the founding
affidavit in the counter application. These averments ought to
have been contained in the founding papers
and their introduction in
the replying papers is prejudicial to the applicant. I would
therefore have been inclined to strike
out these paragraphs. In
these circumstances the applicant is entitled to the costs of the
application to strike out, including
the costs of two counsel.
[68]
In
the result, I make the following order:
1.
The
main application against the first respondent is dismissed with
costs.
2.
The
second and third respondents are interdicted:
2.1
from
utilising the property for the purposes of mining or removal of sand
or any other substance therefrom, and from causing any
other person
or entity to do so on their behalf, unless and until the property is
zoned in a manner permitting mining, in which
event this interdict
will lapse;
2.2
from
entering upon the property whilst so interdicted, and from causing
any other person or entity to do so, save for the purpose
of
fulfilling any component of this order, and then only with the prior
authority of the applicant.
3.
The
second and third respondents are ordered, jointly and severally, the
one paying the other to be absolved, to pay the applicant’s
costs of the main application as against them, including the costs of
two counsel.
4.
The
respondents’ counter application is dismissed with costs,
including the costs of two counsel.
5.
The
first to third respondents are ordered to pay the applicant’s
costs occasioned by the application to strike out, including
the
costs of two counsel.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Applicant:
Adv Ford SC and Adv Richards instructed by Rob McWilliams
Attorneys,
Port Elizabeth
For
1
st
, 2
nd
& 3
rd
Respondents:
Adv A Higgs instructed by Webber Wentzel, Sandton, Johannesburg
c/o
BLC Attorneys, Port Elizabeth