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[2023] ZAFSHC 106
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Prozel 105 CC v Freegold (Harmony) (Pty) Ltd (2215/2022) [2023] ZAFSHC 106 (5 April 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2215/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
PROZEL
105 CC
Plaintiff
[Registration
Number: [....]
And
FREEGOLD
(HARMONY) (PTY) LTD
Defendant
[Registration
Number: [....]
HEARD
ON:
11
NOVEMBER 2022
JUDGMENT
BY:
DANISO,
J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 11h00 on 05 April 2023.
[1]
This is an opposed exception application launched by the defendant
against the plaintiff’s particulars
of claim on the grounds
that they do not disclose a cause of action.
[2]
The plaintiff is the owner of the farm A[....] [....] in Welkom and
conducts commercial farming activities
including cultivation of crops
mainly maize and sunflowers on the said farm. The defendant owns the
farms V[....] [....] , B[....]
R[....] [....] and M[....]
[....] in Welkom situated adjacent to and in the vicinity of
the plaintiff’s farm.
[3]
On 13 May 2022 the plaintiff issued summons against the defendant
claiming damages on the basis that the defendant
was conducting
mining activities (“the tailing dams”) on its farms which
produced runoff water and seepage into the
plaintiff’s farm
thereby contaminating and polluting the plaintiff’s water and
soil with the result that the plaintiff’s
farm was rendered
unsuitable for crop farming consequently, the plaintiff sustained a
loss of income occasioned by the decline
in crop production and loss
of yields for the period 2020 to 2022 in the amount of R2 482 402.91,
a loss in future production
for at least six years at an amount of
R9 762 306.66 while the defendant remedies the damage,
alternatively and in the
event that the defendant fails to remedy the
damage, the plaintiff will suffer a loss of R6 900 000.00
constituting the
value of the plaintiff’s farm as it will be
rendered obsolete for farming purposes.
[4]
It is common cause that the defendant is a holder of a mining right
as contemplated in section 7 of schedule
2 of Mineral and Petroleum
Resources Development Act
[1]
(“the MPRDA”) which permits the defendant to conduct
tailing dams on its farms.
[5]
In the particulars of claim, the plaintiff bases it claim on its
constitutional right not to be subjected
to a harmful environment
[2]
alternatively, the defendant’s breach of its legal duty to
prevent the contamination and pollution of the plaintiff’s
water and soil alternatively, the defendant’s contravention of
the National Environmental Management Act
[3]
(“NEMA”) which requires the plaintiff to take reasonable
steps to prevent the contamination and the pollution of the
plaintiff’s water and soil, further alternatively, the
plaintiff accuses the defendant of committing a nuisance by allowing
the runoff water and seepage from its tailing dams to contaminate the
plaintiff’s water and soil or creating a state of affairs
whereby the plaintiff’s farming business is interfered with.
[6]
Six grounds of exceptions are raised by the defendant namely: failure
to invoke the MPRDA; direct reliance
on the Constitution; breach of a
statutory duty; common law claim; nuisance claim; and no causal link
between the defendant’s
conduct and the damages claimed.
[7]
Rule 23(1) of the Uniform Rules provides that an
exception may be taken against a pleading on the grounds that
it is
vague and embarrassing or lacks averments which are necessary to
sustain an action or defence. Such an exception strikes
at the
formulation of the cause of action and not its legal validity. See
Trope v
South African Reserve Bank.
[4]
[8]
In dealing with exceptions that a pleading lacks averments which are
necessary to sustain an action, courts have
held that such an
exception
“
cannot
succeed unless it can be shown that ex facie the allegations made by
the plaintiff and any other document upon which his
cause of action
may be based, the claim is (not may be) bad in law
.”
[5]
[9]
The onus is on the excipient, the defendant
in
casu
to persuade the court that, even if the factual allegations averred
in the plaintiff’s particulars of claim were to be accepted
as
correct, the particulars of claim are excipiable on every
interpretation that can reasonably be attached to them thus not
justifying
the relief the plaintiff intends to obtain consequently,
the defendant cannot plead a defence to a non-existent cause of
action
and the defendant would be seriously prejudiced in the event
that the exception should not be upheld.
[6]
[10]
To arrive at an appropriate determination of this issue I must have
regard to the principles laid down in
Southernport
Developments
[7]
where
the court held that when considering exceptions “the court
should not look at a pleading with a magnifying glass of
too high
power and the pleadings must be read as a whole, no paragraph can be
read in isolation.”
[11]
In terms of Rule 18 (4), “every pleading shall contain a clear
and concise statement of the material facts upon which
the pleader
relies for his claim, defence or answer to any pleading, as the case
may be, with sufficient particularity to enable
the opposite party to
reply thereto.”
[12]
According to the defendant, the plaintiff’s suit consists of
four claims namely:
12.1 Damages
claim based on a constitutional violation;
12.2. Claim for the
breach of a statutory duty imposed by the NEMA;
12.3. Common law
aquilian action claim; and
12.4. Nuisance
claim.
Exception
1
[13]
This ground is essentially directed at this court’s
jurisdiction to entertain the plaintiff’s claim alternatively,
the prematurity of the claim. The defendant complains that in
paragraphs 3.1, 3.4 to 3.5, 3.11 and 11 of the plaintiff’s
particulars of claim it is averred that the plaintiff’s alleged
loss or damage was caused by the defendant’s mining
activities
as a mining permit holder issued in terms of the MPRDA. Therefore,
instead of instituting a claim for damages the plaintiff
should have
invoked the provisions of the MPRDA and referred its claim to the
Regional Manager of the Department of Minerals and
Energy in terms of
s54(7) of the MPRDA
[8]
to
facilitate an agreement between the parties with regard to the amount
of compensation to be paid to the plaintiff. Furthermore,
in terms of
s45 of the MPRDA,
[9]
the
defendant may also be directed by the Minister of Mineral Resources
and Energy to remedy the harm caused to the plaintiff’s
farm or
to pay for the remedial costs incurred where the defendant fails to
comply with the Minister’s directions. The defendant
contends
that the plaintiff has failed to plead its compliance with the
provisions of s54(7) consequently, the particulars of claim
fail to
make the averments necessary to sustain the cause of action pursued.
The defendant is accordingly prejudiced in pleading
to the
particulars of claim.
[14]
On the other side, it was submitted on behalf of the plaintiff that
the plaintiff’s claim is predicated on the
damages caused to
its farm and the loss of production of crops due to the contamination
and pollution of its water and soil, the
plaintiff does not rely on
the fact that it is the owner or lawful occupier of a land on which
reconnaissance, prospecting or mining
operations will be conducted
therefore s54(7) does not apply. S45 is also irrelevant as it deals
with the Minister’s power
to recover costs incurred in
providing urgent remedial measures to address the contamination of
land resulting from mining operations.
[15]
It is the plaintiff’s case that MPRDA does not exclude reliance
on NEMA or a claim for damages pursuant to environmental
contamination. The defendant’s contentions in this regard are
legally untenable and flawed this ground of exception must
be
dismissed with costs on the scale as between attorney and client.
[16]
I am in agreement with the plaintiff’s contentions that the
defendant’s
reliance on ss45 and 54(7) of the
MPRDA
is misplaced.
MPRDA
regulates the rights of land occupiers
previously
excluded from participating in the exploitation of the country’s
mineral and petroleum resources
and
the entities who retain the mineral rights over that land. Its
primary
object is the transformation of the sector and the empowerment of the
country’s previously excluded by setting out
the procedure that
must be followed and the requirements that must be satisfied when an
application for a prospecting or mining
right is made under it.
[10]
[17]
It was long established by the SCA in
Global
Environmental Trust and Others v Tendele Coal Mining (Pty) Ltd and
Others
[11]
that:
“
Both
the MPRDA and NEMA are statutes that give effect to the right to have
the environment protected for the benefit of present
and future
generations, enshrined in s 24 of the Constitution. It is a settled
principle that courts are required to interpret
statutes purposively,
in conformity with the Constitution and in a manner that gives effect
to the rights in the Bill of Rights.”
[18]
Quoting
with approval
Fuel
Retailers Association of Southern Africa v Director-General:
Environmental Management, Department of Agriculture, Conservation
and
Environment, Mpumalanga Province and Others
[12]
the SCA went further and explained that:
“
The role of the
courts is especially important in the context of the protection of
the environment and giving effect to the principle
of sustainable
development. The importance of the protection of the environment
cannot be gainsaid. Its protection is vital to
the enjoyment of the
other rights contained in the Bill of Rights; indeed, it is vital to
life itself.”
[19]
Based on the above factors, I am unable
to
perceive how
the
defendant arrives at the conclusion that the MPRDA or any other
Statute for that matter is a pre-condition to legal proceedings
in
the context of claims resulting from a delict perpetrated against a
landowner’s property (as in the present matter). The
exception is without merit, it is accordingly dismissed.
Exception
2, 3, 4 and 5
[20]
The defendant contends that each of these claims are flawed,
incompetent and cannot be pursued on the basis of the particulars
of
claim as they stand.
[21]
The defendant complains that in paragraph 4 of the particulars of
claim consists of the plaintiff’s primary claim
in terms of
which the plaintiff impermissibly, seeks constitutional damages which
are alleged to be arising from strict liability
imposed by s24 of the
Constitution read with NEMA whereas constitutional damages are only
available as a last resort and only when
no common law claim is
available as a result, the plaintiff’s second (breach of
statutory duty) and third (common law) claims
are destructive of the
primary claim. The plaintiff is also in breach of the principle of
subsidiary in that the claim is based
on direct reliance on the
Constitution and NEMA where there are bespoke remedial regimes
created by both the MPRDA and NEMA.
[22]
The defendant further complains that with regard to the second claim
(paragraph 5 of the particulars of claim) the plaintiff
has again
directly relied on the provisions of the Constitution and also
alleged that the defendant has breached the statutory
legal duty
imposed by NEMA without averring the specific provision which creates
the statutory duty breached by the defendant.
[23]
The defendant submits that s28(1) of NEMA imposes a duty on any
person responsible for pollution and degradation of the
environment
to take reasonable measures to prevent that pollution or degradation
from continuing however, the plaintiff’s
particulars of claim
do not allege that there were reasonable measures available to the
defendant to prevent the pollution and
degradation, what were those
measures and that the defendant failed to take those measures.
[24]
Regarding the alternate common law claim, the defendant complains
that except to allege in paragraphs 7 and 8 that the
defendant
breached its legal duty to prevent the contamination and pollution of
the environment including the plaintiff’s
farm there are no
allegations that the defendant has breached any provisions of the
MPRDA or its approved Environmental Management
Programme which sets
out the reasonable measures the defendant is required to take to
manage the environmental impact of its mining
activities.
[25]
With regard to the nuisance claim, the defendant contends that in
paragraph 10 of the plaintiff’s particulars of
claim it is
alleged that the defendant commits a nuisance by allowing the runoff
water and seepage from its tailing dams to contaminate
the
plaintiff’s farm, alternatively creating a state of affairs
whereby the plaintiff’s use of his farm to conduct
commercial
farming is unfairly and materially disturbed and this is despite the
fact that on the plaintiff’s own submission
the defendant is a
holder of a mining permit issued in terms of the MPRDA which
authorises the defendant to operate the tailing
dams. The particulars
of claim do not allege that the operation of the tailing dams is
unlawful or at odds with the MPRDA and/or
that it constitutes an
undue and unreasonable exercise of its property rights.
[26]
For these reasons so it was argued, the particulars of claim fail to
make averments necessary to the cause of action
pursued in these
claims, the defendant is consequently prejudiced in pleading thereto.
[27]
As rightly pointed out by counsel for the plaintiff, the plaintiff’s
claim comprises of the main claim in terms
of which the plaintiff
avers that the defendant’s liability for the damages arises
from the provisions of s24 read with s8
of the Constitution and s28
of NEMA which respectively, afford the plaintiff a right not be
subjected to a harmful environment
and also impose strict or absolute
liability to the defendant as a holder of the mining permit to
exercise a duty of care to prevent
pollution or degradation of land
from occurring. The remaining claims are in the alternative and they
are premised on the breach
of a statutory duty imposed by the NEMA or
the common law or nuisance. They have been pleaded clearly and in
compliance with rule
18(4) and 18(10), the exceptions are foredoomed
to failure they ought to be dismissed with costs on the scale as
between attorney
and client.
[28]
Having regard to the whole particulars of claim, it is clear that the
plaintiff’s claim consists of a main and
alternative claims and
not separate and distinct claims as proffered by the defendant. The
examination of the particulars of claim
as a whole also reveals that
the
facta probanda
which is every fact which would be
necessary for the plaintiff to prove has been sufficiently averred
namely, the alleged wrongful
or culpable conduct of the defendant
attributable to the plaintiff’s alleged loss. (See paras 3 to
10 of the particulars
of claim).
[29]
The evidence which is necessary to prove those alleged facts, the
facta probantia
is not necessary at this stage of the
proceedings. I am thus satisfied that a proper cause of action in the
particulars of claim
relating to the main and also the alternative
claims has been established. These exceptions are also dismissed.
Exception
6
[30]
This ground of exception is directed at paragraph 11 of the
plaintiff’s particulars of claim. According to the defendant,
the particulars of claim do not plead and/or identify what proportion
of the farm is contaminated and/or oversaturated to the extent
that
it is “
not reasonably possible
” to cultivate and
what proportion is not “
viable
” to cultivate and
these allegations are necessary as they entail a claim for damage to
property and a claim for pure economic
loss respectively.
Consequently, the particulars of claim fail to make averments
necessary to establish a causal
nexus
between the alleged
runoff water and seepage from the tailing dams and the loss suffered
by the plaintiff including the quantum
claimed.
[31]
The plaintiff countered that the defendant’s complaint does not
correspond with the ground of exception the defendant
has labelled as
“
no causal link between the defendant’s conduct and
the damages claimed
” in any event, in the particulars of
claim the plaintiff has not only alleged the cause of damages and the
loss sustained.
The specific proportion and size of the portion of
the farm adversely affected by the runoff water and seepage from the
tailing
dams has also been identified. The amount claimed is also
sufficiently quantified, likewise this exception has no merit it must
also be dismissed with costs on the scale as between attorney and
client.
[32]
I find the defendant’s complaint not to have been elegantly
pleaded because whilst the ground of exception refers
to the absence
of the causal link between the defendant’s conduct and the
damages claimed, the submissions proffered in both
the notice of
exception and in argument seems to be directed at the lack of
particulars relating to the extent of the alleged damages
and the
quantification of the amount claimed. Nevertheless, I am of the view
that the damages claimed by the plaintiff have been
amply set out to
enable the defendant to assess the quantum thereof.
[13]
This exception is also decided in favour of the plaintiff.
[33]
I have subsequently arrived at the conclusion that the exceptions
raised by the defendant are unmeritorious and that a cause
of action
relied upon by the plaintiff in the main and in the alternative
claims is sufficiently disclosed in the plaintiff’s
particulars
of claim. The particulars of claim are legally competent and good in
law.
[34]
As regards the issue of costs, there is no reason why the costs
should not follow the result. I am not persuaded by the
plaintiff’s
contention that the defendant should be ordered to pay the costs on
the scale as between attorney and client
as I
do
not think that the defendant’s conduct is so reprehensible to
warrant a
punitive cost order.
[35]
In the premises, I make the following order:
(1)
The exceptions are dismissed with costs on a
party and party scale.
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of the plaintiff: Adv.
N. Snellenburg
SC
Instructed
by: BL
Kretzmann Attorneys
C/O McIntyre & van
der Post
BLOEMFONTEIN
Counsel
on behalf of the defendant: Adv
I. Goodman
With
him: Adv.
B. Dhladhla
Instructed
by: Edward
Nathan Sonnenbergs Inc
C/O Honey Attorneys
BLOEMFONTEIN
[1]
Act No, 28 of 2002.
[2]
S24 of the Constitution of the Republic of South Africa Act No, 108
of 1996.
[3]
Act No, 107 of 1998.
[4]
[1993] ZASCA 54
;
1993
(3) SA 264
(A)
at 269I.
[5]
Vermeulen
v Goose Valley Investments (PTY)Ltd
2001
(3) SA 986
(SCA) at para 7.
[6]
Southernport
Developments (Pty) Ltd (previously known as Tsogo Sun Ebhayi (Pty)
Ltd v Transnet Ltd
2003
(5)
SA
665
(W);
Frank
v Premier Hangers CC
2008
(3) SA 594
(C).
[7]
Supra at fn 6. See page 669 at para 6.
[8]
S 54(7) provides: “
Compensation
payable under certain circumstances
The
owner or lawful occupier of land on which reconnaissance,
prospecting or mining operations will be conducted must notify the
relevant Regional Manager if that owner or occupier has suffered or
is likely to suffer any loss or damage as a result of the
prospecting or mining operation, in which case this section applies
with the changes required by the context.”
[9]
This provision refers to the
“
Minister's power to recover costs in event of urgent remedial measures
(1) If any prospecting, mining, reconnaissance, exploration or production operations or activities incidental thereto cause or results [sic] inecological degradation, pollution or environmental damage, or is in contravention of the conditions of the environmental authorisation, or which may be harmful to health, safety or wellbeing of anyone and requires urgent remedial measures, the Minister, in consultation with the Minister of Environmental Affairs and Tourism, may direct the holder of the relevant right or permit in terms of this Act or the holder of an environmental authorisation in terms of
National Environmental Management Act, 1998
, to (a) investigate, evaluate, assess and report on the impact of any pollution or ecological degradation or any contravention of the conditions of the environmental authorisation
; (
b) take such measures as may be specified in such directive in terms of this Act or the
National Environmental Management Act, 1998
; and (c) complete such measures before a date specified in the directive. Sub s. (1) substituted by
s. 36
(a) of Act 49 of 2008 (wef 8 December 2014).] (2)
(a) If the holder fails to comply with the directive, the Minister may take such measures as may be necessary to protect the health and wellbeing of any affected person or to remedy ecological degradation and to stop pollution of the environment.
(b) Before the Minister implements any measure, he or she must afford the holder an opportunity to make representations to him or her.
(c) In order to implement the measures contemplated in paragraph (a), the Minister may by way of an ex parte
application apply to a High Court for an order to seize and sell such property of the holder as may be necessary to cover the expenses of implementing such measures.
(d) In addition to the application in terms of paragraph (c), the Minister may use funds appropriated for that purpose by Parliament to fully
implement such measures.
(e) The Minister may recover an amount equal to the funds necessary to fully implement the measures from the holder concerned.
[10]
M
aledu
and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and
Another
[2018]
ZACC 41
,
para
50
to
51.
[11]
(1105/2019)
[2021] ZASCA 13
(09 February 2021) para 31.
[12]
2007
(6) SA 4
(CC)
para 102.
[13]
See Uniform Rule 18(10).