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2023
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[2023] ZAFSHC 315
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Harmony Gold Mining Company Ltd and Others v The Residents of the Masilonyana & Matjhabeng Districts & Surrounds Involved And/or Partaking in the Interdicted Activities and Others (1387/2023) [2023] ZAFSHC 315 (10 August 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case no
1387/2023
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES: NO
CIRCULATE TO MAGISTRATES:
NO
In
the matter between:
HARMONY
GOLD MINING COMPANY LTD
1
st
Applicant
AVGOLD
LTD
2
nd
Applicant
FREEGOLD
(HARMONY) (PTY) LTD
3
rd
Applicant
LORAINE
GOLD MINES LTD
4
th
Applicant
and
THE
RESIDENTS OF THE MASILONYANA &
MATJHABENG
DISTRICTS & SURROUNDS
INVOLVED
AND/OR PARTAKING IN THE
INTERDICTED
ACTIVITIES
1
st
Respondent
LEJWELEPUTSWA
MINING COMMUNITY
AND
DEVELOPMENT FORUM (LMCDF)
2
nd
Respondent
WELLINGTON
MAHLOANE
3
rd
Respondent
DIKELEDI
TAELI
4
th
Respondent
SIYABONGA
TWAWALA
5
th
Respondent
CORUM:
JP DAFFUE J
HEARD
ON:
03 AUGUST 2023
DELIVERED
ON:
10
AUGUST 2023
This judgment was handed
down electronically by circulation to the parties’
representatives by email, and release to SAFLII.
The date and
time for hand-down is deemed to be 14h00 on 10 AUGUST 2023.
ORDER
1.
The 2
nd
respondent’s name is amended to read as follows: 'Lejweleputswa
Mining Community and Development Forum (LMCDF)’
2.
The rule
nisi
issued on 19 March 2023 is confirmed in respect of 1
st
,
2
nd
and 5
th
respondents pertaining to paragraph 1.1, including sub-paragraphs
1.1.1 to 1.1.7 and sub-paragraph 1.2.1.
3.
The rule
nisi
issued on 19 March 2023 is confirmed in respect of 3
rd
and 4
th
respondents only in respect of paragraph 1.2.1 thereof.
4.
Each party shall pay
their own costs in respect of the application.
JUDGMENT
Introduction
[1]
This is the extended
return date of a rule
nisi
issued on an urgent and ex parte basis on Sunday afternoon, 19 March
2023. The applicants – four mining houses - sought protection
from the court against unlawful unrest and protest actions near and
surrounding their operations. They also feared that the unlawfulness
would escalate if the court did not intervene. The killing of a
specific individual and the setting alight of taxis transporting
employees to and from the mines were advocated by members of the
community.
The parties
[2]
The four applicants are
well-known mining companies in the Free State Goldfields. They are
Harmony, Avgold, Freegold and Loraine
Gold. It is not necessary to
quote their full names and registration details. Harmony is the
employer of about 22 000 individuals
at the various mining operations
of the applicants within the Free State Goldfields.
[3]
The respondents are
cited as follows:
3.1
The first respondent is
cited as the residents of the Masilonyana and Matjhabeng districts
and surrounds involved and/or partaking
in the interdicted
activities. These residents are further described as natural persons
within the areas and it is made clear that
relief is only sought
against those individuals who have acted unlawfully or threatened to
further act unlawfully with the intention
to forcefully halt business
operations at the applicants’ mining operations. The applicants
made it clear that they were
unable to more precisely define who
these persons were as they were mostly unknown to them.
3.2
The second respondent
was initially cited as Lejweleputswa Community Development Forum
(LCDF), an unincorporated entity and community
forum consisting of
various individuals from the townships and communities surrounding
the applicants’ various mining operations.
I shall later herein
refer to the alleged misnomer of the second respondent and the
amendment sought.
3.3
The third respondent is
cited as Mr Wellington Mahloane (Mahloane), a major male person,
cited in his personal capacity, he being
a representative and/or
member of the LCDF.
3.4
The fourth respondent
is cited as Ms Dikeledi Taeli (Taeli) in her personal capacity, she
being a major female representative and/or
member of the LCDF.
3.5
The fifth respondent is
cited as Mr Siyabonga Twawala (Twawala), a major male person.
The relief obtained
[4]
I
do not intend to quote the rule
nisi
issued on 19 March 2023 which consists of four pages.
[1]
A summary will suffice. The applicants obtained relief which operated
as an interim order with immediate effect against all the
respondents. A prohibitory interdict was obtained as is apparent from
sub-paragraph 1.1 of the order. First, from causing damage
to
inter
alia
employees and contractors of the applicants. Second, from inciting or
encouraging anyone to cause harm to the property of applicants,
as
well as
inter
alia
their employees and contractors. Third, from threatening to cause
harm to the person or property of the applicants and/or their
employees and contractors. Fourth, from preventing or discouraging
applicants’ employers and contractors from discharging
their
duties. Fifth, from publishing or communicating allegations against
the applicants and/or their employees and contractors.
Sixth, from
blockading entrances to applicants’ mining operations. Seventh,
from interfering with applicants’ operations.
Eighth, from
accessing applicants’ mines and making commercial demands.
Furthermore, in terms of the mandatory interdict
contained in
sub-paragraph 1.2, the respondents were ordered to take all
reasonable steps to ensure that their affiliates, associates,
members
and/or any other third parties refrain from engaging in any of the
interdicted activities.
[5]
The application is
opposed by the third and fourth respondents only. They filed their
answering affidavits a week before the initial
return date, to wit 18
May 2023, causing the application to be postponed and the return date
extended to 3 August 2023 in order
to allow the applicants an
opportunity to file their replying affidavit and the parties to file
heads of argument.
Application for
amendment of the second respondent’s name
[6]
As
mentioned, the second respondent was cited as the Lejweleputswa
Community Development Forum (LCDF). Throughout the founding affidavit
it was referred to as such. Both the third and fourth respondents
pointed out in their answering affidavits that they were not
members
of the LCDF as alleged, but of the Lejweleputswa Mining Community and
Development Forum (LMCDF). The third respondent referred
in his
answering affidavit to a meeting that he had with Harmony’s
legal representatives, Webber Wentzel, in Johannesburg
on 9 February
2023. He participated in the meeting as ‘an advisor/strategist
of the LMDCF’. The correct name of the
forum is also apparent
from the letters relied upon by the third respondent.
[2]
In fact, the third respondent referred to these two letters as
correspondence between
his
legal representatives, Messrs MB Nkonoane Inc and Webber Wentzel, the
legal representatives of Harmony. Clearly, the LMCDF and
Harmony’s
legal representatives were in communication with each other. These
two respondents averred that they had no connection
with the second
respondent as cited, but that they were members of the LMCDF.
Consequently, they submitted that a misjoinder had
occurred and that
the application should be dismissed for this reason only.
[7]
In the replying
affidavit, the applicants’ deponent conceded that they omitted
the word ‘Mining’ in the description
of the second
respondent, but that this was a mere misnomer. She gave notice that
the applicants would move for an amendment of
the notice of motion
and case headings where applicable. At the onset of the proceedings
before me, Mr South handed to me a notice
to amend in terms of rule
28 of the Uniform Rules of Court from the bar in terms whereof the
applicants sought an amendment of
the second respondent’s name
to include the word ‘Mining’. According to the notice the
applicants also sought
amendments of the founding affidavit to
reflect the correct name. It is trite, as stated in rule 28(1) that a
court shall not amend
a party’s affidavit. It is for the party
to explain the mistake in a further affidavit. This was done as is
apparent from
the replying affidavit.
[8]
The
following dictum in
Tecmed
(Pty) Ltd and Others v Nissho Iwai Corporation and Another
[3]
is applicable to the present scenario:
‘
As
I see it, the focus should therefore immediately be directed at the
substitution application. The settled approach to matters
of this
kind follows the considerations in applications for amendments of
pleadings. Broadly stated, it means that, in the
absence of any
prejudice to the other side, these applications are usually granted
(see, for example,
Devonia
Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening)
(supra)
at 369F - I;
Rosner
v Lydia Swanepoel Trust
1998
(2) SA 123 (W)
at
127D - H). As is pointed out in
Devonia
Shipping
at
369H, the risk of prejudice will usually be less in the case where
the correct party has been incorrectly named and the
amendment is
sought to correct the misnomer, than in the case where it is sought
to substitute a different party. But the criterion
remains the same:
will the substitution cause prejudice to the other side, which cannot
be remedied by an order for costs or some
other suitable order, such
as a postponement?
’
[9]
Although Mr Lubbe did
not have instructions to appear on behalf of the second respondent,
he did not object to the amendment. He
appeared for the third and
fourth respondents and made submissions in his heads of argument
about the negotiations between the
attorneys of the parties and the
fact that the third respondent was representing the second respondent
at the time. He submitted
that the applicants’ failure to refer
thereto in their founding affidavit meant that the test of utmost
good faith was not
complied with. I shall return to this aspect
later. I considered granting the amendment and postpone the matter to
grant the second
respondent as properly cited an opportunity to
oppose the application. This would really be a waste of time. There
cannot be any
prejudice to the second respondent, especially bearing
in mind the costs order I intend to make. Consequently, the name of
the
second respondent wherever it appears in the headings of the
documents and the notice of motion stands to be amended to read
Lejweleputswa
Mining Community and Development Forum (LMCDF).
Second respondent’s
lack of locus standi
[10]
Although
not having instructions to appear for the second respondent, Mr Lubbe
submitted that it lacked
locus
standi
and that no order could be made against it. Mr Lubbe relied on
Commtech
Comprehensive School and School Governing Body Ano v MUCCP Community
Working Group of Mangaung Township.
[4]
In that case the full bench concluded that ‘
the
individuals allegedly affected by being assaulted and ejected from
the MUCPP property should have brought the application instead
of an
entity that has no
locus
standi
.’
[5]
[11]
Insofar as the second
respondent may be described as an unincorporated body of persons,
rule 14(1) of the Uniform Rules of Court
stipulates: ‘‘
Association’
means any unincorporated body of persons, not being a partnership’.
Although in terms of the common law an association of
persons which
does not have their own legal personality cannot as a general rule,
sue or be sued in its own name, rule 14(2) now
governs the situation.
It reads as follows:
‘
A
partnership, a firm or an association may sue or be sued in its
name.’
This sub-rule must be
read with sub-rule 14(9) which I do not intend to deal with any
further. I do not agree with Mr Lubbe. The
applicants were fully
entitled to institute application proceedings against the second
respondent.
The undisputed facts
[12]
No
case has been made out against the third and the fourth respondents
for prohibitory relief. There is no evidence that they participated
in any unlawful action and/or instigated any unlawful action. Their
involvement in the unrest has not been proved.
[6]
The applicants’ response in reply to the versions of these two
respondents does not take the case any further.
[13]
The
case against the fifth respondent is clear and undisputed. On 14
March 2023 he posted on his facebook page that Harmony would
be shut
down completely by 15 March 2023 and that taxi drivers taking
employees to work ‘would be burnt by petrol bombs’.
He
also made it clear that Mr Mgotywa, a senior employee of Harmony,
must fall. He made a further posting indicating that ‘the
children of Kutloanong are angry and they will close Harmony’s
operations until the CEO and Mgotywa leaves Harmony.’
He
concluded with the following remark ‘let the war begin’.
[7]
These were serious threats which entitled the applicants to an
interdict.
[14]
The
applicants also relied on voice notes published on a community
whatsapp group, indicating that ‘the forum’ was busy
closing roads and that they were going to burn tyres and blockade
roads in certain areas as from the 16
th
of March 2023.
[8]
Although this
is hearsay, Daniso J who heard the urgent application, could not
ignore the information, bearing in mind that protest
action had
already been embarked upon when the voice notes were published and
further illegal action continued on 16 March 2023
as anticipated.
None of the respondents tried to show afterwards that these voice
messages were false.
[15]
On
16 March 2023 various unrest and protest actions occurred near and
surrounding the applicants’ operations whilst the South
African
Police Service was reluctant to interfere without a court order. The
applicants feared that the unrest would escalate in
accordance with
the recorded voice notes.
[9]
The point was made that the intended unlawful shutdown would be
anything but peaceful and that there was a belief that protestors
were planning to assassinate Mr Mgotywa.
[10]
[16]
On
12 March 2023 a representative of the applicants was informed of
threats and unhappiness within the community. The fourth respondent
was contacted. Her response as set out in the founding affidavit is
corroborated by the email relied upon by her in her answering
affidavit. According to the applicants the fourth respondent
‘confirmed that something was brewing in the community and the
Forum.’ She also said that ‘she would try and stop the
developments but cannot provide any assurance that this would
be
successful’.
[11]
Fourth
Respondent confirmed that she had sent an email to representatives of
Harmony on 12 March 2023, under the heading ‘Awareness
of
protest by Unsatisfied communities members.’ The email is
annexed as annexure AA4 to her answering affidavit.
[12]
In this email she stated
inter
alia
the following:
‘
The
situation now is out of our hands. This is the position that is on
the ground the communities are saying they are revolting
tomorrow. ….
So have caught wind that there’s been some movement and they
are being excluded from. Hence they are
revolting. … Given
this background, we request Harmony to assist us and address these
fustrations
(sic).
Your assistance will be highly
appreciated.’
She ended off this email
as follows: ‘DK TAELI - Coordinator LMCDF’.
Evaluation of the
evidence and the submissions of the parties
[17]
The
requirements for the granting of a final interdict are trite. An
applicant for such an order must show (a) a clear right, (b)
an
injury actually committed or reasonably apprehended and (c) the
absence of another satisfactory remedy. Once these requirements
have
been met, the scope, if any, for refusing relief is limited.
[13]
Even if I believe that constructive negotiations between the parties
and their attorneys prior to the launching of the interdict
proceedings might have had a positive effect to prevent any harm, I
am mindful of the fact that the purpose of the interdict as
in all
other cases, was to put an end to the unlawful conduct in breach of
the applicants’ rights. Any proposed alternative
remedy must
provide a similar protection. In
casu
,
there is really nothing and Mr Lubbe did not suggest that anything
could have been done to stop any unlawful action. In the final
instance, an alternative remedy must be a legal remedy, a remedy that
a court may grant and could be enforced. I can think of nothing
in
this regard.
[18]
In the absence of
opposition by first, second and fifth respondents and the third and
fourth respondents’ neglect to deal
with the material averments
made by the applicants, there is no need for a detailed discussion of
the evidence tendered and whether
or not the requirements for a final
interdict have been met. I shall constrain myself to a brief
discussion. Every person is free
to conduct any lawful trade or
business. This common law right has been entrenched in s 22 of the
Constitution which provides that
‘[e]very citizen has the right
to choose their trade, occupation or profession freely.’ The
right to trade extends
to juristic persons as well who are entitled
to conduct their businesses to the overall benefit of all their
stakeholders, including
employees, consumers and investors. The
applicants have established a clear right worthy of protection.
[19]
The
second requirement has been met as well. Even accepting for the
moment that no injury had actually been committed at the time
when
the interdict was obtained, which is doubtful, there can be no doubt
that there was a reasonable apprehension of injury at
that stage. The
test is objective. It is unnecessary to repeat the undisputed facts
referred to above. As mentioned, the applicants
failed to prove that
the third and fourth respondents were participants in the protest
action. However, at no stage did they give
an undertaking that they
would not unlawfully interfere with the applicants’ mining
operations in future. They also failed
to actively disassociate
themselves with the aforesaid actions and/or they failed to take any
reasonable steps to ensure that their
colleagues and co-members
refrain from engaging in unlawful activities. I would have expected
the second and third respondents
to give an appropriate undertaking
in the letter of their attorneys to Webber Wentzel dated 27 March
2023, annexed as annexure
AA3.
[14]
In the absence of any undertaking from any of the respondents not to
repeat the undisputed conduct referred to above, the applicants
had a
reasonable apprehension that unless an interdict was granted, the
unlawful actions would continue in breach of the applicants’
rights.
[20]
I shall deal hereunder
with my view as to how the applicants should have approached the
litigation, but my suggestion does not make
any difference to the
third requirement of final interdicts. It is apparent that the
protest actions were initiated from Sunday
the 12
th
of March 2023 and flared up during the week to the extent that the
protest escalated into violence. Various unrest and protest
actions
took place near and surrounding the applicants’ operations on
Thursday, 16 March 2023. The threats to blockade entrances
to the
applicants’ premises and to set taxis transporting employees
alight could not be disregarded at all.
[21]
When perusing the
papers before I heard oral argument, I noticed that there was no
proof of service of the court order on the fifth
respondent. I
pointed this out to Mr South during argument. He confirmed that
service was properly effected on fifth respondent’s
facebook
page in line with the court order and undertook, with my leave, to
present proof after the hearing. I received proof of
service and am
satisfied that the fifth respondent was duly notified.
[22]
Having dealt with the
undisputed evidence as well as the requirements for a final
interdict, I am satisfied that a proper case has
been made out in
respect of first, second and fifth respondents for the rule
nisi
as issued to be confirmed, save for the aspect of costs to which I
will return later. Although sub-paragraph 1.1 of the rule
nisi
pertaining to the prohibitory interdict should not be confirmed the
third and fourth respondents for the reasons advanced herein.
I am
satisfied that the rule
nisi
should be confirmed against them pertaining to sub-paragraph 1.2. Mr
South submitted that these two respondents were leaders of
the second
respondent. I do not fully agree. However, they are on their own
versions not ordinary members. The third respondent
referred to
himself as ‘an advisor/strategist of the LMCDF’ whilst
the point was made that the firm of attorneys communicating
on behalf
of LMCDF with Harmony’s attorneys were regarded as his legal
representatives. The mere fact that he represented
the LMCDF in
Johannesburg during the meeting with Harmony’s attorneys is
indicative of his senior position in the LMCDF.
Fourth respondent is
also not an ordinary member of the LMCDF as is apparent from annexure
AA4 to her answering affidavit, indicating
that she is a coordinator
of the LMCDF. No extraordinary or unreasonably high standard is
required from these two respondents if
sub-paragraph 1.2 of the rule
nisi
is to be confirmed against them. They would merely be ordered to take
all reasonable steps to ensure that their colleagues and
others do
not engage in the interdicted activities.
[23]
Mr
Lubbe submitted that the applicants brought the
ex
parte
application on the ground of alleged urgency whilst failing to comply
with the test of utmost good faith. They failed to put all
relevant
facts before the court. According to him they failed to inform the
court that the LMCDF and Harmony were in negotiations
with each other
through their respective attorneys. Also the applicants indicated
that they were not aware of the full and further
particulars of the
third and fourth respondents whilst they were aware of their contact
details. In
Schlesinger
v Schlesinger
[15]
the court stated that applicants launching an
ex
parte
application must make full disclosure of all material facts which
might have an effect on the granting or otherwise of an
ex
parte
order. If it appears that material facts have been kept back, whether
wilfully and
mala
fide
or negligently, which might have influenced the decision of the
court, the court has a discretion to set aside the order with costs
on the ground of non-disclosure. I seriously considered the issue.
However, I am satisfied that there was no failure to make a
full
disclosure. There will often be room for debate whether facts are
material or not. It should not be practically impossible
to apply for
urgent relief
ex
parte
.
In their founding affidavit the applicants set out the history
between the parties and the initial good working relationship which
became strained during the latter parts of 2022. This strained
relationship also appears from annexure AA2 to the third respondent’s
answering affidavit, being the letter of Webber Wentzel dated 14
March 2023. The fourth respondent’s version was also properly
dealt with in the founding affidavit. I am satisfied, having
considered these aspects thoroughly, that the correspondence referred
to was not wilfully or negligently kept away from the court. Neither
the letters relied upon by the third and fourth respondents,
nor any
other information needed to be pleaded in the founding affidavit.
Costs
[24]
Mr
South submitted that the respondents should pay the applicants’
costs, including the costs of two counsel. This was a
straight-forward application that did not require the appointment of
two counsel. Mr Lubbe submitted that the rule
nisi
against his clients should be discharged with a punitive costs order
on the attorney and own client scale. The applicants as the
successful parties
vis
-
à
-
vis
the first, second and fifth respondents would generally be entitled
to their costs of the application on an unopposed basis. Although
the
applicants have achieved some success against the third and fourth
respondents, I am of the view that these two respondents
were
entitled to oppose the application bearing in mind the dearth of
evidence presented against them pertaining to the prohibitory
interdict. Although not relevant to the requirements for an interdict
or urgency, I am satisfied that the applicants should not
be awarded
costs against any of the respondents. Their attorneys were in
negotiations with the LMCDF’s attorneys who should
have been
alerted of the intention to bring an interdict if the illegalities
were not stopped. Instead, the applicants decided
to use a different
firm of attorneys which firm apparently had nothing to do with the
ongoing negotiations. Finally, in exercising
my discretion and
considering fairness to all the parties, I am of the view that each
of the parties shall pay their own costs.
Order
[25]
The following orders
are issued:
1.
The 2
nd
respondent’s name is amended to read as follows: ‘Lejweleputswa
Mining Community and Development Forum (LMCDF)’
2.
The rule
nisi
issued on 19 March 2023 is confirmed in respect of 1
st
,
2
nd
and 5
th
respondents pertaining to paragraph 1.1, including sub-paragraphs
1.1.1 to 1.1.7 and sub-paragraph 1.2.1.
3.
The rule nisi issued on
19 March 2023 is confirmed in respect of 3
rd
and 4
th
respondents only in respect of paragraph 1.2.1 thereof.
4.
Each party shall pay
their own costs in respect of the application.
JP DAFFUE J
Counsel
on behalf of the applicants:
Advv
South SC and Le Roux
Edward
Nathan Sonnenbergs Inc
c/o
Lovius Block
BLOEMFONTEIN
Counsel
on behalf of the 1
st
and 2
nd
respondents:
No
appearance
Counsel
on behalf of the 3
rd
and 4
th
respondents:
Adv
J Lubbe SC
MD
Nkonoane Inc
c/o
Finger Attorneys
BLOEMFONTEIN
[1]
Record:
pp 122 – 126.
[2]
Record:
Annexures
AA1
& AA2, pp 159 – 162.
[3]
(705/08)
[2009] ZASCA 143
;
[2010] 3 All SA 36
(SCA);
2011 (1) SA 35
(SCA) (25
November 2009) at para 14.
[4]
(A71/2020)
[2020] ZAFSHC 177
(5 November 2020).
[5]
Ibid
para
28.
[6]
Record:
third
respondent’s answering affidavit, p 157 at para 6 and fourth
respondent’s answering affidavit, pp 166 &
167 at paras 2
& 4, read with replying affidavit, p 180 at para 12.
[7]
Record:
founding affidavit, pp 24 & 25 at paras 30 & 31 as well as
annexures FA 7 and FA 8, pp 115 – 117.
[8]
Record:
pp 25 & 26 at paras 32 - 37 read with annexure FA 9, pp 119 &
120.
[9]
Record:
founding affidavit, p 26 at paras 39 & 40.
[10]
Record:
founding affidavit, p 31 at paras 56 & 57.
[11]
Record:
founding affidavit, pp 30 and 31 at para 53.
[12]
Record:
p 169.
[13]
See
Hotz
and Others v University of Cape Town
(730/2016)
[2016] ZASCA 159
;
[2016] 4 All SA 723
(SCA);
2017 (2) SA
485
(SCA) (20 October 2016) para 29.
[14]
Record:
pp 163 & 164.
[15]
1979
(4) SA 342 (W) at p 348 E – H. See also
Thint
(Pty) Ltd v National Director of Public Prosecutions and Others
;
Zuma
and Another v National Director of Public Prosecutions and Others
(CCT 89/07, CCT 91/07) [2008] ZACC 13; 2008 (2) SACR 421 (CC); 2009
(1) SA 1 (CC); 2008 (12) BCLR 1197 (CC) at para 102.