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[2023] ZAGPPHC 1195
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SA Soutwerke (Pty) Ltd v Camel Rock Trading 520 CC - Appeal (A125/2022) [2023] ZAGPPHC 1195 (26 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A125/2022
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED:
YES
SA
SOUTWERKE (PTY) LTD
Appellant
And
CAMEL
ROCK TRADING 520 CC
Respondent
THE
COURT:
1]
This appeal comes before us by way of
special leave from the Supreme Court of Appeal (SCA), against the
whole of the judgment and
order granted on 24 August 2021 by Ranched
J in favour of the respondent
(Camel
Rock). The order of the SCA is dated 11 February 2022.
2]
It is not disputed that the appellant's (SA
Salt) appeal has in fact lapsed. As a result of that event, and the
subsequent ones
that will be set out below, Camel Rock then brought
an application for a declaratory order that the appeal has lapsed. SA
Salt
responded by filing a counter-application for a stay of that
application until its application for condonation and re-instatement
of the appeal was adjudicated. Thus, this hearing is not just in
respect of merits -
it
is also to determine whether or not the condonation should be granted
and the appeal reinstated.
3]
At
the commencement
of
the hearing before us, the parties were informed that they should
address us on all the issues and that we would consider the
issue of
condonation in a composite hearing, including the merits, on the
trite principle that prospects of success is one of the
considerations in the grant or refusal of condonation .
[1]
We
are also mindful of the fact that the interests of justice is a
consideration in the discretion of whether or not to reinstate
the
appeal.
[2]
BACKGROUND
4]
The order appealed against was delivered by
Ranched Jon
24
August 2021 and reads as follows:
"[1]
The application for condonation by
the second respondent-SA
Salt
in these proceedings- for the late filing of its supplementary
affidavit dated
7
June
2019 is granted.
[2]
Leave
is granted to the second respondent to file
a
supplementary answering affidavit.
[3]
Leave
is granted to the applicant (CAMEL ROCK) to file
a
supplementary replying affidavit.
[4]
The
decisions of the first respondent to dismiss applicant's appeal
against
the
rejection of applicant's prospecting right application of 29
September 2009 (NC30/5/1/2/2081PR) is reviewed and set aside.
[5]
The
decision of the first respondent to dismiss applicant's appeal
against
the refusal of applicant's
prospecting right application of 11 December 2009 (NC30/5/1/2/2164PR)
is reviewed and set aside.
[6]
The
decision
of
the
first
respondent
to
grant
a
mining
right
to
second respondent
on Portion 148 (a portion of Portion
59) of the farm Kalahari West 251, district Gordonia, Northern Cape
Province is reviewed and
set aside.
[7]
The decision referred to in para 4,
5 and 6 of this order are substituted with
a
decision to refuse the application of
the second respondent for
a
mining
right and to grant the applicant
a
prospecting right on Portion 148 (a
portion of Portion 59) of the farm Kalahari West 251, district
Gordonia, Northern Cape Province.
[8]
The second respondent is ordered to pay the costs of the application,
such
costs
to
include the costs of two counsel, including the costs of the
application for condonation by it for the late filing of its
supplementary
affidavit dated
7
June
2019."
5]
The
main dispute between the parties involves whether or not a
prospecting right
[3]
or
a mining right
[4]
should have
been granted by the Minister of Minerals and Energy in terms of the
Minerals and Petroleum Resources Development Act
No 28 of
2002(MPRDA). The subject matter of the dispute is a property more
fully described as the Farm Kalahari 251, District of
Cardonia,
Northern Cape Province where salt extraction by SA Salt has taken
place since the early 1980's specifically on Portion
146 and Portion
148 of the farm which is also known as Vrysoutpan. The order granted
by Ranchod J relates to Portion 148, which
is the smaller of the two
portions.
6]
SA Salt has extracted salt from portions
146 as well as 148 of Vrysoutpan for 30 years, but its authority to
do so lapsed on 27
October 1992. It took SA Salt another eight years
to apply to the Department of Minerals and Energy (OMA) for a mining
permit which
it eventually did on 3 November 2000. That consent took
another ten years to grant and was eventually given on 19 August
2002.
7]
On 28 April 2004 another mining permit with
number MP169/2003 was issued to SA Salt. This was valid for a period
of 12 months and
therefore
lapsed
on 27 April 2005. It is important
to
note
that
the
permit
specifically
states
that
it
was
granted
in
respect
of
both
Portions
146
and
148
Vrysoutpan.
Despite
the
fact
that
its
mining
permit expired on 27 April 2005, SA Salt continued to mine salt after
this date and failed to evacuate the property.
8]
On 13 July 2005, a company known as
Saamwerk Soutwerke (Pty) Ltd (Saamwerk) submitted an application to
the DME for a mining permit
in respect of only Portion 146 Vrysoutpan
and was advised by the Deputy Director General of DME that its
application had provisionally
been approved. On 16 August 2006 SA
Salt then addressed a letter to the DME informing it that it was the
holder of another permit
- permit number MR 169/2004 - in respect of
both Portions 146 and 148 Vrysoutpan. As it turned out later, this
allegation was patently
false, a fact which was known to SA Salt at
the time it made the allegation.
9]
Between the period of 20 August 2006 when
Saamwerk requested SA Salt to terminate its mining activities as it
intended to commence
its mining activities on 1 September 2006, and
March 2007, SA Salt not only doubled-down
on its allegations, it also informed the
DME that it was the holder of an old order right in terms whereof it
was entitled to mine
Portions 146 and 148 for a period of 5 years and
that, as a result of this, it contended that the DME had erroneously
granted a
mining permit to Saamwerk. This was another falsehood
concocted by SA Salt to subvert the true facts.
10]
As
a result of all of the above, Saamwerk turned to the courts for
assistance. The result of the litigation has been reported in
two
separate judgments: the first is
Saamwerk
Soutwerke (Edms) Bpk v Minister: Mineraal- en Energiesake
&
Others
[5]
and
the other is reported as
SA
Soutwerke (Pty) Ltd v Saamwerk Soutwerke (Pty) Ltd
&
Others.
[6]
Interestingly
enough, although the Minister initially defended the initial
application brought by Saamwerk, it ended up withdrawing
its
opposition and consenting to the relief sought by Saamwerk.
Importantly, both the court a
quo
and
the SCA found that permit MP169/04 was a falsified document.
[7]
11]
Whilst the above cases were winding
their way through the judicial system, on 29 September 2009, Camel
Rock applied for a prospecting
right for salt on Portion 148
Vrysoutpan. On 2 October 2009 the regional manager of the DME decided
to reject (or rather not to
accept) Camel Rock's application on the
basis that there was an
"existing
right"
in respect
of
Portion
148
as contemplated
in s 16(2)(b), read
with s 16(3) of the MPRDA. The
"existing
right"
was a reference to SA
Salt's application for a mining authorisation which it lodged on 23
March 2007 and stood to be granted in
the event that Saamwerk's
litigation was not successful as SA Salt would no longer have any
mining right over both portions.
12]
Camel Rock failed to appeal against
the regional manager's rejection decision of its September 2009
application within the 30 (thirty)
day period allowed for a s 96
appeal.
It only
did so five months later on 1 March 2010, together with an
application for condonation for the late filing of that appeal.
This was however only after it had lodged
an identical application for a prospecting right on 11 December 2009,
one day after judgment
had been handed down by Lacock J in Kimberley
in favour of Saamwerk.
SA
Salt also lodged an application on the same day as Camel Rock (11
December 2009), but for a mining right on Portion 148.
13]
Both
Camel Rock's and SA Salt's applications were accepted by the regional
manager
[8]
on 18 December 2009
as competing applications.
Processing
of those applications continued in terms of the acceptance decisions.
When
Camel Rock decided to appeal against the rejection of its first
application of September 2009, it did not abandon the acceptance
of
the second application by the regional manager.
SA
Salt's mining right application was refused on 21 October 2011 on the
basis that the land concerned formed part of a military
area. This
was patently incorrect as the area concerned was in fact not part of
military area. SA Salt appealed against the refusal
on 15 December
2011 and its appeal was upheld which resulted in its mining right
application being granted on 26 April 2013.
14]
Camel Rock's prospecting right
application (2164PR), lodged in December 2009 was refused on 8
February 2012 for the same reason
as the initial refusal of the SA
Salt application, namely that the land was a military area.
Camel Rock appealed against this refusal on
12 March 2012 and on 10 February 2014 Camel Rock also appealed to the
Minister against
the DG's decision to grant SA Salt a mining right.
15]
The
three pending appeals were all finally decided by the Minister on 25
November 2015 and the parties were advised of the outcomes
on 15
December 2015. The Minister refused Camel Rock's appeals
[9]
and
confirmed the grant of the mining right to SA Salt.
SA
Salt's mining right was notarially executed on 22 December 2015, and
it was registered in the Minerals and Petroleum Titles Registration
Office on 12 May 2016 under MPT18/2016.
SA
Salt says it thereafter started exercising its mining right.
16]
As a consequence of this appeal
outcome, Camel Rock then instituted review proceedings in this court
in which it sought inter alia
the following relief:
"1.
That
the
First
and
Second
Respondents,
[10]
or
any
interested
party,
show cause why the decision of the First Respondent to dismiss
Applicant's appeal against the rejection of Applicant's prospecting
right application of 29 September 2009 (NC30/5/1/2/2081PR), should
not be reviewed and set aside.
2.
That
the First and Second Respondents, or any interested party, show cause
why the decision of the first respondent to dismiss Applicant's
appeal against the refusal of Applicant's prospecting right
application, of 11 December 2009 (NC30/5/1/212164PR) should not be
reviewed and set aside.
3.
That
the First and Second Respondents, or any interested party, show cause
why the decision of the First Respondent to grant
a
mining right to Second Respondent on
Portion 148 (a portion of Portion 59) of the farm Kalahari Wes 251,
district Gordonia, Northern
Cape Province, should not be reviewed and
set aside.
4.
That
the First and Second Respondents, or any interested party, show cause
why the decisions referred to in prayers 1 to 2 above
should not be
substituted with
a
decision
to refuse the application of SAS for
a
mining right and to grant the Applicant
a
prospecting
right on portion 148 (
a
portion
of portion 59) of the farm Kalahari Wes 251, district Gordonia,
Northern Cape Province."
17]
As stated, it is the outcome of that
application against which this appeal lies.
18]
Before
we
deal
with
the
merits
of
the
appeal
itself,
the
application
for condonation and re-instatement of the
appeal must be dealt with.
THE
CONDONATION APPLICATION
19]
It is, by now, trite that when
considering an application for condonation and re instatement of
an appeal, there are two main
considerations the appeal court will
weigh:
(a)
the
degree of non-compliance with the rules and, together with this the
explanation provided therefor; and
(b)
the
prospects of success on appeal.
20]
As
was explained in
Mosselbaai
Boeredienste (Pty) Ltd v 0KB
Motors
CC:
[11]
"[11]
Where
special leave is sought, as in this case, the existence of reasonable
prospects of success is insufficient, '[s]omething more
by way of
special circumstances is needed'.
[12]
The principles
underlying
an
application for condonation,
in
the context of
a
reinstatement
of an appeal is that the court has
a
discretion
which must be exercised judicially. The Constitutional Court has held
that:
'..
.that standard for
considering an application for condonation is the interests of
justice. Whether it is in the interests of justice
to grant
condonation depends on the facts and circumstances of each case.
Factors that are relevant to this enquiry include but
are not limited
to the nature of the relief sought, the extent and cause of the
delay, the effect
of
the
delay
on
the
administration
of
justice
and
other
litigants,
the reasonableness of the explanation
for the delay, the importance of the issue to be raised in the
intended appeal and the prospects
of success.'
It
is trite that strong prospects of success can often overcome
a
poor
explanation for any delays. Differently stated, strong prospects of
success may trump an unsatisfactory explanation
for
the delay."
[13]
The
timeline
21]
Before the issue of prospects of
success is traversed, it is apposite to comment on SA Salt's failure
to adhere to the time periods
set out in Rule 49, starting with the
fact that with the SCA granting leave to appeal on 11 February 2022,
the Notice of Appeal
was to be filed by 11 March 2022 -
it was not. In fact, it was only filed on
11 May 2022 some two months later. It also bears mentioning that the
late Notice of Appeal
was not accompanied by an application for
condonation.
22]
As a result, on 20 May 2022 Camel
Rock's attorneys sent an email to SA Salt's attorneys informing them
that the appeal had lapsed.
Despite this, no application for
condonation was forthcoming.
23]
By
this stage, and working on the assumption that by filing its (late)
Notice of Appeal
[14]
SA Salt
intended to prosecute its appeal, SA Salt was required to file an
application for a date of hearing within sixty days and
simultaneously therewith, file an appeal record
[15]
-
the
sixty day period expired on 5 August 2022.
24]
Rules 49(6)(a) and 49(7)(a) provide:
"49(6)
(a)
Within 60 days after delivery
of
a
notice
of appeal, an appellant shall make written application to the
registrar of the division where the appeal is to be heard for
a date
for the hearing of such appeal and shall at the same time furnish him
with his full residential address and the name and
address of every
other party to the appeal and if the appellant fails to do so
a
respondent may within 10 days after the
expiry of the said period of 60 days, as in the case of the
appellant, apply for the set
down of the appeal or cross-appeal
which he may have noted. If no such
application
is
made by
either
party the appeal and cross-appeal shall be deemed to have lapsed:
Provided that
a
respondent
shall have the right to apply for an order for his wasted costs.
(b)
The
court to which the appeal is made
may,
on application of the appellant or cross
appellant, and upon good cause shown, reinstate an appeal or
cross-appeal which has lapsed.
(7)
(a)
At the same time as the
application for
a
date
for the hearing of an appeal in terms of subrule (6)(a) of this rule
the appellant shall fife with the registrar three copies
of the
record on appeal and shall furnish two copies to the respondent. The
registrar shall further be provided with a complete
index and copies
of all papers, documents and exhibits in the case, except formal and
immaterial documents: Provided that such
omissions shall be referred
to in the said index. If the necessary copies of the record are not
ready at that stage, the registrar
may accept an application for
a
date of hearing without the necessary
copies if-
(i)
the application is
accompanied by
a
written
agreement between the parties that the copies of the record
may
be handed in late; or
(ii)
failing such agreement, the
appellant delivers an application together with an affidavit in which
the reasons for his omission to
hand in the copies of the record in
time are set out and in which is indicated that an application for
condonation of the omission
will be made at the hearing of the appeal
..."
25]
However, SA Salt had already sought
a date of hearing for the appeal on 2 June 2022 -
what it failed to do was comply with any of
the other requisites
of
Rule 49(7). On 7 June 2022 SA Salt then set this appeal down for
hearing -
it did
so without an application for condonation for the late filing of the
Notice of Appeal, without filing security for costs
of the appeal in
terms of Rule 49(13)(a) and without filing the required Power of
Attorney. Security for costs was eventually provided
during late
September 2022. The Power of Attorney was filed on 1 July 2022 -
some 20 days late.
26]
I emphasize, once again, that at no
stage during the course of any of the above steps, had SA Salt
attempted to file an application
for condonation.
27]
In the meantime, Camel Rock took two
distinct steps:
(a)
on
2 June 2022 it brought an urgent application
in the Northern Cape Division (Kimberley)
under case no 1080/22; and
(b)
on
22 August
2022
it brought
a
formal
Declaratory
application
in
this court.
The
proceedings in June 2022
28]
In that application Camel Rock applied for an
order - on the premise that this appeal had lapsed - that SA Salt be
ordered to cease
its mining activities on Portion 148 and
vacate
the
property
and
remove
all is
assets,
equipment
and belongings, within 72 hours of the
order. This application was opposed by SA Salt and was heard by
Stanton
AJ
on
21
June
2022.
On
23
June
2022
he
dismissed
this
application.
According to SA Salt, this order only came to its knowledge on 8
September 2022 as
"46.1
Neither Stanton AJ's registrar,
nor the registrar of the Northern Cape
Division of the High Court, Kimberley ("the Kimberley registrar?
informed the applicant's
attorneys of record in Kimberley ...that
judgment would be handed down on 23 June 2022.
46.2
The Kimberley registrar signed and
date stamped the order on 18 July 2022
.
.."
29]
According to SA Salt, reasons for the above
order have not yet been provided.
The
Declaratory application
30]
Subsequent to the above order, Camel Rock
brought the present Declaratory application in which it seeks the
following relief:
"1.
Declaring
the decision of the second respondent
[16]
on
7
June
2022 to allocate
a
date
for the hearing of an appeal under such case number to be ultra vires
and void and setting aside such decision.
2.
Directing
the second respondent to remove the appeal from the roll on 26 July
2023.
3.
Declaring
that in terms of Rule 49(6), read with Rule 49(7)(d) of the Uniform
Rules of Court, the first respondent's appeal against
the Order of
Ranchod, J (dated 24 August 2021) has lapsed.
4.
The
first respondent is ordered to pay:
4.1
the costs of the application,
including the costs of two counsel,
one of whom is
a
senior
counsel;
4.2
CRT's costs of the appeal to
date, including the applications for leave to appeal in the High
Court, Gauteng Division,
as
well
as
in the
Supreme Court of Appeal, including the costs of two counsel, one of
whom is
a
senior
counsel."
31]
In response, SA Salt filed not only an
answering affidavit, but also a counter- application
and this on 4 October 2022. Prayer 1 of
that application reads as follows:
"1.
That
the
main
application
be
stayed
until the
final
determination
of
the
first respondent's application for
condonation and declaratory relief/ reinstatement of the appeal by
the full court of this division
of
the High Court under
case
no
A125/2022
..."
Prayer 2 of that
application is stated in the alternative and is, essentially, an
application for condonation and reinstatement
of this appeal.
32]
Attached to the answering affidavit is
Annexure AJB1 and this is no less than the very application for
condonation that could (and
should) have been filed in May 2022. It
too is dated 4 October 2022.
33]
When pressed on the issue of why the
condonation application was not filed at the first opportunity after
SA Salt was informed that
the appeal had lapsed, the response was
that the Kimberley application had to be finalised first. The
argument was founded on the
premise that had the Kimberley
application been successful, that would have put pay to the present
appeal. But this argument simply
does not pass muster as, not only
was the Kimberley application only launched 10 days after SA Salt was
informed that its appeal
had lapsed, but because SA Salt actually
took steps in the prosecution of this appeal between the date
judgment was reserved in
Kimberley on 21 June 2022 and 8 September
2022 when it avers the order was brought to its attention.
34]
Importantly,
Annexure
AJB1
is
a
self-standing
application
-
it
is
titled
"Appellant's
Application for Condonation and Declaratory Relief/ Reinstatement of
the Appeal."
The
Notice
of
Motion
is
dated
3
October
2022
and,
in
effect,
it
seeks condonation for the following:
(a)
SA
Salt's failure to timeously file a Notice of Appeal;
(b)
SA
Salt's failure to timeously file the Power of Attorney;
(c)
SA
Salt's failure to comply with Rules 49(7)(d), (49(7)(a)(ii) and
49(7)(a);
(d)
SA
Salt's failure to timeously furnish security for the costs of the
appeal; and
(e)
the
registrar's failure to enforce the provisions of Rule 49. It also
seeks an order that the appeal be reinstated.
35]
By filing the application for condonation,
in effect what has occurred is that Camel Rock's Declaratory
application has been overtaken
by events. That should have put paid
to it for an obvious reason: were the condonation application to
succeed, that would put an
end to the declaratory application.
However, the former was persisted with (although not vigorously
argued) and at the end of the
day comes down to little more than a
costs argument.
Should
condonation be granted?
36]
In
Aurecon
South Africa (Pty) Ltd v City of Cape Town
[17]
it
was held that the relevant factors in an enquiry regarding
condonation generally include the nature of the relief sought; the
extent and cause of the delay; its effect on the administration of
justice and other litigants; the reasonableness of the explanation
for the delay which must cover the whole period of delay; the
importance of the issue to be raised and the prospects of success.
The onus is on the applicant to satisfy the court that condonation
should be granted. The discretion to be exercised is one in
the true
sense and is exercised upon a consideration of all the circumstances
of the case, which in
Mosselbaai
Boeredienste
was
stated to include the interests of justice. Furthermore, good
prospects of success on the merits may compensate for a poor
explanation of the delay.
[18]
Thus, should the prospects of success on appeal be strong,
condonation will be granted despite a party's explanation being
unreasonable.
[19]
37]
The explanation proffered by SA Salt for
its delay is the following:
(a)
although
the SCA order was given on 11 February 2022, it only came to its
attorney's
[20]
attention
on 16 February 2022 and on 17 February 2022 he asked his Pretoria
correspondents to assist in the preparation of the appeal
record and
the steps necessary to prosecute the appeal;
(b)
the
Pretoria correspondent understood this to mean that they were only
required to assist in the preparation of the appeal record.
On 9
March 2022 Mr van den Heever received the quotation for the
preparation of the appeal bundles;
(c)
however,
it appears that his work took him away from the office and then he
contracted COVID-19.
[21]
According to the explanation provided, he was in other courts with
other matters, consulting with counsel and attending the trials
in
these matters;
(d)
in
fact, it appears from his affidavit that between 17 February 2022
when he sent the initial instruction to his correspondent,
and 20
April 2022 when he eventually followed up on this instruction, Mr van
den Heever paid no attention to this appeal at all.
38]
On 22 April 2022, Lesego Maphetle of SA
Salt's attorney of record, attended the appeals office at this court
only to be informed
that the clerk dealing with appeals was on leave
until 3 May 2022. She was also informed that a notice of appeal with
its annexures
(and complying with Rule 49(6)) should be filed,
uploaded to Caselines and an email sent to the Civil Appeals
registrar; and that
the registrar would then provide a case number
which must correspond with all documents. The registrar would also
then provide
a directive which had to be followed.
39]
However,
none
of this was communicated
to
Mr van den Heever until he sent a letter requesting an update on 4
May 2022 -
this
was some 2 weeks later and 3 weeks after his letter of 20 April 2022.
This time lapse is nowhere explained.
40]
On 5 May 2022 counsel was instructed to
draft a Notice of Appeal -
why
this instruction was not given after 11 February 2022 already is also
not explained. The Notice of Appeal was sent to Mr van
den Heever on
10 May 2022 and filed on 11 May 2022. It was uploaded to Caselines on
12 May 2022.
41]
Given that Camel Rock was of the view that
the appeal had lapsed, and its demand that SA Salt vacate the
property, it is hardly
surprising that this resulted in the Kimberley
application. Furthermore, given that that application failed and that
SA Salt had
still failed to bring a formal application for
condonation, it is also hardly surprising that the Declaratory
application was launched
on 22 August 2022. It took that to move SA
Salt enough to finally decide to launch the condonation application.
42]
This leads
then
to the issue
of
why the application
was
not launched
after the letter of 20 May
2022.
As
stated,
the
argument
was
that SA Salt
was
awaiting
the
outcome of the Kimberley application before taking steps to prosecute
its appeal. But this argument completely loses sight of
the fact
that, on its own version, SA Salt only became aware of the order on 8
September 2022. Yet, in June 2022 it applied for
a date of hearing
for this appeal; on 1 July 2022 it filed its power of attorney in
respect of the appeal, on 26 July 2022 it set
the appeal down and on
23 August 2022 it filed the appeal record. Only 2 events occurred
subsequent to 8 September 2022: the filing
of security for costs of
the appeal and the present application for condonation.
43]
Thus the argument proffered supra is simply
untrue when viewed against the backdrop of the above events, and it
falls to be rejected.
44]
Furthermore, whilst we may (at a stretch)
consider that there has been an explanation given for the delay until
the filing of the
Notice of Appeal, there is simply a failure to
fully explain all the further delays in the prosecution of this
appeal. There is
also a complete failure to explain why the
provisions of Rule 49(7)(a)(i) or (ii) were not followed.
45]
It
has been stated on many occasions that
"[a]n
attorney who is instructed to prosecute an appeal is...duty bound to
acquaint himself with the procedure prescribed by
the Rules of Court
to which
a
matter
is being taken on appeal.
[22]
"
It
is also by now trite that an application for condonation must be made
as soon as possible after a party becomes aware of its
failure to
comply with the rules.
[23]
Neither of these principles were paid much heed by SA Salt.
46]
Thus, the application for condonation is
without merit. However, as weak as the application may be, it may be
saved by good prospects
of success on the merits, which now fall to
be considered.
PROSPECTS
OF SUCCESS
47]
The facts leading up to the review
application have been set out supra and are not repeated. What is
important to note is that when
Camel Rock instituted review
proceedings against the Minister's decisions on 8 June 2016 the
"existing right"
-
which was the basis for the regional manager's decision to reject
Camel Rock's September 2009 application - was the same right
which
Lacock J set aside on 10 December 2009. It was SA Salt's mining
permit MP169/2004 pertaining to both Portions 146 and 148.
Lacock J
issued a declaratory order on 10 December 2009 that SA Salt's mining
permit MP169/2004 was void and SA Salt was not permitted
to mine on
the farm and was to forthwith cease all mining activities on the
farm.
Lacock J
found that it was common cause the MP169/2004 was not only void, but
also a forgery and that it was improbable that the
management of SA
Salt was not aware that it had been forged.
The learned judge stated that SA Salt had
mined illegally for more than five years on the land in question.
48]
This
finding of Lacock J was confirmed by the SCA
[24]
.
The SCA found that the only valid permit issued to SA Salt was
MP169/2003, which had expired on 27 April 2005.
As
a consequence, SA Salt had continued mining for at least five years
without a valid permit.
49]
The
upshot of the aforesaid was that, when Saamwerk applied for a mining
permit on 13 July 2005, and it was accepted by the DME
on 5 September
2005, SA Salt's permit MP169/2003 had already expired.
The
permit was therefore not a barrier to Saamwerk obtaining a mining
right.
However,
SA Salt asserted its rights under the forged permit MP169/2004 to
thwart Saamwerk's mining right.
In
consequence, the SCA held SA Salt liable in damages to Saamwerk for
the period of its unlawful mining.
[25]
The SCA concluded
[26]
that SA
Salt and the Department were complicit in forging MP169/2004, and SA
Salt's reliance on MP169/2004 was fraudulent.
This
caused Saamwerk to be deprived of the right to mine at Vrysoutpan and
liability for damages was imposed on SA Salt for this
reason for the
period 6 September 2008 to 25 June 2011.
50]
In
our view, these findings against SA Salt regarding its unlawful
activities on the portions of the farm were relevant considerations
at the time when SA Salt and Camel Rock applied for their respective
mining rights and prospecting rights on 26 September 2009
and 11
December 2009. Which considerations are material considerations
depends on the facts. According to De Ville:
[It]
appears axiomatic that
a
court
will hold
a
factor
to be relevant only when it is material to the decision to be
taken."
[27]
.
In
our view, these considerations were material to the decision of the
Minister.
51)
These
considerations however were not disclosed to the Minister at the time
he assessed the competing applications.
The
Minister therefore failed to take into account material
considerations militating against the granting of mining rights to SA
Salt.
52)
The
importance of the SCA judgment is that adverse factual findings had
been made in respect of SA Salt, which were relevant to
its
assertions during both September 2009 and December 2009.
In
our view, there was in fact no valid competing interest when Camel
Rock applied for
its
prospecting
right on 26 September 2009.
Therefore,
in terms of the provisions of the MPRDA the director was obliged to
accept Camel Rock's application.
[28]
In
contrast, it was not accepted due to the existence and assertion of
an invalid competing right based on MP169/2004.
Further,
as at 11 December 2009, when both Camel Rock and SA Salt applied on
the same day for their respective mining rights and
prospecting
rights on the same property, SA Salt failed to disclose to the
Minister that it had been holding over unlawfully on
the property
based on the forged permit, as a result of which it was held liable
in damages to Saamwerk for a period commencing
in September 2008 and
running up to 25 June 2011.
Had
the Minister taken these facts into account, he would have refused SA
Salt's application forthwith.
His
failure to do so renders the decision to dismiss Camel Rock's
application and to grant SA Salt's mining right reviewable. This
is
confirmed when one has regard to facts known to the DME in September
2009 and when consideration is had to the fact that on
16 September
2014 the DG obtained an opinion from Senior Counsel regarding the
issue. The advice to both him and the Minister was
that the Regional
Manager should have accepted Camel Rock's application and that the
decision to reject it cannot be justified.
Counsel's advice to the
Minister was that he should overturn the decision not to accept Camel
Rock's application and its appeal
be upheld.
53]
This advice was, however, not
followed by either the DG or the Minister.
54]
It was also argued by SA Salt that,
even if it could be said that the above facts should be accepted,
Camel Rock's application for
a prospecting licence cannot be granted
as it does not pass muster. The argument is that Camel Rock's bald
assertions that it had
complied with all the requirements of a
prospecting right simply are untrue as there are a number of serious
defects in its application.
55]
But,
when viewed on the facts of this case, Camel Rock's application was
not rejected by the DME because it was defective or deficient
-
it
was rejected for the reasons set out supra. It also cannot be ignored
that its December application
[29]
was accepted
and
considered
on
its
merits.
One
would
have
expected
that
were
it
defective, the DME would have informed Camel Rock that this was the
reason it was rejected, or the Minister would have refused
the appeal
on that ground. Neither of these were the case.
56]
Furthermore,
the Minister did not oppose the review application. Given Prayer
4
[30]
of
the Notion of Motion, one would have expected the Minister to have
filed an affidavit that the relief could not be granted -
this
too did not occur. As was stated by Ranchod J
[31]
:
"..
.It
is apparent from the papers that the applications submitted by the
applicant were never rejected or refused by the Minister
because of
non-compliance with the Act or any of the Regulations. From the
record it appears that all necessary, relevant records
and documents
for evaluating and approving CRT's
[32]
applications were before the OME when it had to consider them,
as
well
as
the
other officials, including the Minister when considering CRT's
applications ..."
57]
Given all of the above, we are of
the view that there are no prospects of success on appeal.
As the appeal was bound to be dismissed on
its merits, there is no basis for granting condonation and
reinstatement
of
the appeal.
CONCLUSION
[58]
Given that there are no prospects of success on
appeal, and given the extreme shortcomings
in the application for condonation, it must
fail.
COSTS
59]
Whilst
the costs of the application for condonation and appeal must follow
the result, there being no reason to deviate from the
usual rule, it
is the costs of the Declaratory application that must now be decided.
Whilst that application, in its pure form,
was not argued, it cannot
be ignored that it provided the impetus to SA Salt to get out of its
blocks. The result was the condonation
application of which the
counter- application was a fore-runner in any event. The application
for a declaratory order was taken
over by events.
In terms of Rule 6(6) we make no order on
the application, save for the costs.
CRT
is entitled to its costs up to filing of the counter-application.
THE
ORDER
60]
The
order is the following:
1.
The
application
for
condonation
and
reinstatement
of
the
appeal
is dismissed with costs, including the
costs of two counsel.
2.
Camel
Rock
Trading
is
entitled
to
its
costs
of
the
application
for
a declaratory
order up to date of filing of the
counter-application.
N
KHUMALO
(MS)
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
agree
B
NEUKIRCHER
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
E
LABUSCHAGNE
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Delivered:
This judgment was prepared and authored by the Judges whose names are
reflected and is handed down electronically by
circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on Caselines.
The date for
hand-down is deemed to be
26
September
2023.
Appearances:
For
appellant
Adv D
van Loggerenberg SC, with him Adv JL Gildenhuys Sc
Instructed
by:
Hannes
Gouws & Partners Inc
For
respondent:
Adv
CDA Loxton SC, with him Adv A Mooij
Instructed
by:
Wessels
& Smith Inc
Date
of hearing:
26
July 2023
Date
of judgment:
26
September 2023
[1]
Melane
v Southern Insurance Co. Ltd
1962 (4) SA 1
(AD)
[2]
Mosselbaai
Boeredienste (Pty) Ltd t/a Mosselbaai Toyota v 0KB
Motors
CC t/a Bultfontein Toyota
[2023] ZASCA 91
at par
[11]
[3]
For
Camel Rock
[4]
For
SA Salt
[5]
Case
no 292/2007 (29 January 2010) The litigation was in Northern Cape
High Court, Kimberley where Saamwerk sought an order declaring
that
SA Salt's mining authorisation pertaining to both Portions 146 and
148 was void or had lapsed. It was heard by Lacock J
and judgment
was delivered on 29 January 2010-
[6]
[2011]
4 All SA 168
(SCA) is the appeal in which the above decision was
confirmed by the
SCA-
the reference to the judgment of Lacock J is at par [21] at 176
[7]
Para
[21] of the SCA judgment,
although
the
High Court
specifically
found
that
the
permit
had
been forged (as confirmed
by
the SCA in
para
[39])
[8]
In
terms of s 16 and s 22 of the MPRDA
[9]
The
basis of Camel Rock's refusal was that SA Salt held a mining right
for the same mineral and land
[10]
These
being the Minister and SA Salt respectively
[11]
(1216/21)[2003]
ZASCA 91 (9 June 2023) at para (11]
[12]
Per
fn 5 of Mosselbaai Boeredienste
"Including:
'..
.that
the appeal raises
a
substantial
point of law; or that the prospects of success are so strong that
a
refusal
of leave would result in
a
manifest
denial of justice; or that the matter is of great importance to the
parties or the public.'
"
(citations excluded)
[13]
Also
United Plant Hire (Pty) Ltd v Hills
1976 (1) SA 717
(A) at 702 E;
Van Wyk v Unitas Hospital
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at para
[20]
[14]
And
using that date as a launch pad for the further steps taken by SA
Salt
[15]
In
terms of Rule 49(7)(a)
[16]
The
registrar of this court
[17]
2016
(2) SA 199
(SCA) at para [17]; PAF v SCF 2022 (6) 162 (SCA) at paras
[15] and [21]
[18]
United
Plant Hire (Pty) Ltd v Hills and Others 1976 (SA) 717 (A) at 720E-G
[19]
United
Plant Hire (supra) at 722C: Mabesete and Others v Booi and Another
(CA 149/2021) [2023] ZAECMKHC 54 (2 May 2023)
[20]
Mr
van den Heever
[21]
According
to his affidavit he became ill at the end of March 2022 and was
eventually booked off by a medical practitioner from
11 to 15 April
2022
[22]
Moaki
v
Reckett
and Coleman (Africa) Ltd and Another
1968 (3) SA 98
(A) at 101G; PAF
v
SCF (supra)
[23]
PE
Bosman Transport Works Committee and Others
v
Piet
Bosman Transport (Pty) Ltd
1980 (4) SA 794
(A) at 800A-C
[24]
As
stated in paragraph 10 supra
[25]
Para
[15] of the SCA judgment [2011] ZASCA 109
[26]
Para[51]
[27]
p
180, JR De Ville,
Judicial
Review of Administrative Action in South Africa,1
st
rev 2005
[28]
In
terms of s 16)2)(a) -
(c)
of the MPRDA
[29]
le
the first application it submitted
[30]
The
substitution relief sought
[31]
Judgment
a quo at para [87]
[32]
Camel
Rock