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[2022] ZAECMKHC 56
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Lolo & Lolo Development Services CC v Great Kei Local Municipality and Others (1623/2022) [2022] ZAECMKHC 56 (30 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: 1623/2022
In
the matter between:
LOLO
& LOLO DEVELOPMENT SERVICES CC
REGISTRATION
NUMBER 2004/000760/23
Applicant
And
GREAT
KEI LOCAL MUNICIPALITY
First Respondent
MULEKA
SA CC
REGISTRATION
NUMBER 2011/023586/23
Second Respondent
THE
MINISTER: DEPARTMENT OF MINERAL
RESOURCES
AND ENERGY
Third Respondent
THE
MINISTER: DEPARTMENT OF FORESTRY,
FISHERIES
AND ENVIRONMENT
Fourth Respondent
THE
DIRECTOR GENERAL: DEPARTMENT OF
MINERAL
RESOURCES AND ENERGY
Fifth Respondent
THE
REGIONAL MANAGER, MINERAL REGULATION
EASTERN
CAPE REGION: DEPARTMENT OF
MINERAL
RESOURCES AND ENERGY
Sixth Respondent
JUDGMENT
BESHE
J:
[1]
This is Part A of a two-part
application brought on an urgent basis. Applicant seeks an
interim
order interdicting and restraining the first and second respondents
from giving further effect to a contract awarded by
the second
respondent to the first respondent. Also sought is an order directing
the second respondent to cease all mining activities
on the remainder
of Erf 102, Kei Mouth. Further, for the second respondent to return
the borrow pit and all aggregate removed by
it, pending the relief
sought in Part B.
[2]
In Part B, the applicant will
seek the review and setting aside of first respondent’s
decision in granting approval to the second respondent in respect of
tender described as INFRA/OTP OF THE REMAINDER OF ERF 102
KEI MOUTH –
FOR THE PURPOSE OF BORROW-PIT - IMPLEMETATION OF SURFACING OF KEI
MOUTH INTERNAL STREETS
The
Parties
[3]
Applicant describes itself as a
close corporation which carries on the business of mining,
specialising in the mining and crushing of aggregate and gravel for
use in construction, maintenance, repair and upgrading of roads.
The
first respondent is a municipality as contemplated in Section 12 of
the Local Government:
Municipal Systems Act, Act 32 of 2000
.
The
second respondent is also a close corporation who was appointed by
the first respondent during March 2022 to source material
from a
borrow-pit located on the property described earlier, which it will
then supply to first respondent, being aggregate and
gravel for the
purpose of surfacing of streets in Kei Mouth.
It
is clear from their citation who the rest of the respondents are. No
relief is sought from them.
The
application is opposed by the first and second respondents only.
Issue
[4]
Applicant’s complaint is
that first respondent’s decision to approve the second
respondent’s right to mine on the property in question is
unlawful. Consequently, the actions of the second respondent to
mine
aggregate and gravel from the property without a mining permit
constitutes an offence in terms of the
Mining and Petroleum
Resources Development Act 28 of 2002
(MPRDA). To this end,
applicant seeks an interim interdict to restrain first and second
respondents from implementing the contract
in question any further,
pending the reviewal of first respondent’s decision. On the
other hand, first and second respondents
deny that second respondent
is mining from the said property and that applicant is entitled to
the interdict it seeks. They also
deny that the matter requires the
urgent attention of this court.
Common
cause factors
[5]
What emerges from the papers
filed by the parties is that the following facts are not in
dispute
between them:
First
respondent is the owner of Erf 102 and Erf 106, Kei Mouth.
First
respondent appointed second respondent to source material from the
borrow-pit located on the remainder of Erf 102 for the
purpose of the
construction of first respondent’s internal streets in Kei
Mouth. This was pursuant to a tender process.
Second
respondent is not in possession of a mining permit issued by third
respondent. This was in any event not part of the tender
requirements
that tenderers should be in possession of a mining permit.
Evidence
on disputed facts:
Applicant’s
founding affidavit
[6]
Attention in this regard will
mostly be paid to evidence relating to the entitlement to
the interim
relief sought by the applicant. Whether the requirements of an
interim interdict have been satisfied, that is if the
application
requires the urgent attention of this court. Applicant claims that
its
locus standi in judicio
stems from the fact that it holds
a valid mining permit issued by the third respondent in respect of
the property in question.
According to the applicant, first
respondent has approved second respondent’s right to mine on
the Erf 102 thereby directly
affecting the constitutional rights of
the applicant. Following approval by the first respondent and as
appointed contractor, second
respondent is sourcing material from the
borrow-pit and excavating, digging and stock piling material for use
in constructing roads
in Kei Mouth. Applicant asserts that second
respondent is acting unlawfully.
[7]
According to the applicant, its
prima facie
right derives from the fact that applicant is the
only holder of mining permit in respect of Erf 102 Kei Mouth and
therefore the
only entity that is entitled to mine on the said
property.
[8]
Applicant fears that he will
suffer irreparable harm in that it has been brought to the
second
respondent’s attention that it is not permitted to continue
with the borrow-pit activity but is continuing with same.
That if it
is not interdicted, it will continue with the borrow-pit activities
concerned and possibly complete the tender by the
time the review
proceedings are finalised. By that time the open cast mine may well
have been depleted of materials rendering applicant’s
permit
nugatory.
[9]
It is contended on behalf of the
applicant that the balance of convenience favours the
granting of the
relief sought because:
The
applicant has a strong case in the review because the tender should
not have been awarded to the second respondent which does
not have a
valid mining permit in respect of Erf 102.
[10]
It is further contended that there is no suitable
alternative remedy that is available to the applicant
because it will
be difficult to quantify the value of materials removed and it will
take years to pursue a claim for damages against
the second
respondent. In circumstances where there is no guarantee that the
second respondent will be able to satisfy the judgment.
Averments
about urgency
[11]
Applicant states that on becoming aware of the
approval by the first respondent of second respondent’s
tender
in March 2022, he prevailed on the first respondent through its
attorneys, to withdraw the approval because second respondent
is not
in possession of a mining licence. First respondent has refused to
withdraw the approval. Third respondent’s department
was
approached with a request that it ensures compliance with legislation
relating to borrow-pit activities. Applicant asserts
that it was
obliged to take all reasonable steps to resolve the matter without
recourse to the courts. Further that the harm sought
to be prevented
is ongoing.
Respondent’s
case
[12]
Primarily, first respondent complains that the
applicant created its own urgency. Applicant became aware
of the
award of the tender to the second respondent as far back as the 18
March 2022. Papers were only served on the first respondent
at 12h30
on the 25 May 2022. First respondent was required to oppose the
application by 12h00 on the same date and file its opposing
affidavit
by 15h00 on 27 May 2022. First respondent agitates for the dismissal
of the application with costs for this reason alone.
[13]
Regarding the merits, first respondent denies that
the tender was for mining, blasting and excavating of
material.
Alleges that it was for transporting of stock pile from the mine to
the areas where roads in Kei Mouth needed to be repaired.
In the
letter addressed to the second respondent by the first respondent the
following is recorded:
“
This
letter serves as the approval for Muleka SA CC (appointed contractor
– as per attached appointment Letter Annexed AA)
to source
material from the borrow-pit located on the remaining extent of Erf
102 located in Kei Mouth for the purpose of the construction
of the
municipal internal streets in Kei Mouth.
The
following approval is based on the following conditions:
1.
The contractor must not temper the environment.
2.
The contractor must rehabilitate the borrow-pits once the project is
finished.”
[14]
After the project has started, the deponent to the
founding affidavit approached the Municipal Manager of
the first
respondent (deponent to the opposing affidavit) expressing a wish to
be utilized by the second respondent to assist with
the
transportation of the material. It was also stated by applicant that
it held a mining permit for the mine in question. The
said permit is
allegedly dated 24 February 2022 according to first respondent.
However, the Department of Mineral Resources and
Energy (sixth
respondent) did not engage with the first respondent in connection
with the issuing of the permit even though the
Erf in question
belongs to the first respondent. On or about the 17 May 2022, members
of the South African Police Service and officials
of the sixth
respondent insisted that the transportation of material from the mine
stops with immediate effect. Basically, the
first respondent is
questioning the applicant’s right to mine on the farm in
question. And that applicant has established
a
prima facie
right
in this regard. First respondent points out that applicant did not
apply for the tender in question. The mining permit purportedly
issued to the applicant is dated the 24 February 2022 and therefore
post-dates the awarding of the tender to the second respondent
which
occurred on the 15 February 2022.
[15]
Three things stand out as regards the urgency or
otherwise of the matter:
Firstly,
on the 31 May 2022, giving effect to the tender that was awarded to
the second respondent was interdicted
albeit
on an interim
basis. And at the instance of a different applicant;
Secondly,
there is evidence that officials of the fifth respondent insisted
that all transportation of material for the Erf in question
be halted
with immediate effect;
Thirdly
and lastly, the applicant has been aware of the approval since March
2022 and immediately started engaging with the first
respondent in a
bid to have the approval of the second respondent withdrawn. No
response was forthcoming from the first respondent.
But applicant
waited until the end of May to launch this application on an urgent
basis. When it must have been clear when no response
was forthcoming
from the first respondent as far back as March 2022 that it was not
amenable to withdrawing the approval in question.
Granted that the
matter was not heard on the date envisaged in the notice of motion,
the 31 May 2022. In terms of the said notice
of motion, respondents
opposing the application were required to give notice of such
opposition by 16h00 on Wednesday the 25 May
2022. The first
respondent was served with the papers at 12h00 on the 25 May 2022. In
respect of the second respondent, copies
of certificate of urgency
and the notice of motion were affixed to the outer door of its
registered address at 14h58 on 25 May
2022.
[16]
I have already alluded to the fact that the
applicant has been aware since March 2022 that second respondent
has
received first respondent’s approval to source material for the
borrow-pit located at Erf 102 Kei Mouth. Also that the
applicant was
aware that the second respondent was carrying out the work as
aforementioned. In my view, the time frames set by
the applicant were
not warranted in the circumstances. The fact that the applicant
waited this long to launch the application after
being aware of the
award of the tender to the second respondent, one he had not even
vied for, disqualifies it from claiming urgency
by modifying the
rules to the extent that it did. Especially in view of the fact that
it was clear that the first respondent was
not relenting. There was
no justification for forcing the respondents to come to court at such
a short notice. I am mindful of
the fact that because of the removal
of the matter from the roll on the 31 May 2022 (for lack of evidence
regarding proper service
to second respondent) and a postponement
after the matter had been placed back on the roll, parties were able
to file the requisite
papers. But this is neither here nor there. As
Kroon
J
emphasised
in
Caledon
Street Restaurants CC v D’Aviera
[1]
(unreported), that, “the fact that, in the result, and after a
postponement of the matter, the papers are complete by a particular
date and the matter is in a sense ripe for hearing, must not be
allowed to cloud the issue whether the applicant’s modification
of the rules on the ground of urgency was acceptable.” In
casu
I am inclined to agree with the opposing respondents that the urgency
was self-created. Granted, the parties managed to file the
requisite
papers and the parties were before court. In the
Caledon
matter
referred to earlier, the court went on to say:
“…
…
the
attractiveness of finally disposing of the litigation should not be
allowed to govern. The approach should rather be that there
are times
where, by way of nonsuiting an application, the point must clearly be
made that the rules should be obeyed and that the
other party and his
lawyers should be accorded proper respect, and the matter must be
looked at to consider whether the case and
time is such a case or
not.”
[17]
I am of the view that this is a matter where the
applicant should be non-suited on the basis of firstly,
lack of
urgency and or self-created urgency for and the two reasons stated
earlier, namely: the tender that was awarded to the
second respondent
by first applicant had been interdicted at the time the application
was argued. Secondly, officials of the fifth
respondent insisted that
work be halted at the farm in question i.e. relating to the removal /
transportation of borrow-pit and
aggregate.
[18]
Accordingly, Part A of the application is
dismissed with costs.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicant
:
Adv: G Brown
Instructed
by
: STEYN INC.
C/o
KAWONDERA ALEX ATTORNEYS INC.
115
High Street
City
Chambers
MAKHANDA
Ref:
Mr A Kawondera
Tel.:
046 – 307 0046
For
the 1
st
Respondent :
Adv: I J Smuts SC
Instructed
by
: WHEELDON RUSHMERE & COLE INC.
119
High Street
MAKHANDA
Ref:
Mr Brody/Dianne
Tel.:
046 – 622 7005
For
the 2
nd
Respondent :
Adv: L D Ntlokwana
Instructed
by
: MP NCAME ATTORNEYS INC.
C/o
AKHONA GEORGE & ASSOCIATES
118
High Street
Milbarn
Centre
MAKHANDA
Ref:
A George
Tel.:
046 – 004 0025
Date
Heard
: 17 June 2022
Date
Reserved
: 17 June 2022
Date
Delivered
: 30 August 2022
[1]
[1998] JOL 1832
(SE).