Joubert and Others v Maranda Mining Company (Pty) Ltd (296/08) [2009] ZASCA 68; 2010 (1) SA 198 (SCA) ; [2009] 4 All SA 127 (SCA) (29 May 2009)

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Joubert and Others v Maranda Mining Company (Pty) Ltd (296/08) [2009] ZASCA 68; 2010 (1) SA 198 (SCA) ; [2009] 4 All SA 127 (SCA) (29 May 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 296/08
In
the matter between:
M L JOUBERT
FIRST APPELLANT
M L JOUBERT N.O.
SECOND APPELLANT
(In her capacity as trustee of Sanwild Wildlife
Trust)
A H GROBLER N.O.
THIRD
APPELLANT
(In his capacity as trustee of Sanwild Wildlife
Trust)
R SAVORY N.O.
FOURTH APPELLANT
(In her capacity as trustee of Sanwild Wildlife
Trust)
THE MURRAY FOUNDATION CONSERVATION
FIFTH APPELLANT
HOLDINGS (PTY) LTD
v
MARANDA
MINING COMPANY (PTY) LTD RESPONDENT
Neutral citation:
Joubert
v Maranda Mining Company
(296/2008)
[2009]
ZASCA 68
(29 May 2009).
Coram: Nugent, Van Heerden, Mlambo JJA, Kroon et Leach
AJJA
Heard: 11 May 2009
Delivered: 29 May 2009
Summary: Right of access to
land in terms of
Mineral and Petroleum Resources Development Act 28
of 2002
– unreasonable refusal by land owner and occupier to allow
mining permit holder access to land – held that when permit holder

has complied with all requirements in terms of the Act it has a right
to enter the land to exercise its rights.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
High Court,
Pretoria (Claassen J sitting as court of first instance).
The following order is made:
‘
The appeal is dismissed with costs including the
costs occasioned by the employment of two counsel.’
________________________________________________________________
JUDGMENT
________________________________________________________________
MLAMBO JA (Nugent, Van Heerden JJA, Kroon, Leach AJJA
concurring)
[1] On 11 April 2008 the North Gauteng High Court
(Claassen J) granted the respondent final relief on an urgent basis,
inter alia
interdicting and restraining the appellants from refusing
the respondent access to a piece of land described in the relevant
title
deed as the remaining portion of portion 7 of the farm
Leydsdorp Township 779, Registration Division LT, Northern Province
(now
Limpopo), size 2604,0827 hectares (the land). This appeal is
against the order and judgment of the court a quo with the leave of

that court.
[2] The matter revolves around a goldmine on the land
that was originally worked in the 1890s, after which all mining
activities
ceased. However, mineral sampling reports conducted
subsequently indicate that the land remains mineral-rich. The title
deed records
that, subject to certain conditions, the mineral rights
on the land vested in the State. In any event, when the Mineral and
Petroleum
Resources Development Act 28 of 2002 (the Act) came into
effect on 1 May 2004 the State became the custodian of all minerals
in
the whole of the Republic of South Africa.
1
The portion on which the mineral rights are found cover 0,03 per cent
or 1.5 hectares of the land. For convenience I refer to this
portion
of the land as the mineral rights area.
[3] The respondent acquired the mineral rights in
February 2005 from Dynamic Mineral Development (Pty) Ltd whose
predecessor in
title had acquired them in 2002 from the Department of
Minerals and Energy (DME) representing the State. At the time the
respondent
acquired the mineral rights, Come Lucky (Pty) Ltd (Come
Lucky) was the owner of the land. The deed of transfer in terms of
which
the DME alienated the mineral rights defined these as certain
20 unnumbered base mineral claims.
[4] Come Lucky did not participate in the proceedings in
the court a quo even though it was cited as the first respondent. It
also
does not feature in this appeal, having sold the land in the
interim to the fifth appellant who took transfer in February 2008.

The first to fourth appellants are the trustees of Sanwild Wildlife
Trust (Sanwild). Sanwild conducts a wildlife sanctuary as well
as
eco-tourism operations on the land and appears to have occupied the
land since about September 2006. It has a 26 per cent shareholding
in
the fifth appellant.
[5] On acquisition of the mineral rights the respondent
applied to the Minister of Minerals and Energy (the Minister) in
April 2005
for a prospecting right
2
and a mining permit.
3
On the acceptance of the application for a mining permit by the
regional manager of the DME, the respondent lodged an environmental

management plan in July 2005. In June 2005 the respondent notified
Come Lucky, as owner of the land, and its attorneys that it
had made
the applications and invited the latter to lodge objections, if any,
against the grant thereof. This notification mentioned
that the
respondent intended to opencast a section of the mineral rights area
and also referred to its obligation to compensate
Come Lucky. In this
regard it offered a once-off payment of R 5 000 per hectare.
[6] Come Lucky lodged an objection
4
against the applications alleging inter alia that:
‘
The proposed mining
operations will undoubtedly have a deleterious impact on the eco-
tourist and environmentally orientated activities
of our client and
the nature of its business. Without in any way limiting the effects
of the proposed mining activities, the deleterious
impact and
ecologically degrading result include, but are not limited to
inter
alia
,
1. the disturbance of game and
game breeding operations arising from the noise and blasting
associated with the mining operation;
2. the cancellation of safaris
as a result of the noise and disturbance of drilling and mining
operations; and
3. the general degradation and
pollution of the environment arising from the open cast mining
operations.’
The Minister, however, granted the respondent the
mining permit on 21 September 2006 and approved the
environmental management
plan on 19 December 2006. These
decisions were never challenged by Come Lucky.
[7] Having been granted the mining permit and with its
environmental management plan approved, the respondent informed Come
Lucky
in March 2007 of these developments. The respondent also
informed Come Lucky that it intended to exploit its mining rights
in
terms of the permit and consequently raised the issue of access to
the land as well as compensation. This approach elicited
no
favourable response, save that Come Lucky’s attorneys requested
copies of the applications for prospecting and mining permits
and
ultimately indicated that they had instructions to oppose any
application that may be brought in the high court. The respondent

thereafter notified the regional manager of DME that it was being
denied access to the land. This prompted the regional manager
to
write to Come Lucky recording the respondent’s complaint and
warning the former that steps could be taken against it in terms
of
the Act regarding its refusal to allow the respondent access to the
land. The letter (dated 11 July 2007) also invited Come
Lucky to make
representations in respect of the respondent’s complaint and
invited it to show cause why the respondent should
not be allowed
access to the land. This also evoked no response from Come Lucky,
whereupon the respondent notified the latter that
it intended to
enter the land with immediate effect to exercise its mining rights.
[8] In October and November 2007 the respondent
attempted to gain access to the land but was prevented from doing so
by a representative
of the appellants. On the latter occasion the
respondent was informed that it should contact the first appellant
who, on being
so contacted, informed the respondent that under no
circumstances would it be granted access to the land.
[9] A few days later the respondent removed a lock at a
gate some seven kilometres from the mineral rights area and replaced
it
with another lock. This was another attempt by it to gain access
to the land. On the same day a representative of Sanwild informed
the
respondent that Sanwild had been in occupation of the land since
September 2006. On being appraised of Sanwild’s occupation,
the
respondent’s attorneys initiated a meeting with the appellants’
attorneys to discuss the respondent’s need for access
to the mining
rights area, as well as the issue of compensation. It was agreed at
the conclusion of that meeting that the appellants’
attorneys would
revert to the respondent’s attorneys with an indication of the
appellants’ attitude to the respondent’s request
for access. This
did not materialise and the respondent launched its application in
the court a quo seeking inter alia the following
relief:
(a) Interdicting and restraining Come Lucky and the
appellants (then first to fifth respondents) from refusing the
respondent (then
applicant) access to the land; and
(b) authorising the respondent to enter onto the land
together with its employees and to bring onto the land any plant,
machinery
or equipment and build, construct or lay down any surface
or underground infrastructure which may be required for purposes of
mining
on the property as defined in the mining permit.
[10] The court found:
‘
Dit is duidelik dat die
applikant het ‘n duidelike reg. “A clear right” soos die geykte
uitdrukking bestaan, en sy permit
se geldigheid is nog nie aangeveg
nie . . .’
and further:
‘
In al die omstandighede is ek
tevrede dat die applikant ‘n reg uitgemaak het vir die regshulp wat
hy vra.’
[11] The crisp issue therefore in this appeal is whether
the court a quo was correct in finding that the respondent had
established
a clear right to access. The case made out on appeal is
that the respondent has not established this. Simply put, the
argument
before us was that the respondent sought access to the
entire parcel of land from a gate envisaging a seven kilometre route
to
the mineral rights area. In this regard it was submitted that a
clear restriction, apparent from the respondent’s environmental

management plan, was that the respondent’s access to the mineral
rights area was to be on a route of no longer than 1.5 km. It
was
submitted that access to the land over a seven kilometres route would
be tantamount to the commission of an offence within
the
contemplation of the Act. This, I understood, was the appellants’
main argument. I propose to deal with it before I consider
the other
submissions advanced.
[12] Perhaps it is prudent briefly to consider the
scheme of the Act relevant to the issue before us. It is apparent
from s 27(5)(b)
that, once an application for a mining permit is
accepted by the regional manager, the latter must notify the
applicant for the
permit to submit an environmental management plan
and to consult with the owner of the land or occupier or any other
affected parties,
and submit the results of this consultation to him
within 30 days. This envisages consultation after the lodging of an
application
for and before the grant of a mining permit. Furthermore,
in terms of s 5(4)(c), once the permit is granted no mining
activities
may be commenced by the permit holder unless it has
notified and consulted with the owner or occupier of the land in
question.
In
Meepo v Kotze & others
2008 (1) SA 104
(NC) at 114D-E, the view was expressed that the
legislature provided for due consultations between a landowner and
the holder of
or applicant for a permit in order to alleviate
possible serious inroads being made on the property right of the
landowner. Consultation
is the means whereby a landowner is apprised
of the impact that prospecting (or, I would add, mining) activities
may have on his
land. I am in respectful agreement in this regard
with this view, even though that case was concerned with access in
relation to
a prospecting right.
[13] Furthermore s 27(7)(a) provides:
‘
(7) The
holder of a mining permit–
(a) may enter the land to which
such permit relates together with his or her employees, and may bring
onto that land any plant,
machinery or equipment and build, construct
or lay down any surface or underground infrastructure which may be
required for purposes
of mining;
. . .’
Clearly in terms of this section the holder of a mining
permit has a right to enter the land in respect of which the mining
rights
have been granted for purposes of exploiting its rights. The
right to enter the land solidifies, in my view, once the mining
permit
holder has complied with the provisions regarding notification
and consultation with the owner of the land, or occupier and/or other

parties affected by the permit.
[14] In the present case there is no dispute that the
respondent had complied with all the requirements set out in s
27(1)-(5)
5
before the grant of a mining permit and in s 5(4)
6
after the grant of the permit.
[15] The appellants’ submission that the respondent
has not established a clear right to access must be viewed in the
context
of the case made out in the papers by the respondent
(
Director of Hospital Services v Mistry
1979 (1) SA 626(A)
at 635H).
7
Scrutiny of the notice of motion, as well as the founding affidavit,
reveals that the respondent did not seek access to the entire
land
and neither did it seek access encompassing a seven kilometre route.
What it sought was access in principle to the mineral
rights area.
This much is also clear from correspondence exchanged between the
parties and their respective attorneys. This is
what the court a quo
decided and this cannot be criticized on any basis. Strictly speaking
the appeal is susceptible to be dismissed
on this basis alone.
[16] However, counsel for the appellants also submitted
in the alternative that the impasse created by the appellants’
blanket
refusal to allow the respondent access to the land, meant
that the regional manager had to initiate the process aimed at the
expropriation
of the land as envisaged in s 54(5). The implication of
this submission is that the jurisdiction of the high court and this
court
to resolve that impasse is not countenanced by the Act. That
there is no merit to this submission is borne out by the fact that
it
was made without much conviction, and rightly so. No provision in the
Act could be pointed out in support of this line of reasoning.

Furthermore, it would be absurd for the Act to permit an unreasonable
refusal for access based on a clear objective to frustrate
the
legitimate endeavours of a permit holder.
[17] Furthermore, it is clear that expropriation is an
option that may be adopted by the regional manager to advance the
objects
of the Act in s 2(d), (e), (f), (g) and (h).
8
Here the appellants simply, and in an unreasonable fashion, refused
to allow the respondent access to the land and as a result
it is
unclear on what conceivable basis the regional manager could be
expected to initiate an expropriation process. No basis for

expropriation based on this provision was advanced by the appellants’
counsel. The submission is in my view clearly misconceived.
[18] Finally, whilst this is strictly speaking
unnecessary but because the appellants’ counsel invited us to do
so, I consider
the appellants’ argument that, properly considered,
the environmental management plan and its accompanying documentation
did
not envisage the construction of a new road. This submission is
reliant on certain portions of a form completed by the respondent

when it submitted the environmental management plan for approval. In
this regard the appellants’ counsel submitted that by ticking
the
‘no’ option in respect of the question: ‘would it be necessary
to construct roads to access the proposed operations’
in portion
C2.14 of the form, that must mean that no new roads were to be
constructed.
[19] However, one cannot consider just that one part of
the form in isolation. It is one of a number of questions relating to
access
roads. In this regard the indication in C2.15 that the access
road will not be longer than 1.5 km, in C2.16 that ‘no trees would

be uprooted when constructing access roads’, as well as the
indication in C2.17 that ‘foreign material like crushed stone,

limestone or any material other than the naturally occurring top soil
would be placed on the road surface’ show clearly that
the ‘no’
tick in C2.14 (ostensibly indicating that no new roads would be
constructed), is simply a mistake as pointed out by
the respondent’s
counsel. I cannot also fathom a situation where the permit holder can
be regarded bound by a clearly mistaken
tick on the form. I am of the
view that, when all the questions and answers are considered in that
portion of the form, it is clear
that the construction of a new road
was envisaged when the environmental management plan was submitted.
[20] Furthermore, there is no indication on the papers
that there are any existing roads from any public road to the mineral
rights
area. This can only mean that the Minister and officials of
the DME, when granting the permit, and approving the environmental
management plan, were alive to that fact. Therefore, when the permit
was granted and the environmental management plan approved,
the
respondent was also granted the right to construct a new road to the
mineral rights area. In the absence of any access road
to the mineral
rights area, it remains a mystery how, in the appellants’ mind, the
respondent is to exploit its mining rights.
In the final analysis it
remains for us to clarify that the relief granted by the court a quo
does not authorise or permit the
respondent to contravene any of the
provisions of the Act or commit an offence.
[21] The appeal must therefore fail. The following order
is made:
‘
The appeal is dismissed with costs including the
costs occasioned by the employment of two counsel.’
_____________
D MLAMBO
JUDGE OF APPEAL
APPEARANCES:
COUNSEL FOR APPELLANTS: R J Raath SC; S A Visser
INSTRUCTED BY: Stewart Maritz Basson;
Pretoria
CORRESPONDENT: Claude Reid Inc; Bloemfontein
COUNSEL FOR RESPONDENT: S J Grobler SC; L G F Putter
INSTRUCTED BY: Vezi De Beer Inc; Pretoria
CORRESPONDENT: Azar & Havenga Inc; Bloemfontein
1
In terms of s 3(1) which provides: ‘Mineral and petroleum
resources are the common heritage of all the people of South Africa

and the State is the custodian thereof for the benefit of all South
Africans.’
2
Section 16(1).
3
Section 27
(2).
4
Per letter from attorneys Andrew Miller & Associates dated 29
June 2005.
5
Section 27(1)-(5): ‘(1) A mining permit may only be issued if –
(a) the
mineral in question can be mined optimally within a period of two
years; and
(b) the
mining area in question does not exceed 1,5 hectares in extent.
(2) Any
person who wishes to apply to the Minister for a mining permit must
lodge the application –
(a) at the
office of the Regional Manager in whose region the land is situated;
(b) in the
prescribed manner; and
(c) together
with the prescribed non-refundable application fee.
(3) The
Regional Manager must accept an application for a mining permit if –
(a) the
requirements contemplated in subsection (2) are met;
(b) no
other person holds a prospecting right, mining right, mining permit
or retention permit for the same mineral and land.
(4) If the
application does not comply with the requirements of this section,
the Regional Manager must notify the applicant in
writing of that
fact within 14 days of the receipt of the application and return the
application to the applicant.
(5) If the
Regional Manager accepts the application, the Regional Manager must,
within 14 days from the date of acceptance, notify
the applicant in
writing –
(a) to
submit an environmental management plan; and
(b) to notify in writing and consult with the land owner and lawful
occupier and any other affected parties and submit the result
of the
said consultation within 30 days from the date of the notice.’
6
Section 5(4): ‘No person may prospect for or remove, mine,
conduct technical co-operation operations, reconnaissance
operations,
explore for and produce any mineral or petroleum or
commence with any work incidental thereto on any area without –
(a) an approved environmental management programme or approved
environmental management plan, as the case may be:
(b) a reconnaissance permission, prospecting right, permission to
remove, mining right, mining permit, retention permit, technical

co-operation permit, reconnaissance permit, exploration right or
production right, as the case may be; and
(c) Notifying
and consulting with the land owner or lawful occupier of the land in
question.’
7
‘When, as in this case, the proceedings are launched by way of
notice of motion, it is to the founding affidavit to which a
judge
will look to determine what the complaint is.’
8
‘The objects of this Act are to –
. . .
(d) substantially and meaningfully expand opportunities for
historically disadvantaged persons, including women, to enter the

mineral and petroleum industries and to benefit from the
exploitation of the nation’s mineral and petroleum resources;
(e) promote economic growth and mineral and petroleum resources
development in the Republic;
(f) promote employment and advance the social and economic welfare
of all South Africans;
(g) provide for security of tenure in respect of prospecting,
exploration, mining and production operations;
(h) give effect to s 24 of the Constitution by ensuring that the
nation’s mineral and petroleum resources are developed in
an
orderly and ecologically sustainable manner while promoting
justifiable social and economic development; and
. . .’