Mpumalanga Tourism and Parks Agency and Another v Baberton Mines (Pty) Ltd and Others (216/2016) [2017] ZASCA 9; [2017] 2 All SA 376 (SCA); 2017 (5) SA 62 (SCA) (14 March 2017)

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Mpumalanga Tourism and Parks Agency and Another v Baberton Mines (Pty) Ltd and Others (216/2016) [2017] ZASCA 9; [2017] 2 All SA 376 (SCA); 2017 (5) SA 62 (SCA) (14 March 2017)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 216/2016
In
the matter between:
MPUMALANGA
TOURISM & PARKS AGENCY

FIRST APPELLANT
MOUNTAINLANDS
OWNERS ASSOCIATION

SECOND APPELLANT
and
BARBERTON
MINES (PTY) LTD

FIRST RESPONDENT
THE
DEPUTY DIRECTOR GENERAL: DEPARTMENT OF
MINERAL
RESOURCES

SECOND RESPONDENT
THE
REGIONAL MANAGER: EMALAHLENI REGIONAL
OFFICE
DEPARTMENT OF MINERAL RESOURCES

THIRD RESPONDENT
THE
DIRECTOR GENERAL: DEPARTMENT OF MINERAL
RESOURCES

FOURTH RESPONDENT
THE
MINISTER OF MINERAL RESOURCES

FIFTH RESPONDENT
Neutral
citation:
Mpumalanga
Tourism & Parks Agency v Barberton Mines (Pty) Ltd
(216/2016)
[2017] ZASCA 9
(14 March 2017)
Bench:
Ponnan, Tshiqi, Majiedt, Dambuza and
Van Der Merwe JJA
Heard:
17 February 2016
Delivered:
14 March 2016
Summary:
Mining and Environmental Law: grant of
a prospecting right in terms of s 17(1) of the Mineral and Petroleum
Resources Development
Act 28 of 2002 (MPRDA): whether prospecting
area part of a protected area as contemplated by s 12 of the National
Environmental
Management: Protected Areas Act 57 of 2003 (NEMPAA):
whether prospecting prohibited by s 48(1) of NEMPAA.
ORDER
On
appeal from
:
Gauteng
Local Division, Johannesburg (Baqwa J sitting as court of first
instance):
(a)
Save for dismissing the appellants’ application for leave to
adduce further evidence
with costs, the appeal is upheld with costs,
such costs in each instance to include those consequent upon the
employment of two
counsel.
(b)
The order of the court below is set aside and in its stead is
substituted:
‘
The
application is dismissed with costs.’
JUDGMENT
Ponnan
JA (Tshiqi, Majiedt, Dambuza and Van Der Merwe JJA):
[1]
The Barberton Mountain Land (also described as the Barberton
Greenstone Belt or Makhonjwa Mountains) is one of the most
ecologically
important areas in the Province of Mpumalanga.
It
is home to
some
2200 plant
and
300
bird species. The area has been placed on the National List of
Terrestrial Ecosystems that are Threatened and in Need of
Protection,
[1]
and has been
identified as the most important
refugium
in the province for plant species threatened by climate change. It is
also world renowned for its unique geology, consisting, as
it does,
of rocks estimated to be 3600 million years old, which
have
been described as the oldest and best preserved sequence of volcanic
and sedimentary rocks on Earth. According to geologists,
these
exposures of Archaean rock provide an unparalleled repository of
scientific information about early Earth.
At
the request of the Minister of Environmental Affairs and Tourism and
with the approval of UNESCO the area was placed on South
Africa’s
Tentative List of World Heritage Sites in 2008.
[2]
All of that
notwithstanding, on 6 October 2006 the first respondent, Barberton
Mines (Pty) Ltd (Barberton Mines), was granted a
prospecting right in
terms of s 17(1) of the Mineral and Petroleum Resources Development
Act 28 of 2002 (the MPRDA) to conduct
prospecting operations for gold
and silver on certain properties situated in the District of
Barberton (the prospecting area).
[2]
On 11 November 2006 the Department of Minerals and Energy (as it then
was) approved Barberton Mines’ Environmental Management
Plan in
terms of s 17(5) of the MPRDA and in consequence, the prospecting
right for a period of five years came into effect on
that date. On 10
August 2011 Barberton Mines lodged an application for the renewal of
its prospecting right in terms of s 18 of
the MPRDA. That application
is yet to be granted or refused and, by virtue of s 18(5) of the
MPRDA,
[3]
Barberton
Mines’ original prospecting right remains in force. When
Barberton Mines sought to commence with the prospecting
work it
encountered resistance from the first appellant, the Mpumalanga
Tourism and Parks Association (the MTPA) and several members
of the
second appellant, the Mountainlands Owners Association (MOA), who
asserted that the prospecting area constitutes part of
a nature
reserve or protected area. On 21 October 2008 the two appellants and
three others – the Trustees for the Time Being
of the Lomshiyo
Trust (the Lomshiyo Trust), Way Prop Two (Pty) Ltd (Way Prop) and
Simply See (Pty) Ltd (Simply See) lodged an internal
appeal with the
Minister of Mineral Resources against the grant of the prospecting
right to Barberton Mines. The appeal was dismissed
by the Director
General: Mineral Resources on 16 April 2012.
[3]
On 12 July 2013, and after several meetings and failed attempts at
negotiation with the MTPA and MOA, Barberton Mines lodged
an
application with the North Gauteng High Court, Pretoria.
[4]
The relief
sought, duly amended on 18 August 2015 at the hearing of the matter,
was:
‘
1.
It is declared that the applicant is entitled to conduct the
prospecting activities
referred to in
Section 5(3)
of the
Mineral and
Petroleum Resources Development Act 28 of 2002
in accordance with
prospecting right MP/30/5/1/2/1040PR in relation to the following
properties: Lot 119 Section A Kaap Block,
Bickenhall 346JU and
Dycedale 368JU, District of Barberton, Mpumalanga Province.
2.
The first [MTPA], second [MOA] and fifth [Simply See] respondents are
interdicted
from denying the applicant access to the prospecting area
for the purpose of conducting prospecting activities in accordance
with
the foresaid prospecting right or interfering with such
prospecting activities.’
[4]
The MTPA, MOA, Lomshiyo Trust, Way Prop and Simply See, who had been
cited as the first to fifth respondents respectively, opposed

Barberton Mines’ application. In addition, they launched a
counter application seeking that:
‘
1.
The Director-General: Department of Mineral Resources is joined as
the eighth respondent,
and the Minister of Mineral Resources is
joined as the ninth respondent, in the main application and the
counter-application.
2.
The first to fifth respondents’ delay in instituting the review
of the
decision of the sixth respondent and/or seventh respondent to
grant the prospecting right MP/20/5/1/1/2/1040PR to the applicant

(“the initial decision”) and/or the decision of the
eighth respondent to uphold the initial decision on appeal (“the

appeal decision”) is condoned.
3.
The initial decision and/or the appeal decision referred to in
paragraph 2 are
reviewed and set aside.
4.
The applicant and the sixth to ninth respondents are jointly and
severally liable
for the costs of the counter-application, the one
paying the others to be absolved.’
[5]
In support of the counter application, MTPA’s Regional Manager,
Mr Louis Loock, alleged:
‘
5.1
The properties constitute part of a “nature reserve” or
“protected environment”
as contemplated in section
48(1)(a) or 48(1)(b) of the National Environmental Management:
Protected Areas Act 57 of 2003 (“the
NEMPA”) respectively
and in respect of which “no person may conduct commercial
prospecting or mining activities”.
The applicant is accordingly
not entitled to conduct prospecting activities in the prospecting
area, notwithstanding that it holds
a prospecting right to do so. The
application should be dismissed on this basis.
5.2
The properties “comprise land being used for public or
government purposes or reserved
in terms of any other law” as
contemplated in section 48(1)(c) of the Mineral and Petroleum
Resources Act 28 of 2002 (“the
MPRDA”) in respect of
which “no reconnaissance permission, prospecting right, mining
right or mining permit may be
issued” save if the conditions
stipulated in section 48(2) of the MPRDA have been met. It is common
cause that such conditions
have not been met. The applicant is
accordingly not the holder of any valid prospecting right entitling
it to prospect on the properties.
The application should be dismissed
on this basis.’
[6]
The High Court (per Baqwa J) found in favour of Barberton Mines that
the prospecting area did not constitute part of a ‘nature

reserve’ or ‘protected environment’. In arriving at
that conclusion, the court considered and rejected in turn
three
‘
acts
’
of provincial government (in 1985, 1996 and 2014) relied upon in
support of the contention that the prospecting area formed
part of a
nature reserve or protected area as defined in s 1 of the National
Environmental Management: Protected Areas Act 57 of
2003 (the
NEMPAA). Accordingly, the court found that the prospecting area was
not subject to the prohibition against prospecting
under s 48(1) of
the NEMPAA.
[5]
It declined
to enter into the merits of the counter application because, so it
held, the ‘application is out of time and condonation
cannot be
granted’. The High Court accordingly issued an order in these
terms:
‘
95.1
It is declared that the applicant is entitled to conduct the
prospecting activities referred to in
Section 5
(3) of the
Mineral
and Petroleum Resources Development Act 28 of 2002
in accordance with
prospecting right MP/30/5/1/2/1040PR in relation to the following
properties: Lot 119 Section A Kaap Block,
Bickenhall 346 JU and
Dycedale 368 JU, District Barberton, Mpumalanga Province.
95.2
The first, second and fifth respondents are interdicted and
restrained from denying the applicant access
to the prospecting area
for the purpose of conducting prospecting activities in accordance
with the aforesaid prospecting right
or interfering with such
prospecting activities.
95.3
The applicant is authorised –
95.3.1
to enter the properties mentioned in paragraphs 95.1 hereof 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 structure which may be required
for purposes of
prospecting;
95.3.2
to carry out any other activity incidental to its prospecting
operations.
95.4
The first, second and fifth respondents are ordered to pay the costs
of this application jointly and
severally, the one paying the other
to be absolved.’
MTPA
and MOA (collectively referred to as the appellants) appeal with the
leave of that court.
[7]
The
prospecting area falls on land that the provincial government has
been actively trying to conserve for more than thirty years.
The land
was first identified as worthy of protection in the late 1960s by the
then Transvaal Provincial Administration. A range
of planning
initiatives and several scientific surveys were undertaken
culminating in a request in 1981 by the then Nature Conservation

Division to reserve the land, including the prospecting area, for
purposes of nature conservation and outdoor recreation. Consequently,

on 17 January 1985, the Executive Committee of the Transvaal
Provincial Administration adopted a Resolution (the 1985 Resolution),

which reads:
‘
It
is decided that:
(i)
The reservation of approximately 20,000 hectares of state land and
state mining
land in Barberton as in Appendix A of the Memorandum for
the purposes of nature conservation and outdoor recreation is
approved;
. . .’
Appendix
A of the Memorandum comprised a map depicting the reserved properties
and approximately 7 000 hectares of private properties
that were
designated to be reserved subsequent to agreement with the respective
land owners. Although the 1985 Resolution does
not record the law
under which the Executive Committee acted, the applicable provincial
law then in force was the Transvaal Nature
Conservation Ordinance 12
of 1983 (the Ordinance).
[8]
In 1994 the Transvaal Provincial Administration (and with it the
Nature Conservation Division) was abolished pursuant to the
Interim
Constitution Act 200 of 1993. The Nature Conservation Division,
together with the administrations responsible for conservation

management in the former Lebowa, KwaNdebele and KaNgwane were then
absorbed into the Eastern Transvaal Parks Board. The Eastern

Transvaal Parks Board was established in terms of the Eastern
Transvaal Parks Board Act 6 of 1995 (the ETPB Act) ‘to provide

effective conservation management of the natural resources of the
Province, and to promote the sustainable utilisation thereof’.
[6]
The ETPB Act
also provided for the transfer of the administration of certain
provincial nature conservation laws, including the
Ordinance, to the
Eastern Transvaal Parks Board.
[7]
On 29 March
1996 the responsible member contemplated by the ETPB Act, namely the
Member of the Executive Council for Environmental
Affairs, Mpumalanga
(the MEC) issued Proclamation Number 12 of 1996 (the 1996
Proclamation).
[8]
The 1996
Proclamation read: ‘“Conservation Areas” in section
1 of the [ETPB Act], include the following areas
from 1 April 1996’.
There followed a list of some 31 names including the Barberton Nature
Reserve. Section 1 of the ETPB
Act defined a ‘“conservation
area” to mean an area designated by the responsible Member in
the
Provincial
Gazette
to
be a conservation area.’
[9]
On 22 May 2014, the Member of the Executive Council for Economic
Development, Environment and Tourism (the MEC) published a

Proclamation to ‘amend the definition of the geographical areas
comprising the Provincial Nature Reserves, referred to in
the
Schedules’ (the 2014 Proclamation).
[9]
The 2014 Proclamation was promulgated in terms of s 85(a) of the
Mpumalanga Nature Conservation Act 10 of 1998, which provides:
‘
In
addition to any other power conferred upon him or her in terms of
this Act or any other law, the Responsible Member may –
(a)
by notice in the Provincial Gazette declare any area defined in the
notice to be a
nature reserve and he or she may at any time by notice
amend the definition of such an area or withdraw the declaration of
such
an area to be a nature reserve: . . .’
Schedule
4 of the 2014 Proclamation is headed ‘
Description
of Provincial Nature Reserves – Mpumalanga Province: Barberton
Nature Reserve
’
and provides: ‘The Barberton Nature Reserve situated in the
Mpumalanga Province, measuring in extent 27 808.4725
hectares
and [is] defined as follows – ’. The schedule includes a
map of the Barberton Nature Reserve which defines
the geographical
boundaries of the reserve. The map is accompanied by a list of the
properties that are labelled on the map, together
with the size of
each property (in hectares) and the plot number. All of the
properties listed in Barberton Mines’ prospecting
right are
included as properties comprising part of the Barberton Nature
Reserve in Schedule 4.
[10]
[10] The
High Court identified the principal issue in the matter as:
‘
34.1
whether the alleged Barberton Nature Reserve constitutes a “nature
reserve” for the purposes
of the
National Environmental
Management: Protected Areas Act;’
It
approached that enquiry thus:
‘
40.
Reading from the above provisions or
Sections 1
,
23
and
28
respectively; for the Barberton Nature Reserve to qualify either as a
nature reserve or a protected environment under the Protected
Areas
Act, it must have been declared or regarded as having [been] declared
as a nature reserve or a protected environment in terms
of the Act or
it must have been declared or designated in terms of provincial
legislation as a nature reserve or a protected environment
in terms
of the Act.’
In
arriving at that conclusion the High Court reasoned that: (a) the
1985 Resolution had neither been issued under the hand of the

Administrator nor published in terms of s 14 of the Ordinance and
that it accordingly lacked legal efficacy;
[11]
the 1996
Proclamation did not ‘identify the area of “
Barberton
Nature Reserve”
as
a conservation area’; and (c) the 2014 Proclamation purported
to amend not establish the Barberton Nature Reserve. I may
say at the
outset that, in my opinion, the High Court took far too narrow a view
of the matter.
[11] A
useful starting point is s 24 of the Constitution,
[12]
which affords everyone the right ‘to an environment that is not
harmful to their health or well-being’.
One
of the objects of the MPRDA (s 2(
h
))
is to ‘give effect to section 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.’
The
granting of prospecting rights under the MPRDA is thus made subject
to environmental protections and constraints.
[13]
Section
48(1)(
c
)
of the MPRDA,
[14]
which must
be read subject to s 48 of the NEMPAA, prohibits the granting of a
prospecting right in respect of ‘any land being
used for public
or government purposes or reserved in terms of any other law.’
[12]
NEMPAA binds all organs of state (s 4(2)) and trumps other
legislation in the event of a conflict
concerning
the management or development of protected areas
.
[15]
According to
s 9(a) of NEMPAA, ‘the system of protected areas in South
Africa’ includes ‘special nature reserves,
national
parks, nature reserves (including wilderness areas) and protected
environments’.
In
terms of s 1:
A
‘nature reserve’ is defined as -
‘
(a)
an area declared, or regarded as having been declared, in terms of
section 23 as a nature
reserve; or
(b)
an area which before or after the commencement of this Act was or is
declared or designated
in terms of provincial legislation for a
purpose for which that area could in terms of section 23(2) be
declared as a nature reserve,
and
includes an area declared in terms of section 23(1) as part of an
area referred to in paragraph (a) or (b) above’.
A
‘protected area’ is defined as –
‘
any
of the protected areas referred to in section 9;’
and,
a ‘protected environment’ is defined as -
‘
(a)
an area declared, or regarded as having been declared, in terms of
section 28 as a protected
environment;
(b)
an area which before or after the commencement of this Act was or is
declared or designated
in terms of provincial legislation for a
purpose for which that area could in terms of section 28(2) be
declared as a protected
environment; or
(c)
. . .,
and
includes an area declared in terms of section 28(1) as part of an
area referred to in paragraph (a), (b) or (c) above.’
Significantly
therefore, a ‘protected area’ by definition encompasses a
‘protected environment’, which,
in turn, includes an area
‘declared or designated in terms of provincial legislation’.
[13]
Importantly, there is as well s 12 of NEMPAA, which reads:
‘
A
protected area which immediately before this section took effect was
reserved or protected in terms of provincial legislation
for any
purpose for which an area could in terms of this Act be declared as a
nature reserve or protected environment, must be
regarded to be a
nature reserve or protected environment for the purpose of this Act.’
Section
12 is a deeming provision. Such a provision is employed by the
legislature to ‘
denote
merely that the persons or things to which it relates are to be
considered to be what really they are not, without in any
way
curtailing the operation of the Statute in respect of other persons
or things falling within the ordinary meaning of the language
used’
(
Chotabhai
v Union Government (Minister of Justice) and Registrar of Asiatics
at
33).
[16]
Interpretation must be
solved by linguistic construction, and
albeit not an entirely happily worded section,
the
safest clue to its meaning is to look at the language which the
Legislature has itself employed
.
In terms of the s 12, a
protected area that was reserved or protected in terms of provincial
legislation is entitled to be regarded
as a nature reserve or
protected environment for the purposes of NEMPAA. The effect of this
provision is thus to extend
the
protection
afforded to a
nature reserve by NEMPAA, to a protected area reserved in terms of
provincial legislation as well.
The
deeming provision serves to broaden the scope of NEMPAA to include
within its reach a protected area reserved or protected by
provincial
legislation.
[14]
Textually and lexically the words ‘declaration’ and
‘designation’ bear different meanings. According
to the
Concise Oxford English Dictionary:
‘
declaration’
means, inter alia, ‘a formal or explicit statement or
announcement’ . . . ‘an act of declaring’;
and
‘
designation’
means ‘the action of giving someone or something a specified
name, position, or status’; ‘an
official title or
description’.
The
NEMPAA thus contemplates the protection of areas that have been
either ‘declared or designated’ in terms of provincial

legislation. And, the definition of a nature reserve in NEMPAA
includes areas ‘designated in terms of provincial legislation’.
[15]
The effect of the 1996 Proclamation was thus that the designated area
was reserved or protected in terms of provincial legislation
for a
purpose for which it could be declared as a nature reserve or
protected environment under s 12 of the NEMPAA. The High Court
took
the view that because the description of the area therein is vague,
it must be regarded as void. It is so that if it is impossible
for
the court to say what area was intended to be included, the 1996
Proclamation must be regarded as void. But, as Centlivres
JA pointed
out in
Pretoria
Timber Co.
at 170
[17]
‘
it is
. . . the duty of the Court to avoid, if possible, the conclusion
that the Notice is too vague to be effective’.  In
that
case (at 176 F-G), Schreiner JA observed:
‘
The
degree of certainty, clarity or precision that must be present in
such a description as the one in question, on pain of invalidity,

depends on the circumstances, including the nature of the problem to
be solved by the framer of the description. . . . The law
requires
reasonable and not perfect lucidity and the fact that cases may arise
in which it would be difficult, perhaps extremely
difficult, to
decide whether a place falls within or outside the area is not, by
itself, a reason for holding that the description
is not reasonably
clear.’
More
recently, the Constitutional Court had occasion in
Affordable
Medicines Trust v Minister of Health
[2005] ZACC 3
;
2006 (3) SA 247
(CC) to
consider the doctrine of vagueness. It stated (para 108):
‘
The
doctrine of vagueness is founded on the rule of law, which, as
pointed out earlier, is the foundational value of our constitutional

democracy. It requires that laws must be written in a clear and
accessible manner. What is required is reasonable certainty not

perfect lucidity. The doctrine of vagueness does not require absolute
certainty of laws. The law must indicate with reasonable
certainty to
those who are bound by it what is required of them so that they may
regulate their conduct accordingly. The doctrine
of vagueness must
recognise the role of Government to further legitimate social and
economic objectives. And should not be used
unduly to impede or
prevent the furtherance of such objectives.’
[16]
There are certain considerations which I think must be borne in mind
in approaching the problem. As Schreiner JA pointed out
in
Jaga
v Dönges NO
at
664H
[18]
‘
the
legitimate field of interpretation should not be restricted as a
result of excessive peering at the language to be interpreted
without
sufficient attention to the contextual scene.’ Context, the
learned judge of appeal explained (at 662H), ‘is
not limited to
the language of the rest of the statute regarded as throwing light of
a dictionary kind on the part to be interpreted.
Often of more
importance is the matter of the statute, its apparent scope and
purpose, and, within limits, its background.’
There is no
evidence to suggest that the area cannot be ascertained. And, whilst
it is so that one must use outside evidence as
conservatively as
possible, ‘one must use it if it is necessary to reach what
seems to be a sufficient degree of certainty
as to the right meaning’
(
Delmas
Milling Co Ltd v Du Plessis
at
454). One is thus entitled in a situation such as the present to have
regard to extrinsic evidence of an identificatory nature
to clear up
ambiguity or uncertainty (
Delmas
Milling Co Ltd v Du Plessis
at
454).
[19]
Recourse can
be had to such provable surrounding circumstances as might throw
light on and clarify the meaning to be given to the
description of
the area (
R
v Pretoria Timber Co (Pty) Ltd
at
175 D-E).
[17]
The reference to the ‘Barberton Nature Reserve’ in the
1996 Proclamation had the meaning given and applied to it
by the
provincial authorities since at least 1985. When regard is had to the
nature of the 1996 Proclamation as a ‘designation’
and to
its context – including its relationship to the 1985 Resolution
and the administration of the land as the Barberton
Nature Reserve
since then, it cannot be said that the persons to whom it is
addressed would be left in any uncertainty. Since the
1996
Proclamation was a designation of an area already as a matter of fact
reserved, its validity and effectiveness did not require
a detailed
description of the area concerned, as the High Court found. To
achieve its purpose, the 1996 Proclamation could simply
indicate the
designated area by name, as it did. It enabled members of the public
to comprehend that the named areas were classified
as ‘conservation
areas’ under the ETPB Act.
[18]
Common sense, I daresay, must prevail. It cannot be, to borrow from
Van
Wyk v Rottcher’s Saw Mills (Pty) Ltd
(at
989),
[20]
that what is
required, under pain of nullity, is a ‘faultless description .
. .  couched in meticulously accurate terms’.
To be sure,
the court was there concerned with the validity of a written
agreement of sale of land under one of the predecessors
of the
present
s 2(1)
of the
Alienation of Land Act 68 of 1981
.
[21]
As
Van
Wyk v Rottcher’s Saw Mills
[22]
made plain
‘provided the land sold is described in such a way that it can
be identified by applying the ordinary rules of
construction of
contracts and admitting such evidence to interpret the contract as is
evidence under the parol evidence rule .
. . the provisions of the
law are satisfied.’ Albeit a less than perfect analogy, it is
nonetheless instructive that our
courts have been willing to hold
that the test for compliance with that section is whether the land
sold can be identified on the
ground by reference to the provisions
of the contract (
Clemens
v Simpson
at 7F-G).
[23]
[19]
What was said in those cases with reference to contracts of sale of
land is of equal application to contracts of suretyship
in terms of s
6 of the General Law Amendment Act 50 of 1956.
[24]
In that
context, the following dictum by
Corbett
JA in
Trust
Bank of Africa Ltd v Frysch
1977 (3) SA 562
(A) at 586 D-F bears repeating:
‘
This
being essentially a question of applying the language of the contract
to the facts of the case, one is entitled, in doing so,
to have
regard to evidence of an indentificatory nature (
Delmas
Milling Co Ltd v Du
Plessis
1955 (3) SA 447
(A.D.) at p 454). This would include, in the present
case, evidence of the conclusion of the hire-purchase agreement
relating to
the cash register machines and of its proposed and actual
transfer and cession to Trust Bank. If regard be had to the terms of
the suretyship agreement, considered in the light of such
identificatory evidence, I do not think that there can be any doubt
that
it was this hire-purchase agreement, and the obligations owing
by the purchaser thereunder, that were being guaranteed by Frysch
to
Trust Bank. It is true that these obligations were, in effect,
misdescribed as being presently owing but I do not regard this

misdescription to be of so vital or fundamental a nature as to lead
one to the view that the obligations cannot be identified as
those
arising under the hire-purchase agreement in question and, therefore,
that there is no subject matter to which the language
of the
suretyship contract can be applied. On the contrary, it seems to me
that, as far as identification is concerned, this misdescription
does
no more detract from the efficacy of the contract than, say, a minor
deviation in the description of the area of land sold
under a sale
ad
corpus
. . . or a
falsa
demonstatio
in a deed of grant . . .’.
[20]
l accordingly incline to the view that the area is indicated with
sufficient certainty to meet the challenge that the 1996
Proclamation
is void for vagueness. And, as the 1996 Proclamation meets the
requirements of s 12 of the NEMPAA, it follows that
the prospecting
area falls to be protected against prospecting under s 48(1) of that
Act.  In those circumstances as the High
Court was, in effect,
being asked to compel an illegality, which it could not do (
Hoisain
v Town Clerk, Wynberg
),
[25]
Barberton
Mines’ application ought to have failed.
[21]
It follows that the appeal must succeed and it is accordingly upheld.
As to costs: In this court the appellants sought leave
to adduce
further evidence on appeal. That application was opposed by Barberton
Mines. During argument it became apparent that
the evidence sought to
be introduced was not relevant to the determination of the appeal.
That the application must accordingly
be dismissed with costs. Save
for those costs, the appellants are entitled to the remaining costs
of the appeal. The appellants
were ordered to pay the costs of
Barberton Mines’ application by the high court. And, although
it declined to grant condonation
to the appellants, which had the
effect of its counter application failing, it made no order as to
costs in that regard. As there
is no cross appeal by Barberton Mines
I need say nothing further on that score.
[22]
In the result:
(a)
Save for dismissing the appellants’ application for leave to
adduce further evidence
with costs, the appeal is upheld with costs,
such costs in each instance to include those consequent upon the
employment of two
counsel.
(b)
The order of the court below is set aside and in its stead is
substituted:
‘
The
application is dismissed with costs.’
_________________
V
M Ponnan
Judge
of Appeal
APPEARANCES:
For
Appellants:

MA
Wesley (with him J Bleazard)
Instructed
by:
Richard
Spoor Inc Attorneys, Johannesburg
Webbers
Attorneys, Bloemfontein
For
First Respondent:

P
Lazarus SC (with him I Currie)
Instructed
by:
Malan
Scholes Attorneys, Johannesburg
Claude
Reid Attorneys, Bloemfontein
[1]
See Government
Gazette No. 34809 of 9 December 2011, published in terms of the
National Environmental Management: Biodiversity Act 10 of 2004
.
[2]
The designation
was made on 6 June 2008 in terms of
s 1(xxiv)(a)(ii)
of the
World
Heritage Convention Act 49 of 1999
.
[3]
Section
18
(5) of the MPRDA provides: ‘A prospecting right in respect
of which an application for renewal has been lodged shall, despite

its stated expiry date, remain in force until such time as such
application has been granted or refused.’
[4]
The application
cited Mpumalanga Tourism and Parks Agency as the first respondent,
Mountainlands Owners Association as the second
respondent, The
trustees for the time being of the Lomshiyo Trust as the third
respondent, Way Prop Two (Pty) Ltd as the fourth
respondent, Simply
See (Pty) Ltd as the fifth respondent, the Deputy Director General:
Department of Mineral Resources as the
sixth respondent and the
Regional Manager of the Emahaleni Regional Office of the Department
of Mineral Resources as the seventh
respondent.
[5]
Section
48(1)
provides: ‘Despite other legislation, no person may
conduct commercial prospecting, mining, exploration, production or

related activities –
(a)
in a special nature reserve, national park or nature reserve;
(b)
in a protected environment without the written permission of the
Minister and the Cabinet member responsible for minerals
and energy
affairs; or
(c)
in a protected area referred to in
section 9
(
b
), (
c
)
or (
d
).’
[6]
Section
14(1) of the ETPB Act.
[7]
Section 20 read
with Schedule 5.
[8]
Proclamation
No. 12 of
Provincial
Gazette Number 132 of 29 March 1996.
[9]
Published in
General Notice 185 of 2014 in the Provincial Gazette 2302 of 22 May
2014.
[10]
Although
Covington 245 JU is not listed in Schedule 4 of the 2014
Regulations, it is apparent from the map in Schedule 4 that

Covington 245 JU is included in the area marked 54 on the map
(designated as Sheba 949JU).
[11]
Section 14
of the Ordinance headed ‘Declaration of nature reserves’
provides: ‘The Administrator may by notice
in the
Provincial
Gazette
declare an area defined in the notice to be a nature reserve and he
may at any time by like notice amend the definition of such
an area
or withdraw the declaration of such an area to be a nature reserve.’
[12]
Everyone
has the right— (a) to an environment that is not harmful to
their health or well-being; and (b) to have the environment

protected, for the benefit of present and future generations,
through reasonable legislative and other measures that— (i)

prevent pollution and ecological degradation; (ii) promote
conservation; and (iii) secure ecologically sustainable development

and use of natural resources while promoting justifiable economic
and social development.
[13]
See ss 5A,
17(1)(c), 39(2), 41(1) of the MPRDA. See also
Bengwenyama
Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd
2011 (4) SA 113
(CC) para 34.
[14]
Section 48(1)(c)
of the MPRDA provides:
‘
(1)
Subject to section 48 of the National Environmental Management:
Protected Areas Act, 2003 (Act No. 57 of 2003), and subsection
(2),
no reconnaissance permission, prospecting right, mining right may be
granted or mining permit be issued in respect of- .
. . (c) and land
being used for public or government purposes or reserved in terms of
any other law’.
[15]
Section 7(1)(a)
provides: ‘(1) In the event of any conflict between a section
of this Act and (a) other national legislation,
the section of this
Act prevails if the conflict specifically concerns the management or
development of protected areas’.
[16]
Chotabhai
v Union Government (Minister of Justice) and Registrar of Asiatics
1911
AD 13
at 33.
[17]
R v
Pretoria Timber Co (Pty) Ltd
1950
(3) 163 (A).
[18]
Jaga v
Dönges NO
;
Bhana
v Dönges NO
1950 (4) SA 653 (A).
[19]
Delmas
Milling Co Ltd v Du Plessis
1955
(3) SA 447
(A) at 454.
[20]
Van Wyk
v Rottcher’s Saw Mills (Pty) Ltd
1948
(1) SA 983
(A) at 989.
[21]
The
section reads: ‘No alienation of land . . . shall . . . be of
any force or effect unless it is contained in a deed of
alienation
signed by the parties thereto or by their agents acting on their
written authority.’
[22]
Van Wyk
v Rottcher’s Saw Mills (Pty) Ltd
1948
(1) SA 983
(A) at 989.
[23]
Clemens
v Simpson
1971
(3) SA 1
(A) at 7F-G; see also inter alia
JR
209 Investments v Pine Villa Estates
2009 (4) SA 302
(SCA) and
Exdev
(Pty) Ltd v Pekudei Investments (Pty) Ltd
2011 (2) SA 282
(SCA)
.
[24]
Section 6
of Act 50 of 1956 provides: ‘No contract of suretyship entered
into after the commencement of this Act, shall
be valid, unless the
terms thereof are embodied in a written document signed by or on
behalf of the surety. . . .’ See
Trust
Bank of Africa Ltd v Cotton
1976
(4) SA 325
(N) at 329G-H.
[25]
Hoisain
v Town Clerk, Wynberg
1916
AD 236.