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[2019] ZANCHC 47
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Sedibeng Iron Ore (Pty) Ltd and Another v Rexton Holdings (Pty) Ltd and Others (2772/2017) [2019] ZANCHC 47 (27 May 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 2772/2017
Heard
on: 04/02/2019
Delivered
on: 27/05/2019
In
the matter between
SEDIBENG
IRON ORE (PTY) LTD
First Applicant
ISAACS
KLIPFONTEIN CC, representing
THE
KLIPFONTEIN COMMUNITY
Second Applicant
And
REXTON
HOLDINGS (PTY) LTD
First Respondent
HERMANUS
NICOLAAS STEENKAMP
Second Respondent
GORDON
ANDREW McCRAE
Third Respondent
BENNIE
STEENKAMP
Fourth Respondent
THE
NORTHERN CAPE PROVINCIAL
GOVERNMENT
Fifth Respondent
THE
DEPARTMENT OF ROADS AND
PUBLIC
WORKS
Sixth Respondent
THE
DEPARTMENT OF MINERAL RESOURCES
Seventh Respondent
JUDGMENT
PAKATI
J
[1]
This is the return day of the
rule nisi
I granted on urgent
basis on 17 November 2017 with the return day of 01 December 2017,
upon notice to the respondents. I granted
the order in favour of the
applicants, Sedibeng Iron Ore (Pty) Ltd (“Sedibeng”) and
Isaacs Klipfontein CC (“the
CC”) representing the
Klipfontein Community, thereby restraining the first to fourth
respondents, their employees and subcontractors
from entering and/or
conducting any operations and removing any manganese ore on the Farm
Klipfontein 437 Magisterial District
of Postmasburg (Hay), Northern
Cape Province. Mr Hermanus Nicolaas Steenkamp, Mr Bennie Steenkamp
(“the Steenkamps”),
The Northern Cape Provincial
Government (the “NC Provincial Government”), the
Department of Roads and Public Works
(“Public Works”),
the Department of Mineral Resources (the “DMR”), the
second, fourth, fifth, sixth and
seventh respondents respectively, do
not oppose the current application. Only the first and third
respondent (“the respondents”)
oppose it.
[2]
On 17 November 2017 when the matter was heard Mr Charlton Rex
represented the first respondent, Rexton Holdings
(Pty) Ltd (“Rexton
Holdings”), and the second and third respondents, Mr Hermanus
Nicolaas Steenkamp and Mr Gordon Andrew
McCrae, appeared in person.
On 01 December 2017 the matter became opposed and was postponed to
the opposed roll of 23 February
2018. On 28 November 2017 Rexton
Holdings served and filed its answering affidavit dated 27 November
2017 and its supplementary
affidavit on 30 November 2017 through its
attorneys of record. On 22 February 2018 Towell & Groenewaldt
Attorneys served and
filed a special power of attorney dated 20
November 2017 on behalf of Rexton Holdings. On 30 November 2017
Messrs Bosman Giyose
Dyasi Incorporated also served and filed a
notice of intention to oppose on behalf of Rexton Holdings as well as
a notice of appointment
as attorneys of record. The same day Messrs
Bosman Giyose and Attorneys Incorporated filed a notice of withdrawal
of opposition
and as attorneys of record.
[3]
On 31 January 2018 the applicants filed their replying affidavit
dated the same date. On 14 February 2018,
six court days before the
hearing of the matter on the opposed roll of 23 February 2018, Bosman
Giyose Dyasi Incorporated served
and filed an answering affidavit on
behalf of Mr McCrae and purportedly for Rexton Holdings. This was
followed by a notice in terms
of Rule 7 (1) of the Uniform Rules of
Court in respect of Towell & Groenewaldt Attorneys filed on 16
February 2018.
[4]
On 23 February 2018 Mamosebo J made the following order by agreement
between the parties:
‘
IT
IS ORDERED
1.
THAT the abovementioned rule nisi be and is hereby extended and the
matter postponed to 17 August 2018, to the opposed roll;
2.
THAT the First and Second Applicants undertake not to process, remove
or sell the manganese ore dumps, subject to the First Applicants’
mining right;
3.
THAT the Fifth, Sixth and Seventh Respondents are directed to serve
and file Affidavits pertaining to the subject matter of this
application on or before 31 March 2018;
4.
THAT costs be and is hereby reserved.’
[5]
The State Attorney served and filed explanatory affidavits on behalf
of the NC Provincial Government, Public
Works and the DMR, fifth to
seventh respondents respectively on 29 March 2018. On 23 July 2018
the applicants’ attorneys
served and filed their further
replying affidavit replying to Rexton Holdings and Mr McCrae’s
answering affidavits dated
14 February 2018 and also the fifth to
seventh respondents’ explanatory affidavits dated 29 March
2018. Rexton Holdings and
Mr McCrae also served and filed a further
affidavit on 08 August 2018 without having obtained leave to do so.
[6]
On or about 14 August 2018 the applicants served and filed a notice
stating that the matter was not ripe for
hearing on the merits due to
a number of issues that had to be addressed or adjudicated on before
hearing it on the merits. On
17 August 2018 I dealt with the points
in limine
raised and made the following order:
‘
[1] The
Rule
Nisi
is extended until 07 December 2018.
[2] The first
answering affidavit filed on 28 November 2017 by Mr Charlton Rex
is the first respondent’s and it
stands.
[3] The first and third
respondents’ further affidavit filed on 08 August 2018 is
struck
out as
requested by Adv Nel.
[4] The second
answering affidavit filed on 14 February 2018 on behalf of 3
rd
respondent is the 3
rd
respondent’s and it stands,
and the replying affidavit filed on 23 July 2018 is the applicants’
and it stands.
[5]
The parties are granted leave to file their supplementary affidavits,
the applicants on or before 17
September 2018 and the respondents, to
reply and/or supplement, on or before 17 October 2018, and the
applicants reply on or before
16 November 2018.
[6]
The parties are to file their supplementary heads of argument on
merits and
[7]
Costs are costs in the application.’
THE
APPLICANTS’ VERSION
[7]
It is common cause that Sedibeng is the holder of a converted mining
right issued by the DMR on 08 April 2009.
Its mine plan covers the
entire Klipfontein Farm 437 and is conducted in phases for over
thirty years. On 12 August 2011 Sedibeng
and Klipfontein community
concluded a written agreement (Annexure “FA4”) and Adamus
CC represented the community. The
alleged agreement was to the effect
that Klipfontein community granted Sedibeng access to and use of the
properties forming part
of the mining area so that it would exploit
its mining rights and relocate the community to specific designated
areas within the
mining area. Sedibeng would in return pay the
community about R100 000-00 per month as compensation for its
interest on the
land upon which mining is operated. The Maremane
community was also paid R50 000-00 per month for the use of
unsurfaced road.
The Klipfontein community would reside within the
mining area but not in those parts where mining work was done. Most
of their
families were employed by Sedibeng.
[8]
Sedibeng states that there were a number of waste dumps which
contained low grade iron ore which it created
and were integral to
its rehabilitation obligations that were owned by it under its mining
right. The dumps and stockpiles were
under Sedibeng’s
possession and control. It says that it was required to control the
egress and ingress from the property
to ensure compliance with the
Mine Health and Safety Act
[1]
.
It alleges further that the stock piles and dumps form part of its
mine work and environmental management programme. It argues
that its
mining right includes the right to mine iron ore stock piles.
[9]
Sedibeng alleges further that in terms of section 5 of the Mineral
and Petroleum Resources Development Act
(“MPRDA”)
[2]
it enjoys a limited right which was lawfully obtained. It affords it
the right to undisturbed access and use of the farm exercised
at all
material times in order to conduct its mining right and comply with
the mining permit. Section 5 provides:
‘
5.
Legal Nature of prospecting right, mining right, exploration right or
production right, and rights of holders thereof.-
1)
A
prospecting right, mining right, exploration right or production
right granted in terms of this Act and registered in terms of
the
Mining Titles Registration Act, 1967, (Act No. 16 of 1967), is a
limited real right in respect of the mineral or petroleum
and the
land to which such right relates.
2)
The
holder of a prospecting right, mining right, exploration right or
production right is entitled to the rights referred to in
the section
and such other rights as may be granted to, acquired by or conferred
upon such holder under this Act or any other law.
3)
Subject
to this Act, any holder of a prospecting right, a mining right,
exploration right or production right may-
(a)
Enter
the land to which such right relates together with his or her
employees, and bring onto that land any plant, machinery or
equipment
and build, construct or lay down any surface, underground or under
sea infrastructure which may be required for the purpose
of
prospecting, mining, exploration or production, as the case may be;
(b)
Prospect,
mine, explore or produce, as the case may be, for his or her own
account on or under that land for the mineral or petroleum
for which
such right has been granted;
(c)
Remove
and dispose of any such mineral found during the course of
prospecting, mining, exploration or production, as the case may
be;
(cA) Subject to section
59B of the Diamonds Act, 1986 (Act No. 56 of 1986), (in the case of
diamond) remove and dispose of any diamond
found during the course of
mining operations;
(d)
Subject
to the National Water Act, 1998 ( Act No. 36 of 1998 ), use water
from any natural spring, lake, river or stream, situated
on, or
flowing through, such land or from any excavation previously made and
used for prospecting, mining, exploration or production
purposes, or
sink or borehole required for use relating to prospecting, mining,
exploration or production on such land; and
(e)
Carry
out any other activity incidental to prospecting, mining, exploration
or production operations, which activity does not contravene
the
provisions of this Act.’
[10] According to
Sedibeng on 01 December 2016 Rexton Holdings purportedly entered into
a written lease agreement for one
year with the NC Provincial
Government. According to this agreement Rexton Holdings was granted a
prospecting right over Klipfontein
Farm. Sedibeng states that this
was to circumvent section 3 (6) of the Northern Cape Land
Administrative Act
[3]
. After
Rexton Holdings entered into the agreement it attempted to remove
manganese ore from the farm during the beginning of 2017
with the
knowledge that Sedibeng and Klipfontein community disputes its claims
to the said manganese ore. On 10 November 2017 the
Steenkamps broke
one of the two locks to the gate at the main entrance of the farm.
This gate was used by the Klipfontein community
members. One of these
locks was replaced by a lock of Rexton Holdings. The Steenkamps, in
the company of an unknown person, entered
the farm and proceeded to
the manganese ore. After that they locked the gate and left with the
lock they had replaced.
[11] Sedibeng
states that the removal of manganese ore dumps by Rexton Holdings and
Mr McCrae would interfere with its rights
as its mining activities
were conducted on the same farm area and adjacent areas where Rexton
Holdings intends to conduct its operations.
The applicants clearly
set out the location of the manganese dumps and pits in relation to
its mining area and activities in its
affidavit, the argument goes.
This also appears from Dr Avinash Bisnath’s report as well as
the appendices.
[12] The
applicants allege that the respondents’ statements lack
bona
fides
and frank answers to the applicants’ supplementary
affidavit. They allege further that the respondents’ operations
would be unlawful and illegal should they not comply with the
applicable legislation and because of that the
rule nisi
ought
to be confirmed.
[13] According to
Sedibeng, Rexton Holdings applied for a prospecting right on the
false assumption that Sedibeng mines on
Portion 3 of Farm 445. It
formally objected to the said application and contested Rexton
Holdings’ allegation. It indicated
to it that its mining right
extends over the entire Klipfontein Farm 437 and that its mine work
programme extends in phases for
over thirty years. Sedibeng argues
that the anticipated prospecting activities of Rexton Holdings would
encroach on its mining
right but Rexton Holdings persists despite the
objection by Sedibeng.
[14]
Notwithstanding the objection raised Rexton Holdings was granted the
prospecting right. On 16 November 2016 Sedibeng
lodged an appeal
against the granting of the said prospecting right in terms of
section 96 (1) and requested the Director General
to suspend such
prospecting right in terms of section 96 (2) of the MPRDA. The
request for the suspension was granted and it remains
suspended
pending the appeal. Section 96 (1) and (2) provide:
96 Internal
appeal process and access to courts
(1)
Any person whose rights or legitimate expectations have been
materially and adversely affected or who is aggrieved by any
administrative
decision in terms of this Act may appeal within 30
days becoming [sic] aware of such administrative decision in the
prescribed
manner to-
(a)
the
Director-General, if it is an administrative decision by a Regional
Manager or any officer to whom the power has been delegated
or a duty
has been assigned by or under this Act;
(b)
the
Minister, if it is an administrative decision that was taken by the
Director-General or the designated agency.
(2)
(a)
An
appeal in terms of subsection (1) does not suspend the administrative
decision, unless it is suspended by the Director-General
or the
Minister, as the case may be.
(b)
Any
subsequent application in terms of this Act must be suspended pending
the finalisation of the appeal referred to in paragraph
(a)
.
‘
[15] It is
important to identify common cause facts in this matter which are:
15.1 Sedibeng is the
holder of a converted mining right permitting it to mine for iron ore
over Farm 437, Klipfontein as well as
over Portion 3 of the Farm 445
as alluded to earlier;
15.2 The CC was
previously known as QCK Lezmin 4447 CC and was formed by members of
Isaacs, Beukes, Jansen and McCarthy families
in order to claim
transfer of Farm Klipfontein. Rexton Holdings and Mr McCrae do not
dispute that the Isaacs, Beukes, Jansen and
McCarthy families moved
to Klipfontein Farm during October 1993;
15.3 Rexton Holdings
launched an application to have it declared the lawful owner of the
manganese dumps under Case Number 1157/2015
which application, they
say was withdrawn by the first respondent. In the first and third
respondent’s supplementary affidavit
it is alleged that the
matter was in fact not withdrawn but settled. This is a contradiction
on the version of the respondents;
15.4 Rexton Holdings’
prospecting right granted over Klipfontein Farm was suspended on 24
January 2017 and referred to Reginal
Mining Development and
Environmental Committee (REMDEC) for consideration. Currently it does
not have any prospecting right over
Klipfontein Farm; and
15.5 Rexton Holdings
should conduct its activities (either reworking of the historical
manganese dumps or prospecting activities)
in a manner that it does
not interfere with Sedibeng’s mining operations.
[16] Rexton Holdings
concedes the following factors:
16.1
That it launched an application to interdict the Klipfontein
community members from interfering with its removal of manganese
ore
dumps under Case Number 1843/2016. An interim order was granted in
its favour but the rule was later discharged. It was ordered
to pay
the costs of Klipfontein community on a scale as between attorney and
client and Sedibeng’s costs of its application
to intervene on
a party and party basis;
16.2
That Rexton Holdings and Mr McCrae confirm in their supplementary
affidavit deposed to by Mr McCrae that the basis for the
dismissal of
the said application was Rexton Holdings’ failure to disclose
all the relevant information in the prior agreements
and the full
history of the matter where Rexton Holdings was advised to launch an
application on an
ex
parte
basis; and
16.3
That Rexton Holdings and Mr McCrae admit that on 10 November 2017 the
Steenkamps broke the lock of the gate to gain access
to Klipfontein
Farm.
[17] The
applicants allege that they have no alternative remedy at their
disposal in order to stop the illegal unlawful conduct
of the
respondents than to approach this Court. They allege further that
they have satisfied the requirements of a final interdict
and have
made out a case for the relief sought. They contend that its mining
activities in terms of its mining programme will be
disrupted and
would be unable to exercise the required control over
inter alia,
the health and safety aspects of its mining activities and would
probably be in breach of its obligations in terms of the mining
legislation. Sedibeng contends that it has established a clear right
that it seeks to protect. The CC occupied and has been residing
on
the farm since May 1993 and therefore claims to have a
prima facie
and
bona fide
claim for ownership and transfer of Klipfontein
Farm into its name, the argument goes. The applicants submit further
that in the
event that the CC has no rightful claim to the farm, its
members still have the right of
bona fide
possessors over the
farm and those rights would be infringed if the relief sought is not
granted.
[18] According to
the applicants they have clearly set out the location of manganese
dumps and pits regarding its mining activities
which is also shown by
the reports compiled by Dr Avinash Bisnath as well as his appendices.
Further reports were compiled by Mr
Jaco Swartz and Ms Alta Van Dyk,
an Environmental Assessment Practitioner, which will be dealt with
later in the judgment. Rexton
Holding and Mr McCrae did not attach
any documents showing the location of the dumps and pits as well as
the active mining area.
REXTON HOLDINGS
AND MR McCRAE’S CASE
[19] Rexton
Holdings and Mr McCrae challenge the authority of Mr Shrivastava, the
General Manager of Sedibeng, and request
him to produce a resolution
by Sedibeng’s board of directors which he did not submit at the
time. They allege that section
4 of the Mine Health and Safety Act
granted him no authority to institute these proceedings on behalf of
Sedibeng. It submits that
only the board of directors of a company
authorises legal proceedings for the company. They state that due to
the absence of authority
the rule stands to be discharged with costs
payable by Mr Shrivastava in his personal capacity. Mr Nel, on behalf
of the respondents
submit that the issue is not about an attorney who
was not authorised but Mr Shrivastava, the general manager of
Sedibeng, who
claims that he had authority to institute the
proceedings. For this assertion he relies on
Cullinan
Holdings Limited v Lezmin 2766 CC, Griffiths & Inglis (Pty) Ltd v
Southern Cape Blasters (Pty Ltd
and
Levinsohn’s
Meat Products (Edms) Bpk v Addisionele Landros, Keimos, en ‘n
ander
.
[4]
[20] Mr Van
Tonder, for the applicants, argues that the cases relied on cannot be
followed and he referred to
ANC
Umvoti Council Caucus and Others v Umvoti Municipality
[5]
where Gorven J had this to say:
‘
[15]
In
Ganes
and Another v Telecom Namibia Ltd
9
the
Supreme Court of Appeal dealt with similar issues as the present ones
arising from the papers in that matter. Streicher
JA held:
'There
is no merit in the contention that Oosthuizen AJ erred in finding
that the proceedings were duly authorised. In the founding
affidavit
filed on behalf of the respondent Hanke said that he was duly
authorised to depose to the affidavit. In his answering
affidavit the
first appellant stated that he had no knowledge as to whether
Hanke was duly authorised to depose to the founding
affidavit on
behalf of the respondent, that he did not admit that Hanke was so
authorised and that he put the respondent to the
proof thereof. In my
view, it is irrelevant whether Hanke had been authorised to depose to
the founding affidavit. The deponent
to an affidavit in motion
proceedings need not be authorised by the party concerned to
depose to the affidavit. It is the
institution of the proceedings and
the prosecution thereof which must be authorised. In the present case
the proceedings were instituted
and prosecuted by a firm of attorneys
purporting to act on behalf of the respondent. In an affidavit filed
together with the notice
of motion a Mr Kurz stated that he was a
director in the firm of attorneys acting on behalf of the
respondent and that such
firm of attorneys was duly appointed to
represent the respondent. That statement has not been challenged by
the appellants. It
must, therefore, be accepted that the institution
of the proceedings was duly authorised. In any event, Rule 7 provides
a procedure
to be followed by a respondent who wishes to challenge
the authority of an attorney who instituted motion proceedings on
behalf
of an applicant. The appellants did not avail themselves
of the procedure so provided. (See
Eskom
v Soweto City Council
1992
(2) SA 703
(W)
at
705C – J.)'
[16]
Rule 7(1) provides as follows:
'Subject
to the provisions of subrules (2) and (3) a power of attorney to act
need not be filed, but the authority of anyone
acting on behalf of a
party may, within 10 days after it has come to the notice of a party
that such person is so acting, or with
the leave of the court on good
cause shown at any time before judgment, be disputed, whereafter
such person may no longer
act unless he satisfied the court that he
is authorised so to act, and to enable him to do so the court may
postpone the hearing
of the action or application.'
[17]
The dictum in
Ganes
's case held that the use of this rule
provides the remedy to be employed by a respondent to challenge
whether the initiation
of litigation on the part of an artificial
person has been authorised. Flemming DJP reasoned as follows in
the
Eskom
case referred to:
'The
care displayed in the past about proof of authority was rational. It
was inspired by the fear that a person may deny that he
was party to
litigation carried on in his name. His signature to the process, or
when that does not eventuate, formal proof of
authority would avoid
undue risk to the opposite party, to the administration of justice
and sometimes even to his own attorney
. . . .
The
developed view, adopted in Court Rule 7(1), is that the risk
is adequately managed on a different level. If the attorney
is
authorised to bring the application on behalf of the applicant, the
application necessarily is that of the applicant. There
is no need
that any other person, whether he be a witness or someone who becomes
involved especially in the context of authority,
should additionally
be authorised. It is therefore sufficient to know whether or not the
attorney acts with authority. As
to when and how the attorney's
authority should be proved, the Rule-maker made a policy decision.
Perhaps because the risk is minimal
that an attorney will act for a
person without authority to do so, proof is dispensed with except
only if the other party challenges
the authority. See Rule 7(1).
Courts should honour that approach. Properly applied, that
should lead to the elimination of
the many pages of resolutions,
delegations and substitutions still attached to applications by some
litigants, especially certain
financial institutions.'
[18]
This underlying rationale was endorsed and expanded on by Brand JA
when he dealt with a ground of appeal relating to lack of
authorisation in
Unlawful Occupiers, School Site v City of
Johannesburg
, to the following effect:
'[14]
At the hearing of the appeal, counsel for the appellants conceded
that she could not support this ground of appeal. I think
the
concession was fairly made. The issue raised had been decided
conclusively in the judgment of Flemming DJP in
Eskom
v Soweto City Council
1992
(2) SA 703 (W)
,
which was referred to with approval by this Court in
Ganes
and Another v Telecom Namibia Ltd
2004
(3) SA 615
(SCA)
at
624I - 625A. The import of the judgment in
Eskom
is
that the remedy of a respondent who wishes to challenge the authority
of a person allegedly acting on behalf of the purported
applicant is
provided for in Rule 7(1) of the Uniform Rules of Court . . .
[15]
These remarks by Flemming DJP must be understood against the
background that Rule 7(1) in its present form was introduced by
way
of an amendment only in 1987. Prior to the amendment an attorney was
obliged to file a power of attorney whenever a summons
was issued in
an action, but not in motion proceedings. The underlying reason for
the distinction, so it was said, was that in
motion proceedings there
is always an affidavit signed by the applicant personally or by
someone whose authority appears from
the papers (see eg
Ex
parte De Villiers
1973
(2) SA 396
(NC)
).
On the basis of this reasoning it is readily understandable why,
before 1987, the challenge to authority could be directed only
at the
adequacy of the averments in the applicant's papers and pre-1987
decisions regarding proof of authority should be read in
that light.
[16]
However, as Flemming DJP has said, now that the new Rule 7(1) remedy
is available, a party who wishes to raise the issue of
authority
should not adopt the procedure followed by the appellants in this
matter, ie by way of argument based on no more than
a textual
analysis of the words used by a deponent in an attempt to prove his
or her own authority. This method invariably resulted
in a costly and
wasteful investigation, which normally leads to the conclusion
that the application was indeed authorised.
In the present case, for
example, the respondent's challenge resulted in the filing of pages
of resolutions annexed to a supplementary
affidavit followed by
lengthy technical arguments on both sides.'
[21] The
applicants submit that the challenge by the respondents has no merit
because the respondents have not presented the
minimum of evidence
showing that Sedibeng is not properly before court. The applicants
allege that Rexton Holdings and Mr McCrae
have also failed to serve a
notice in terms of Rule 7 (1) of the Uniform Rules of Court though
they were procedurally entitled
and required to.
[22] In Cullinan
supra
the resolution was not signed by the directors but by the deponent
himself which is not the case in the instant case. Section 66
(1) of
the Companies Act
[6]
provides
that the business and affairs of a company must be managed by or
under the direction of its board, which has the authority
to exercise
all of the powers and perform any of the functions of the company,
except to the extent that this Act or the company’s
Memorandum
of Incorporation provides otherwise.
[23] Henney J in
GRAHAM
v PARK MEWS BODY CORPORATE AND ANOTHER
[7]
held:
‘
Although
there was no resolution taken at a formal meeting in respect of the
second respondent’s manganese rules, it had to
be borne in mind
that the respondents were faced with an application brought on an
urgent basis. Whether a formal resolution is
required in order to
give an individual the necessary authority to act in legal
proceedings on behalf of a juristic person depends
on the
circumstances of each case. The Court was satisfied that the second
respondent was in fact authorised to act for the first
respondent.’
[24] In the
instant case the resolution signed by the board of directors dated 12
December 2018 and filed on 08 January 2019
records:
‘
IT
WAS RESOLVED THAT:
Either
of Mr Naveen Shrivastava (GM – Operations) and Mr Tau Koaho
(Mine Manager) is individually authorised to sign all documents
and
do all things as may be required to advance the litigation under case
number 2772/2017 in the High Court, Northern Cape Division,
Kimberley.
FURTHER
RESOLVED THAT:
All
steps taken by Mr Naveen Shrivastava to date in instituting the
proceedings under case number 2772/2017 are hereby ratified
by the
Board.’
[25] The
resolution further gives Mr Shrivastava authority to advance the
litigation against the respondents. The respondents
received copies
of the said resolution on 08 January 2019. I am satisfied that Mr
Shrivastava had authority to institute and advance
litigation on
behalf of the company considering the resolution signed by the board
of directors.
[26] The
respondents contend that Sedibeng’s mining activities would not
be affected if they would be allowed to remove
manganese ore dumps
from the farm. Instead it would benefit Sedibeng’s future
mining activities. Rexton Holdings and Mr McCrae
dispute that the CC
is either conducting business or occupying the immovable property.
They further dispute that Klipfontein community
is farming. According
to them the landowner, the NC Provincial Government, disputes that
the second applicant or anyone for that
matter is entitled to receive
transfer of the immovable property. If the CC had any claim for
transfer of the immovable property,
that claim has, according to the
respondents, prescribed. The CC therefore has no vested rights
entitling it to claim a final interdict,
the argument goes.
[27] The
respondents allege further that Sedibeng’s mining right
pertains to the removal of iron ore in terms of its
mining right and
permit. It has nothing to do with mining of manganese or the
historical dumps and the ownership of the said dumps
vests in the NC
Provincial Government. This means that neither the first nor the
second applicant would claim any rights in respect
thereof. Moreover,
Sedibeng’s rehabilitation obligations regarding its mining
right does not entitle it to any rights to
the manganese and
stockpiles. According to the respondents historically the manganese
and iron ore were mined on the property as
a result of which a number
of historical dumps and pits were found on the property. Rexton
Holdings state that Sedibeng’s
converted mining right does not
give it right to the historical dumps created before the enactment of
the MPRDA and therefore the
MPRDA does not regulate the historical
dumps.
[28] According to
the respondents the allegations by Sedibeng that the respondent
should comply with National Environmental
Management Act
[8]
(NEMA), the Mine and Health Safety Act
[9]
,
the Waste Act and the National Environmental Management, Biodiversity
Act
[10]
are unsubstantiated
and they place no facts showing that Rexton Holdings acts in
contravention of same to the extent that it detrimentally
affect its
mining right or the second applicant’s possession of the farm
for residential or farming purposes.
[29] Rexton
Holdings argues that the fact that the CC’s residents stay on
the farm and conduct farming activities does
not entitle it to the
manganese ore dumps but would at best entitle them to be
bona fide
possessors. It states in no certain terms that the property would not
be transferred to the CC. The right to the dumps was granted
to
Rexton Holdings by the Memorandum of Understanding (“MOU”)
and that right precedes transfer of ownership to the
second
respondent if transfer would be granted to the CC, the respondents
argue. The mentioned MOU was entered into by the fifth
respondent and
Rexton Holdings on 30 October September 2014. Its purpose was to give
Rexton Holdings right to process and dispose
of the historical mine
dumps and access Farms Klipfontein 437 and Portion 3 of farm 445. At
the time the Isaacs and McCarthy families
prevented it from acting in
terms of the MOU. Rexton Holdings approached court under Case Number
1157/2015 against the said families
which the respondents later
withdrew as alluded to earlier. The dispute between Sedibeng and
Rexton Holdings arose when Sedibeng
alleged that Rexton Holdings was
extracting manganese ore and therefore involved in illegal mining
activities in contravention
of the MPRDA. An inspection was conducted
by Mr Nematatani, of the DMR, who found that no illegal mining
activities were conducted
by Rexton Holdings.
[30] Rexton
Holdings confirm what the applicants state that a prospecting right
was granted to it by the DMR to prospect manganese.
In this regard
Sedibeng lodged an appeal regarding this right which proceedings are
still pending before the Minister of the Department
of Mineral
Resources. Pursuant to the appeal, Rexton Holdings has since stopped
its prospecting activities pending finalisation
of the appeal.
[31] Rexton
Holdings confirms that in order to conduct its activities of
reclaiming the historical dumps it had to construct
a separate access
road of 6.9km fenced off with 13 km fencing from the property at the
cost of R5 million. It sunk three boreholes
with solar panels in
order to remove the historical dumps, the argument goes. About 30 000
tons of manganese was processed from
the dumps and approximately
R160 000-00 advance was made to Isaac Klipfontein CC’s
with its knowledge and consent
.
Rexton Holding say that the site where the dumps were reclaimed is
about 300 hectors in size and located about 6.3 km away from
the
nearest mining activities of Sedibeng. To this end Sedibeng uses a
separate access road to its site which does not support
the
allegation of the respondents’ interference with Sedibeng’s
mining activities, it argues.
[32] The CC’s
farming activities and two houses are situated well away from the
historical dumpsite and Rexton Holdings’
removal and processing
of the historical dumps does not interfere with its activities. In
support of this assertion Annexures “GAM
3” to “GAM
5” (Google Earth Maps) were attached with pins on the maps.
Rexton Holdings say that the historical
dumps are movables.
[33] On 18 July
2018 Rexton Holdings’ attorney of record requested an
inspection
in
loco
on the property to finalise its reply in respect of the appeal
relating to the prospecting right and technical issues raised by
Sedibeng in their geological report. Sedibeng in response granted
access only to Rexton Holdings’ attorney, the geologist
on
condition they would be accompanied by Sedibeng’s mine manager.
Rexton Holdings argues that this is unreasonable and restricted
access which would prevent Rexton Holdings’ directors to
accompany its team and consult under privileged circumstances with
its expert and attorney of record during the said inspection. The
interim order assists Sedibeng to prevent any access by Rexton
Holdings hence the allegation by Rexton Holdings that Sedibeng abuses
the interim order by gaining advantage over it in this application
as
well as the pending appeal. The motive of the applicants is purely of
a commercial nature and not to enforce legislative requirements,
the
argument goes.
[34] According to
Rexton Holdings it suffers loss of considerable revenue to the value
of R15 million per month since the
applicants obtained the interim
order. This is so because Rexton Holdings is prevented from removing
and processing the historical
dumps. It argues further that Sedibeng
is not
bona fide
in launching this application because the
respondents are not interested in the manganese on the property due
to the economic value
of the dumps and the relative ease and low
costs at which the dumps can be processed and sold.
[35] The
respondents allege that section 53 of the MPRDA constitutes an
alternative remedy which would prohibit the grant
of an interdict.
The applicants submit that the remedy provided by section 53 is in
addition to and does not prohibit interdictory
relief. Section 53 of
the MPRDA provides:
’
53.
Use of land surface rights contrary to objects of Act-
(1) Subject to
subsection (2) any person who intends to use the surface of any land
in any way which may be contrary to any object
of this Act or which
is likely to impede any such object must apply to the Minister for
approval in the prescribed manner.’
[36]
DALE
ET AL in SOUTH AFRICAN MINERAL AND PETROLEUM LAW
[11]
:
‘
The
administrative remedy provided by section 53 is in addition to, and
does not supplant the available judicial remedies. Section
53 thus
falls to be considered in the light of the primary and ancillary
rights accorded to holders of prospecting, mining, exploration
and
production rights and mining permits by sections 5 (2) and (3) and 27
(7). Those rights are accordingly subject to the corollary
that the
landowner or occupier may not do anything to impede or restrict the
exercise of such rights by such holder. Accordingly,
although the
remedies now flow from the statutory rights accorded to the holders
of rights and permits in terms of the MPRDA, whereas
prior to the
MPRDA the remedies flowed from the ancillary surface-use rights
accorded to the holders of common-law mineral rights,
it is submitted
that the main judicial remedy available to the holder, namely an
interdict against adverse surface-use, is the
same remedy as that
that was previously available.’
[37] The first
and third respondents say that paragraph 7.3 of the mining right
limits the right to mine for iron as follows:
‘
The
holder shall not …interfere with or prejudice the interests of
occupiers and/or owners of the Surface of the Mining are
except to
the extent to which such interference or prejudice is necessary for
the purposes of enabling the holder to properly exercise
the holder’s
rights under this mining right.’
According
to the respondents Sedibeng has no rights in respect of the mining of
manganese ore or manganese dumps which lie in heaps
above the ground
on a particular surface as alluded to earlier. Its rights are limited
to mining of iron ore, use of water and
activities related to that.
[38] The issue
for determination is whether the applicants are entitled to a final
interdict.
[39] Rexton
Holdings and Mr McCrae’s version has no detail and a bare
denial. Their denial of facts is unsubstantiated.
They file no report
that clearly shows the whereabouts of the manganese dumps and pits as
alluded to earlier. They deny the expert
reports of Ms Alta Van Wyk,
Dr Bisnath and Mr Jaco Swartz without attaching reports contradicting
the said reports. There is no
commitment on their part to comply with
the legislative requirements in order to be able to remove the
manganese ore dumps. In
addition to that they deny that the
Klipfontein community exists on the farm and state: “
Some
family members of the Isaacs family, the Beukes family, McCarthy
family and the Jansen family adopted the Klipfontein Community
in
order to elicit unwarranted sympathy from the court.”
In
their answering affidavit dated 14 February 2018 the first and third
respondent state at paragraph 43.4:
‘
I
deny that the removal of the manganese ore is in contravention of the
MPRDA, which does not apply to the processing and disposal
of
manganese ore dumps, Health and Safety Act, Waste Act and
environmental protection law. In any event, the applicants do not
state the provisions they alleged are contravened by the first
respondent and the respect in which it is alleged that the first
respondent is in contravention of the specified law. Accordingly the
respondents are unable to provide a comprehensive answer to
the
allegations, which allegations are in any event denied.’
[40] The
respondents deny that there is any good point advanced by the CC in
its claim for transfer of Klipfontein Farm and
vehemently deny that
the CC awaits transfer of the farm. This is contrary to what is
mentioned in “A14”, a written
agreement titled Heads of
Agreement between Rexton Holdings, QCK Lezmin and Mogothlo Mining.
Clause 5 records:
‘
5.
TRANSFER OF THE LAND
5.1
It is recorded that currently the Northern Cape Provincial Government
is the custodian of farm Klipfontein
437 and Portion 3 of Farm 445.
5.2
It is further recorded that Lezmin is despite resolution NC 84/2003
dated 27
th
October 2003 is still not the registered owners
of farm Klipfontein 437 and Portion 3 of Farm 445.
5.3
Rexton assist to expedite the transfer of farm Klipfontein 437 and
Portion 3 of Farm 445 to Lozmin.
5.4
This agreement will remain in force after transfer of the farm
Klipfontein 437 and Portion 3 of Farm 445
from the custodian Northern
Cape Provincial Government (Department of Roads and Public Works) to
Lozmin.’
[41] Sedibeng was
not made aware of the settlement of Case Number 1157/2015 mentioned
supra
because it argues that Rexton Holdings secretly wanted
to continue with its illegal mining activities (removing manganese
from
the dumps) without complying with the necessary legislation.
REQUIREMENTS
FOR A FINAL INTERDICT
[42] The
requirements for the right to claim a final interdict are: (a) a
clear right; (b) an injury actually committed or
reasonably
apprehended; and (c) the absence of similar protection by any other
remedy.
[12]
CLEAR
RIGHT
[43] Sedibeng
alleges that it has a clear right alternatively a
prima
facie
right to the relief sought and has no alternative remedy. It has a
mining right over the Klipfontein Farm and its mining activities
are
and have been conducted in terms of the relevant legislation. The
second applicant, in its representative capacity of the Klipfontein
community, has been in undisturbed possession of the farm, and in
occupation since May 1993. It awaits transfer of Klipfontein
Farm
into its own name. The applicants allege further that the CC has the
rights of a
bona
fide
possessor over the farm and these rights would be infringed if the
relief sought is not granted.
[44]
Significantly, Rexton Holdings and Mr McCrae did not attach a map or
any kind of document or description of the exact
location of the
manganese dumps and pits with reference to Sedibengs’ mining
area. Instead they rely on Sedibeng’s
old approved mining works
programme for all their submissions in this regard.
[45] The maps and
photos attached to Dr Bisnath’s reports clearly show that from
the location of the historical manganese
dumps the removal of
manganese cannot be conducted without interfering with Sedibeng’s
mining areas both active and future
mining area. In his report he
states:
‘
The author
wishes to categorically state that the effect of two independent
companies operating simultaneously will be disastrous.’
He
states further that: ‘
In
order to process any historical dumps a Waste Management licence is
required under the updated Waste Act.’
[46] Regarding
the legislation that Rexton Holdings has to comply with in order to
be able to mine the dumps it states: ‘
The first respondent
in conducting its reclaiming activities, will comply with all
applicable legislative requirements.’
[47] Rexton
Holding states further:
‘
The
applicants are not enforcers of environmental and other applicable
legislation. Nowhere in the papers have any of the applicants
stated
how any possible non-compliance, which is still denied, will affect
their rights and/or activities.’
[48] This is a
casual answer which does not show
bona fides
with the first
and third respondents. If the respondents have to comply with
necessary legislation then they have to without the
applicants being
enforcers of legislation.
[49] The
legislative requirements in order for Rexton Holdings to lawfully
reclaim the historical manganese dumps are also
echoed by the
contents of the explanatory affidavit deposed to by Mr Pieter
Frederik Swart for the DMR dated 29 March 2018. Paragraphs
21 and 22
of same record:
’
21.1 The
establishment and reclamation of mine dumps and stockpiles of similar
waste from or incidental to a mining operation
must comply with the
new regulations regarding the planning and management of residue
stockpile residue deposits from prospecting,
mining, exploration or
production operation published under the
National Environmental
Management Waste Act, 59of 2008
21.2 A waste
management license under NEMWA is required for creation of residue
stockpile. Applicants for Waste management
licenses must undertake an
Environmental Impact Assessment (EIA) process in accordance with the
NEMA (National Environmental Management
Act 107 of 1988).
21.3 The license
is issued in terms of section 20 (b) of NEMA and Regulations
regarding the planning and management of residue
stockpiles and
residue deposits.
21.4 Since
September 2014 waste management license has to be obtained for the
established of new residue stockpiles and deposits
resulting from
activities requiring a right or permit in terms of the MPRDA.
22
The National Environmental Management Amendment Act of 2014 (NEMLA)
amended the provisions of NEMWA.
The amendment of NEMWA provides that
stockpiles must be managed in a prescribed manner on any site
demarcated for that purpose
in the related environmental plan. The
Minister of Mineral Resources is vested with permitting and
administrative powers relating
to the implementation of NEMWA in the
mining sector.
23
It is essential that the applicable prescripts are followed by both
the applicants and all the parties
to obtain and conduct mining
operations
.’
This
means that the first and third respondents have to comply with the
necessary legislation.
AN
INJURY ACTUALLY
COMMITTED
OR REASONABLY APPREHENDED
[50] Although the
respondents argue that the CC does not have a
prima facie
and
bona fide
claim for ownership and the transfer of the
immovable property into its name the CC and its members have the
rights of
bona fide
possessors which would be at stake if the
relief sought is not granted.
[51] In
CAPITAL
ESTATE AND GENERAL AGENCIES (PTY) LTD AND OTHERS v HOLIDAY INNS INC
AND OTHERS
[13]
Rabie JA held:
‘
I
now turn to the appellants’ contention that the interdict was
wrongly granted because the respondents failed to establish
any
actual injury suffered by them, or any reasonable apprehension of
injury. The Court
a
quo
held: “The potential prejudice to the applicants is manifest”.
It was contended before us that no such prejudice has
been proved. I
do not agree. It can hardly be doubted, I think, that in endeavouring
to conclude franchise agreements with the
owners of hotels and
motels, as set out above, the second appellant is attempting to
capitalise on the respondents’ reputation
in the hotel trade,
and in my view its conduct is likely to be prejudicial to the
respondent.’
[52] Williamson
J in
FREE
STATE GOLD AREAS LTD v MERRIESPRUIT (ORANGE FREE STATE) GOLD MINING
CO. LTD & ANOTHER
[14]
stated:
‘
The
applicant for an interdict has not got to establish that, on a
balance or preponderance of probabilities flowing from the undisputed
facts, injury will follow. If that is what a Court would have to find
as established it would mean of course that the Court must
find that
injury will in fact result; it is on the application of that very
test that a Court in a civil case makes findings of
fact.’
[53] In the
instant case I am of the view that the respondents’ operations
would be detrimental to the mining activities
of Sedibeng as well as
the CC and its members. Mr Jaco Swart concludes in his report
attached to the applicants’ supplementary
affidavit thus:
‘
7.
Conclusion
A
study of selected excerpts from the Mine Health and Safety Act and
its Regulations indicate that both the generic and specific
obligations placed on the Employer are such that compliance therewith
is not practical where a third party enters the geographical
mining
environment.
Not
only does practical compliance become problematic, a real increase in
physical risk will follow for all involved.
This
physical risk will be exacerbated as accountability for the Manganese
Operator will become vague. It is submitted that the
Act its
Regulations were not drafted with consideration of non-Employers
working within the same footprint (or contiguous to it)
of an
existing Employer and that compliance, and enforcement will be
unrealistic, manifesting in increased physical risk to both
Sedibeng
Iron Ore and Manganese operator employees.
In terms of specific
liability and its impact on the Sedibeng Iron Ore mining operation,
various iterations are possible.
This
would include administrative actions by the Regulator and specific
liability on conviction in a competent court.
In
terms of administrative action, Sections 54 and 55 of the Act poses
serious practical considerations for the Employer.
Where
an incident, accident or occurrence takes place on the mine, a
Department of Mineral Resources Inspector may give any instruction
deemed necessary in the interest of health and safety. This typically
takes the form of an instruction halting all or some mining
activities pending the implementation of measures dictated by the
DMR.
Various
Rexton Holdings activities could lead to Section 54 significant risks
on any surface mine, stopping all mine haulage activities
as a result
of an incident involving Rexton Holdings vehicles or mine vehicles
and unauthorised Rexton Holdings employees. This
would have the
immediate impact of halting production.
Section
55 allows for administrative fines to be levelled on the Employer,
where the Employer, in the eyes of an inspector, is in
breach of a
legal obligation. The quantum of such administrative fine is up to
R1 000 000. While the Act allows for an
appeals process,
this is extremely onerous as fines are to be settled prior to an
appeal being made. This could be concurrent with
and instruction to
halt mining activities in terms of Section 54.
Again
this would have serious potential implications for Sedibeng Iron Ore.
An example would be where Sedibeng Iron Ore plans a
blast and secures
the perimeter. In terms of Regulation, the Employer has a
responsibility to ensure that persons do not enter
the blast and
exclusion zone prior to the blast being set off. Where Rexton
Holdings employees enter this exclusion and blasting
zone, where
Sedibeng Iron Ore has no authority over such employees, the Employer
would be in strict breach of its legal obligation
and may be subject
to a fine and sanction. This places the mine at a distinct
disadvantage from both a direct financial perspective
in terms of the
potential fine but also from the financial impact of production
losses due to mine stoppages.
In
terms of strict liability for non-compliances with legal obligations
in Act due to activities taking place on the mine over which
Sedibeng
Iron Ore has no direct control, Section 91 applies.
It
stipulates that non-compliance with Act, Regulations, instruction,
prohibitions, including those issued by the Chief Inspector,
for
example the MCOP on Trackless Mobile Machinery is an offence.
Section
92 stipulates the penalties for offences (including fine or
imprisonment not exceeding 6 months where a specific penalty
is not
allowed for).
Specific
Sections have defined penalties in terms of Schedule 8, table 1. This
includes a R1 000 000 or 5 years’
imprisonment for
non-compliance with the general, broad obligation as contained in
Section 2.
For
any accident resulting in serious injury or illness, through a
negligent act or omission, the employer may be fined up to R3 000 000
or a period of imprisonment not exceeding 5 years.
From
the above it is clear Sedibeng Iron Ore will face significant legal
risk where Rexton Holding perform activities either on
and within the
Sedibeng Iron Ore mining rights authorisation area or area
immediately adjacent thereto, given the fact that the
Employer, being
Sedibeng Iron Ore, would have no control or oversight over Rexton
Holdings activities.
While
the very real risk must be considered, attention must at all times be
directed to the actual physical risk that the Rexton
Holdings’
activities would pose to its own employees, the public at large and
Sedibeng Iron Ore.’
[54] Despite the fact
that the respondents dismiss Ms Van Dyk’s report as ‘
generic
in nature’
and dispute the requirements of a waste
management licence, the report is not seriously disputed.
[55] Ms Van Dyk
summarised her conclusions as follows:
‘
SUMMARY
OF CONCLUSIONS
:
·
Activities
undertaken by Rexton Holdings (Pty) Ltd must be supported by an
approved Environmental .i.t.o NEMA and includes notifying
the
landowners and lawful occupiers of the land in question;
·
A Waste
Management Licence is required in terms of NEMWA to reclaims mine
residue deposits/ stockpiles;
·
Based on
the ecological sensitivity of the area, DAFF permits may be required
should there be an impact on certain protected plant
species;
·
A Water
Use Licence is required in support of the management of contaminated
storm water and for any other possible water uses in
terms of Section
21 of the NWA;
·
An
application is required with SAHRA when certain thresholds of
vegetation are cleaned in order to protect heritage and culture
resources’
[56] Dr Bisnath
expressly states that the effect of two independent companies
operating simultaneously would be disastrous.
He further states that
in order to process any historical dumps a Waste Management license
would be required under the updated
Waste Act 59 of 2008. He states
further that the removal of the manganese would not be conducted
without interfering with Sedibeng’s
mining areas referring to
active and future mining. All these reports have been confirmed under
oath.
[57] Regarding
Dr Bisnath’s report Rexton Holdings indicates that the report
has been fully addressed in the appeal
process and that the decision
in respect of prospecting manganese lies solely within the
jurisdiction of the seventh respondent.
This decision is still
pending as alluded to earlier. It should be remembered that the
seventh respondent forwarded a letter dated
24 January 2017 to Rexton
Holdings which records:
‘
APPEAL
IN TERMS OF SECTION 96 (2) OF THE MPRDA BY CUZEN RANEREE ATTORNEYS ON
BEHALF OF SEDIBENG IRON ORE (PTY) LTD AGAINST THE GRANTING
OF A
PROSPECTING RIGHT TO REXTON HOLDINGS (PTY) LTD IN RESPECT OF THE FARM
KLIPFONTEIN 437, SITUATED IN THE MAGISTERIAL DISTRICT
OF HAY,
NORTHERN CAPE PROVINCE
NC
30/5/1/1/2/11329 PR
The
abovementioned appeal received on the 11
th
November 2016 has reference.
After
careful consideration of all facts presented before me, I Mr David
Msiza, Acting Director-General of Department of Mineral
Resources,
hereby suspend a decision made by the Deputy Director-General:
Mineral Regulation to grant a prospecting right to Rexton
Holdings
(Pty) Ltd pending finalisation of an internal appeal
in terms of section 96
(1) of the MPRDA on the property indicated above for the following
reason:
The
appellant as a converted mining right holder will suffer prejudice as
it alleged it was not consulted by the third party as
required by
law.’ My underlining
[58] I do not
agree with the respondents’ submissions regarding the reports.
They have failed to file counter-reports.
Therefore those reports
stand uncontroverted.
[59] Rexton
Holdings states that in the normal course of events it would expect
co-operation in order to coordinate their
operations. It says that
the majority of the historical manganese ore dumps are located 2
kilometres to the north of Sedibeng’s
approved mining area. It
says further that the balance of the manganese ore dumps constitutes
a smaller proportion of the total
1.8million tonnes of historical
manganese ore dumps and could easily be removed to the centralised
dry screening area.
[60] In my view
the respondents speculate when they submit that the first applicant
failed to indicate the expected time
of the progression of their
mining operations. They also suggest that the dry-screening
processing and removal of the historical
dumps would have long been
completed even before Sedibeng closes its current mining operations
in the south to move north. They
relate to these as important
considerations in Dr Bisnath’s report which depicted the
location of manganese dumps and pits
and the active mining area which
they dispute. For instance, the maps and photos attached to this
report show clearly that from
the location of the dumps and pits the
removal of manganese could not be conducted without interfering with
the first applicant’s
mining areas.
[61] The
respondents claim that the reports by Bisnath, Swartz and Van Dyk are
unsubstantiated yet they only filed one report
compiled by Kweneng
Group dated 13 August 2018. In this report the only reference to the
location of the manganese dumps on the
property is found in one
paragraph which records:
‘
The
DMT letter (2017) and report (2011) both fail to acknowledge the
existence of Manganese stockpile in the north of Klipfontein
437
which were created by historical activities. This together with the
historical open pits alone is sufficient evidence of the
existence of
Manganese which is mineable from the surface on Klipfontein 437.’
Notably,
this report was not confirmed under oath.
[62] According to
the respondents Sedibeng is required by the MPRDA to consult the land
owner in respect of the use of surface
rights. Be that as it may, it
is common cause that Sedibeng is the holder of a converted mining
right with reference Number NC
75 MRC/Protocol Nr 36/2009 to mine for
iron ore over Farm 437, Klipfontein, as well as Portion 3 of the Farm
445 as alluded to
earlier. How it became the owner of such right is
not relevant for the purposes of these proceedings.
[63] Although the
respondents rely on the MOU, at this stage it should be noted that
that their prospecting right has been
suspended and is subject to an
appeal pending before the seventh respondent. Until then the
respondents would not be in a position
to prospect for either the
historical manganese or iron ore dumps from the property. The
respondents have no valid prospecting
right and therefore have no
access to the property.
[64] In
PLASCON
EVANS PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD
Corbett JA
[15]
held:
‘
Moreover,
there may be exceptions to this general rule, as, for example, where
the allegations or denials of the respondent are
so far-fetched
or clearly untenable that the Court is justified in rejecting them
merely on the papers.’
[65] Shongwe JA
cited with approval the remarks of Eloff AJ in
TRUTH
AND VERIFICATION TESTING CENTRE CC v PSE TRUTH DETECTION CC AND
OTHERS
[16]
held:
‘
I
am also mindful of the fact that the so-called “robust, common
sense approach” which was adopted in cases such as
Soffiantini
v Mould
1956
(4) SA 150
(E) in relation to the resolution of disputed issues on
paper usually relates to a situation where a respondent contents
himself
with bald and hollow denials of factual matter confronting
him. There is, however, no reason in logic why it should not be
applied
in assessing a detailed version which is wholly fanciful and
untenable.’
[66] I am
satisfied that the applicants’ mining activities would be
disrupted resulting in Sedibeng being unable to
exercise the required
control over, amongst others, the health and safety aspects during
its mining activities and be in breach
of its obligations in terms of
relevant mining legislation. The applicants have therefore made out a
case for the relief sought.
COSTS
[67] The
outstanding issue is costs. Mr Van Tonder, on behalf of the
applicants, requests that the respondents be ordered
to pay costs on
a scale as between attorney and client scale jointly and severally
the one paying the other to be absolved, including
the costs of 17
November 2017, 01 December 2017, 23 February 2018, 17 August 2018 and
07 December 2018. No costs order is sought
against second, fourth,
fifth, sixth and seventh respondents.
[68] Mr Nel, for
the respondents, submits that the applicants have not managed to make
out a case for the relief sought and
that rule nisi be discharged
with costs.
[69] It is a
fundamental principle that a party who succeeds should be awarded
costs and this rule should not be departed
from except on good
grounds.
[17]
The award of
costs is a matter wholly within the discretion of the court, but this
is a judicial discretion and must be exercised
on grounds upon which
a reasonable person could have come to the conclusion arrived at.
[18]
There is no reason why in this case the costs should not follow the
result. I take into consideration the manner in which the respondents
have conducted this application as indicated above. No order as to
costs in respect of the second, fourth, fifth, sixth and seventh
respondents.
In the
circumstances I grant the following order:
1.
The
rule
nisi
granted
on 17 November 2017
is
hereby confirmed.
2.
First
and third respondent, Rexton Holdings and Mr Gordon Andrew McCrae,
are ordered to pay costs of the application on the scale
as between
attorney and client including the costs of 17 November 2017, 01
December 2017, 23 February 2018, 17 August 2018 and
07 December 2018,
jointly and severally the one paying the other to be absolved.
BM
PAKATI
JUDGE-NORTHERN
CAPE DIVISION, KIMBERLEY
On
behalf of the 1
st
& 2
nd
Applicant:
Adv AG Van Tonder
VAN
DE WALL INC
On
behalf of the 1
st
& 3
rd
Respondents:
Adv P Nel
ENGELSMAN
MAGABANE INC
On
behalf of the 5,6 & 7 Respondents
Ms
N Mlomo
THE
STATE ATTORNEYS
[1]
Act 29 of 1996
[2]
Act 28 of 2002
[3]
Act 6 of 2002. Section 3 (6) of this Act provides: ‘The
Premier may not dispose of any immovable property unless she or
he
has caused a notice to be published in a newspaper circulating in
the district in which the land is situated, calling upon
interested
parties to submit representations in writing to the contemplated
disposal, within a period mentioned in the notice,
which period may
not be shorter than 21 days, following the day upon which the notice
appeared in the newspaper: Provided further
that this subsection and
subsection (7) shall not apply where the disposal concerns the
letting for a period not exceeding twelve
months without an option
to renew.’
[4]
Saflii Citation
Case Number
(51762/2016) [2016] ZAGPPHC 7538 (26 August 2016); 1972 (4) 249 (C);
1981 (2) SA 562
(NC) at 567C-G.
[5]
2010 (3) SA 31
(KZP) at paras [15]
to [18].
[6]
Act 71 of 2008.
[7]
[2012] 1 ALL SA 167
(WCC) at 168d-e
[8]
Act 107 of 1998
[9]
Act 29 of 1996
[10]
Act 10 of 2004
[11]
At page 458-459.
[12]
Setlogelo v Setlogelo
1914 AD 221
at 227; Masuku v Minister of Justice & Others
1990 (1) SA 832
(A) at 840-841
[13]
1977 (2) SA 916
(A) at 930H-931A
[14]
1961 (2) SA 505
(W) at 518A
[15]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
635B.
[16]
1998 (2) SA 689
(W) at 689H-J.
[17]
South African Association of Personal Injury Lawyers v Heath
[2000] ZACC 22
;
2001
(1) SA 883
(CC) at 912; see also Union Government v Gass
1959 (4) SA
401
(A) at 413C-F
[18]
Beinash v Wixley
[1997] ZASCA 32
;
[1997] 2 All SA 241
;
1997 (3) SA 721
(A) ; see also
Norwich Union Fire Insurance Society Ltd v Tutt
1960 (4) SA 851
(A)
at 854C-E