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[2019] ZANCHC 45
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Misty Falls 45 (Pty) Ltd and Another v Access World (Pty) Ltd and Others (2935/17) [2019] ZANCHC 45 (28 June 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
CASE
NO: 2935/17
HEARD
ON: 22/02/2019
DELIVERED
ON: 28/06/2019
In
the matter between
MISTY
FALLS 45 PTY) LTD
1
st
Applicant
KITSO
MANGANESE (PTY) LTD
2
nd
Applicant
And
ACCESS
WORLD (PTY) LTD
1
st
Respondent
FNM
TRADING (PTY) LTD t/a NEXUS
2
nd
Respondent
LOGISTICS
TRANSET
SOC LIMITED
3
rd
Respondent
MOSEBENZI
JOSEPH ZWANE
4
th
Respondent
DEPARTMENT
OF MINERAL RESOURCES NC
5
th
Respondent
ALMENTA
LOGISTICS (PTY) LTD
6
th
Respondent
JUDGMENT
PAKATI
J
[1]
The applicants, Misty Falls 45 (Pty) Ltd (“Misty Falls”)
and Kitso Manganese (Pty) Ltd (“Kitso”),
seek a final
interdict against, Access World (Pty) Ltd (“Access World”),
FNM Trading (Pty) Ltd t/a Nexus Logistics
(“FNM Trading”),
Transnet SOC Limited (“Transnet”), Mosebenzi Joseph Zwane
(“Mr Zwane”), Department
of Mineral Resources NC (“DMR”),
and Almenta Logistics (Pty) Ltd (“Almenta”), the first to
sixth respondents
respectively, in the following terms:
‘
1.
Until such time as they have approval from the Department of Mineral
Resources, the First, Second, Third And Six Respondents
be and are
hereby interdicted and restrained from conducting any operations (the
“Operations”) on the property situated
at the Remaining
Extent of the Farm Lohatlha 673, District Kuruman, Northern Cape
Province, Measuring 1726.5624 hectares (the “Property”),
including:-
1.1
the
packing or processing of minerals;
1.2
the
loading of minerals onto locomotives;
1.3
the
transportation of minerals from the Property;
1.4
The
utilisation of the railway siding.
2.
Should any of the First, Second, Third and Sixth Respondents obtain
approval from the Department of Mineral Resources to conduct
their
Operations, such Respondents shall be obliged to:-
2.1
obtain the approval of the First Applicant, and the persons appointed
by the First Applicant (the “Nominees”) in
terms of
Section 3.1 and 4.1 of the Mine Health and Safety Act 29 of 1996 (the
“MHSA”) prior to commencing such Operations;
and
2.2
comply with any lawful instructions given by the First Applicant, the
Second Applicant or the Nominees.
3.
The First Applicant or the Nominees shall have the right to:-
3.1
conduct safety stoppages for any vehicle or person traversing the
Property at any time;
3.2
conduct safety audits for any person conducting Operations on the
Property;
3.3
instruct any of the First, Second, Third and Sixth Respondents to
immediately cease the Operations for reasons of safety, and
to only
recommence the Operations once the First Applicant is satisfied that
such Respondent(s) have corrected their offending
actions.
4.
The First, Second and Sixth Respondents shall pay the costs of the
application.’
[2]
The first, second and sixth respondents oppose the application. The
third respondent filed a notice to abide
on 01 February 2018. No
relief is sought against the fourth and fifth respondent. They are
cited herein for any interest they may
have in the outcome of the
application.
BACKGROUND FACTS
[3]
Misty Falls is a holder of a mining right over the entire property
situated at the Remaining Extent of the
Farm Lohatlha 673, District
Kuruman, Northern Cape (“the property”). It appointed
Kitso as its mining contractor. Misty
Falls mines with manganese and
iron ore. Beverley Ann Baker and Frans Johannes Christoffel Wessels
act as its mine managers and/or
representatives (Nominees) to ensure
compliance with its obligations in terms of the
Mine Health and
Safety Act
(“MHSA)
[1]
.
There is a railway siding located on the property which connects to
the main railway line in Lohatlha. It allows for transportation
of
minerals and goods around South Africa. There is also a servitude
registered over the property in favour of Transnet regarding
the
siding.
[4]
As the owner of the mining right and employer Misty Falls is obliged
to comply with
inter alia
,
sections 2
(1) (a) (i),
5
(1) and
(2),
7
(1) (b), of the MHSA which provide:
‘
2
Employer to ensure safety
(1)
The
employer of every mine that is being worked must-
(a)
ensure,
as far as reasonably practicable, that the mine is designed,
constructed and equipped-
(i)
to
provide conditions for safe operation and healthy working
environment…’
5. Employer to
maintain healthy and safe mine environment
(1)
As
far as reasonably practicable, every employer must provide and
maintain a working environment that is safe and without risk to
the
health of employees.
(2)
As
far as reasonably practicable, every employer must –
(a)
Identify
the relevant hazards and assess the related risks to which persons
who are not employees may be exposed; and
(b)
Ensure
that persons who are not employees, but who may be directly affected
by the activities at the mine, are not exposed to any
hazards to
their health and safety.’
7 Employer to
staff mine with due regard to health and safety
(1)
As
far as reasonably practicable, every employer must-
(b) Institute the
measures necessary to secure, maintain and enhance health and
safety.’
The applicants insist
that they comply with the health and safety obligations imposed upon
them.
[5]
The applicants contend that during 2016 Access World brought minerals
mined from elsewhere onto the property,
process them and load them
onto locomotives at the siding and transport them to elsewhere in
South Africa. This was done without
an environmental authorisation or
reconnaissance permission, prospecting right, permission to remove,
mining right, exploration
right or production right, the argument
goes. According to the applicants this is contrary to the MHSA,
Mineral and Petroleum Resources
Development Act (“PRDA”)
[2]
,
and National Environmental Management Act (“NEMA”)
[3]
.
Misty Falls alleges that it had to contribute additional amounts to
its environmental rehabilitation fund. The operations conducted
by
Access World were potentially dangerous as it includes use of heavy
duty and hazardous machinery which, if not operated in a
safe manner,
could result in fatalities or serious injury.
[6]
FNM Trading, Transnet and Almenta also conducted similar operations
as Access World without requisite approval
and authorisation of the
MPRDA, DMR and NEMA. These operations were conducted without regard
to the health and safety requirements,
so argue the applicants. The
conduct of the first, second, third and sixth respondents had a
potential to expose Misty Falls and
its nominees to liability in
terms of the MHSA.
[7]
The applicants allege that the respondents leased land from Maremane
Communal Property Association, the owner,
and yet in terms of the
title deed the following is provided: “
No person may,
without the written approval of the Minister of Land Affairs, sell,
exchange, donate, lease or otherwise dispose
of the property.
”
Notably, this condition applies in the title deed of Portion 8 of the
Farm Gloucestor 674. A similar condition that is applicable
to the
Remainder of the Farm Lohatlha 673 records:
‘
It
is recorded that the State and the
MAREMANE
COMMUNAL PROPERTY ASSOCIATION
agree that the
MAREMANE
COMMUNAL PROPERTY ASSOCIATION
shall not, after registration of transfer of the said Subject Land
into the name of the
MAREMANE
COMMUNAL PROPERTY ASSOCIATION
encumber, sell or otherwise dispose of the Subject Land or any
portion thereof without prior written consent of the Minister. It
is
recorded that in this instance, the Minister shall have the right of
first refusal. The Minister shall have 45 working days
to indicate in
writing his intentions.’
Clearly
lease is not applicable in this clause.
[8]
The respondents confirm that Almenta has a lease agreement with
Maremane Communal Property Association, the
registered owner of the
property. The lease agreement entitles the respondents to store, put
into containers manganese and iron
ore. According to Almenta the
leased area is 40 000 square metres.
[9]
Access World constructed two five thousand square metre concrete
platforms at or near the siding in order
to do loading and
transportation. This conduct was, according to the applicants, in
contravention with MHSA and constitutes mining
operations.
[10] Almenta
argues that its operation constitutes receiving cargo from the mines
in the area
via
tipper trucks and the cargo would be tipped
and stockpiled using a front-end loader to stack. When the cargo has
to be exported
Almenta requests a train from Transnet of empty
containers to be railed from Port Elizabeth to the Lohatlha siding.
When the said
train arrives at the siding Almenta collects the empty
containers from Transnet siding to the site
via
flatbed truck.
The containers would be packed using bobcats. Sometimes a client may
request a third party to assay the cargo on
packing. Almenta would
then move the container
via
a reach stacker to it six metre
platform scale, weigh and trim it to the required weight and seal the
container. It would then
be removed from the scale via a reach
stacker. The full container would be moved back to Transnet siding
for rail to Port Elizabeth
via
a flatbed truck. Sometimes the
cargo is tested chemically before being packed onto the container or
loaded back onto the trucks
for transportation through other means.
[11] FNM Trading
insists that its operation does not constitute mining but provides
storage and handling services to third
parties. As in the case of
Access World and Almenta, FNM Trading stockpiles ore on its leased
land, loads the ore onto shipping
containers, and onto trains at the
siding. Thereafter they transport the shipping containers around the
country.
[12] According to
Almenta the site is fenced and enclosed with separate access controls
and gates. It comprises health and
safety signage, a septic tank, a
twenty four metre weighbridge, a six metre platform scale with
civils, a three metre container
office for weighbridge, electricity,
and a twelve metre building with six metre office space and ablution
facilities for staff.
Before Almenta occupied it, it had two paved
stock pads, civils for a twenty four weighbridges and six metre
container office.
Its office is one kilometre from the area of the
excavations and the mining operations of Misty Falls. The road access
from the
mine is six kilometres and the two sites are separated by a
Transnet railway line and a multi-user road for the mine and other
mines in the Northern Cape that use bulk mega rail allocation. The
respondents allege that none of the applicants’ mined material
is packed or loaded by Almenta and the applicants’ trucks
transport their own material to Bloemfontein. Almenta’s
operations have therefore nothing to do with the applicants’
activities, the argument goes.
[13] The
respondents submit further that the applicants have not disclosed to
the court that they previously used Almenta’s
packing
facilities to load and transport their mined product, thus having
full personal knowledge that the respondents were not
mining or
processing. According to the respondents this was a material
non-disclosure. The respondents contend that the applicants
object to
Almenta’s packing and loading business because they were no
longer able to use Almenta’s loading and railing
facilities. A
letter of complaint dated 30 November 2017 emailed at 11:36 AM by the
applicants to DMR
inter alia
, records:
‘…
I
reiterate that neither Misty Falls 45 (Pty) Limited nor Kitso Mining
(Pty) Limited has any affiliation whatsoever with the companies
operating at the siding. They have in fact refused to accept our
freight and we are now forced to truck material to Bloemfontein
at
great cost.
We
have complied fully with the Section 54 instruction insofar as we are
able in that we have notified the affected parties verbally
and in
writing and informed the SAPS of their continued illegal and blatant
contravention of Section 91 of the Act. They continue
to operate
despite our warnings for them to cease operations and allege that the
Department of Mineral Resources has no authority
over them.
I
feel it is necessary to state that it is our opinion and the opinion
of our legal counsel that we as the employee as defined in
the Act
have complied fully with the Act and neither Misty Falls 45 (Pty)
Limited, Kitso Mining (Pty) Limited nor their employees
can be held
liable for any current or future transgressions of the Act in the
siding area for so long as the offending companies
continue to
operate without our express permission. ‘
[14] The
respondents contend that this application was brought soon after this
letter, in a misguided attempt to close down
Almenta’s loading
and packing business.
[15] The issue is
whether the applicants’ obligations under and in terms of the
Mine Health and Safety Act, 29 of 1996
, extends to the operations of
Access World, FNM Trading and Almenta. The applicants argue that they
are obliged in terms of the
MHSA to ensure health and safety over the
entire mining area irrespective of whether or not the operations are
conducted by the
applicants. They allege further that the activities
of the respondents fall under the definition of mining and therefore
are governed
by the MPRDA and the MHSA. The respondents argue that
Almenta’s operations have nothing to do with the mining and
mining
operations of the applicants. They argue further that the
MPRDA and MHSA place no responsibility on the applicants for the
safety
of Almenta’s employees as its business is packing and
loading.
[16] The
applicants state that Almenta and Access World admitted that their
actions and operations were governed by the MHSA,
and that they would
comply with the Act. They referred to an alleged admission which they
say was made by the respondents that
the community closed the access
road to Almenta’s site due to dust caused by its operation.
They also referred to a letter
addressed by FNM Trading to the
applicants who they allege expressly and explicitly admitted being
bound to comply with the provisions
of the MPRDA, MHSA and the
applicants’ code of practice.
[17] In response
the respondents state that the said admission was taken out of
context. The applicants failed to mention
in their Heads of Argument
that they took it upon themselves to try and force their way with
trucks and the police which contributed
to the community’s
action. This resulted in the community demanding that Kitso’s
products should not be permitted onto
Almenta’s site, which
Almenta did. At present Almenta refuses to accept any products from
the Lohatlha mine onto the property
for and on behalf of the
applicants.
[18] The
applicants raised health and safety issues with the DMR. To this end
an inspection was conducted on the property
which led to the DMR
issuing a section 54 notice to Kitso. All the respondents were
ordered to cease with their operations with
immediate effect pending
a full risk assessment and an action plan was developed to ensure
that the operations comply with the
MHSA. The notice stated that the
DMR had ‘
reason to believe that the loading of manganese ore
material onto trains and other activities happening in this area, may
lead to
accidents and or may endanger the health and safety of
persons involved in these activities and other persons not employed
by the
mine who may be in the vicinity of the area.’
[19] The
applicants allege that the respondents did not comply with the
section 54 notice, and then delivered a statement
to the Dingleton
Police Station regarding the respondents’ non-compliance. This
notice was ultimately uplifted on 13 December
2017 after two meetings
were held between DMR and the representatives of the applicants and
the respondents. According to the respondents
the meeting held on 06
December 2017 wherein the DMR advised them that the notice had been
uplifted occurred one day after the
founding affidavit was signed and
a week before the application was served. The applicants failed to
disclose this to court by
filing a supplementary affidavit.
[20]
Significantly, the instructions in terms of section 54 of the MHSA
were directed to Kitso and not the other respondents.
Section C of
this notice dated 13 November 2017 records:
‘
Section
C: Instruction(s)
1.
Halt all
loading of manganese ore material as well as any other activities
within this dedicated loading/siding zone with immediate
effect.
2.
Conduct a
full risk assessment on this site to include all activities taking
place.
3.
Inform
all affected parties of the Section 54 Compliance Instruction issued
to Kitso Mine.
4.
Once the
risk assessment has been conducted, present an action plan as well as
a management system, to ensure that all activities
conducted on the
loading/siding zone complies with the Mandatory COP’s as well
as relevant SOP’s of Kitso Mine as per
the
Mine Health and
Safety Act, governing
the mining licence in question.
5.
The
presentation should involve the Health and Safety committee and the
other interested parties that may use this area.’
[21] The
respondents insist that their operations have nothing to do with the
applicants as they conduct operations in terms
of the lease agreement
with the land owner. They contend that the applicants have no right
to enforce any obligations on them under
and in terms of the MHSA.
Instead their obligations fall under and in terms of the Occupational
Health and Safety Act, 85 of 1993
(“OHSA”), which
obligations they comply with.
THE
RELEVANT LEGISLATION
[22] Section 5 of
the MPRDA provides that no person may prospect for or remove, mine or
explore for and produce any mineral
or commerce with any work
incidental thereto without a mining right. This applies to Misty
Falls who has a mining right on the
property. Almenta is not
conducting any of the activities mentioned in this section and
therefore requires no mining right. The
MPRDA defines mining area
thus:
‘
(a)
in relation to a mining right or a mining permit, means the area on
which the extraction of any mineral has been authorised
and for which
that right or permit is granted;
(b)
in relation to any environmental, health, social and labour matter
and any residual, latent or other impact thereto, including-
(i)
Any
land or surface adjacent or non-adjacent to the area as contemplated
in sub-section (1) but upon which related or incidental
operations
are being undertaken;
(ii)
Any
surface of land on which such road, railway line, power line,
pipeline, cable way or conveyor belt is located, under the control
of
the holder of such a mining right or a mining permit and which such
holder is entitled to use in connection with the operations
performed
or to be performed under such right or permit; and
(iii)
All
buildings, structures, machinery, residue stockpiles, or objects
situated on or in the areas as contemplated in sub-sections
(ii) (a)
and (ii) (b).’
[23] Section 1 of
the MPRDA defines mine is as follows:
‘
Mine
means when-
(a)
Used as a
noun-
(i)
Any
excavation in the earth, including any portion under the sea or under
other water or in any residue deposit, as well as any
borehole,
whether being worked or not, made for the purpose of searching for or
winning a mineral;
(ii)
Any
other place where a mineral resource is being extracted, including
the mining area and all buildings, structures, machinery,
residue
stockpiles, access roads or objects situated on such area and which
are used or intended to be used in connection with
such searching,
winning or extraction or processing of such mineral resource; and
(b)
Used
as a verb-
In the mining of any
mineral, in or under the earth, water or any residue deposit, whether
by underground or open working or otherwise
and includes any
operation or activity incidental thereto, in, on or under the
relevant mining area’
[24] In terms of
section 102 of the MHSA mine is defined as follows when-
‘
(a)
Used as a noun-
(i)
any borehole, excavation, in any tailings or in the earth, including
the portion of earth that is under the sea or other water,
made for
the purpose of searching for or winning a mineral, whether it is
being worked or not; or
(ii)
any other place where a mineral deposit is being exploited, including
the mining area and all buildings, structures, machinery,
mine dumps,
access roads or objects situated on or in that area that are used or
intended to be used in connection with searching,
winning,
exploitation or processing of a mineral, or for health and safety
purposes or
(iii)
a works; and:
(b) Used as a verb, the
making of any excavation or borehole referred to in paragraph (a)
(i), or the exploitation of any mineral
deposit in any other manner,
for the purpose of winning a mineral, including prospecting in
connection with the winning of a mineral.’
[25] In terms of
section 1 of the MPRDA mining operations mean any operation relating
to the act of mining and matters directly
incidental thereto.
Processing is defined as:
‘…
Processing,
in relation to any mineral, means the winning, extracting,
concentrating, refining, calcining, classifying, crushing,
screening,
washing, reduction, smelting or gasification thereof.’
[26] In terms of
section 102 of the MHSA processing is:
‘…
the
recovering, extracting, concentrating, refining, calcining, milling,
screening, washing, reduction, smelting or gasification
of any
mineral and “Process” has a similar meaning.’
[27] In relation
to ‘
mining operation’
DALE
,
SOUTH
AFRICAN MINERAL AND PETROLEUM LAW ISSUE 24 a
t paragraph 42.8
referred to above Dale adds:
‘
As
was held in Commissioner of Taxes vs Nyasaland Quarries and Mining Co
Limited
24 SATC 579
at 583, in the context of fiscal legislation, the
intention of the legislator in enacting the definitions of mine and
mining operations
is to give those expressions an extended meaning
which would cover the processing by the mining company of the mineral
into its
pure form.
…
On an analysis
of the phrase “including any operation or activity incidental
thereto” in the definition of mine as a
verb it appears that
any such operations or activities which are directly or indirectly
incidental thereto will be included, and
then by reference to the
definition of mining operations, additionally to the direct and
indirect operations and activities covered
by the definition of mine
as a verb will be matters directly related to such directly or
indirectly incidental operations and activities.’
[28] At 45.2 Dale
adds:
‘
As
pointed out in the commentary on the definition of mine as a verb in
paragraph 42.8 above, that definition also expressly includes
any
operation or activity incidental thereto, so that although the
intention of the legislature may have been to attribute a broader
meaning to the term mining operation than to the term mine, in fact
the distinction is difficult to discern, particularly since
the
definition of mining operation restricts such matters to those
“directly” incidental thereto. As there submitted,
the
correct interpretation is probably that mining includes any operation
or activity incidental thereto and additionally the term
“mining
operation” includes matters directly incidental to such
incidental operations or activities. Both terms would,
it is
submitted, include prospecting in connection with mining as also
processing of the mineral or metal into its pure form, but
neither
term would include use of the mineral in manufacturing process.’
[29] According to
the applicants the definition of mining area is not limited to the
actual area that is being mined. They
also state that the MPRDA and
MHSA should be read conjunctively. This is so because the
respondents’ misconception is that
the applicants’
obligations in terms of the MPRDA and MHSA extend only to its mining
operation and only on the land that
is currently being mined which is
incorrect, the argument goes. The applicants insist that the
respondents’ operations constitute
mining. For this assertion
they rely on
United Manganese of Kalahari (Pty) Ltd v
Commissioner, SARS
2018 (2) SA 275
(GP)
at paras 3 and 4 where it
was held that minerals that have been mined and processed
axiomatically have to be stockpiled, packaged
and transported in
order to complete the mining process. The applicants say that the
respondents admit that they weigh ore and
seal it, sometimes it is
assayed and thereafter transported from the property on the siding
via
locomotive. They further argue that whether the
respondents mine or conduct a mining operation is irrelevant, what
matters is that
their operations constitute a potential hazard to the
health and safety of persons whether they are employees or
non-employees
within the mining area.
[30] The
applicants also rely on section 5 (2) (b) of the MHSA which obliges
them as employer to “
ensure that persons who are not
employees, but who may directly be affected by activities at the
mine, are not exposed to any hazards
to their health and safety.
”
To the extent that there were persons who may be affected by any
activities within the mining area and to “mine”
(in the
broader context), the applicants were obliged to ensure that such
persons “are not exposed to any hazards to their
health and
safety.” This, according to the applicants, applies
irrespective of whether the operations are conducted by the
applicants or a third party.
[31] DALE
supra
made reference to
Albertonse
Stadsraad v Briti BK
[4]
when dealing with the definition of mine as a noun thus:
‘
In
Albertonse Stadsraad v Briti BK the court interpreted the word mine
as a verb as defined in section 1 of the Minerals Act. The
Appellant
had alleged that use of certain clay by the respondent constituted
mining, requiring the appellant to have held a mining
authorisation
as contemplated in the prohibition in section 5 (2) of that Act. On
the facts, the court held that the clay had already
been mined; and
that the further processing thereof for purposes of rendering it
ready for use and the transport of it to a manufacturing
plant did
not fall within the definition of mine.’
[5]
[32] In
TERRA
BRICKS AND ANOTHER V REGIONAL MANAGER, LIMPOPO
REGION,
DEPARTMENT OF MINERALS AND ENERGY AND OTHERS
: Case Number 5246/05
(TPD) delivered on 12 April 2007 Fourie AJ stated at page 12:
‘
The
meaning of the definition is clearly not the whole of the mining
area. Only if part of the mining area or buildings etc. are
used or
intended to be used in connection with searching, winning, exploiting
or processing of the mineral, do they form part of
the mine. I am of
the view that this phrase qualifies both mining area and the
buildings situated in or on the mining area. On
the basis set out
above, I am of the view that the brick making activities are not
activities aimed at searching or winning a mineral
or exploiting a
mineral deposit. The clay is searched for, where and exploited at the
clay quarry.
…
The
next question is whether the activities at the brick factory are not
possibly connected with “processing” of a mineral
processing. The word “process” is defined in the Minerals
Act to mean “in relation to any mineral the recovery,
extracting, concentrating, refining, calcining, classifying,
crushing, screening, washing, reduction, smelting or gasification
thereof.
…
I
am of the view that upon interpretation of the definition of
processing it includes only processes which are aimed at winning
a
mineral in its pure form and that a distinct process which is aimed
at the manufacturing of a new product such as bricks, no
longer
constitute processing of a mineral as contemplated in the
definition.’
[33] At page 19
the learned Judge added:
‘
3. It is
declared that the brickmaking activities conducted on the aforesaid
abandoned area do not constitute a ‘mine’
or ‘mining’
in terms of the statutes aforementioned.’
[34]
In casu
Almenta’s operations involve receiving cargo from local
manganese mines
via
tipper trucks onto site as alluded to
earlier. The truck is weighed and the cargo stockpiled. Once a client
decides to export the
cargo, Almenta requests a train from Transnet
of empty containers to be railed to the Lohatlha siding where after
the empty containers
would be packed on the train with the cargo and
railed to Port Elizabeth.
[35] Regarding
Occupational Health and Safety Act Dale
at page 58 para 44.1.1
states:
‘
In
terms of
Section 1
(3) of the OHSA, that Act does not apply in
respect of a mine, a mining area or a works, as defined in the
Minerals Act, excepting
so far as the Minerals Act provided otherwise
or in respect of any person present on or in any such mining
area….Accordingly,
the reference in Section 1 (3) of
Occupational and Health and Safety Act to a mining area as defined in
the Minerals Act is now
to be construed as a reference to the
definition of mining area in Section 1 of the MPRDA.
Section 103
of
the
Mine Health and Safety Act 29 of 1996
in turn provides that the
Occupational Health and Safety Act is
not applicable to any matter in
respect of which any provision of the
Mine Health and Safety Act is
applicable. As appears from its long title, the
Mine Health and
Safety Act provides
for the protection of the health and safety of
employees and other persons at “mines.”
[36] Misty Falls
refers to
MINISTER
OF MINERAL RESOURCES AND OTHERS V SISHEN IRON ORE CO (PTY) LTD AND
ANOTHER
[6]
)
where the Court held:
‘
[116]
Another powerful consideration is that the requirements stated in
s
23
for the grant of a mining right, and the obligations imposed on
right-holders stated in
s 25
, do not seem right.
Section 23
refers,
in the singular, to ‘the mining work programme’ and ‘the
prescribed social and labour plan’ which
any successful
applicant for a mining right must have.
[117]
No provision is made for the case where the applicant’s mining
work programme or social and labour plan must be reconciled
with an
existing right-holder’s programme or plan in respect of the
same mine.
Section 23
also requires that any successful applicant, in
order to be successful, have the ability to comply with the
Mine
Health and Safety Act, s
3 of which refers, in the singular, to ‘the
employer’ of any mine. Again, no provision is made for more
than one employer
in a given mining area. Finally,
s 25
imposes an
obligation upon all right-holders to comply with ‘the approved
environmental management programme’ they
submitted upon
application in terms of
s 39.
No provision is made to reconcile the
environmental management programme submitted by an applicant with the
existing programme
of an existing right-holder.
[118]
For these reasons, the MPRDA simply does not contemplate two
right-holders in respect of the same mineral and land.
The only case
where an applicant’s programmes and plans will be automatically
consonant with those of the existing right-holder
is where they are
one and the same: in other words, where the applicant is the existing
right-holder.’
[37] The
applicants argue that the Constitutional Court in the matter
supra
recognised that the holder of a mining right, and thus the
‘employer’, in terms of the MPRDA and MHSA, was solely
responsible for implementing the necessary health, safety and
environmental policies for the entire mining area, irrespective of
whether another person was conducting an operation thereon. They
state that this was echoed in
THETA
MINING (PTY) LTD AND ANOTHER V SCARLET SUN (PTY) LTD AND OTHERS
[7]
.
[38] Minister of
Mineral Resources matter
supra
is distinguishable from the
instant case. This is so because it deals with co-holders of rights
having mining rights for the same
property. There were two mining
right holders mining for the same mineral on the same piece of land,
thereby having two employers,
two mining work programmes and two
social labour claims which would all be incompatible. Nowhere in this
case is there an obligation
imposed upon the holder of a mining right
in respect of a third person which is not mining and does not hold a
mining right. As
alluded to earlier, Almenta’s activities do
not fall within the obligations imposed by MHSA upon the mining right
holder
notwithstanding that such activities may physically be within
the mining area.
[39]
‘
Theta
Mining (in para 36 above) also finds no application
in
casu
.
In this matter there were six contractors mining on the farm using
dumper trucks, front end loaders and excavators. It is clear
that the
holder of the mining right, Scarlet Sun, was responsible for the
activities of these contractors who were part and parcel
of the
mining activities and they would be directly affected by the mining
operations being conducted by the mining permit holder.
[40]
Section 5
(2) (b) of MHSA is applicable only to the employer of a mine and the
provision is peremptory in that it states that the ‘employer’
shall ensure
that persons who are not employees, but who may be
directly affected at the mine, are not exposed to any hazards to
their health
and safety.
The employees of Almenta are not
directly affected by the activities at the applicants’ mine
which is a kilometre away from
Almenta’s site and its employees
are not exposed to hazards to their health and safety. No provision
in the MHSA that imposes
an obligation upon a mine employer or owner
in respect of everyone situated on the property. There are no
blasting or other activities
involved on the site of both Almenta and
Misty Falls which would have a negative effect upon each other. There
is also no dust
emanating from the mine. The access road from the
mine to Almenta’s site is six kilometres and the two sites are
separated
by a Transnet railway line, the SA flog site, and a
multi-user road for the mine as well as other mines in the Northern
Cape. In
any event the applicants do not allege that their mine
affects the health and safety of Almenta’s employees. My
underlining
[41] In my view,
considering what has been stated herein MHSA does not impose an
obligation on the applicants in relation
to the activities of
Almenta. On the facts, manganese has already been mined when Almenta
packs it and loads it and needs no further
processing thereof for
purposes of rendering it ready for transport. That does not fall
within the definition of mine. The applicants’
argument that
the respondents made some admission that their operations were
governed by the MPRDA and MHSA cannot stand in the
face of paragraph
11.1 of the replying affidavit which states: “
I admit that
the Sixth Respondent’s operation has nothing to do with the
mining operations conducted by the applicants.”
The
applicants further confirm the version of the respondents that the
OHSA is applicable to the respondents’ activities.
[42] Moreover, it
is strange that the applicants failed to disclose that the
section 54
notice was withdrawn after a meeting by the parties on 06 December
2017 before the application was launched. The notice was also
not
attached to the founding affidavit but to the respondents’
answering affidavit. The question that arises is, if the notice
was
not mistakenly and/or wrongly issued why was it uplifted after the
meeting of 06 December 2017 before the application was launched?
[43] Southwood J
in
BERT
BRICKS PTY LTD AND OTHERS v INSPECTOR OF MINES
[8]
,
referring to a
section 54
notice held:
‘
It
seems that not one of the officials properly applied his mind to the
operation of the MHSA and that there was a gross abuse of
the
provisions of the Act. This is most disturbing. This litigation has
resulted in a waste of State’s funds (taxpayers’
money
and a waste of the Court’s time…).
[44] Moreover,
Werkmans Attorneys, on behalf of Almenta addressed a letter dated 16
November 2017 to the applicants’
attorneys which reads:
‘
1. We refer to
your e-mail of yesterday.
2.
We confirm that we act on instructions of Almenta Logistics
Proprietary Limited (“our client”).
3.
Our client’s position remains that it is not subject to the
Mine Health and Safety Act, 1996
and its activities are governed by
the
Occupational Health and Safety Act. Our
client’s activities
do not constitute mining nor mining operations and our client’s
operations do not form part of
the mining area for purposes of the
definition thereof both in the
Mineral and Petroleum Resources
Development Act 28 of 2002
and the Mine Health and Safety, 1996.
4.
Our client is therefore not subject to the jurisdiction of the Mine
Health and Safety Inspectorate.
5. Our client is
therefore denies the allegations in paragraph 4 of your e-mail under
reply that the notice is also relevant to
our client. Our client
further vehemently denies that it holds possession through Kitso
Mining. Our client has no contractual nexus
with Kitso Mining and
derives its possession of the land through a lease with the landowner
which has nothing do with Kitso Mining
or Misty Falls 45 Proprietary
Limited.
6.
We further note that the
Section 54
notice is directed to your client
and not to our client. It should further be noted that the
Section 54
notice is addressed to Kitso Mining. As far as our understanding is
concerned Kitso Mining is not the employer under the
Mine Health and
Safety Act as
it is not a mining right holder but merely a mining
contractor and therefore the
Section 54
notice addressed to Kitso
Mining is at the outset fatally flawed.
7. In regard to
paragraph 5 of your e-mail under reply you make reference to
paragraph 3 of our letter of demand. We cannot recall
having sent you
a letter of demand and your reference to paragraph 3, if it is
reference to our letter of 11 October 2017, is unclear
as paragraph 3
is split into paragraph 3.1 to 3.7 but none of them constitute a
demand. Furthermore your reference to the fact
that the DMR has
ordered our client to do anything is misdirected. Kitso Mining was
given the order not our client.
8. In the circumstances
our client will not be ceasing its operation by 16h00 today for the
reasons set out above. It should be
noted that in any event the
notice refers to 16 November 2016 which has long past.
9. In regard to
paragraph 8 of your letter under reply our client denies the
allegations contained therein and any action instituted
by your
clients will be defended.
10. The failure by us
to deal with any other allegations or contentions in your letter
under reply does not amount to an admission
of the correctness
thereof.
11. In the interim all
of our client’s rights remain reserved.’
[45] I fail to
comprehend why the applicants proceeded with this application if the
DMR did not find anything wrong with the
respondents’
operations. If the applicants fully comply with MHSA as they allege
why they would bring this application because
they have done nothing
wrong and would not be punished for the transgressions of other
entities.
[46] Almenta is a
third party conduction packing, loading and transporting operations
and it does not need a mining right.
It therefore does not make sense
why the respondents would require approval from the DMR prior to
conducting their operations.
Their operations have no impact upon
mining operations by the applicants and therefore their conduct falls
neither under the MPRDA
nor MHSA. It is not clear why the applicants
require giving consent to Almenta who operates under a valid lease.
The applicants
do not rely on any authority giving them a right to do
so, be it MPRDA or MHSA. There is no allegation that the respondents
have
contravened any provision of the law. In my view, the
respondents’ employees have no connection with the applicants’
mining activities as they not directly affected by the applicants’
mining activities.
[47] The
applicants failed to take this Court into its confidence by telling
it that they, at some stage, utilised the services
of the respondents
through the applicants’ agent, Fujax Minerals Proprietary
Limited. This service was terminated when the
community stopped them
after ancestral bones were found and the DMR was called in. The
applicants were forced to close their operations
until the site had
been rehabilitated in September 2017. After this incident the
community prohibited Almenta to offer services
to the applicants, as
alluded to earlier. Immediately thereafter the applicants suddenly
sought an interdict against the respondents
thereby stopping them
from continuing with their business.
[48] The
allegations by the applicants that Access World’s operations
constitute mining makes no sense taking into account
that it does not
operate on the property but Almenta. The applicants should be aware
that Almenta is not involved in winning, searching,
exploiting or
processing of any minerals especially having used its services on
previous occasions. Adv Redman, for the applicants,
withdrew prayers
2 and 3 of the notice of motion dated 06 December 2017 and filed the
same day, during argument.
COSTS
[49] Mr Redman
submitted that costs should be costs in the application. The
applicants were not
mala fide
when approaching court but were
exercising their right. He later stated that no relief is sought
against Access World. He requested
that costs be granted on a scale
as between party and party.
[50] Mr Hartfort,
for the first and sixth respondents, submitted that Access World was
incorrectly joined in these proceedings
and is entitled to the costs
order. The matter should be dismissed against it entirely. He added
that the applicants were expected
to have withdrawn the application
against Access World earlier. He urged me to order costs against the
applicants on a scale as
between attorney and client. In respect of
the sixth respondent he submitted that since that applicants
abandoned prayers 2 and
3 of the notice of motion he requests for a
costs order for the abandoned relief. Ms Geldenhuys for the second
respondent submitted
that based on the case that the respondents had
to meet as set out by the applicants in their founding affidavit the
applicants
failed to make out a case for the relief sought. He urged
me to dismiss the application with costs on a scale as between
attorney
and client.
[51] 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.
[9]
[52] An award of
attorney and client costs will not be granted lightly, as the court
looks upon such orders with disfavour
and is loath to penalise a
person who has exercised a right to obtain a judicial decision on any
complaint such party may have.
[10]
The grounds upon which the court may order a party to pay an
opponent’s attorney-and client costs include the following:
that the party has been guilty of dishonesty or fraud or had
vexatious, reckless and malicious, or frivolous motives or in the
conduct of the case. The court’s discretion in this regard is
not restricted to such conduct but it includes all cases in
which
special circumstances or considerations justify the granting of such
order.
[11]
[53] The
respondents argued further that this application is an abuse of
process and should be dismissed with costs on a scale
as between
attorney and client, I agree. Prayer 4 of the notice of motion
requests a costs order against the first, third and sixth
respondents. The first respondent had to prepare its case throughout.
It cannot now be argued that the applicants seek no relief
against
it. Moreover, taking into account the facts of this case and the
manner in which the applicants handled it, an order of
costs on a
scale as between attorney and client will be justified in the
circumstances.
In
the circumstances I grant the following order.
1.
The
application is dismissed.
2.
The
applicants, Misty Falls 45 (Pty) Ltd and Kitso Manganese (Pty) Ltd,
are ordered to pay costs of the application on a scale as
between
attorney and client.
BM
PAKATI
JUDGE-NORTHERN
CAPE DIVISION, KIMBERLEY
On
behalf of the Applicant:
Adv N Redman (SC)
Instructed
by:
VAN DE WAAL INC.
On
behalf of the Respondents: Adv C
Hartford (SC)
Instructed
by:
DUNCAN & ROTHMAN INC.
On
behalf of the Respondent:
Adv J Gildenhuys (SC)
Instructed
by:
HAARHOFFS INC.
[1]
Act 29 of 1996
[2]
Act 28 of 2001
[3]
Act 107 of 1998
[4]
2003 (5) SA 157 (SCA)
[6]
2014
(2) SA 603
(CC at paras [116], [117] & [118]
[7]
[2016] ZANCHC 83
(25 November 2016)
[8]
Case
No. 15347/2011 at para [12]
[9]
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
[10]
Jewish Colonial Trust Ltd v Estate Nathan
1940 AD 163
at 183-184
[11]
Rautenbach v Symington
1995 (4) SA 583
(O) at 588A-B