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[2018] ZANCHC 17
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Theta Mining (Pty) Ltd and Another v The Sydney on Vaal Communal Property Association and Others (1535/2017) [2018] ZANCHC 17 (9 February 2018)
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE PROVINCIAL DIVISION, KIMBERLEY)
CASE
NO:
1535/2017
DATES HEARD:
24 November 2017
27
November 2017
30
November 2017
DATE DELIVERED:
9 February 2018
In the matter between:
THETA MINING (PTY)
LTD
First Applicant
LONHRO MINING SA (PTY)
LTD
Second Applicant
- and -
THE SYDNEY ON VAAL COMMUNAL
PROPERTY ASSOCIATION
First Respondent
THE GOVERNMENT OF THE
REPUBLIC OF SOUTH AFRICA
Second Respondent
THE MINISTER OF RURAL DEVELOPMENT
AND LAND
REFORM
Third Respondent
NORTHERN CAPE PROVINCIAL GOVERNMENT:
DEPARTMENT OF AGRICULTURE, LAND REFORM
AND RURAL
DEVELOPMENT
Fourth Respondent
NORTHERN CAPE PROVINCIAL GOVERNMENT:
DEPARTMENT
OF PUBLIC WORKS
Fifth Respondent
SCARLET SUN 15 (PTY)
LTD
Sixth Respondent
THE
MINISTER OF MINERAL RESOURCES
Seventh Respondent
THE REGIONAL MANAGER, NORTHERN CAPE
REGION OF THE DEPARTMENT OF MINERALS
AND
ENERGY
Eighth Respondent
THE REGISTRAR OF DEEDS, KIMBERLEY
Ninth Respondent
THE TRUSTEES FOR THE TIME BEING OF THE
VAALBOS SYDNEY ON VAAL RESTITUTION
COMMUNITY
TRUST
Tenth Respondent
Coram :
Lever AJ
JUDGMENT
LEVER AJ
1. This
application relates to the disputed right to traverse one farm
to
access another. At least, this is what the Notice of Motion reveals.
The main protagonists in this application are two competing
diamond
mining companies. Each of the respective protagonists holds a mining
right to mine diamonds on one of the relevant farms.
The applicants
hold a right to mine diamonds on the farm Droogeveldt. The sixth
respondent holds the right to mine diamonds on
the farm Than and the
farm Mozib. The farms Than and Mozib border on the farm Droogeveldt.
Applicants wish to assert a disputed
right to traverse the farm Than.
2. The
said farms Droogeveldt, Than and Mozib were established by state
grant as a perpetual quitrent. The said quitrent was subject to
certain conditions. At least one of these conditions remains in
the
relevant title deed of the farm Than to this day.
3. All
three of these farms appear to have been part of the very early
diamond
diggings near the Vaal River. Then on the 1 October 1986 the
farms Droogeveldt, Mozib and the relevant part of the farm Than were
declared a national park under the relevant legislation. This created
the Vaalbos National Park. The said farms were expropriated
by the
State. Subsequently, the said farms were transferred to the State
subject to certain restrictive conditions originating
from the
quitrent grant. The relevant restrictive condition relates to keeping
public roads open.
4. On
the 20 April 2007, the Vaalbos National Park was de proclaimed.
At some point the said farms were awarded to the first respondent,
the Sydney on Vaal Communal Property Association (the
"CPA"
or
"the first respondent")
under a land claim.
However, the said farms are still registered in the name of the
State.
5. It
is the applicant's case that they, through the first applicant and/or
second applicant as a contractor, accessed the farm Droogeveldt by
traversing the farm Than. On the applicants' version, this is
how
they accessed the farm Droogeveldt for many years. The period
referred to by the applicants includes several years when applicants
merely held a prospecting right to search for diamonds on the
relevant farm.
6. On
applicants ' version, initially and for several years, they used
the
route marked "A-D" on a map that is annexed to the Notice
of Motion to traverse the farm Than. Then at the request
of the sixth
respondent, they stopped using the gate at point "A" and
accessed the farm at a gate located at point "B".
For some
considerable time, thereafter applicants traversed the farm Than over
the route “B-A-D". This route is also
shown on the
aforementioned map.
7. Applicants
maintained that this change in the route by which they traversed
the
farm Than was to accommodate the sixth respondent's
'security'
and
'health and safety'
obligations as required when running a
mine. Applicant s' also asserted that for a considerable period the
sixth respondent abandoned
its mining right on the farm Than. That,
during this period first applicant together with the first respondent
jointly controlled
the gate that allowed access to traverse the farm
Than.
8. The
opposing respondents, being the first and sixth respondents, do
not
seriously dispute that the applicants accessed Droogeveldt by
traversing Than on occasion. They, however, minimise this access
to
Droogeveldt over Than and claim that the main access to Droogeveldt
was from the South over the farm Rooipoort. Applicants'
on their part
admit to accessing Droogeveldt from Rooipoort, but applicants
maintained that this was infrequent and only happened
when the Vaal
River was in flood and the gate to Than farm could not be accessed
because of the flood.
9. I
have set out this broad and general statement of the background to
this
matter at the outset, because there are strong indications on
the papers that this matter is about much more than just the right
to
traverse Than farm to access Droogeveldt farm. This emerges from the
fact that there is a history of related litigation. There
is also
pending and current litigation that supports this view. Also, the
view that this application is about so much more than
just access to
Droogeveldt via Than farm is supported by the nature of certain of
the defences and/or arguments raised by, or on
behalf of, the
opposing respondents.
10. The
first respondent had instituted an application to review the grant of
the
mining permit to the first applicant. I was informed by counsel
for the applicants, Mr Subel SC, that this review application had
floundered for some considerable time as the first respondent herein
had not filed a replying affidavit in the review application.
Mr
Subel then informed me that the sixth respondent tried to revive this
review applicat ion by seeking to join such review application
as a
party. Applicants' have opposed this application to join the said
review. Mr Subel contended that this application to join
had also
floundered as sixth respondent had failed to file a replying
affidavit and a period of nine months has elapsed. Thus,
the said
replying affidavit was substantially out of time.
11. Mr
Van Heerden for the opposing respondents informed me at the hearing
hereof
that sixth respondent had recently filed a replying affidavit
in its application to join the said review of the applicants' mining
right. I was given no detail as to when and in what circumstances the
sixth respondent filed this replying affidavit. I was also
not
provided with any proof that this was in fact the position.
12. The
applicants' have also instituted an action to claim permanent relief
in respect
of their claimed right of way over the farm Than to access
the farm Droogeveldt . I was advised that this action was also
opposed
by the first and sixth respondents.
13. Where
issues raised in this matter are more appropriately dealt with either
in the
said review or in the relevant action, I will leave such
issues for decision in the appropriate application or act ion. I will
only deal with such issues which are relevant to the present
application.
14. With
such background in place I can now turn to the actual relief sought
in the present
application. I n the first instance the main relief
sought by the applicants' is a
mandament van spolie
to restore
its right to traverse the farm Than. Applicants' allege that the
sixth respondent committed a spoliation on the 1 September
2016, by
refusing to allow applicants', to traverse the farm Than to access
Droogeveldt .
15. In
the alternative to the spoliation application, applicant s seek an
interim
interdict allowing them to traverse Than farm pending the
outcome of the action referred to above.
16. The
basis of the applicant s' claim s is that: the route "A-D"
is a
proclaimed public road and that first and sixth respondents are
not entitled to stop them from using such road;
alternatively,
the
said route has been established by long usage and custom (immemorial
usage); and
further alternatively,
the farm Droogeveldt is
landlocked and that by way of necessity they are entitled to use the
said route to access the nearest and/
or most convenient public road.
17. In
answer to this the first and sixth respondents have raised several
defences.
The same defences were raised often several times in
slightly different contexts. For the sake of convenience, I am going
to divide
such defences into three categories to avoid repetition. I
shall refer to these categories as: general defences; defences
specific
to the spoliation claim; and defences specific to the claim
for an interim interdict.
18.
Turning
now to the general defences raised by the opposing respondents, these
include: the applicants are before the wrong forum
in that they have
not exhausted the remedies available to them under the
MINERAL,
PETROLEUM AND RESOURCES DEVELOPMENT ACT
[1]
("MPRDA");
the
matter is
res
judicata;
and
the provisions of the MPRDA sterilise a subservient property from and
exclude a right to traverse a mining property. In regard
to the last
defence set out in this paragraph the opposing respondents rely on
their interpretation of s48 of the MPRDA.
19. In
respect of the defences specific to the spoliation relief, the
opposing respondents
raised the following defences: the applicants
never possessed the right to use the route concerned in a manner
which would entitle
them to spoliatory relief; the use of the said
route had always been with the permission and cooperation of the
sixth respondent;
and there had been an inordinate delay in seeking
spoliatory relief.
20.
In relation to the defences raised specific to the interim interdict
claimed
by the applicants, the opposing respondents raised the
following defences: the applicants had no right to mine diamonds on
Droogeveldt,
consequently the applicants could not show a
prima
facie
right though open to some doubt; applicants had failed to
establish on a
prima facie
basis though open to some doubt
that the route A-D was a proclaimed public road; applicants had
failed to establish on a
prima facie
basis though open to some
doubt that the route A-D was a public road established by immemorial
usage; applicants had failed to establish
on a
prima facie
basis
though open to some doubt that it was indeed a necessity that it use
the route A-D to gain access to the farm Droogeveldt;
applicants had
failed to show an injury or a reasonable apprehension of an injury
(this defence is raised on the basis of the opposing
respondents
interpretation of various sections of the MPRDA, being s5A and s48(1)
and (2)); applicants had not shown that the balance
of convenience
favours them; and applicants have other alternative remedies (again
referring to their interpretation of certain
sections in the MPRDA,
being s54 and s102).
21. Before
dealing with the general defences raised by the opposing respondents,
I believe it would be appropriate to deal with my approach to the
application for spoliatory relief first. I have certain concerns
with
the application for spoliation. The principal concern relates to the
delay in bringing the application.
22. However,
in my view having regard to the history of the matter, the fact that
there
is a pending action relating to the right to traverse Than
farm, and the numerous issues raised in the papers, I believe it will
be more appropriate to deal with this matter on the alternative
relief sought by the applicants. I specifically point out that
despite my concerns I am not deciding any of the matters raised under
the application for a
mandament van spolie .
I am merely
adopting what I believe to be the more appropriate approach given the
circumstances.
23. Turning
now to the general defences raised by the opposing respondents. The
first
being that the applicants are in the wrong forum. At the
outset, Mr Van Heerden on behalf of the opposing respondents,
conceded
that nothing in the MPRDA deals directly with traversing a
neighbouring property. However, he argued that in the present
circumstances
s5A and s102 of the MPRDA do have application. Mr Van
Heerden also advanced an argument that in essence falls under this
defence,
being that applicants should have approached the regulator
through the office of the Regional Manager to intervene under the
provisions
of s54 of the MPRDA. This argument was also raised in the
context of alternative remedies in the interim relief application.
24. The
opposing respondents developed this argument along the following
lines. The
CPA (first respondent) is the beneficial owner of all the
properties concerned. The State is the registered owner of such
properties.
Together, they exercise full rights of ownership over
these properties. The argument then proceeds, the grant of a mining
right
on the farm Than and the farm Droogeveldt diminishes the rights
of ownership on each such farm.
25. Mr
Van Heerden then submitted that the applicants wanted to traverse
Than farm
to mine on Droogeveldt, that this was ancillary to mining
and in circumstances where the applicants do not have a right to mine
on Than farm, the provisions of s5A of the MPRDA prohibited them from
traversing Than farm. It follows from this, he submitted,
that by
virtue of the provisions of s5A if applicants were to traverse Than
farm, it would constitute illegal mining under the
said section.
26.
Mr Van Heerden then argued that the applicant s ought to have
approached the
regulator under the provisions of s102 of the MPRDA to
amend their mining right. Under this argument, applicants would have
to
apply to the relevant Minister to amend both its mining right in
respect of the right to mine Droogeveldt as well as to amend the
right of sixth respondent to mine on Than farm.
27.
In concluding this line of argument Mr Van Heerden submitted that the
applicants'
ought to have applied to amend their mining right by
using the provisions of s102 of the MPRDA. Therefore, it followed
that they
had not exhausted their remedies under the MPRDA.
Consequently, that the present application was before the wrong
forum.
28.
On this point, it would be useful to quote the provisions of sSA of
the MPRDA.
Section 102 merely makes provision for the relevant
Minister to amend mining or other rights granted under the provisions
of the
MPRDA. No value will be added by quoting the provisions of
s102 of the MPRDA. Section SA of the MPRDA reads as follows:
"5A
Prohibition relating to illegal act.
-
No person may prospect
for or remove, mine, conduct technical co-operation operations,
explore for and produce any mineral or petroleum
or commence with any
work incidental thereto on any area without -
(a)
An environmental authorisation;
(b)
A reconnaissance permission, prospecting right, permission to
remove, mining right, mining permit, retention permit, technical
co-
operation permit, reconnaissance permit, exploration right
or production right, as the case may be; and
(c)
Giving the landowner or lawful occupier of the land in
question at least 21 days written notice."
29. Mr
Gilbert, who appeared with Mr Subel for the applicants, submitted
that on
Mr Van Heerden's interpretation of this section it would mean
that any truck transporting anything to do with mining and traversing
any land or even a public road to get to land over which its owners
or operators had a valid mining permit, would fall foul of
this
section of the MPRDA and be performing an illegal act if its owners
or operators did not have the relevant permits, permissions
or
authorisations for the land it was traversing to get to the property
over which its owners or operators had a mining right.
This would
lead to absurd results and is an unacceptable and overbroad
interpretation of s5A of the MPRDA.
30. I
agree with Mr Gilbert’s argument, although in the very broadest
sense
the example given by him may be work incidental to mining, it
could never have been the intention of the legislature to give this
section such a far and unlimited reach.
31. On
Mr Van Heerden's interpretation of s5A any act that can be described
as
'any work incidental'
to mining would be illegal unless it
was authorised by an environmental authorisation together with the
necessary permission or
permit regardless of the nature of the
incidental work and the place where it occurred.
32. What
Mr Van Heerden overlooks in his interpretation of s5A is that the
words
' ...
any work incidental thereto
...' relates to the
actions and/or conduct that precedes such phrase in that sentence.
The phrase " …
on any area
..." also relates
back to the prohibited conduct that precedes that phrase. In that
context and the context of the MPRDA, it
has nothing to do with the
right to traverse a neighbouring property even if it is necessary to
traverse such property in order
to conduct mining operations. If
after traversing the neighbouring property any of the activities
described in the first part of
s5A are carried out without the
appropriate environment al authorisation and permit or permission,
such activity would fall foul
of s5A, not the traversing of the
neighbouring property. To interpret s5A otherwise would potentially
lead to unforeseen and absurd
results.
33. In
my view s5A does not apply to the right to traverse a property
neighbouring
the one upon which a mining permit is held. The right to
traverse the neighbouring property will be controlled by the common
law,
contract and perhaps other directly relevant legislation. There
is accordingly no merit in this argument raised by the opposing
respondents.
34. Turning
now to the argument raised under s54 of the MPRDA. This was
originally
raised by the opposing respondents in case number
1959/2016 before Mamosebo J. There, the opposing respondents'
contended that
the applicants' should have sought the intervention of
the Regional Manager of the Department of Mineral Resources
("DMR")
to intervene under the provisions of s54. This formed the basis
of the main concern raised by Mamosebo J which was the underlying
rationale of her judgment in case 1959/2016.
35.
This is dealt with extensively by the deponent to the applicants'
present founding
affidavit. The applicants' attorney corresponded
with the relevant Regional Manager who wrote a letter expressing the
view that
s54 of the MPRDA found no application in the circumstances.
36. In
the answering affidavit, the opposing respondents' simply changed
tack slightly
and argued that the applicants' ought to have applied
for an amendment of their mining right or environmental management
plan.
37. In
the light of Mr Van Heerden's concession that access by way of
traversing
a neighbour's property was not directly dealt with in the
MPRDA, I think this argument is nothing more than a distraction. The
right to traverse a neighbouring property is created under the common
law, contract, or legislation dealing directly with that subject.
It
is certainly not dealt with in the MPRDA.
38.
I now turn to the general defence of
res judicata
or issue
estoppel. This relates to an earlier urgent application in which
interim relief to traverse Than farm was initially granted
but was
discharged on the return day. The matter was brought under case
number 1959/2016 and heard by my sister Mamosebo J. In
this prior
urgent application, applicants sought interim relief to traverse the
farm Than via the route A-0 alternatively, over
the route B-A- 0
pending the outcome of an action to be instituted by the applicants'.
My sister Mamosebo J delivered her judgment
in the said matter on the
25 November 2016.
39. On
my reading of the judgment of my sister Mamosebo J, the
ratio
decidendi
for her decision therein appears at paragraphs [23],
[24] and [28] of such judgment. In essence the reasons for Mamosebo
J's decision
in discharging the interim relief were: with reference
to a preceding urgent application brought under case number 393/2012,
this
time against the CPA, to secure the right to traverse Than farm
and where relief was granted, Mamosebo J questioned why the
applicants'
had neglected to institute action to finally determine
the matter; Mamosebo J also found that applicants' had failed to
utilise
s54 of the MPRDA to secure the intervention of the Regional
Manager to provide certainty on the right of access; Mamosebo J was
not convinced that a
prima facie
right had been established
for the applicants' to traverse Than farm; and that the applicants'
had not succeeded in establishing
the requirements for an interim
interdict.
40. In
support of his submission that the matter was
res judicata,
Mr
Van Heerden argued that the judgment of Mamosebo J dismissed the then
application definitively. In motivating this argument he
referred to
the following passages in the said judgment: paragraph 8 which set
out the grounds upon which the applicant sought
the right to traverse
Than farm; the finding that the Regional Manager ought to have been
consulted as set out in paragraph 16
of such judgment; the finding
that the present sixth respondent was not consulted as set out in
paragraph 17 of the judgment; the
finding that it was incorrect for
the present applicants to say that they had uninterrupted access to
traverse the road since 2009
when, on the contrary permission was
sought and granted to the trust (tenth respondent herein) as distinct
from the applicants'
as set out in paragraph 19 of the judgment; the
finding that the applicants' had been dilatory in their endeavours to
bring finality
to the matter referring to the 2012 application as set
out in paragraph 23 of such judgment; the finding that the
applicants' failed
to establish a
prima facie
case, that the
balance of convenience favours the dismissal of the application and
that the applicants have an alternative remedy
to approach the
Regional Manager as set out in paragraph 24 of the judgment; the
finding that if needs be the rezoning needs to
take place as set out
in paragraph 26 of the said judgment; the finding that the
Environmental Plan ought to have addressed the
issue of the road as
set out in paragraph 27 of the said judgment; the findings that the
applicant s' had not succeeded in meeting
all of the requirements for
a temporary interdict, the
prima facie
right to traverse the
farm Than was unclear, the decision that if there was an omission or
an oversight, the Regional Manager and
all other internal remedies
should have been exhausted, and the finding that the upshot is that
Droogeveldt is not land locked
as set out in paragraph 28 of the said
judgment.
41.
Mr Van Heerden submitted that all the underlying elements for the
defence of
res judicata
were present. He submitted that it
involved the same parties, the same cause of action and the same
relief. He further submitted
that there had been a judicial
determination of all the causes of action as well as the issues of
fact and the questions of law
that the applicants' put forward in the
present application.
42.
In response to the
res judicata
and issue estoppel point
raised by the opposing respondents' Mr Subel argued that the judgment
of Mamosebo J read properly, in its
context, raised certain concerns
with the case before the court at that time. Each of these concerns
were dealt with comprehensively
by the applicants' in the founding
affidavit of the present application. In any event, Mr Subel
submitted in the nature of interim
relief sought urgently the court
never intends to make definitive findings.
43. The
view that I take of this matter, it is not necessary to deal with all
of
the opposing respondents' contentions on the res judicata or issue
estoppel point. There are essentially only five issues that I
need to
deal with. Firstly, Mamosebo J indicated that there had been access
to Droogeveldt from the South over the farm Rooipoort.
That on the
evidence then before her this caused the applicants difficulties in
establishing a right of way over Than farm by way
of necessity. The
second issue I need to deal with is related to the establishment of
the right of way by immemorial use. The third
issue to be dealt with
is whether Mamosebo J made a definitive finding that Droogeveldt was
not landlocked. The fourth issue relates
to her finding that the
prima facie right of the applicant was unclear. The fifth issue
relates to the effect of Mamosebo J's finding
that the remedies
provided under the MPRDA had not been pursued by the applicants.
44. In
any event the issues of whether the sixth respondent had been
consulted under
the provisions of s25(5)(a) of the MPRDA and the
issue of whether or not the farm Droogeveldt needs to be rezoned are
all issues
more properly dealt with in the review application if that
application can indeed be revived in the present circumstances. The
reason for this is that it is sufficient for present purposes that
applicants have a mining permit valid on the face of it. This
aspect
will be dealt with in greater detail below. Furthermore, on my
reading of the judgment by Mamosebo J these issues were flagged
as
points of concern and I do not believe that she did or intended to
make definitive rulings on these questions .
45. On
the first issue, the allegation that the farm Rooipoort was traversed
or could
be traversed as opposed to traversing the farm Than to gain
access to Droogeveldt, this was dealt with substantively and in great
detail in the founding affidavit in this application. This was a
concern raised by Mamosebo J, such concern has now been substantively
dealt with. In the circumstances this argument cannot provide a basis
for a plea of
res judicata
or issue estoppel.
46.
On
the second issue, the immemorial use, Mamosebo J made no finding at
all, save for the fact that it is implied in her judgment
that on the
evidence before her at that time did not persuade her that the
applicants', had a
prima
facie
right
to traverse the farm Than on that ground. This is not a bar to me
considering whether the evidence before me meets the test
set out in
Webster v Mitchell
[2]
to
determine whether a
prima
facie
right
has been established for interim relief.
47. On
the third issue, the issue of whether Mamosebo J made a definitive
finding that
Droogeveldt was not landlocked, I need to look at what
Mamosebo J actually said and place it in its proper context. The
relevant
passage of the said judgment reads as follows:
"[28]
Regard being had to the oral submissions and all the supporting
documentation,
I therefore find that the applicants have not
succeeded in meeting all the requirements for a temporary interdict.
Not only did
they fail to show that they did not have alternative
remedies, apart from seeking an interdict, but also the prima facie
right
to traverse the Than farm is unclear. Their application stands
to fail for the stated reasons. The Environmental Authorisation ought
to have specified the road to be utilised by the applicants. If there
was an omission or oversight, the Regional Manager and all
other
internal remedies should have been exhausted.
The
upshot of what has gone before is that Drooge Veldt is not
landlocked.
"
[3]
(my emphasis)
48. Placing
the underlined sentence in the context of the quoted passage and in
the
context of the judgment as a whole, in my respectful opinion,
Mamosebo J was saying no more than on the evidence before her, the
right of way over the farm Than to access the farm Droogeveldt due to
necessity had not been established. Indeed, Mamosebo J was
not
required to go further than that.
49. On
the opposing respondents' version and that of the applicants', raised
in the
alternative, the farm Droogeveldt has no direct access to a
public road. For the opposing respondents to argue otherwise, they
would have to accept that the route A-D -C and beyond on the map
attached to the Notice of Motion is indeed a proclaimed or other
public road. This they cannot do without conceding applicant s' right
to the interim relief which they claim. In fact, the opposing
respondents have made no claim that the said road following such
route, or any portion of it, is a public road. On this issue and
in
these circumstances, the opposing respondents', cannot rely on a plea
of
res judicata
or issue estoppel.
50.
On
the fourth issue, being the finding by Mamosebo J that the
applicants'
prima
facie
right
to traverse the farm Than is unclear. This is not a bar to me
considering whether the evidence before me meets the test set
out in
Webster
v Mitchell
[4]
to
establish a
prima
facie
right.
51.
n respect of the fifth issue, being that the applicants had not
pursued the
remedies provided for under the MPRDA. Again, the
applicants' in their present founding affidavit have dealt with the
concerns
raised by Mamosebo J in detail and have shown that it has
corresponded with the Regional Manager of the DMR. The said Regional
Manager in correspondence annexed to the papers held the view that
s54 of the MPRDA did not apply in this case. By its very nature
this
issue cannot form the basis of a plea of
res judicata
or issue
estoppel.
52. On
the view I take of the matter, these would be the issues which I
would have
to deal with in any judgment I make in the present
application. For the reasons set out above, none of them can form the
basis
for a plea of
res judicata
or issue estoppel.
53. Under
the general defences raised by the opposing respondent, I must still
deal
with the argument made by Mr Van Heerden, being that when sixth
respondent was granted a mining permit, the fact that such permit
was
granted to it, sterilised Than farm of any public road or right of
way over such farm .
54. Mr
Van Heerden commenced this argument by pointing out that the
provisions of
s48 of the MPRDA provide:
"48
Restriction or prohibition of prospecting and mining on certain land
-
(1)
Subject
to s48 of the National Environmental Management: Protected Areas Act,
2003 (Act No. 57 of 2003), and subsection (2), no
reconnaissance
permission, prospecting right, mining right may be granted or mining
permit be issued in respect of
-
(a)
land comprising a residential area;
(b)
any public road, railway or cemetery;
(c)
any land being used for public or government purposes or
reserved in terms of any other law; or
(d)
areas identified by the Minister by notice in the Gazette in
terms of section 49.
(2)
A reconnaissance permission, prospecting right, mining
right or mining permit may be issued in respect of the land
contemplated
in subsection (1) if the Minister is satisfied that
-
(a)
having regard to the sustainable development of the mineral
resources involved and the national interest, it is desirable to
issue
it;
(b)
the reconnaissance, prospecting or mining will take place
within the framework of national environ mental management
policies,
norms and standards; and
(c)
the granting of such rights or permits will not detrimentally
affect the interests of any holder of a prospecting right or mining
right."
55.
Mr Van Heerden then argued that in granting the sixth respondent its
mining
right on Than farm, the Minister must have been aware of the
roads traversing Than farm. In nonetheless granting the sixth
respondent
a mining right in respect of Than farm in those
circumstances, the Minister must have exercised his prerogative
powers under s48(2).
The effect of the Minister granting the sixth
respondent a mining permit in these circumstances Mr Van Heerden
argued was that
it sterilised Than farm of any rights associated with
a public road or right of way.
56.
In my view, there are at least two things wrong with this argument
aside from
the fact that it employs circular reasoning and reaches
the wrong conclusion. Firstly, s48(2) contemplates a special
application
being placed before the Minister to enable mining on any
public road. It has never been the opposing respondents' case that
such
special application was placed before the Minister for
consideration at any time before or after it had acquired its mining
right.
Secondly, the terms of s48(1) do not lend themselves to the
interpretation posited by Mr Van Heerden. A public road is dealt with
in the same provision that deals with railways and cemeteries.
57.
The social mores of nearly every ethnic community in our society
would not easily
tolerate the desecration of a cemetery for mining
purposes. A railway line represents an enormous public capital
expense which
the State could and would not jeopardise without
careful consideration of where the public interest lay as
contemplated in s48(2)
of the MPRDA. In placing a
'public road'
in
this subsection of the MPRDA shows that the legislature regarded
public roads, the right to access and traverse them, in the
same
light as railway lines and the preservation of cemeteries.
Consequently, in my view if a mining permit or right is granted
with
nothing more, public roads traversing the relevant land, as would be
the case with cemeteries and railway lines, are simply
excluded from
the area that may be mined on the relevant property. Accordingly,
there is no merit in this argument.
58.
Mr Van Heerden raised a further argument, which can be classified
under general
defences of the opposing respondents'. This argument
can be dealt with very briefly. Mr Van Heerden submitted that the
sixth respondent
cannot grant the applicants a right of way because
to do so would violate the provisions of s11 of the MPRDA. His
argument was
that a right to traverse a mining right would constitute
an interest in such mining right. That such interest cannot be
transferred
without the approval of the Minister as contemplated in
s11 of the MPRDA. He then submitted for the same reason, that this
court
cannot grant the applicants a right of way.
59.
In my view affirming a mere right of way, on whatever basis, over a
property
in respect of which a mining permit or right has been
granted, does not confer an interest in the said mining operation in
the
sense contemplated by s11 of the MPRDA. Without deciding the
issue, this argument may have had some merit if the applicants were
seeking to register a servitude in respect of the relevant property.
However, the applicants do not seek such a servitude.
60.
Further, in the circumstances of this case, this court will not be
granting
a right even if it gives the applicant s' interim relief. At
best, this court will merely be affirming a pre-existing right,
though
open to some doubt, pending the outcome of the action that has
already been instituted. In the circumstances of this case, such
pre-existing right either came into existence under the common law or
statute and the restriction in the title deed of the farm
Than merely
preserves those rights. Accordingly, the argument that the sixth
respondent and this court cannot grant the applicants
a right of way
due to the provisions of s11 of the MPRDA stands to be rejected.
61.
In the final argument that I need to deal with under the general
defences raised
by the opposing respondents', Mr Van Heerden
submitted that the establishment of the Vaalbos National Park by
incorporating the
farms Droogeveldt, Mozib and Than into such park,
sterilised Than farm of any public road or right to traverse it.
62.
This argument can also be dealt with very briefly. Firstly, there is
nothing
in the legislation applicable to establishing a National Park
that would support the notion that a public road or right of way over
the relevant land would be removed from land incorporated into such
park. Mr Van Heerden was also unable to refer me to any provision
in
the relevant legislation that would support his argument. Secondly,
the latest title deed for the farm Than by which the State
acquired
title to such farm after it was expropriated for purposes of the
National Park, included the restriction contained in
the original
quitrent grant protecting access to public roads then existing or
coming into existence in the future. If there was
merit in Mr Van
Heerden's argument this restrictive condition would have been removed
from the title deed by the State.
63.
Further, annexed to the papers was a map of the roads traversing the
Vaalbos
National Park, which appears to have been created for use by
visitors to the Vaalbos National Park. It appears that this map is
not drawn to scale. There is also a map drawn by a surveyor, which is
drawn to scale. If I orientate these maps so that North as
indicated
on each respective map faces in the same direction, then it indeed
appears that the road that corresponds to the route
A- D indeed
existed and was in use when the farms were incorporated into the
Vaalbos National Park. In the circumstances, and for
these reasons, I
cannot uphold this argument.
64.
Turning
now to the requirements for an interim interdict. The requirements
for an interim interdict have been restated by Myburgh
J, citing the
well-known case of
Setlogelo
v Setlogelo,
in
the matter of
Steel
& Engineering Industries Federation
&
Others
v NUMSA ( 2)
[5]
,
as:
"(a) a prima
facie right;
(b)
a well-grounded apprehension of irreparable harm if the
interim relief is not granted and the ultimate relief is eventually
granted;
(c)
that the balance of convenience favours the granting of an
interim interdict;
(d)
that the applicant has no other satisfactory remedy."
65.
Over
the course of time the term prima facie right, in the context of
interim relief, has been defined to mean a right that need
not be
established on the probabilities but can be prima facie established
though open to some doubt. How this is established and
tested is
dealt with by Clayden J in the case of
Webster
v Mitchell
[6]
,
the
relevant passages in that case read as follows:
"...
the
right to be set up by an applicant for a temporary interdict need not
be shown by a balance of probabilities. If it is 'prima
facie
established though open to some doubt' that is enough."
"The use of
the phrase 'prima facie established though open to some doubt'
indicates I think that more is required than merely
to look at the
allegations of the applicant, but something short of weighing up of
the probabilities of conflicting versions is
required . The proper
manner of approach I consider is to take the facts as set out by the
applicant, together with any facts set
out by the respondent which
the applicant cannot dispute, and to consider whether, having regard
to the inherent probabilities,
the applicant could on those facts
obtain relief at a trial. The facts set up in contradiction by the
respondent should then be
considered. If serious doubt is thrown on
the case of the applicant he could not succeed in obtaining temporary
relief, for his
right, prima facie established, may only be open to
'some doubt'. But if there is mere contradiction, or unconvincing
explanation,
the matter should be left to trial and the right be
protected in the meanwhile, subject of course to the respective
prejudice in
the grant or refusal of interim relief."
66.
The first defence raised by the opposing respondents', to oppose the
interim
relief is that the applicant s' do not have a legitimate
mining right in respect of mining diamonds on the farm Droogeveldt.
Consequently,
Mr Van Heerden argued that the applicants', cannot show
a
prima facie
right to traverse Than farm to get to the farm
Droogeveldt .
67.
Subject to the other requirements of an interim interdict, the
applicants need
only show that they have some business on the farm
Droogeveldt in order to establish that they have a prima facie right
to traverse
the farm Than to conduct such business on the farm
Droogeveldt.
68.
It is not contested by the opposing respondents that the first
applicant has
a mining right in respect of the farm Droogeveldt. It
is not contested by the opposing respondents' that such mining right
was
issued under the auspices of the Minister concerned. It is also
not contested that the Environmental Management Plan (EMP) has been
approved. The opposing respondents', contend that the mining right
was wrongly granted and that the EMP ought not to have been
approved.
These are issues for the review if it ever proceeds.
69.
The
reason for this is that the grant of a mining right and the approval
of the EMP are administrative acts. Administrative acts,
even if they
are unlawful remain in place until they are set aside by way of a
review. This has been authoritatively stated by
the SCA in the case
of
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
[7]
.
The
relevant passage reads as follows:
"For those
reasons it is clear, in our view, that the Administrator’s
permission was unlawful and invalid from the outset.
Whether he
thereafter also exceeded his powers in granting extensions for the
lodgement of the general plan thus takes the matter
no further. But
the question that arises is what consequences follow from that
conclusion that the Administrator acted unlawfully.
Is the permission
that was granted by the administrator simply to be disregarded as if
it had never existed? In other words, was
the Cape Metropolitan
Council entitled to disregard the Administrator's approval and all
its consequences merely because it believed
that they were invalid
provided that this belief was correct? In our view, it is not. Until
the Administrator's approval (and thus
also the consequences of the
approval) is set aside by a court in proceedings for judicial review
it exists in fact and has legal
consequences that cannot simply be
overlooked. The proper functioning of a modern State would be
considerably compromised if all
the administrative acts could be
given effect to or ignored depending upon the view the subject takes
of the validity of the act
in question. No doubt it is for this
reason that our law always recognised that even an unlawful
administrative act is capable
of producing legally valid consequences
for so long as the unlawful act is not set aside.”
[8]
70.
In the result the defence that the applicants' mining right is not
valid, even
if such contention is correct, can never be a bar to this
court granting the interim relief sought by the applicants'. If the
review
had been properly pursued, and if successful, this conclusion
may well not have been reached.
71.
The applicants' have put forward three alternatives as the basis upon
which
they claim a right of way over the farm Than. The fist being
that the road that traverses the route A-D is a proclaimed public
road. The second is that it is a public road established by
immemorial use. The third is that the farm Droogeveldt has no direct
access to a public road and the route over Than farm is a route of
necessity. The applicant only needs to establish one of these
alternative claims on the basis that it is prima facie established
though open to some doubt as set out above.
72.
Without making any finding on the proclaimed public road claim, I
intend to
focus on the other two alternative claims.
73.
On the issue of the public road being established by immemorial
usage, the applicants'
put forward the evidence of Mr Coetzee. The
opposing respondents ' put forward the evidence of Mr Swart z. The
evidence of Mr Swartz
amounts to a bare denial of Mr Coetzee's
evidence. Indeed, Mr Van Heerden for the opposing respondents',
conceded that there was
no basis for Mr Swartz to contend that Mr
Coetzee's evidence was 'pure speculation'.
74.
Mr Van Heerden in order to raise doubt on the historic existence of
the route
A-D also referred to a diagram drawn, it seems by the
Surveyor-General, which did not disclose the existence of a road
corresponding
to the route A-D. On closer examination of this diagram
it was a document annexed to the title deed at one time and reflected
the
position as it existed in 1881. A lot could have happened since
1881. Indeed, the available evidence does show that a lot has
happened
since 1881. There is the preservation of the restrictive
condition in the 1989 title deed to Than farm in favour of the State.
There is the evidence of the road corresponding to route A- D in the
public roads used to access and traverse Than farm when it
formed
part of the Vaalbos National Park. There is also the evidence of Mr
Coetzee which was not appropriately challenged, aside
from bare and
unsubstantiated denials by Mr Swartz.
75.
This
is certainly sufficient evidence to establish the road A- D as a
public road established by immemorial usage, though open to
some
doubt as set out in the case of
Webster
v Mitchell
[9]
.
In
the fullness of time Mr Coetzee's evidence will be tested by cross
examination in the pending trial for final relief. For present
purposes, sufficient has been established for interim relief.
76.
Turning now to the
'road of necessity'
relief sought by the
applicant s'. In the event of this court considering this alternative
basis for a right to traverse Than farm,
it would be common cause
between the parties that Droogeveldt farm had no direct access to a
public road. In any event, no evidence
was adduced to show that the
road over the farm Rooipoort was a public road. If the opposing
respondents', concede that the road
A- D-C and beyond was a public
road, then they would in effect concede that applicants', were
entitled to at least the interim
relief they seek in the alternative.
This the opposing respondents' have not done. In this sense, that
there is no direct access
to a public road, Droogeveldt farm must be
landlocked.
77.
Droogeveldt being landlocked in that sense, persons having business
on Droogeveldt
are entitled to a right of way by way of necessity.
This right of way must be over the shortest route. This requirement
is qualified
to the extent that such route must also be the route
that causes the least harm or inconvenience.
78.
The opposing respondents' raise two arguments against the route of
necessity
claim. The first being that the shorter route is over the
farm Rooipoort . The second being that the applicants were the
authors
of their own problems and that in such circumstances they
cannot claim a right of way by way of necessity.
79.
It appears that the route over Rooipoort is marginally shorter.
However, the
applicants have indicated that their employees live in a
settlement that is substantially closer to the route over Than farm.
The
opposing respondents simply say they should employ other workers
that live on the Rooipoort side of Droogeveldt. In my view, this
is
not a satisfactory answer given the fact that the inherent
probabilities support the fact that the applicants' have been using
the route over Than farm for years and that they only used the route
over Rooipoort farm when the river was in flood.
80.
The inherent probabilities I refer to in the paragraph above are
based on the
2012 application where relief was granted against the
CPA to allow the trust, being the tenth respondent herein, and
through the
trust allowing the applicants the right to traverse Than
farm. Furthermore, the tenor of the correspondence between the
applicants'
attorney and the representative of the owner of Rooipoort
farm supports the claim that Rooipoort farm was only used as a means
to obtain access to Droogeveldt farm in exceptional circumstances.
81.
The
second argument raised by Mr Van Heerden went along the lines that,
the applicants ought to have ensured that the EMP provided
for their
right to traverse Than farm to access Droogeveldt farm for the
purposes of mining on Droogeveldt farm. Accordingly, Mr
Van Heerden
submitted that the applicants', were the authors of their own
misfortune. In support of this argument, Mr Van Heerden
referred the
court to the case of
Bekker
v Van Wyk
[10]
.
My
reading of Bekker's case shows that on the facts of that case, it is
completely distinguishable from the facts in the present
case. In any
event, nothing was placed before this court to substantiate the
opposing respondents' claim that the right of way
over a neighbouring
property needed to be dealt with in the EMP. There was also nothing
to show that the EMP could displace a right
of way created by the
common law or statute. Which is after all what the applicant s' claim
in their several alternative claims
for a right of way.
82.
In my
view this establishes the alternative claim for a right of way
because of necessity on a prima facie basis though open to
some doubt
in the manner contemplated in the case of
Webster
v Mitchell
[11]
.
83.
On the question of whether the applicants' have established the
second requirement,
being an injury or a reasonable apprehension of
an injury, I have already dealt with the arguments raised by the
opposing respondents'
in relation to s5A and s48 of the MPRDA. The
applicants' have established the injury in that they have been
deprived of the right
to traverse Than farm to access Droogeveldt
farm to exercise their mining right on Droogeveldt farm. To the
extent that is necessary
such injury has been established. It flows
from this that there is a well-grounded fear of irreparable harm if
the interim relief
is not granted and the applicants', subsequently
succeed in their act ion. They would have been deprived of their
right to develop,
establish and operate their mine. An impediment
that the sixth respondent, a competitor, does not have to contend
with, for the
period it may take to finalise the action for final
relief. There is also evidence that the part owner and/or director of
the sixth
respondent tried to acquire the mining right of the first
applicant.
84.
Turning now to the next requirement, being the balance of convenience
must favour
the grant of interim relief. On this point, Mr Van
Heerden, on behalf of the opposing respondents', argued that interim
relief
would have a permanent effect. He submits that the effect
would be permanent because the trial could take years to finalise and
the mineral resource, being the diamonds, could be exhausted on the
farm Droogeveldt by the time such action is finalised. This
argument
exposes the true nature of the dispute between the applicant s' and
the opposing respondents'.
85.
On this aspect, the opposing respondents' should have been more
astute on pursuing
the review application, which they have allowed to
flounder on at least two occasions. This argument carries little if
any weight
when assessing the balance of convenience.
86.
The other issues raised by the opposing respondents', on the question
of the
balance of convenience are that, in sixth respondent running
the mine on Than farm it has obligations in relation to security and
health and safety. It was submitted on behalf of the sixth respondent
that there are mining activities on Than farm carried out
by a number
of sub-contractors, that there are a number of risks involved in
allowing people to traverse the farm Than in those
circumstances.
87.
In response, the applicants' have undertaken to comply with the
reasonable requests
of the sixth respondent relating to its security
and health and safety obligations. Furthermore, the applicants ' have
tendered
a full but reasonable indemnity. I believe this response by
the applicants covers the concerns of the opposing respondents,
including
the sixth respondent.
88.
Lastly, the opposing respondents complain that the interim relief
sought by
the applicants is too wide ranging and far reaching that it
could mean that they have access to Than farm 24 hours a day, seven
days a week. In response to this argument, Mr Subel pointed out that
there has never been a complaint relating to applicants' accessing
the farm Than to traverse it at unreasonable times.
89.
Having considered all of these factors, in my view the balance of
convenience
favours the grant of the interim relief.
90.
The issue of no other alternative remedies has already been dealt
with above.
In my view, there are no other reasonable alternative
remedies available to the applicants'.
91.
Mr Subel asked me to consider ordering interim access to the farm
Droogeveldt
over the route B-A- D on the farm Than, because that was
where the sixth respondent had established its controls for security
and
health and safety risks. He also pointed to the previous
correspondence between the applicants' attorney and the opposing
respondents'
attorney and based on the history of such correspondence
submitted that the fewer issues left to negotiation between the
parties
the better. I think Mr Subel has a valid point. I can
certainly make such order if I grant interim access on the basis of a
route
of necessity. For the reasons set out above, I would be
entitled to grant such relief and I intend to do so.
92.
The last remaining issue is the issue of costs. As this is interim
relief, I
intend to reserve the question of the costs of this matter,
including the costs of the relevant postponement for the decision of
the court that determines the action referred to above.
ACCORDINGLY, THE
FOLLOWING ORDER IS MADE:
1)
Pending the final determination of the action instituted by
the applicants out of this court under case number 1697/2017 {"the
action") to determine the applicants' entitlement to traverse
and make use of the roads on Portion 1 of the Farm Than No.
280 in
the Administrative District of Barkly West ("the Than farm")
as described in the locality plan annexed to the
Notice of Motion
marked "NM1", the following orders shall operate:
a)
subject to compliance with the sixth respondent's reasonable
and necessary health and safety requirements, the applicants and
their
employees, contractors, invitees and guests are entitled to
traverse the Than farm by making use of the road marked B-A-D,
traversing
the Than farm as described on annexure "NM1" to
the Notice of Motion in this matter, for the purpose of accessing the
public road R311 {"the public road") from Droogeveldt farm
identified on annexure "NMl" of the Notice of Motion
and
for the purpose of accessing Droggeveldt farm from the said public
road.
b)
save for the reasonable and necessary health and safety
requirements referred to above, the first and sixth respondents are
interdicted
and restrained from taking any steps to prevent or hinder
the applicants and their employees, contractors, guests and invitees
from making use of the road marked B-A-D on the locality plan annexed
to the Notice of Motion marked "NM1".
2)
The costs of this matter, including the costs of the relevant
postponement/s are reserved for the court entertaining the action
referred to above.
L. LEVER AJ
NORTHERN
CAPE
PROVINCIAL
DIVISION
For the
Applicants:
ADV SUBEL SC with ADV BM GILBERT
(oio Duncan & Rothman Inc.)
For the 1
st
and 6
th
Respondents:
ADV CN VAN HEERDEN
(oio Van De Wall Inc.)
[1]
Act 28 of 2002.
[2]
Webster v Mitchell
1948 (1) SA 11
86 (TPD) at 11 89
[3]
Unreported judgment in case number 1959/2016 handed down on the 25
November 2016.
[4]
Above.
[5]
1993 (4) SA 196
at 19 9E- F
[6]
Above at p 1189
[7]
2004 ( 6 ) SA 222 (SCA).
[8]
Oudekraal
case., above at para 26 .
[9]
Above.
[10]
1956
(3) SA
13 (T).
[11]
Above.