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[2018] ZANCHC 21
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De Beers Consolidated Mines (Pty) Ltd v Seekoei and Others (1488/17) [2018] ZANCHC 21 (20 April 2018)
Reportable:
YES/
NO
Circulate
to Judges:
YES/
NO
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to Magistrates:
YES/
NO
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case No: 1488/17
Heard on:
28/11/2017
Delivered on:
20/04/2018
In
the matter between
DE
BEERS CONSOLIDATED MINES (PTY)
LTD
Applicant
And
LUCKY
SEEKOEI
1
st
Respondent
VICTOR
TAKU
2
nd
Respondent
PIETER
MOKITINI
3
rd
Respondent
GODFREY
MOTLOTENG
4
th
Respondent
ELISA
LOUW
5
th
Respondent
THE
UNIDENTIFIED ILLEGAL
MINERS
6
th
Respondent
THE
MEC OF
ENVIRONMENTAL
7
th
Respondent
AFFAIRS
& NATURE CONSERVATION
THE
MEC OF THE CO-OPERATIVE
GOVERNANCE
8
th
Respondent
HUMAN
SETTLEMENTS & TRADITIONAL AFFAIRS
MEC
OF THE DEPARTMENT OF
TRANSPORT,
9
th
Respondent
SAFETY
AND LIASON
THE
MINISTER OF MINERAL
RESOURCES
10
th
Respondent
THE
MINISTER OF POLICE
11
th
Respondent
THE
MINISTER OF HOME
AFFAIRS
12
th
Respondent
THE
NORTHERN CAPE PROVINCIAL
13
th
Respondent
EKAPA
MINERALS (PTY)
LTD
14
th
Respondent
JUDGMENT
PAKATI
J
[1]
On 07 July 2017 the applicant, De Beers Consolidated Mines (Pty) Ltd
(“De Beers”), approached this Court seeking
a final
interdict restraining Lucky Seekoei, John Motshwanaesi, Tebogo Taku,
Godfrey Motloteng, Elisa Louw and the unidentified
illegal miners,
the first to sixth respondents respectively (“the
respondents”), from unlawfully;
(a)
entering into or being on the immovable properties and/or areas
situated upon the Remaining Extent of the Farm Kenilworth Estate
71
in the extent of 6037.5817 hectares and the Remaining Extent of the
Farm Dorstfontein 77, in the extent of 132, 767 hectares
(“the
properties”);
(b)
Illegally disturbing and/or processing and/or removing any of the
materials from the said farms; and
(c)
Mining or prospecting for diamonds or conducting any related
activities, and disturbing and/or processing and/or removing any
materials situated on the properties. The respondents are a group of
people known as illegal Artisanal Small Scale Miners (“artisanal
miners”) who conduct mining activities on the properties owned
by De Beers.
[2]
The MECs of the following departments: (i) Environmental Affairs and
Nature Conservation, (ii) Co-operative Governance, Human
Settlements
and Traditional Affairs, and (iii) Transport, Safety and Liaison and
the following Ministers; (iv) Mineral Resources;
(v) Police; (vi)
Home Affairs; and (vii) the Northern Cape Provincial Commissioner,
the seventh to thirteenth respondents respectively,
are cited to the
extent that their departments would have an interest in the relief
sought. No relief is sought against the fourteenth
respondent, Ekapa
Minerals (Pty) Ltd (“Ekapa Minerals”), a company with
limited liability and duly incorporated and
registered in accordance
with the company laws of the Republic of South Africa with its
registered office situated at 2
nd
Floor, Profsen Building
3 York Street, Kimberley, Northern Cape. It is also cited for any
interest that it may have in the matter.
Only the first to sixth
respondents oppose the application.
[3]
The artisanal miners do not dispute that they mine the ‘
abandoned
floors’
on De Beers’ Farms. Their opposition is based
on tacit and express consent allegedly given by De Beers and Ekapa
Minerals
which they claim has not been validly terminated.
[4]
It is common cause that De Beers is a holder of a mining right under
Number 29/2010 pursuant to the Mineral and Petroleum Resources
Development Act
[1]
read with the
Mining Titles Registration Act
[2]
.
It is also the registered owner of the Farms on which the Reserve is
situated as described in para 1 (a)
supra
.
On 30 November 2015 De Beers entered into a Sale of Business
Agreement (“the Agreement”) with the twelfth respondent,
the Minister of Home Affairs, which consists,
inter
alia
,
the processing of Tailing Mineral Resources (“TMRs”) at
Kimberley Mines (Annexure “DBI”). This refers
to one TMR
dump sold to Ekapa Minerals and the Kimberley Ekapa Minerals Joint
Venture (“KEM JV”) for the purposes of
retreating of
tailing mineral resources pursuant to the agreement. Besides the dump
known as Kenilworth Retreat situated on Kenilworth
Farm operated by
KEM JV the remaining portions of the immovable properties are run by
De Beers for farming and as agricultural
land.
[5]
It is worth mentioning that TMRs are made up of the floors and the
tailing dumps. De Beers alleges that the presence of the
artisanal
miners on the Farms is unauthorised. It alleges further that the
respondents are involved in illegal mining and trading
in
diamondiferous material (valuable material contained in the TMRs) on
the floors which has begun to be a profitable business.
[6]
De Beers state that during May 2016 it experienced a significant
increase in trespassing and illegal mining activities including
other
crimes on the Buffalo Camp and the Reserve by the artisanal miners.
Other crimes include intimidation, trespassing, theft
of copper
cables, and malicious damage to property, and housebreaking. They
state that this conduct started long before May 2016
and was
concentrated to the South of the Kenilworth Tailing Mineral Resources
haul road, the BKB Grain Company Lease Area, the
South Western
Portion of the Reserve known as Buffalo Camp and the properties
disposed of through sale to KEM JV. Buffalo Camp
was used for
breeding disease free buffalos in compliance with the veterinary
regulations. It is also specifically constructed
and preserved for
the needs of the buffalos including isolation requirements. De Beers
has a game farm managed by De Beers’
Ecology Division which
attracts tourists. It also has, amongst others, employees’
accommodation, a conference venue and six
self-catering chalets.
There is birdlife and is a home to a breeding colony of White-Backed
Vultures stocked with herds of eland,
kudu, duiker, blue wildebeest,
red hartebeest, springbok, zebra, roan, buffalos, impala and sable.
[7]
De Beers expresses dissatisfaction in terms of which the respondents
disturb the ecology. They gain entry by ripping the fence
apart, use
bicycles, walk on foot and/or use privately owned vehicles and park
them on the border and inside the Farms. They dig
trenches causing
damage to the infrastructure on the Farms. They scan the area, choose
a patch of land and carry buckets, shovels,
wheel barrows and any
other instruments that assist them to mine illegally. They leave
trails of several dug–out trenches,
which run several
kilometres across the area. Significantly, this conduct takes place
during the day but lately it has also escalated
to the night. De
Beers also complains that the respondents steal steel pipes and
cables which affect water pumping, staff fridges
and guests’
comfort as a result of which it runs at a loss on its operational
capacity and effectiveness.
[8]
De Beers alleges further that due to the influx of the artisanal
miners on the Farms it experiences a threat to the safety and
well-being of tourists, students, animals, employees and the future
sustainability of the Reserve. It also suffers significant
financial
losses which forced it to relocate roans and buffalos from the
buffalo camp to unsuitable camps which led to the death
of two
pregnant buffalos, a roan calf and a roan bull. It also experiences
loss of power supply due to the theft of copper cables
and perimeter
fence support structure. De Beers complains that the respondents
unearth redundant water pipelines and electrical
cables and make
firewood. It states that some of the game gets missing due to the
fact that the gates are left open. De Beers had
to increase the
frequency of security inspections and patrols for the following
reasons:
8.1
To preserve its agricultural, environmental and commercial interests
in the properties;
8.2
To protect and preserve biodiversity, game and ecology; and
8.3
To promote and safeguard the safety and well-being of its employees,
security personnel, guests and the community surrounding
the
properties. Before Ekapa Minerals acquired the mine dumps on the
Reserve, De Beers tried to combat the illegal mining activities
by
laying criminal charges against the culprits but some would receive
warnings by the members of the South African Police Services
(“SAPS”)
and other matters would be withdrawn.
[9]
The respondents deny that they process the TMRs but a thin layer of
kimberlite that remains after the tailings have been removed.
To get
to the ‘
so called abandoned floors’
the
respondents state that they scratch the top layer of the soil and
floors would be easily seen. In paras 12.1 to 12.5 of the
Answering
Affidavit the respondents describe how they mine the abandoned floors
as follows:
“
12.1 We
scan the area for the patches of kimberlite.
12.2
When appropriate patch is found, an individual or group of
individuals claim this patch. We all recognise this person’s
exclusive right to the claim.
12.3
Two or three people usually work the claim. The first step is to
scrape off the thin layer of kimberlite, usually around six
inches
deep, with a pick and shovel.
12.3
The kimberlite is then sorted on a sieve to screen out large rocks.
It is then run through a finer sieve.
12.5
What is left on top of the sieve after this sorting is laid out on a
tarp and picked through.”
[10]
The respondents deny making trenches as shown in photos “DB
7”-“DB21” but admit that when there is
a pipe while
digging they make 30cm diggings. S 24 (1) of the National
Environmental Management Act
[3]
provides:
“
24.
(1) In order to give effect to the general objectives of integrated
environmental management laid down in this Chapter, the
potential
impact on –
(a)
the
environment;
(b)
socio-economic
conditions; and
(c)
the
cultural heritage, of activities that require authorisation or
permission by law and which may significantly affect the environment,
must be considered, investigated and assessed prior to their
implementation and reported to the organ of state charged by law with
authorizing, permitting, or otherwise allowing the implementation of
an activity.”
[11]
The respondents allege that De Beers’ mining is large scale
mining of diamonds and iron ore with massive machinery. They
state
that large-scale mining leaves behind massive mine dump with
diamondiferous material which is economically viable. They contend
that they have been mining side by side the large scale miners next
to Kenilworth and Dorstfontein.
[12]
De Beers argues that the unauthorised presence of the artisanal
miners and their illegal mining activities on the Farms resulted
in
Ekapa Minerals successfully bringing an application to this Court
under Case Number 2057/2016 seeking an interdict restraining
them
from trespassing and mining. De Beers argues further that the order
obtained by Ekapa Minerals dated 13 January 2017 is limited
to the
areas situated on its Farms where Ekapa Minerals conducts retreating
of tailing resources pursuant to the sale agreement.
Notably, about
five of the identified miners in the said Ekapa Minerals case,
including the unidentified illegal miners, are respondents
in
casu.
[13]
The respondents allege that they were in the process of regularising
their conduct with the Minister of Mineral Resources as
it will be
clear later in this judgment. In opposing the application they record
a number of defences which are summarised as follows:
13.1
That the relief sought is
lis pendens;
13.2
That they have express and/or tacit consent to mine on the immovable
properties and that such consent has not been validly
terminated;
13.3
That they live on the Farm and that if the interdict would be granted
it would amount to eviction;
13.4
That the Department of Mineral Resources (“DMR”) gave
them permission to mine on 10 hectares of land on one of
the farms
and that they have a right to make a living;
13.5
That Ekapa Minerals has no license to mine and is therefore mining in
conflict of the MPRDA;
13.6
That the citation of the sixth respondent is impermissible and that
the order sought is unenforceable;
13.7
That De Beers has failed to engage with them with the purpose of
finding a solution; and
13.8
That the requirements for an interdict have not been met.
LIS
PENDENS AND EVICTION
[14]
The respondents allege that prior to this application there were
other two pending cases brought by De Beers against them,
namely:
14.1
The application for eviction which is currently the subject of an
appeal to the Full Bench of this Court, ‘
Swedish
International v Lucky Seekoei & Others under Case Number
2086/2016
;
and
14.2
Ekapa
Mining Company & Others v Lucky Seekoei & Others under Case
Number 2057/2016’
referred to as the Ekapa Mining interdict.
[15]
The respondents allege further that the parties
in casu
and
the relief sought in the Ekapa Minerals interdict are identical and,
so is the cause of action. The High Court judgment (High
Court Case
Number 2057/2016 delivered on 13 January 2017 ) is the subject of an
appeal to the Constitutional Court under Case Number
CCT 195/17. The
respondents contend further that if the Constitutional Court
dismisses the said application the matter would be
res judicata
.
[16]
De Beers asserts that the immovable properties over which Ekapa
Minerals obtained an interdict under Case Number 2057/2016
are
unrelated to the ones forming part of this application. It contends
that Ekapa Minerals asserted and/or protected its rights
as the owner
and/or having the contractual rights of possession in respect of some
of the immovable properties upon which the TMRs
are situated. Its
primary concern, so it argues, was to interdict the respondents from,
inter alia
, mining the TMRs from which it generates income and
the respondents had become ‘
its competitor
.’
[17]
In
HASSAN
& ANOTHER v BERRANGE NO
[4]
Zulman JA expressed the requirements of the defence of
lis
pendens
thus:
“
Fundamental
to the plea of lis pendens is the requirement that the same plaintiff
has instituted action against the same defendant
for the same thing
arising out of the same cause."
(See also
NESTLE
(SOUTH AFRICA) PTY LTD v MARS INC
[5]
)
[18]
Mr Janis Grivainis, a land surveyor and the deponent to the affidavit
attached to the applicant’s Founding Papers, averred
that on 09
November 2016, in the company of Mr Eben van Heerden, he, at the
request of De Beers, conducted an air reconnaissance
and inspected De
Beers’ immovable properties which are subject of this
application while in a Robinson R66 Helicopter as
pointed out to him
by Mr Peter John Hohne. The purpose of the inspection was to
establish boundaries of the Farms and whether there
were informal
settlements erected thereon. He found none. Mr van Heerden’s
confirmatory affidavit is attached as Annexure
“JV2”.
[19]
Mr Grivainis also confirmed that on Portion 12 of the Farm Kenilworth
Estate he noticed about 40 to 50 shacks situated thereon.
However, he
established that they were not located on the remaining extent of De
Beers’ Farms which forms part of this application
but on Erf
33134, immovable property owned by Sol Plaatje Municipality. Copies
of the Windeed printouts of Portion 12 and Erf 33134
with the
relevant surveyor general diagrams for each immovable property are
attached to the Founding Affidavit as Annexures “JV6”,
“JV7”, “JV8”, “JV9” and “JV10”.
[20]
On Samaria Road Camp (Boshof Road Camp) Mr Grivainis states that he
found approximately 150 to 200 informal dwellings. This
immovable
property is registered in the name of the South African Swedish
International Housing Company as shown in Windeed Printout
(Annexure
“JV5”) and De Beers.
[21]
Mr Grivainis also found about 30 to 40 shacks situated on another
portion of Portion 12 which is referred to as Informal Settlement
Beef Master Camp. However, this area is also owned by the Local
Municipality as shown in Annexures “JV8”, “JV9”
and “JV10”. The respondents, on their own version, state
that on the remaining extents of Farm Kenilworth Estate 71
and Farm
Dorstfontein 77 there are three informal settlements, Samaria Camp
(Boshof Road Camp), The Beef Master Camp and the Kenilworth
Camp).
However, Mr Grivianis concluded that there were no shacks erected on
any of De Beers’ Farms.
[22]
It is evident that
in
casu,
the
properties over which Ekapa Minerals obtained the interdict are
unrelated to the ones forming the subject of this application.
Moreover, the parties before this court are not the same
parties as those in the Ekapa Minerals and Swedish International
matters. I therefore find it unnecessary to deal with the defence of
eviction taking into consideration that the surveyor general
diagrams
show no informal settlements on De Beers’ immovable properties.
Clearly, these informal settlements are not the
subject matter of
this application.
[23]
De Beers assert that the relief sought does not include or affect the
following immovable properties:
23.1 The Sol Plaatje
Municipality;
23.2 The South
African Swedish International Housing Company; and
23.3
Ekapa as per the Court order dated 13 January 2017 as amended by the
Notice of Abandonment of Portion of a judgment dated 14
September
2017.
[24]
The relief sought only seeks to cover the Farm Kenilworth Estate 71,
in the extent of 6037.5817 hectares of the total 6315.8873
and the
Farm Doortfontein 77 in the extent of 132.7672 hectares of the total
extent of 132.7672. It is so that De Beers’
Farms are set out
as mentioned above and depicted on Plan 1 (Annexure “JV3”).
Significantly, De Beers refers to the
properties that it retains upon
finalisation of the transferred property to Ekapa Minerals which
forms part of the application
in casu
. An aerial two
dimensional photo-colour map (“the 2D colour map”) and
linear dimensional map (“the linear map”)
Annexures
“DB24” and “DB25” clearly sets out the
co-ordinates and the boundaries of the farms forming the
subject
matter of this application as against those covered by the court
order granted in favour of Ekapa Minerals Case Number
2057/2016. From
the maps it is clear that the order granted in favour of Ekapa
Minerals resulted in the migration of the respondents
into the
remaining areas on the Reserve and onto the Buffalo Camp which falls
outside the purview of the court order which is the
large area on De
Beers’ Farms. It is also evident from the maps that there is an
informal settlement located on a portion
of Portion 12 of the Farm
Kenilworth Estate 71, marked on the 2D colour map as ‘
Informal
Settlement Kenilworth Camp’
consisting of about forty to
fifty shacks.
[25]
De Beers’ case has always been that, save for the dump known as
the Kenilworth Retreat situated on the Kenilworth Farm
operated by
Ekapa, the remaining portions of Kenilworth 71 and Doorstfontein 77,
the immovable properties used by De Beers for
farming and as
agricultural land. The objection by De Beers is that the respondents
gain access on its properties described above
and dig trenches as
shown on Annexures “DB7” to “DB21”, in search
of Kimberlite. In my view these defences
cannot succeed.
EXPRESS
AND/OR TACIT CONSENT TO MINE AND PERMISSION FROM THE DEPARTMENT OF
MINERAL RESOURCES
[26]
In paras 20.1 to 20.9 in its Answering Affidavit the artisanal
miners’ allegations can be summarised as follows:
26.1
They have been mining alongside Ekapa Minerals’ large-scale
mining for almost a decade on Kenilworth Farm and five years
on
Dorstfontein with the co-operation of Ekapa Minerals and knowledge of
De Beers;
26.2
The drivers of excavators discussed their business of the day with
the artisanal miners. The yellow cones were used to demarcate
where
the large-scale miners would mine and where the artisanal miners
would be safe to also mine;
26.3
The large-scale miners would make sure it did not lift the floors
with the TMRs giving the artisanal miners an opportunity
to mine the
floors;
26.4
In September 2016 the artisanal miners’ tools that were damaged
by the excavator were replaced; and
26.5
In June 2017 they were introduced to the new head of security, Mr
Francois.
[27]
The respondents state that the said tacit consent by Ekapa Minerals
and De Beers was given at a meeting held in June 2016 which
later
turned into verbal consent when Mr Hohne, the Surface Mining Manager
of Ekapa Minerals, gave them express consent to mine
the floors and
not the dumps. They state that at the time Ekapa Minerals was De
Beers’ subcontractor. They claim further
that they also had
consent from the DMR which had earlier assisted them. Mr Brink, the
Security Manager of Ekapa Minerals, also
offered to assist them
whenever they experienced problems and gave them his contact number,
the argument goes.
[29]
De Beers contends that the allegation that tacit consent to mine the
floors was not terminated is unfounded. It contends further
that at
the conclusion of the meeting held in June 2016 by De Beers and Ekapa
Minerals the artisanal miners were in no uncertain
terms warned to
stop mining the floors. This is uncontroverted. At paras 41, 42 and
43 of the Answering Affidavit Ms Elisa Louw
states:
“
41.The
second instance, in June 2016 there was a meeting called by DMR. DMR
met with De Beers and Ekapa in another room for two
hours whilst we
waited outside.
At
the conclusion of the meeting, De Beers and Ekapa said that we must
stop mining the floors.
They refused to engage with us. To our frustration, this was a
complete reversal from our earlier agreement.
42.
Mr Seekoei raised the issue with Mr Brink. Mr Brink returned and said
that Ekapa was not mining the floors. Whilst Mr Seekoei
was
apprehensive about this, it did seem like business as usual after
this as we continued to mine the floors, Ekapa the TMR’s.
43
Artisanal miners have been mining in the area for several decades,
since 1999. We have been left in peace by De Beers and have
worked
side-by-side with Ekapa’s large scale miners for several years.
When there are breaches, like these two instances,
they are resolved
and the practice returns to normal.”
(Emphasis added)
[30]
The respondents argue that even if the warning to stop mining the
floors could be interpreted as the termination of consent,
it could
not be seen as valid termination. Even though Mr Seekoei, the
chairperson of a committee seeking to resolve the dispute,
conveyed
the warning to other artisanal miners, not all artisanal miners were
members of the committee; hence the warning would
not be effective
notice to several of them but Mr Seekoei. This argument, in my view,
cannot hold water because Mr Seekoei is the
respondents’
representative and/or mouthpiece.
[31]
Notably, the regularisation of the artisanal miners’ operations
did not materialise as they are still unable to produce
a permit or a
license to mine. Though they paid the registration fee in compliance
with the mining permit, on their own version,
they still have no
permission to mine. The GPS co-ordinates of the 10 hectares on
Kenilworth, Annexures “L”, “M”
and “N,”
that the respondents allege they were allowed to mine on, do not
change anything or give them permission to
mine.
[32]
Regarding 10 hectares on Kenilworth, De Beers contends that the
allegation by the respondents that they have permission to
mine on
this piece of land pending receipt of formal documentation from the
Department of Mineral Resources (“DMR”)
is, land that
belongs to Sol Plaatje Municipality which is clearly not affected by
the relief sought.
RIGHT TO MAKE
A LIVING AND DISCRETION
[33]
The respondents submit that they live on the Farms in order to make a
living owing to the current economic climate. They would
therefore be
unable to fend for themselves and their families as they are unable
to secure employment, if the interdict is granted.
In their own
version there are three informal settlements, namely, Kenilworth
Camp, the Beef Master Camp and the Samaria Camp also
known as Boshof
Road Camp. They state that several hundreds of people (approximately
3000) live on Samaria Farm which falls on
both Doorsfontein and
Kenilworth Farms, the very same farms that form part of the interdict
which is a home for many of them. They
state that even if the
informal settlements were not part of the affected area it would be
impossible for them not to trespass
as the settlements are unfenced.
Therefore the Prevention of Illegal Eviction from an Unlawful
Occupation of Land Act
[6]
is
applicable, so they argue. The respondents confirm though that there
are about two hundred shacks in the affected area and they
live there
in order to conduct mining activities.
[34]
Annexure “DB24” shows that the areas upon which the
informal settlements are situated on the farms are, according
to the
applicant, registered in the name of a Swedish Company and Sol
Plaatje Municipality. This assertion was undisputed. Annexure
“DB25”
shows the boundary lines of the remaining extent of the farms on
which De Beers seeks relief.
[35]
The respondents allege that they have a right to be on the property
by virtue of express or tacit consent given to it by De
Beers and
Ekapa. They assert that if the miners are evicted their right to
dignity would be infringed because they make a living
in
socio-economic context which disallows them to make a living. They
state that mining the floors is done out of desperation to
live, have
water, electricity and most importantly fend for their families
living in shacks. This is so because they could not
find employment.
The respondents relied on
MINISTER
OF HOME AFFAIRS AND OTHERS v WATCHENUKA AND OTHERS
[7]
where it was held:
“
The
freedom to engage in productive work – even where that is not
required in order to survive – is indeed an important
component
of human dignity, as submitted by the respondents’ counsel, for
mankind is pre-eminently a social species with
an instinct for
meaningful association. Self-esteem and the sense of self-worth –
the fulfilment of what it is to be human
– is most often bound
up with being accepted as socially useful.”
[36]
The respondents allege further that their rights should be weighed
against De Beers’ rights to its properties. They rely
on
article 6 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR) ratified by South Africa on 12 January
2015
which states:
“
Article 6
1.
The
State Parties to the present Covenant recognize the right to work,
which includes the right of everyone to the opportunity to
gain his
living by work which he freely chooses or accepts, and will take
appropriate steps to safeguard this right.
2.
The
steps to be taken by a State Party to the present Covenant to achieve
the full realization of this right shall include technical
and
vocational guidance and training programmes, policies and techniques
to achieve steady economic, social and cultural development
and full
and productive employment under conditions safeguarding fundamental
political and economic freedoms to the individual.”
[37]
S 7 (1) and (3) of the Constitution
[8]
provide that the Bill of Rights is a cornerstone of democracy in
South Africa and enshrines the rights of all people in our country
and affirms the democratic values of human dignity, equality and
freedom. The rights in the Bill of Rights though are subject to
the
limitations contained in s 36. It is common cause that the
respondents do not have the required licence or permit to conduct
mining activities on the farms as specified. Taking into account that
the regularisation of the conduct of the artisanal miners
was in
vain, the respondents cannot expect that their involvement in illegal
activities would be condoned no matter how much I
may feel for their
unfortunate situation. It is the opportune time for DMR to step in
since it appears that it did not fulfil its
promise.
EKAPA
MINING WITHOUT A LICENCE
[38]
The respondents allege that Ekapa Minerals is currently mining the
TMRs in Kenilworth as a subcontractor for De Beers without
the
necessary permit or licence in contravention of the MPRDA. They
allege further that the said mining is not limited to the TMRs
but
also the floors. Taking into account the fact that ‘
all the
minerals are managed by the State and may not be sold, exploited or
otherwise dealt with, save with the authorisation of
the State’
neither De Beers nor Ekapa Minerals are authorised to exploit
these sources without the State’s authorisation, the argument
goes. The respondents allege that the tailing mineral resources are
residue stockpile which falls within the definition of mineral
(s 1
of the MPRDA).
[39] I
n terms of
s 1 of the MPRDA residue stockpile means:
“
Residue
stockpile” means any debris, discard, tailings, slimes,
screening, slurry, waste rock, foundry sand, beneficiation
plant
waste, ash or any other product derived from or incidental to a
mining operation and which is stockpiled, stored or accumulated
for
potential re-use, or which is disposed of, by the holder of a mining
right, mining permit, production right or an old order
right.”
[40]
S 3 (1) and (2) (a) of the Mineral and Petroleum Resources
Development Act
[9]
(“MPRDA”)
provides:
“
3.
Custodianship of nation’s mineral and petroleum resources. –
(1)
Mineral and petroleum resources are the common heritage of all the
people of South Africa and the State is the custodian
thereof for the
benefit of all South Africans.
(2)
As the custodian of the nation’s mineral and petroleum
resources, the State, acting through the Minister, may –
(a)
grant, issue, refuse, control, administer and manage any
reconnaissance permission, prospecting right, permission to remove,
mining right, mining permit, retention permit, technical co-operation
permit, reconnaissance permit, exploration right and production
right.”
[41]
It is important to note that the MPRDA does not define mining but s 1
defines mineral as follows:
“
[M]ineral
means any substance, whether in solid, liquid or gaseous form,
occurring naturally in or on the earth or in or under water
and which
was formed by or subjected to a geological process, and includes
sand, stone, rock, gravel, clay, soil and any mineral
occurring in
residue stockpiles or in residue deposits but excludes –
(a)
water,
other than water taken from land or sea for the extraction of any
mineral from such water;
(b)
petroleum;
or
(c)
peat.”
[42]
In
DE BEERS CONSOLIDATED MINES LTD v ATAQUA MINING (PTY) LTD AND
OTHERS
[10]
Beckeley
J (Kruger J concurring) interpreted the phrase “
occurring
naturally in
or
on the earth or in or under water and which was formed by or
subjected to a geological process”
thus:
“
Transfer
of ownership of minerals is impeded by the fact that they form part
of the land. As soon as the ore containing the minerals
is severed
from the land, a new object (movables res) is created which is the
object of separate ownership.”
The Court added at
para 68:
“
The
tailings dumps are movable and the diamonds occurring in them do not
occur ‘naturally in or on the earth’;
Tailings
dumps do not occur naturally. They are formed by the placement of
processed and partly processed materials, to be re-worked
in future
years when technology improves…; and
The
tailings dumps have been owned by applicant since 1973. Applicant’s
ownership of the tailings dumps is not in dispute.
Applicant has
spent money and labour and time on these tailings dumps…”
[43]
In
EKAPA
MINERALS (PTY) LTD AND OTHERS v LUCKY SEEKOEI AND OTHERS
[11]
Williams J held:
“
24.
The TMRs in casu therefore do not fall under the definition of
“mineral” in the MPRDA. Its reprocessing would therefore
not require a mining right and since the MPRDA does not apply to TMRs
there can be no prohibition against it being sold. The view
I take of
the TMRs not falling under the provisions of the MPRDA is bolstered
by the fact that the MPRDA has tabled a Bill (The
Mineral and
Petroleum Resources Amendment Bill), which seeks to further amend the
definition in the MPRDA of “residue stockpile”
to include
“historic mines and dumps created before the implementation of
the Act.” Such an amendment and the concomitant
transitional
arrangements also included in the Bill would be unnecessary if the
existing definition of residue stockpile (and by
extension “mineral”)
already includes historic dumps such as the TMRs in issue. That being
the case I do not have to
deal any further with the respondents’
allegations of the applicant not approaching Court with clean hands
since they themselves
do not have a mining right over the relevant
properties.”
I
agree with my sister Williams J in this regard. It is therefore
unnecessary for me to deal with this point any further. This defence
can also not be sustained.
CITATION
OF THE SIXTH RESPONDENTS AS UNIDENTIFIED ILLEGAL MINERS IMPERMISSIBLE
AND THE ORDER SOUGHT UNENFORCEABLE (VAGUENESS)
[44]
This respondents’ objection concerns an order that a court
grants against a group of people who are unidentifiable and
no cause
of action has been made out against them. The respondents
object to the description of the sixth respondents who
are referred
to as “
the
Unidentified Illegal Miners” alleging that
it
is ‘
at
odds with our jurisprudence’.
Ms
de Vos, on behalf of the first to sixth respondents, relied on
KAYAMNANDI
TOWN COMMITTEE v MKHWASO
[12]
where
Conradie J held:
“
A
notification to persons in general or to a group of individuals by
way of a rule nisi that the Court is about to pronounce upon
a suit
between parties is, of course, permissible. It is a procedure
frequently adopted in order to give interested parties an
opportunity
of joining in the litigation. But it does not by itself make them
parties to the litigation and they do not merely
by virtue of having
been notified of the litigation become liable to be punished for
contempt of Court for failure to comply with
any order which is
eventually made. A failure to identify defendants or respondents
would seem to me to be destructive of the notion
that a Court order
operates only inter partes, not to mention questions of locus standi
in iudicio. An order against respondents
not identified by name (or
perhaps by individualised description) in the process commencing
action or (in very urgent cases, brought
orally) on the record would
have generalised effect typical of legislation. It would be a decree
and not a Court order at all.”
[45]
The reasons why the respondents state that granting an order against
a group of unidentified people is problematic can be summarised
as
follows:
45.1
It breaches the principle that courts do not grant relief in
circumstances that there is no reasonable certainty about what
that
order means or to whom it applies;
45.2
It breaches the principle that the parties in legal proceedings must
be clearly identified;
45.3
It creates a reversal of
onus
at the stage of contempt proceedings which runs counter to every
notion of criminal justice and the
onus
of proof;
45.4
It allows the granting of vague relief against unidentified
respondents. The implementation of such vague relief effectively
amounts to self-help which violates s 1 (c) of the Constitution;
45.5
It breaches the well-established principle in our law that a litigant
is not entitled to an order where no cause of action
is being made
calling upon that person to desist from some unlawful action; and
45.6
It has a generalised effect typical of legislation.
[46]
The Constitutional Court in
OCCUPIERS
OF PORTION R25 OF THE FARM MOOIPLAATS 335 JR v GOLDEN THREAD AND
OTHERS
[13]
had this to say regarding the citation of the respondents:
“
It
is necessary, before addressing the issue at the crux of this case,
to refer to a matter that is cause for considerable concern.
Golden
Thread cited two groups of respondents before the High Court. The
applicants before us were the second group of respondents
before the
High Court. The first two respondents joined in the case before the
High Court were cited respectively as ‘[t]he
people who intend
invading Portion 25 of the Farm Mooiplaats 355/JR, Tshwane, Gauteng’
and ‘[t]he people who invaded
Portion 25 of the Farm Mooiplaats
355/JR, Tshwane, Gauteng’.
This
description of human beings is less than satisfactory and cannot pass
without comment. It detracts from the humanity of the
occupiers, is
emotive and judgmental and comes close to criminalising the
occupiers.
This
form of citation should not be resorted to. A more neutral
appellation like ‘occupiers’ might well be more
appropriate.”
(Emphasis added)
[47]
The Courts have generally refused to grant orders against a group of
unidentifiable people like in the case of student protest
[14]
.
In
RHODES
UNIVERSITY v STUDENT REPRESENTATIVE COUNCIL OF RHODES UNIVERSITY AND
OTHERS
[15]
the Court found that interdicts against unidentifiable groups raise
problems.
[48]
In the instant case Ms Louw attached to the Answering Affidavit a
list of 836 names of artisanal miners besides the first to
fifth
respondents (Annexure “X”/ “EMR5”) whose
details were initially unknown to the applicant. They are
alleged to
have also conducted mining operations complained of by the applicant.
That makes the sixth respondents identifiable.
Though they were not
joined
in
casu
as the respondents, the order that would be granted by the court
would, in my view, not be prejudicial and therefore enforceable
against them. It would bind them considering
MEIKLE
v SOUTH AFRICAN TRANSPORTATION SOCIETY AND TRUST COMPANY
[16]
.
The order can therefore not be said to be vague or unenforceable as
its service would be directed by the Court as it seems meet
against
the names appearing on the said list. Importantly, on the version of
the respondents Mr Seekoei was at a meeting attended
by about 200
artisanal miners at Samaria Camp, appointed as Chairperson of the
committee and Ms Louw, as the secretary and the
second to fourth
respondents, as representatives.
RIGHT TO
ENGAGE MEANINGFULLY
[49]
The respondents contend that De Beers was required to engage
meaningfully with them. For this contention Ms Irene de Vos, for
the
respondents relies on
JUMA
MUSJID PRIMARY SCHOOL & OTHERS v ESSAY N.O. AND OTHERS
[17]
where
the Constitutional Court on appeal held:
“
The
provisional order setting aside the eviction order by the High Court
was intended to enable the MEC, the Trustees and the SGB
to engage
meaningfully with one another, consider various options regarding the
conclusion of an agreement in terms of section
14 (1) of the Act and
take steps to secure alternative placement for the learners in
accordance with their right to a basic education.”
[50]
Ms de Vos contends that meaningful engagement between the parties
would assist them to come to a meaningful solution. She relied
on
MINISTER
OF HOME AFFAIRS AND OTHERS v WATCHENUKA AND OTHERS
[18]
.
In this matter the Supreme Court of Appeal held that to engage in
productive work – even where that is not required in order
to
survive – is indeed an important component of human dignity.
The failure to engage with the respondents renders the interdict
unenforceable, the argument goes.
[51]
The respondents rely on sections 38 and 172 (1) of the Constitution
which set out the court’s powers to grant remedies
for
infringements of the constitutional rights. They relied on
PORT
ELIZABETH MUNICIPALITY v VARIOUS OCCUPIERS
[19]
.
In this case the Constitutional Court focused on the importance of
engagement as a vital legal mechanism in eviction proceedings,
and
housing policy more broadly. According to the respondents mediation
encourages the humanisation of the other parties to a dispute
in
order to engage with each other as bearers of rights and dignity.
[20]
This is so because it would not be just and equitable to order
eviction. Ms De Vos submitted that the parties could reach an
agreement
that would allow the miners to mine the floors without
accessing De Beers’ Reserve.
[52]
The requisites for the right to claim an interdict is well known; a
clear right, injury actually committed or reasonably apprehended,
and
the absence of similar protection by any other ordinary remedy.
[21]
CLEAR RIGHT
[53]
The respondents deny that the applicant has established a clear
right. They insist that they had a tacit and/or express agreement
to
mine the floors and the applicant was aware of their presence on the
farm. They claim that it is the DMR which is authorised
to interdict
them and not De Beers.
[54]
De Beers, on the other hand, alleges that as the owner of the
property it is subject to lawful limitations of the use and enjoyment
of its properties. It alleges further that its exclusive use and
enjoyment of its farms has been diminished by the unlawful presence
of the respondents on the properties in the following ways:
541 They remain on
the Farms despite warnings not to and continue to violate the
applicant’s right of ownership of the properties;
54.2 They have no
right or permission to be on the properties to either prospect or
mine diamond or any related material from the
floors;
[55]
As alluded to earlier the uncontroverted evidence is that De Beers is
the registered owner of the properties against which
the relief is
sought. Its right to ownership is absolute subject to the provisions
of the MPRDA and it is therefore entitled to
the enjoyment and
exercise such right over its properties without having the
respondents gaining access without its permission
and conduct illegal
mining. That is, in my view, sufficient to establish a clear right
for the final interdict. The respondents’
assertion that they
would be without a livelihood if the interdict would be granted
cannot allow them to engage in illegal activities
on De Beers’
properties without its permission.
IRREPARABLE
HARM
[56]
De Beers states that it suffers irreparable harm in that its entire
operations on the Farms are adversely affected. The breeding
camps
have become sterile and unusable. This is as a result of the
degradation of the agricultural land and the violation of the
ecology. There is a possibility of closing down its business on the
Reserve due to the shortage of space for the game if the interdict
is
not granted.
[57]
The respondents deny that De Beers established harm justifying the
granting of the relief sought. They contend that the allegations
that
De Beers suffered harm are vague because no dates, times and places
or even people are referred to. They contend further that
there is no
detail of the infrastructural damage suffered or how the future
development
would be impeded.
[58]
The respondents deny that the trenches depicted in photos DB7 to DB21
were caused by their mining. Yet Ms Louw states that
she knows that
there were artisanal miners especially those that mine for gold and
that they ‘
dig
deep trenches and tunnels.
’
NO
ALTERNATIVE REMEDY
[59]
The respondents insist that De Beers has failed to show that it has
exhausted all alternative remedies. They state that it
sought
criminal remedies which have proved unsuccessful due to the vague
complaints it filed the police could not solve. De Beers
has also
failed to lay criminal charges against the first to the sixth
respondents but sought a final interdict and should the
interdict be
granted the respondents would be unable ‘
to challenge the
constitutionality of the criminalisation of their livelihoods’,
the argument goes.
[60]
De Beers maintains that it has laid criminal charges against the
wrongdoers with the South African Police Services, forwarded
letters
to the South African Diamond and Precious Metals Regulator and the
Head of Department and Director, Northern Cape with
no success.
[61]
Notably, De Beers cited the sixth respondent without furnishing
details of the parties because it was not in possession of
the said
details until the respondent attached Annexure “X” to the
Answering Affidavit. Be that as it may, there is
no guarantee that De
Beers would succeed against more than 800 artisanal miners without
experiencing delays and at the end of the
day be prejudiced because
the remedy would not serve the purpose. In my view, De Beers has no
option but to seek the relief to
protect its interests. The
application has to succeed.
[62]
Regarding costs the Mr Motau, for De Beers, indicated that the
applicant seeks no costs order against the respondents because
they
misunderstood the description of the land which the interdict refers
to. The applicant also understands that this was a bona
fide mistake.
In
the circumstances I grant the following order:
1.
The
first to sixth respondents including the names of persons listed on
Annexure “X” hereto are interdicted and restrained
from
entering into or being on the immovable properties and/or areas
situated upon the following immovable properties:
1.1
The
remaining extent of the Farm Kenilworth Estate 71, in the extent
6037.5817 hectares; and
1.2
The
remaining extent of the Farm Dorstfontein 77, in the extent of
132.767 hectares.
2.
The
first to sixth respondents including the names of persons listed on
Annexure “X” hereto are interdicted and restrained
from
mining or prospecting or conducting any related activity on the
immovable properties described in paragraph 1
supra.
3.
The
first to sixth respondents including the names of persons listed on
Annexure “X” hereto are interdicted and restrained
from
disturbing and/or processing and/or removing any of the materials
which are situated upon the immovable properties described
in
paragraph 1
supra.
4.
The
Sheriff of this Court is authorised and directed to remove any of the
first to sixth respondents including the names of persons
listed on
Annexure “X” hereto who are present upon the immovable
properties referred to in paragraph 1 supra.
5.
No
order as to costs.
__________
BM
PAKATI
ACTING
DEPUTY JUDGE PRESIDENT
NORTHERN
CAPE DIVISION, KIMBERLEY
For
the applicant:
ADV MOTAU (SC) & JUNIOR
COUNSEL, ADV LINDA
Instructed
by: VAN
DE WALL INC.
For
the respondents:
ADV DE VOS (1-6 respondents)
Instructed
by: P
JOUBERT INC.
[1]
Act 28 of 2002
[2]
Act 16 of 1967
[3]
Act 19 of 1998
[4]
2012 (6) SA 329
(SCA) para 19
[5]
2001 (4) SA 542
(SCA)
[6]
Act 19 of 1998
[7]
[2004] 1 All SA 21
(SCA) at para 27
[8]
Act 108 of 1996
[9]
Act 28 of 2002
[10]
(3215/06)
[2007]
ZAFSHC 74
(13 December 2007) at para 53
[11]
An unreported
Judgment: Case No. 2057/2016 delivered on 13/01/2017 para 24
[12]
1991 (2) SA 630
(C)
p634F-635F; City of Cape Town v Yawa and Others
[2004] 2 All SA 281
(C) at 634F-I; Ex parte Consolidated Fine Spinners & Weavers Ltd
& Another in re Consolidated Fine Spinners & Weavers
Ltd &
Another v Govender and Others (1987) 8 ILJ 97 (D)
[13]
2012 (4) BCLR 372
(CC) at para 4
[14]
Durban University
of Technology v Zulu and Others [2016] ZAKZPHC 58 (27 June 2016) at
para 2;
[15]
(1937/2016) [2016]
ZAECGHC 141;
[2017] 1 All SA 617
(ECG) (1 December 2016)
[16]
1904 TS 94
at …the
Court held…(Innes CJWessels and Curlewis concurring).
[17]
2011
(8) BCLR 761
(CC) para 74 delivered on 11 April 2011
[18]
[
2004]
1 All SA 21
(SCA) para 27 delivered on 28 November 2003
[19]
[2004] ZACC 7
;
2005 (1) SA 217
(CC) paras 39 to 47
[20]
PE Municipality
para 41
[21]
Setlogelo v
Setlogelo
1914 AD 221
at 227