About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2018
>>
[2018] ZALMPPHC 16
|
|
Mogalakwena Platinum Ltd v Mokhomme and Others (4399/2017) [2018] ZALMPPHC 16 (18 April 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE
NO: 4399/2017
Not
reportable
Not
of interest to other judges
Revised.
18/4/2018
In
the matter between:
MOGALAKWENA
PLATINUM
LTD
APPLICANT
And
GRANNY
MOKHOMME & 45
OTHERS
RESPONDENTS
JUDGMENT
KGANYAGO
J
[1]
The applicant has been granted mining rights by the Minister of
Mineral Resources on 7
th
September 2010 to operate an open pit platinum mine on farms
Zwartfontein 818 and Overysel 815 LR. The applicant alleges that it
was granted a lease agreement over Overysel farm on the 6
th
October 1993 by the then Lebowa Government acting on behalf of the
Langa-Mapela Tribes. With regard to Zwartfontein farm it alleges
that
it was granted a lease agreement by the Langa Tribe on the 12
th
December 2012.
[2]
The applicant denies that it is mining in Drenthe as alleged by the
respondents in their counter application. According to the
applicant,
the electronic deeds search shows that the owner of Drenthe is the
Republic of South Africa and the respondents does
not appear on the
endorsements as having any recognized rights on Drenthe. The
applicant does not seek any relief in relation to
Drenthe.
[3]
According to the applicant, on the 1
st
June 2017 the respondents arrived at the mine which overlap to both
Zwartfontein and Overysel farms without notice and gained access
to
the north pit area of the mine. Thereafter they disrupted production,
leading to the evacuation of the pit. The respondents
also damaged
the applicant’s property by throwing stones at equipments,
drilling machinery, motor vehicles and trucks.
[4]
The Applicant further alleges that on the 12
th
June 2017 the respondents started building illegal housing structures
at Overysel farm, 800 meters from the mine pit.
[5] These events led to
the applicant launching an ex parte urgent application.
The
urgent application was set down for 15
th
June 2017 wherein an interim relief was obtained interdicting the
respondents from entering farm Zwartfontein; interfering with
or
disturbing the operations of the applicant; intimidating, threatening
and/or assaulting the applicant’s employees, contractors
and/or
suppliers or any other person visiting the property; damaging any
property of the applicant or applicant’s employees,
contractors
and/or suppliers or any person visiting on the property; and
authorizing the South African Police Services to demolish
any and all
illegal structures which may be erected by the respondents on the
property and to remove any of the respondents who
access the
property.
[6]
A rule nisi was issued and served on the respondents. The respondents
are opposing the applicant’s application. According
to the
respondents, they and GaMaloka tribe are living at Drenthe farm. They
allege that the applicant has encroached into their
land and has been
unlawfully conducting mining in their area. The respondents further
alleges that the applicant has destroyed
their and GaMaloka
initiations schools and ancestral graves.
[7]
The respondents further allege that on the 10
th
and 17
th
May 2017 they held discussions with the applicant regarding its
encroachment on their land. The respondents’ further alleges
that at that meeting, the applicant had promised them job
opportunities and training for those nominated for employment. The
agreement
was that the training was supposed to start on the 22
nd
May 2017 with the intention of them starting to work on the 1
st
June 2017.
[8]
The respondents further allege that on the 1
st
June 2017 they realized that the applicant had no intention of
honouring their agreement. They together with GaMaloka Tribal
Authority
resolved to confront the applicant about its failure to
honour the agreement. Approximately forty of them went to the pit
that
is situated in their land which the applicant was unlawfully
mining on it. On arrival at the pit one van Heerden together with the
security guards arrived on a water truck and without a warning
sprayed them with water.
[9]
On the 11
th
June 2017 a community meeting was held at GaMaloka Tribal Authority
where a resolution was taken to allocate land for occupation
by
tribal members. They identified land that is approximately 70 meters
from the boundary fence dividing their land from that of
the
applicant. The tribal members who were allocated stands started
building their homes and structures on such land from the 15
th
June 2017 as it is their land.
[10]
The respondents have also filed a counter application seeking an
order declaring the mining license of the applicant and lease
agreement it entered into with Langa Tribe not to cover their land
and/or in the event that it is taken to cover their land, to
declare
that to be null and void. In the event the Court is not with them on
that point, the respondents in the alternative are
also seeking an
interim interdict against the applicant pending the review
application which they intend to launch within 90 days
of the order.
The purpose of the intended review application is to set aside the
applicant’s mining license and lease agreement.
[11]
The applicant is seeking confirmation of the interim relief. At the
hearing of the main application the applicant applied for
leave to
file a supplementary affidavit. The purpose of their supplementary
affidavit is in case the interim relief is confirmed,
they will be
seeking that the final order be extended to farm Overysel 815 which
was not included in the interim interdict. The
respondents were
objecting to the applicant’s application. The matter was argued
and the applicant was granted leave to file
its supplementary
affidavit. The respondents felt that it was not necessary for them to
file any supplementary answering affidavit.
The parties proceeded to
argue the main application and counter application.
[12]
The Court is called upon to decide on two issues. The first one is
whether to confirm the applicant’s rule nisi, and
the second
one is whether the respondents’ counter application should be
granted or not. I will first deal with the respondents’
counter
application. If the respondents’ counterclaim is granted, it
will dispose the whole matter.
[13]
The applicant has raised several points
in
limine
.
I will first deal with the point
in
limine
of
non- joinder. According to the applicant, the respondents cannot seek
any relief in relation to the nature, validity or constitutionality
of the mining rights without joining the Minister of Mineral
Resources who granted the mining rights. The applicant therefore
contends that the Minister of Mineral Resources is a necessary party
to the proceedings.
[14]
Secondly, the applicant submits that since the respondents are
seeking to have the lease agreement declared null and void,
they are
supposed to join the Langa Tribe and Registrar of Deeds to the
proceedings. According to the applicant, the Langa tribe
is a party
to the lease agreement and therefore an interested party in these
proceedings.
[15]
It is settled law that the test for joinder requires that a litigant
must have a direct and substantial interest in the subject
matter of
the litigation, that is, a legal interest in the subject matter of
the litigation which may be affected by the decision
of the Court.
(See
Pheko
and Others v Ekhurhuleni Metropolitan Municipality (No2)
[2015] ZACC
10).
[16]
It is not in dispute that the Minister of Mineral Resources is
responsible for granting of mining rights. In this case the
Minister
has granted the applicant mining rights to mine at Zwartfontein and
Overysel farms. The Langa Tribe owned surface rights
on the said two
farms and is also a party to the lease agreement. Any order which
this Court is going to make in this matter is
going to affect their
rights. It is trite that an order should not be made against a party
without that party not being afforded
an opportunity to be heard.
[17]
Under the circumstances the Court is satisfied that since the
Minister of Mineral Resources is responsible for issuing of mining
rights and has granted the applicant those rights at Zwartfontein and
Overysel farms, the Minister is therefore having a direct
and
substantial interest in these proceedings and should therefore be
joined as party to the respondents’ counter application.
With
regard to Langa Tribe, they are a party to the lease agreement which
the respondents seek to set aside. Their rights will
not be
determined without being given an opportunity to be heard. Therefore,
in my view they are having direct and substantial
in this matter and
should therefore be a party to the proceeding.
[18]
The respondents in the alternative have submitted that if the Court
is not with them on declaring the mining license of the
applicant and
lease agreement it entered into with Langa Tribe not to cover their
land and/or null and void, they are in the alternative
seeking an
interim interdict against the applicant for the relief as set out in
their counter application.
[19]
According to the applicant, Boikgantsho Platinum Mine previously held
the prospecting rights to prospect for all minerals,
inter alia,
Drenthe. During October 2015 it ceded the prospecting rights to
Rustenburg Platinum Mines (“RPM”). RPM
is the applicant’s
sister company. The applicant further alleges that it has no surface
rights at Drenthe. According to the
applicant, the Government of the
Republic of South Africa is the registered owner of Drenthe, as it
appears from the print out
of the electronic deed search. The
applicant submits that in the Deeds Registry there is no reference to
Ga-Maloka Tribe having
rights to Drenthe whatsoever.
[20]
According to the applicant, at this stage there are no mining
operations taking place at Drenthe and that RPM will engage with
the
relevant authority to secure mining rights for Drenthe prior to the
commencement of mining operations. According to the applicant
at the
meeting of the 17
th
May 2017, the respondents have raised the issue of the alleged
encroachment of their mine on their land at Drenthe. The applicant
further alleges that at that meeting the respondents were asked to
indicate where the alleged encroachment had taken place but
they
could not do so. According to the applicant the respondents undertook
to bring a map that shows the alleged encroachment at
their next
meeting, but have failed to do so.
[21]
The respondents in their replying affidavit to their counter
application does not dispute that they have failed to indicate
where
the alleged encroachment has taken place. They have also failed to
present the maps showing the alleged encroachment. The
applicant on
the other hand has presented aerial photographs of the area they are
mining and also the boundaries that divides Drenthe
and Overysel. On
the aerial photographs, it clearly shows that the applicant has not
encroached into Drenthe.
[22] In
City of
Tshwane Metropolitan Municipality v Afriforum and Another
[2016]
ZACC
19
at paragraph 49 the Court said:
“
To
determine
whether this perhaps one of those cases or the clearest of cases has
been made out for the interim relief, it is necessary
to examine how
Afriforum met the requirements for the grant of an interim interdict.
Those requirements were of course set out
in Setlogelo and Webster as
(i) a prima facie right that be open to doubt; (ii) a reasonable
apprehension of irreparable and imminent
harm to the right if the
interdict is not granted; (iii) the balance of convenience favourable
to the grant of the interdict;(iv)
the absence of any other adequate
remedy.”
[23]
The respondents are required to establish a prima facie right
although it may be open to doubt. Even though the record of the
Register of Deeds does not show any reference of Ga- Maloka Tribe
having rights to Drenthe, the respondents alleges that Ga-Maloka
Tribe is the owner of the land and have been exercising that
authority over it before 1904. They therefore contend that their
rights are protected in terms of the Constitution and the Interim
Protection of Informal Land Rights Act. Taking into consideration
the
time period they have been residing at that land in question, they
might be protected by the Interim Protection of Informal
Land Rights
Act. Therefore, I am satisfied that the respondents have established
a prima facie right.
[24]
The second requirement is that of irreparable harm. The respondents
must show that there is a reasonable apprehension of irreparable
and
imminent harm should the interim relief not granted. The harm must be
anticipated or ongoing, and should not have already taken
place. In
this case the respondents are alleging that the applicant has
destroyed their initiations schools and ancestral graves.
They are
further alleging that the applicant has already encroached into their
land. Therefore, the act that they are complaining
about has already
taken place, and in my view they have failed to meet this
requirement.
[25]
The third requirement is that of balance of convenience. The
respondents are required to show what harm they will suffer if
the
interim relief is not granted. In my view the respondents has failed
to show that. The fourth requirement is that of adequate
remedy.
According to the respondents’ version the act they are
complaining about has already been committed by the applicant,
and
they can therefore sue for damages. The respondents in my view have
also failed to meet the fourth requirement.
[26]
Under the circumstances I am satisfied that the respondents have
failed to meet the requirements for an interim interdict.
For the
reasons I have state above, the respondents’ counter
application for an interim interdict stands to fail.
[27] I turn to the
applicant’s application, whether its rule nisi should be
confirmed or not. The requirements for a final
interdict have been
formulated in the often quoted case of Setlogelo v Setlogelo
1914 AD
221
at 227 where the Court said:
“
The
requisites for the right to claim an interdict are well known; a
clear right, injury actually committed or reasonably apprehended
and
the absence of a similar protection by any other ordinary remedy.”
[29]
According to the applicant, it is seeking a final interdict against
the respondents on Zwartfontein and Overysel farms. Since
it does not
have mining rights at Drenthe, or conducting any operation, it is not
seeking any order there.
[30]
The first requirement is whether the applicant has a clear right over
Zwartfontein and Overysel farms. The Minister of Mineral
Resources
has given it the rights to conduct mining operations at the two
farms. It has signed a long term lease agreement with
Langa-Mapela
Tribe and Langa Tribe to enable it to mine there. It has long been
conducting mining operations at Zwartfontein and
Overysel farms. I am
therefore satisfied that the applicant has established a clear right
over Zwartfontein and Overysel farms.
[31]
The second requirement is that of an injury committed or reasonably
apprehended. The respondents conceded that on the 1
st
June 2017 they went to the pit operated by the applicant uninvited
and in numbers. It is not in dispute that at the pit accessibility
is
restricted due to the type of operations that is been conducted. As a
result of the invasion of the pit by the respondents,
a scuffle
ensued between the security guards of the applicant and respondents.
In the process the applicant’s properties
were damaged,
employees of the applicant were threatened by the situation. The pit
had to be closed for a while whilst production
was lost.
[32]
The respondents in their own version state that their tribal members
have cleared the land which is about 800 meters away from
where
applicant was blasting. The respondents are claiming that the
applicant has encroached into their land and that where it
is
blasting is their land. However, the aerial photographs shows that
the applicant has not encroached into the respondents land.
I am
therefore satisfied that an injury has actually been committed by the
respondents against the applicant.
[33]
The third requirement is whether the applicant has any other remedy.
According to the applicant, it has lost about R6.5 million
in the
four hours the pit was shut down. That money it has not recovered,
and even if it can institute a civil claim against the
respondents,
the possibility of recovering that is negligible. The applicant has
tried to engage the police to assist it, but alleges
that it was told
by the police that without the Court order they will not be able to
assist it to stop the respondents from their
alleged unlawful and
interruptive conduct.
[34]
In the circumstances, the court is satisfied that the applicant has
met all the requirements for a final interdict.
[35] In the result I make
the following order:
35.1
The respondents counter application is dismissed
35.2
The rule nisi issued on the 15
th
June 2017 is confirmed in the following varied terms:
35.2.1
The respondents are interdicted from entering farm Zwartfontein 818,
registration division LR, Limpopo Province and farm
Overysel 815,
registration Division LR, Limpopo Province ( the property”);
35.2.2
The respondents are interdicted from interfering with or disturbing
the applicant’s operations at the property and
threatening or
inciting such conduct;
35.2.3
The respondents are interdicted from intimidating, threatening and/or
assaulting the applicant’s employees, contractors
and/or
suppliers or any other person visiting the property, and from
inciting such conduct.
35.2.4
The respondents are interdicted from damaging any property of the
applicant or the suppliers or any other person visiting
the property,
and from threatening or inciting such conduct.
35.2.5
The South African Police Service are authorized and directed to
demolish any and all illegal structures which may be erected
by the
respondents on the property and to remove any of the respondents who
access the property.
35.2.6
The Respondents to pay the costs of this application including that
of their counter application jointly and severally the
one paying the
other to be absolved.
_________________________
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARENCES
For the applicant: Adv
Sisilana
Briefed by:Edward
Nathan Sonnenbergs Inc
For the respondent:
Adv Ram
Briefed by: Denga Inc
Date of hearing: 12
th
March 2018
Date
of judgment: