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[2017] ZALMPPHC 4
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Ormin Coal (Pty) Ltd v Niemcor Africa (Pty) Ltd and Others (762/2017) [2017] ZALMPPHC 4 (17 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
PROVINCIAL DIVISION, POLOKWANE)
CASE
NO: 762/2017
In
the matter between:
ORMIN
COAL (PTY)
LTD
APPLICANT
and
NIEMCOR
AFRICA (PTY) LTD
FIRST RESPONDENT
(
in
liquidation
)
JOHANN
NIEMOLLER
SECOND RESPONDENT
ALFRED
MALEBA
THIRD RESPONDENT
PATRICK
LIGHTFOOT
FOURTH RESPONDENT
DEPARTMENT
OF MINERAL
RESOURCES
FIFTH RESPONDENT
SAPS
BURGERSFORT
SIXTH RESPONDENT
RICHARD
KEAY POLLOCK NO
SEVENTH RESPONDENT
RALPH
FARREL LUTCHMAN NO
EIGHTH RESPONDENT
HILLARY
ANNE PLAATJIES NO
NINETH RESPONDENT
JUDGMENT
N
F KGOMO J
INTRODUCTION
[1]
On the 7 February 2017 the applicant caused a notice of motion herein
to be issued, calling upon the respondents to answer to
the following
allegations:
1.1
Part A
thereof:
1.1.1.That
the applicant’s non-compliance with the rules of this Court in
respect of service and the hearing of this application,
be condoned
and that this matter be regarded as urgent in keeping or in terms of
Rule 6(12) of the Uniform Rules of Court.
1.1.2.That
the respondents or anyone acting through them be interdicted from
interfering with the operations of and the access
of the 1
st
applicant (sic) to the property described as Dump 5, The Farm
Twyfelaar 119, Sekhukhune, Limpopo, pending the outcome of the
determination
of the application for the relief sought in Part B of
this application.
1.1.3.That
the 2
nd
,
3
rd
and 4
th
Respondents be ordered to pay the costs of Part A of this
application.
1.1.4.For
further and/or alternative relief.
[2]
At the hearing of Part A of this application it became common cause
that argument and submissions in Part A may also dispose
of issued
raised in Part B of this application. This Court then ordered the
counsel for both sides to tailor their argument in
such a way that
Part B issues are also ventilated. However, there was a rider: should
that need arise, this Court may only determine
Part A whereafter
time-lines may or would be set out relating to the filing of
further affidavits necessary for the determination
of issues
pertaining to Part B.
[3]
For the above reasons, it is necessary to set out the terms and
prayers of Part B of this application. These are:-
3.1.
An order declaring that the applicant is entitled to remove or in any
way or fashion deal with the dumps found
on the farm Twyfelaar 119,
Sekhukhune, Limpopo.
3.2.
An Order that 1
st
to 6
th
respondents be ordered
to pay the costs of the application on attorney and client scale, and
3.3
Further and/or alternative relief.
[4]
It deserves mention here that Part B relates to or talk about the
entirety of the Farm Twyfelaar, 119, Sekhukhune, Limpopo whereas
Part
A only relates to Dump 5.
History
of this matter prior to High Court Set down
[5]
It is so that the applicant instituted urgent proceedings in the
Magistrates Court Tubatse, district Burgersfort for a spoliation
order asking for orders against the only respondent thereat,
Niemeor Africa (Pty) Ltd ( the First Respondent in our present
application) in the following terms:
5.1.
To restore
possession of and access to Dump 5, Twyfelaar Farm to the applicant;
5.2.
Directing
or instructing or ordering the Sheriff of Tubatse and his deputies to
restore the applicant’s possession of and
access to Dump 5,
Twyfelaar Farm, Limpopo;
5.3.
Mandating
the Sheriff to ask for assistance of or from the SA Police Services
(“SAPS”) at Tubatse and/or Moroke
Police Station
when so executing the Court order;
5.4.
Interdicting
the respondent from depriving the applicants of possession of same;
5.5.
That a rule
nisi be issued calling upon the respondent and all interested parties
to show cause why this order should not be made
final on the return
date, being 7 February 2017 at 09h00 or so soon thereafter as counsel
may be heard;
5.6.
That the
rule nisi operate as an interim interdict;
5.7.
Costs of
suit; and
5.8.
Further
and/or alternative relief.
[6]
In that application, an entity called Bakgalaka ba Selala Development
Trust was cited as the 2
nd
applicant.
[7]
The application was opposed by the respondent there-at. It filed an
answering affidavit and the applicants filed a replying
affidavit.
[8]
It also deserves mention here that the 2
nd
applicants in the Tubatse application did not play any active role in
the application. That entity is not cited as a party in the
application before this High Court. It is referred to in the papers
in the High Court application, not as Bakgalaka –ba-Selala
Development Trust, but as Bakgatla-ba-Selala Development Trust.
[9]
The Tubatse application was finalized on 25 January 2017 when the
Magistrate ruled that the Magistrates Court did not have jurisdiction
to hear it as the value in issue exceeded the permitted limit for
Magistrates Courts.
[10].
Hence the applicant, this time alone, instituted the present
proceedings in this Court against, not one, but nine (9) respondents.
The 7
th
, 8
th
and 9
th
respondents are the appointed joint liquidators of the 1
st
respondent.
[11]
The 5
th
to 9
th
respondents have not opposed the application, which is understandable
because they were cited as affected or interested parties,
only even
though the applicant did not explicitly say so.
First
to Fourth Respondent’s opposition
[12]
The 1
st
to 4
th
respondents raised three
points
in limine
, namely, lack of urgency, reliance on an invalid
founding affidavit that was not attested to or attested to as
required by law,
and lack of
locus standi
to institute
the proceedings.
Applicant’s
affidavit
[13]
The respondents alleged that the applicant’s Founding Affidavit
was not a proper affidavit as it did not comply with
the Justices of
the Peace and Commissioners of Oaths Act 16 of 1963.
[14]
The commissioning officer attesting that affidavit stated that the
deponent of the applicant’s Founding Affidavit, Mr.
Ian Gerrit
Van der Walt is a female person which is incorrect because he is a
male. This brings up serious uncertainty about the
person who
presented himself or herself before the Commissioner of Oaths to
commission the Founding Affidavit.
[15]
The respondents submitted that this was a fatal defect that vitiated
the application. The applicant argued that this was an
innocent
typographical error.
[16]
It is so that if the deponent is a male but the certification says
she is female, that deponent’s statement will have
a problem of
being accepted. If the document has a “
he
” and a
“
she
” alongside each other but one was not
scratched out, that may be accepted to be a mere innocent omission.
In such circumstances
the affidavit is accepted.
See
Absa Bank v Botha No and Others 2013 ZAGPPHC 163
[17]
Furthermore, the applicant’s “affidavit’s”
deponent did not mention his or her designation. Regulation
4(2)(b)
issued subject to the Justices of the Peace and Commissioner of Oaths
Act (supra) decrees that the attesting officer’s
designation is
an important part of the equation under those circumstances.
[18]
On this ground alone the respondents also ask that this application
be dismissed.
Applicant’s
case
[19]
The high-water mark of the applicant’s case is that –
19.1.
They were lawfully in possession of Dump 5 when they were forcibly
removed by the Sheriff and the police;
19.2.
The dump are movable assets capable of being lawfully occupied
irrespective of whether the State may be the owner;
19.3.
The first respondent, as a finally liquidated entity, is not capable
of continuing to work on the dumps; and
19.4.
There is sufficient urgency for this matter to be heard on an urgent
basis in terms of Rule 6 (12) of the Uniform Rules of
Court.
Respondent’s
Case
[20]
According to the respondent, among others-
20.1
The applicants are relying on non-existent authority to work on Dump
5 as the Selala Development Trust, be it called
Bakgalaka-ba-Selala
Development Trust or Bakgatla-ba-Selala Development Trust, disavowed
and/or distanced themselves from any agreement
with it (Applicant).
20.2.
The 1
st
respondent has validly issued permits to work on Dump 5.
20.3.
Despite the fact that 1
st
respondent was liquidated in 2012, its joint liquidators still have
authority and powers to continue its business affairs, more
so that
the Department of Minerals and Energy Affairs, in its letter dated 19
August 2013, intimated that since the applications
to renew expired
permits were still under consideration, the expired permits remain in
force until a decision had been taken. Such
decision has not yet been
taken.
20.4.
The applicant(s) were not evicted or removed from the Dump by the 1
st
respondent but by the owner thereof, the Department of Minerals and
Energy Affairs (“DMRS”) acting in terms of the
Minerals
and Petroleum Resources Development Act (“DMPRA”) 28 of
2002 and/or the police duly mandated.
Evaluation
[21]
The respondents raised two points
in limine
to the
application, namely:
21.1.
Lack of jurisdiction on the basis that both the applicant an the 1
st
respondents’ registered addresses of business are situated in
Gauteng, not Limpopo, and that-
21.2.
In the event of the applicant relying on the fact of the whole cause
of action having arisen within this Court’s jurisdiction
as its
claim to jurisdiction, then this Court should find that the
applicant(s) have failed to advance grounds or aver in the papers
as
required by the Rules of Court, that this is the case.
[22]
The first issue to be decided is whether or not the applicant(s) hold
or have valid permits to mine or deal with Dump 5, Twyfelaar,
Sekhukhune.
[23]
They do not have those. They rely on some agreement they allegedly
have with a Selala tribe’s development trust. As already
alluded to, Selala Development Trust put it on record that they have
dissolved the Trustees of the Trust because some or all of
them
engaged in unauthorized dealings with the applicant(s) in their
names.
They
also stated that they never mandated or authorized any engagement in
legal proceedings including these ones we are dealing
with.
[24]
It is common cause that at this stage, the first respondent is in
possession of Dump 5, Twyfelaar Farm, Sekhukhune District.
That
they do so by authority of mining permits 52/2009 (LP 39/5/1/2/956)
is also not in dispute.
[25]
Consequently, the applicant’s contention that it was in
peaceful and undisturbed possession of Dump 5 when it instituted
these proceedings cannot be correct.
[26]
The applicant does not have any valid permit to mine or deal with
Dump 5, Farm Twyfelaar, Sekhukhune.
[27]
Ownership of Dump 5 on the Farm Twyfelaar, Sekhukhune vest in the
State in keeping with the law. The Selala tribe may be situated
next
to it or on the land in question. However, that does not without more
make them the owners. As such, they cannot validly enter
into mining
or related environmental activities without the knowledge and
permission or authorization from “DMR” (Department
of
Mineral Resources). The fact that the Bakgalaka or Bakgatla-ba-Selala
Development Trust distance themselves from the applicant
nullifies
the latter’s claim to legitimacy of possession in these
circumstances.
[28]
The above militates against the applicant’s application to be
placed urgently in possession of the disputed property
or land.
[29]
This Court accepts that the issues raises herein require urgent
attention. As such the matter was correctly enrolled in the
urgent
Court.
[30]
It also deserves mention here that the applicant had earlier on
instituted the same proceedings, styled spoliation proceedings,
in
the Tubatse Magistrate Court, Burgersfort. The case was discharged in
that Court as the Magistrate ruled that that Court did
not have the
jurisdiction to deal with it.
[31]
In its replying affidavit the applicant submitted that the
liquidation of the 1
st
respondent deprives its directors and/or employees to act on its
behalf. That may be partly true. However, it is also true that
three
joint liquidators have been appointed to administer the affairs of
the 1
st
respondent. As such, in spite of the liquidation of the 1
st
respondent, the management of its affairs, including the activities
on or in Dump 5, Twyfelaar Farm, Limpopo still validly vest
in its
joint liquidators.
[32]
It is also correct that in terms of Section 56(d) of the Insolvency
Act mining and/or mineral rights held by a company prior
to
liquidation should lapse. However, in this instance, the existing
permits held by or on behalf of the 1
st
respondent moved to its joint liquidators.
[33]
Counsel for the applicant relied on several judgments of the Courts
in support of its contentions. However, those decisions
cannot avail
the applicant as the applicant has proved no right to be in
possession of or working on Dump 5, Twyfelaar 119, Limpopo.
[34]
Counsel for the respondents relied on several judgments of the Courts
in support of its contention that the applicant’s
founding
affidavit was not properly commissioned. That may have
substance.
Ex
facie
that document it is not clear whether a man or a woman is involved.
The commissioning official’s designation is not clearly
set out
there-at. On that ground the applicant’s founding affidavit
stands to be adversely affected. That also impacts on
its
acceptability and/or use-ability in these proceedings.
[35]
The fact whether Dump 5 is a movable or immovable asset is of
academic interests when the totality of circumstances herein
are
considered.
Conclusion
[36]
In the circumstances, the question to be answered is whether or not
the
rule
nisi
issued on 20 January 2017 should be upheld or whether the applicant
has made out a case for the grant of the orders sought when
regard is
had to the fact that the Tubatse Court proceedings are quashed.
ORDER
[37]
The following order is made:
37.1.
The application is dismissed with costs.
_________________________
N
F KGOMO J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
Appearances
1.
For the
applicant
:
Adv. M Schenehager
2.
Instructed
by
:
Zwiegers Attorneys
C/o
Espag Magwai
Polokwane
3.
Telephone
Number
:
015 – 297
5374/9
4.
For the
Respondents
:
Adv. C.R Van
Heerden
5.
Instructed
by
:
DRSM Attorneys
C/o
Mashao Attorneys
Polokwane
6.
Telephone
numbers
:
015-291 5729
7.
Date of
Argument
:
09 February 2017
8.
Date of
Judgment
:
17 February 2017