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[2017] ZAGPPHC 829
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Langa and Others v Ivanplats (Pty) Ltd and Others (92090/2016) [2017] ZAGPPHC 829 (16 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
16/02/2017
Case
number: 92090/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
AUBREY
LANGA and 16
OTHERS
Applicants
and
IVANPLATS
(PTY) LTD and 19
OTHERS
Respondents
JUDGMENT
Murphy
J
1.
The first respondent ("lvanplats") has been granted
mining rights for the mining of platinum group metals, gold, silver,
nickel, copper, iron, vanadium and chrome by the Director-General of
the Department of Mineral Resources. A notarial mining right
was
executed on 4 November 2014 which describes the mining area as
"Macalacaskop 243 KR and Turfspruit 241KR, excluding all
graves,
graveyards, built-up areas and protected areas". It is common
cause that there are several graves on the land. For
that reason
lvanplats has taken steps to have the graves relocated.
2.
The applicants allege that South African Heritage Resources
Authority ("SAHRA") and the Limpopo Provincial Department
of Cooperative Governance, Human Settlement and Traditional Affairs
("COGHSTA") made administrative decisions on various
dates
to permit lvanplats to exhume and relocate the graves on the land in
order for the mining to go ahead. Mr Aubrey Langa, the
first
applicant, was advised by email in April 2016 that SAHRA had approved
the permits for the first respondent to relocate the
graves. Mr Langa
has lodged an appeal to the Chairperson of the Board of SAHRA against
the decision of SAHRA to grant the permits
to relocate grave sites.
According to the applicant's the appeal is pending and has not been
decided upon. The relocation of graves
continued as there was no
decision prohibiting it and for the most part has been completed.
3.
On 28 November 2016, the applicants sought and obtained, in
terms of Part A of their notice of motion, an
ex parte
order
on an urgent basis interdicting the first respondent ("lvanplats")
from proceeding with the relocation of graves
on the site, pending a
review (in terms of Part B of the notice of motion) of the decisions
of SAHRA and COGHSTA to grant permits
for the grave relocation. The
ex parte
order was granted in the form of a rule nisi, with a
return day of 26 January 2017, calling upon lvanplats to show cause
on the
return day why the interim interdict should not be made final.
lvanplats filed its answering affidavit in Part A on 24 January 2017.
The matter was set down irregularly in the urgent court on 26 January
2017 where the return day was extended and the application
was again
irregularly postponed to the urgent court in the week commencing 30
January 2017. According to the relevant practice
directive of this
court, opposed applications to discharge or confirm a rule nisi must
normally be set down on the opposed motion
court roll and not in the
urgent court. Be that as it may, in the interests of justice I opted
to hear the matter on 2 February
2017. After hearing argument, I
discharged the rule nisi and reserved judgment on the question of
costs. These are my reasons and
judgment on costs.
4.
The
ex parte order granted in the absence of lvanplats was by its nature
provisional and subject to variation or reconsideration
after hearing
all the parties.
[1]
The
applicants bore the onus before me of establishing that, had all the
facts before me been before the court when it issued the
ex parte
order, the interim interdict would still have been granted and should
continue to operate beyond the return day.
[2]
5.
The
requirements for an interim interdict are well-established. Firstly,
there must be (at a minimum) a prima facie right on the
part of the
applicant. Secondly, there must be a well-grounded apprehension of
irreparable harm if interim relief is not granted.
Thirdly, the
balance of convenience must favour the granting of interim relief.
Fourthly, there must be no other ordinary remedy
that is available to
give adequate redress to the applicant. These factors must be
balanced against one another. The stronger an
applicant's
prima
facie
right,
the less the need to rely on prejudice. Conversely, the weaker the
applicant's prospects of success, the greater the need
for the other
factors to favour him or her.
[3]
6.
lvanplats submitted that the applicants did not satisfy the
requirements for an interim interdict and that the rule nisi should
be discharged. In argument, it went somewhat further and argued that
the interdict sought was in fact a final interdict and that
the
applicants were obliged to prove a clear right and an injury actually
committed or reasonably apprehended. Where a final interdict
is
sought on the basis of a clear right, there is no requirement that
the balance of convenience must favour the grant of relief.
7.
The
contention that the interdict sought is final in nature rests on the
undisputed fact that the relevant permits will expire on
24 March
2017; and without any guarantee of renewal, the effect of the
interdict will finally extinguish the right of lvanplats
to remove
the graves in accordance with the permits. The submission is well
made. Consequently, the applicants are required to
establish a clear
right. The burden upon them is accordingly different. A court will
grant an interim interdict upon a degree of
proof less exacting than
that required for a final interdict. The applicant for an interim
interdict is merely required to prove
a right which, though
prima
facie
established,
is open to some doubt. The approach to the factual basis of the right
is for the court 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 should on those facts obtain
final relief at the trial. The facts set
up in contradiction by the
respondent should then be considered. If serious doubt is thrown upon
the case of the applicants they
may not succeed in obtaining
temporary relief, for the 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.
[4]
Where, however, the
applicant bears the onus of establishing a clear right then the facts
must be determined in accordance with
the principles enunciated in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd.
[5]
The
court must be satisfied that the applicant is entitled to final
relief on the facts stated by the respondent (excluding those
which
are wholly incredible or untenable) together with the facts in the
applicants' affidavits admitted by the respondent.
8.
lvanplats has raised a preliminary point of non-joinder. The
applicants state in the founding affidavit that there are four
individual
applicants who are opposed to the grave relocation
process. However, they fail to mention the fact that there are many
family members
who have consented to grave relocations and who
support the grave relocation process. lvanplats is currently in the
process of
implementing Phase 1 and Phase 1.5 of the grave relocation
process, which involves 94 graves belonging to 35 families. These are
the only graves for which lvanplats has obtained permits.
9.
The answering affidavit makes it plain that the vast majority
of families in the community support the grave relocation process.
They do so because there are a number of positive consequences
flowing from the relocation of the family graves, including that
the
graves will be moved to formal cemeteries which are situated closer
to the homes of the next-of-kin and will be better maintained
there.
lvanplats will provide tombstones for a number of graves which were
previously unmarked, as well as other resources to ensure
the
relocation is performed with appropriate dignity. Relatives of the
deceased have signed contracts, memoranda of understanding
("MOU's"),
with lvanplats in terms of which lvanplats agrees to carry the costs
of facilitating the exhumations and re-burial
ceremonies, including
the costs of new burial plots, coffins, the services of undertakers,
transport, refreshments and so on. These
costs may run into thousands
of rand.
10.
From the remaining 30 graves of the original 94 for which
permission to relocate has been granted in Phase 1 and 1.5 of the
relocation
process, there is undisputed consent from the next-of-kin
for 27 of them to be moved. Consent is only disputed in relation to 3
of the remaining graves. The interdict sought by the applicants aims
to restrain the relocation of all graves and thus will deprive
the
next of-kin who have consented of the substantial benefits to
which they are entitled under the MOU's. If the interdict
is granted,
lvanplats will be unable to implement the MOU that each next-of-kin
has concluded.
11.
The
common-law rules relating to obligatory joinder require that every
person who has a direct and substantial interest in any order
which
the court might make, should be joined as a party to the litigation.
Our courts have consistently refrained from dealing
with issues in
which a third party may have a direct and substantial interest
without either having that party joined in the suit
or, if the
circumstances of the case admit of such a course, taking other
adequate steps to ensure that its judgment will not prejudicially
affect such interests.
[6]
Once
it is shown that a necessary party has not been joined, a court will
not deal with the issues until joinder has been effected.
12.
As I have said, in the present matter, the next-of-kin who
have consented to the relocation of the graves and who have concluded
a MOU with lvanplats, will be affected if the rule nisi is confirmed.
They will lose substantial financial benefits. They accordingly
ought
to have been joined as respondents. They have not been; and on this
ground alone, the rule nisi must be discharged. However,
I am also
persuaded that the facts do not establish the existence of any clear
or
prima facie
right in terms of substantive law.
13.
Part B of the notice of motion indicates that the applicants
intend to review three decisions. The first is the decision of SAHRA
to grant lvanplats permits to relocate the graves. The second is the
decision of COGHSTA to grant permission for the exhumation
and
relocation of the graves. The third is an alleged decision taken by
an unidentified entity to grant lvanplats permission to
change the
land use of the mining right area from agricultural to industrial
mining use.
14.
The
removal of graves is governed by the National Heritage Resources
Act
[7]
and its Regulations.
Section 36(3) prohibits any person from disturbing or destroying
burial grounds and graves older than 60 years
which are situated
outside a formal cemetery administered by a local authority. No
person may exhume or remove any grave from its
original position. A
person may only do so with a permit issued by SAHRA or a provincial
heritage resources authority. Section
36(5) provides that SAHRA may
only issue a permit for the relocation of a grave if it has satisfied
itself that the applicant for
the relocation of the grave has made a
concerted effort to contact and consult communities and individuals
who by tradition have
an interest in such grave or burial ground; and
reached agreements with such communities and individuals regarding
the future of
such grave or burial ground.
15.
In paragraph 17 of the founding affidavit, the applicants
allege that the decision of SAHRA was unlawful because it had already
made a decision in respect of the grave relocation when it responded
to the environmental authorisation prior to April 2016, and
was
therefore
functus officio
and unable to issue the permits. The
doctrine of
functus officio
means that once an administrative
body has made a final decision, it has discharged its powers and
generally has no competence to
reconsider that decision at a later
stage. I agree with the respondents that SAHRA had not made any
decision at all before it granted
the permits to lvanplats in March
2016. The Limpopo Department of Economic Development, Environment and
Tourism granted an environmental
authorisation to lvanplats on 27
June 2014. Section 38 of the National Heritage Resources Act imposes
various requirements in the
case of developments. Section 38(8)
provides that those requirements do not apply to developments that
are governed by other environmental
legislation. This is subject to
the proviso that the consenting authority must ensure that the
evaluation fulfils the requirements
of the relevant heritage
resources authority in terms of subsection (3), and any comments and
recommendations of the relevant heritage
resources authority with
regard to such development have been taken into account prior to the
granting of the consent. It follows
that SAHRA's statutory role in
respect of the environmental authorisation granted by the Limpopo
Department of Economic Development,
Environment and Tourism was
limited to making comments and recommendations. The Department was
required to take those comments
and recommendations into account
before granting the environmental authorisation. SAHRA provided
comments and observations in a
letter of 8 November 2013. However, it
did not take a decision in terms of section 36 of the National
Heritage
Resources Act. The first time
it took a decision was when it granted the permits. The doctrine of
functus officio
therefore finds no application at all. SARHA
was entitled to consider lvanplat's application for the permits and
to grant such permits,
as it did on 24 March 2016.
16.
The second basis for review advanced in the founding papers
was that lvanplats had not properly consulted the community. The
applicants
allege that SAHRA should not have granted lvanplats the
permits to proceed with the grave relocation because lvanplats had
failed
adequately to consult with the affected community members.
17.
Section 36(5), as mentioned, provides that SAHRA may only
issue a permit for the relocation of a grave if it has satisfied
itself
that the applicant for the relocation of the grave has:
"(a)
made a concerted effort to contact and consult communities and
individuals who by tradition have an interest in such grave
or burial
ground; and
(b)
reached agreements with such communities and individuals regarding
the future of such grave or burial ground."
Regulation
40 of the Regulations provides as follows:
"(1)
The applicant must consult any interested parties identified through
the process in regulation 39 regarding the effect
of the proposals on
the grave or burial ground, with the aim of reaching agreement about
the future of such grave or burial ground.
(2)
...
(3)
If the consultation under sub regulation (1) fails to result in
agreement, the applicant must submit records of the consultation
and
the comments of all interested parties as part of the application to
the provincial heritage resources authority."
18.
The answering affidavit describes the process that was
followed by lvanplats and PGS Heritage in order to ensure that all
family
members were identified, consulted and informed of progress
regarding the relocation of the graves. It is apparent that lvanplats
made a concerted effort to identify the descendants and family
members of the persons buried in the graves, and any other person
or
community by tradition concerned with such grave or burial ground. It
identified and recorded each possible grave through extensive
consultation with community members, and the use of GPR surveys and
test trenching, obtained written consent by the authorised
next-of-kin and concluded written agreements with them. It met with
all the families and next-of-kin of affected graves to discuss
ceremonial requirements and practical arrangements. Once an
exhumation schedule was prepared, it informed all family
representatives
of the date of the exhumation and ensured that they
were able to be present. In addition to the extensive consultation
with the
direct next-of-kin of the graves, lvanplats consulted with
the Mokopane Traditional Council and the Tshamahansi Council, and
published
notices regarding the relocations in a national and local
newspaper. It therefore submitted that it had complied with the
requirements
of the National Heritage Resources Act and the
Regulations.
19.
The applicants have not challenged the averments in the
answering affidavit in a meaningful way, at least in so far as they
relate
to the Phase 1 and Phase 1.5 process of relocation, and I am
accordingly obliged to accept them as proven. I am persuaded that
lvanplats complied with its obligations under the Act.
20.
The founding affidavit does not set out any grounds of review
to justify an order reviewing the decision of COGHSTA to grant
permission
for the exhumation and relocation of the graves. The
applicants have made out no case at all in relation to such relief
and are
accordingly unable to establish a
prima facie
right on
this basis. Likewise, the notice of motion does not identify the
decision for changed land use referred to in the prayers
and there is
no reference to it in the founding affidavit. lvanplats has not
applied for any change in the zoning or land use of
the relevant
properties. The land in question is designated as "Mining 2".
These averments in the answering affidavit
have not been denied in
the reply. The applicants are accordingly unable to establish a
prima
facie
right on this basis either.
21.
lvanplats
also submit that the application to review that SAHRA decision is out
of time. SAHRA issued the permits on 24 March 2016.
Mr Langa was
advised by SAHRA on 4 April 2016 that the permits for the grave
relocations had been approved. The application was
instituted on 28
November 2016. The application was accordingly made outside the
180-day period for instituting review proceedings
as required by
section 7(1) of the Promotion of the Administrative Justice Act
[8]
("PAJA"). The applicants have not in Part B of their notice
of motion sought condonation for their delay in terms of
section 9 of
PAJA. lvanplats accordingly submitted that without a proper
condonation application before me, I am unable to determine
that the
review of SAHRA's decision has prospects of success. For that reason
too, it maintained, the applicants have failed to
establish a
prima
facie
right.
22.
The applicants argued that the question of condonation in
respect of the late lodging of the review application is only
relevant
in respect of the review application and not this
application and that the interests of justice on these facts would in
any event
permit condonation. In their view, the importance of the
constitutional rights involved will warrant the grant condonation.
The
submission misses the mark because it fails to appreciate that
the failure to file an application for condonation in the main
application
means there are no factual averments before me explaining
the delay and justifying the grant of condonation. This court may not
speculate as to the potential merits of a condonation application
which has not been made. Absent a proper condonation application
it
cannot be said that the applicants have established a
prima facie
right to the relief they seek.
23.
As stated at the outset, Phase 1 and Phase 1.5 of the grave
location process involve 94 graves. The process of exhumation and
burial
began on 14 November 2016. So far 54 graves were relocated and
10 were discovered to have no remains. This left 30 graves which
have
not yet been relocated. The relocation of these graves was halted on
the issuing of the rule nisi. And, as also mentioned,
according to
lvanplats in relation to 27 of the 30 graves in question, the
next-of-kin have validly consented to relocation. This
averment is
baldly denied in the replying affidavit. Absent a fuller denial there
is no basis for concluding that the respondent's
averment is
un-creditworthy or untenable to the extent that it must be ignored.
24.
Only four of the seventeen applicants are alleged to be
next-of-kin relatives of an affected grave in Phases 1 and 1.5. The
first,
Ms Anna Mphoshi, failed to attach a confirmatory affidavit and
the grave in which she is alleged to have an interest does not form
part of the Phase 1 or Phase 1.5 relocation processes for which the
permits have been issued. This has not been denied by the applicants.
The seventh applicant, Mr Daniel Phele, has an interest in a family
grave, but he appears at an earlier stage to have consented
to the
relocation and other family members have consented to the relocation
and stand by their consent. On the respondent's version,
Mr Daniel
Phele is a sole dissenter, while the rest of the family have
consented sufficiently, as contemplated by the legislation.
The
applicants have not sought to join the other Phele family members as
respondents, and any claim by Mr Daniel Phele must be
non-suited for
non-joinder. The balance of convenience is also against him. The
fifth applicant, Ms Maria Maphago, originally gave
her written
consent by way of an MOU upon which she has reneged. There is a
dispute of fact on the papers about whether the graves
in which she
may have an interest in fact exist. The averment of the respondent is
that as a consequence of Ms Maphago reneging,
test excavations were
not performed and there is no evidence that the graves exist. The
applicants have put up no evidence or creditworthy
averment that
counters this allegation. The eight applicant, Ms Margaret Tsweleng,
is a member of the Moatshe family who identified
three graves, two of
which have already been relocated with the consent and full
participation of the Moatshe family, in particular
the closest
next-of-kin. They deny that Ms Tsweleng has authority to dispute
their consent. Again there is little beyond unsubstantiated
denials
bringing these averments into question.
25.
The evidence in relation to these four applicants is therefore
simply insufficient to justify the grant of a final interdict
restraining
the relocation process in respect of the remaining 30
graves or of those in which they claim to have an interest.
26.
In
their heads of argument, the applicants took a different tack. They
built upon two cryptic averments in paragraphs 13 and 38
of the
founding affidavit which record that the Minister in granting the
mining right excluded graves from the mining area defined
in the
notarial deed. No averment is made that lvanplats is unlawfully
seeking to vary the mining right by mining outside the defined
area
or that mining where graves were located prior to relocation was
excluded and thus unlawful. As I understand the point, the
applicants
essentially rely (without specifically referencing the relevant
provisions) on section 25(2)(d) of the Mineral Resources
and
Petroleum Act
[9]
("the
MRPA") which provides that the holder of a mining right must
comply with the terms and conditions of the mining
right.
27.
It will be recalled that lvanplat's mining right described the
mining area to which the mining right applies as
"Macalacaskop
243 KR and Turfspruit 241 KR
-
Excluding all graves,
graveyards, built up areas and protected areas
". The mining
right therefore does not include graves and graveyards.
28.
It is only the Minister who has the power to grant mining
rights as well as vary or extend mining rights under the MRPA.
Moreover,
Clause 4.1 of the mining right provides that the terms of
the right may not be amended or varied without the written consent of
the Minister. The decision by SAHRA and COGHSTA to approve the
permits for exhumation and relocation of ancestral graves, according
to the applicants, is an extension and amendment of the mining right.
This, they maintained, is not something SAHRA or COGHSTA
has the
power to do, only the Minister has the power to vary the extent of
the mining right. The applicants submitted that this
provides a basis
for review in terms of section 6(2)(f) and (i) of PAJA which permits
judicial review of an administrative action
if the action contravenes
a law or is otherwise unlawful.
29.
The argument misses the essential point that after the grave
relocation process, lawfully conducted under the SAHRA permits, there
will be no graves in the mining area. There is no amendment to the
mining right. The prohibition against mining in areas where
there are
graves still stands. Once the graves are lawfully relocated the
prohibition will no longer have application to those
areas where
graves previously existed.
30.
In the premises, the applicants have failed to establish a
clear right or a
prima facie
right entitling them to an
interdict. There is consequently no need to consider the other
requirements. Suffice it to say that the
balance of convenience
favours lvanplats. The Platreef underground mine represents one of
the most significant foreign direct investments
into the South
African economy in recent years. It has the potential to be developed
into the largest underground platinum mine
in the world, yielding
very significant benefits to the South African economy in general and
the economy of Mokopane and the Limpopo
Province in particular. The
confirmation of the rule nisi would cause a delay in the construction
and development of the project,
because the development of the mine
surface infrastructure cannot proceed unless the graves are
relocated. A delay will cause significant
prejudice to lvanplats and
the broader community.
31.
As already explained, the overwhelming majority of next-of-kin
have consented to relocation of their family graves. They have done
so in order to secure benefits from the fact that the graves are
being moved to formal cemeteries which are situated closer to
their
homes. Moreover, lvanplats and the local communities have concluded a
broad-based black economic empowerment transaction
allowing a
significant level of economic participation to historically
disadvantaged South Africans. lvanplats is bound by the
provisions of
a Social and Labour Plan ("SLP") forming part of the terms
and conditions of its mining right. The specific
projects that
lvanplats has committed to support in terms of its SLP include: adult
basic education and training for employees
and the broader community;
core technical and non technical skills for employees; the
establishment of a community training
centre; mentorship, bursaries,
learnerships and internships, mainly for employees or prospective
employees, but also including
a limited number of bursaries for
community members to study disciplines other than those typically
required in the context of
a mining business; the upgrading of the
curriculum of the Limpopo University's geology programme; sanitation
for schools and community
clusters; and the development of small-
medium- and micro-enterprises. If the rule nisi were to be confirmed,
these benefits of
the SLP will be delayed.
32.
With
regard to the question of costs the applicants have prevailed upon me
not to award costs should they be unsuccessful. While
the application
for an interdict was misconceived, it was motivated by a legitimate
assertion of cultural and traditional rights.
The removal of
ancestral graves to make way for mining and commercial development is
a sensitive matter, which often will benefit
from an independent
assessment. Those deeply affected and aggrieved by a progress they
might not prefer should not be discouraged
from pursuing
constitutional claims for fear of being mulcted in costs.
[10]
I am thus disinclined to make a costs award.
33.
It will be convenient to confirm the order I made in court on
2 February 2017 by repeating it. The following orders are issued:
33.1
The rule nisi issued by this court on 28 November 2016 is discharged.
33.2
There is no order as to costs.
JR
MURPHY
JUDGE
OF THE HIGH COURT
Date
Heard:
2 February 2017
Counsel
for the
Applicants:
Adv C van der Linde, Adv M Shata
Instructed
by:
Hogan Lovells South Africa Inc.
Counsel
for the Respondents:
Adv A Cockrell SC, Adv F Hobden
Instructed
by:
Falcon and Hume Attorneys
Date
of
Judgment:
16 February 2017
[1]
Thint
(Pty) Ltd v National Director of Public Prosecutions and Others,
Zuma and Another v National Director of Public Prosecutions
and
Others
2009
(1) SA 1
(CC);
2008 (12) BCLR 1197
(CC) at para 8.
[2]
Banco
de Mocambique v Inter-Science Research and Development Services
(Pty) Ltd
1982
(3) SA 330
(T) at 3328-C
[3]
Eriksen
Motors
Ltd
v Protea Motors
1973
(3) SA 85
(A) at 691F;
Radio
Islam v Chairperson, IBA
1999
(3) SA 897
(W) at 903G
[4]
Webster
v Mitchell
1946
(1) SA 1186
(W) at 1189; and Goo/
v
Minister of Justice
1955
2 SA 682
(C) at 688.
[5]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634
[6]
Amalgamated
Engineering Union v Minister of Labour
1949
3 SA 637
(A) at 659
[7]
Act 25 of 1999. Regulations published in Government Notice No R 548
in Gazette No 21239, June 2000.
[8]
Act 3 of 2000
[9]
Act 28 of 2002.
[10]
Biowatch
Trust v Genetic Resources
2009
(6) SA 232
(CC).