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[2017] ZAGPPHC 108
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RCL Foods Pty Ltd v Makole Rescources Pty Ltd and Others (8626/2016) [2017] ZAGPPHC 108 (14 March 2017)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
D
I
VISION,
PRETORIA)
Case
no. 8626/2016
Date:
14/3/2017
In
the matter between:
RCL
FOODS CONSUMER PTY
LTD Applicant
en
MAKOLE
RESCOURCES PTY
LTD First
Respondent
BLACK
ROYALTY MINERALS PTY LTD
Second Respondent
THE
MINISTER OF MINERAL RESOURCES
Third
Respondent
THE
MINISTER OF WATER
AFFAIRS
Fourth Respondent
THE
MINISTER OF ENVIRONMENTAL AFFAIRS
Fifth Respondent
THE
CITY OF TSHWANE: CITY PLANNING AND
DEVELOPMENT
DEPARTMENT Sixth
Respondent
MEC
FOR ECONOMIC DEVELOPMENT,
ENVIRONMENT,
AGRICULTURE AND RURAL
DEVELOPM
ENT
Seventh
Respondent
J
U
D
G
M
ENT
RABIE,
J
1.
The applicant approached the court in terms of a Part A and a Part B
of the Notice of Motion. Part A was heard on an urgent basis
and on 8
March 2016 the court made an order by agreement between the parties.
Presently before the court is Part B of the Notice
of Motion in which
a final interdict is prayed for preventing the first respondent from
conducting coalmining and related activities
on certain portions of
land pending the first respondent obtaining certain authorisations
required by legislation and a rezoning
of the properties by the Local
Municipality to a zoning which permits mining on the said properties.
2.
The background to the matter can briefly be stated as follows: The
applicant conducts the business of a chicken rearing farm
on land
adjacent to land belonging to the second respondent and on portions
of which the first respondent is conducting mining
activities. The
applicant seeks an order interdicting the first respondent from
conducting coalmining and related activities on
Portions 72, 73, and
78 of the farm Wachtenbietjieskop 506 JR in the district of
Bronkhorstspruit and on the balance of the area
of Portions 71 and 77
which are not covered by a mining permit in respect of each of the
two Portions.
3.
The applicant's case is that the first respondent is conducting
mining operations which are unlawful for the reason that it does
not
have the required authorisations, permissions and licences required
for its operations. The applicant has noted an internal
appeal
against the granting of the mining permits and same is still pending.
According to the applicant the present application
before this court
is aimed at preventing the first respondent from mining outside of
the permitted areas and, in respect of all
areas, to do so without
the additional authorisations and licences it requires before mining
may lawfully commence.
4.
According to the applicant a number of authorisations are required in
addition to the mining permits in order for the mining
and associated
activities to be conducted lawfully. In this regard the applicant's
case is that the first respondent does not have
a mining right to
carry out coalmining and related activities outside the permitted
areas of Portions 71 and 77 and on Portions
72, 73 and 78; an
environmental authorisation authorising mining activities on the land
in terms of the National Environmental
Management Act, Act 107 of
1998 ("NEMA"); a waste management licence or an integrated
environmental authorisation in
terms of the National Environmental
Management: Waste Act, Act 59 of 2008 ("the Waste Act"); a
Water Use Licence in terms
of the National Water Act, Act 36 of 1998;
and a local authority consent for the use of the land for coalmining
activities in terms
of the Tshwane Town Planning Scheme.
5.
The first respondent did obtain a Water Use Licence but the applicant
entered an appeal against the granting of that licence.
The appeal is
opposed but according to the applicant the Water Use Licence is
inoperative due to the pending appeal against its
grant.
6.
During the hearing of Part A of the Notice of Motion a number of
issues were addressed by the order of the court such as the
mining
and related activities in areas not covered by the two
aforesaid permits on portions 71 and 77, the removal
of coal
and soil stockpiles outside of the permitted areas specifically on
Portions 72 and 73, and measures to be taken to remove
and/or
remediate water stored outside the permitted areas specifically on
portions 72 and 73. Consequently the respondent is not
carrying out
coalmining on that land and insofar as it had stockpiles of coal and
soil for rehabilitation purposes, which it was
removing in terms of
the previous court order that was granted by agreement on 8 March
2016, the respondent is no longer in contravention
of the MPRDA.
7.
Apart from the main application in Part B there was also an
application by the first and second respondents to file further
affidavits. That application was granted and the applicant filed an
affidavit in reply thereto. What remains is the issue of costs.
There
was also a further application to remove the second respondent as a
party to the main application. That application was not
persisted
with by the first and second respondents and only the issue of costs
remains.
8.
As far as the main application is concerned the first and second
respondents ("the respondent") opposed the relief
on a
number of grounds. Those are, inter alia, the following: The
requirements for final interdictory relief have not been satisfied;
the same relief has been sought by way of an appeal which is
currently pending; the internal remedies provided for by the Mineral
and Petroleum Resources Development Act, Act 28 of 2002 ("MPRDA")
have not been exhausted; the applicant does not have
locus standi to
bring this application; a number of serious disputes of
fact exist which cannot be adjudicated on the
affidavits; in respect
of the final interdict the applicant has failed to prove a clear
right, an injury actually committed or
reasonably apprehended and the
absence of adequate alternative remedies.
9.
I do not intend to refer to all the issues addressed by the parties
in their respective affidavits but only to those issues which
in my
view determine the fate of this application.
10.
The first issue relates to the disputes of fact. The respondent
admits that at the time it commenced mining activities it did
not
have an environmental authorisation authorising mining activities on
the land. This was, according to the applicant, a prerequisite
for
lawful mining by the respondent. However, according to the
respondent, at the time when it commenced with its mining activities
during May 2014, it was not a requirement in terms of the MPRDA to
have an environmental authorisation before commencing mining
activities. In terms of section 5 (4) of the Act, which was still in
effect at the relevant time, the requirement was for the respondent
to have an approved Environmental Management Plan (EMP). The
respondent did have an EMP which it attached to the papers.
11.
Secondly, the respondent admitted that it did not have a waste
management licence (WML) or an integrated EA, but stated that
it was
not a requirement for it to have one before it commenced mining
activities. The National Environmental Management: Waste
Amendment
Act, 26 of 2014, and the National Environmental Management Laws
Amendment Act, 25 of 2014, introduced the requirements
of the waste
management licence but these Acts only became operational after the
respondent commenced mining activities during
May 2014.
12.
In paragraph 49 of the applicant's founding affidavit a number of
activities were listed which, according to the applicant,
required
authorisation before such activities could commence under the current
listing notices GNR 943 and 985 of 4 December 2014.
The respondent
stated that these listing notices do not apply to the respondent as
they only came into effect on 4 December 2014
and had no
retrospective effect. Consequently the activities with which the
respondent commenced during May 2014 did not require
these
authorisations before such commencement.
13.
The respondent contended that at the time when it commenced its
mining activities, the commencement and carrying out of coalmining
and related activities was lawful in terms of statute, subordinate
legislation or regulation if it had a mining permit, an
approved EMP and a Water Use Licence. The respondent complied with
the first two requirements and a Water Use Licence was subsequently
granted. Consequently the respondent was currently operating its
mining operations lawfully. I shall refer to the Water Use Licence
below.
14.
The applicant based its case on the allegation that the respondent
commenced its mining operations in August or October 2015.
If this
were to be correct, the permissions, licences and consents referred
to by the applicant would, so it appears, be requirements
for lawful
mining by the respondent. However, if the respondent's version were
to be accepted, these requirements did not apply
to it. The applicant
alluded to certain facts as support for its contention that the
mining operations commenced in August 2015.
As mentioned, this was
denied by the respondent and in a supplementary affidavit facts were
presented to support the contention
that mining operations commenced
during May 2014. A finding as to the real date of the commencement of
the mining operations is
thus crucial for purposes of the present
application.
15.
Another attack by the applicant against the respondent's operations
is based on the Tshwane Town Planning Scheme of 2008 as
revised in
2014. The Scheme constitutes subordinate legislation. According to
the applicant Potions 71 and 77 constitute land zoned
for
undetermined use under the Scheme and may be used only with the
consent of the municipality if that use is not described in
Columns 3
and 5 of Table B. Coal mining and related activities are not
described in Columns 3 and 5 and consequently, so the applicant
submitted, the respondent was required to obtain the consent of the
Municipality before it could conduct coalmining on portions
71 and
77. It is common cause that the respondent did not obtain such
consent.
16.
The respondent denied the aforesaid allegations and stated that the
applicable Town Planning Scheme over the property is the
Peri Urban
Town Planning 1975 Scheme read together with the Town Planning and
Townships Ordinance 15 of 1986. According to the
respondent the 2008
Tshwane Town Planning Scheme revised in 2014, incorporated the
Wachenbietjeskop area on 13 November 2014, which,
according to the
respondent, is seven months after the respondent had been issued with
the aforesaid mining permits. As the application
of this Scheme is
not retrospective, the respondent is, in terms of the Town Planning
and Townships Ordinance 15 of 1986, exempted
from complying with the
new Town Planning Scheme for a period of 15 years.
17.
I have considered the facts presented by the parties and I have also
considered the submissions as to the veracity of such facts
and also
as to what conclusions should or could be drawn from such facts. I am
satisfied that the disputes regarding these issues,
which include the
dispute as to the date upon which the respondent commenced its mining
and related activities, cannot be resolved
on the affidavits before
the court. This court can therefore not come to a finding regarding
the lawfulness of the mining operations
in respect of the
requirements mentioned above and as further alluded to in the
affidavits. Another dispute which cannot be resolved
on affidavit
relates to the relevance of the legislation and subordinate
legislation referred to as well as to the interpretation
of such
legislation and subordinate legislation. These issues were not fully
addressed in either the affidavits or the arguments
before this
court. But more importantly, a finding in respect of the relevance
and/or interpretation is hardly possible without
a final decision on
the facts which would decide the relevance and the correct
interpretation of the legislation.
18.
As far as the Water Use Licence is concerned it appears, as
aforesaid, that the respondent did obtain this license, albeit
belatedly, and that the applicant had since lodged an appeal against
the grant of this license. The fact that the respondent may
thus
currently not have a Water Use Licence, is only so by virtue of the
fact that the applicant has appealed this license. This
is an issue
which should be considered in the exercise of this court's discretion
in the granting of the relief claimed.
19.
I need to briefly refer to the requirements for a final interdict. As
far as the clear right is concerned which the applicant
has to prove,
I have already referred to the inability of this court to come to a
finding in respect of the authorisations, licences
or consents which
the applicant alleged are required in addition to the mining permits.
The result is that the applicant has failed
to establish a clear
right for the relief claimed. In addition, as far as the Water Use
Licence concerned, this license is still
subject to an appeal process
and I am reluctant to decide the case on the basis that there is, due
to the appeal, currently no
licence in operation.
20.
As far as the requirement of an injury actually committed or
reasonably apprehended, is concerned, I am of the view that the
applicant has failed to prove this requirement. The applicant and its
experts are of the view that the respondent's operations
would likely
affect the production and supply of chickens at its operation.
According to the respondent, on the other hand, these
environmental
issues were discussed with the applicant during the consultation
process and they were taken into account at the
time of the granting
of the mining permit. According to the environmental management plan
the respondent's experts are of the view
that while every mining
operation causes environmental impacts, such impacts can be mitigated
and according to the respondent those
measures were considered before
the granting of the mining permits.
21.
Based on the affidavits as they stand, this court is unable to
resolve this dispute and to find that the measures in place or
that
would be put in place, would not be sufficient to prevent the harm
feared by the applicant. Furthermore, in terms of the court
order
granted by agreement 8 March 2016 the respondent may not mine or
carry out mining related activities on areas not covered
by the
permits and the respondent undertook to remove the coal and soil
stockpiles outside the permitted areas. Furthermore the
respondent
undertook to take appropriate measures to remove and/or remediate the
water stored outside the permitted areas.
22.
I also considered in this regard the respondent's submission that if
the respondent's mining activities result in environmental
degradation, such activities would constitute environmental offences
which would attract criminal liability under the
National
Environmental Management Act, 107 of 1998
, as well as other
legislation. The provisions of such legislation can thus also
be used to minimize the risk of injury to
the applicant's operations.
23.
Based on the aforesaid considerations it is not necessary to refer to
the numerous aspects alluded to by the parties in their
papers and to
the disputes which arose in regard thereto. In my view the applicant
has failed to make out a case for the relief
claimed and consequently
that the application in Part B should be dismissed. Insofar as it may
be necessary to exercise my discretion
I have no hesitation to do so
against the granting of the interdict prayed for. As far as costs are
concerned, there is no reason
why costs should not follow the event.
24.
As far as the application by the first and second respondents to file
further affidavits is concerned I have considered the
reasons given
by the respondent as to why it became necessary to file a further
affidavit. However, in my view the first and second
respondents
should pay the costs occasioned by the further affidavit jointly and
severally with such costs to include the costs
of senior counsel.
25.
Regarding the application to remove the second respondent as a party
to the main application I have already indicated that the
respondent
did not proceed with that application and on their behalf it was
submitted, for reasons given, that no order for costs
should be made.
In my view the second respondent had an interest in the matter and
was correctly cited as a party to the application.
The fact that the
applicant eventually submitted that the interdicts should only be
granted against the first respondent does not
alter this fact.
Consequently in my view the first and second respondents should pay
the costs relating to the application to remove
the second respondent
as a party to the main application, jointly and severally with such
costs to include the costs of senior
counsel.
26.
In the result, the following order is made:
1.
The application in Part B of the Notice of Motion is dismissed with
costs.
2.
The first and second respondents are ordered jointly and severally to
pay
the costs occasioned by the application of the first and second
respondents to file further affidavits which costs shall include
the
costs of senior counsel.
3.
The application to remove the second respondent as a party to the
main
application is dismissed with costs which costs shall be paid by
the first and second respondents jointly and severally and which
costs shall include the costs of senior counsel.
_________________
C.P.
RABIE
JUDGE
OF THE HIGH COURT