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[2017] ZANCHC 5
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Ekapa Minerals (Pty) Ltd and Others v Seekoei and Others (2057/2016) [2017] ZANCHC 5 (13 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
CASE
NO.: 2057 / 2016
Date
heard: 08-12-2016
Date
delivered: 13-01-2017
In
the matter between:
Ekapa
Minerals (Pty)
Ltd
1
st
Applicant
Kimberley
Ekapa Mining Joint
Venture
2
nd
Applicant
Super
Stone Mining (Pty)
Ltd
3
rd
Applicant
Crown
Resources (Pty)
Ltd
4
th
Applicant
And
Lucky
Seekoei
1
st
Respondent
Godfrey
Motloteng
2
nd
Respondent
Pieter
Mokitini
3
rd
Respondent
Victor
Taku
4
th
Respondent
John
Motshwanaysi
5
th
Respondent
Daisy
Damons
6
th
Respondent
The
Unidentified Illegal Miners
7
th
Respondent
MEC:
Department of Environmental Affairs
8
th
Respondent
MEC:
Department of Cooperative Governances,
Human
Settlements and Traditional
Affairs
9
th
Respondent
MEC:
Department of Transport, Safety and
Liaison
10
th
Respondent
Minister
of Minerals
Resources
11
th
Respondent
Minister
of Safety and
Security
12
th
Respondent
Minister
of Home
Affairs
13
th
Respondent
De
Beers Consolidates Mines (Pty)
Ltd
14
th
Respondent
CORAM:
WILLIAMS J:
J
U D G M E N T
WILLIAMS
J:
1.
In this application the applicants
essentially seek interdictory relief to prevent the first to seventh
respondents from; i)entering
into or being on certain immovable
properties; and ii) unlawfully and illegally conducting mining
activaties on the immovable properties.
2.
The first applicant, Ekapa Minerals (Pty)
Ltd, entered into a Sale of Business agreement with the fourteenth
respondent, De Beers
Consolidated Mines (Pty) Ltd (De Beers), on 30
November 2015, in terms of which the first applicant purchased
inter
alia
the reprocessing of tailings and
related business conducted by De Beers, the relevant Tailing Mineral
Resources (TMRs) and the immovable
properties on which the TMRs are
situated. The ownership of the TMRs has been transferred to the
first applicant by means
of
traditio
longa manu
effected in terms of a
notarial deed of delivery on 18 January 2016.
3.
The second applicant is Kimberley Ekapa
Mining Joint Venture, in which the first applicant, the third
applicant, Super Stone Mining
(Pty) Ltd and the fourth applicant,
Crown Resources (Pty) Ltd are participants and partners in the
re-processing of the TMRs with
effect from 1 July 2016.
4.
The first to seventh respondents are a
group of illegal artisanal and small-scale miners who conduct their
mining activities on
the relevant immovable properties, of which not
all have been transferred to the first applicant.
5.
The eighth to thirteenth respondents
comprise of the relevant MECs and Ministers who may have an interest
in the application.
De Beers, as already mentioned, is the
fourteenth respondent. Only the first to seventh respondents
(to whom I will henceforth
refer to as the “
the
respondents”
oppose the
application.
6.
It is not in dispute that the TMRs have
come about as a result of over 130 years of open cast mining.
The debris or waste
left over as a result of excavating for diamonds
were left in dumps or spread on the surface of the property being
mined, in an
area used as a tailings disposal site, which is referred
to as floors. The TMRs consist of both the tailing dumps and
the
floors. The TMRs contain valuable diamondiferous material
which was previously not fully exploited. With improved mining
technology and a demand for smaller diamonds, the reprocessing of the
TMRs has become a lucrative business.
7.
The applicants complain that for the last
six years the respondents, now some 1000 in number, conduct their
illegal mining activities
by digging trenches and tunnels, some to a
depth of 8 metres, on the TMRs. They manually sieve the
excavated material for
diamonds, mostly on site, but also carry it
away to where they live. The applicants estimate their
financial loss due to
the activities of the respondents at about R6
million per month. In addition the respondents are accused of
causing veld
fires, disturbing the ecology, littering, theft and
various other criminal activities on the properties. The
applicants,
who started reprocessing the TMRs on the properties in
July 2016, contend that their employees fear for their safety, that
they
have approached the SAPS and other Government Departments about
the problem of the illegal miners, but that they are not in a
position
to combat the activities associated with the illegal miners.
8.
The artisanal miners, as the respondents
refer to themselves, deny that they process the tailing dumps but
claim to mine the floors,
which are described in their answering
affidavit as a thin layer of kimberlite which remained after De Beers
had removed the dumps
for reprocessing. They describe their
method of mining (reminiscent of the the old claims system) as
follows:
“
27.1
ASMs (Artisanal and small scale miners) scan the area for patches of
kimberlite.
27.2
When an appropriate patch is found this patch is claimed by an
individual or group of individuals. The ASMs recognise
this
person’s exclusive right to the claim.
27.3
Two to three people usually work the claim. The first step is
to scrape off the thin layer of kimberlite, usually
around six inches
deep and no deeper that 24 inches, with a pick and shovel.
27.4
The kimberlite is then sorted on a sieve to screen out large rocks.
It is then run through a finer sieve.
27.5
What is left on top of the sieve after this sorting is laid out on a
tarp and picked through.
”
9.
The respondents deny any criminal activity;
they consider themselves to be an organised group of people who due
to the current economic
climate are unable to obtain employment and
are therefore forced to eke out a living for themselves and their
dependants by conducting
the small-scale mining of the floors as they
do. They do not deny the unlawfulness of their mining
activities and the sale
of the diamonds which they manage to recover
(they deny the extent of their mining as alleged by the applicants)
but claim to have
desperately sought to regularise their operations
by seeking the assistance of the Minister of Mineral Resources and
the Regional
Manager of the Department of Mineral Resources (the
DMR), which to date has been to no avail.
10.
The respondents, in opposing this
application initially set up numerous defences which by the time the
application was heard had
been refined to the following:
10.1
The order sought is too vague to be enforced;
10.2
The applicants have failed to show a clear right for final
interdictory relief;
10.3
The applicants have not approached the court with clean hands; and
10.4
The applicants have an alternative remedy.
The
vagueness of the order sought
11.
The objectionable matter here is twofold –
it relates to the description of the properties in the Notice of
Motion and the
fact that the seventh respondent is cited as “
The
unidentified illegal miners”.
Mr
Spoor who appeared for the respondents, contended that in
circumstances where the area from which the respondents are sought
to
be excluded comprise some 10 000 hectares in total, most of the
land being unfenced and/or adjacent to informal settlements
and
townships, it will be impossible for the Sheriff to determine who the
illegal miners are, unless of course caught in the act,
or for the
Sheriff and the respondents to determine what a specific area would
encompass, being described as: (an example of one
of the areas)
“
The
Remaining Extent of Erf 5024 Kimberley, Northern Cape Province,
including the Gemdene Trailing Mineral Resource and a portion
of the
Colville Corridor Tailing Resource situated on this property, but not
including (a) the Colville Tailing Mineral Resource,
(b) the portion
of the remaining extent of Erf 5024 Kimberley adjacent to Erven 4812
and 4815 Kimberley.”
12.
Such a description would without doubt be
confusing to a layperson but probably informative as far as the
Sheriff is concerned.
However, Mr Chaskalson SC who appeared
with Ms Higgs for the applicants, obliged by presenting a draft order
describing the properties
in simpler terms and which correspond with
the description of the mining areas over which De Beers has a mining
right (as described
in the Deeds Register) and which form part of the
sale agreement between De Beers and the first applicant. The
simplification
of the description of the properties in addition to
the fact that the first respondent, Mr Lucky Seekoei, who is the
deponent to
the answering affidavit, and spokesperson for the
respondents, has after filing the answering affidavit presented the
applicants
attorneys with a list of some 800 names of artisanal
miners ( other that the first sixth respondents) who also conduct
their mining
operations on the properties, should now have the effect
that no unrelated party be prejudiced by the order sought.
The
Applicants’ failure to show a clear right
13.
Here also the complaint is two-fold.
Firstly that the first applicant is the owner of only one of the
properties the respondents
are sought to be excluded from, the rest
of the properties sought to be included in the order have not yet
been transferred to
the first applicant and the applicants have
failed to establish a
ius possidendi
over it. Secondly, that the TMRs situated on the properties
represent “
minerals”
as defined in the Mineral and Petroleum Resources Development Act, no
28 of 2002 (the MPRDA), are therefore the property of the
people of
South Africa and that consequently the agreement to sell the TMRs to
the first applicant is invalid.
14.
With respect to the first issue under this
heading, transfer of the remaining Extent of Erf 6489, Kimberley has
already taken place
on 6 June 2016. The first applicant is the
registered owner of this property which is sufficient to establish a
clear right
for final interdictory relief. With regard to the
remainder of the properties, transfer is pending.
15.
As far as the right to possess these
properties where transfer is pending is concerned, the Agreement of
Sale (clause 12.2.16) provides
as follows:
“
12.2.16
.. with effect from the effective date (18 January 2016), DBCM and
the purchaser agree that:
12.2.16.1
the purchaser shall be liable for all rates, taxes, levies and
similar imposts levied in respect of the Immovable
Properties;
12.2.16.2
the Purchaser shall be entitled free of charge, to the use and
enjoyment of the Immovable Properties as if
it were the owner thereof
even it transfer takes place after that date; and
12.2.16.3
all risk and benefit in and to the Immovable Properties shall pass to
the Purchaser.”
16.
There can therefore be no doubt that the
applicants have a contractual right of possession and the issue of
lack of
ius possidendi
thus falls away. The applicants contend furthermore that they
also have occupation of all the properties, which assertion
counsel
for the applicants contend is not denied by the respondents.
This contention is however not entirely correct.
If the
answering affidavit is read as a whole it is clear that the
respondents deny that the applicants are reprocessing the TMRs
on all
the properties and that they deny that the applicants therefor have
possession or occupation over all the properties.
It is not
clear from the papers however whether the denial of the allegation of
possession and occupation in the founding affidavit
still applies to
the remaining properties after the applicants have in their replying
affidavit conceded their mistake in including
certain properties (on
which the Colville TMRs are situated) in the Notice of Motion. In
respect of these properties De Beers had
entered into an agreement
with former employees that would allow such employees to mine the
properties. However the mere
fact of the denial of possession
and occupation being so vague, I am satisfied that the applicants
have proved on a balance of
probabilities a clear right of possession
and actual occupation of the relevant properties.
17.
The further argument by the respondents is
that since the TMRs
in casu
were created by De Beers, the holder of an old order right, the
diamondiferous material contained in the TMRs are minerals as defined
in the MPRDA. This argument of the respondents is premised on
the 2013 amendments to the definition of residue stockpiles
and
residue deposits which now also include those mine dumps created by
holders of old order rights. As such these minerals
have, in
terms of section 3 of the MPRDA, become the property of the nation,
with the State as custodian thereof, and cannot be
sold. In
addition the applicants are mining the TMRs without a mining right,
which under the MPRDA is an offence.
18.
The applicants however contend that the
MPRDA does not apply to TMRs, does not regulate the processing of
TMRs and therefore does
not detract from the first applicant’s
ownership of the TMRs.
19.
It is necessary to reproduce the relevant
provisions of the MPRDA.
19.1
The definition of “
mineral”
in section 1 of the MPRDA is the following:
“
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
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.”
(own
underlining)
19.2
“
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.”
19.3
“
Residue deposit”
is defined as follows
:
“
means any residue stockpile remaining at termination,
cancellation or expiry of a prospecting right, mining right, mining
permit,
exploration right, production right or an old order right.”
19.4
Section 5A of the MPRDA prohibits unauthorised mining and states as
follows:
“
No
person may prospect for or remove, mine, conduct technical
co-operation operations, reconnaissance operations, explore for and
produce any mineral or petroleum or commence with any work incidental
thereto on any area without—
(a)
an environmental authorisation;
(b)
a
reconnaissance permission, prospecting right, permission to
remove,
mining right
, mining permit, retention permit,
technical co-operation permit, reconnaissance permit, exploration
right or production right,
as the case may be; and
(c)
giving the landowner or lawful occupier of the land in question at
least 21 days written notice.
19.5
An “
old order right”
is defined in item 1 of
Schedule II to the MPRDA as “
an old order mining right, old
order prospecting right or unused old order right.”
19.6
An “
old order mining right
” is defined amongst
others as “
The common law mineral right, together with a
mining authorisation obtained in connection therewith in terms of
section 9(1) of
the Minerals Act
”.
19.7
An “
unused old order right”
is defined as “
any
right, entitlement, permit or licence listed in table 3 to this
Schedule in respect of which no prospecting or mining was being
conducted immediately before this Act took effect.”
19.8
Table 3 to Schedule II includes under unused old order rights a
mineral right under the common law for which no prospecting
permit or
mining authorisation was issued in terms of the Minerals Act as well
as a mineral right under the common law for which
a prospecting
permit or mining authorisation was issued under the Minerals Act.
20.
The respondents’ argument, as I
understand it, is that the TMRs were created under De Beers’
old order right which consisted
of an unused old order right (a
mineral right under the common law with or without statutory mining
authorisation) since the TMRs
were created long before the enactment
of the MPRDA on 1 May 2004. As such the TMRs are minerals under the
MPRDA and a mining right
is required to mine it.
21.
I am of the opinion however that one can
immediately discard the notion of De Beers having held an unused old
order right because
the TMRs, although having been created over the
course of 130 years, have not been lying dormant for all that time.
In fact
the third applicant had been processing the TMRs and
conducting mining operations on the properties as a contractor of De
Beers
from 1991 until 2008, and it would therefore not have
been “a right, entitlement, permit or licence in respect of
which
no prospecting or mining was being conducted immediately prior
to the MPRDA”.
22.
De Beers was however the holder of an old
order right in the form of an old order mining right (common law
mineral right together
with a mining authorisation) which was
converted to a mining right under the MPRDA on 7 May 2010. The
old order mining right
is a statutory creation which came into
existence with the enactment of the MPRDA. The position is set
out as follows in:
i)
HOLCIM SA (PTY) LTD v PRUDENT INVESTORS (PTY) LTD AND
OTHERS
[2011] 1 All SA 364
(SCA) at par 37:
“
As
I have been at pains to emphasise, a common law mineral right is not
preserved under the new statutory dispensation. It
is not of
itself an “old order right” which can be converted under
Item 7 of Schedule II. It survives only as a right
underlying a
mining authorisation.
”;
ii)
MINISTER OF MINERAL RESOURCES &
OTHERS v SISHEN IRON ORE COMPANY (PTY) LTD & ANOTHER
2014
(2) SA 60
SCA at paras 57 and 60:
57.
“
It is important to note that in
terms of Table 2, the old order mining right is defined as comprising
two components, namely, the
mineral right and the mining
authorisation. In this regard the old order mining right
consists of a package of the mineral
right and the mining
authorisation.
Thus Table 2
alters the composition of the underlying common law right by putting
it together with the mining authorisation that
was issued to
facilitate exploitation of the mineral right. The consequence is a
new right created by statute
.
…
60.
To sum up: the old order mining right as defined in Table 2 comprises
two elements, namely, the common-law mineral right
and the mining
authorisation.
It is a new
right created by statute and which would be converted into a mining
right
. A failue to convert
that old order mining right resulted in the right ceasing to exist.
”;
and
iii)
XSTRATA SA (PTY) LTD & OTHERS v SFF
ASSOCIATION
2012 (5) SA 60
(SCA) para
10:
“
As
pointed out in the Holcim decision of this court these provisions do
not serve to preserve common law rights.
Instead,
for the period of five years specified in item 1, or such lesser
period as may elapse until the conversion of the old order
right into
a mining right under the Act, they create a new right, statutory in
origin, embodying the rights previously enjoyed
under the relevant
old order right, together with an entitlement to convert that right
into a mining right under the Act
.”
(Own
underlining)
23.
It follows then that the old order mining
right of De Beers came into existence after the enactment of the
MPRDA and endured until
its conversion to a mining right under the
MPRDA on 7 May 2010. It stands to reason therefore that the
TMRs, having been
created long before 2004, were not created by the
holder of an old order right as per the definition of “residue
stockpile”.
The TMRs, not being residue stockpiles, can
automatically also not be residue deposits by reason of the fact
(amongst others) that
residue deposits relate to and encompass
residue stockpiles.
24.
The TMRs in casu therefore do no 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 the 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 DMR 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 applicants not approaching this
Court with clean hands since they themselves do
not have a mining
right over the relevant properties.
The
existence of an alternative remedy
25.
The respondents maintain that criminal
prosecution would constitute an adequate alternative remedy which
they contend the applicants
have failed to pursue in any meaningful
way. In
SETLOGELO v SETLOGELO
1914
AD 221
this requisite for the granting of a final interdict which has
been consistently affirmed ever since, is stated as “
the
absence of similar protection by any other ordinary remedy
”.
There can be no doubt that in certain cases a criminal prosecution
may well be an adequate alternative remedy. In casu
however, where
more than 800 illegal miners have been identified, and even if one
disregards for the moment the applicants’
allegations of their
and De Beers’ failure to achieve success through the criminal
justice system, one can hardly ignore
the difficulties inherent in
charging and prosecuting such a large number of people together with
the inevitable lengthy delays
in bringing such prosecutions to
finality, while in the meantime the applicants suffer huge financial
losses on a daily basis.
In these circumstances criminal
prosecution would in my view not be a remedy offering similar
protection as an interdict.
26.
Mr Spoor for the respondents has argued
that even in the event that I find that the applicants have succeeded
in satisfying all
the requisites for final interdictory relief, I
still have a discretion, in the interests of justice, taking into
account the prejudice
to the respondents who stand to lose their only
means of an income for themselves and their families, to refuse the
application
or at the very least to suspend the operation of the
interdict. The suggestion that the operation of the interdict be
suspended
was premised on the contention that the applicants required
a mining right to reprocess the TMRs and the suspension was sought
pending the applicants obtaining such a mining right. Having found
however that the applicants do not require a mining right to
reprocess the TMRs, such relief cannot be granted.
27.
The position regarding a general discretion
to refuse a final interdict, where all the requisites have been met,
is a somewhat controversial
issue. The overriding view being
that such a discretion is limited and depends on whether an adequate
alternative remedy
is available. I do not however deem it
necessary to get embroiled in a discussion on this topic which is
extensively addressed
in
LASKEY &
ANOTHER v SHOWZONE CC & OTHERS
2007
(2) SA 48
(CPD). The problem that the respondents have, no matter how
sympathetic I may be to their economic plight and frustrations at the
relevant authorities’ failure to facilitate the regularisation
of their operations, is that they are conducting illegal activities
which cannot be seen to be condoned by a discretionary refusal of the
relief sought. The application must therefore succeed.
28.
The only issue left is that of costs.
The applicants having been substantially successful, the normal rule
is that costs follow
the result. The respondents, however,
contend that they were justified and entitled to oppose the
application, which opposition
was successful to the extent that it
limited the scope of the relief initially sought and prevented the
unlawful eviction of certain
respondents from their homes
specifically those situated on the property Kenilworth Estate No.
71. The factual position is
however that the applicants are
successful in relation to the properties which form the subject
matter of the sale agreement with
De Beers and on which TMRs are
situated, with the exception of the properties on which the Colville
TMRs are situated (which the
applicants conceded were mistakenly
included) and on which the respondents in any event do not appear to
be conducting mining activities.
The applicants had furthermore
engaged the services of a land surveyor, Mr Janis Grivainis, whose
affidavit is annexed to the replying
papers, to identify the relevant
immovable properties and the TMRs on such properties and to identify
whether any form of residences
were located on the properties. Shacks
were identified on two different portions of Portion 12 of the farm
Kenilworth Estate No.
71, the property of the Sol Plaatje
Municipality and which do not form part of the properties to which
this application relate.
The respondents’ argument that
their opposition had prevented unlawful eviction is thus unfounded.
In these circumstances
I see no reason why the applicants should be
denied the costs of this application, including the costs of two
counsel.
THE
FOLLOWING ORDERS ARE MADE:
1.
The first to sixth respondents and the persons listed on Annexure X
hereto are interdicted and
restrained from entering into or being on
the following immovable properties and any Tailing Mineral Resources
situated upon such
immovable properties:
1.1
the remaining extent of Erf 5024 Kimberley,
excluding the portion of the remaining extent of Erf 5024 Kimberley
adjacent to Erven
4812 and 4815 Kimberley;
1.2
the remaining extent of Erf 5045 Kimberley,
Northern Cape Province;
1.3
the remaining extent of Erf 6489 Kimberley,
Northern Cape Province;
1.4
the remaining extent of the farm Kenilworth
Estate 71, District Kimberley, Northern Cape Province;
1.5
the remaining extent of the farm
Bultfontein 80, District Kimberley, Northern Cape Province;
1.6
the remaining extent of the farm
Alexandersfontein 123, District Kimberley, Northern Cape Province;
1.7
the remaining extent of the farm
Dorstfontein 77, District Kimberley, Northern Cape Province;
1.8
the remaining extent of the farm
Rooifontein 1722, District Boshof, Free State Province; and
1.9
the farm Benauwdheidfontein 124, District
Kimberley, Northern Cape Province.
2.
The first to sixth respondents and the persons listed on Annexure X
hereto are interdicted and
restrained from disturbing and/or
processing and/or removing any of the materials which form part of
the Tailing Mineral Resources
which are situated upon the immovable
properties referred to in paragraphs 1.1 to 1.9 above.
3.
The first to sixth respondents and the persons listed on Annexure X
hereto are interdicted and
restrained from mining or prospecting for
diamonds or conducting any related activity on any of the Tailing
Mineral Resources which
are situated on the immovable properties
referred to in paragraphs 1.1 to 1.9 above.
4.
The sheriff of this Court is authorised and directed to remove any of
the first to sixth respondents
and the persons listed on Annexure X
hereto who are present upon the immovable properties referred to in
paragraphs 1.1 to 1.9
above from such immovable properties.
5.
The first to sixth respondents and the persons listed on Annexure X
hereto are ordered to pay the
costs of this application jointly and
severally, including the costs of two counsel.
________________________
CC
WILLIAMS
JUDGE
For
applicants:
Adv. M. Chaskalson
SC
Adv. A. Higgs
(oio Duncan & Rothman
Inc.)
For
1
st
to 7
th
respondents: Mr. R. Spoor
(oio Richard Spoor Inc.
Attorneys)
(c/o Yolandi Koen
Attorneys)