About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2016
>>
[2016] ZANCHC 83
|
|
Theta Mining Proprietary Limited and Another v Scarlet Sun 15 Proprietary Limited and Others (1959/2016) [2016] ZANCHC 83 (25 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: JA 78/10
Case No: 1959/2016
Heard
on: 20/10 /2016
Delivered
on: 25/11/2016
In the matter
between:
THETA MINING
PROPRIETARY LIMITED
1
ST
APPLICANT
LONRHO MINING SA
PROPRIETARY LIMITED
2
ND
APPLICANT
And
SCARLET SUN 15
PROPRIETARY LIMITED
1
ST
RESPONDENT
BSO KONSULTANTE CC
trading as
DELTA
GESPESIALSEERDE
DIENSTE
2
ND
RESPONDENT
THE GOVERNMENT OF THE
REPUBLIC
OF SOUTH
AFRICA
3RD RESPONDENT
THE MINISTER OF RURAL
DEVELOPMENT
AND LAND
REFORM
4
TH
RESPONDENT
THE SYDNEY ON VAAL
COMMUNAL
PROPERTY
ASSOCIATION
5TH RESPONDENT
NORTHERN CAPE PROVINCIAL
GOVERNMENT:
6
TH
RESPONDENT
DEPARTMENT OF
ROADS AND PUBLIC WORKS
THE MINISTER OF
MINERAL RESOURCES
7
TH
RESPONDENT
THE REGIONAL MANAGER,
NORTH CAPE REGION
8
TH
RESPONDENT
OF THE DEPARTMENT OF
MINERALS AND ENERGY
THE REGISTRAR OF
DEEDS, KIMBERLEY
9
TH
RESPONDENT
JUDGMENT
MAMOSEBO
J
[1]
On 16 September 2016 the applicants, Theta Mining Proprietary Limited
and Lonrho Mining SA Proprietary Limited, approached the
Court on an
urgent basis seeking interim relief pending the final
determination of proceedings still to be launched to
determine their
entitlement to the use of the road traversing Portion 1 of the Farm
Than No 280 in the Administrative District
of Barkley West (the Than
farm) to access the farm Drooge Veldt No 292 also in the
Administrative District of Barkley West. The
application was opposed
by the first respondent, Scarlet Sun 15 Proprietary Limited (Scarlet
Sun) and the fifth respondent, The
Sydney on Vaal Communal Property
Association, only. The fourth respondent, The Minister of Rural
Development and Land Reform, filed
a Notice to Abide the decision of
the Court.
[2]
Having been satisfied that the matter was urgent I granted an interim
interdict effectively restoring to the applicants
the use of
the road B-A- D. The parties also agreed on
timeframes within which to file further affidavits and
their written
arguments. The matter was to be heard on 20 October 2016.
[3]
Upon the return date the applicants, conceding the existence of a
dispute of fact not soluble on the papers, submitted that
the Court
need not make a final determination at this stage on whether or not
they have a clear right to make use of the roads
traversing the Than
farm in order for them to access Drooge Veldt. Mr Gilbert, for the
applicants, contended that they merely
required the extension of the
interim relief already in place pending the outcome of an action yet
to be instituted.
The
parties
[4]
The first applicant is Theta Mining Proprietary Limited (Thetha
Mining). The second applicant is Lonhro Mining SA Proprietary
Limited
(Lonhro Mining). The first respondent is Scarlet Sun.
The second respondent is BSO Konsultante CC T/A Delta
Gespesialiseerde Dienste. The third respondent is the Government of
the Republic of South Africa. The fourth respondent is the
Minister
of Rural Development and Land Reform. The fifth respondent is the
Sydney on Vaal Communal Property Association. The sixth
respondent is
Northern Cape Provincial Government: Department of Roads and Public
Works. The seventh respondent is the Minister
of Mineral Resources.
The eighth respondent is the Regional Manager, Northern Cape Region
of the Department of Minerals and Energy.
The ninth respondent is the
Registrar of Deeds, Kimberley.
The
background
[5]
Theta Mining is the holder of a mining right granted to it on 12
August 2015 to mine alluvial diamonds on Drooge Veldt. Lonhro
Mining
has been appointed by Theta Mining as its contractor to mine the
alluvial diamonds.
[6]
The applicants maintain that Drooge Veldt
has no direct access to a public road and is in
that sense
landlocked, an assertion disputed by the opposing respondents. The
applicants used the roads A-D since June 2009 and
from March 2014
used the road B-A-D which Scarlet Sun had, with effect from 01
September 2016, barred them from. They were granted
interim access
relief on 16 September 2016 with directions to file further
affidavits and for argument to be heard on 20 October
2016.
[7]
There are in fact three (3) farms owned by the Government which are
contiguous. They are Drooge Veldt where Theta Mining
conducts
its mining operations and the Than and Mozib farms where Scarlet Sun
conducts its mining operations. In terms of the Deed
of Transfer
T2079/89 the Registrar of Deeds registered the farms under the name
Sydney on Vaal Farms (Proprietary) Limited. These
farms are perpetual
quitrent land held in trust by the Government until all processes
have been finalised for them to be transferred
to the fifth
respondent: (The Sydney on Vaal Communal Property Association
the
CPA),
in terms of the Communal Property Association Act, 1996.
[8]
The applicants pleaded entitlement to use the road traversing the
Than farm having done so since 2009, relying on the Deed of
Transfer.
They raised the following grounds:
8.1 The Deed of Transfer
applicable to the Than farm expressly provides that all roads on Than
farm are
to remain free and uninterrupted;
8.2 The most direct road
crossing Than farm marked “A-D” on the locality plan is a
public road,
either having been proclaimed as such or by immemorial
usage (
vesustas
);
8.3 Section 5(3) (a) and (c) as
supported by s 25 and read with secs 22(4)(b), 38A(2) and 23(1)(d) of
the
Mineral and Petroleum Resources Development Act, 2002 (as
amended) (MPRDA) entitled them to enter upon the land (Than farm) in
respect of which the mining rights have been granted, which would
include accessing Drooge Veldt by crossing the neighbouring
land (Than farm); and
8.4 The applicants claim that
they are also entitled to a right of way by necessity (
via
necessitates)
in that there is no other way of accessing the
landlocked Drooge Veldt except by using the road “A-D”,
alternatively
“B-A-D” traversing the Than farm.
[9]
The applicants submitted that they have concluded a Surface Use
Agreement (“DJC6”) with the CPA for the surface
use of
Drooge Veldt. The agreement was signed on behalf of Lonrho Mining on
09 May 2013 but no witnesses attested to the signature.
A signature
was appended on behalf of the CPA on the same date but no witnesses
attached their signatures to it either. I am pointing
this out
because in the answering affidavit the following challenge was
posed:
“
It
will be indicated by the affidavit of the CPA that the surface use
agreement is not valid, as it has not been approved by the
executive
committee of the CPA. I refer in this regard to the affidavit on
behalf of the CPA attached hereto.”
[10]
As foreshadowed the applicants have conceded that there were several
insoluble disputes of fact on the papers. It is
trite that the
Plascon
Evans
principle applies under the
circumstances. In an effort to persuade me to extend the interim
relief granted on 16 September 2016
but at the same time not to
determine the exact nature of their right to traverse the Than farm,
which they maintain will be determined
in the main proceedings they
intend to launch, the applicants emphasised that the road was used
out of necessity. In
Aventura Ltd v Jackson NO and Others
2007 (5) SA 497
(SCA) at 500A-B Nugent JA pronounced:
“
What
is meant by ‘necessity’ is that the right of way
must
be the only reasonably sufficient means of gaining access to the
landlocked property
and not
merely a convenient means of doing so
(Trautman NO v Poole
1951 (3) SA 200
(C) at 207D – 208A).”
(own emphasis).
[11]
Mr Gilbert submitted that the shortest route to the nearest public
road, which would cause the least inconvenience to the neighbouring
Than farm, is that marked “A-D” on the locality
plan premised on the expression “
ter
naaste lage en minste schade
.”
They refer to the inconvenience caused by taking longer to reach the
public road if the Rooipoort road is used.
[12]
However Mr van Heerden, for the opposing respondents, contended that
the very fact, even on the applicants’ version that
access to
Drooge Veldt is attainable through the Rooipoort road negates the
applicant’s case that it is landlocked.
[13]
The impression created by the applicants is that when their
applications were considered and a decision made, first for
prospecting
and later for the mining permit, the road available to
them to access Drooge Veldt was either not in issue or was
overlooked.
[14]
According to the applicants the efforts by Scarlet Sun to prevent
them from accessing Drooge Veldt are aimed at coercing them
to
succumb to the pressure exerted by Scarlet Sun through their
representative, Derek Corns, to acquire their (the applicants’)
alluvial mining business. They further contended that the issues
raised by the said respondents in their answering affidavit were
ancillary to the fact that they have
prima
facie
established a
via necessitates
right
to
access Drooge Veldt.
[15]
Let me examine this submission. The letter by the applicants’
attorneys, David Levithan Attorneys, dated 02 September
2016 claims
entitlement to access and egress the property via unspecified roads
through the Mining Area. They invoke as a basis
the mining right
which they have been granted in terms of the Mineral and Petroleum
Resources Development Act, 28 of 2002 (MPRDA).
There is no reference
made to any specific road in the letter. Counsel for the respondents
argued that had the applicants attached
the Environmental Management
Plan (EMP) to the papers it would have been clear from that document
the entry point that
the applicants are attempting to
make pertaining to the access road. The Environmental Authorisation
deals with roads generally.
It specifies the road for use by the
applicants which would in all probabilities have been contained in
that document which the
applicants have failed to produce. It is
therefore unclear whether at the stage of granting the permit the
Minister and the officials
of the Department of Minerals and Energy
(DME) were alive to the alleged inaccessibility of the
road or not. The only
attachment that purportedly supports the
entitlement to traversing the Than farm to reach Drooge Veldt is the
Deed of Transfer
T2079/89. Coincidentally this holds true also for
the land held in trust for the fifth respondent (the CPA) who is also
opposing
this application.
[16
To reiterate: The applicants have up to now not bothered to institute
action mindful of the fact that there are
several
factual disputes not soluble on papers. In my
view, they are playing for time by rather opting
for an
extension of the interim relief. Although the applicants initially
argued that the interim relief they obtained in 2012
was against
different parties, despite the fact that there were some members of
the CPA who had locked the gate denying them access
to Drooge Veldt
the substance and issues are substantially identical. In my
view action or approaching the Regional Manager
was in the offing
since the first interim relief in 2012, and that is four years ago,
but never pursued to its conclusion.
[17]
The applicants ought to have followed the consultation process route
as outlined by Froneman J in
Bengwenyama
Minerals (Pty) Ltd & others v Genorah Resources (Pty) Ltd &
others
2011 (4)
SA 113
(CC) at 140 para 67. It seems to me that some
consultation may have taken place with other interested or affected
parties
but not with Scarlet Sun. The issue of access to the road was
a critical aspect that needed to be brought to the attention of the
Regional Manager accompanied by representations or objections.
Interested and/or affected parties were invited pursuant to an
advertisement placed in the local Diamond Field Advertiser (DFA)
newspaper to register as interested parties but Scarlet Sun did
not
register. However, this cannot be said to have satisfied s
27(5)(b) of the MPRDA, particularly because either the CPA
or Scarlet
Sun would in all probability have commented on the use of the road as
an affected or interested party.
[18]
In
Joubert and Others v Maranda Mining Co (Pty) Ltd
2010
(1) SA 198
(SCA) at 202B - E (para 12) Mlambo JA
pronounced:
“
Perhaps
it is prudent briefly to consider the scheme of the Act relevant to
the issue before us. It is apparent from s 27 (5)(b)
that once an
application for a mining permit is accepted by the regional manager,
the latter must notify the applicant for the
permit to submit an
environmental management plan and to consult with the owner of the
land or occupier or any other affected parties,
and submit the
results of this consultation to him within 30 days. This envisages
consultation after the lodging of an application
for and before the
grant of a mining permit. Furthermore, in terms of s 5(4)(c), once
the permit is granted no mining activities
may be commenced by the
permit holder unless it has notified and consulted with the owner or
occupier of the land in question.
In Meepo v Kotze and Others
2008
(1) SA 104
(NC) at 114D - E the view was expressed that the
legislature provided for due consultations between a landowner and
the holder
of or applicant for a permit in order to alleviate
possible serious inroads being made on the property rights of the
landowner.
Consultation is the means whereby a landowner is apprised
of the impact that prospecting (or, I would add, mining) activities
may
have on his land. I am in respectful agreement in this regard
with this view, even though that case was concerned with access in
relation to a prospecting right.”
[19]
The Land Claims Commission had by letter addressed to the Vaalbos:
Sydney on Vaal Restitution Community Trust dated 29 May
2009
pertaining to the right of access to Vaalbos granted permission on
the following conditions:
19.1 That they present that letter to the
security personnel at the gate for access and to Scarlet Sun who were
temporary
caretakers of the farm with the CPA. That had to happen by
the latest on Saturday 30 May 2009 at 15:00;
19.2 That they provide the Commission and
the security at the gate with he contact details of the person who
will be
dropping off security guards and furnish them with the
registration details of their vehicle(s) by Monday 01 June 2009
before 10:00;
and
19.3
That the changeover of security guards be carried out before 18:00 to
avoid conflicts and extra hours being claimed
by security guards.
That failure to comply with the above would render the
permission invalid.
It
is therefore incorrect to state that access to traverse the road was
uninterrupted since 2009 when, on the contrary, permission
was sought
by the Trust and was granted as aforementioned. Scarlet Sun was
formally recognised as the caretaker of the farm, albeit
for an
interim period.
[20]
Scarlet Sun was granted a mining permit valid from 16 July 2010 for
12 years, ending on 15 July 2022. A mining permit holder
is not
exempt from complying with the relevant provisions of the
Mine Health
and Safety Act, 29 of 1996
, and all other applicable laws of
the country. This obligation cannot be fanciful. Which is what it
would amount to if the applicants’
contention is sustained.
Sec
5(2)(b)
requires an employer to maintain a healthy and safe mine
environment. It stipulates that:
“
(2)
As far as reasonably practicable, every employer must –
(b)
ensure that persons who are not employees, but who may be directly
affected by the activities at the
mine, are not exposed to any
hazards to their health and safety.”
It
cannot be gainsaid that this obligation does apply to Scarlet Sun
regard being had to the submissions that there are six contractors
mining on the farms Than and Mozib using dumper trucks, front end
loaders and excavators which cross over road B-A-D. There are
therefore health and safety risks that must be managed.
[21]
In
Bengwenyama
Minerals (Pty)Ltd & others v Genorah Resources (Pty) Ltd &
others
2011 (4)
SA 113
(CC) Froneman J remarked further:
“
If
the landowner or lawful occupier impedes holders of prospecting
rights [I would also add mining rights] in the exercise
of their
rights, the holders must report this to the regional manager
concerned.”
[22]
Section 54(1) of the Mineral and Petroleum Resources Development Act
24 of 2008 stipulates:
“
(1)
The holder of a reconnaissance permission, prospecting right, mining
right or mining permit must notify the relevant
Regional Manager if
that holder is prevented from commencing or conducting any
reconnaissance, prospecting or mining operations
because the owner or
the lawful occupier of the land in question –
(a)
refuses to allow
such holder to enter the land;
(b)
places
unreasonable demands in return for access to the land; or
(c)
cannot be found
in order to apply for access.”
[23]
The applicants have not persuaded me why they have not approached the
Regional Manager as required. They are dilatory in their
endeavour to
bring finality to this this matter. They were previously locked out
by the CPA members in Case No 393/2012 whereupon
they sought and
obtained interim and final relief. The current significant difference
between that application and the present
one lies with the citation
of Scarlet Sun as the party responsible for locking the access gate
and not the members of the CPA.
It is inexplicable why the applicants
would always resort to seeking interim measures when a problem
of this nature
surfaces. They do not require a court order to
institute an action neither are they prevented from seeking certainty
and clarity
from the Regional Manager as s 54 of the MPRDA
contemplates.
[24]
I am not convinced that the applicants have established a
prima
facie
right regard
being had to the evidence that was placed before me. The balance of
convenience favours the dismissal of the application.
In any event
they have an alternative remedy of either approaching the Regional
Manager or institute action for the proper ventilation
of all the
issues.
[25]
The Constitutional Court emphasised the importance of internal
remedies by way of the pronouncement by Mokgoro J in
Koyabe and
Others v Minister for Home Affairs and Others (Lawyers for Human
Rights as Amicus Curiae)
2010 (4) SA 327
(CC)
(2009
(12) BCLR 1192
;
“
[35]
Internal remedies are designed to provide immediate and cost
effective relief, giving the executive the opportunity
to utilise its
own mechanisms, rectifying irregularities first, before aggrieved
parties resort to litigation. Although
courts play a vital
role in providing litigants with access to justice, the
importance of more readily available and cost
effective internal
remedies cannot be gainsaid.
[36]
First, approaching a court before the higher administrative body is
given the opportunity to
exhaust its own existing
mechanisms undermines the autonomy of the administrative process. It
renders the judicial process premature,
effectively usurping the
executive role and function. The scope of administrative action
extends over a wide range of circumstances,
and the crafting of
specialist administrative procedures suited to the particular
administrative action in question enhances procedural
fairness as
enshrined in our Constitution. Courts have often
emphasised that what constitutes a “fair”
procedure will
depend on the administrative action and circumstances of the
particular case. Thus, the need to allow the executive
agencies to
utilise their own fair procedures is crucial in administrative
action.”
[26]
It is further unclear whether the Land Use Planning Ordinance 15 of
1985 (LUPO) has been complied with. Japhta J discussing
the interplay
between LUPO and MPRDA in
Maccsand (Pty) Ltd v City of Cape
Town and Others
2012 (4) SA 181
(CC) at 191B-C (para 18)
stated:
“
[18]
Therefore in terms of LUPO, mining may only be undertaken on land if
the zoning scheme permits it (or a departure is granted).
If
not, rezoning of the land must be obtained before the commencement of
mining operations. The zoning that permits that
land to be used
for mining does not, however, license mining nor does it determine
mining rights. The role played by LUPO
is limited to the
control and regulation of the use of land.”
This
to me suggests that spatial planning and if needs be rezoning ought
to have been undertaken to cater for the accessibility
to the farm
concerned. The responsibility is coordinated among the relevant
departments.
[27]
The phrase “
ter
naaste lage en minste schade”
is not inflexible. In view of the factual issues emanating from this
case it is in my view advisable for this matter to be fully
ventilated by way of action proceedings. The Environmental Plan of
the applicants, which did not form part of the papers, ought
to have
addressed the issue of the road. If it does not, the Regional Manager
ought to correct this shortcoming.
[28]
Regard being had to the oral and written submissions and all the
supporting documentation, I therefore find that the applicants
have
not succeeded in meeting all the requirements for a temporary
interdict. Not only did they fail to show that they did
not
have alternative remedies, apart from seeking an interdict, but also
the
prima facie
right to traverse the Than farm is unclear.
Their application stands to fail for the stated reasons. The
Environmental Authorisation
ought to have specified the
road to be utilised by the applicants. If there was an omission or
oversight, the
Regional Manager and all other internal remedies
should have been exhausted. The upshot of what has gone before is
that Drooge
Veldt is not landlocked.
Costs
[29]
Scarlet Sun and The Sydney on Vaal Communal Property Association have
successfully opposed this application. There is no reason
why
costs should not follow the result.
Order
[30]
The following order is made:
1.
The interim
order granted on 16 September 2016 is discharged.
2.
The first
applicant, Theta Mining Proprietary Limited, and the second
applicant, Lonrho Mining SA Proprietory Limited, are ordered
to pay
the costs jointly and severally, the one paying the other to be
absolved.
…………………………………
..
MAMOSEBO
J
NORTHERN
CAPE DIVISION
For
the applicants:
Adv BM
Gilbert
Instructed
by:
David Levithan Attorneys
Duncan & Rothman
For
the respondents:
Adv CN van
Heerden
Instructed
by:
Van De Waal Inc