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[2016] ZAGPPHC 376
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Candero Mining and Consulting (Pty) Ltd v Stmith and Others (7178/16) [2016] ZAGPPHC 376 (26 February 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
CASE
NO: 7178/16
DATE:
26 FEBRUARY 2016
In
the matter between:
CANDERO
MINING AND CONSU LTING (PTY)
LTD
..................................
Applicant
and
DARREN
JAMES STMITH
…………………………………………..…
First
Respondent
AURICO
GOLD RECLAMATION (PTY) LTD Second
Respondent
ssssssssssss………………………….SS
RAYMON
D ROSELT
……………………………………………....
Third Respondent
MINGOLD
(PTY) LTD
……………………………………………
Fourth Respondent
JUDGMENT
J
W LOUW
,
J
[1]
This application served before me in the urgent court. The applicant
applies for an order interdicting the first, second and
third
respondents, to whom I shall refer as the respondents, from removing
material from a mine dump, referred to in the application
as the
"main dump", pending judgment in a trial in which the
present applicant was the plaintiff and the respondents
were the
fifth, sixth and seventh defendants and which proceeded before De Vos
J during October 2015. The parties closed their
cases and the matter
was postponed for argument. No date has yet been set for the hearing
of argument.
[2]
The main dump is situated on the farms known as Portion 5 of the farm
Strathmore 436IP and Portions 69 and 71 of the farm Nooitgedacht
434IP in the district of Klerksdorp. The issue in the trial is
whether the applicant is the owner of the main dump. The respondents
deny that the applicant is the owner but do not themselves assert
ownership or any other right to remove and sell material from
the
main dump. The question whether the applicant is the owner depends on
whether or not the main dump is movable. If it is, it
is capable of
being owned separately from the land on which it is situated. The
applicant contends that it is movable, that the
owners of the farms
abandoned any right they may have had to the main dump and that it
has become the owner. If, on the other hand,
the main dump is
immovable, i.e. if it has acceded to the land beneath it, it is owned
by the owner of the farms. This is what
the respondents contend.
[3]
In order to succeed in the present application, the applicant must
firstly show, at least
prima
facie,
that the
main dump consists of movable material. In this regard, the applicant
states in its founding affidavit that the evidence
of an expert, Mr.
Croll, was presented at the trial who expressed the view that the
material of the dump did not accede to the
soil on which it was
deposited. An inspection
in
loco
was held
during which the main dump was inspected by the court. It appears
from a summary of the observations made during the inspection,
which
is attached to the applicant's founding affidavit, that Mr. Croll
attended the site inspection and pointed out why he held
that
opinion. The respondents did not present any evidence in this regard
at the trial.
[4]
I have studied the photographs which form part of the summary of the
site inspection, and they show what I would describe as
a mound of
loose rocks. Without making any final finding in this regard, I am of
the view that the applicant has shown, at least
prima
facie,
that the main dump consists of movable
material.
[5]
The
next
issue to
be
considered
is whether
the
applicant
has shown,
again
prima
facie,
that
it
is
the
owner
of
the
main
dump
or
that
it
has some
other
right
which
entitles
it
to
possession
and
exploitation
of
the dump.
The
evidence
presented
by the
applicant
in
this
regard in
the
founding affidavit is
that
in
approximately
1
995,
one
Cecil
Dean
Holmes,
acting
on
behalf
of
the
applicant,
purchased
and
took
possession
of
the
dumps
[1]
from
their
previous
owners,
the
trustees of
the Muldal
Trust
and Bruno
Lombardi, and that
i
t
thereafter,
on
1
9
November
2003
,
became
the
holder
of
a
permit
in
terms
of
sec.
1
61
of
the
Mining
Rights
Act
20
of
1
967,
issued by
the
erstwhile
Department
of Minerals
and
Energy
pursuant
to
a series
of
successive
transfers
by previous
holders
of
the
permit. The
deed
of
transfer
in favour
of
the
applicant,
a
copy
of
which
is annexed
to
the
founding
affidavit,
was
registered in
the
Mining
Titles
Office, Pretoria. Sec.
1
6
1
(
1
)
provided as follows:
[2]
"Any
person
who
has
abandoned
any
mining title
or
allowed
it
to
lapse
may, subject to
the
provisions
of this
section,
obtain a
permit
to retain possession
of
and
treat or otherwise
utilize any
tailings
, slimes,
waste
rock
or
other
residues
on
any
proclaimed
land
produced
by
such person
or
his
predecessor
in title in the
course of
mining
operations on the
land which
was
the subject
of
such
mining
title."
[6]
The
applicant
states
that
it
thereafter
retained
possession
and
ownership
of
the
main
dump
and
sold
materials
processed
from
it,
but that
it
lost
possession
in
2012
when
the
respondents
took
possession
thereof
by virtue
of the grant of a
prospecting
right to
the first
respondent
by the Deputy Director General of the Department of Mineral Resources
in terms of
the Mineral
and
Petroleum
Resources
Development
Act 28 of 2002
("the
MPRDA").
The
applicant
successfully
appealed
the
decision
to
the
director
General,
who held
that
the MPRDA
does
not
apply
to
mine
dumps
[3]
. The first respondent
has lodged an appeal to the Minister of Mineral Resources, which
appeal
is
yet to be
determined.
As matters presently
stand,
the
first
respondent no
longer
holds
a
prospecting right to
conduct
prospecting
activities
in
respect
of
the
main
dump.
[6]
The respondents disputed that the applicant had proved or adduced
evidence that Holmes or his predecessors in title had ever
become the
common law owners of the dumps and say in their answering affidavit
that it was established at the trial that the current
management of
the applicant is completely reliant on deficient paper records and
has no personal knowledge of the previous transfers
of either the
permits or rights. What the respondents have, however, not challenged
is the validity of the sec 161(1) permit which
was granted to the
applicant on 19 November 2003. In the absence of any evidence to the
contrary, I must accept that the permit
is still valid. It therefore
find that the applicant has shown, again at least
prima
facie,
that it has a valid sec. 161(1) permit. Even
if the permit is no longer valid, the applicant's evidence shows that
it was in possession
of the dumps and conducted crushing operations
and sold material extracted from the dump until the respondents took
possession
by virtue of the prospecting right which was granted to
them. The applicant therefore, again at least
prima
facie,
became the owner of the dump by
occupatio.
I stress
that I make no final finding in this regard.
[7]
The next requirement for the grant of an interim interdict is a well-
grounded apprehension of irreparable harm. The case made
out by the
applicant is that the respondents are removing large quantities of
material from the main dump, that it has no means
to recover the
material which belongs to it and that the applicant is being
prejudiced since the removal of the material decreases
the value of
the property which the applicant claims to own. On 14 December 2015,
the applicant's attorney wrote to the respondents'
attorney informing
him that the applicant had been advised that, notwithstanding the
current litigation between the parties, the
respondents had entered
into an agreement with the fourth respondent in terms whereof the
respondents sold waste rock fines from
the main dump to the fourth
respondent and permitted the fourth respondent to remove such
material from the dump. The applicant's
attorney demanded an
undertaking that no material from the dump would be removed by the
respondents and that no further agreements
would be entered into by
the respondents in terms of which material from the dump would be
sold to third parties or removed by
third parties from the dump. The
undertaking sought was not forthcoming.
[8]
The applicant thereafter proceeded to gather evidence of the removal
of material from the dump. Aerial photographs were taken
on
23December 2015 indicating activity on the dump and on 13 January
2016 trucks were observed exiting the properties on which
the main
dump is situated. On 15 January 2016, a private investigator
appointed by the applicant and one of the applicant's employees
saw
large double-trailer trucks which were empty enter the properties and
later saw the same trucks leaving the properties fully
loaded with
material. Photographs of the trucks were taken. They followed one of
the trucks which transported the material to the
premises of Rainbow
Ready Mix Minerals in Krugersdorp. The respondents deny that they
have sold large quantities of material and
say that they have sold
small quantities for testing purposes. They say that if the value of
the gold retrieved remained a viable
proposition then bigger
quantities would be sold for testing. Those quantities would still be
very small in relation to the size
of the dump. The respondents say
that one thousand tons of material next to the gate was sold to the
fourth respondent during the
first half of December 2015. The
respondents further allege that the material which was removed during
January 2016 was their own
material, about 5000 tons, which they
brought from a property about 600 m from the main dump to be screened
by the mechanical screen
at the site of the main dump.
[9]
I
t
is
not
necessary
to
find
that
the
respondents
have
removed
large
amounts
of
material
from
the
dump.
On
their
own
version
they
have
removed and sold small quantities
of material
and intend removing
larger
quantities of material for testing purposes if the value of the gold
retrieved
remained
a
viable
proposition.
They
are
not
entitled
to
do this
if the
applicant
i
s
the
owner
of
the
material
or
the holder
of
a
sec.
1
61(
1
)
permit.
They
also
do not
deny
that
they
have
concluded
an
agreement
with
the
fourth
respondent
for
the
sale
of
waste
rock
fines,
neither
have they
given
any
information
about
whether
or
not further
sales
to
the fourth
respondent
will
take
place
in terms
of
the
agreement.
I
n
my
view, the
applicant
has
established
a
reasonable
apprehension of
irreparable
harm.The
applicant’s
claim
is
of
a
vindicatory
or
quasi
-vindicatory
nature,
in
which
case
irreparable
harm
is,
in
any
event,
presumed
unless
rebutted
by
the
respondent.
[4]
[10]
The next requirement for the granting of an interim interdict is that
the balance of convenience favours the applicant. In
light of the
fact that the respondents have no rights in respect of the main dump,
the balance of convenience is clearly in favour
of the granting of a
temporary interdict. The respondents' present activities on the main
dump are clearly unlawful.
[
1
1
]
The
last
requirement
for
the
grant of
an
interim
interdict
is
that
the
applicant
must
have
no
other
satisfactory
remedy.
I
n
the
case
of a vindicatory
or
quasi-vindicatory
claim,
this is
again
presumed
and need
not
be
shown
by
the
applicant.
[5]
[12]
In the result, the applicant has satisfied the requirements for an
interim interdict and an order is granted in terms of prayers
2, 3
and 4 of the notice of motion.
Counsel
for applicant: Adv. G D Wickins Instructed by: Malan Scholes Inc,
Johannesburg
Counsel
for First, Second and Third Resondents: Adv. E L Theron SC;Adv. H J
Strauss
Instructed
by: Rontgen & Rontgen Inc, Pretoria
[1]
Apart from the main dump, there is a further dump which is referred
to as the second dump.
[2]
The Act has since been repealed.
[3]
There were in fact two appeals, the one dealing with portions 5 and
71 and the other with portion 69. The decision of the Director
General was the same in both.
[4]
See
Fedsure
Life
Assurance
Co
Ltd
v
Worldwide
African
Investment
Holdings
(Pty)
Ltd
and
Others
2003(3)
SA 268
(WLD) at
278B-F
[5]
See
Fedsure,
supra
at
278E-F