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[2016] ZAGPPHC 810
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Inyaku Game Farm(Pty)Ltd v Gelletich Mining Industries (Pty)Ltd and Others (51602/2014) [2016] ZAGPPHC 810 (6 September 2016)
1
T
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 51602 / 2014
DATE:
6/9/2016
In
the matter between:
INYAKU
GAME FARM (PTY)
LTD
…....
APPLICANT
And
GELLETICH
MINING INDUSTRIES (PTY) LTD
…...................................
1
st
RESPONDENT
MICA
MARULA INVESTMENT COMPANY (PTY) LTD
…........................
2
nd
RESPONDENT
INGWE
MICA INDUSTRIES (PTY) LTD 3RD RESPONDENT
MARULA
COSMETIC PRODUCTS (PTY) LTD
....................................
..
4
th
RESPONDENT
THE
REGIONAL DIRECTOR
DEPARTMENT
OF MINERAL RESOURCES,
LIMPOPO
PROVINCE
............................................................................
5
th
RESPONDENT
THE
MINISTER OF MINERAL
RESOURCES
.........................................
6
th
RESPONDENT
JUDGMENT
Fabricius
J,
1.
Applicant
herein initially launched an application in terms of which it sought
that the First to Fourth Respondents be interdicted
from pursuing any
building activities on the property known as Portion 3 of the farm
Hoofpyn in the Maruleng District of Limpopo
Province and conducting
any processing of marula nuts/pips on the property. It was also
sought that the Respondents be ordered
to vacate the property
forthwith, and a cost order was sought. On 19 August 2014, the
application served before Tuchten J, who
made an order "noted
undertakings in terms of Prayers 1 and 2", and "that the
undertakings in this order shall remain
in force pendent lite".
The application was postponed
sine die.
The undertakings
clearly relate to the building activities and the processing of
marula products.
2.
Before
me the only issue is whether or not the Respondents ought to be
evicted from the property.
3.
The
Applicants say that the remedy applied for by it is the
rei
vindicatio,
and in order to succeed it must allege and prove:
3
.1 Ownership of the property; and
3.2
That the Respondents were in possession of the property when the
application was brought.
These
two elements were in fact common cause. It was also averred that it
was settled law that when a respondent relies upon a right
to
possession, that respondent must allege and prove that right.
See:
Woerman v Basondo
2002 (1) SA 811
(SCA).
4.
The
Respondents rely, in this context, on an "Old Order Mining
Right'. This right is
defined
as follows in
Item 1 of Part
II
of the
Mineral and Petroleum Resources Development Act 28 of 2002
.
""Old
Order Mining Right' means any mining licence,
mynpagten,
consent
to mine, permission to mine, claim licence, mining authorization or
right listed in Table 2 to this Schedule in force immediately
before
the date on which this Act took effect and in respect of which mining
operations are being conducted".
Table
2 defines "Old Order Mining Right'' in six categories, all six
of which mention
an
underlying common law right in juxtaposition with a mining
authorization issued to
facilitate
exploitation of the underlying right. As a consequence, so it was
argued on
behalf
of Applicant, an "Old Order Mining Right', is in fact a new
right created by
statute.
See:
Minister Mineral Resources and Others v Sishen Iron Ore Company
(Pty)
Ltd
and Another
2014
(2)
SA 603
(CC) at par.
57.
The underlying common law minwral right is not preserved
in terms of the new statutory dispensation brought about by the
mentioned
Act
See:
Holcim (SA) (Pty) Ltd v Prudent Investors (Pty) Ltd /2001]
1 All
SA 364
(SCA)
at par. 37
and
Xtrata South Africa (Pty) Ltd and Others
v SFF Association
2012 (5) SA 60
(SCA) par. 8.
5.
Applicant's
Counsel therefore submitted that in order for an "Old Order
Mining Right" to be established, the mining Respondents
must
allege and prove:
5.1
A valid mining authorization; and
5.2
An underlying common law or statutory right.
This
was not done in the Answering Affidavit. The mining authorization on
which the Respondents relied provides that it was issued
to the First
Respondent only and then for a limited period.
Item
7
(1) of Schedule 2 of the Act
provides as follows:
"Subject
to sub-items ( 2) and (8) any Old Order Mining Right in force
immediately
before
this
Act
took effect continues in force for a period not
exceeding five years
whichever period is the
shortest, subject to the terms and conditions under which it was
granted or issued or was deemed to have
been granted or issued".
6.
Applicant's
Counsel therefore submitted that the "Old Order Mining Right''
can in law not exist beyond the expiry date of the
mining
authorization, and without the mining authorization the underlying
common law or statutory right cannot survive even if
the mining
Respondents had applied timeously for the "Old Order Mining
Right'' to be converted into a "New Order Mining
Right".
Consequently, it was submitted that the only possible right which the
mining Respondents may have had to remain upon
the property has
fallen away, and they ought therefore to be evicted.
7.
On
behalf of the Respondents, and in the light of the fact that it was
common cause that First Respondent was the owner of an "Old
Order Mining Right'', it was argued
7
.1
Whether, despite the legislative promises of a security of tenure,
the "Old Order Mining Right" of First Respondent
did indeed
lapse by operation of law on 18 August 2012, as was alleged by the
Applicant;
7.2
If this mining right had not lapsed, whether the Respondents are
entitled to conduct mining operations on Portion 3.
8.
It
was contended that the "Old Order Mining Right'' had not lapsed:
8.1
First Respondent became the holder of an " Old Order Mining
Right'' with effect from 1 May 2004, when the
Act
came into
effect; and
8.2
The said right had not lapsed by operation of law given the proper
lodgement
thereof
for conversion.
It
endures and gives First Respondent security of tenure.
When
the
Act
came into effect on 1 May 2004, First Respondent lost
all of its common law mineral rights under the previous legislative
dispensation,
but then created specifically for the purpose of
transition to the new legislative dispensation.
Reference
was made in this context to
Xtrata supra at par. 10,
and
Holcim supra at par. 15 to 26.
It was submitted that
formally First Respondent became the holder of an "Old Order
Mining Right'' in respect of Portion 3 of
the relevant property, but
in substance its rights, entitlements, duties and obligations
remained the same.
9.
In
the context of the question whether or not the "Old Order Mining
Right'' had lapsed by operation of law, the distinction
drawn in
Schedule 2 of the Act,
between "unused old order
right'' and an "Old Order Mining Right'', needed to be
considered. An "unused old order
right" was defined to mean
any right, entitlement, permit or licence listed in
Table 3
to
the
Schedule
in respect of which no prospecting or
mining was being conducted immediately before the
Act
took
effect. An "Old Order Mining Right'' was defined to mean any
mining lease,
mynpagten,
consent to mine, permission to mine,
claim licence, mining authorization or right listed in
Table 2
to and in repect of which mining operations were being
conducted. In the present case, there were on-going and continuing
mining
operations on Portion 3. The concept of "security of
tenure", had to be considered in this context as well, and
Section
2 (g) of the
Act
stated the following: "The
objects of this
Act
are to... provide for security of tenure
in respect of prospecting, exploration, mining and production
operations; ..."
Item 2 (a) of Schedule 2 of the Act,
which regulates a transition from the old order to the new
order states that "The objects of this Schedule are an addition
to the objects contemplated in Section 2 of the
Act
and are to
... ensure that security of tenure's protected in respect of
prospecting, exploration, mining and production operations
which are
being undertaken".These objects were of special importance and
relevance, because of Section 4 of the
Act
which provides as
follows: "4
Interpretation of
Act
1.
When interpreting a provision of this Act, any reasonable
interpretation which is consistent with the objects of this Act must
be preferred over any other interpretation which is inconsistent with
such objects.
2.
Insofar as the common law is inconsistent with this Act, this Act
prevails.”
In
the abovementioned context
Item 7
(1)
of Schedule 2
of the
Act
needs to be considered. It reads as follows: "Subject to
sub-items (2) and (8), any Old Order Mining Right in force
immediately
before this Act took effect continues in force for a
period not existing five years from the date on which this Act took
effect
or the period for which it was granted, whichever period is
shortest, subject to the terms and conditions under which it was
granted
or issued or was deemed to have been granted or issued".
First Respondent was granted mining licence ML14/ 2002 in terms of
the previous
Minerals Act 50 of 1991
for a period of 10
years up to 18 August 2012. The
Act took
effect on 1 May 2004.
11.
It
was contended that Applicant's argument was mis-conceived, because it
ignored
the
introductory qualifier to Item 7 ( 1), namely the reference to
sub-item 7 ( 2). This provides that the holder of an "Old
Order
Mining Right'' must lodge the "Old Order Office of the Regional
Manager in whose region the land in question is situated.
This could
only be a reference to the shorter period for which the "Old
Order Mining Right'' continued in force, which meant
that in this
case the "Old Order Mining Right' had to be lodged for
conversion before or on 30 April 2009. This was indeed
done on 30
April 2009. It was contended that once the "Old Order Mining
Right'' was lodged timeously for conversion, it does
no cease to
exist, but continues in force. This was not only the common-sense
interpretation, but also gave effect to the stated
ideal of security
of tenure. Item
7
(7), was also relevant in this context:
"Upon
the conversion of Old Order Mining Right and the registration of the
mining
right
into which it was converted, the Old Order Mining Right ceases to
exist". If all
and
any old mining rights would lapse on 30 April 2009, regardless of
whether or not there was a timeous lodgement for conversion,
this
Item would have been superfluous and non-sensical.
12
Order
Mining Right'' would cease to exist in terms of Item 7, namely:
12.1Where
the holder of the "Old Order Mining Right'' failed to lodge it
for conversion within the period stipulated in Item
7
( 1)
thereof; and
12.2
Where the holder thereof lodged the "Old Order Mining Right''
timeously for conversion within the period stipulated in
Item
7
(
1) thereof, lapsing only on the moment of registration of the
converted right.
It
was
therefore contended that Applicant's argument,
namely that the "Old Order Mining Right'', regardless of having
been timeously
lodged for conversion as First Respondent did, would
simply lapse after the next period of five years from the
commencement of
the
Act,
even if that process was not
completed because of problems within the Department of Mineral
Resources over which an Applicant would
have no control, made a
mockery of the concept of security of tenure and of seeking a
reasonable interpretation as enjoined by
Section 4 of the
Act
It
was also contended that the interpretation advanced by Applicant
would lead to the stultification and disruption of the mining
sector,
a consideration that was important and had to be avoided.
See:
Holcim
supra
at
par. 26.
In
the present instance the conversion had been approved, but
registration had not yet taken place.
13.
It
was therefore contended that there was no lapsing of the "Old
Order Mining Right'', and in fact it continued in force until
registration thereof. On
litis contestatio,
the First
Respondent was therefore the holder of an "Old Order Mining
Right'' which is in the nature of a limited real right
in and upon
Portion 3, and it was therefore entitled to be on the land.
14.
Upon
a proper interpretation of the provisions that I have mentioned, I
agree with the argument advanced on behalf of the First
and Second
Respondents
, Mr M.
Oosthuizen
SC is indeed correct. The interpretation contended for by him makes
and Third Respondents were also entitled to be on
the premises,
having regard to the First Respondent's rights as a holder of a "Old
Order Mining Right''. They are present
on Portion 3 through the
employees they provide for the mining operations.
15.
Upon
a proper interpretation of the order by my colleague Tuchten J, no
interim interdict was issued, and there is no basis for
making any
order in accordance therewith.
16.
The
following order is therefore made:
The
application is dismissed with costs including the cost of two
Counsel.
JUDGE
H.J FABRICIUS
JUDGE
OF
THE
GAUTENG HIGH
COURT,
PRETORIA DIVISION
Case
number: 51602 /14
Counsel
for the Applicant:
Adv S. Mulligan
…
................................................................I
nstructed
by: Nixon & Collins Attorneys
Counsel
for the 1
st
to 4
th
Respondents:
Adv M. M. Oosthuizen SC
…
....................................................................
Adv
A. Higgs
…
.................................................................
Instructed
by: Savage Jooste & Adams Inc
Date
of Hearing: 30
August 2016
Date
of Judgment: 6 September 2016 at 10:00