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[2016] ZAGPPHC 1139
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Makole Resources (PTY) Ltd & Another v Rockblend Manufacturing CC & Others (15736/2016) [2016] ZAGPPHC 1139 (21 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
21/10/2016
CASE
NUMBER 15736/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
MAKOLE
RESOURCES (PTY)
LTD 1
ST
APPLICANT
BLACK
ROYALTY MINERALS (PTY)
LTD 2
nd
APPLICANT
and
ROCKBLEND
MANUFACTURING CC
1
st
RESPONDENT
KEVIN
NELSON
2
nd
RESPONDENT
OWEN
NELSON
3
rd
RESPONDENT
ZWELAKHE
SITHOLE N.O.
4
th
RESPONDENT
LEAH
MADALANE
N.0.
5
th
RESPONDENT
PETRUS
GERHARDUS HUMAN N.0.
6th
RESPONDENT
BANGISWANI
KETTY PHALATSE N.O.
7th
RESPONDENT
'
HELENA
GELDENHUYS N.O.
8th
RESPONDENT
MAWATILE
JEREMIAH MOJALEFA N.O.
9th
RESPONDENT
PIETER
JACOBUS BENDER N.O.
10th
RESPONDENT
ROBERT
GRAHAM RANSOM N.O.
11th
RESPONDENT
DAVID
MASANABO N.O.
12th
RESPONDENT
THEMBA
TSHABANGU N.O.
13th
RESPONDENT
DINEO
NYANA SIKO N.O.
14th
RESPONDENT
DINEO
NYANA
SIKO
15th
RESPONDENT
ANDRIES
SKOSANA
16th
RESPONDENT
TSHEPO
MLALA
17th
RESPONDENT
CHARLES
MASANGO
18th
RESPONDENT
L.
MSIBI
1
9th
RESPONDENT
ROCKSHIELD
20th
RESPONDENT
THE
CITY OF TSHWANE
21th
RESPONDENT
JUDGMENT
SWARTZ
AJ
[1] On 25
February 2016 the applicants obtained on an urgent basis and
ex
parte
an interdict in the form of a
rule nisi with
a
return date 10 March 2016. The applicants now seek a final interdict
restraining the respondents from unlawfully interfering with
the
business of the applicants; unlawfully intimidating or impeding the
work of the applicants' employees; unlawfully damaging the
property
of the applicants and inciting members of the public to engage in
unlawful conduct.
[2] The
facts presented to the court on 25 February 2016 were as follows: In
the founding affidavit on behalf of the applicants,
one Ndavheleseni
Lodwick Mareda ("Mareda") avers that he is the sole
director and shareholder of the first and second
applicants. The
first applicant is a coal mining company and conducts coal mining and
related activities on its farms. The second
applicant is also a coal
mining company and possesses a coal mining permit for the purpose of
conducting coal mining and related
activities. The first applicant is
the owner of a portion of a farm in Bronkhorstspruit and the holder
of a mining license. During
or about October 2015 the first applicant
began its mining operations on a portion of the farm. It engaged the
services of the
first respondent on the basis that the first
respondent would conduct the mining operations for and on behalf of
the first applicant.
[3]
Mareda avers that on or about 10 February 2016 the first applicant
had a scheduled site inspection meeting with officials of
the
Department of Mineral Resources. Approximately sixty members of the
community arrived at the mining premises and demanded to
see the
officials.
These
'protesters' were hostile and hurling insults at the mine's Chief
Executive Officer. They were demanding that the first applicant's
employees leave the premises and, they were demanding to meet with
Mareda. Subsequent to that a meeting was held on 15 February
2016
where the 'protesters' demanded employment. At a follow-up meeting on
17 February 2016 a community representative, one Kate
Nene
'hi-jacked' the meeting and informed the community members that they
were mining illegally on the land. On 23 February 2016
a mob that was
uncontrollable, hostile and armed with traditional weapons such as
knobkierries and sticks arrived on site, mobilized
by one Lucky
Msibi. They informed the mine Chief Executive Officer that they were
against labourers who were not from the local
communities.
[4]
The applicants sought an interim order as it alleged to have a
prima
facie
right, as owners of the property on
which the mine is situated, to reserve access to its property.
Furthermore, they have a mining
permit in existence and as such, have
a right to conduct their mining operations uninterrupted. The
respondents were not entitled
to proceed with a protest march nor
were they entitled to intimidate any of the applicants' employees, or
incite members of the
community to support unlawful actions. Mareda
averred that the applicants would suffer irreparable harm if the
interim order was
not granted. The applicants' employees cannot
return to work freely and it had no other remedy than to obtain the
interdict.
[5]
In the founding affidavit, no allegations whatsoever was made against
the first, second and third respondents, demonstrating
why an urgent
order was sought and obtained against them. The interim order
obtained on 25 February 2016 was published and displayed
on the gates
of the mining premises. The first, second and third respondents
served their opposing affidavit on 8 March 2016. The
applicants had
ten days thereafter to file its replying affidavit. On 1O March 2016
the rule
nisi
was
extended to 20 April 2016. On that day the rule
nisi
was further extended to 6 June 2016. On 20
April 2016 the applicants served their replying affidavit, which
should have been filed
on or before 29 March 2016, without applying
for condonation for the late filing thereof. On 6 June 2016 the
matter was postponed
"sine die
to
the opposed roll on 1 November 2016" (sic). The court order
clearly does not state that the rule
nisi was
further extended.
[6]
The requirements for interdictory relief are trite, namely: conduct
on the part of the respondent which could either actually
be taking
place or which is reasonably feared will occur in future; the
respondent's conduct actual or threatened, must be wrongful;
the
applicant should have no other remedy and, for interim interdictory
relief, the balance of convenience should favour the applicant.
See
in this regard,
Sellogelo v Setlogelo
1914
AD 221
at 227.
[7] Over
and above these well-established requirements in order to obtain the
relief sought, it is trite that all necessary allegations
relied upon
by the applicant must appear in the founding affidavit. See
Director
of Hospital Services v Mistry
1979 (1) SA 626
(A)
at
635-636 where it was stated as follows:
"When,
as in this case, the proceedings are launched by way of notice of
motion, it will be to the founding affidavit which
a Judge will look
to determine what the complaint is. As was pointed out by Krause J in
Pountas'Trustee v Lahamas
1924
WLD 67
at 68 and as has been said in many other cases: ' ... an
applicant must stand or fall by his petition and the facts alleged
therein
and that, although sometimes it is permissible to supplement
the allegations contained in the petition, still the main foundation
of the application is the allegation of facts stated therein, because
those are the facts which the respondent is called upon with
either
to affirm or deny'".
[8]
Counsel who appeared before me on behalf of the applicants confirmed
that subsequent to the respondent filing an opposing affidavit,
the
applicant did not file the replying affidavit within the time limits
prescribed in terms of the Rules of Court. The evidence
contained in
the replying affidavit is not before court until such time as
condonation has been granted. The applicant is obliged
to seek
condonation for the non-compliance with the Uniform Rules of Court,
which was not done. As was stated with approval in
the Supreme Court
of Appeal, 'condonation of the non-observance of the Rules of this
Court is not a mere formality'. See:
Waltloo
Meat and Chicken SA {Ply) Ltd
V
Silvy
Luis {Ply) Ltd
&
Others
[2008] ZAGPHC 136
;
2008 (5) Sa 461
(T)
on
page 472 G-H: ' ... the court may not resort to information contained
in a document that is not before it. That, in my view,
is akin to the
case of an additional affidavit after the traditional founding,
answering and replying affidavits had been filed,
which cannot be
considered as part of the evidence until the court exercises its
discretion in terms of rule 6 (5)
(e)
(Standard Bank of SA Ltd v Sawparsahd
and Another
2005 (4) SA 148
(C)
para 13 at 155E). In that judgment Dlodlo J expressed
himself as follows:
"Clearly
a litigant who wished (
sic)
to
file a formal affidavit must make formal application for leave to do
so. It cannot simply slip the affidavit into the Court file
(as
appears to be the case in the instant matter). I am of the view that
this affidavit falls to be regarded as
pro non
scripto."
See
also
Beweging
vir Chrlstalik-Volksela Onderwys and Minister of Education and others
[2012]
2 All SA 462
(SCA)
par
25 & 26 on page 470: "... a court may on good cause shown,
condone any non-compliance with these rules ....Condonation
of the
non-observance of the Rules of this Court is not a mere formality. In
all cases some acceptable explanation ... must be
given.”
[9]
Not only did the applicants before me not apply for condonation for
the late filing of the replying affidavit, which I regard
as
pro
non scripto,
counsel for the applicants were
taken by surprise when counsel for the first, second and third
respondents argued, correctly, that
the rule
nisi
was
not further extended on 6 June 2016, when
the matter was postponed
"sine die
to
the opposed roll on 1 November 2016'
(sic),
and had lapsed. Clearly the rule
nisi
was not extended. Over and above this, as
mentioned above, there is no mention, whatsoever, in the founding
affidavit, to the first,
second and third respondent or to any
conduct on their part. No interdictory relief ought to have been
granted against them.
[10]
I now turn to the position regarding the fourth to fourteenth
respondents. Even if I were to accept that the interim relief
granted
against them had not lapsed, the difficulty for the applicant is its
failure to disclose material facts in seeking the
interim relief.
Disclosing these facts would have influenced the court in determining
whether to grant the interim relief or not.
The applicants have not
established a clear right to conduct mining operations. During
argument of the matter it became common
cause that the applicants
lack the necessary zoning approval.
The
fourth to fourteenth respondents are the Trustees of the Bronkies
Community Development Trust ("the Trust''). The Trust
was
established for the benefit of property owners and legal occupiers of
areas affected by coal mining in the Bronkhorstspruit
area. The
deponent of the answering affidavit for the Trust, Mr. Zwelakhe
Sithole ("Sithole"), avers that "coal
mining impacts
on the community positively in the sense that it creates employment
and stimulates economic development but it also
can have very
negative social and environmental impacts as a result of pollution
and destruction of agricultural land and damage
to property".
Letters dated 10 July 2013, addressed from the Department of Mineral
Affairs to a company addressed as "Messrs
Makole Electrical
(Pty) Ltd" merely confirm that it had applied for mining
permits. The letters clearly states amongst others
that: "...the
acceptance of your application does not grant you the right to
commence with the mining activities ... Should
you engage in
activities not authorized you will be in contravention of section 5
(4) of the Act and guilty of an offence ...
[11]
It is common cause that Sithole addressed a letter to the Executive
Mayor of Tshwane on 31 August 2015 stating that mining
was taking
place and that such activity was unlawful. Furthermore, a criminal
case was opened at the Bronkhorstspruit SAPS in mid-September
2015.
The applicants applied to the City of Tshwane on 9 December 2015 to
re-zone parts of the farm and the motivation memorandum
clearly
states that, while rezoning was still required, mining activity had
already commenced. It is common cause that the applicants
had
commenced mining activities without the appropriate zoning
permission. I am satisfied that the applicants have not established
a
clear right to conduct mining operations. This is also a material
fact that had not been disclosed to the court in the founding
affidavit when the interim order was obtained. In
Schlesinger v
Schlesinger
1979 (4) SA
342
at 349 A-C, it was stated
as follows:
"It
appears quite clearly from the authorities that:
(1)
in
ex parte
applications all material facts must be disclosed
which
might
influence a Court in coming to a decision;
(2)
The non-disclosure or suppression of facts need not be willful or
mala fide
to incur the penalty of rescission; and
(3)
the Court, apprised of the true facts, has a discretion to set aside
the former order or to preserve it.
Although
these broad principles appear well settled, I have not come across an
authoritative statement as to when a Court will exercise
its
discretion in favor of a party who has been remiss in its duty to
disclose, rather than to set aside the order obtained by
it on
incomplete facts ...”
[12]
The applicants obtained the order on 25 February 2016. It is common
cause that, on 16 February 2016, the first respondent,
who was
contracted to the first applicant in its mining operations, had
seized operations on site and withdrew all its machinery
and
equipment from the property. I am persuaded by the argument that the
entire application brought as a matter of urgency, repeatedly
extending the rule
nisi,
was
an abuse of the court process. I am satisfied that a punitive costs
order is justified.
In
the result, I make the following order:
1.
The rule
nisi
is discharged.
2. The
applicants are ordered to pay the costs of the first to fourteenth
respondents on the attorney-client scale, including the
costs
reserved on 10 March 2016, 20 April 2016, 6 June 2016 and 17 October
2016.
E.L.
SWARTZ
ACTING
JUDGE OF THE HIGH COURT
CASE
NO: 15736/2016
HEARD
ON: 17 October 2016
FOR
THE APPLICANTS: ADV. T. MOTLOENYA
INSTRUCTED
BY: ME Lemekwana Attorneys
FOR
THE 1
ST
- 3
RD
RESPONDENTS: ADV. J.J. GREEFF
INSTRUCTED
BY: Wynand Prinsloo & Van Eeden Inc
FOR
THE 4
TH
- 14
TH
RESPONDENTS: ADV. MOSIKILI
INSTRUCTED
BY: RICHARD SPOOR INC. ATTORNEYS
DATE
OF JUDGMENT: 21 October 2016