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[2014] ZAGPPHC 195
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Coal of Africa Limited and Another v Akkerland Boerdery (Pty) Ltd (38528/2012) [2014] ZAGPPHC 195 (5 March 2014)
IN THE
NORTH GAUTENG HIGH COURT PRETORIA
CASE
NO: 38528/2012
DATE:
05 MARCH 2014
In the matter between:
COAL OF
AFRICA
LIMITED
............................................................
First
Applicant
REGULUS
INVESTMENT HOLDINGS (PTY) LTD
......................
Second
Applicant
And
AKKERLAND
BOERDERY (PTY)
LTD
.................................................
Respondent
JUDGMENT
N F
KGOMO, J:
INTRODUCTION
[1]
On 4 July 2012 the applicants launched
the application against the respondent for an order
-
in the following terms:
1.1
Interdicting and restraining respondent
from refusing first applicant access to the farm Lukin 643 MS.
Administrative District of
Soutpansberg, Limpopo Province for the
purpose of conducting prospecting operations on that land pursuant to
prospecting right
4/2005 executed on 14 June 2006 and the renewal
thereof executed on 25 November 2009 and any further renewal thereof;
1.2
Authorising first applicant -
1.2.1
to enter onto the farm Lukin 643 MS
together with its employees and to bring onto the land any plant,
machinery or equipment and
build or lay down any surface or
underground infrastructure which may be required for purposes of
prospecting;
1.2.2
to carry out any other activity
incidental to its prospecting operations.
1.3
Interdicting and restraining respondent
from refusing second applicant access to the farm Salaita 188 MT,
Administrative District
of Soutpansberg, Limpopo Province for the
purposes of conducting prospecting operations on that land pursuant
to prospecting right
5/2005 executed on 19 April 2005 and the
renewal thereof executed on 9 April 2010 and
any further renewal thereof.
1.4
Authorising second applicant -
1.4.1
to enter onto the farm Salaita 188 MT
together with its empioyees and to bring onto the land any plant,
machinery or equipment and
build, construct or lay down any surface
or underground infrastructure which may be required for purposes of
prospecting;
1.4.2
to carry out any other activity
incidental to its prospecting operations.
1.5
Ordering the respondent to pay the costs
of this application; and
1.6
Granting the applicant such further
and/or alternative relief as this Court may deem appropriate.
[2]
On the date of the hearing of this
application, i.e. on 22 July 2013, the applicants sought and were
granted amendment of the Notice
of Motion, the effect whereof was to
replace the date, “14 June 2006” in prayer 1.1 with the
date “2 October
2006, as amended on 19 January 201 T\ as well
as to replace the phrase “executed on 25 November 2009 and any
further renewal
thereof with the phrase, sought on 4 July 2011. and
which renewal is still pending”.
[3]
On the same date, i.e. 22 July 2013, the
second appiicant withdrew its application against the respondent as
the prospecting right
granted to it in favour of the farm Saiaita,
which right is referred to in the papers as PR 161 or 161 PR, expired
due to effluxion
of time in April 2013. This Court is thus left with
the application relating to the farm Lukin, whose prospecting right
is referred
to in the papers herein as Lukin 38 PR or simply 38 PR to
deal with.
[4]
The applicants also served and filed an
amended Notice of Motion, wherein the first appiicant as the sole
applicant (even though
both the applicants are cited as such) sought
an order in the following terms:
4.1
Interdicting and restraining respondent
from refusing first appiicant access to the farm Lukin 643 MS,
Administrative District of
Soutpansberg. Limpopo Province, for the
purpose of conducting prospecting operations on that land pursuant to
prospecting right
4/2005 executed on 2 October 2006, as amended on 19
January 2011 and the renewal thereof sought on 4 July 2011, and which
renewal
is still pending;
4.2
Authorising the first applicant -
4.2.1
to enter onto the farm Lukin 643 MS
together with its employees and to bring onto the land any plant,
machinery or equipment and
build, construct or lay down
any surface or underground infrastructure which
may be required for purposes of prospecting;
4.2.2
to carry out any other activity
incidental to its prospecting operations.
[5]
The applicants proceeded to set out the
orders they sought in respect of the farm Salaita. I do not intend to
repeat them in this
judgment because the orders and prayers sought by
the applicants, specifically the second applicant, against the
respondent were
withdrawn unreservedly.
[6]
It is necessary to explain the use of
registration numbers 4/2005 and 38 PR which are both used in this
matter to refer to the prospecting
rights in respect of the firm
Lukin 643 MS. 38 PR is part of the reference number LP 30/5/1/1/2/38
PR, which is the fiie reference
used in the Department of Minerals
and Petroleum Resources Development; whereas the number 4/2005 is the
reference number allocated
to the prospecting rights at the Deeds
Registry when same was registered.
THE PARTIES
[7]
The first applicant, Coal of Africa Ltd
(“Coal of Africa" or “first applicant’
interchangeably), is a company
incorporated according to the laws of
Australia under Registration No CAN 008905388 and registered as an
external profit company
according to the laws of the Republic of
South Africa
(“RSA”) under Registration No
2012/051325/10, which has its principal place of business at 2
nd
Floor, Gabba Building, The Campus, 57 Sloane Street, Bryanston,
Johannesburg. The first applicant conducts business among others
as a
coal mining and exploration company.
[8]
The second applicant, Regulus Investment
Holdings (Pty) Ltd, is a private company registered and incorporated
in terms of the company
laws of the RSA. with its principal place of
business also being the same as that of the first applicant i.e. 2
no
Floor, Gabba Building. The Campus, 57 Sloane Street. Bryanston. Tne
second applicant is wholly owned by the first applicant and
aiso
conducts business as a coa! mining and exploration company, among
others.
[91 The respondent. Akkeriand 3oerdery (Pty)
Ltd, is a private company registered and incorporated in terms of the
company laws
of the RSA, with its registered address being at 321
Alpine Way, Lynnwood. Pretoria. The respondent is the registered
owner of.
and as such holds the surface rights in relation to, the
properties known as the farm Lukin 643 MS, Title Deed Registration No
T79229/1998 (“Lukin”) and the farm Salaita 188 MT, Title
Deed Registration No T79230/1998 {“Salaita”).
[10]
It is common cause as well as clearly
apparent ex facie the Title Deeds that the mineral rights on the two
farms were reserved to
the State in 1944, which reservation is still
valid and/or operative to date, under Certificate of Mineral Rights
No 588/1944 RM.
Consequently accordingly, the respondent has never
had and does not have any claim or titie or right to those rights
and/or to
compensation in respect of them, specifically herein, to
the coal on or underlying the properties.
CIRCUMSTANCES GIVING RISE TO THIS APPLICATION
[11]
The genesis of this application is the
respondent's refusal to allow the first appiicant access to the farm
Lukin for the latter
to continue with prospecting operations.
[12]
The respondent reiies on several grounds
for its refusal to grant tne requisite access. On the one hand, it
can be understood as
purporting to deny that the first applicant has
a clear right to enter its property for purposes of prospecting. On
the other hand,
an impression is gained that the respondent is not
actually disputing the existence of the right to prospect on the farm
Lukin,
but rather whether or not the existing prospecting rights
thereon were vaiidly conferred by the Department of Minerals and
Petroleum
Resources Development. Secondly, the respondents contended
that proper consultations with themselves as landowners involved were
not undertaken relative to the issue of access to their land by the
first appiicant.
[13]
The respondent alleges further, that the
requirements of the Mineral and Petroleum Development Act “MPRDA”
were not
met when the prospecting rights over Lukin were conferred.
Their argument is that the prospecting rights over Lukin were not
validly
conferred on the applicants, that the environmental
management plan in respect thereof (“EMP”) was not
validly approved
and that the operative prospecting work program
(“PWP’) did not comply with the regulations promulgated
pursuant to
the MPRDA. IT was the respondent’s further
contention that the prospecting right was not registered in terms of
the Mining
Titles Registration Act 16 of 1967 (“MTRA”).
[14]
The respondent also alleged that the
farm Lukin is not zoned for prospecting or mining activities and that
in any event, any prospecting
by the applicant thereon would breach
the provisions of the
National Water Act 36 of 1998
.
[15]
The respondent also avers that the
requirements for the grant of a final interdict, especially the
requirements of “clear
righf and “Lack of a suitable
alternative remedy” were not made out.
[16]
Another bone of contention between the
two parties is the issue of the continued validity of the prospecting
rights over the farm
Lukin. According to the applicant the first
five-year period of their validity expired in 2011 and an application
for their extension
for the allowed further three year period is
still pending with the relevant authorities. According to the
respondent those rights
expired finally on 13 June 2012 after their
extension, on 14 June 2009.
[17]
The- inter-reiatedness of the
respondent's grounds of refusing the first appiicant access to Lukin
is ably demonstrated by the following
except from its answering
affidavit:
[1]
“7. Within the same context and against
the background of the fundamental nature of the right of ownership in
the [farm],
we submit... that the applicants did not demonstrate a
clear right as an indispensibie prerequisite for the interdictory
reiief
claimed.
7.1
For the submission we rely on any one or
more of the
following four alternative propositions,
namely.
7.1.1
that, firstly, the transfer and cession
of the [two] prospecting rights to the [two] applicants are invalid
because the officials
who purported to consent to those transfers and
cessions were not authorised in law to do so for want of delegated
power, or
7.1.2
that, secondly, the [two] amended
prospecting rights upon which the [two] applicants rely for relief
against Akkerland Boerdery
cannot be enforced against it because
those prospecting rights as amended have not yet been registered in
the Mineral and Petroleum
Titles Registration Office under the Mining
Titles Registration Act 16 of 1967 as amended and/or. as far as the
farm Lukin is concerned,
the cession or transfer has not yet been
registered under the MTRA so that for this reason also that
prospecting right is not enforceable
against Akkerland Boerdery: or
7.1.3
that, thirdly, the [two] amended
prospecting rights upon which the [two] applicants rely for relief
against Akkerland Boerdery cannot
be enforced against it because the
prospecting work program(mes), forming an Integral part thereof are
either invalid or non-compliance
with the prescripts of
regulation 7
of the
Mineral and Petroleum Resources Development Regulations or
are
so vague that they are unenforceable: or
7.1.4
that, fourthly, the [two] applicants do
not have the required zoning permission from the local authority
that would permit the intended prospecting
activities on the [two] farms and such activities are in terms of the
provisions of the
Town-Planning and Townships Ordinance 15 of 1986
[2]
indeed prohibited upon pain of a criminal sanction f
[181 I have placed some words like "two'
in brackets to signify that the quote should be understood as
referring only to the
farm Lukin. The excerpt was originally in
respect of both Lukin and the farm Salaita.
[19]
I will elaborate on the above further on
in this judgment.
[20]
The first applicant strongly relied upon
section 25 of the Constitution of the Republic of South Africa Act 20
of 1996 (“the
Constitutionthe relevant portions whereof read as
follows:
“(1) No one may be deprived of property
except in terms of law of general application, and no law may permit
arbitrary deprivation
of property.
(2)
Property may be expropriated only in
terms of law of general application -
(a)
for a public purpose or in the public
interest; and
(b)
subject to compensation, the amount of
which and the time and manner of payment of which have either been
agreed to by those affected
or decided or approved by a court
[21]
Within the context of the above words
from our Constitution, it was submitted on behalf of the respondent
that -
"... Within this context and against the
background of the fundamental nature of the right of ownership in the
... farm(s).
we submit ... that this application is moot or academic
because one prospecting right is about to expire on 18 April 2013
(and
by the time of the hearing in this matter it would have already
expired) whilst in our submission the other prospecting right expired
on 13 June 2012, in both instances by operation of law, and as such
they cannot justify or legitimise any infringement or limitation
of
the rights of ownersnip to the ... farm(s)."
L
[22]
It is my considered view that the above
contention may be tenable and somewhat acceptable if the basis
therefor as set out therein
was found to be correct. An appropriate
conclusion will be made when the standpoints of the two contesting
parties have been analysed.
STATUTORY PRESCRIPTS APPLICABLE
[23]
Prior to the introduction of the MPRDA,
it was universally accepted that mineral rights were real rights. It
is for this reason
that they were accepted as real rights that they
were required to be registered under the Deeds Registry Act. Common
law mineral
rights as previously known have been done away with under
the MPRDA and have been replaced with various statutorily defined
rights,
including prospecting rights, which are granted by the
Minister of Mineral Resources.
3
[24]
Prospecting rights granted in terms of
the MPRDA are limited reai rights in respect of the mineral and the
land to which such rights
relate.
6
There is nowhere in the applicable section where it is stated that
for a prospecting right to be recognised as a real right (albeit
a
limited one), it should be registered in terms of or under the MTRA
first.
[25]
A conclusion cannot thus be escaped,
that a prospecting right becomes a real right in respect of the
mineral and the land when it
is granted under the MPRDA, not when it
is registered under the MTRA.
[26]
Section 5(3)(a) of the MPRDA provides as
follows:
“Subject to this Act, any holder of a
prosoecting right may enter the land to which such right relates
together with his or
her employees and may bring onto the land any
plant, machinery or equipment and build, construct or lay down any
surface, underground
or under sea infrastructure which may be
required for the purposes of prospecting
[27]
It deserves mention that part of the
applicants’ Notice of Motion in this matter is couched in the
very words of section 5(3)(a)
quoted above.
[28]
As regards the issue of the registration
of a prospecting right, section 19(2) of the MPRDA states as follows:
“The holder of a prospecting right must -
(a)
lodge such right for registration at the
Mining Titles Office within 30 days of the date on which the right -
(i) becomes effective in terms of section
17(5); or
(77; is renewed in terms of section 18(3);
(b)
commence with prospecting activities
within 120 days from the date on which the prospecting right becomes
effective in terms of
section 17(5) or such an extended period as the
Minister may authorise.”
[29]
Section 17(5) of the MTRA reads as
follows:
“The granting of a prospecting right in
terms of subsection (1) becomes effective on the date on which the
environmental management
programme is approved in terms of section
39.”
[30]
It was submitted on behalf of the first
applicant that the plain reading of section 19(2) of the MPRDA
envisages that registration
may occur after the right has become
effective, i.e. when it has become enforceable, especially when it is
apparent that the section
treats separately the concepts of (a)
lodging the right in terms of the MTRA for registration and (b) the
exercising of the prospecting
right. I tend to agree. A holder of a
prospecting right must lodge its registration within 30 days and must
commence prospecting
within 120 days of the right becoming effective
under section 17(5) of the MTRA. If enforcement of the right, and in
particular,
if prospecting was dependent on prior registration under
the MTRA, section 19(2)(b) of the MPRDA would have unambiguously
linked
the commencement of prospecting io the registration of that
right to orospect.
[31]
If the respondent’s contention is
anything to go by, the holder of a prospecting right cannot commence
with prospecting activities
- which include or involve entering the
land in relation to which the right is granted - until a real right
has been conferred
on it through the mechanism of registration under
the MTRA. The above presuppose that the holder of the right would be
in breach
were it to commence with prospecting prior to registration.
[32]
Such an interpretation, that a
prospecting right becomes “effective” but remains
unenforceable against the owner of
the land in respect of which it
has been granted and notice thereof given to such owner, because it
has not been registered, would
be impractical as well as stultify the
broader operation of the MPRDA. It would also result in an absurdity.
It can even render
ineffective the strict periods within which
prospecting should be conducted unless the effect of the respondent's
submission is
that further applications for changes in the periods of
validity of such prospecting rights should also be embarked upon.
Experience
have proved that officialdom have a way of procrastinating
and taking months or years before dealing with applications, as has
been the case in this application also where applications iodged many
months back are still pending.
[33]
That in my view and finding cannot be
said to be what the iegisiature intended when the applicable statutes
were passed. It would
be out of synch with the spirit of the
legislation.
[34]
The above interpretation in my further
view is fortified by the definition of ‘right” in section
1 of the MPRDA. It
is defined as -
"... any right held by or under any deed
and registered or capable of being registered in terms of the Mineral
and Petroleum
Resources Development Act. 2002." (my emphasis)
[35]
Section 18(5) of the MPRDA provides that
-
"... a prospecting right in respect of
which an application for renewal has been lodged shall, despite its
stated expiry date,
remain in force until such time as such
application has been granted or refused."
[36]
Tne fact that the situation in relation
to an existing right to prospect tnat is about the expire and its
holder has applied for
its extension is clearly circumscribed, unlike
the situation in relation to a new right, in my further view supports
the finding
I am making.
[37]
A prospecting right is vaiid for an
initial period of 5 years and can be renewed only once for a further
period of 3 years.
[38]
It is correct, as the respondent went to
lengths to point out, that land ownership is not placed on a
back-burner when prospecting
right acquisition and prospecting
operations are at work. The MPRDA itself has as one of its core
objectives the giving of effect
to section 24 of the Constitution.
[3]
An applicant for a prospecting right under the MPRDA is obliged to
satisfy the relevant Department(s) that environmental considerations
justify the grant of the right, which in its nature, presupposes the
invasion, actual and potential of the environmental and property
rights conferred by section 24 of the Constitution.
[4]
Therefore, an application for prospecting rights may only be granted
if. among other things, the prospecting will not result in
unacceptable pollution and/or ecological degradation or damage to the
environment.
[5]
[39]
To ensure that environmental
considerations are adequately recognised and addressed when the
granting of a prospecting right is
in
issue, the MPRDA provides for
consultation at various ievels. both before and after the grant of
such a right. An environmental
management plan, which represents a
scheme of things aimed at indicating how the management and
rehabilitation of the impact on
the environment is to be dealt with,
must be submitted. This requirement in my view, is a legislative
acknowledgement that prospecting
and, to a far extent, mining, (which
may or may not follow a successful prospecting operation) by its very
nature, harms the environment.
This invasion of an owners right of
ownership and accompanying harm to the environment by prospecting and
mining is,
in
principle, justified by the need
to
promote development and to contribute towards
the redress of poverty and lack of access to the resources and the
riches of our country
by as many of the inhabitants of our country in
iine with the previous, preconstitutional dispensation.
[6]
In keeping with the provisions of section 10(1) of the MPRDA, the
decision-maker who determines whether or not to grant a right
under
the MPRDA must balance environmental considerations against the other
objects of the measure to determine whether the harm
is unacceptable.
The views and interests of the landowner, who may be unwilling to
allow his/her property to be “invaded'
this way, and those of
the broader community, must be taken into account in the
decision-making process.
[7]
[40]
Even after the grant of a prospecting
right, the prospector does not have an unrestricted and unregulated
right to enter the property
and exercise those rights. He must do so
in accordance with the MPRDA, the conditions of his prospective right
and other relevant
legislative prescripts.
[8]
He must comply with the requirements of the environmental management
plan which he had to submit and have had approved before he
could be
awarded his prospecting right. There are timeframes within which
prospecting must commence from the date on which the
prospecting
right became effective and before he actually enters the land where
prospecting is to take place, he must notify the
landowner or lawful
occupant of his intention to do so and engage in appropriate
consultations with such landowner or lawful occupant.
[9]
[41]
The Mineral, Petroleum and Energy
Department (“Department') is given wide powers to control the
manner in which a prospector
conducts himself or does his prospecting
work on the land. It has the power to instruct the prospector to take
urgent remedial
measures to protect the health and wellbeing of any
affected persons or to remedy ecological degradation it is causing or
has caused,
ensure that the prospecting operations do not contribute
towards irrevocable degradation of the ecology and order cessation of
activities or operations when any of the above do occur, or take
steps on its own to prevent any of the above happening. It can
under
certain circumstances even suspend or cancel a prospecting right.
10
[42]
The legislature has enacted a wide range
of measures to implement constitutional obligations under section 24
of the Constitution
in relation to the environment. The National
Environmental Management Act
16
(“NEMA”) sets out the principles which apply to all
actions which may significantly affect the environment and also
guide
the interpretation, administration and implementation of all laws
concerned with the protection or management of the environment.
17
[43]
The National Environmental Management :
Protected Areas Act
18
(“NEMPA”) protects and enables the conservation of
ecologically viable areas representative of South Africa’s
biological diversity and its natural landscapes and seascapes. It
provides for the creation by administrative aecision- makers.,
of
protected areas like nature reserves. Under NEMPA, no commercial
prospecting or mining activity may be conducted within such
protected
areas as would have been created even after prospecting and/or mining
rights had already been granted in respect of such
area.
19
[44]
The long and short of the position as
governed by the above Acts is that the nature of the rights created
under mining and environmental
legislation (which include
prospecting) is such that a number of different and potentially
competing rights and interests must
be considered and. if possibie,
accommodated. That is the reason why the many steps of the process
towards the creation and/or
enjoyment of the rights are accompanied
by wide consultative processes. However, none of the parties involved
or relevant to such
consultative processes should be or be seen as
being obstructive.
[45]
Such consultations are not confined to
between aspirant prospective and landowners, aspirant prospectors and
the broader community,
Department and landowner or the Department and
the public. There must aiso be co-ordination and consultations
between the different
affected State Departments which administer
prospecting and mining generally as well as environmental issues
related thereto. In
short, the Department is obliged to consult with
their colieagues responsible for the administration of NEMA and NEMPA
whenever
the adequacy of the environmental management plan, the
approval of which is a prerequisite for a prospecting right to be
granted
or to become effective, is being considered.
[46]
Municipal Bye-laws applicable within the
area prospecting is to be conducted should also be respected and
complied with.
HISTORY OF LUKIN 643 MS’s PROSPECTING
RIGHTS
[47]
Initially, the right to prospect on the
farm Lukin originally fell within a different prospecting right,
30/5/1/1/2/G1 PR (“61
PR’), and not 38 PR as it now does.
This initial right was notarially executed together with its
prospecting work programs
(“PWP
!
s”)
on 14 June 2006 and was registered under the MTRA on 3 July 2006. Its
environmental management plan (“EMP”)
was also approved
on 14 June 2006. This initial right was held by Kwezi Mining (Pty)
Ltd (“Kwezi Mining"). Before it
expired on 13 June 2009,
Kwezi Mining applied for its renewal. Such renewal was approved and
notarially executed on 25 November
2009. This right was amended to
exciude the farm Lukin as will be fully explained hereinafter.
[48]
Prospecting right 38 PR was notarially
executed on 2 October 2006 and registered with its PWP on 4 October
2006. It was held by
Motjoli Resources (Pty) Ltd (“Motjoli
Resources"). This right was also subsequently amended to include
the farm Lukin
as would be explained.
[49]
Before prospecting right 38 PR was
amended, ministerial approval was sought and obtained in terms of
section 11(1) of the MPRDA
to cede same from Motjoli Resources to
Coai of Africa (“Coaf’), the present applicant. This
approval was obtained on
22 March 2007. The cession was notarially
executed on 22 December 2010. it was lodged for registration in terms
of the MTRA on
12 January 2011. As at the date of argument of this
application, registration was still pending.
[50]
On 9 April 2010 various parties that had
prospecting rights over various farms in a disorganised fashion, i.e.
one party prospecting
on a farm which may be bordering on two
prospected on by two or three different prospecting authorities,
agreed amongst themselves
on s way of consolidating and restructuring
their prospecting areas such that one group would be working on farms
that adjourned
each other. Those parties included Kwezi Mining.
Motjoii Resources and Coal. They tnen subsequently lodged an
application in terms
of section 102 of DMR for the Minister’s
consent to amend various prospecting rights such that certain farms
were removed
from certain prospecting rights and included in others.
The farm Lukin was removed from prospecting rights 61 PR and included
in
prospecting right 38 PR. Ministerial consent for the amendment(s)
to those prospecting rights was granted on 30 August 2010.
Application
was made on 22 September 2010 for the amendment of the
PWP relating to 38 PR so as to cater for the inclusion of the farm
Lukin
and to reflect the holder of the prospecting right as Coal. The
inclusion part was pursuant to the section 102 Ministerial consent
and the reflection of the transfer of the prospecting right was
pursuant to the consent to transfer in terms of section 11(1).
[51]
The amended PWP also indicated that 120
additional boreholes were to be drilled.
[52]
Prospecting right 38 PR having been
ceded for Coal and approvai of the amended PWP having been granted,
the variation to prospecting
right 38 PR to reflect the inclusion of
Lukin and to reflect Coal as the holder of the right was notarialiy
executed on 19 January
2011. That notarially executed right was
lodged for registration on 31 January 2011. As at the date of
argument of this application,
the registration thereof had not as yet
taken effect.
SPECIFIC ALLEGATIONS OF IMPROPRIETY ISSUED BY
THE RESPONDENT
[53]
in opposition of this application the
respondent raised several issues like invalid administrative Acts,
lack
ot
consultations with appropriate
stakeholders, failure to comply with zoning requirements as well non-
satisfaction of some of tne
requirements for the granting of
interdicts, specifically the requirement of lack of suitable
alternative remedies.
ALLEGATIONS OF INVALID ADMINISTRATIVE ACTS
[54]
The respondent contends that Coal are
not holders of valid prospecting rights. It does not contend that
such prospecting rights
do not exist or were never granted. Their
contention is premised on allegations that the existing prospecting
rights in respect
of 38 PR relating to the farm Lukin were granted in
the midst of invalid administrative acts. Their big gripe is that
these prospecting
rights are invalid as they were not lawfully
conferred. The respondent in addition contends that there are no
valid amended PWP
and
EMP. In this instance also, the respondent does
not dispute the existence of the PWP and EMP approved by authorised
public functionaries,
but contend that the processes preceding their
approval are unlawful, thus invalidating them. As regards the PWP the
respondent
contends that for e.g., it does not comply with the
regulations published under the MPRDA and that there were no
consultations
regarding the amendments. As regards the EMP. the
respondent contended that there were no consultations regarding them,
presupposing
that they should be regarded as being invalid.
[55]
For the above reasons the respondent
contended that Coal cannot seek to enforce prospecting right 38 PR as
envisaged in section
5(3) of the MPRDA.
[56]
The first question to ask is whether or
not the respondent is entitled to disregard the administrative acts
performed by the officials
simply because it believes them to be
invalid.
[57]
The grant of a prospecting right is an
administrative act. as is the grant of a variation or amendment
thereof, the grant of a variation
to PWP or EMP. giving of
ministerial consent under sections 11 and 102 of the MPRDA among
others and/or the approving of EMP’s
by Regional Managers under
section 39.
[58]
The status of an administrative act,
whether vaiid or invalid, is an aspect of administrative law which
involves an understanding
of the distinction between void and
voidable administrative acts. It is common cause that generally, an
unlawful administrative
act remains vaiid and/or enforceable in law
and has legal consequences which prevail until the so-said unlawful
administrative
act or decision is reviewed and set aside, in this
sense, such acts are said to be or described as voidable.
[59]
The anomaly whereby an unlawful
administrative act can produce legally effective consequences was
dealt with by the Supreme Court
of Appeal in the leading decision of
Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
20
In a unanimous decision the court thereat placed reliance for this
approach on the evidentiary presumption as to the legal validity
of
an administrative act, wnich is expressed in the legal maxim., omnia
praesumuntur rite esse acta ...". The court described
this
approach as one based on pragmatism.
21
[60]
Lord Radciiffe pronounced on this maxim
as follows in Smith v East Rural District
[1956] UKHL 2
;
[1956] All ER 855
at 871H:
"An [administrative] order ... is still an
act capable of legal consequences. It bears no brand of invalidity on
its forehead.
Unless the necessary proceedings are taken at law to
establish the cause of invalidity and to get it quashed or otherwise
upset.
it will remain as effective for its ostensible purpose as the
most impeccable of orders.”
^
2004 (6) SA 222
SCA).
2
'
Oudekraal Esiaies (supra) at para [27],
[61]
The court in Oudekraal Estates went on
to find that the proper enquiry in each case, at least at first, is
not whether the initial
act was vaiid, but rather whether the
substantive validity was a necessary precondition for the validity of
consequent acts. If
the validity of consequent acts is dependent on
no more than the factual existence of the initial act, then the
consequent act
will have legal effect for so long as the initial act
is not set aside by a competent court.'""
[62]
Cut to the bone, the above means that
administrative action is treated as valid unless and until a court
pronounces authoritatively
on its invalidity, even though it may
later be neld to be invalid. The term “voidable” as
alluded to above in this
context means "... treated as valid
until declared invalid ...".
[63]
The respondents herein have not attacked
any invalidity in the courts.
[64]
Authoritative administrative law writer.
Cora Hoexter,
23
correctly in my view, summarised the effect of the judgment in
Oudekraal Estates as being that -
"... until an illegality is set aside by
court, it exists in fact and is capable of having legally valid
consequences - meaning
that even an obvious illegality cannot simply
be ignored."
[65]
It is my considered view and finding
that the proper functioning of a modern State would be considerably
compromised if all administrative
acts could be given effect to or
ignored depending on the view individuals take of
~ Oudekraal Estates (supra) at para [31].
Hoexter. Administrative Law in South Africa.
2
nc
Ed. p 547.
the validity of the act in question. It is for
the above reason that the court in Oudekraal Estates concluded that -
"... our law have always recognised that
even an unlawful administrative act is capable of producing legally
valid consequences
for so long as the unlawful act is not set
aside.”
2A
[66]
The court in Oudekraal Estates further
stated that the analysis of the approach to the problems which arise
in relation to unlawful
administrative action recognises the value of
certainty in a modern bureaucratic state which is a value the
Legislature would have
in mind as a desirable objective when enacting
enabling legislation such as the ones we are dealing with in this
matter.
[10]
[67]
It follows that even if the
administrative acts which the respondent is complaining about were
invalidiy made, they are, at best
for the respondent, invalid in the
sense that they are voidable. The respondent is therefore not
entitled to disregard the administrative
acts performed by officials
of the DMR. Until those decisions which constitute those
administrative acts have been reviewed and
set aside by a court in
proceedings for judicial review, those decisions will exist as a fact
and will have the legal consequences
intended.
[68]
The respondent thus is not entitled, in
the circumstances of this case, to ignore those legal consequences
simply on the basis that
it is challenging in these proceedings the
validity of the decisions made by the DMR officials. If a challenge
is to be taken seriously,
it must be by way of judicial review
proceedings. The respondent has failed to bring such judicial review
proceedings.
[69]
It is so that a party has a right to
raise the invalidity of an administrative act as a defence to its
failure to give effect thereto.
[70]
The court in Oudekraal Estates found
that there are two circumstances in which the invalidity of an
administrative act may be a
defence, namely:
70.1
where the person or official placing
reiiance on the first invalid administrative act or person giving
effect thereto has legal
power to act validly notwithstanding the
invalidity of the first act; and
70.2
where the subject is sought to be
coerced by a public authority into compliance with an unlawful
administrative act and where the
invalidity of an administrative act
is put up as a defence thereto - the so frequently called “collateral
challenge’'.
[71]
It goes without saying therefore that
unlawful acts, whilst they may be void in law. exist in fact and they
more often than not
appear to be valid. Those unaware of their
invalidity may take decisions based on them in good faith as they
wouid be acting on
the assumption that these acti are valid. The
validity of the subsequent conduct depends on the iegai powers of the
second actor.
As alluded to above -
“... If the validity of consequent acts
depend on no more than the factual existence of the initial acis.
tnen the consequent
acts will have legal effect for so long as the
initial act is not set aside by a competent court.”
2
'"
[72]
in the circumstances, the validity of
the administrative acts in question here, nameiy, the grant of the
prospecting rights, the
renewal or amendment thereof, the grant of an
amended prospecting work program (“PWP"), and the approval
of the EMP
do not depend on the legal validity of the relevant or
responsible official’s decision to grant or approve but depends
merely
upon the fact that such administrative act or decision was
taken. The effect of the above is that the hoider of a prospecting
right
is entitled to exercise the ordinary rights of such holder,
which, under section 5(3) of the MPRDA include obtaining access for
purposes of conducting prospecting activities.
[73]
The court in Joubert and Others v
Miranda Mining Company Ltd
[11]
(“Miranda case") stated as follows:
“... the right to enter the land
solidifies, once the mining permit holder has complied with the
provisions regarding notification
and consultation with the owner of
the land .. .”
2b
[74]
When all aspects relative to this matter
are considered, the respondent has and still is refusing the
applicant (“Coat’)
access to the farm Lukin. The
respondent, Akkerland, cannot on this ground refuse access in
principle as it is doing. The only
basis upon which the effects of
the administrative acts by the officials of the DMR granting the
prospecting rights can be avoided
is to have them set aside in review
proceedings, which process was never undertaken by the respondent.
[75]
in relation to the point in paragraph
60.2 above, namely, that invalidity may be raised as a defence where
a public authority seeks
to coerce the subject into compliance, the
underlying premise for this is that it would be a fundamental
departure from the rule
of law if an individual were liable to
conviction - which is normally in criminal courts - for contravening
some rule which itself
stands to be set aside by a court as unlawful.
For a collateral defence to be raised, enforcement proceedings are a
prerequisite.
They must have been instituted by the administrative
authority involved. In such an instance the individual subject will
be able
to raise the voidness of the underlying administrative act as
a defence.
26
[76]
There is no question of a public
authority seeking to coerce any subject here. No enforcement
proceedings have ever been contemplated.
The applicants are not
public authorities seeking to enforce any previous administrative
acts of theirs.
" Oudekraal Estates (supra) a; 244F and
245G-246A.
[77]
The present proceedings are aiso not
review proceedings, if they were, the court would have had a
discretion whether or not to set
aside the allegedly invalid
decisions of the DMR. This is material or relevant as the extent of
the substantial funds that had
been expended by the applicant
pursuant to it having obtained prospecting rights and the delay on
the part of the respondent is
bringing an application for review is
anything to go by.
[78]
The attitude of the Supreme Court of
Appeal in respect of applicants for judicial review is that they
should not adopt a supine
attitude to bringing review proceedings and
that -
“... there was a duty on applicants in
general not to take an indifferent attitude but rather to take all
reasonable steps
available to them to investigate the reviewability
of administrative decisions adversely affecting them as soon as they
become
aware of the decision in question.’
:3Cl
[79]
The above approaches generally followed
by the court in Oudekraal Estates was followed or referred to with
approval and applied
by the Constitutional Court in Camps Bay
Ratepayers Association and Another v Harrison and the Municipality of
the City of Cape
Town
[12]
'
[80]
The above approach where a party
considers that rights were unlawfully conferred under the MPRDA was
confirmed in Norgold Investments
(Pty) Ltd v/ The Minister of
Minerals and Energy of the Republic of South
Africa and Others
32
in the above case, in the course of a review of the decision to
convert an old order prospecting right the issue of whether an
earlier administrative decision to renew the prospecting right was
challenged because it had not been made timeously. The court
therein
pointed out that the administrative decision to renew had not been
taken on review, existed as a fact and had legal consequences
which
could not be overlooked.
33
[81]
As a result, this ground cannot avail
the respondent.
THE REQUIREMENT OF CONSULTATION
[82]
The respondent does not dispute that on
23 January 2012 the applicants addressed a letter to it in which they
sought to consult
with the respondent for purposes of obtaining
access to the farm Lukin in accordance with their prospecting rights
for the purposes
of drilling further boreholes on the property.
[83]
The respondents in their submissions
attempted to pour cold water on this letter and its import. After
analysing the arguments on
this aspect i am satisfied that the
respondent was approached for purposes of consultations but the
respondent refused to consult
or frustrated the applicant’s
attempts to have such consultations going. It cannot now rely on an
alleged failure to consult
as required under section 5(4) of the
MPRDA.
[2011] 3 Ali SA 610 at paras [45] to [47],
^ Norgold Investment (supraI at paras [45] to
[46],
ALLEGED FAILURE TO COMPLY WITH ZONING
REQUIREMENTS
[84]
Compliance with zoning requirements is
an essential part of the grant and utilisation of a prospecting
permit. There are varying
zoning requirements in respect of different
areas.
[85]
In Maccsand (Pty) Ltd v City of Cape
Town and Others
34
Maccsand obtained a mining right and a mining permit under the MPRDA
in respect of dunes zoned as public open space under the Land
Use
Planning Ordinance 15 of 1985 (Cape) (“LUPO”). In issue
was whether the application of the Ordinance to the land
ended on the
grant of the mining right and permit or whether the exercise of the
mining right was subject to the Ordinance i.e.
such that mining could
not take place until the land was appropriately rezoned.
[86]
The Constitutional Court held that
mining cannot take place until the land in question is appropriately
re-zoned because it is proper
for one sphere of Government to take a
decision - just like decisions taken by the DMR in terms of the MPRDA
- whose implementation
may not take place until consent of another
sphere is granted - such as the consent of a municipality in terms of
an Ordinance
or land use scheme.
[13]
The court further held that there is no conflict between an Ordinance
and MPRDA.
36
Each is concerned with a different subject matter.
[87]
The decision in Maccsand revoived around
the facts of that case which was based on the provisions of a
differently worded Land Use
Planning Ordinance operative and
applicable in the Cape. The court found that in relation to the
exercise of a mining right granted
in terms of the MPRDA that this
was subject to utilisation by virtue of the provisions of section 23
of the MPRDA.
[88]
1 agree with the applicant that in our
present case, section 17(6) of the MPRDA would similarly render the
exercise of a prospecting
right subject to the applicable Land Use
Planning Ordinance, in this instance, the Makhado Land Use Scheme,
2009. Both the MPRDA
and the Makhado Land Use Scheme. 2009 (“the
Makhado Ordinance”) must be complied with.
[89]
in the Maccsand judgment the court
interpreted this aspect as meaning that -
“If the land owner wants to use the land
for a purpose not permitted in terms of the zoning scheme or
regulations, she or
he must apply to the municipality for re-zoning
or for a use departure."
37
[90]
In our present matter the respondent
contended that the applicants did not comply with or respect the
Makhado Land Use Scheme, 2009,
consequently invalidating their
prospecting ambitions. The applicants argued to the contrary'.
[91]
The Makhado Land Use Scheme, 2009 was
issued in terms of the Town Planning and Township Ordinance, 15 of
1986.
[92]
The respondent maintains that the
applicant have failed to comply with the Makhado zoning requirements.
It contends further that
the farm Lukin is zoned for agriculture and
as such prospecting operations may not iegaliy be conducted there.
The above boils
down to the following: The farm Lukin is primarily
zoned for agriculture : The above, read with clauses 9.1 and 9.1 of
the Scheme
does not allow for prospecting activities. The respondent
further contended that there is no “consent use” or
secondary
land use right granted in respect of this farm. As a
consequence, so argued the respondent, the effect of the declarator
sought
by the applicant is a contravention of the law.
[93]
It is not in dispute that the Makhado
Land Use Scheme. 2009 is applicable in the area of the Makhado Local
Municipality. The farm
Lukin is located within the jurisdiction of
the Makhado Local Municipality. It is also not in dispute that the
farm Lukin is zoned
“Agricultural’, being Use 14 in terms
of the Scheme.
[94]
It is consequently not in dispute that
generally, in terms of the Scheme, land may only be used in
accordance with its approved
land use zone as determined in the Land
Use Scheme.
[95]
The fact of the matter remains : the
prospecting operations on the farm Lukin fall outside of a proclaimed
township, leading to
the applicant’s contention that rather
than prospecting being prohibited outright, such activities are taken
as being generally
permitted by the Maknado Ordinance or Scheme.
[96]
On a proper construction of the Scheme,
although it does not mention "prospecting operations”
expressly, it also does
not exclude same expressly.
I agree with the applicants’ contention
and submission that while the definition Agricultural Use” in
the Scheme does
not expressly include prospecting as a permitted land
use, it cannot by any means be interpreted as not being permitted.
The Scheme
seems to be permanently exempting prospecting according to
my reading thereof.
[97]
Clause 25 of the Scheme under the
heading “Consent for Specific Purposes” provides as
follows:
“Without prejudice to any powers of the
local municipality derived from any law, or the remainder of this
Scheme, nothing
in the foregoing provisions of this Scheme shall be
construed as prohibiting or restricting the following:
25.1
the exploitation of minerals on any land
not included in a proclaimed township;
25.2
the letting of a dwelling unit for
occupancy for only one family: and
25.3
the letting of no more than two rooms of
a dwelling.”
[98]
Since the farm Lukin does not fall
within a proclaimed township, there is thus no bar to prospecting or
mining work taking place
thereon.
[99]
The respondent s interpretation of the
above quote (clause 25 of the Scheme) is that on a proper
construction, clause 25 is not
concerned with primary land use
rights, but with secondary land use rights. The upshot of their
interpretation is that prospecting
is not permitted on the farm.
[100]
This calls for the deployment of the
rules and canons of interpretation of statutes. The plainness of the
words and language used
in the Scheme in my view do not tend
themselves to the construction contended for by the respondent.
Section 25.1 of the Scheme
is couched in very wide terms. Normally,
the use of such wide and open language without qualification
indicates that no restriction
or qualification was intended.
[101]
The “Scheme” as defined
therein refers to the whole of the Scheme. The words, "...
nothing in the foregoing provisions
of the Scheme ..." is thus a
reference to all the provisions of the Scheme which precede clause
25, and not simply the portion
thereof pertaining to consent use, as
the respondent has argued. It is also interesting to note that the
Land Use Table contained
in clause 10 (Part VI) of the Scheme is aiso
included among those provisions of the Scheme that precede clause 25.
[102]
By virtue of its language, clause 25 is
there to ensure that mining, exploration, which includes prospecting
is not interfered with
as long as it takes place outside of an
established township. “Township” in the Scheme is defined
as -
“a settlement area which was planned and
established in terms of ... the Town Planning and Township Ordinance,
1986 and for
which a township general plan was approved and township
register opened in the Deeds Registry Office.”
[103]
Section 21 of the Ordinance excludes
from the ambit of municipal town planning both ‘proclaimed
land' and ' areas on which
prospecting and mining operations are
being carried ouf. (my emphasis). This in my view' reinforces the
Derception and interpretation
that the preparation of town planning
schemes alleviates possible or future interference with mining, and
by implication, exploratory
processes preceding fuli-scale mining
like prospecting.
[104]
The concept, “proclaimed land”
disappeared from the statute book with the repeal in its entirety of
the Mining Rights
Act. 1967. However, it is my considered view and
finding that clause 25 of the Scheme is designed tc have or achieve
the same situation
whereby in all areas outside an established or
proclaimed township, prospecting activities may be carried out
without there being
a specific land use designation in the Land Use
Table.
[105]
Lest there be any doubt about my
finding, the ordinary meaning of the word "exploit' in the
phrase “exploitation of minerals"
in clause 25 means “To
work (a mine, etc; to turn to industrial account (natural resources);
to utilise for one’s own
ends"
38
The activity of prospecting for minerals falls within the set
meanings of “exploitation of minerals" as prospecting
by
its very nature is an activity designed to make use of and turn the
minerals found to account.
[106]
Another aspect flying in the face of the
respondent’s contention is that special, written and temporary
consent provisions
relating to consent use end with clause 24. Clause
25 is not a special, written or temporary consent provision. Neither
is clause
26. It would appear that the sole premise for the
respondent's contention is the fact that clause 25 falls within Part
VI of the
Scheme. However, it is my finding that the content and
meaning of clause 25 demonstrates to the contrary.
[107]
Furthermore, the term “consent
use" is defined in the Scheme to mean the consent of the local
municipality in terms of
the Land Use Table read in conjunction with
clauses 21, 22 and 23. The fact that clause 25 is not included among
the above clauses
is revealing of the fact that clause 25 do not
constitute secondary land use rights which are obtained by way of a
further permission
or consent which has to be applied for and as such
do not constitute a consent use.
3f
Oxford English Dictionary. 2
nG
Edition.
[108]
When one looks at the content of Part VI
of the Scheme another scenario unfolds. The heading for this part of
the Scheme is “Special,
Written and Temporary Consent of the
Local Municipality'. It is made up of clauses 20 to 27 of the Scheme.
Where consent is required,
a written appiication must be made to the
Municipality. Clause 20 simply stipulates those aspects which require
consideration by
the decision-maker before any such special, written
or temporary consent is granted. Clause 24 lays down certain standard
conditions
to which the granting of a special or written consent
relating to the exercise of a household enterprise from a dwelling
unit is
subject. The specific and specified three different types of
consent envisaged in the Scheme are set out in clauses 21, 22 and 23.
They are the specific clauses regulating how consents should be
sought from the Municipality to use land in a manner other than
the
primary/ land use rights which attach to the relevant zoning of the
property in question. An application has thus to be made
in order to
procure additional consent for certain purposes as clearly set out in
those three clauses and the local Municipality
may grant or refuse
such consent. By contrast, the content of clause 25 does not provide
for any formal application process for
consent whereby consent has to
be sought. There is no need for an appiication to trigger an
exemption or‘consent’ as
envisaged. Each of the three
consents for specific purposes referred to in clauses 25.1 to
25.3
is in the nature of a permanent consent
which simply applies as a matter of course without the need for any
request or appiication
for such consent. It therefore is a permanent
consent amounting to a permanent exemption.
[109]
Clause 25.1 is in the nature of granting
a permanent exemption for use of the land for mineral exploitation as
iong as it is outside
a proclaimed township. Coal is also a mineral
as envisaged by the applicable statutes and the Scheme.
[110]
The fact that mineral exploitation has
not been brought under the special or temporary land uses set out in
or governed by clause
23 is proof enough that it Is a permanent land
use governed by clause 25.1. Clause 25.1 is a general exemption
allowing for prospecting,
mining and related activities.
[111]
I therefore find that the "consent'
contained in clause 25.1, which is really in the nature of a standing
or permanent exemption,
entitles the applicant to lawfully exploit
the minerals on Lukin insofar as the Scheme is concerned.
LACK OF ANY SUITABLE ALTERNATIVE REMEDY
[112]
The purpose of this application by the
respondent is to gain access to the farm Lukin for purposes of
prospecting. The respondents
have barred their access to it. As they
(applicants) cannot take the law into their own hands, they have gone
the route of interdicting
the respondent from interfering with such
access.
[113]
The respondent contended that there was
an alternative remedy open to the applicants, being the invocation of
section 54 of the
MPRDA.
[114]
Seciion 54 of the MPRDA is generally
aimed at regulating and/or resolving disputes between landowners and
mining or prospecting
operator concerning compensation. Such
compensation is limited to reasonable compensation to the landowner
or lawful occupier of
the land for such loss or damage as they might
suffer as a result of the holders prospecting operations.
[115]
Normally the holder of a right would
lodge a complaint that he is being prejudiced in his prospecting
operations Dy the landowners
lack of cooperation. The Regional
Manager would then apprise the landowner or occupier of the relevant
provisions of the MPRDA
being breached in terms of section 54(2) of
the MPRDA.
[116]
The above processes do not advance
access. It is so that the landowner may advance grounds why he
believes further access to the
land is prejudicial to him. Section
54(3) only envisages that further procedures in terms of section
54(3) to 54(6) may be triggered
where a conclusion is arrived that
the owner/occupier is likely to suffer ioss or damage. The above
requires a subjective view
by the landowner or occupier.
[117]
Murphy J dealt with section 54 in
Joubert NO v Miranda Mining
39
where among others the following was stated:
“The seciion deals with the compensation
payable under certain
circumstances ...
Supra at 83-84.
... From those provisions it is clear that the
only topic for consultation is the question of compensation for loss
or damage suffered
or to be suffered as a consequence of the mining
operations. Section 54 does not include a general provision that if
the parties
are unable to reach agreement on compensation that the
consequences of that is that the mining operations should be
suspended.
That will only occur where the Regional Manager determines
that the failure of the parties to reach an agreement or to resolve
the dispute is due to the fault of the mining permit holder ..."
[118]
The respondent has vaiiantiv tried to
resuscitate issues relative to compensation in these papers. However,
they appear to have
been afterthoughts that are geared at
further keeping the appiicants out of the farm and/or their
prospecting operations.
[119]
It is so that the longer this dispute
lasts, the more time set for operations elapse. It is interesting to
note that the respondent
already have lined up, grandiose schemes of
operating hospitality businesses and other activities while these
proceedings grind
along.
[120]
Should the appiicants succeed in this
appiication, the time lost in prospecting should be factored into the
order to be made.
CONCLUSION
[1211 The respondent has premised its
opposition to this application on a landowner's right in terms of
section 25 of the Constitution
of the RSA, 1996 relating to the
protection against being arbitrarily deprived of one’s
property.
with concomitant considerations of adequate
compensation should expropriation be the suitable way forward.
[122]
What the appiicant wants is to be
allowed to carry on with its prospecting rights on the property but
has been locked out.
[123]
That Akkerland Boerdery owns the land in
issue and is entitled to beneficial utilisation is not in dispute.
[124]
The applicants applied for the renew'ai
of their allotted prospecting permit for a further three year period
during January 2011.
Under normal circumstances the permit would
expire this year, i.e. 2014, possibiv around the third quarter
hereof. They have not
done any prospecting work ever since save for a
brief period when they were aliowed to enter the property.
Unfortunately their
access was short-lived since the respondent
locked them out immediately thereafter. The parties have played a
cat-and-mouse game
with each other since then.
[125]
Section 18(5) of the MPRDA decrees that
a prospecting right in respect of which an application for renewal
has been lodged shall,
despite its stated expiry date, remain in
force until such time as such application has been granted or
refused. As at the time
of writing this judgment, I have no clue as
to what decision had been taken regarding that application.
[126]
The MPRDA confers on the holder of a
prospecting right or permit the rights referred to in section 5 of
the above Act, which include
-
126.1
the right to enter the land to which the
right relates together with such employees, plant(s), machinery or
equipment as may be
required for purposes of prospecting;
40
126.2
the right to prospect her own account
and to remove and dispose of any such mineral found during the course
of prospecting;
41
and
126.3
the rignt to carry out any other
activity incidental to prospecting.
42
[127]
After taking into account the viewpoints
of both sides, checking on the applicable laws and factoring facts as
dictated by probabilities
and the circumstances, it is my view and
finding that the applicants have made out a case for the grant of the
prayers they sought.
The respondent's points of dispute and defence
did not withstand scrutiny.
[128]
In the order that is to be issued, care
must be exercised to ensure that the applicants’ victory is not
pyrrhic or hollow
: they should be allowed maximum period allowable
by law to do their prospecting work.
4t
'
Section 5(3)(a).
4:
Section 5(3)(b) and (c).
Section 5(3)(e).
[129]
The respondent has adequate remedies to
resort to in the event the applicant fails to perform its prospecting
work according to
plan or agreement.
[130]
The parties, especially the respondent,
should desist from shielding behind the veil of various individuals
when necessary consultations
are or should be embarked upon. It is my
view that consultations in the course of operations such as these
should be an ongoing
process.
COSTS
[131]
The applicant has asked for a costs
order that should also include the costs consequent upon the
employment of two counsel. The
respondent asked for similar relief.
[132]
I am persuaded that the complexity of
this matter necessitated the employment of two counsel.
ORDER
[133]
in the circumstances the following order
is made:
133.1
The respondent is interdicted and
restrained from refusing the applicant (Coal of Africa) access to the
farm Lukin 643 MS, Administrative
District Soutpansberg, Limpopo
Province for purposes of conducting prospecting operations on that
land
pursuant to prospecting right 4/2005 executed
on 14 June 2006 and the subsequent renewal thereof;
133.2
The applicant is authorised -
133.2.1
to enter the farm Lukin 643 MS together
with its employees and to bring onto the land any plant, machinery or
equipment, and build,
construct or lay down any surface or
underground infrastructure which may be required for purposes of
prospecting;
133.2.2
to carry out any other activity
incidental to its prospecting operations.
133.3
The respondent is ordered to pay the
costs of this application, which costs shall include the costs
consequent or incidental to
or on the employment of two counsel;
133.4
If the renewal of the prospecting permit
for the farm Lukin has taken place in the meantime, the prospecting
period would commence
from the date of the handing down of this
judgment;
133.5
If it has not yet been renewed, then the
period will depend on such a renewal decision and if granted, the
three year prospecting
period should start from the date of
notification of such renewal.
N F
KGOMO
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA NORTH AND SOUTH GAUTENG
PRETORIA/JOHANNESBURG
FOR THE
APPLICANTS
ADV D M ANTROBUS SC
ASSISTED
BY
ADV L E LE GRANGE
INSTRUCTED
BY
WEBBER WENT2EL ATTORNEYS
JOHANNESBURG TEL NO: 011 530 5804
FOR THE
RESPONDENT
ADV M M OOSTHUIZEN SC
ASSISTED
BY
ADV
INSTRUCTED
BY
SNYMAN DE JAGER IINC
BUREAU LANE, PRETORIA
DATE OF
HEARING
23 JULY 2013
DATE OF
JUDGMENT
FEBRUARY 2014
4
Respondent’s Heads of Argument, oara 6. at foiio 75 of the
paginated papers.
“ Hoicin (South Africa) (Pty) Ltd v
Prudent investors (Pty) Ltd [2011] 1 Ah 3A 354 (S3A) pare [20]:
section 17 of the MPRDA.
,D
Sections 45 and 47 of the MPRDA.
Act 107 of 1998.
1
Section 2 of NEMA.
1f
Act
57
of 2003.
2t
_
Oudekraal Estates (supra) at 247C-248A.
"
L
Associated Institutions Pension Fund and Others v Van Zyi and Others
2005 (2) SA 302
(SCA) at oars [51].
Answering Affidavit, para 7 at foiio 83 of tne
paginated papers.
‘ hereinafter referred to as Ordinance
15 o- 1986.
J
Roux
: Woolman and Others Constitutional Law in South Africa (2012).
Revision Service 4 : 46-6 unde
r
“Rropert/.
1
Section 2(h) of tne MPRDA.
f
Section 17(1 )(d) of the MPRDA.
[5]
Sephaku Tin (Pty) Ltd v Kranskoppie Boerdery (unreported) Case No
47561/2010 (North Gauteng High Court) per Tuchten J. p 7 para
[9],
aecideci on 7 May 2012.
'‘ Section 2(d) and (e) of the MPRDA.
[7]
Sephaku Tin u Kranskoppie Boerdery (supra) para [11],
lo
Sections 17(6) and 19(2)(d) of the MPRDA.
u
Sections 5(4)(c) and 19;2)(c) o
f
the MPRDA.
Oudekraai Estates (supra) at 242B.
2c
Oudekraal Estates (supra) at para [37],
[11]
2010 (1) SA 198
(SCA) at para [12],
26
Miranda Mining (supra) a: para [13],
[12]
'
2011 12) BCLR 121
(CC) at para [62],
^
2012 (4! SA 181
(CC).
3:
'
Maccsand (supra) at para [38],
3c
Maccsand (supra) at para [52],