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[2014] ZAGPPHC 218
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Aquila Steel SA (Pty) Ltd v South African Steel Company (Pty) Ltd (14612/2013) [2014] ZAGPPHC 218 (14 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
[GAUTENG
DIVISION, PRETORIA]
CASE NUMBER:
14612/2013
DATE: 14 MARCH 2014
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
AQUILA STEEL SA
(PTY)
LTD
..............................................................................................
Applicant
and
SOUTH AFRICAN
STEEL COMPANY (PTY)
LTD
.........................................................
Respondent
JUDGMENT
CILLIERS AJ
Factual
background
[2] The Applicant is
a private company and the holder of a prospecting right. The
prospecting right was granted to it in terms of
the provisions of
Section 17 of the Act in respect of a prospecting area covering a
number of farms in the district of Thabazimbi
in Limpopo. This right
commenced on 18 July 2007 and it continued to be in force until 17
July 2012.
[3] On 12 April 2012
the Applicant lodged an application for renewal of the prospecting
right for a further period of three years.
I have been made to
understand that the Department of Mineral Resources had, at the time
of the hearing of the application, not
yet taken a decision on the
application for renewal of the prospecting right.
[4] The provisions
of Section 18(5) of the Act is clear that it has the effect that the
Applicant’s previous prospecting right
remains in force until
the application for renewal has been granted or refused.
[5] The prospecting
area defined in the prospecting right comprises a number of farms,
amongst them the properties. The entire prospecting
area is generally
referred to as the Rotterdam Tenement.
[6]
At the time that the prospecting right was granted to the Applicant
in 2007 the properties were owned by a previous owner thereof
i.e.
Southern Palace Investments 216 (Pty) Ltd
(“Southern
Palace”).
[7] The Applicant
commenced iron-ore prospecting activities on the properties shortly
after it was granted the prospecting right
and it did so with the
full support, knowledge and consent of Southern Palace.
[8]
Once a prospecting right is granted to a holder, he or she, as soon
as that right becomes effective on date of approval of the
Environmental Management Plan (“£MP”), is entitled
to enter the relevant prospecting area 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 infrastructure
which may be required for purposes of prospecting.
1
[9]
The imperatives of Section 5(4)(c) of the Act, namely to notify the
landowner and to follow a consultative process with the
landowner is
intended to afford a landowner the opportunity of
“
softening
the blow'”
inevitably
suffered as a consequence of the granting of a prospecting or other
right under the Act. This is the only means afforded
in the Act to a
landowner to protect his rights as such, barring the mechanisms for
the resolution of disputes provided for in
the Act.
2
[10]
Post the granting of a prospecting right and before the commencement
of prospecting activities on any land which is the subject
of such
prospecting right, it is accordingly imperative for proper notice of
the intention to enter the land for purposes of prospecting
to be
given to the landowner, followed by a consultative process.
3
[11] During or about
August 2008 the properties were sold to the Respondent.
[12] Immediately
thereafter, and on 15 September 2008 the Respondent informed the
Applicant that it was aware of the Applicant’s
prospecting
rights over the properties. The Respondent also informed the
Applicant that it intended to challenge this prospecting
right
granted to the Applicant and/or to challenge the Applicant’s
general conduct in exercising the rights purportedly granted
to the
Applicant.
[13] The above
communication sparked a protracted dispute between the Applicant and
the Respondent. It is not necessary to deal
with the particularity of
these disputes. It suffices to say that, on 22 September 2008,
employees of the Respondent changed the
locks to the separate
entrance gates to the properties that were previously used by the
Applicant’s employees to enter the
properties.
[14] The persisted
denial of access to the properties caused the Applicant to launch an
urgent application on 21 October 2008 under
case number 2008/44438 in
which the Applicant applied, amongst other relief sought, for an
interdict against the Respondent not
to deny the Applicant access to
the properties for the purposes of conducting prospecting operations.
[15] In its response
to the urgent application the Respondent agreed to allow the
Applicant access for the purpose of exercising
its prospecting
rights, but the Respondent refused to allow the Applicant to have
access to the property for any other purpose
or for embarking on
activities not provided for in terms of this prospecting right and/or
activities that clearly exceed its rights
in terms of the Act and/or
the terms and conditions of the prospecting right.
[16] The outcome of
the urgent application was recorded in a court order on 4 November
2008, that reads as follows:
“
1.
The Respondent‘s undertaking to allow the Applicant access to
the properties, being the Remaining Extent of the Farm Koedoesvlei,
Farm 128, Registration Division KQ, Limpopo and Portion 3 of the Farm
Cornwill 313, Registration Division KQ, Limpopo for the purposes
of
conducting its prospecting operations on the properties, excluding
any further drilling subject to any later amendment of the
prospecting rights is made an order of court.
2. Costs to be
reserved. ”
[17] It is common
cause that, at the time that the urgent application was pending the
Applicant undertook to apply for the amendment
of the BMP that formed
part of its prospecting right in order to specify the precise area
defined as the area where prospecting
activities could take place.
This include targeting for drill testing in detail as well as the
drill hole density and the drill
grit. It is also common cause that
the Applicant undertook, pending its application to amend the EMP,
not to conduct any further
drilling on the properties.
[18] The above
undertaking evidently underlies the portion of the court order of 4
November 2008 that excluded drilling activities
subject to any later
amendment of the Applicant’s prospecting rights.
[19] Consequent upon
the above undertaking and the court order, the Applicant made an
application for an amendment of the EMP.
[20] This amendment
was approved by the relevant State Department on 3 September 2009.
[21] The approved
EMP provides, in relevant part with regards to the drilling of holes,
the following:
(i) The ultimate
depth of the prospecting operations is estimated to be in excess of
25m and the extent of each excavation is stipulated
to be in excess
of 20m x 20m;
(ii) Drilling is
authorised to be done on a grid-spaced profile layout with the
profile lines spaced at 50m to 75m intervals. A
fan of 6 to 10
boreholes is authorised to be drilled per profile line and the area
to be drilled was indicated on a specific plan
annexed to the EMP.
The drilling campaign authorised on the Farm Comwill 313 KQ is in the
form of resource delineation drilling.
Both diamond and percussion
drilling are authorised to be conducted;
(iii) The estimated
period of time for the prospecting operations is authorised to be in
excess of 24 months;
(iv) The noise
created from the use of the drilling rig is restricted to daylight
hours;
(v) The EMP is
approved on the basis that no blasting would take place;
(vi) The EMP was
authorised on the basis that any area disturbed by the drill rig
would be levelled and roughened to enable grass
to grow in it again
and potentials for erosion would be minimised by appropriate surface
shaping;
(vii) The
prospecting of iron-ore is authorised to only take place within the
approved demarcated mining or prospecting area.
[22] It is not
disputed by the Respondent that, after approval by the relevant
department of the amended EMP on 3 September 2009,
it continued to
deny access to the Applicant to the properties for the purpose of it
exercising its prospecting rights.
[23] In March 2010
the Applicant made arrangements for drilling rigs to complete the
prospecting program on the properties.
[24] On 25 March
2010 further negotiations were commenced with between the Applicant
and the Respondent. It is not required to deal
with these
negotiations or to take them into account as relevant to the outcome
of these proceedings.
[25] In the meantime
and whilst the parties endeavoured to reach a compromise (and
thereafter) the Applicant took no further steps
to acquire access to
the properties.
[26]
On 28 January 2011 a notice appeared in the Thabazimbi Local
Newspaper, Die Kwêvoël. In this notice the commencement
of
a public participation process was announced in terms of the
Environmental Impact Assessment Regulations with regards to a project
that was to be undertaken by the Respondent on the Farm Comwill. The
project was described as
“
metallurgical
plant for the production of steel products from iron-ore and coal and
associated activities.”
[27] The publication
of the above notice caused the parties to again commence with
negotiations.
[28] The further
negotiations also came to naught.
[29]
Up
to and inclusive of October 2008 - the date since the Applicant was
last granted access to the properties for the purpose of
prospecting
activities - the Applicant drilled thirty boreholes on the properties
and it established a prospecting site and access
roads. The
prospecting site and the access roads could not have been
rehabilitated by the Applicant since October 2008 by reason
of the
fact that it was not permitted to have access to the properties.
[30] The present
application was launched during or about March 2013.
The
Applicant’s right to access to the properties to exercise its
rights as holder of a prospecting right
[31] Section 5(4) of
the Act reads as follows:
“
(4)
No person may prospect for or remove, mine, conduct technical
co-operation operations, reconnaissance operations, explore for
and
produce any mineral or petroleum or commence with any work incidental
thereto on any area without -
(a) An approved
environmental management program or improved environmental management
plan, as the case may be;
(b) A
reconnaissance permission, prospecting right, permission to remove,
mining right, mining permit, retention permit, technical
co-operation
permit, reconnaissance permit, exploration right or production right,
as the case may be; and
(c) Notifying and
consulting with the landowner or lawful occupier of the land in
question. ”
[32] It is clear
that once a person is in possession of an approved environmental
management program or approved environmental management
plan (as the
case may be), as well as a valid prospecting right issued to it and
after it has notified and consulted with the landowner
or lawful
occupier of the land in question, such a person is entitled to
prospect for any mineral or petroleum and to commence
with any work
incidental thereto. The exercise of this right is then subject only
thereto that it has to be executed within the
ambit of the
prospecting right and the approved environmental management program
or approved environmental management plan.
[33]
In terms of the provisions of Section 5(3)(a) of the Act the holder
of a prospecting right, once it had been granted to it,
and as soon
as that right becomes effective on the date of approval of the EMP,
is entitled to enter the relevant prospecting area
together with his
or her employees. The holder of the prospecting right is also then
entitled to bring onto the land any plant,
machinery or equipment and
build, construct or lay down any surface infrastructure which may be
required for purposes of prospecting.
4
[34] In my view the
Applicant complied with all the provisions of Section 5(3)(a) and
Section 5(4) of the Act.
[35]
Firstly
the
provisions of Section 18(5) of the Act makes it plain that the
Applicant’s previous prospecting right remains in force
until
the application for renewal thereof has been granted or refused. This
has not been done to date hereof. In consequence the
Applicant’s
prospecting right is still in force.
Secondly
it
is clear from the facts that the Applicant notified and consulted
with the previous owner of the properties i.e. Southern Palace,
at
the time when the Applicant acquired the prospecting right. The
Applicant had access to the properties for the purpose of exercising
all of its rights as the holder of the prospecting right in respect
of the properties. In my view it was not required of the Applicant
to
consult again with the new owner of the properties or to notify the
new owner of the properties at the time that the Respondent
acquired
ownership of the properties during or about August 2008. The
Applicant had, by that time already complied with the imperatives
of
the provisions of Section 5(4)(c) of the Act. The Respondent acquired
ownership of the properties, subject to this acquired
right and
imperative that had been complied with by the Applicant. The
Applicant did, in my view, notify and consult with the Respondent
as
the new owner of the properties since during or about September 2008
and, in doing so, the Applicant complied with the imperatives
of the
provisions of Section 5(4) of the Act-also in respect of the
Respondent.
[36] I have already
stated that the purpose of the consultative process envisaged in
Section 5(4)(c) of the Act is to afford a landowner
the opportunity
of minimizing the damages inevitably to be suffered as a consequence
of the granting of a prospecting or other
right under the Act. This,
in my view, does not include that consensus during the consultative
process is a pre-requisite for the
holder of the prospecting right to
enter the land on which the prospecting right is granted and to
exercise all of its rights in
terms of the prospecting right.
[37] If the
imperatives of Section 5(4)(c) include that consensus has to be
reached between the holder of the prospecting right
and the landowner
it would make a mockery of the purpose for which the State grants
prospecting rights to the holders thereof i.e.
the prevalence of
State power of control over the mineral resources of the Republic of
South Africa and the concomitant ousting
of the mineral rights of the
landowner and/or the holder of mineral rights.
5
The following should in this regard be borne in mind
6
:
“
Firstly.
We agree that chapter two of the MPRDA contains the fundamental
principles subjacent to the legislative approach to the
development
and Regulatory Regime of the mineral and petroleum resources of the
Republic of South Africa. It is our view that the
provisions of the
act should be interpreted with due regard to the constitutional
rights, norms and values the Legislator sought
to encapsulate,
protect and advance in the act. The more prominent rights, norms and
values appear to be the custodial role of
the State over the mineral
and petroleum resources of the nation and the concomitant disposal of
the traditional concept of State
and/or individual rights to
unexploited minerals
.......
the State's
obligation to protect the environment for the benefit of the present
and future generations
......;
the right to
equitable access to the natural resources of the country
.......
and
the right not be deprived of property arbitrarily
.......”
[38] In the case of
disputes that may arise between the holder of the prospecting right
and the landowner the mechanisms provided
for in Sections 10(2) and
54 of the Act (which mechanisms are designed to resolve objections or
disputes between an Applicant for
or a holder of a prospecting right
and a landowner) can be followed. There is no evidence on the papers
that such dispute resolution
mechanism was employed at any stage by
the Respondent.
[39] It follows from
the aforesaid that:
(i) The Applicant is
entitled to exercise the prospecting right that it held at the time
when it lapsed, by reason of the operation
of Section 18(5) of the
Act. This places the Applicant in the same position as the holder of
a valid prospecting right. The Applicant,
in this regard, complies
with the provisions of Section 5(4)(b) of the Act;
(ii) The Applicant
is the holder of an approved environmental management plan. In this
regard the Applicant complies with the provisions
of Section 5(4)(a)
of the Act;
(iii) The Applicant
notified and consulted with the landowner of the land in question. In
this regard the Applicant complied with
the provisions of Section
5(4)(c) of the Act.
[40] In the result I
am of the view that the Applicant, as the holder of the prospecting
right (which right is a limited real right
7
)
has a clear right to access the properties, together with its
employees and to bring onto the properties any plant, machinery
or
equipment and build, construct or lay down any surface or underground
infrastructure as may be required for the purposes of
prospecting,
within the ambit of the prospecting right and the approved amended
EMP.
The grounds on
which the Respondent denies the Applicant access to the properties
[41] The Respondent
advances that it is entitled to lawfully deny the Applicant access to
the properties for the purpose of exercising
the prospecting right.
[42] The first
ground raised is that prospecting is a land use which requires
approval of the local authority in whose jurisdiction
the land is
situated. The argument is developed to say that such requisite
approval of the local authority was not obtained by
the Applicant and
that the Applicant is accordingly not entitled to exercise all of its
rights in terms of the prospecting right
of which the Applicant is
the holder.
[43]
The second of the grounds raised is that burial sites and graves are
present on the properties and that the Applicant cannot
enter the
land and exercise all of its prospecting rights by reason of the
operation of the National Heritage Resources Act, 25
of 1999
(“the
National Heritage Act”).
[44] The third
ground raised is that the Applicant failed to comply with the court
order of 4 November 2008.
[45] I turn to
dealing with each of these grounds.
The approval
of the local authority
[46] Mr Putter, on
behalf of the Respondent, submitted in a very able argument that the
local authority ought to have been joined
to these proceedings by
reason of the fact that prospecting is a land use which requires
approval of the local authority in whose
jurisdiction the land is
situated.
[47] In support of
the argument reliance was placed on the following:
(i)
In reliance on the finding in
Johannesburg
Municipality
v
Gauteng
Development Tribunal
8
the
premise from which the argument is developed is that, in our new
dispensation, a framework was established ensuring that all
land,
including farm land, which falls outside traditional town planning
schemes of a municipality became subject to the authority
of such a
municipality to,
inter
alia,
control
and regulate land use, also on land situated outside its town
planning scheme;
(ii)
Section 151 of the Constitution of the Republic of South Africa, 108
of 1996
(“the
Constitution
”
)
introduced the notion of wall-to-wall local government;
(iii)
In terms of the Municipal Systems Act, 32 of 2000
(“the
Systems Act)
a
municipality is enjoined to undertake developmentally orientated
planning and, in doing so, the municipality has to take account
of
certain statutory principles;
(iv) In terms of the
Systems Act each municipality had to adopt an integrated development
plan and one of the core components of
the integrated development
plan is a spatial development framework. The spatial development
framework, amongst other things, incorporates
an urban development
boundary as one of its components, but also deals with the land uses
within the municipality that falls outside
the existing town planning
scheme. This integrated development plan guides and informs all
planning and development within the
municipal area and it binds the
municipality in the exercise of its executive authority;
9
(v)
The provisions of the Town Planning and Townships Ordinance (Tvl) 15
of 1986
(“the
Ordinance
”
)
applies to all land within the area of jurisdiction of a local
authority. In this regard reliance is placed on the provisions
of
Section 18 of the Ordinance and it is contended that the jurisdiction
was extended in terms of Section 151(1) of the Constitution;
(vi)
In the decision of the Constitutional Court in
Maccsand
(Pty) Ltd
v
City
of Cape Town and Others
10
so the argument goes, the conclusion was reached that the holder of a
prospecting right is not relieved of having to obtain the
necessary
land use planning permission, even where the activity falls outside
the municipality’s town planning scheme.
[48] Attractive as
the argument may be on first consideration, I find myself unable to
agree.
[49]
It is now settled
11
that a holder of a mining right or a mining permit has to comply with
zoning requirements in addition to the relevant provisions
of the
Act. In the decision of
Maccsand
(Pty) Ltd
v
City
of Cape Town and Others
the
Constitutional Court held that, although there is an overlap between
the functions exercised under the Act and the Land Use
Planning
Ordinance 15 of 1985 (Cape) (“
LUPO
”
)
an impermissible intrusion by one sphere of government into the area
of another does not occur because spheres of government do
not
operate in sealed compartments. The reasoning in the said decision
can be summarised as follows:
(i)
Mining is an exclusive competence of the national sphere of
government and the Act regulates mining, whilst LUPO does not and
does not purport to regulate mining. LUPO is concerned only with the
use of land which is a function allocated in the constitution
to the
local sphere of government.
12
(ii)
By reason of the fact that mining is carried out on land, the two
functions overlap.
13
When a proposed activity requires approval under both the Act and
LUPO the constitution requires the relevant spheres of government
to
co-operate with one another in mutual trust and good faith and to
co-ordinate actions taken with one another. It does not give
rise to
the exercise of a veto power by the local sphere of government.
14
(iii)
Since spheres of government do not operate in sealed compartments,
the overlap between the functions does not give rise to
impermissible
intrusion by one sphere of government into the exclusive sphere of
another.
15
(iv)
there is nothing in the Act to suggest that LUPO will cease to apply
to land in respect of which a mining right or permit is
granted.
16
(v)
Because the application of the powers confirmed by the Act and LUPO
does not give rise to a conflict, but merely to an overlap,
sections
146 and 148 of the Constitution do not apply.
17
[50]
Both the
Swartland-case
and
the
Maccsand-case
dealt
with the provisions and the zonings in terms of LUPO.
[51] LUPO applies in
the whole of the Cape Province and in respect of all land in the Cape
Province. All such land fall within Town-planning
schemes.
[52] The properties
in this matter are not situated in the Cape Province.
[53]
Regard must accordingly be had to each provincial ordinance, because
each ordinance is different and the result of any enquiry
into
whether or not land use approval by the local authority is required
before mining may commence will depend upon the wording
of the
particular provincial legislation.
18
[54]
In
Mtunzini
Conservancy
v
KZN
Sands (Pty) Ltd and Another
19
it was pointed out that, in the
Maccsand-matter,
the
Minister had granted authority to Maccsand to mine sand in 2007 in
terms of the Act, at a stage when zoning already attached
to the land
in question but, by contrast, the properties in respect of which the
interdicts were sought in the
Mtunzini
Conservancy-matter
were
not inside a municipal area and were never the subject of any zoning
controls when mining authorisation was granted and mining
commenced.
For this reason the court found itself unable, in the
Mtunzini
Conservancy-matter
to
grant an interdict restraining the holder of a converted mining right
from commencing or continuing with mining in terms of Sections
1 and
38(3) of the Kwazulu-Natal Planning and Development Act, 2008.
[55] The provincial
legislation applicable to the present matter is the Ordinance.
[56]
Section 18(1) of the Ordinance provides that a local authority
may
(my
emphasis), of its own accord and the local authority shall, if
directed to do so by the Administrator, prepare a town planning
scheme in respect of all or any land situated within its area of
jurisdiction and the local authority may, within a consent of,
or
shall, if directed to do so by the Administrator, prepare such a
scheme in respect of specified land situated outside its area
of
jurisdiction and that of another local authority.
[57] It is, in my
view, clear from the provisions of Section 18 of the Ordinance that
all land within the area of jurisdiction of
a local authority is not
automatically part of a town planning scheme and zoned as such. Only
those portions of land within the
area of jurisdiction of the local
authority in respect of which a town planning scheme was prepared
falls inside a town planning
scheme.
[58] Section 19 of
the Ordinance provides that the general purpose of a town planning
scheme shall be the co-ordinated and harmonious
development of the
area to which it relates in such a way as will most effectively tend
to promote the health, safety, good order,
amenity, convenience and
general welfare of such area as well as efficiency and economy in the
process of such development.
[59] Section 21(1)
of the Ordinance provides that, subject to the provisions of
sub-section 21 (3) and Section 22 of the Ordinance,
a local authority
shall not (my emphasis) prepare a town planning scheme in respect of
land which is proclaimed land or land on
which prospecting, digging
or mining operations are being carried out, unless such land is
situated within an approved township
or within a township in respect
of which a notice as contemplated in Section 111 of the Ordinance was
published.
[60] Section
21(3)(b) of the Ordinance provides that, notwithstanding the
provisions of sub-section (1) of Section 21, a local authority
may
prepare a town-planning scheme in respect of proclaimed land not used
for mining purposes or purposes incidental thereto, excluding
residential purposes, if the owner thereof with a written consent of
the Director-General: Mineral and Energy Affairs and the holder
of
any mining title, so requests.
[61] It is, in my
view, clear from the aforesaid provisions of the Ordinance that
certain land within the area of jurisdiction of
a local municipality
that is governed by the Ordinance falls outside of the town-planning
scheme and it would accordingly not be
within a zoning scheme.
[62] The approval by
a local authority governed by the Ordinance, for the exercise of a
prospecting right, is thus not required
in respect of land that falls
outside of a town-planning scheme and not with zoning scheme. The
properties in the present matter
fall outside of a town-planning
scheme and not within a zoning scheme.
[63] The only
remaining issue to be considered is the impact of the provisions of
the Systems Act (if any), relating to the adoption
by each municipal
council of an Integrated Development Plan (with a Spatial Development
Framework as a core component thereof)
on the above.
[64] The answer to
the last-mentioned issue is to be found in the wording of Section
35(l)(b) of the Systems Act.
[65] Section
35(l)(b) of the Systems Act provides as follows:
“
35
Status of Integrated Development Plan
(1)
An integrated Development Plan adopted by the council of the
municipality -
(a)
....
(b) Bind the
municipality in the exercise of its executive authority, except to
the extent of any inconsistency between a municipality’s
Integrated Development Plan and national or provincial legislation,
in which case such legislation prevails;
(c)
.......
"
[66] The provisions
of Section 35(l)(b) of the Systems Act is clear that the Ordinance
(as provincial legislation) would prevail
in the event of a conflict
between an Integrated Development Plan and the Ordinance.
[67] In my view the
approval of the local authority was not required for the Applicant to
exercise its right in terms of the Act
and the local authority is not
a necessary party to be joined to these proceedings.
The National
Heritage Act
[68] The parties are
in agreement that graves and burial sites are present on the
properties. It appears, from a site inspection
that was held after
the present application was brought, that these graves and burial
sites were subsequently discovered.
[69] The provisions
of Section 36 of the National Heritage Act provide that graves and
burial sites are protected.
[70]
Section 36(3) of the National Heritage Act provides as follows:
“
(3)
No person may, without a permit issued by SAHRA or a Provincial
Heritage Resources Authority -
(a) Destroy,
damage, alter, exhume or remove from its original position or
otherwise disturb the grave of a victim of conflict,
or any burial
ground or part thereof which contains such graves;
(b) Destroy,
damage, alter, exhume or remove from its original position or
otherwise disturb any grave or burial ground older than
sixty years
which is situated outside the formal cemetery administered by local
authority; or
(c) Bring onto or
use at the burial ground or grave referred to in paragraph (a) or (b)
any excavation equipment or any equipment
which assists in the
detection or recovery of metals. ”
[71] The relevant
provisions of Section 36 of the National Heritage Act prohibits the
Applicant from undertaking certain activities
at the burial ground or
graves and from undertaking the actions described in Section 36(3)(a)
and (b) of the National Heritage
Act.
[72] The prohibition
of certain conduct at the burial sites or graves contemplated in
Section 36 of the National Heritage Act does
not, in my view amount
to a prohibition on the holder of a prospecting right to gain access
to the property in respect of which
he holds the prospecting right.
The prospecting right can still be exercised outside of the specific
location of the burial grounds
or graves.
[73] It follows that
there is, in my view, no merit in the Respondent’s reliance on
the provisions of the National Heritage
Act to refuse access to the
Applicant to the properties in order for the Applicant to exercise
all of its rights as holder of the
prospecting right.
Non-compliance
with the existing court order
[74] The court order
of 4 November 2008 excluded drilling, but this exclusion was made
subject to a later amendment of the prospecting
right. The
prospecting right is conducted in accordance with the EMP. In the
present matter the prospecting right is exercised
in accordance with
the amended and approved EMP.
[75] The amended and
approved EMP specifically provided for drilling and the precise
manner in which drilling is permitted.
[76] The undertaking
of drilling activities in terms of the amended EMP is authorised by
the court order of 4 November 2008. The
PWP is not required to be
amended in respect of the costs of the EMP in order for the Applicant
to exercise all of its rights in
terms of the prospecting right of
which the Applicant is the holder.
Conclusion
[77]
In the result no
justification exists for the Respondent to deny the Applicant access
to the properties in order for the Applicant
to exercise the rights
provided for in the prospecting right I make the following order:
1.
Prayers 1, 1.1, 1.2, 1.3, 1.4 and 1.5 of the Notice of Motion is
granted;
2. The Respondent
is ordered to pay the costs.
SIGNED AT
PRETORIA ON THIS 14 DAY OF MARCH 2014.
Cilliers, AJ
Acting Judge of
the High Court of South Africa
Appearances:
For Appellant:
Adv.: I Currie
Instructed by:
Webber Wentzel
For Respondent:
Adv.: L G F Putter
Instructed
by: Vezi
&
De
Beer Inc.
1
Sechaba
v Kotzé and Others
[2007] 4 ALL SA 811
(NC) at 821 b.
2
Section
5(4)(c) of the Act; Sechaba v Kotzé and Others (supra) at 821
e.
3
Sechaba
v Kotzé and Others (supra) at 821f-g. This construction was
cited with approval in Joubert v Maranda Mining Co
(Pty) Ltd
2010
(1) SA 198
(SCA) at 202D-E.
4
Sechaba
v Kotzé and Others (supra) at 821c.
5
Section 3(2) of the Act
6
7
Section 5(3) of the Act.
8
2010 (6) SA 182
at paras 57, p203
9
In this regard reliance is placed on the provisions of Section 35 of
the Systems Act.
10
2012
(4) SA 181
(CC)
11
Maccsand
(Pty) Ltd v City of Cape Town and Others
2012 (4) SA 181
(CC), and
Minister for Mineral Resources v Swartland Municipality and Others
2012 (7) BCLR 712
(CC)
12
At
paras 42 and 46 of Maccsand (Pty) Ltd v City of Cape Town and Others
(supra).
13
Para
43 of Maccsand (Pty) Ltd v City of Capte Town and Others (supra).
14
At
para 43 of Maccsand (Pty) Ltd v City of Cape Town and Others
(supra).
15
At
para 43 of Maccsand (Pty) Ltd v City of Cape Town and Others
(supra).
16
Paras
44 and 45 in Maccsand (Pty) Ltd v City of Cape Town and Others
(supra).
17
Paras
50 and 51 in Maccsand (Pty) Ltd v City of Cape Town and Others
(supra).
18
South
African Mineral and Petroleum Law MO Dale and Others [Issue 14] at
197.
19
2013
(2) ALL SA 69
(KZD)