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[2014] ZAGPPHC 1070
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Anglo American Inyosi Coal (Pty) Ltd v Claasssen and Another (40387/2013) [2014] ZAGPPHC 1070 (28 March 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 40387/2013
DATE: 28 MARCH 2014
In the matter between:
ANGLO AMERICAN INYOS1 COAL (PTY)
LTD
........................................................
APPLICANT
And
GU1LLAM JACOBUS
CLAASSEN
.....................................................................
1ST
RESPONDENT
ANNA SOPHIA CATHARINA
CLAASSEN
.......................................................
2ND
RESPONDENT
JUDGMENT
KUBUSHI, J
1. This is an interdict to grant the
applicant access to the 1st respondent's property for purposes of
drilling boreholes thereon.
The applicant is entitled to do so by
virtue of its mining rights and allegedly approved Environmental
Management Programme (EMP).
The purpose of drilling boreholes on the
property is to obtain information on coal and water qualities and
quantities thereon.
2. At the commencement of the hearing
the parties' counsel moved interlocutory applications that were set
to be argued before the
main application, namely the notice to strike
out and the notice of amendment. There being no objection to both
applications I
granted them, respectively. The 1st and 2nd
respondents' counsel dispensed with the various defences raised by
the 1st and 2nd
respondents in their papers and only pursued the one
on the applicant's failure to comply with the requirements of section
5A (a)
of the Mineral and Petroleum Resources Development Act 28 of
2002 (the Act).
BACKGROUND
3. The applicant (Anglo American] is
the holder of mining rights over the property of which the 1st
respondent is the owner and
occupier. The property is subject to a
usufruct in favour of the 2nd respondent. I shall for purposes of
this judgment refer to
the 1st and 2nd respondents as the respondents
whenever I refer to them jointly.
4. The mining rights were ceded to the
applicant by Anglo Operations and the consent for the cession was
granted by the minister's
delegate. The mining rights entitle the
holder, in this instance Anglo American, to enter the property and to
conduct mining operations
thereon. In terms of section 5A of the Act,
Anglo American must first obtain approval of an Environmental
Management Programme
(EMP] and give the respondents' notice before it
can enter upon the property.
5. Previously in terms of the repealed
Act, Anglo American would have been obliged to consult with the owner
or lawful occupier
of the property before proceeding with its mining
operations. However, in terms of the new Act, Anglo American need
only give sufficient
notice (21 days' notice]. It is not in issue
that Anglo American has given the respondent sufficient notice.
6. According to Anglo American it has
an approved EMP for purposes of drilling boreholes on the 1st
respondent's property. The EMP
was approved on 19 September 2012 and
the EMP addendum approved on 26 March 2013. The respondents are
however, challenging the
approval of the EMP addendum.
7. The respondents lodged an appeal to
the Director-General of the Department against the approval by the
Regional Manager of Anglo
American's EMP addendum. In the appeal
letter the 1st respondent requested the Director- General to suspend
the decision to issue
the EMP addendum to Anglo American pending the
outcome of the appeal. The Director General has as yet not responded
to the letter
and the appeal is still pending as well.
8. It is alleged in the interdict that
the respondents are unlawfully preventing Anglo American from
exercising its rights and unreasonably
delaying its mining operations
which results in it being prejudiced.
9. According to the respondents, Anglo
American is not entitled to enter upon the property because they have
lodged an appeal against
the decision of the approval of the EMP
addendum by the Regional Manager.
THE ISSUE TO BE DECIDED
10. The requirements for a final
interdict are:
a. A clear right.
b. Harm to the applicant.
c. No alternative remedy
The parties are agreed that the
applicant has complied with all the requirements of an application
for an interdict except the requirement
of a clear right. It is also
common cause that in the circumstances of this case in order to prove
a clear right Anglo American
should comply with the provisions of
section 5A (a) and (c) of the Act.
11. Section 5A provides as follows:
Prohibition relating to illegal act. -
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 environmental authorisation;
(b)
(c) giving the landowner or lawful
occupier of the land in question at least 21 days written notice.
12. It is not in dispute that Anglo
American has given the respondents adequate written notice as
provided in section 5A (c) of
the Act. What remains in issue is the
environmental authorisation as required in terms of section 5A (a) of
the Act.
13. Anglo American's argument is that
it has complied with the requirements of section 5A (c) of the Act in
that the Regional Manager
has approved the EPM addendum and that the
launch of the appeal by the respondents does not suspend the
approval. The decision
of the Regional Manager, according to Anglo
American's counsel, stands until set aside by the decision of the
Director-General
if the appeal is decided in favour of the
respondents.
14. The respondents' counsel contends
that as long as the Director-General has not responded to the 1st
respondent's letter requesting
the suspension of the Regional
Manager's decision, Anglo American has not complied with section 5A
(a) of the Act. As a result
I cannot decide the interdict application
as by doing so I will be usurping the functions of the
Director-General as the appeal
body.
15. The parties are agreed that the
crux of the issue to be decided is whether or not the administrative
decision of the Regional
Manager is suspended by the request of the
respondents to the Director-General to suspend it. If I find that the
decision stands
I must dismiss the application for the interdict and
if I find that the decision does not stand I must grant the
interdict.
16. Section 96 provides as follows:
Internal appeal process and access to
courts. -
(1J Any person whose rights or
legitimate expectations have been materially and adversely affected
or who is aggrieved by any administrative
decision in terms of this
Act may appeal in the prescribed manner to -
(o) the Director-General, if it is an
administrative decision by a Regional Manager or an officer; or
(b) the Minister, if it is an
administrative decision by the Director-General or any designated
agency.
(2) An appeal in terms of subsection
(1) does not suspend the administrative decision, unless it is
suspended by the Director-General
or the Minister, as the case may
be.
(3] No person may apply to the court
for the review of an administrative decision contemplated in
subsection (1) until that person
has exhausted his or her remedies in
terms of that subsection.
17. It is common cause in this instance
that the respondents have lodged an appeal against the decision of
the Regional Manager
to approve Anglo American's EMP addendum. It is
not in dispute that at the time of the hearing of this application,
the Director-General
had as yet not responded to the appeal. It is
also common cause that the 1st respondent has sent a letter to the
Director-General
requesting the suspension of the decision of the
Regional Manager pending the appeal which has still not been
responded to.
18. To my mind subsection (2) of
section 96 of the Act is explicit and does not require any
interpretation. An administrative decision
is not suspended by the
lodgement of an appeal. It is also not suspended by the request to
the Director- General to suspend the
decision. It can only be
suspended by the Director- General or the Minister. In this instance,
neither the Director-General nor
the Minister suspended the decision.
There is no evidence to that effect before me. It can thus not be
said that the decision is
suspended.
19. The contention by the respondent's
counsel that I cannot grant the interdict unless there are
exceptional circumstances is as
a result also not correct. The
subsection does not authorise a court to exercise a discretion as to
whether the decision is suspended
or not. This is a factual
determination. Either the decision is suspended or it is not
suspended. In the circumstances of this
matter the appeal is not
suspended.
20. The submission by counsel for the
respondents that if the interdict is granted the court will usurp the
Director-General and
the minister's functions and prejudge the
outcome of the appeal and in the process render the appeal nugatory
or academic cannot
be sustained as well. His reliance on the judgment
in Hi Change Investments fPtv1 Ltd v Cape Produce Co (Pty) Ltd t/a
Pelts Products,
and Others
2004 (2) SA 393
(EC) does not take the
respondents' case any further. The two cases, as correctly argued by
Anglo American’s counsel, are
distinguishable. The court in
that judgment was required to withdraw a certificate issued by
functionaries without it being shown
that the functionaries concerned
had not exercised the discretion bestowed on them by legislation. In
this instance, the court
is not required to interfere with the
discretion of the administrator or functionary who approved Anglo
American's EMP addendum.
The discretion has already been exercised
and a decision made. What Anglo American is looking for
is the implementation of that decision.
Counsel for Anglo American relied on the judgment in Pud er kraal
Estates v City of Cape
Town
2004 (6) SA 222
(SCA) para [26] to
support his contention that an administrative decision, even if is
unlawful, stands until set aside by a competent
court of law. And he
is correct. It has always been a principle in our law that an
unlawful administrative decision exists in fact
and it has legal
consequences that cannot be overlooked until it is set aside by a
court in proceedings for judicial review. The
principles in the
HiChanae Investment - judgment do not arise in the present instance.
In any event the court in that judgment
held that in appropriate
cases a court may be entitled to make an order usurping a function
bestowed on a functionary by legislation.
21. I conclude therefore that section
96 (2) of the Act favours the applicant.
COSTS
22. The applicant is the successful
party and is entitled to the costs of suit. The applicant's counsel
abandoned its claim for
costs on an attorney and client scale.
I am of the view that there is no
reason in the circumstances of this case to reserve costs as
requested by the respondents' counsel.
This court is better placed to
can determine the costs of this application. The application should
thus be granted with costs including
costs of two counsels.
23. In the premises I grant the
following order:
a. The respondents are directed, within
five (5) days from the granting of this order, to grant access to the
applicant and its
contractors to the Remaining Extent and Portion 3
of the Farm Roodebloem 58 IS, Mpumalanga Province (the property) for
purposes
of drilling the boreholes envisaged in the applicant's EMP
addendum approved on 26 March 2013, failing which the Deputy Sheriff
is authorised and directed to grant the applicant access to the
property.
b. Leave is granted to the respondents,
jointly or severally, to approach this court, on due notice to the
applicant, for an order
rescinding or amending the order made in
terms of paragraph a. of this order, on its being shown that the
decision of the Regional
Manager, Mpumalanga Region dated 26 March
2013 to approve the Addendum for Borehole Drilling to the
Environmental Management Programme,
has been finally set aside on
appeal by the 1st respondent in terms of
section 96
of the
Mineral
and Petroleum Resources Development Act 28 of 2002
.
c. The first respondent is directed to
pay the costs of this application inclusive of the costs of two (2]
counsel.
E. M. KUBUSHI
JUDGE OF THE HIGH COURT
Appearances:
HEARD ON THE :26 FEBRUARY 2014
DATE OF JUDGMENT : 28 MARCH 2014
APPLICANT'S COUNSEL : ADV G. L.
GROBLER, SC
ADVJ. L. GILDENHUYS
APPLICANT’S ATTORNEY : NORTON
ROSE FULBR1GHT SOUTH AFRICA
C/O KLASBRUN EDELSTEIN BOSMAN DE
VRIES INC
1
st
& 2
nd
RESPONDENTS COUNSEL : ADV J ROUX
1
st
& 2
nd
RESPONDENTS’ ATTORNEY : BOSHOFF SMUTS INC