Samancor Chrome Ltd v North West Chrome Mining (Pty) Ltd and Others (30/2020) [2021] ZASCA 183 (23 December 2021)

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[2021] ZASCA 183
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Samancor Chrome Ltd v North West Chrome Mining (Pty) Ltd and Others (30/2020) [2021] ZASCA 183 (23 December 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 30/2020
In
the matter between:
SAMANCOR
CHROME LIMITED
APPLICANT
and
NORTH
WEST CHROME MINING
PROPRIETARY
LIMITED                                           FIRST
RESPONDENT
MONAGENG
FAMILY MINING
SERVICES
PROPRIETARY LIMITED                      SECOND
RESPONDENT
REGIONAL
MANAGER,
NORTH
WEST REGION,
DEPARTMENT
OF MINERAL RESOURCES
THIRD RESPONDENT
MINISTER
OF POLICE
FOURTH
RESPONDENT
SHERIFF
OF THE HIGH COURT OF
SOUTH
AFRICA, NORTH WEST DIVISION,
MANKWE
FIFTH RESPONDENT
Neutral citation:
Samancor Chrome Ltd
v North West Chrome
Mining (Pty) Ltd and Others
(Case no
30/20)
[2021] ZASCA 183
(23 December 2021)
Coram:
PETSE AP and DAMBUZA, VAN DER MERWE,
MAKGOKA and MABINDLA-BOQWANA JJA
Heard:
4 November 2021
Delivered:
This judgment was handed down
electronically by circulation to the parties’ legal representatives
by email, publication on the Supreme
Court of Appeal website and
release to SAFLII. The date and time for hand-down is deemed to be
09h45 on 23 December 2021.
Summary
:
Interdict – Mineral and Petroleum Resources Development Act
28 of 2002 (MPRDA) – mining activities conducted in an area
not
covered by mining permits but within area of applicant’s
prospecting right – court erroneously dismissing application on
the
basis of issue not before it – joinder of Minister of Mineral
Resources not necessary – s 47 of the MPRDA not precluding
relief
– application to adduce further evidence on appeal –
requirements therefor not established.
ORDER
On
appeal from:
North
West Division of the High Court, Mahikeng (Leeuw JP, sitting as a
court of first instance):
1
The application for leave to appeal is granted.
2
The application for leave to introduce further evidence is refused
with costs.
3
The appeal is upheld with costs, including the costs of the
application for leave to appeal
both in the high court and in this
Court.
4
The order of the high court is set aside and replaced with the
following order:
‘
1 The first
and second respondents and their contractors and/or employees and/or
personnel are interdicted and restrained from -
1.1 conducting, facilitating or
being involved in any manner whatsoever in mining activities on, or
the removal of any material from
the applicant’s prospecting area
situated on the remaining extent of portion 1, portion 5 and a
portion of Portion 3 of the farm
Tweelaagte 175 JP, situated in the
North West province, in the Magisterial District of Mankwe, as
depicted by the co-ordinates and
boundaries in the attached plan
marked as A (Samancor’s prospecting area);
1.2 entering Samancor’s
prospecting area without the applicant’s consent;
1.3 preventing the applicant from
accessing Samancor’s prospecting area.
2. The first and second
respondents are to vacate Samancor’s prospecting area together with
their employees, contractors, equipment
and machinery within 15 days
of the date on which the order is served upon them.
3 The fifth
respondent is directed, with the assistance of the fourth respondent,
should it be necessary
,
to give effect to the orders in paragraphs 1 and 2 above by –
3.1 preventing the first and second respondents and
their contractors and/or employees and/or personnel from entering
Samancor’s
prospecting area without the applicant’s consent;
3.2 preventing all trucks and other vehicles reasonably
suspected of being used or intended to be used for conducting,
facilitating
or being involved in any manner whatsoever in the
unlawful removal of material from Samancor’s prospecting area from
entering or
exiting Samancor’s prospecting area; and
3.3 removing from Samancor’s prospecting area any
trucks, vehicles, excavators, mining equipment, drilling equipment or
any other
equipment reasonably suspected of being used or intended to
be used for conducting, facilitating or being involved in any manner
whatsoever in the unlawful mining activities on or the unlawful
removal of any material from Samancor’s prospecting area;
4. The first and the second respondents are to pay the
costs of this application.’
JUDGMENT
Mabindla-Boqwana
JA
(Petse AP and
Dambuza, Van der Merwe and Makgoka JJA concurring)
Introduction
[1]
This
is an application by the applicant, Samancor Chrome Limited
(Samancor), for leave to appeal against the judgment of Leeuw JP
in
the North West Division of the High Court, Mahikeng, (high court)
and, if successful, the determination of the appeal itself.
The
application was
referred for oral argument in terms of s 17(2)
(d)
of the Superior Courts Act 10 of 2013 (Superior Courts Act).
In addition, Samancor sought leave to introduce new evidence
on
appeal in terms of
s 19
(b)
of the
Superior Courts Act.
[2
]
On
10 December 2018, Samancor had launched an urgent application in
terms of rule 6(12) of the Uniform Rules in the high court for
an
order, inter alia, interdicting and restraining the first respondent,
North West Chrome Mining Proprietary Limited (Chrome Mining)
and the
second respondent, Monageng Family Mining Services Proprietary
Limited (Monageng) from:
‘
2.1
conducting, facilitating or being involved in any manner whatsoever
in mining activities on, or the removal of any material from
[Samancor]’s prospecting area situated on the remaining extent of
portion 1, portion 5 and a portion of Portion 3 of farm Tweelaagte
175 JP, situated in North West Province, in the Magisterial District
of Mankwe, as depicted by the co-ordinates and boundaries in
the
attached plan marked as “A” (“Samancor’s Prospecting Area”);
2.2 entering Samancor’s Prospecting Area
without [Samancor]’s written consent;
2.3 preventing [Samancor] from accessing [its]
prospecting area.’
[3]
The
high court dismissed the application and the subsequent application
for leave to appeal. It also refused to grant Samancor's application
for leave to adduce further evidence for purposes of the envisaged
appeal. Only Chrome Mining and Monageng resisted the proceedings
from
the beginning, as they still did before us. For convenience, I refer
to them collectively as the respondents for the purposes
of this
judgment. The following, briefly, are the facts that precipitated the
dispute between the parties.
Facts
[4]
On
11 December 2017, Samancor was granted a prospecting right in respect
of the chrome mineral by the Deputy Director-General (DDG):
Mineral
Regulation of the Department of Mineral Resources (Department), in
terms of s
17(1)
[1]
of the Mineral and Petroleum Resources Development Act 28 of 2002
(MPRDA), and by virtue of the powers delegated to him by the Minister
of Mineral Resources
(Minister)
.
[2]
The prospecting right was notarially executed on 16 May 2018 and
registered in the Mineral and Petroleum Titles Registration Office
on
29 August 2018. It was to endure for a period of five years ending on
10 December 2022.
[5]
Clause
1 of the prospecting right described the prospecting area in the
following terms:
‘
The
Prospecting Area shall comprise of the following:
Certain: remaining extent of
portion 1,
portion 5, 7, 8 and 9
of the farm Tweelaagte 175 JP
Situated: North West Magisterial/administrative
district Mankwe
Measuring: 1089.4138 hectares in extent.
…
Which
Prospecting Area is described in detail on the attached diagram/plan
marked Annexure B.’
(My
emphasis.)
[6]
Annexure
B is a plan prepared in terms of regulation 2(2) of the Regulations
promulgated in terms of the MPRDA. It depicts a Figure
A to P that
represents the area as described in the prospecting right, with the
coordinates of each point provided in the table which
forms part of
the plan. The plan was certified by a professional land surveyor, Mr
Christopher Kirchhoff, and approved by the third
respondent, the
Regional Manager North West Province, Department of Mineral Resources
(Regional Manager) on 11 June 2018.
[7]
On
6 November 2018, Samancor discovered that the description of the
prospecting area was incorrect because portion 3 of the farm
Tweelaagte
was never sub-divided to form portions 7, 8 and 9. Mr
Kirchhoff deposed to an affidavit in support of the urgent
application, stating
that he had prepared Annexure B based on a
letter dated 11 December 2017, from the Acting Deputy-General:
Mineral Regulation of the
Department to Samancor, which described the
property over which Samancor had been granted its prospecting right,
inter alia, as ‘portions
7, 8 and 9 of the Tweelaagte 175 JP Farm’.
He further alleged that he relied on information obtained from the
website of the Surveyor-General’s
office, which included a diagram
of portion 3 depicting the aforesaid sub-divisions and approval
numbers allocated to portions 7,
8 and 9 of the Tweelaagte Farm 175
JP, being A2920/1954, A2921/1954 and A2922/1954 respectively. He also
relied on compilation plans,
which likewise depicted the diagram
numbers allocated by the Surveyor-General’s office to the same
portions. He stated that in
his experience, the Surveyor-General
would not allocate a diagram number without having been provided with
a formal consent for the
sub-division.
[8]
Mr
Eric Thabo, the Group Manager at Samancor, who deposed to the
founding affidavit in support of the urgent application, alleged
that
he had been informed by the Regional Manager that the Deputy
Surveyor-General from the Department of Rural Development and Land
Reform (Land Reform Department), Mr Dludla, had advised him that
although an application for the sub-division of portion 3 of
Tweelaagte
into portions 7, 8 and 9 was submitted to the Land Reform
Department for consideration during or about 1957, the sub-division
was
never approved by the relevant Minister at the time. Accordingly,
portion 3 had not been sub-divided to portions 7, 8 and 9 as it
was
thought.
Samancor
contended that despite the erroneous reference to these
sub-divisions, there could be no real dispute as to the area forming
the subject of its prospecting right, as the relevant area is evident
from the plan attached to its prospecting right as Annexure
B.
[9]
According
to Mr Thabo, in June 2018, and prior to Samancor commencing with its
prospecting activities, he discovered that the respondents
conducted
mining activities on Samancor’s prospecting area. Samancor
subsequently commissioned Mr Kirchhoff to carry out an aerial
mapping
of the prospecting area to assess whether illegal mining was indeed
taking place inside the area. Mr Kirchhoff confirmed
as much. His
aerial orthophoto map (aerial map) showed opencast mining activities,
namely a processing plant, supporting conveyors
and structures, a
drill pattern of holes in preparation of explosive blasting for rock
breaking and earthmoving equipment consisting
of two excavators and
six haul trucks on the area of the prospecting right.
[10]
Samancor
sought the assistance of the Department of Mineral Resources
(Department) and the South African Police Service to stop the
respondents from mining in the area. The respondents produced a
mining permit with number 31/2010 which had been issued to Monageng
on 8 June 2010. The mining permit was limited to an area of 1.5
hectares on portion 3 of the farm Tweelaagte 175 JP, which would
extend until 7 June 2012, and could be renewed for three periods each
not exceeding one year. According to Mr Kirchhoff, it was evident
from the aerial map that the area of this mining permit did not in
any way overlap with Samancor’s prospecting area. Monageng’s
mining permit area was situated on a separate portion of portion 3 of
the farm Tweelaagte 175 JP.
[11]
The
unsuccessful attempts to resolve the matter amicably with the
respondents led to Samancor bringing the urgent application mentioned
earlier in the high court. The respondents opposed this application
on the basis that: (a) it was not urgent; (b) the Minister of
Mineral
Resources (the Minister) ought to have been joined as an interested
party; (c) Samancor’s prospecting right was
void
ab initio
owing to the fact that portions 7, 8 and 9 were not registered with
the Registrar of Deeds and were therefore non-existent; and (d)
the
application was premature because a process in terms of s 47 of the
MPDRA
[3]
which provided the Minister with the power to cancel rights, permits
or permissions granted to a holder, was still pending. In this
regard
the respondents relied on a letter they had received from the
Department, dated 24 January 2019, which recorded that:
‘
The
Department investigated the matter and the grounds raised by yourself
on Portion 3 of the Farm Tweelaagte 175 JP were found to
be
legitimate. As [a] result of the investigation, the Department has
issued Samancor Chrome Limited with [a notice in terms of]
section 47
of the
Mineral and Petroleum Resources Development Act, 2002
.’
[12]
The
respondents alleged in their answering affidavit that Monageng held
three mining permits. In addition to permit number 31/2010
already
mentioned above, they referred to two further mining permits with
permit numbers 29/2010, 30/2010 respectively, issued on
8 June 2010
in respect of portion 3 of the Farm Tweelaagte 175 JP with similar
terms as permit 31/2010. The areas of each of the
two further mining
permits were also limited to 1,5 hectares and did not overlap with
that of Samancor’s prospecting right. They
further alleged that the
shareholders of Monageng were the lawful owners of portion 3 of the
Farm Tweelaagte 175 JP because they
inherited it from their
forefathers.
[13]
The
high court found in favour of the respondents and dismissed the
application with costs. It held that the matter was not urgent.
Nevertheless, it elected not to strike it from the roll on the basis
that the respondents were given an opportunity to respond to
the
application. The high court also found that the Minister ought to
have been joined in the proceedings because the power to issue
prospecting and mining rights vested in him; and that the Minister
had
already
started a process of cancelling the prospecting right permit issued
to Samancor. He, accordingly, had locus standi to claim
relief in
that regard. It also found that the Minister may in all likelihood
approach the high court concerning the same issue and
it was
therefore imperative to have him joined as a party to these
proceedings.
[14]
The
court then went on to consider whether the prospecting right was
valid. In this regard it made the following key findings:
‘
[35]
Applicant is the holder of a prospecting right permit, which permit
was issued on the basis of incorrect or insufficient information.
Chrome Mining and Monageng Family are also holders of 3 mining
permits, which allow them to conduct mining operations at the mining
area of portion 3 of the farm Tweelaagte. The mining permits were
lawfully acquired and there is no dispute in that regard.
[36] The power to issue, suspend and cancel a
prospecting permit vests in the Minister after due process prescribed
by the MPRDA has
been followed. Before this Court can grant a
restraining order against the respondents, it must first be satisfied
that the applicant
or Samancor has a clear right to conduct
prospecting activities at the prospecting area. In the circumstances
of this case, the facts
presented to this Court indicate that there
is doubt in respect of Samancor’s prospecting right.
. . .
[41] The mining right issued to the respondents
is valid and will remain valid until it is set aside through a
procedure prescribed
by the MPRDA and due process of the law. The
mining right permit should not be interfered with solely because the
applicant wishes
to assert its unclear right over the mining area of
the respondents.
. . .
[44]
…And besides, there is ample evidence on record that indicates that
the prospecting permit was inadvertently granted. The applicant
has
failed to show on the balance of probabilities that it has a prima
facie clear right to prospect at a prospecting area of a portion
of
portion 3 of the farm Tweelaagte.’
(Footnotes
omitted.)
[15]
As
already stated, Samancor brought an application for leave to appeal
the judgment of the high court as well as the application for
leave
to introduce further evidence, which were dismissed. The new evidence
that Samancor sought to introduce concerned the description
of the
prospecting area. In his affidavit, in support of this application,
Mr Thabo alleged that, although the error in the description
ought
not to have resulted in any uncertainty,
out
of caution, Samancor took steps to rectify
it. It did so by way of
an
application in terms of regulation 6(1)
(b)
of the Mining Titles Registration Act 16 of 1967. Pursuant thereto
and on 1 May 2019 its prospecting right was endorsed by deleting
the
reference to portion 7, 8 and 9 and describing the prospecting area
as the ‘Remaining Extent of Portion 1 of the farm Tweelaagte
175
JP, a portion of Portion 3 of the farm Tweelaagte 175 JP and Portion
5 of the farm Tweelaagte 175 JP’. According to Samancor,
this
endorsement has been registered in the Mineral and Petroleum Titles
Registration Office under amendment number 15/2019. In dismissing
the
application for leave to introduce further evidence, the high court
reasoned that the evidence sought to be introduced was available
when
the urgent application was heard and Samancor did not explain why it
was not presented then.
[16]
Meanwhile,
subsequent to the dismissal of the urgent application by the high
court, on 16 May 2019, Monageng launched an ex parte
urgent
application on 3 June 2019, in the same court. In it, it sought to
interdict various respondents including Samancor from interfering
with the mining business being conducted by Monageng on portion 3 of
the farm Tweelaagte 175 JP, in terms of the mining permits lawfully
issued in its favour. A Rule Nisi was issued by Gura J in the terms
sought by Monageng. On the return date, the matter served before
Hendricks DJP who discharged the Rule on 27 February 2020.
[17]
It
is apparent from paragraph 15 of Hendricks DJP’s judgment that in
the application that served before Gura J, Samancor had brought
a
counter-application seeking an order restraining Monageng from
conducting mining operations in the prospecting right area (similar
to the present matter). It is evident from the judgment of Hendricks
DJP that a number of issues forming the subject of the application
before Leeuw JP were considered by Hendricks DJP and firm findings
were made thereon.
[18]
Of
importance were the following findings: Firstly, that two of the
three mining permits that Monageng relied on to justify its
operations
in portion 3 had lapsed (ie permits 30/2010 and 31/2010).
These, together with permit 29/2010, were invalid and had to be set
aside.
Secondly that, Samancor’s prospecting right was valid.
Thirdly that, Monageng’s mining permits were confined to a specific
area,
which did not overlap with the portion over which Samancor held
a prospecting right. The relief sought by Samancor in its
counter-application
was therefore granted.
Is the appeal moot?
[19]
In
the course of the hearing before us, a debate arose as to whether the
matter was not moot owing to the fact that the relief which
Samancor
sought in the appeal had been granted in the order by Hendricks DJP.
The issue can briefly be disposed of as follows. First,
there are
live issues in the appeal in that the Hendrick DJP’s order was not
directed at Chrome Mining and that its scope did not
encompass all
the elements of the interdict sought in these proceedings. Secondly,
there are two mutually inconsistent judgments
emanating from the same
Division of the High Court, dealing with the same facts and involving
the same parties, which may lead to
confusion.
Should leave to appeal be
granted?
[20]
The
issue to be determined is whether leave to appeal should be granted
and if so, whether there is merit in the appeal and, additionally,
whether this Court should receive the further evidence sought to be
introduced by Samancor.
[21]
It
is convenient at this point to commence with the findings of the high
court (per Leeuw JP) relating to the validity of Samancor’s
prospecting right, because its pronouncements on the other issues
flow from this premise. The high court raised doubts about t
he
validity of the Samancor’s prospecting right as quoted in para 14
above. It viewed
the
determination on the validity of the prospecting right as being
decisive of the application. In this regard it erred. The validity
of
Samancor’s prospecting right was not before the court. The notice
of motion clearly specified that the substance of the relief
sought
was an interdict. The court approached the issues from the premise
that Samancor had sought a ‘declaratory order that portion
3 was
subdivided into portions 7, 8 and 9 of Tweelaagte’. This was not
so, Samancor accepted that the sub-division was never approved
by the
relevant Minister at the time and that there was an error in the
description of the prospecting area. Nevertheless, Samancor
asserted
that there was no doubt as to the location of the portion to which
its prospecting right related, which did not overlap
with the area
covered by Monageng’s mining permits.
[22]
While
the description of the area in the text of the prospecting right had
been incorrect, the prospecting right was lawfully issued
and
remained in place until cancelled or set aside. The high court erred
on this issue. It was not sitting as a court reviewing the
decision
to award the prospecting right nor was it asked to make a declaratory
order as to the sub-division of portion 3. Notwithstanding
the error
in the description of the prospecting area, the area was determinable
from Annexure B which was the plan attached to the
prospecting right.
There was no real dispute as to which area was the subject of the
application. The evidence as to how the error
in the description
arose was uncontroverted. The coordinates of the boundary were
identifiable. Thus, the high court erred in finding
that the
prospecting area was unclear.
[23]
The
high court further found that it was not clear whether s 10 of
the MPRDA had been complied with before the submission of
Samancor’s
application for approval to the Minister and that the prospecting
right had been granted on the basis of incorrect or
insufficient
information. As I have said, these questions were not in issue before
it. Findings in that regard could only have been
made in proceedings
properly challenging the decision to grant Samancor the prospecting
right. It was not suggested by the respondents
in the papers that the
DDG had erred in granting Samancor the prospecting right. Be that as
it may, the decision to award the prospecting
right, and the right
itself, remained valid until set aside by a court.
[24]
With
Samancor having established its prospecting right, the main issue the
high court ought to have focused on was whether or not
unlawful
activities were taking place within Samancor’s prospecting area.
The respondents did not really dispute that their mining
activities
were taking place in the area identified by Mr Kirchhoff in the
aerial map, which is the area described as Samancor’s
prospecting
right area in Annexure B. They merely disputed the validity of
Samancor’s prospecting right on account of portions
7, 8 and 9 not
being registered and contended that their activities were not
unlawful. In the circumstances the mere (partial) misdescription
of
the prospecting area was of no consequence.
[25]
The evidence was
that the area in respect of which Monageng held mining permits was
situated on a separate portion of Portion 3 of
the Tweelaagte farm.
It did not overlap in
any
way with the prospecting right area. Moreover
,
the mining permits on which the respondents heavily relied in their
answering affidavit had lapsed and there was no clear evidence
of
their renewal. That is, however, beside the point, because, even
if
they were still valid, the mining activities were taking place
outside the area authorised by the permits. The mining activities
were therefore unlawful, irrespective of the fact that Samancor’s
prospecting right might be open to challenge as to its validity.
The
high court did not engage with this issue in its judgment and, in
failing to do so, it erred.
[26]
This
expediently takes me to the issues of whether the Minister ought to
have been joined in the proceedings and whether the application
was
premature owing to the s 47 notice issued to Samancor. As to the
first issue, it is trite that a party must be joined in the
proceedings if that party has a ‘direct and substantial interest’,
ie legal interest in the subject matter of the litigation,
which may
be prejudicially affected by the judgment of the court.
The
Minister had delegated his powers to grant prospecting rights in
terms of s 103 of the MPRDA to the DDG. The Regional Manager
was
cited because he was party to the notarial execution of Samancor’s
prospecting right and was authorised to act on behalf of
the DDG
‘under and by virtue of a
power
of attorney’ granted by the Minister’s delegate, the DDG. This
information appears from the prospecting right. However,
neither the
Minister nor his delegates had a legal interest in the subject matter
of Samancor’s application, namely whether interdictory
relief
should be granted against the respondents on the basis of their
unlawful mining activities.
[27]
The
high court also erred in finding that Samancor’s application was
‘premature and unnecessary’ because of the s 47 notice
issued by
the Minister to Samancor. The procedure in terms of s 47 is available
to the Minister to cancel or suspend a prospecting
right in certain
circumstances. It is not, as the high court concluded, an ‘internal
remedy’ available to private parties seeking
to enforce their
rights. Samancor did not have to wait for the s 47 process to be
finalised before approaching the court for an interdict.
Those were
two different processes.
Should further evidence be
received?
[28]
The
high court erred in refusing the application to adduce further
evidence on the ground that the new evidence had been available
to
Samancor at the time of the institution of the application. The
endorsement that rectified the prospecting right was only effected
during the middle of 2019. However, for the reasons that follow the
application was correctly dismissed. The applicant has not shown
exceptional circumstances warranting reception of the further
evidence sought to be tendered on appeal. It is undesirable for a
court
to readily allow new evidence on appeal, in circumstances when
the applicant had deliberately chosen a course of how to conduct its
case.
[4]
[29]
Samancor
chose the path in its urgent application. It stated in its founding
affidavit that ‘the relief sought in this application
is not
dependent on [the] amendment being sought. A potentially incorrect
description of the prospecting area in Samancor’s Prospecting
Right
does not detract from Samancor’s rights as the holder of Samancor’s
Prospecting Right…’. It
was
aware that an error in the description of the prospecting right
existed, but intentionally adopted a course on how it was to conduct
its case, despite the error. The fact that alternative relief was
sought to allow for rectification of the error does not make for
special circumstances. This Court has stated on many occasions that
it will receive further evidence on appeal only in exceptional
circumstances.
[5]
There are none in this case. The application for leave to introduce
further evidence therefore had to fail.
Conclusion
[30]
In conclusion,
the requirements for the granting of an interdict in favour of
Samancor were clearly satisfied on the papers. Samancor
was able to
show that it was a holder of a prospecting right, validly granted in
its favour; the respondents conducted unlawful mining
activities in
its prospecting area, which would cause harm to the area and to
Samancor; no other remedy was available to it other
than approaching
the high court for an interdict,
[6]
and s 47 of the MPRDA did not stand in its way.
[31]
For the reasons
set out above, I am persuaded that leave to appeal should be granted
and the appeal be upheld. Resultantly, Samancor
is entitled to the
main relief sought in the notice of motion except for prayer 4, which
its counsel abandoned. There is no reason
why costs should not follow
the result. As to the costs of the application to lead further
evidence on appeal, it is necessary to
point out – for the guidance
of the taxing master – that argument on both sides relative thereto
took less than 15 minutes.
[32]
Accordingly,
the following order is made:
1
The application for leave to appeal is granted.
2
The application for leave to introduce further evidence is refused
with costs.
3
The appeal is upheld with costs, including the costs of the
application for leave to appeal
both in the high court and in this
Court.
4
The order of the high court is set aside and replaced with the
following order:
‘
1 The first
and second respondents and their contractors and/or employees and/or
personnel are interdicted and restrained from -
1.1 conducting, facilitating or
being involved in any manner whatsoever in mining activities on, or
the removal of any material from
the applicant’s prospecting area
situated on the remaining extent of portion 1, portion 5 and a
portion of Portion 3 of the farm
Tweelaagte 175 JP, situated in the
North West province, in the Magisterial District of Mankwe, as
depicted by the co-ordinates and
boundaries in the attached plan
marked as A (Samancor’s prospecting area);
1.2 entering Samancor’s
prospecting area without the applicant’s consent;
1.3 preventing the applicant from
accessing Samancor’s prospecting area.
2. The first and second
respondents are to vacate Samancor’s prospecting area together with
their employees, contractors, equipment
and machinery within 15 days
of the date on which the order is served upon them.
3 The fifth
respondent is directed, with the assistance of the fourth respondent,
should it be necessary
,
to give effect to the orders in paragraphs 1 and 2 above by –
3.1 preventing the first and second respondents and
their contractors and/or employees and/or personnel from entering
Samancor’s
prospecting area without the applicant’s consent;
3.2 preventing all trucks and other vehicles reasonably
suspected of being used or intended to be used for conducting,
facilitating
or being involved in any manner whatsoever in the
unlawful removal of material from Samancor’s prospecting area from
entering or
exiting Samancor’s prospecting area; and
3.3 removing from Samancor’s prospecting area any
trucks, vehicles, excavators, mining equipment, drilling equipment or
any other
equipment reasonably suspected of being used or intended to
be used for conducting, facilitating or being involved in any manner
whatsoever in the unlawful mining activities on or the unlawful
removal of any material from Samancor’s prospecting area;
4. The first and the second respondents are to pay the
costs of this application.’
N P MABINDLA-BOQWANA
JUDGE OF APPEAL
APPEARANCES
For
applicant:
P Lazarus SC
Instructed
by
:
Malan Scholes Incorporated, Johannesburg
Claude Reid Inc., Bloemfontein
For
first and
second
respondents:
B
F Gededger
Instructed
by
:
Kgosi Sekele Attorneys, Pretoria
Mhlokonya Attorneys, Bloemfontein.
[1]
Section 17(1) provides that ‘. . . subject to
subsection (4), the Minister must grant a prospecting right if–
(a)
the applicant has access to financial resources
and has the technical ability to conduct the proposed prospecting
operation optimally
in accordance with the prospecting work
programme;
(b)
the estimated expenditure is compatible with the
proposed prospecting operation and duration of the prospecting work
programme;
(c)
the prospecting will not result in unacceptable
pollution, ecological degradation or damage to the environment;
(d)
the applicant has the ability to comply with the relevant provisions
of the Mine Health and Safety Act, 1996 (Act No. 29 of 1996);
and
(e)
the applicant is not in contravention of any
relevant provision of this Act.’
[2]
Section 103(1) provides:
‘
The
Minister may, subject to such conditions as he or she may impose, in
writing delegate any power conferred on him or her by or
under this
Act, except a power to make regulations or deal with any appeal in
terms of section 96, and may assign any duty so imposed
upon him or
her to the Director-General, the Regional Manager or any officer.’
[3]
Section 47 provides:
‘
(1)
Subject to subsections (2), (3) and (4), the Minister may cancel or
suspend any reconnaissance permission, prospecting right,
mining
right, mining permit or retention permit if the holder thereof—
(a)
is conducting any reconnaissance, prospecting or
mining operation in contravention of this Act;
(b)
breaches any material term or condition of such
right, permit or permission;
(c)
is contravening the approved environmental
management programme; or
(d)
has submitted inaccurate, incorrect or misleading
information in connection with any matter required to be submitted
under this
Act.
(2) Before
acting under subsection (1), the Minister must—
(a)
give written notice to the holder indicating the
intention to suspend or cancel the right;
(b)
set out the reasons why he or she is considering
suspending or cancelling the right;
(c)
afford the holder a reasonable opportunity to
show why the right, permit or permission should not be suspended or
cancelled; and
(d)
notify the mortgagor, if any, of the prospecting
right, mining right or mining permit concerned of his or her
intention to suspend
or cancel the right or permit.
(3) The
Minister must direct the holder to take specified measures to remedy
any contravention, breach or failure. (4) If the holder
does not
comply with the direction given under subsection (3), the Minister
may act under subsection (1) against the holder after
having—
(a)
given the holder a reasonable opportunity to make
representations; and
(b)
considered any such representations.
(5) The
Minister may by written notice to the holder lift a suspension if
the holder—
(a)
complies with a directive contemplated in
subsection (3); or
(b)
furnishes compelling reasons for the lifting of
the suspension.’
[4]
See:
Colman v Dunbar
1933 AD 141
at 161.
[5]
See:
S v Romer
[2011] ZASCA 46
;
2011 (2) SACR 153
(SCA) paras 8-9.
[6]
See:
Holtz and Others v University of Cape Town
[2017] ZACC
10
;
2017 (7) BCLR 815
(CC);
2018 (1) SA 369
(CC).