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[2013] ZAFSHC 166
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Bosaletse and Others v Minister of Mineral Resources and Others (1891/2013) [2013] ZAFSHC 166 (26 September 2013)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Case No. : 1891/2013
In the matter between: -
REALEBOGA
BOSALETSE N.O.
………………………………..
First
Applicant
LUCY AMMON N.O.
……………………………………………
Second
Applicant
PUMZILE
F. NGXITO N.O.
……………………………………….
Third
Applicant
MASEHLEPHO
E. MOHAJANE N.O.
………………………….
Fourth
Applicant
TSIETSIE
JOSEPH TAU N.O.
…………………………………….
Fifth
Applicant
DITABA
.L. SEBONYANE N.O.
…………………………………..
Sixth
Applicant
AADIL
MATHER N.O.
…………………………………………
Seventh
Applicant
PATRICK
A. MABILO N.O.
…………………………………….
Eighth
Applicant
ESIAS
JEREMIA GERBER N.O.
………………………………..
Ninth
Applicant
YUSUF
KERBELKER N.O.
……………………………………...
Tenth
Applicant
FLOYD TEU N.O.
………………………………………………
Eleventh
Applicant
WHEATFIELDS INVESTMENTS
……………………………
.
Twelfth
Applicant
NO. 168(PTY) LTD
and
THE MINISTER OF
MINERAL RESOURCES
………………
First Respondent
DIRECTOR-GENERAL, DEPARTMENT
………………...
Second
Respondent
OF MINERAL RESOURCES
ACTING REGIONAL MANAGER MINERAL
………………
.
Third Respondent
RESOURCES. FREE STATE REGION
DE
BEERS CONSOLIDATED MINES LTD
……………….
Fourth
Respondent
PONAHALO
HOLDINGS (PTY) LTD
…………………………
Fifth
Respondent
REINET
FUND SCA FIS
………………………………………
Sixth
Respondent
JAGERSFONTEIN DEVELOPMENTS
……………….....
Seventh
Respondent
(PTY) LTD
MARIUS
DE VILLIERS
N.O.
…………………………
..
Eighth
Respondent
HENK JOHAN VAN ZUYDAM N.O.
………………………….
Ninth
Respondent
SIPHO PUWAN1 N.O.
…………………………………………
Tenth
Respondent
GONTHUSANG EUGINE GOLIATH N.O.
………………
Eleventh
Respondent
EZEKIEL ZAKHELE DUNJANE N.O.
…………………….
Twelfth
Respondent
KOPANONG LOCAL MUNICIPALITY
…………………
Thirteenth
Respondent
HEARD ON: 6 AUGUST 2013
DELIVERED ON: 26 SEPTEMBER 2013
JUDGMENT
MOCUMIE, J
[1]
This is a
review application which relates to prospecting rights of the
tailings dumps on subdivision 16 of the farm Jagersfontein
14
(“subdivision 16”), district of Fauresmith, Free State.
[2]
In the
Notice of Motion the applicants sought, on an urgent basis, the
following relief:
“
PART A, INTERIM RELIEF
Only in the event of the relief sought in respect in
Part B to D hereof not being determined during the hearing of the set
down
for 06 August 2013, the applicants intend to apply for interim
order in the following:
2.
That the fourth, sixth and
seventh respondents (or any one of them separately, or in any
combination, or through any
entity or person
acting under them be interdicted and restrained, pending the final
determination of the final relief herein in
part B,C,D, from
2.1.
conducting
any mining operations, prospecting operations and/or any related
activities without due authorisation under the Mineral
and Petroleum
Resources Development Act 28 of 2002 (“the MPRDA ) and the
provisions of \national Heritage Resources Act 25
of 1999 (“the
NHRA”), the National Water Act 36 of 1998 (“the NWA”),
the National Environment Management
Act 107 of 1998 (“the NEMA
) and/or the Townships Ordinance 9 of 1969 (“the Zoning
Ordinance”); on the land as
2.1.1
Subdivision
16 of the Remainder of the Farm Jagersfontein 14 in the district of
Fauresmith (“Subdivision 16”)
2.1.2
the
Remainder of the Farm Jagersfontein 14 in the district of Fauresmith
(“the Remainder”)
2.1.3
Subdivision
1 of the Remainder of the Farm Jagersfontein 14 in the district of
Fauresmith (“Subdivision 1”); and
2.1.4
Subdivision
15 of the Remainder of the Farm Jagersfontein 14 in the district of
Fauresmith (“Subdivision 15”)
in respect of diamonds occurring in or on the land,
being such portions as described above (hereinafter also referred to
as “the
Jagersfontein mine”) and the mine dumps located
on such land, (“the Jagersfontein dumps”);
3.
That the
first respondent (with second and third respondents) be interdicted
and restrained, pending the determination of the finai
relief herein
in Part B to D:
from issuing any written authority under the MPRDA to
the fourth, sixth and/or seventh respondents;
from issuing any written consent under section 11(1)
of the MPRDA to the fourth respondents, the sixth and /or seventh
respondents
(or to seventh respondents), in respect of any existing
prospecting rights or hold or purport to hold;
3.2.1.that will result in the transfer, cession,
letting, subletting, alienation, encumbrance by mortgage or variation
of a prospecting
right or mining right or an interest in such right,
or a controlling interest in a company or close corporation, or other
entity,
held by the fourth respondent;
3.3.
in relation to the land,
constituted by the Jagersfontein mine and the Jagersfontein;
4.
That the
fourth, sixth and seventh respondents (or any person acting under
them) be interdicted and restrained, pending the final
determination
of the relief herein in Part B, C, and D, from conducting an mining
operations or any occurring on or found on land
constituted by the
Jagersfontein mine and the Jagersfontein dumps, without due
authorisation under the MPRDA;
5.
That the
fourth, sixth and seventh respondents (or person acting under the) be
interdicted and restrained, pending the final determination
of the
relief herein in Part B, C and D, from conducting any mining
operations or any prospecting operation and/or from removing
and
disposing of diamonds occurring on or found on land constituted by
the Jagersfontein mine and the Jagersfontein dumps, without
due
authorization
5.1.
under the
NHRA, the NWA, the NEMA and the Zoning Ordinance;
and
5.2.
that all
mining operations, prospecting operations and/or any related
regulated or listed activities under MPRA in respect of land
constituted by Subdivisions 1,
15 and/or 16,
shall forthwith cease;
6.
That such
alternative and/or further relief be granted as Honourable Court in
the circumstances may deem fit;
7.
An order that
the costs of the application for interim relief, including the costs
of two counsel, be borne jointly and severally
by the respondents
that oppose the relief sought in this part.
PART
B: REVIEW AND RELATED RELIEF
8.
An order
reviewing and sitting aside
8.1.
the first respondent’s
decision to grant the fourth respondent a converted prospecting
right for five years with effect
from 13 January 2011;
8.2.
the notarial execution of
converted prospecting right (with reference FS 30/5/1/1/2/391 PR)
between the first respondent and
the fourth respondent on 13
January 2011 in relation to Subdivision 1, Subdivision 16 and the
Reminder, excluding the mine
dumps (or “tailings dumps”,
as set out in annexure “SG7”);
8.3. the registration , if any, of such right in the
Mineral and Petroleum Titles Registration Office pursuant to the
notarial
execution of the converted prospecting right;
9.
An order
reviewing and setting aside any decisions, proceeding, permission
granted or steps, if any, that may have been taken by
the first,
second and third respondent (read with section 103 (1)), as the case
may be,
9.1
regarding an application, if any, by fourth
respondent under section 11(1) for the written consent of first
respondent under the
MPRDA; in relation to land constituted by the
Jagersfontein mine or Jagersfontein dumps;
9.2
including, but not limited to grant if first
respondents written permission to the fourth, sixth and/or seventh
respondents (or
to any other entity or person acting under them or
related to them) in terms of section 11(1) of the MPRDA;
9.3
in relation to land constituted by Jagersfontein
mine or the Jagersfontein dumps.
JAGERSFONTEIN
COMMUNITY TRUST’S PROSPECTING
RIGHT
10.
Reviewing the first to third respondents’
administrative action in failing to process, determine and grant the
first to eleventh
applicants’ (“the Jagersfontein
Community Trust”) application for prospecting rights accepted
on and dated 13
September 2009, under reference number FS
30/5/1
/1/2/866PR
(in
respect of mine dumps 1,2,3,4,5,9,11,12 and 13 and diamonds in
general and in kimberlite);
11.
Declaring that the Jagersfontein
Community Trust’s application for a prospecting right dated 13
September 2009, under reference
number FS 30/5/1/1
/2/866PR
be granted;
12.
Directing the first respondent:
12.1
to reflect the grant of the said prospecting
right as having been granted in accordance with the provision of
section 17 of MPRDA;
and
12.2
to administer the prospecting right of the
Jagersfontein Community Trust so granted under the MPRDA;
RE
WHEATFIELD’S PROSPECTING RIGHT
13.
Alternative to paragraphs 8 to 10 above,
an order reviewing and setting aside the third respondents
(“Wheatfields”)
application for prospecting right dated
27 July 2009 under reference number FS 30/5/1/4/838PR (inter
alia
in respect of mine dumps 1,2,3,4,5,9,11,12
and 13 and diamonds in general and kimberlite); and
13.1
Declaring that the Wheatfields’ application
for prospecting rights dated 27 July 2009 under reference number FS
30/5/1/1
/838PR
granted:
13.2
Directing the first respondent to
13.2.1
reflecting the grant to Wheatfields Investment as
having been granted in accordance with provision of section 17 of
MPRDA; and
13.2.2
administer the prospecting right under the MPRDA;
14.
Alternative to paragraph 11, read with paragraphs
8 to 10 above, an order reviewing and setting aside the first to
third respondents’
refusal, delivered on 09 January 2013 to
accept the Wheatfields’ application for a prospecting right
under reference number
FS 30/5/1/1/2/1014PR; and
14.1
Declaring that the Wheatfields’
application for prospecting rights dated 27 July 2009 under
reference number FS 30/5/1/1/2/1014PR
be duly accepted, processed
and/or granted; and
14.2
Directing the first respondent to
14.2.1
reflecting the granted to Wheatfields Investment
as having been granted in accordance with the provision of section 17
of the MPRDA;
and
14.2.2
administer the prospecting right under
MPRDA.
GENERAL
15.
Declaring and confirming that first respondent,
in respect of the prospecting right granted to the Jagersfontein
Community Trust
(alternatively, to Wheatfields, is bound to.
15.1
consider facilitating assistance to the
Jagersfontein Community trust as a historically disadvantaged person
conducting prospecting
operations;
15.2
take into account all relevant factors under
section12 (3) (a) to (d) of MPRDA should the first respondent make
any discretionary
determination in section 12(1) to facilitate
assistance to the Jagersfontein Community Trust; and
15.3
to serve the purpose and achieve any object of
the MPRDA including those referred to in section 2 (c), (d) and (e),
should any determination
in section 12(1), read with section 12(4) be
made; and
16.
Declaring and confirming that MPRDA applies to
the Jagersfontein mine and the Jagersfontein dumps in respect of
minerals, including
diamonds, occurring on such land or in the mine
dumps;
17.
Declaring and confirming that prospecting
and mining may not be undertaken by the fourth respondent and/or
seventh respondent on
Jagersfontein mine and the Jagersfontein dumps
(including Subdivision 16, or any other land), unless and until
authorisation' under
the law therefore has been granted and the
mining operations, prospecting operations or any related or listed
activities, and that
they comply with the NHRA, the NWA, the NEMA and
the Zoning Ordinance and any other relevant law intended in the
MPRDA;
18.
That the fourth, sixth and seventh respondents
(or any one of them separately, or in any combination, or through or
any entity or
person acting under them) be
18.1
interdicted and restrained and directed to cease
all mining operations, prospecting operations or any related
activities in respect
of diamonds, on or in relation to mine dumps
situated on Subdivision 16;
18.2
interdicted and restrained from interfering with
or obstructing the Jagersfontein Community Trust or any one acting
under them from
exercising any activity related to the prospecting
right granted to the Jagersfontein Community trust any manner; and
18.3
interdicted and directed to vacate Jagersfontein
mine and the Jagersfontein dumps; and
18.4
further, subject to any orders issued under
paragraphs 21 and 21.2 and 21.2 below, interdicted and directed to
remove all mining
and prospecting installations, structures and/or
equipment that they have installed at, placed or positioned at the
Jagersfontein
mine and the Jagersfontein dumps, within a period of 90
days of this order;
19.
An order exempting the applicant from failing to
exhaust any available internal remedies, if it is found that
Wheatfields did not
so exhaust ail internal remedies, as envisaged in
section 7(2) of the Promotion of Administrative Justice Act 3of 2000
(“PAJA”)
prior to the launching of these proceedings;
20.
An order condoning the applicants’
non-compiiance with the requirements and time.period in section 7(1)
of PAJA for the institution
of review proceedings in respect of the
relief sought herein above, where such periods may find application
in relation to the
proceedings herein
PART C: FORFEITURE
AND COMPENSATION
21.
An order
directing that fourth respondent, sixth respondent (and all those
acting under them or related to them), as the case may
be, forfeit in
favour of the State (represented by the first respondent)
21.1
the proceeds and returns a of any unauthorised
and illegal prospecting, mining and/or sale of diamonds that they may
have achieved
pursuant to their prospecting or mining at the
Jagersfontein mine and the Jagersfontein dumps from about 2010 to
present date,
and
21.2
the plant, infrastructure and equipment
installed, located or used by the fourth respondent, sixth respondent
and/or seventh respondent
in respect of the prospecting and mining at
Jagersfontein mine and Jagersfontein dumps; and/or
21.3
That such alternative and/or further relief be
granted as the Honourable Court in the circumstance may deem fit.
22.
An order in terms of the provisions of section
8(1 )(c)(ii)(bb) of PAJA that the fourth respondent, sixth respondent
and /or seventh
respondent (and/or such respondent in any combination
including parties under their control or associated with them) be
directed,
jointly and severally, to pay compensation to the
Jagersfontein Community Trust, alternatively to Wheatfields, in an
amount equal
to the value of diamonds mined by them;
23.
Alternatively, further and in any event,
23.1
that such amount of compensation be determined as
the Honourable Court in the circumstances deems fit;
23.2
an order that fourth
respondent, sixth respondent and/or seventh respondent provide full
disclosure of all results obtained in respect
of mining operations,
prospecting operations and/or any related activities including the
removal and disposal of diamonds of trading,
in any manner, from 13
September 2009, under reference number FS 30/5/1
/1/2/866PR
to the date of this
order;
23.2.1.
with
reference to section 30 of the MPRDA, read with section 21 and 28;
23.2.2.
with
sufficient detail to establish the value of all diamonds mined,
removed and/or disposed of during period as the Court may determine,
by the said respondent;
23.2.3.
with
sufficient detail to enable a calculation of the benefits(s) derived
or gross value of diamonds derived by said respondents
from the
removal and disposal of diamonds through their mining operations or
prospecting operations on the land constituted by
Subdivision 16
and/or Subdivision 1 and/or Subdivision 15;
That such alternative and/or
further relief be granted as the Honourable Court in the
circumstances may deem fit.
PART
D
GENERAL
24.
That
such alternative and/or further relief be granted as the Honourable
Court in the circumstance may deem fit.
25.
An
order that the costs of this application, including the costs of two
counsel, be borne jointly and severally by the respondents
that
oppose the relief sought in these proceedings.”
[3]
The Department filed a Notice to Abide together with an affidavit
entitled:
Written Reasons.
The 4
th
to the
13
th
respondents oppose the application.
[4]
Mr
Ellis on behalf of the applicants in his closing argument narrowed
down the interim relief sought comprehensively in a proposed
draft
order which reads as follows:
“
1.
Pending the finalisation of parts B-D of the Notice of Motion:
(a)
The
fourth and seventh to twelfth respondents are interdicted from
winning, removing selling or otherwise disposing of any diamonds
derived from any tailing dumps on subdivision 16 of the farm
Jagersfontein no 14, in the district of Fouriesburg “the
property”.
(b)
The
first to third respondents are interdicted from issuing any further
consent in terms of section 11 of the MPRDA for the transfer,
session, letting, subletting, alienation, encumbrance or variation of
any prospecting or mining right in respect of the tailing
dumps on
the property.”
A.
DESCRIPTION
OF THE PARTIES
[5]
The first applicant
REAOLEBOGA
BOSALETSE N.O;
the
second applicant
LUCY
AMMON N.O.,
the
third applicant
PUMZILE
F. NGXITO
N.O.,
the fourth applicant
MASEHLEPHO
E. MOHAJANE N.O.,
the
fifth applicant
TSIETSIE
JOSEPH TAU
N.O.,
the sixth applicant
DITABA
L.
SEBONYANE
N.O
.,
the
seventh applicant
AADIL
MATHER N.O.,
and
the eighth applicant
PATRICK
A. MABILO N.O.,
are
all residents of Itumeleng township,
Jagersfontein,
acting as a duly appointed trustees of the Jagersfontein Community
Trust.
The
ninth applicant,
ESIAS
JEREMIA GERBER N.O
is
a
businessman
and resident of Kimberley, acting as a duly appointed trustee of the
Jagersfontein Community Trust. He is a director
and shareholder of
Wheatfields. He was authorised to depose to the affidavits and
institute this application on behalf of Wheatfields
and the
Jagersfontein Community Trust. The resolutions are appended to the
papers as
“
SG5”
and
“
SG6”.
The
eleventh applicant is
FLOYD
TEU N.O.,
a
resident of Kimberley, acting as a duly appointed trustee of the
Jagersfontein Community Trust.
The
tenth applicant is
YUSUF KERBELKER N.O.,
a
businessman and resident of Cape Town, acting as a duly appointed
trustee of the Jagersfontein Community Trust.
The
twelfth applicant is
WHEATFIELDS INVESTMENTS NO. 168 (PTY) LTD
(“Wheatfields”), a private company with limited
liability duly incorporated in accordance with the company laws of
the
Republic of South Africa, with its principal place of business in
Kimberley.
The
first to eleventh applicants will collectively be referred to as “the
Jagersfontein Community Trust”, and Wheatfields
and Esias
Jeremia Gerber, referred to collectively as “Wheatfields”.
The
first respondent is the
MINISTER OF MINERAL RESOURCES
in her
official capacity as the responsible Minister for the purposes of the
Minerals Petroleum Resources Development Act (“the
MPRDA”),
with her main office in Sunnyside, Pretoria.
The
second respondent is the
DIRECTOR-GENERAL, DEPARTMENT OF MINERAL
RESOURCES
in his official capacity and based in the Minister’s
Office.
The
third respondent is the
ACTING
REGIONAL MANAGER MINERAL RESOURCES; FREE STATE REGION
(or
“
Regional
Manager”) of the Department of Mineral Resources in her
official capacity as contemplated by the MPRDA, with offices
in
Welkom, Free State.
The
first to third respondents will collectively be referred to as (“the
Department”.),
The
fourth respondent is
DE
BEERS CONSOLIDATED
MINES
LTD
(“De
Beers”), a public company duly incorporated in accordance with
the company laws of the Republic of South Africa,
with its principal
place of business
in
Johannesburg.
The
fifth respondent is
PONAHALO
HOLDINGS (PTY) LTD
(“Ponahalo”), registration number 2005/0.30841/07, a
private company with limited liability, duly incorporated in
accordance
with the company laws of the Republic of South Africa, with its
office in Kimberley.
The
sixth respondent is
REINET FUND SCA
FIS
( Reinet
Fund”), a private company incorporated in accordance with the
laws of the Grand Duchy of Luxembourg, care of Cliffe
Dekker Hofmeyr
Attorneys, Sandton, Johannesburg.
The
seventh respondent is
JAGERSFONTEIN
DEVELOPMENTS
(PTY)
LTD,
(“JFD”) a private company with limited
liability, duly incorporated in accordance with the company laws of
the Republic
of South Africa, care of Cliffe Dekker Hofmeyr
Attorneys, Sandton, Johannesburg.
The
eighth respondent
MARIUS DE VILLIERS N.O.,
the
ninth respondent
HENK
JOHAN VAN ZUYDAM
N.O., the tenth respondent SIPHO PUWANI
N.O.,
the
eleventh respondent
GONTHUSANG EUGINE GOLIATH N.O.,
the
twelfth respondent
EZEKIEL ZAKHELE DUNJANE N.O
., are all cited
in their capacities as trustees of the Itumeleng Trust, care of
Cliffe Dekker Hofmeyr Attorneys, 1 Protea Place,
Sandton,
Johannesburg.
A
copy of the letters of trusteeship in respect of the trustees, with
the original amended trust deed of the Itumeleng Trust is
annexed
hereto in a bundle as annexure SG11 .
The
thirteenth respondent is the
KOPANONG
LOCAL MUNICIPALITY
located
in the Xhariep district in the
southern
Free State Province where Jagersfontein, Itumeleng and Charlesviile
are located, with its administrative head office in
Trompsburg and
with offices at Jagersfontein, represented by its Municipal Manager,
cited below.
The
thirteenth respondent is cited as a landowner that has an interest in
the relief sought and for purposes of notice as the responsible
local
authority.
No
relief is sought against the thirteenth respondent, save in the event
of the application being opposed on its behalf.
The
fourteenth respondent is the
MUNICIPAL MANAGER, KOPANONG LOCAL
MUNICIPALITY
care of thirteenth respondent,
Trompsburg, Free State, and is cited for purposes of notice on behalf
of the responsible local authority.
No
relief is sought against the fourteenth respondent, save in the event
of the application being opposed by the respondent.
[5]
It
was common cause that
5.1
in
2009 Jagersfontein Community Trust and Wheatfields applied for
prospecting rights on the tailings dumps on sub division 16,
Jagersfontein farm 14. These were accepted by the Department;
5.2
De
Beers was the purported owner of Jagersfontein farm and the assets on
it which were in turn sold to
Jagersfontein
Developments Pty (Ltd) (“JD Company”) on 13 September
2010;
5.3
late
2011 to early 2012 JD Company started to extract diamonds on the
tailing dumps on subdivision 16, Jagersfontein farm;
5.4
on
27 January 2012,the Department per letter,
SG27
had
informed Wheatfields that its application in respect of the tailings
dumps situated on portion 16 of the farm Jagersfontein
farm was
refused in terms of section 17(3) for failure to meet the
requirements of sections 17(1)(a) and (b) of the MPRDA.
[6]
The
main issue between the parties to be determined was whether the
applicants were entitled to the relief they sought as set out
in the
Notice of Motion, be it for the interim or final relief. Apart from
this main issue there were the ancillary issues which
actually formed
the basis of this case. It will be convenient to outline those issues
at this introductory stage and then return
to a discussion of the
main issue once these have been dealt with. The first ancillary issue
was whether the two decisions of this
Court,
De
Beers Consolidated Mines Limited
v
Ataqua
Mining (Pty)
Ltd
&
Others
[2009]
JOL 24502
(O) (“the 1st' Ataqua”) and
The
Regional Manager Mineral Regulation Free State Region & Others
Case
No 1590/2007 (O) (“the 2
nd
Ataqua decision”), were ‘in law unsustainable and must
not be followed’ as the applicants
submitted
and could be overruled by this Court sitting as three Judges. The
second ancillary issue was whether the subsequent decisions
of the
Supreme Court of Appeal and Constitutional Court with reference to
the applicability of the MPRDA and mining rights overruled
the two
Ataqua
decisions.
[7]
In
the event that this Court found that it could not overrule the two
Ataqua decisions on the basis as submitted by the applicants,
that is
the end of the applicants’ case. Their application must be
dismissed on that basis alone. If this Court found to
the contrary,
then the applicants can proceed to the next step i.e. of setting
aside and reviewing the decisions of the Department
in respect of
both applications.
The
issue of the third decision (setting aside and reviewing the s11
consent the Department granted to De Beers) was dead in the
water
from the onset because Wheatfields had already lodged an appeal
against that decision in terms of the internal appeal processes
of
the MPRDA as provided for in s 96 as at the time that this
application got underway on 6 August 2013. No reference will be made
to same
henceforth.
[8]
The
applicants submitted that during July and September 2009, the
Jagersfontein Community Trust and Wheatfields separately, submitted
two applications for prospecting rights on the tailings dumps on
subdivision 16. The Department accepted the Jagersfontein Community
Trust application on
13
September 2009 and the Wheatfields application on 27 July 2009.
Whilst they were waiting for the Department to process and finalise
these applications, the Department converted De Beers’ old
order prospecting rights over subdivision 16 excluding the tailing
dumps and consented to the sale and cession of the rights to JD
Company in terms of section 11 of the MPRDA. The Department failed
to
give them an opportunity to make representations as interested
parties as required under section 3(2) and (3) of the Promotion
of
Administrative Justice Act 3 of 2000 ( PAJA ) prior to taking
decisions with regard to De Beers that may impact on the
Jagersfontein
Community Trust and Wheatfields’ application for
prospecting rights. Over and above, Jagersfontein Community Trust and
Wheatfields,
representing previously disadvantaged persons, should
have been given first preference in line with the purpose of the
MPRDA.
[9]
The
applicants submitted further that the 1
st
Ataqua decision which decided that De Beers was the owner of the
tailings dumps in issue and the 2
nd
Ataqua decision which ordered the Department to convert De Beers’
old order prospecting permit, were “unsustainable
in law and
not to be followed.
[10]
De
Beers filed an answering affidavit setting out the basis of its
opposition to the application. The gravamen of De Beers’
opposition was that it sold its Jagersfontein assets with the
accompanying rights over the tailings dumps to JD Company in
September
2010 after this Court in the 1
st
Ataqua
decision definitively declared that the tailings dumps belonged to it
and the same Court in the 2
nd
Ataqua decision ordered the Department to convert its old order
prospecting rights which entitled it, on the basis of the consent
granted by the Department in terms of s 11 of the MPRDA to its new
order prospecting right which it in turn sold to JD company.
[11]
As
a background to this application, De Beers submitted that it was the
owner of Jagersfontein farm and the mineral rights which
included all
precious stones, all precious metal base minerals, oils in and under
subdivision 16 of the farm Jagersfontein 14 as
far back as 1973 which
were acquired by way of a cession from a company called the New
Jagersfontein Mining and Exploration Company
Ltd
(the
New
Company”), Deed of Cession 85MR1973, executed on 20 September
1973,
DB1
as
well as all assets, movable and immovable, corporeal or otherwise
acquired by another Deed of Cession executed on 8 October 1971,
DB2
[12]
It
submitted also that sometime during May 2010 it invited several
prospective buyers to submit bids for the acquisition of its
Jagersfontein assets. JD Company and Wheatfields were amongst those
bidders. Ultimately, through due processes of tendering, JD
Company
won the bid. On 13 September 2010 it concluded a Sale of Assets
Agreement,
DB5
,
with JD Company and sold the tailing dumps as well as the converted
prospecting rights on subdivision 16 and other subdivisions
which are
not relevant for purposes of this application, to JD Company. The
tailings dumps as recorded
under
clause 2.3.1 of the Sale of Assets Agreement, DB5, were sold as
movable assets to JD Company. The Jagersfontein Community
Trust and
Wheatfields lost that bid.
[13]
De
Beers, finally submitted that, as a result of the above mentioned
legal sale of its assets and prospecting rights to JD Company,
from
the date of the sale and the date on which JD Company started to
process on the tailings dumps on subdivision 16, it was not
conducting any of the prospecting operations or activities on
subdivision 16 complained about by the applicants. This was conveyed
to the applicants in a letter dated 18 June 2013, DB10.
[14]
Reinet
Fund submitted that it only funded the sale of assets between De
Beers and JD Company. As security for its investment, it
held shares
in JD Company. It was not mining or engaged in any mining activities
on subdivision 16 on
Jagersfontein
farm.
The
rest of the respondents,6th; 8th to 13th; like Reinet Fund only had
shares in JD company and were also not mining or engaged
in any
mining activities or even prospecting on subdivision 16 Jagersfontein
farm 14.
[15]
The
court in the 1
st
Ataqua decision ordered as follows:
“
1.
It
is declared that the applicant [De Beers] is the owner of the
tailings dumps situated on subdivision 16 of the farm Jagersfontein
14, Magisterial District of Fauresmith.
2.
(Not
relevant)
3.
(Not relevant)
4.
It
is declared that the provisions of the Mineral & Petroleum
Resources Development Act 28 of 2002, do not apply to the tailings
dumps situated on Subdivision 16 of the farm Jagersfontein 14,
Magisterial District of Fauresmith.”
(5
- 8. Not relevant.)
[16]
I
t
was common cause between the parties that this decision was never
appealed against by any of the parties involved, particularly
the
Department. That the applicants were not parties to it
[17]
The
applicants submitted that this Court was not bound by the 1
st
and 2
nd
Ataqua decisions, particularly the 1
st
Ataqua decision. Mr Ellis, on behalf of the applicants argued that
the two decisions were not cast in stone to mean that however
wrong,
the courts in the same jurisdiction were bound to follow them. He
raised the following arguments including that (j) the
court in the
1
st
Ataqua case made a declaratory order regarding the applicability of
the MPRDA when the applicant
in
that matter, De Beers, did not seek such relief, (ii) the 1
st
Ataqua decision was not a judgment
in
rem
and thus not binding on the current applicants as they were not
parties to
it
(See
Lazarus-Barlow
v
Regent Estates
Co
Ltd
and Another
[1949]
All ER 118
;
Tshabalala
v Johannesburg
Municipality
1962 (4) SA 367
(T).
Compare with
Kost
er
Kooperatiewe Landboumaatskappy
B
pk
v
Wadee
1960
(3)
SA
197)
T, and (iii) the applicability of the MPRDA was
not
properly ventilated.
[18]
Messers Van der Nest and Loxton on behalf of the respondents
impressed upon this Court that the principle that courts are bound
by
decisions which have not been set aside on appeal particularly those
not clearly wrong was entrenched in our system and cannot
be deviated
from on the facts of this case, more so because the applicants did
not even make out a case to show exceptional circumstances
for this
Court to disregard the two decisions referred to.
[19]
The Court in the 1
st
Ataqua decision addressed several issues including the issue around
the ownership of the tailings dumps on subdivision 16 and the
applicability of the MPRDA over these tailings dumps. It extensively
considered the history of De Beers in the mining industry
in that
area and how it came to become the owner of the tailings dumps based
on all the documentation presented during arguments;
considered the
relevant sections in the MPRDA and ruled that the tailings dumps
belonged to De Beers and that the MPRDA was not
applicable to them.
[20]
When
the whole judgment of the 1
st
Ataqua decision is read, particularly para [56]-[68] it was clear
that all issues raised were properly ventilated or litigated.
The
parties made full submissions on all including those raised by the
Court during its interaction with counsel. Several concessions
were
made
including
the fact that the MPRDA clearly did not provide for the tailings
dump, even under the Transitional Arrangements. Thus
the Court
preferred in the circumstances of the case not to usurp the function
of the legislator through imposing an interpretation
other than what
was clearly the intention of the legislature and instead to defer to
the legislature to correct that lacuna itself.
[21]
This
Court, despite sitting as a full bench of three Judges at the special
request of the applicants is bound by the 1 Ataqua decision
particularly because the Department which was party to those
proceedings and as the legislator and custodian of the mineral
resources,
representing the Government, chose not to appeal the
decision. The Department instead opted to amend the MPRDA in line
with the
1
st
Ataqua decision as is evidenced from the proposed amendments.
[1]
The applicants in any event did not make out any case of exceptional
circumstances justifying this Court to depart from the 1
st
Ataqua decision nor have they made out a case in which the interests
of justice justify such a departure. Even if they did, which
they did
not, they would not have succeeded because their argument was not in
relation to the
ratio
decidendi
of the 1
st
Ataqua decision but the orders granted.
[22]
The
submission Mr Ellis made that the 1
st
Ataqua decision was one
in
rem
and not binding on the applicants as they
were
not parties during those proceedings cannot be helpful to the
applicants. The department was a party to those proceedings.
The
order consequently made was binding on it and virtually disempowered
it to grant any rights to any other party to the tailing
dumps in
terms of the MPRDA.
[23]
Neither
can recent decisions of the Constitutional Court
[2]
and
the Supreme Court of Appeal
[3]
dealing with the application and interpretation of the MPRDA be of
any assistance to the applicants in retrospect because all the
decisions did not deal with the crisp issue of the 1
st
Ataqua decision that is also central in this matter i.e. the tailings
dumps; their identity and ownership. In none of these cases
referred
to did the 1 Ataqua decision even come up for discussion.
[24]
The
Court in the 2
nd
Ataqua decision ordered as follows:
“
8.1 The decision to refuse to convert
the applicant’s old order prospecting permit in terms of item
6(1) of Schedule II to
the MPRDA is hereby reviewed and set aside.
8.2
The
2
nd
and 3
rd
respondents are directed to convert the applicant’s old order
prospecting permit (No.45/2003) in respect of sub division
1 (Kings
Paddock), Subdivision 16 and the Remaining Extent of the farm
Jagersfontein, excluding tailings dumps and consisting of
the rights
to diamonds held by the applicants by virtue of Notarial Deed of
Cession of Mineral Rights...into a prospecting
right
of the said properties and do all things and take all steps necessary
for the execution and registration of such converted
right as
envisaged in the MPRDA...
[25]
The
same reasoning in respect of the 1
st
Ataqua decision as set out above is applicable to the 2
nd
Ataqua decision. The submission that De Beers had forgotten to apply
for the conversion of its old order prospecting permit in
respect of
the tailings dumps cannot be correct considering that De Beers made
its application within the 2 year grace provided
for by the MPRDA.
There was nothing that really revolved around the 2
nd
Ataqua decision. The interpretation given by the court then was
logical, reasonable and justified because all the Court was required
to rule on was whether the De Beers was out of time or not. The Court
held that it was within the extended period given to all
old order
permit holders and consequently ordered the Department to convert De
Beers’ prospecting permit. The Department
complied.
[26]
What
made the respondents’ case more compelling on this leg was that
the Department by converting De Beers’ old order
prospecting
permit was acting and complying with a valid order of this Court,
which like the 1
st
Ataqua decision was never appealed against. If the Department did not
do as ordered it would have been in contempt of a court order
and
liable to punishment. See
Dermetenqe
Holdings (Pty) Ltd
and
Southern Sphere Minina and Development Company Limited and 7 Others
Case
no 619/12
[2013] 2 All SA 251
(SCA)
(11 March 2013) where the Supreme Court of Appeal stated at para
[17]:
“
...[E]ven
though the Minister and State functionaries (who had been cited as
respondents in that case) had chosen, in their wisdom
not to oppose
the grant of the interdict, they were free to simply disregard that
order of court. Once again I cannot agree. As
Froneman J observed in
Bezuidenhout v Patensie Sitrus Beherend BPK
2001 (2) SA 224
(E) at
229B-C:’ An order of court of law stands until set aside by a
court of competent jurisdiction. Until that is done
the court order
must be obeyed even if it may be wrong {Culverwell v Beira
1992 (4)
SA 490
(W) at 494A-C.A person may be even barred from approaching the
court until he or she has obeyed an order of court that has not been
properly set aside (Hadkinson v Hadkinson
[1952] 2 All ER 567
(CA);
Bylieveldt v Redpath
1982 (1) SA 702
(A) at 714.’
Moreover
it bears re-iterating that respect for the authority of the courts,
which is foundational to the rule of law, often serves
as bulwark
against anarchy and chaos.”
[27]
In
order to succeed on the application for an interim order the
applicants had to prove three requirements:
(a)
Prima facie
right to be protected.
The
applicants submitted that the fact that they had lodged applications
with the Department before De Beers, when the Department
received and
accepted De Beers’ application for conversion of its old order
prospecting permit it should have consulted them
and even informed
them as interested parties to give them an opportunity as the MPRDA
provides, to make submissions. Once the Department
accepted their
applications,
regardless of the final decision to reject or dismiss such
applications, they were interested parties.
The
respondents, on the other hand, submitted that it was clear when this
Court in the 1st Ataqua decision declared definitively
that De Beers
was the owner of subdivision 16 and the tailing dumps on it; that De
Beers consequently had the right to even sell
those prospecting
rights to any successful bidder and in this instance JD Company. The
Department made an error to accept the applicants
applications for
prospecting rights over the same tailings dumps. In the absence of
any contrary decision on this matter, correctly
so as the respondents
submitted, the Department was wrong because it was precluded from
granting purported rights in terms of the
MPRDA relating to tailing
dumps in view of the 1
st
Ataqua decision.
(b)
Prejudice and
irreparable harm if such interim relief was not granted
It
was common cause between the parties that JD Company started
processing on the tailings dumps on subdivision 16 late 2011 or
at
least early 2012.lt has been processing and even removing the
diamonds found on subdivision 16 to a place somewhere in Wolmaranstad
for safe keeping pending the responsible authority registering it as
a diamond dealer to sell diamonds. As JD Company confirmed
it did not
have the right to mine and sell the diamonds until this matter is
settled. What cannot be disputed by anyone is that
as the applicants
submitted, every day that JD Company continued to process on this
piece of land, the resources in the tailings
dumps
were
getting depleted and by their very nature could not be replaced. Any
interested party would on that basis suffer irreparable
harm if the
interim relief sought was not granted.
The
respondents argued to the contrary. They submitted that, the fact
that the applicants did not have any right to any of the relief
sought on the basis that they were not interested parties as they
were not parties in the 1st Ataqua decision, which was never
taken on
appeal the applicants had no right to stop any activities going on,
on subdivision 16. Furthermore, they submitted that
if there was any
harm that any party would suffer it would be JD company and its
subsidiaries and investors because of the large
capital investment
running up to millions already invested in the project and resources
including human resource arising from the
number of people who JD
Company had employed since it started with this project based on a
valid decision of this Court. All arranged
their lives and plans on
the basis that the matter was finally disposed of in 2007 and
subsequently when the 1
st
Ataqua decision was never
appealed against.
(c)
That they had
no other remedy available
The
applicants submitted that they had no other alternative except this
remedy considering that the diamonds would get depleted
if JD Company
was not stopped from prospecting and mining on subdivision 16.
The
respondents submitted that there was no basis to consider alternative
remedies in this case, as the applicants simply had no
right and had
not shown to have any.
[28]
In
my view, the applicants have not satisfied the requirements as set
out above for the following reasons. The 1
st
Ataqua decision made it clear that De Beers was the owner of what was
on Jagersfontein farm including the tailings dumps. From
that moment
whatever application the Department had accepted, including that of
the Jagersfontein Community Trust and Wheatfields,
could no longer be
considered.
The
applicants’ interest in the matter was limited to an alleged
expectation or right to obtain a prospecting permit in regard
to the
dumps only and not to the rest of the properties, since they never
applied for such rights.
[29]
The
applicants submitted that they were not aware of the decision(s) of
the Department not to consider their applications for prospecting
rights on subdivision 16. This submission cannot be correct. On its
own, the Wheatfields application was refused by the Department
in a
letter dated January 2012, S27. As early as December 2012 the
Jagersfontein Community Trust became aware of the Department’s
decision not to consider its application through correspondence that
De Beers exchanged with the Department and forwarded to the
applicants’ attorneys of record, Voster
et
al.
On 6 June 2013 the Department filed an affidavit in these proceedings
entitled:
Written
Reasons.
In this affidavit it stated at paragraph 3 that
“
after
the original uncertainty, the Department considered it a mistake to
entertain and process the too applications and they were
refused. The
reason for the refusal is the first Ataqua decision which found that
the MPRDA did not apply to the tailing
dumps
on subdivision 16.”
[30]
What
made it virtually impossible that the applicants could not have known
about the Department s decision(s) on the two applications
was that
both were represented by the same firm of attorneys: Voster &
Marx Attorneys, Paarl, Western Cape since October/November
2011 as
per James Higgo Voster's confirmatory affidavit, p. 352, Pleadings
Bundle.
[31]
What
compounded the applicants case further was that nowhere in the papers
did the applicants state why they took over a year to
bring the
application to court until on 6 August 2013. What their counsel
proffered from the side bar, that they were indigent
could hardly be
justa
causa.
It was in any event never their case on the papers; neither was there
any application sought to supplement these papers to include
this
reason or any other reason for that matter. As indicated already they
have been consistently represented by lawyers
as
early as 2011.
[32]
Which
also begs the question, why did the applicants not exhaust their
internal remedies first including lodging an appeal in terms
of
Promotion of Administrative Justice Act, Act
3 of 2000 (“PAJA”).
Surely that would not have cost what it would to approach this Court
on an urgent basis. As indicated
the applicants have always had legal
representation through Voster & Marx Attorneys and knew what was
at stake. On that basis
the applicants have failed to show any
urgency. If there was any, then it was selfcreated. The
application must fail on this
leg too.
[33]
As
stated by
Holmes
JA
in
Federated Emp]oyers_Fire General Insurance Co Ltd
&
Apathy v McKenzie
1969 (3) SA 360
(A) at 362F-G :
“
Factors
which usually weigh with courts in considering an application for
condonation include the degree of non- compliance, the
explanation
therefor, the importance of the case, a respondent’s interest
in the finality of the judgment of the court below
, the convenience
of the court and the avoidance of unnecessary delay in the
administration of justice.”
[34]
The
applicants approached this Court on an urgent basis. They had to
prove that there were prospects of success if the matter were
to
proceed further. Based on the conclusion reached in respect of the
two Ataqua decisions in the above paragraphs of this judgment
coupled
with the failure to advance an acceptable explanation, we may have
been entitled to refuse the indulgence of condonation,
but for the
respondents who have 'implored us to rather grant condonation because
if condonation was refused it would leave it
open for the applicants
to renew their application in terms of the usual time prescripts of
the rules of practice of this
Court. (See
Blumenthal
& Another
v
Thomson
NQ_&
Another
[1993] ZASCA 190
;
1994 (2) SA 118
(A) at 121 and cases cited therein). The respondents
were not seriously opposed to the applicants’ request which
made us
then to proceed to consider the application for interim
relief as set out above.
[35]
In
conclusion, I think it is necessary and apposite to make some general
remarks on the treatment of the Jagersfontein Community
and
Wheatfields but to a less extent Wheatfields by the Department. The
applicants were not properly assisted in what was obviously
an effort
to acquire prospecting rights over the tailing dumps on a piece of
land which belonged to De Beers but had Iain vacant
and unused for a
decade or so. Although the MPRDA does not impose an agreement on the
part of the landowner, De Beers in this case,
it was incumbent on the
Department to have facilitated such engagement in good faith to
attempt to reach accommodation to the satisfaction
of both parties.
Surely if the applicants were kept abreast of developments and
assisted through some form of mediation by the
Department instead of
being shunted from one door to another and be informed on the eve of
the case as late as June 2013 in the
case of the Jagersfontein
Community Trust’s application or the earliest December 2012
they would not have seen the court
as a their only hope after such
inordinate delay.
[36]
Finally
it must be stated unequivocally that the Department missed an
opportunity to redress the imbalance the MPRDA recognised
and
intended to correct. Whatever it does in the future including the
proposed amendments to the MPRDA referred to above or any
related
legislation to cure tnis very defect, having failed to appeal the two
decisions to the extent necessary or the extent the
two were in
conflict with the purport of the MPRDA as it and the broader
community understood it; can never be of any comfort to
anyone in
Jagersfontein or anywhere else in South Africa in the same situation.
The law does not apply retrospectively unless so
decreed by the
legislature which is in this case the Department but it chose
overtly, ignorantly or otherwise not to do so.
ORDER
[37]
In
the result the following order is made.
1.
The
application
for
condonation
is granted.
2.
The
application
for an interim order, PART A of the Notice of Motion, is dismissed.
3.
The
applicants are ordered to pay the costs of this
application,
including
those incurred by the
respondents
in opposing the application on an urgent
basis.
4.
Costs
to include costs of two counsel.
B.C.
MOCUMIE, J
I
agree
M.B.
MOLEMELA, J
A.F.
JORDAAN, J
On
behalf of applicant: Adv Ellis
Instructed
by: Peyper Sesele Attorney’s Inc.
BLOEMFONTEIN
On
behalf of respondents: Adv Loxton and Van der Nest
Instructed
by: Vosloo Attorneys
BLOEMFONTEIN
[1]
The
Mineral and Petroleum Resourcess Development Amendment Bill
published in
Government
Gazette No.36523 of 31 May 2013
[2]
Minister
of Minerals and Energy and Agri SA case no; 458/2011
[3]
Agri
South Africa and Minister of Minerals and Energy Case CCT
5W2m
3]ZACC
9; Bengweyama Minerals (Pty) Ltd v Genorah Resources and Others
[2010] 3 SA ALL SA 577 (SCA); Holcim v Prudent Investors
and Others
case no: 641/09; Xstrata South Africa (Pty) Ltd and Others v SFF
Association
2012 (5) SA 60
(SCA)