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[2012] ZAGPPHC 2
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Sishen Iron Ore Company (Pty) Ltd v Minister of Mineral Resources and Others (28980/10) [2012] ZAGPPHC 2 (3 February 2012)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH GAUTENG DIVISION
CASE NO:
28980/10
DATE:03/02/2012
SISHEN IRON ORE
COMPANY (PTY) LIMITED
......................................
Applicant
v
MINISTER OF
MINERAL
RESOURCES
.....................................................
First
Respondent
DIRECTOR-GENERAL:
DEPT OF MINERAL RESOURCES
...................
Second
Respondent
DEPUTY
DIRECTOR-GENERAL MINERAL
REGULATION
DEPARTMENT OF MINERAL RESOURCES
...................
Third
Respondent
THE REGIONAL
MANAGER. NORTHER CAPE REGION
......................
Fourth Respondent
DEPT OF MINERAL
RESOURCES
IMPERIAL CROWN
TRADING 289 (PTY) LIMITED
...............................
Fifth Respondent
THE OFFICER PERFORMING
FUNCTIONS
..............................................
Sixth
Respondent
IN TERMS OF THE MINING
TITLES REGISTRATION ACT 1967
.
DEPT OF MINERAL RESOURCES
JUDGMENT ON
THE APPLICATION TO STRIKE OUT
ZONDO J:
Introduction
[1] In 2010
Sishen Iron Ore Company (Pty) Ltd. the applicant in this application
launched an application in this Court for the review
and setting
aside of various decisions that had been, taken by the first, second,
third and fourth respondents concerning an application
that had been
made by Imperial Crown 289 (Pty) Ltd ("1CT"). the fifth
respondent in those proceedings, and. in this application,
to the
Minister of Mineral Resources, the first Respondent, for the grant of
a prospecting right for iron ore and manganese or
some or other
minerals in properties that the parties to those proceedings referred
to as the fable 1 properties in Kuruman. Northern
Cape. Sishen also
sought in those proceedings an order compelling the Minister or her
delegate to make a decision whether to grant
or refuse its
application for a mining right for iron ore and quartzite relating to
a 21.4% undivided share in the right to iron
ore in such properties
which Sishen and the respondents believed had effectively been
forfeited by Arcellor Mittal South Africa
Limited at 24h00 on the
3()'
h
April 2009 and which they believed was available to
the Minister to grant to someone else.
[2] ICT"s
application for a prospecting right related in part to the same 21.4%
undivided share. Sishen's application for such
mining right had been
pending for a long time without any decision being taken on it. ICT's
application had been granted by a delegate
of the Minister. Another
order which Sishen also sought in the review application was an order
to the effect that it i.e. Sishen
was the only competent person who
could be granted the 21.4% of the mining right to iron ore in the
Table 1 properties. Sishen
also launched an application for an
interdict restraining the Minister or her delegale from granting ICT
a mining right relating
to the 21.4% share in the right to iron ore
in the Table 1 properties pending the determination of the review
application.
[3] Later on.
Arcellor Mittal South Africa Limited ("AMSA") was joined as
a second applicant in the review application
and in the interdict
application which Sishen had launched. AMSA sought orders:
(a) inter alia:
declaring the grant of a prospecting right to ICT void ab initi;
(b) declaring
that Sishen had been granted a 100% mining right for iron ore in
respect of the Table 1 properties:
(c) declaring
that Sishen was the exclusive holder of a converted mining right for
iron ore and quartzite in respect of the Table
1 properties; and,
(d) declaring
that any decision to grant a prospecting right or mining right for
iron ore and quartzite in respect of the Table
1 properties to anyone
including ICT after the converted mining right had been granted to
Sishen was void ab initio.
The
application to strike out.
[41 In due
course the state respondents and ICT delivered and served their
respective answering affidavits to Sishen's application
for a review
and interdict. After this. Sishen launched this application, being an
application in terms of Rule 6(15) of the Uniform
Rules of Court for
an order striking out certain portions of certain affidavits filed by
the state respondents and ICT. Sishen.
nevertheless, filed and served
its replying affidavits to the answering affidavits. The parties also
exchanged all the necessary
affidavits in respect of AMSA's
application. Sishen's and AMSA's review applications were heard by me
from the 15"' to the
19
lh
August 2011. 1 reserved
judgment on the !9
fil
August 2011. On the 15
lh
December 2011 1 granted various orders. On the 20
,h
December 2011 I provided a full judgment in the two review
applications. I indicated in that judgment that Sishen's application
to strike out certain portions of the respondents" affidavits
was to be the subject of a separate judgment. This is the judgment
in
the latter application.
[5] Through this
application Sishen objects to certain portions of certain affidavits
filed and served by the state respondents
and ICT in response to its
review and interdict applications to this Court. It contends that
some of those portions of affidavits
are irrelevant, others are
vexatious or are both irrelevant and vexatious and others constitute
hearsay evidence and that all of
them should be struck out of the
relevant affidavits. The state respondents and ICT oppose this
application. AMSA takes no part
in this application because no strike
out order is sought against any portion of its affidavits.
[6] The main
answering affidavit filed on behalf of the State respondents was
deposed to by Mr Sandile Nogxina who was Director-General
of the
Department of Mineral Resources during the relevant period. Mr Roccha
who was at the relevant time the Deputy Director-General:
Mineral
Regulation in the same Department also deposed to an answering
affidavit on his own behalf as the third respondent in the
review and
interdict applications. Both affidavits contained parts to which
Sishen objected and sought to have struck out. Mr Sehunelo
deposed to
ICTs answering affidavit to Sishen's review and interdict
applications. ICT also filed and served two affidavits deposed
to by
Mr Costa in support of the opposition to Sishen's application. Sishen
also objected to certain portions of Mr Sehunelo's
affidavit and Mr
Costa"s affidavit and sought to have them struck out.
[7] The portions
of the respondent's affidavits which Sishen seeks to have struck out
were indentified in Annexures "A".
"T3" and "C"
to its Notice of Motion in the application to strike out. For
convenience those annexures are
attached to this judgment as
Annexures ""A". "B" and "C". This
will facilitate the identification
of the portions of the affidavits
to which Sishen objects.
[81 In
presenting its case for the striking out of certain portions of
certain affidavits filed and served on behalf of the state
respondents and ICT. Sishen divided the portions of affidavits to
which it was objecting into three categories. The first category
related to those portions of the affidavits in respect of which the
reasons for its objection were that they were irrelevant to
the
review application or were vexatious. The portions of the
respondents' affidavits which fall under this category appear in
Anncxure "A".
[9] The second
category of portions of the respondents' affidavits are those in
respect of which Sishen's reason for objection is
that they are
wholly irrelevant and were included in the affidavits solely to
embarrass Sishen. This category consists of two affidavits
deposed to
by Mr Armando Costa and certain averments contained in Mr Sehunelo's
affidavit. Sishen says that Mr Costa's affidavits
and "the
associated allegations" contained in ICT's answering affidavit
constitute particularly egregious examples of
attempts by ICT to
introduce evidence which is wholly irrelevant and aimed at simply
embarrassing it. The portions of the affidavits
which fall under this
category are identified in Annexure "B".
[10] The third
category are portions of the state respondents' affidavits and ICT's
affidavits which were required to have been
confirmed by way of
confirmatory affidavits, but were not confirmed at the time that the
state respondents' and ICT's answering
affidavits were delivered and
served. For that reason, contends Sishen. such portions constitute
hearsay evidence and are therefore,
inadmissible. The portions of the
affidavits which fall under this category are identified in Annexure
"C".
The
principles applicable to a Rule 6(15) application.
[ 11] Before I
can deal with the merits of the application to strike out. it is
important to
have regard to
the principles which govern the granting or refusal of such
applications.
Sishen's
application has been brought in terms of Rule 6(15) of the Uniform
Rules of
Court. Rule
6(15) reads as follows;
"'The court may on
application order to be struck out from any affidavit any matter
which is scandalous, vexatious or irrelevant,
with an appropriate
order as to costs, including costs as between attorney and client.
The court shall not grant the application
unless it is satisfied that
the applicant will be prejudiced in his case if it be not granted."
The provision of
Rule 6(15) seems to me to prescribe two requirements that must be met
before a court may make an order striking
out a matter from an
affidavit. The first requirement is in the first sentence of the
subrule. It is that the matter sought to
be struck out of an
affidavit must be either scandalous or vexatious or irrelevant. The
second is to be found in the second sentence
of the subrule in the
form of a proviso. It has the same effect as a proviso to the first
requirement. It is that, if the court
finds that the matter
complained of is scandalous or vexatious or irrelevant, the court
must be satisfied that the presence of
the scandalous or vexatious or
irrelevant matter in the affidavit will prejudice the applicant in
its case if an order striking
it out is not made.
[12] It follows
from the above that, according to Rule 6(15). for an applicant in an
application to strike out brought in terms
of Rule 6 (15) to succeed,
it is not enough to show that the matter to which it objects in the
opponent's affidavit is scandalous
or vexatious or irrelevant but
such applicant must, in addition, also show that it will be
prejudiced
in its case
if the court does not grant an order
striking out such matter. Accordingly, these two requirements must
both be shown to be present
before the Court may grant an order
striking out a matter. Where the applicant has met only one of the
two requirements in respect
of a particular matter that it seeks to
have struck out, the application must fail. Therefore, if a matter in
an affidavit is shown
to be scandalous or vexatious or irrelevant
only and it is not shown that its continued presence in the affidavit
will also prejudice
the applicant in its case, the application to
strike that matter out must fail.
[13] It seems to
me that the intention of the second part of the subrulc was to avoid
the bringing of applications to strike out
scandalous or vexatious or
irrelevant matters in affidavits simply because they were scandalous
or vexatious or irrelevant. The
intention of the drafters of the
subrule was that not every scandalous, vexatious or irrelevant matter
in an opponent's affidavit
requires to be struck out but that only
those scandalous, vexatious or irrelevant matters in affidavits whose
continued presence
in the affidavits would prejudice the party
concerned in its case would fall within the ambit of the subrule. I
now turn to a consideration
of the merits of the application to
strike out.
The portions
of Mr Nogxina's affidavit identified in Annexure "A"
[14] The
portions of affidavits that fall under the first category are those
that are identified in Annexure ""A".
They are to be
found in Mr Nogxina's affidavits as well as in Mr Sehunelo's
affidavit. The part of Mr Nogxina's affidavit that
falls under this
category of the portions of affidavits to which Sishen objects is one
where, according to Sishen. Mr Nogxina "ventures
a lengthy and
inaccurate description of the history of ISCOR. the genesis, objects
and interpretation of the supply agreement between
SIOC and AMSA. his
views of the relationship between AMSA and SIOC and the circumstances
under which AMSA ceased to hold a 21.4%
old order mining right, the
Government's
economic objective and the role of cheap iron ore and steel in the
fulfillment of those objectives." Sishen contends
that "(t)hese
allegations are entirely irrelevant to the determination of the
issues before this Court."
[15] Although
some of these statements made by Mr Nogxina by way of the background
history are. indeed, irrelevant, other statements
in that history
provide a useful background. With regard to those parts that are
irrelevant, it has not been shown that Sishen
is prejudiced or will
be prejudiced in its case by the continued presence of those parts in
Mr Nogxina's affidavit if an order
is not made striking them out. In
its founding affidavit in support of the application to strike out.
Sishen did not. in regard
to these parts of Mr Nogxina's affidavit,
deal with how they will prejudice it in its case if they are not
struck out. In the circumstances
the second requirement of Rule 6(15)
has not been met and this Court is precluded by the second part of
the subrule from granting
an order striking those parts of Mr
Nogxina's affidavit out.
[16] Sishen also
complains under this category that both Mr Nogxina. in his affidavit,
and Mr Sehunelo. in his affidavit as well,
make a substantial number
of averments concerning the circumstances under which Sishen had
lodged its application for a mining
right. Sishen refers to that part
of Mr Nogxina's affidavit where Mr Nogxina stated that the manner in
which Sishen's application
for a mining right was lodged was
"irregular, grossly improper and, in fact, amounts to fraud"
and "(i)n the result
the applicant's application was not validly
lodged and is. therefore disqualified from consideration by the
DMR.'" Sishen
states that extensive evidence is canvassed to
found these averments. Sishen says that Mr Roccha and Mr Sehunelo
made similar statements
in their affidavits, namely, statements
dealing with the circumstances under which Sishen's application for a
mining right was
lodged. Sishen says that those statements and
evidence surrounding the manner in which its mining right application
was lodged
are irrelevant.
[17] In its
founding affidavit in the review application Sishen dealt at some
length with the circumstances surrounding the manner
in which it
lodged its application for the mining right relating to the 21.4%
share of the rights in iron ore in the Table 1 properties.
On its own
version the manner in which Sishen lodged its application for the
mining right cannot be said to have been usual or
common. In effect
Sishen is saying that, in answering its case as set out in the
founding affidavit in the review application,
the respondents should
not have responded to these parts of its founding affidavits in which
it dealt with the circumstances under
which it had lodged its
application for the mining right. The basis upon which Sishen
advances this contention is that its application
for the mining right
had already been refused and it i.e. Sishen was no longer pursuing
its application for a mandamus or for an
order that it be granted the
mining right.
[18] Sishen has
failed to make out a case for a striking out order with regard to the
portions of the respondents affidavits that
deal with the
circumstances surrounding how its application for a mining right was
lodged. First, once Sishen had introduced into
the founding affidavit
of the review application the circumstances under which it had lodged
its application for the mining right,
the respondents were entitled
to deal with those circumstances in their answering affidavits. In
this regard 1 point out that Sishen
does not in its founding
affidavit in support of the application to strike out state whether
or not ICT was notified that such
application had heen refused, once
Sishen's application had been refused. Nor does Sishen state whether
it informed the state respondents
before they completed the
preparation of their answering affidavits that it was no longer going
to pursue the application for a
mandamus because, as long as they
were not informed of this, the state respondents were entitled to
deal with those parts of the
founding affidavit. In fact even if they
were informed, they were entitled to respond to those averments
particularly because some
of them implied that some of the officials
of the Department of Mineral Resources may have been party to
irregular arrangements
with Sishen. Sishen accused officials of the
Department of Mineral Resources of improper conduct. In such a case
the state respondents
were also entitled to point out conduct on
Sishen's part which they believed or contended was improper.
[19] Sishen
deals in paragraphs 32 to 38 of its review founding affidavit with
the circumstances under which it had lodged its application
for the
minins risht. It savs that the last day for AMSA to lodge its old
order mining right for conversion in terms of item 7
of Schedule II
to the Mineral and Petroleum Resource Development Act, 2002 (""the
MPRDA") was Thursday, the 30
th
April 2009. It also
states that the l" May 2009. which it says was a Friday, was a
public holiday, and consequently the offices
of the Department of
Mineral Resources would be closed on that day. Therefore, says Sishen
it
would not be
possible for the Department of Mineral Resources to receive its
application for the mining right on the 1
st
May 2009. The
first business day after the expiry of the five year period on the
30
lh
April 2009 was going to be Monday the 4
Ih
May 2009. It is clear that Sishen wanted to make sure by all means
that its application was the first one to be received, after
the
expiry of the five year period, in respect of iron ore and aggregate
in the Table 1 properties.
[20] Et its
founding affidavit in the review application Sishen inter alia says
in par 33:
"I May 2009
was the first day after the cessation of existence of AMSA's old
order mining right in respect of the 21.4% undivided
share and was a
public holiday and the offices of the DMR (Department of Mineral
Resources) were therefore closed on that day.
Because 1 May 2009 was
the first date on which such application could be made but the
offices of the DMR would be closed on that
day, SIOC delivered its
application to the DMR on Thursday 30 April 2009. SIOC's
representative Mr Godfrey Mferoane had arranged
with Chief Director
Mr Michael Oberholzer for the DMR in Kimberley, to
physically
receive
delivery of the application
that day but to date stamp
it 1 May 2009 in order for it
to be officially lodged for
purposes of S22
as if
on
1 May 2009
. This was done on
the understanding that the lodgement would only take effect on the
first business day following the expiry of
the old order mining
right.
While SIOC
paid over the prescribed fee for lodgement
on 30* April 2009. the DMR only receipted the fee for the application
on Monday 4 May
2009. which was the first business day following the
cessation of existence of the old order mining right on 30 April
2009. The
delivery of the application to the Kimberly offices of the
DMR is evidenced by the "Received" rubber stamp dated 1 May
2009 on the covering letter to the application which is annexure F12
hereto."'
[211 It'
s
c
'
ear
fr°
m
tn
e above
excerpt from Sishen's own affidavit that, although the I
s
'
May 2009 was the first day on which the 21.4% share in the right to
iron ore in the Table 1 properties became available for the
public to
apply to be granted such share. Sishen actually delivered its
application to the Department of Mineral Resources on the
30* April
2009 and that the Department of Mineral Resources actually received
Sishen's application on the 30
th
April 2009 - before the
share could be available. Sishen asked an official of the Department
of Mineral Resources to represent
that the application was received
on Friday the l
sl
May 2009. This was. quite clearly, a
misrepresentation of the truth. Sishen was not entitled to have its
application given a date
stamp which suggested that it was received
by the Department of Mineral Resources on the I
s
' May
2009. It would have been different if Sishen had asked an official of
the Department of Mineral Resources to come to work
on Friday the P
l
May 2009 and receive the application on that day and then ask the
official to give the application the date stamp reflecting that
it
was received on the 1. May 2009. Sishen made itself guilty of asking
an official of the Department of Mineral Resources to misrepresent
the date on which its application for a mining right was received.
[22] In par 34
of its founding affidavit in its review application Sishen says:
"SIOC also
submitted a copy of its mining right application lo the Pretoria
office of the DMR. Similarly. SIOC delivered the
application on the
Pretoria office on 30 April 2009 and
bv arrangement
it was
also dale-stamped as having been received by the Office of the DDG on
1 May 2009."
The remarks 1
have made about Sishen's conduct in being part} to an act of
misrepresentation of the date of receipt by the Department
of Mineral
Resources of its application for the mining right above apply with
equal force to Sishen's conduct as captured in this
excerpt. The
seriousness of Sishen"s conduct in this regard may be
exacerbated by the fact that it is possible that an application
for a
mining right that is delivered to or received by the Department of
Mineral Resources before the mining right becomes available
to be
allocated by the Minister becomes disqualified. This is what may have
motivated Sishen to initiate the misrepresentation
of the date when
its application was received by the Department of Mineral Resources.
It is within the above context that the portions
of Mr Nogxina's
affidavit. Mr Rocha's affidavit and Mr Sehunelo's affidavit to which
Sishen objects under this category must be
seen.
[23] In his
affidavit Mr Nogxina dealt at some length with the circumstances
under which and the manner in which Sishen lodged or
submitted its
application for the mining right. Mr Nogxina made among others the
following points in connection with the manner
in which Sishen
submitted or lodged its application:
- he said that
on no possible construction of the facts could the application be
said to have been submitted on 1 May 2009 and yet.
so he implied.
Sishen persuaded an employee of the Department to date-stamp it as if
it was received or submitted to the Department
on that day.
- Sishen knew
that in terms of sec 9(1 )(a) read with see 9(2) of the MPRDA. if
Sishen's application was lodged on the first business
day on which it
could have been validly lodged, namely on the 4
lh
May 2009
and there was another similar application for a prospecting right for
the same mineral in the same land, lodged on the
same day. the two
applications would be dealt with on the footing that they had been
received at the same time and. if the other
applicant was a
historically disadvantaged person, the Minister would be entitled in
terms of the MPRDA to give preference to the
latter application. - on
the website of Anglo American, titled: "Kumba Iron Ore"
""History" the following
appeared:
"Acting on
the advice from the DMR, SIOC delivered its application on 30 April,
on the agreement that the application would
be accepted on the first
working day thereafter.
On 4 May 2009
SIOC"s application was processed as accepted by the DMR.
I May 2009. SIOC
applied for the lapsed mining rights and on 4 May 2009 SIOC's
application was accepted."
[24] Mr Nogxina
drew attention to the fact that on its website Sishen or Kumba made
the representation to the pubic that it was
the Department of Mineral
Resources which advised it to make the misrepresentation - something
that was at odds even with Sishen's
own version on affidavit. Mr
Nogxina also drew attention to the fact that in the first sentence on
the website Sishen or Kumba
said that there was an agreement,
obviously between Sishen and the Department of Mineral Resources,
that its application would
be accepted on the first working day after
30 April 2009 and yet in par 33 of its founding affidavit in its
review application
Sishen said that the ""arrangement with
Oberholzer" was "to physically receive delivery of the
application
on (30
lh
April 2009) in order for it to be
officially lodged for purposes of s22
as if on 1 May 2009
"
(my underlining).
[25] Mr Nogxina
pointed out in par 36.7.4 of his affidavit that the above words
"neatly encapsulates the misrepresentation
inherent in the
manner in which (Sishen's) application was lodged and. at the same
time, explain part of the reason why it was
irregular. The remaining
part of the reason for this arises from the applicant's conduct in
persuading the Department's officials
to permit this irregularity."
Mr Nogxina also made the point that this kind of conduct is
unbecoming of a company the size
and stature of Sishen. He says in
par 36.8 that the manner in which Sishen lodged its application ""for
the mining right
was irregular, grossly improper and. in fact,
amounts to fraud".
[26] In the
light of all the above I am satisfied that Mr Nogxina's response to
how Sishen had said it had gone about lodging its
application for the
mining right falls within bounds of legitimacy and he was entitled to
respond in the manner in which he did.
Sishen introduced into the
affidavits the subject of how it submitted its application. It cannot
be heard to complain when its
opponents use this to their advantage
and to Sishen's detriment. Mr Sehunelo was also entitled to make the
statements complained
of in Annexure ""A" because in
Sishen's founding affidavit Sishen accused 1CT of having lodged its
application improperly
as well. ICT was entitled to draw attention in
its answering affidavit to Sishen's own conduct which ICT contended
was unacceptable
in regard to how it had lodged or submitted its
application for the mineral right.
[27] In the
result Sishen's application for an order striking out the portions of
Mr Nogxina's affidavit. Mr Roccha's affidavit
and Mr Sehunelo's
affidavit as identified in Annexure "A" falls to be
dismissed. This does not cover that portion of
Mr Nogxina's affidavit
which is dealt with in the next three paragraphs.
[28] In par 21
of its founding affidavit in the application to strike out. Sishen
objects to a certain statement in Mr Nogxina's
affidavit on the basis
that it constitutes hearsay evidence because it clearly falls outside
Mr Nogxina's personal knowledge and
it is not confirmed by way of a
confirmatory affidavit. The statement reads:
"In the
case of the ICT. it would have been informed that it cannot be given
rights in respect of the farms Simondium and Constantia
and the
likelihood is overwhelming that, what that was communicated to ICT
that it either expressly or tacitly limited its application
accordingly."
Sishen said in
par 21 of its founding affidavit that this statement is unsupported
by any affidavit and is. therefore, hearsay,
vexatious and
prejudicial to Sishen. It is true that Mr Nogxina had no knowledge of
what happened in this regard. Accordingly,
without a confirmatory
affidavit, this statement is hearsay and. therefore, irrelevant.
However. I do not see how this statement
would prejudice Sishen in
its case nor has Sishen substantiated its statement in par 21 that
this statement is prejudicial to itself.
In the circumstances Sishen
has failed to satisfy the second requirement in Rule 6(15). Its
application to have the statement struck
out falls to be dismissed.
The portions
of respondents' affidavits identified in Annexure "B"
[29] The
portions of affidavits identified by Sishen in annexure "B"
as matters that are irrelevant and vexatious comprise
the two
affidavits of Mr Costa and the averments made in Mr Sehunelo's
affidavit which are associated with the contents of Mr Costa's
affidavits. The case which Sishen seeks to make out in its
application is that Mr Costa's affidavits contain averments to the
effect that, in conducting its mining operations in the Sishen Mine.
Sishen has contravened provisions of the Mineral and Petroleum
Resources Development Act. 2002. ("the MPRDA"). and other
Acts, namely, the National Water Act. 1998 ("the NWA")
and
the National F.nviromental Management Act. 1998 ("the NHMA").
[30] Sishen
accepts that through these averments in Mr Costa's affidavits ICT
seeks to show that Sishen is in contravention of the
MPRDA and that,
by reason of the provision of sec 23( 1) and (3) of the MPRDA. Sishen
is disqualified from being granted the mining
right for which it had
applied to the Minister relating to the 21.4% share in the right to
iron ore in the Table 1 properties.
[31] Insofar as
they are relevant, the provisions of sec 23(1) of the MPRDA read as
follows:
) Subject to subsection
(4). the Minister must grant a mining right if-(a) ...(c)
(d) the mining will not
result in unacceptable pollution, ecological degradation
or damage
to the environment.
(e) ...
(f) ...
(g)
the applicant is not
in contravention of any provision of this Act
; and
(h) ..."
(my
underlining).
Subsection (4)
requires the Minister, if he refuses to grant a mining right, to
notify an applicant in writing within 30 days, and
to give reasons
for such refusal. Sec 23(3) reads thus:
"(3) The Minister must
refuse to grant a mining right if the application does not meet all
the requirements referred to in
subsection (1)."
Those
requirements include the requirement that the applicant be not in
contravention of any provision of the MPRDA.
[32] When Sishen
launched its review application, it sought, among others, an order
compelling the Minister or her delegate to take
a decision whether to
grant or refuse its application for a mining right relating to the
21.4% share in the right to iron ore in
the Table 1 properties. As at
that time Sishen's application for the mining right had been pending
before the Minister for a long
time without the Minister or her
delegate making a decision on its application. That is why Sishen
brought in effect an application
for a inter alia a mandamus. After
Sishen had launched its application, the Director General. Mr Sandile
Nogxina. took a decision
on the application. He refused to grant
Sishen the mining right. Sishen took the view that its application
for a mandamus in respect
of its application for a mining right fell
away and it would no longer seek a mandamus.
[33] It is
against the above background that Sishen contends that any averments
made or evidence given in Mr Costa's affidavits
that it is in
contravention of sec 23(1) and (3) of the MPRDA is irrelevant because
in the review application the mandamus was
no longer being pursued.
Sishen also said that in the review application it was no longer
seeking an order that it be granted the
mining right relating to the
21.4% share in the right to iron ore in the fable 1 properties.
Accordingly, contended Sishen. sec
23 (1) and (3) were irrelevant and
so were averments that it had contravened some or other provisions of
the MPRDA.
[341 Although
Sishen may have decided not to pursue an order compelling the
Minister or the Director-General to make a decision
on its
application for a mining right, it did not abandon its application
for a declaratory order that it was the only competent
person to
apply for. or. to be granted, the mining right relating to the 21.4%
share in the right to iron ore in the fable 1 properties.
In fact it
pursued that order up to the end of its review application. In my
view the fact that Sishen did not abandon or withdraw
the prayer for
that order in its review application renders the averments that it is
in contravention of the MPRDA relevant to
the review application. In
this regard one has to ask the question: what would be the effect of
the Court granting Sishen such
a declaratory order? Quite clearly,
the effect of an order declaring that Sishen is the only competent
person to apply for or to
be granted the mining right would, for all
intents and purposes, be
almost
to grant Sishen such a mining
right. The whole purpose for Sishen including such a prayer among the
orders that it sought in the
review application was to secure the
mining right for itself and exclude all competitors including ICT.
ICT sought to oppose Sishen's
attempts to
exclude it from the competition.
[35] It seems to
me that the provisions of sec 23(3) were relevant because, quite
clearly, the provisions of sec 23(3), read with
sec 23(1 )(g).
disqualify a person who is in contravention of the MPRDA from
benefiting under the MPRDA by way of being granted
a mining right. If
you contravene the MPRDA. you may not be granted a mining right or in
fact any right or permit or license under
the MPRDA. Accordingly, in
seeking to acquire the mining right for itself or to defend itself
against Sishen's attempt to exclude
it from the competition for the
mining right. ICT was entitled to rely on Sishen's (alleged)
contravention of provisions of the
MPRDA. If ICT does prove that
Sishen is in contravention of provisions of the MPRDA. this would
mean that Sishen is disqualified
by reason of the provisions of sec
23(1 )(g) read with sec 23(3) from being granted the mining right.
Accordingly, this would result
in Sishen's application for a
declaratory order that it is the only competent party to be granted
the mining right being dismissed.
This, therefore, shows that the
averments in Mr Costa's affidavits to the effect that Sishen is in
breach of the MPRDA are highly
relevant to the declaratory order
which Sishen sought in its review application.
[36] Sishen also
contended that the Department of Mineral Resources had not instituted
any inquiry concerning, or made findings
relating to. contraventions
of the MPRDA on its part which would have afforded it an opportunity
to respond to such allegations
and that, in the absence of such prior
findings, it could not be said to be disqualified from being granted
the mining right. Sishen
is in effect saying such a finding must be
made only by the Department of Mineral Resources.
[37] There is no
merit in this contention. If Sishen chooses to come to Court and asks
the Court for an order declaring that it
is the only party competent
to be granted the mining right relating to the 21.4% share in the
right to iron ore in the Table 1
properties, any party that has a
legal and substantial interest in the matter is entitled to invoke
the provisions of sec 23(3)
of the MPRDA and say that Sishen is not
competent to be granted the mining right because it is in
contravention of the MPRDA and
its application for the mining right
does not or will not meet the requirement of sec 23(1 )(g) of the
MPRDA and the Minister or
her delegate will be precluded by the
provision of sec 23(3) from granting it the mining right. That is
what ICT has done by putting
up affidavits in which the deponent
avers that Sishen is in contravention of some or other provision of
the MPRDA.
[38] In the
light of the above Sishen has failed to show that the portions of
affidavits identified in Annexure "B" to
its Notice of
Motion are irrelevant and fall to be struck out. According!}', its
application for an order striking those portions
of affidavits out
falls to be dismissed. Sishen's contention that the contents of Mr
Costa's affidavits and averments in Mr Sehunelo's
affidavit relating
to the contents of Mr Costa's affidavits are vexatious are. in the
light of the conclusion reached above, also
not vexatious.
Portions of
affidavits of the respondents which were not confirmed by
confirmatory affidavits: Annexure "C" to the Notice
of
Motion
[39] When the
state respondents and ICT delivered and served their respective
answering affidavits to Sishen's review application,
certain
confirmatory affidavits to which reference was made in the answering
affidavits and which were supposed to confirm the
contents of certain
portions of the answering affidavits were not delivered and served.
In other words the confirmatory affidavits
did not accompany the
answering affidavits portions of which they were supposed to confirm.
The deponents to the answering affidavits
did not have personal
knowledge of those portions of their affidavits. Such portions were
at that time hearsay evidence and. therefore,
inadmissible. However,
later, the confirmatory affidavits were delivered and served. They
confirmed the portions of the answering
affidavits. Both the state
respondents and ICT made applications for the condonation of their
failure to deliver and serve the
confirmatory affidavits on time. In
my judgment in the main application I granted the necessary
condonation for such failure. Such
portions of the answering
affidavits as had not initially been confirmed by way of confirmatory
affidavits which required such
confirmation ceased to be hearsay
evidence once the confirmatory affidavits were delivered and served.
In those circumstances Sishen's
contention that they should be struck
out because they constitute hearsay falls to be rejected.
Accordingly. Sishen's application
for an order striking out those
portions of affidavits of the state respondents and ICT identified in
Annexure
:
"C" to the Notice of Motion falls to
be dismissed.
[40] With regard
to costs, it seems to me that Sishen should pay the costs of this
application. In the circumstances the application
to strike out
certain portions of the affidavits file on behalf of the respondents
is dismissed with costs.
[40] With regard
to costs, it Jeems to me that Sishen should pay the costs of this
application. In the circumstances the application
to strike out
certain portions of the affidavits file on behalf of the respondents
is dismissed with costs.
ZONDO. J
DATE OF JUDGMENT
: 3 FEBRUARY 2012
FOR THE FIRST APPLICANT
:
ADVC. LOXTON SC
ADV M. ANTROBUS SC
ADV K. HOFMEYER SC
FOR THE 1ST ,2ND, 3RD, 4TH, AND 6TH
RESPONDENTS:
ADV W. VERMEULEN SC
ADV T. KHATRI
FOR THE 5
th
RESPONDENT:
ADV C.E. PUCKRIN SC
ADV C.N. VAN HEERDEN
ADV E. WESSELS