Brief Summary

Interdict — Urgent interdict — Ownership dispute over crusher-waste — Transnet SOC Limited sought an urgent interdict against Husselmann and others to prevent the removal of crusher-waste from its property pending further legal proceedings — Husselmann claimed ownership based on historical agreements regarding the quarry and crusher-waste — Legal issue concerned the rights of Transnet versus Husselmann's claim of ownership — Court held that Transnet had not established a prima facie right to the crusher-waste, thus the interdict was refused.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an urgent application in the Northern Cape High Court, Kimberley, in which Transnet SOC Limited, trading as Transnet Freight Rail (the applicant), sought an interim interdict pending the institution and determination of an action to resolve a dispute about ownership and removal of a stockpile of crusher-waste/crusher-dust.

The respondents were Mr Arnold Husselmann (first respondent), Martin & East (Pty) Ltd (second respondent), and Van Zyl Blasting – Earthworks CC (third respondent). The dispute arose because the first respondent asserted that the crusher-waste was his property (as successor to his father), and he (through contractors including the other respondents) was removing and selling the material, whereas Transnet asserted rights flowing from its ownership of the land where the stockpile was situated and sought to prevent further depletion.

The matter came before the court as an interim measure. Transnet sought relief pending action proceedings to be instituted within 30 days of the order. The application was argued on 28 August 2012 and judgment was delivered on 21 September 2012.

The general subject-matter concerned the right to remove and dissipate movable material (crusher-waste) located on Transnet’s immovable property, with associated questions about the authenticity and reliability of documents relied upon to establish ownership, the relevance of statutory regulation under mineral resources legislation, and whether the requirements for interim interdictory relief were satisfied.

2. Material Facts

Transnet was the registered owner of Portion 3 (a portion of portion 1) of the farm RietFonteins 165 (Deed of Title No T7570/93) and Portion 4 (a portion of portion 1) of the farm RietFonteins 165 (Deed of Title 907/93), both situated in the Kenhardt administrative district. The crusher-waste stockpile that formed the subject of the dispute was located on these Transnet-owned properties, adjacent to a quarry previously worked by Transnet’s predecessor in title, Iscor Steelworks Corporation.

The first respondent resided on the adjoining farm RietFonteins 185. He claimed that, historically, Iscor had been permitted by his father to quarry stone for the construction of the Sishen–Saldanha railway line, and that while compensation was paid for ballast stone, the crusher-waste (a by-product) remained the property of his father and later vested in him. He also asserted that when Spoornet later acquired/expropriated the quarry area for future maintenance needs, it was specifically agreed that the crusher-waste would remain his family’s property and could be removed and sold by them.

The immediate conflict was triggered by events in October 2007. A neighbouring landowner complained to Transnet (through an employee, Mr Marshall) that a contractor (associated with the third respondent) transporting crusher-waste for the first respondent had trespassed on the neighbour’s farm and damaged a locked gate. After access through the neighbour’s farm was blocked, the contractor accessed the stockpile via the Railway Service Road, which Transnet regarded as creating a safety risk because heavy vehicles crossed a level crossing not designed for such loads.

Transnet’s employee Mr Ivan Luzmore engaged with the parties on 30 October 2007 in an attempt to mediate the access dispute. Over time, correspondence reflected that the first respondent sought, at various points, authorisation relating to access and removal logistics. In March 2008 the first respondent requested written permission to traverse Transnet’s land to remove the stockpile, and Transnet (through an endorsement by Mr Jacobs) communicated that he had a limited period (until end of July 2008) to remove the waste, and that permits could be issued for vehicles.

In June 2012 the first respondent again sought a formal letter confirming that the crusher-waste was his property and that he was entitled to remove it. This request prompted Transnet to investigate ownership more closely. Transnet asked him to stop removal pending legal assessment, but he did not do so.

A central factual feature concerned a two-page letter dated 27 September 1974 purportedly from Iscor (Chief Project Manager, Sishen–Saldanha Project, G J Botha) addressed to the first respondent’s father. The first respondent relied on this document to support his claim that Iscor would not compensate for crusher dust but that he was free to use and sell it for his own account. Transnet obtained a forensic examiner’s report (Mr Cecil Greenfield), which raised concerns that page 2 of the document differed in typeface/font, margins, and spacing from page 1, suggesting that page 2 may not be the genuine second page of the letter.

The court itself compared the disputed document with another letter of the same date addressed to a different person (JM Storm), and noted marked inconsistencies between the challenged page and other uncontested pages, including stylistic differences and internal discrepancies. The court treated these discrepancies as material to assessing the prima facie merits of the ownership claim advanced by the first respondent.

The court also had regard to a 1981 letter from the South African Railways’ Chief Director (with ministerial concurrence) authorising grazing use for a period, which did not mention crusher-waste ownership. This absence was treated as relevant in context.

On the evidence before it, the court accepted that Transnet had shown that continued removal would deplete a substantial stockpile of significant estimated value, and that there was a real risk of harm if removal continued pending trial.

3. Legal Issues

The central legal questions were whether Transnet had met the requirements for an interim interdict restraining the respondents from removing and dissipating the crusher-waste pending action proceedings to determine ownership.

That enquiry required the court to assess, on motion papers and at a provisional level, whether Transnet had established a prima facie right (though open to some doubt), whether there was a well-grounded apprehension of irreparable harm if the interdict were refused, and whether there was an absence of an adequate alternative remedy, together with an overall assessment of discretion and balance of convenience.

In addition, the dispute engaged questions involving the application of law to fact, including (i) how the court should approach contested claims to ownership of the stockpile where the stockpile lay on Transnet’s land, (ii) what weight should be attached to documentary material relied on to establish an historical agreement, and (iii) whether statutory provisions under the Minerals and Petroleum Resources Development Act 28 of 2002 concerning removal of minerals were implicated on the respondents’ version.

A further issue raised in argument was whether the first respondent could rely on acquisitive prescription under section 1 of the Prescription Act 68 of 1969 to claim ownership, which similarly required applying legal requirements (including possession) to the factual position reflected in the affidavits.

4. Court’s Reasoning

The court approached the matter through the established framework for interim interdicts. Relying on the principles articulated in Erikson Motors (Welkom) Ltd v Protea Motors, Warrenton and Another 1973 (3) SA 685 (A), which in turn draws on Setlogelo v Setlogelo 1914 AD 221, the court emphasised that interim interdictory relief is discretionary, and that where the right is not clear the applicant must show a prima facie right open to some doubt, irreparable harm, no adequate alternative remedy, and that the balance of convenience favours the grant.

On the contested question of ownership, the court considered it significant that Transnet was the registered owner of the land on which the stockpile was located. The court treated this as supporting a presumption in favour of Transnet’s entitlement, and held that a party asserting ownership contrary to that position bore the burden to establish it. The court did not accept the submission that Transnet had to produce separate documentary proof of ownership of the stockpile beyond its title to the land and the contextual probabilities.

A major component of the court’s reasoning concerned the reliability of the first respondent’s documentary support, especially the purported Iscor letter (annexure FA8). The court considered the forensic report (which identified differences in typeface, margins, and spacing between the two pages) and independently observed that the contrast between pages 1 and 2 was apparent even to an untrained eye. The court then compared the disputed document to a similar letter of the same date addressed to another recipient (annexure FA9), noting that the first pages were identical, but that the second page of FA9 maintained consistency whereas FA8 did not. The court further identified textual and stylistic features (including inconsistent use of the term “Korporasie” and the presence/absence of particular paragraphs) as unexplained discrepancies.

On this basis, the court concluded that there was a high probability and a prima facie case that the second page of annexure FA8 had been tampered with, and that the first respondent had produced a fraudulent document to bolster his claim. The court treated this as seriously undermining the respondents’ version on ownership at the interim stage. The court further regarded the first respondent’s response to the tampering concern as perfunctory and not engaging with the kernel issue.

The court also dealt with the statutory argument concerning the Minerals and Petroleum Resources Development Act 28 of 2002. It accepted that “crusher-waste” fell within the statutory definition of “mineral”, which expressly includes sand, stone, rock, gravel, and minerals occurring in residue stockpiles or deposits. It referred to section 5(4) which prohibits removal or mining activities without the requisite permission and without notifying and consulting the landowner or lawful occupier. The respondents’ reliance on De Beers Consolidated Mines Ltd v Atarqua Mining (Pty) Ltd and Others (3215/06) [2007] ZADSHC 74 (13 December 2007) was rejected as inapposite on the facts, including because that case involved a holder of mineral rights under a notarial cession and a prospecting right issued by the authorities, whereas in the present matter the first respondent had no permit issued by the relevant authorities.

The first respondent’s further argument that he had become owner by acquisitive prescription under section 1 of the Prescription Act 68 of 1969 was not accepted at this stage. The court held that the first respondent was free to raise prescription at trial, but found that he could not show the required physical possession of the stockpile for the necessary period, particularly where the stockpile was on Transnet’s land. The court relied on authority dealing with the possession requirement in prescription, including Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W) and Morgenster 1711 (Pty) Ltd v De Kock NO 2006 (4) SA 592 (SCA).

Having assessed the affidavits as a whole, the court concluded that Transnet would suffer irreparable harm if the stockpile continued to be removed and dissipated before ownership could be adjudicated in action proceedings. The court noted that Transnet had proposed what it considered a reasonable interim arrangement (cessation of removal pending action, alternatively the deposit of an amount reflecting the estimated value into trust), which the first respondent rejected. This informed the court’s assessment that ordinary remedies would not provide adequate protection in the circumstances and that the balance of convenience favoured interim restraint.

Ultimately, the court held that the requirements for an interim interdict were satisfied and exercised its discretion to grant the relief sought.

5. Outcome and Relief

The court granted an order interdicting and restraining the first, second, and third respondents, and any contractor operating through the first respondent, from removing and dissipating the crusher-waste/crusher-dust stockpile from Transnet’s property (Portion 3 and Portion 4 of the farm RietFonteins 165, under the specified title deeds) pending the determination of action proceedings.

The order was expressly made pending action proceedings to be instituted within 30 days from the date of the order.

Costs were ordered to be costs in the action (i.e., costs of the application to stand over for determination in the forthcoming action proceedings).

Cases Cited

De Beers Consolidated Mines Ltd v Atarqua Mining (Pty) Ltd and Others (3215/06) [2007] ZADSHC 74 (13 December 2007)

Erikson Motors (Welkom) Ltd v Protea Motors, Warrenton and Another 1973 (3) SA 685 (A)

Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another 1972 (2) SA 464 (W)

Morgenster 1711 (Pty) Ltd v De Kock NO 2006 (4) SA 592 (SCA)

Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D)

Setlogelo v Setlogelo 1914 AD 221

Legislation Cited

Minerals and Petroleum Resources Development Act 28 of 2002

Prescription Act 68 of 1969

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that Transnet had established the requisites for an interim interdict pending action proceedings to determine ownership of the crusher-waste stockpile situated on Transnet’s land. The court found, on the papers, that there was a strong prima facie basis to doubt the respondents’ ownership claim, particularly because a key document relied upon by the first respondent to prove entitlement appeared, on a prima facie assessment, to have been tampered with.

The court further held that continued removal of the stockpile created a well-grounded apprehension of irreparable harm to Transnet, that adequate protection would not be achieved through ordinary remedies in the circumstances, and that the court’s discretion favoured preserving the stockpile pending the determination of action proceedings. It consequently interdicted the respondents from removing and dissipating the material, with costs to be costs in the action.

LEGAL PRINCIPLES

An interim interdict pending action is an extraordinary discretionary remedy. Where the applicant’s right is not clear, the applicant must show a prima facie right (though open to some doubt), a well-grounded apprehension of irreparable harm, the absence of an adequate alternative remedy, and the court must consider the balance of convenience on an overall assessment of the affidavits and probabilities.

In assessing a prima facie right for interim relief, the court may make provisional credibility and probability assessments on the motion papers, including evaluating whether key documents relied upon by a respondent to justify impugned conduct appear, on a prima facie basis, to be unreliable or fraudulent.

Section 5(4) of the Minerals and Petroleum Resources Development Act 28 of 2002 prohibits the removal/mining of minerals without the requisite authorisation and without notifying and consulting the landowner or lawful occupier, and the statutory definition of “mineral” includes substances such as sand, stone, rock, gravel, and minerals occurring in residue stockpiles or deposits.

A claim of ownership by acquisitive prescription under section 1 of the Prescription Act 68 of 1969 requires, among other elements, possession openly and as if owner for the requisite period; the absence of the required form of possession may defeat reliance on acquisitive prescription at the interim stage (without precluding the point being pursued at trial).

Transnet SOC Ltd v Husselman and Others (1302/2012) [2012] ZANCHC 44 (21 September 2012)