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[2011] ZANCHC 40
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Louisvale Irrigation Board v Minister of Minerals and Energy and Others (2090/2010) [2011] ZANCHC 40 (19 December 2011)
Reportable:
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NO
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to Judges:
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to Magistrates: YES /
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape High
Court, Kimberley)
Case
No: 2090/2010
Heard:
25 / 11 / 2011
Delivered:
19 / 12 / 2011
In
the matter between:
LOUISVALE
IRRIGATION BOARD
…................................
1
st
Applicant
KOLSKOOT
BELEGGINGS 116 CC
…...............................
2
nd
Applicant
v
THE
MINISTER OF MINERALS & ENERGY
…................
1
st
Respondent
THE
DIRECTOR GENERAL: DEPARTMENT OF
MINERALS
AND ENERGY
…........................................
2
nd
Respondent
THE
REGIONAL MANAGER, MINERALS
REGULATION,
NORTHERN CAPE REGION
…................
3
rd
Respondent
SIZWE
PLANT HIRE CC
…...........................................
4
th
Respondent
JACOBUS
WOUTER VAN ZYL
…...................................
5
th
Respondent
YOLANDA
OBERHOLSTER
….......................................
6
th
Respondent
Coram: Kgomo JP et
Pakati AJ
JUDGMENT
KGOMO JP
The first applicant,
Louisvale Irrigation Board (LIB), and the second applicant Kolskoot
Belegging 116 CC (Kolskoot CC) seek the
following relief from the
respondents:
That the first
respondent’s (the Minister of Minerals and Energy (the
Minister)) and/or the third respondent’s (the
Regional
Manager, Mineral Regulation: Northern Cape Region (the Regional
Manager’s), decision to grant the mining permits
listed below
to mine sand on a portion of the Farm Jannel se Pan Nr 39,
Administrative District of Kenhardt, measuring 1.5
hectares each:
Mining Permit nr.
045/2009 (reference number (NCS) 30/5/1/3/2/738MP) to Sizwe Plant
Hire CC (4
th
Respondent); and
Mining Permit nr.
044/2009 (reference number (NC’s) 30/5/1/3/2/737MP) to Jacobus
Wouter van Zyl (5
th
Respondent); and
Mining Permit nr. MP
043/2009 (reference number (NCS) 30/5/1/3/2/736MP) to Yolanda
Oberholster (6
th
Respondent):
be reviewed and set
aside and that the aforesaid mining permits granted to the 4
th
(Sizwe Plant Hire CC), the 5
th
(Jacobus Wouter Van Zyl),
and the 6
th
(Yolanda Oberholster) respondents be and are
hereby set aside; and.
An order that the
identified three mining permits are cancelled; and
That the respondents
pay the costs of this application jointly and severally the one
paying the other to be absolved
pro tanto
.
It is common cause
that Louisvale Irrigation Board or LIB, a body duly constituted and
registered in terms of the National Water
Act Nr 36 of 1998, is the
legal or registered owner of the property forming the subject–matter
of this application. Also
common cause is that Kolskoot CC is the
lawful occupant of the property, over which this dispute goes by
virtue of a mining lease
agreement entered into with LIB before the
permits were granted by the department to 4
th
, 5
th
and 6
th
respondents.
The issue that falls
for determination is whether it was a statutory requirement that
Kolskoot Beleggings 116 CC, the second applicant,
as mining rights
permit holder or lessee and therefore the lawful occupier of the
property in question, should have been consulted
and/or was indeed
consulted before the Regional Manager, the 3
rd
respondent, issued permits to 4
th
, 5
th
and 6
th
respondents in terms of the provisions of S27(1) – (6) or
S16(1) – (5)of the
Mineral and Petroleum Resources
Developments Act, Nr 28 of 2002
(the Minerals and Petroleum
Act, 2002).
S27(1)-(6) of the same
Act provides that:
“
27
Application for, issuing and duration of mining permit
(1)
A mining permit may only be issued if-
(a)
the mineral in question can be mined optimally within a period of two
years; and
(b)
the mining area in question does not exceed 1,5 hectares in extent.
(2)
Any person who wishes to apply to the Minister for a mining permit
must lodge the application-
(a)
at the office of the Regional Manager in whose region the land is
situated;
(b)
in the prescribed manner; and
(c)
together with the prescribed non-refundable application fee.
(3)
The Regional Manager must accept an application for a mining permit
if-
(a)
the requirements contemplated in subsection (2) are met;
(b)
no other person holds a prospecting right, mining right, mining
permit or retention permit for the same mineral and land.
(4)
If the application does not comply with the requirements of this
section, the Regional Manager must notify the applicant in
writing of
that fact within 14 days of the receipt of the application and return
the application to the applicant.
(5)
If the Regional Manager accepts the application, the Regional Manager
must, within 14 days from the date of acceptance, notify
the
applicant in writing-
(a)
to submit an environmental management plan; and
(b)
to notify in writing and consult with the land owner and lawful
occupier and any other affected parties and submit the result
of the
said consultation within 30 days from the date of the notice.
(6)
The Minister must issue a mining permit if-
(a)
the requirements contemplated in subsection (1) are satisfied; and
(b)
the applicant has submitted the environmental management plan.”
The provisions of
S16(1)-(5) of this Act are almost identical to S27 (above) and need
not be recited because S27 is more pertinent
to this application.
Whereas S27 deals with applications for mining permits S16 on the
other hand has to do with applications
for prospecting rights.
S27(5)(b) stipulates that an applicant has “
to notify in
writing and consult with the owners
and
lawful occupier and any other affected parties.”
S16(4)(b) requires that notification and consultation be “
with
the land owner
or
lawful occupier and
any other affected party.”
The difference in the use of
“
or”
and “
and”
in these
sections is of no moment. (The emphasis is mine).
The Minister, the
Director General (the DG) and the Regional Director (first, second
and third respondents, respectively) contend
that the letters
Annexures “JAH6”, “JAH7” and “JAH8”,
addressed to LIB (first applicant)
by the fourth, fifth and sixth
respondents, should be construed not only as the requisite notice
and consultation but as adequate
consultation too. It is common
cause that Koolskoot CC, the lawful occupier, was not known (as in
written to, notified, or consulted
with) at all. The collective
response or attitude by the department is essentially that LIB did
not disclose the existence or
occupancy by Kolskoot CC of the
property and that it could not possibly divine the existence of and
interest that Kolskoot CC
had or whether it had any relationship
with LIB.
In order to determine
whether the contents of Annexures “JAH6”, “JAH7”
and “JAH8” measure
up to the requirements of the
relevant provisions of S27 of the Mineral and Petroluem Act, 2002,
quoted above, it is necessary
to quote the contents of one of the
letters. Sizwe Plant Hire CC (fourth respondent) writes on 20
January 2008 to the chairman
(Mr J A Hurselman) of Louisvale
Irrigation Board, as follows:
“
Re:
Comments on proposed mining operation on the Farm Jannel se Pan No.39
Application
has been made by SIZWE PLANTHIRE CC to the Department Minerals and
Energy for a mining permit on a 1.5Ha portion on
the above property
in terms of section 27(2) of the Minerals and Petroleum Resources
Development Act 28, 2002. The target mineral
of the proposed
operations is River Sand and will be conducted over a period of 2
years.
In
accordance with section 16(4) of the Minerals and Petroleum Resources
Development Act 28, 2002 you are required as the landowner
to submit
any written comments you may have on the application to the following
address:
Department
Mineral and Energy
P/Bag
X14
Springbok
8240
As
applications are working according to a time schedule you only have
time until 20 February 2008 to summit your comments. Should
you not
submit any comments at this stage, you will have a further
opportunity to comment on the Environmental Management Plan
when it
is distributed for comment in about 60 days time.
Please
do not hesitate to contact me should you require any additional
information.
Best
regards.”
Annexures “JAH7”
by Mr Van Zyl (5
th
respondent) and “JAH8” by
Ms Oberholster (6
th
respondent) were composed by the same
author and the contents are similar.
The Legislature has in
S27(5)(b) of the Minerals Act employed the conjunctive “and”
to signify that not only “the
land owner” but also the
“lawful occupier” and in addition “any other
affected parties” must be
“notified in writing and
consulted with.” The implication therefore is that written
notification which is not followed
by proper consultation falls
short of meeting the requirements envisaged in section 27(5) (b)
and/or S16(4)(b), as the case may
be.
In
Maqoma v Sebe
NO & Another
1987(1) SA 483 (CK) at 490C-E the Court
made this pronouncement:
“
'(C)onsultation'
in its normal sense, without reference to the context in which it is
used, denotes a deliberate getting together
of more than one person
or party (also indicative of the prefix 'con-') in a situation of
conferring with each other where minds
are applied to weigh and
consider together the pro's and cons of a matter by discussion or
debate.
The
word 'consultation' in itself does not presuppose or suggest a
particular forum, procedure or duration for such discussion or
debate. Nor does it imply that any particular formalities should be
complied with. Nor does it draw any distinction between
communications
conveyed orally or in writing. What it does suggest is
a communication of ideas on a reciprocal basis.
”
An examination of
“JAH6”, “JAH7” and “JAH8” reveal
the following inadequacies even if the
contents of these letters are
to be construed as notification, let alone consultation:
10.1 The notifications
do not contain any particulars of where on the targeted property the
applicants intend to mine for the sand;
10.2 The applicants do
not supply any particulars of the steps intended to be taken to
ensure that the mining activities would not
jeopardize or interfere
with the owner’s (LIB’s) or Kolskoot CC’s mining
activities. It must be borne in mind
that nothing prohibits an owner
of land from mining on his own land;
10.3 The notification
does not specify over which route the applicants intend to access the
proposed mining site. An access road
is akin to a via or a servitude
and can be very invasive of other occupants’ rights.
10.4 The notification
does not contain any invitation by the 4
th
, 5
th
and 6
th
respondents to LIB to enter into negotiations. The
letters only state that if LIB has any query it must not hesitate to
contact
the authors; and
10.5 The permit
applicants could, in addition to the invitation in 10.4, also have
enquired from LIB whether there was any “lawful
occupier and
any other affected parties”, as provided for in S27(5)(b) of
the Minerals and Petroleum Act, 2002, on its(the
owner’s) land.
To insinuate, as the department (1
st
, 2
nd
and
3
rd
respondents) has done, that LIB suppressed the
existence of Koolskoot CC as a mining permit holder (s27(3)(b) of
same Act) is unjustified.
It was incumbent upon the mining permit
applicants to comply with the statutory prescripts and for the
department to see to it
that they have done so before the permits
were approved or issued.
I tend to agree with
Adv Van Niekerk SC, for the applicants, that the six respondents,
whether jointly or severally, had three
opportunities to get the
issue of the notification of Koolskoot CC and the consultation with
both LIB and Koolskoot CC right.
11.1 The first occasion
was when the mining lease agreement was produced before the Regional
Mining Development & Environment
Committee (Remdec) on 12 March
2008 pursuant to the applicants’ objection to the issuing of
the mining permits. See S10(2)
which reads:
“
10(2) If a
person objects to the granting of a prospecting right, mining right
or mining permit, the Regional Manager must refer
the objection to
the Regional Mining Development and Environment Committee to consider
the objections and to advise the Minister
thereon.”
11.2 The second
opportunity presented itself at the stage that S96 of the Minerals
Petroleum Act, 2002, kicked in with the appeal
process to the
Minister of Minerals and Energy (1
st
respondent); and
finally
11.3 When this review
proceedings were launched. At least two glaring shortcomings were
evident. The two groupings of respondents
(the department and the
mining permit applicants) should have stopped the application in its
tracks in light of (a) the failure
to consult Kolskoot CC and (b) the
acceptance of the 4
th
, 5
th
and 6
th
respondents applications by the department in the face of an existing
permit holder (Kolskoot CC).
In the landmark case
of
Bengwenyama Minerals v Genorah Resources
2011(4) SA
113(CC) at 126A-137B (paras 32-33)
Froneman J
, writing for
the anonymous Court, sets out the procedure and object of the Act
and thereafter remarks as follows at para 34:
“
[34]
Another one of the objects of the Act is to give effect to the
environmental rights in the Constitution (
Section
24 of the Constitution states that:
'(1) Everyone has
the right —
(a) to an
environment that is not harmful to their health or well-being;
and
(b) to have the environment
protected, for the benefit of present and future generations, through
reasonable legislative and other measures that —
(i) prevent
pollution and ecological degradation;
(ii) promote
conservation; and
(iii) secure
ecologically sustainable development and use of natural resources
while promoting
justifiable economic and social development.'
)
by ensuring that mineral and petroleum resources are developed in an
orderly and ecologically sustainable manner while promoting
justifiable social and economic development.
”
The following
pronouncement by the learned Judge is particularly apposite to this
matter at 139A-136H (paras 63-68):
“
[63]
These different notice and consultation requirements are indicative
of a serious concern for the rights and interests of landowners
and
lawful occupiers in the process of granting prospecting rights.
It is not difficult to see why: the granting and execution
of a
prospecting right represents a grave and considerable invasion of the
use and enjoyment of the land on which the prospecting
is to happen.
This is so irrespective of whether one regards a landowner's right as
ownership of its surface and what is beneath
it 'in all the fullness
that the common-law allows', or as use only of its surface, if what
lies below does not belong to the landowner,
but somehow resides in
the custody of the State.
[64]
The purpose of the notification and subsequent consultation must thus
be related to the impact that the granting of a prospecting
right
will have on the landowner or lawful occupier---.
[65]
One of the purposes of consultation with the landowner must surely be
to see whether some accommodation is possible between
the applicant
for a prospecting right and the landowner insofar as the interference
with the landowner's rights to use the property
is concerned. Under
the common law a prospecting right could only be acquired by
concluding a prospecting contract with the landowner,
something which
presupposed negotiation and reaching agreement on the terms of the
prospecting contract. The Act's equivalent is
consultation, the
purpose of which should be to ascertain whether an accommodation of
sorts can be reached in respect of the impact
on the landowner's
right to use his land. Of course the Act does not impose agreement on
these issues as a requirement for granting
the prospecting right, but
that does not mean that consultation under the Act's provisions does
not require engaging in good faith
to attempt to reach accommodation
in that regard. Failure to reach agreement at this early consultation
stage might result in the
holder of the prospecting right having to
pay compensation to the landowner at a later stage. The common
law did not provide
for this kind of compensation, presumably because
the opportunity to provide recompense for use impairment of the land
existed
in negotiation of the terms of the prospecting contract.
[66]
Another, more general, purpose of the consultation is to provide
landowners or occupiers with the necessary information on
everything
that is to be done, so that they can make an informed decision in
relation to the representations to be made, whether
to use the
internal procedures if the application goes against them and whether
to take the administrative action concerned on
review. The
consultation process and its result are an integral part of the
fairness process because the decision cannot be fair
if the
administrator did not have full regard to precisely what happened
during the consultation process in order to determine
whether the
consultation was sufficient to render the grant of the application
procedurally fair.
[67]
The consultation process required by s 16(4)(b) of the Act thus
requires that the applicant must: (a) inform the landowner
in writing
that his application for prospecting rights on the owner's land has
been accepted for consideration by the regional
manager concerned;
(b) inform the landowner in sufficient detail of what the prospecting
operation will entail on the land, in
order for the landowner to
assess what impact the prospecting will have on the landowner's use
of the land; (c) consult with the
landowner with a view to reach an
agreement to the satisfaction of both parties in regard to the impact
of the proposed prospecting
operation; and (d) submit the result of
the consultation process to the regional manager within 30 days of
receiving notification
to consult.
[68]
Genorah did not comply with these requirements for consultation in
terms of the Act. Essentially its purported compliance with
the
consultation requirements of the Act consisted of notifying the
Kgoshi of the community of its application before lodging it
with the
regional manager, and leaving a prescribed form for him to indicate,
by ticking a box on the form, whether he on behalf
of the community
supported its application or not. The form was never signed by the
Kgoshi. Genorah did nothing further, despite
being notified of the
requirements under s 16(4) of the Act by the department, and despite
receiving a letter from the Kgoshi on
13 March 2006 inviting Genorah
to get to know each other better. There was never any consultation in
relation to Eerstegeluk. The
review must thus succeed on this
ground.
” (Footnotes omitted).
Councel for the
department, except to urge that in respect of LIB there was adequate
notice and consultation and in respect of
Koolskoot CC that LIB
failed to disclose its existence as a legal occupier, confined
himself to the following technicalities,
which should not encumber
this judgment as they lack merit:
14.1 That the relief
sought offends against the doctrine of the separation of powers. This
case has nothing to do with this doctrine,
even stretching the
doctrine liberally;
14.2 That separate
applications should have been brought by the two applicants. Counsel
contended that each of the applicants deposed
to a founding affidavit
which he says is impermissible. This talks to form and neither to
substance nor sound procedure. See
Herbstein & Van Winsen,
The Civil Practice of the High Courts of South Africa, 5
th
Edition, Vol 1
(Edited by Cilliers et al) at 208
under “
Joinder of Parties”
the authors comment:
“
Parties
are often joined for reasons of convenience and equity, and to avoid
oppression or a multiplicity of action. (See BHT Water
Treatment
(Pty) Ltd v Leslie 1993(1) SA 47 (W) at 50G-H) Apart from
considerations of convenience, however, there are circumstances
in
which it is essential to join a party because of the interest that
party has in the matter. When such an interest becomes apparent
the
court has no discretion and will not allow the matter to proceed
without joinder, or the giving of judicial notice of the proceedings
to that party. (Amalgamated Engineering Union v Minister of Labour
1949(3) SA 637(A). The reason for this is that it is a principle
of
our law that interested parties should be afforded an opportunity to
be heard in matters in which they have a direct and substantial
interest. (Ex Parte Body Corporate of Caroline Court 2001(4) SA 1230
(SCA) para 9, citing Amalgamated). ”
14.3 Counsel for the
department stated in the Heads of Argument: “
(T)hat it is
fundamental rule of practice than an application for review must
indicate which of the review grounds in s6 of PAJA
it relies upon and
must establish a factual basis for those review grounds. [It is]
submitted that in the present case the applicants
have failed to do
so in the founding papers.”
Counsel for the
department therefore argued that for these reasons this application
is fatally flawed and must be dismissed.
[15] In my view it
counsel’s submission which is flawed In
Bato Star Fishing
(Pty) v Minister of Environmental Affairs & Others
2004(4) SA 490 (CC) at 507C-E (para 27) the Constitutional Court (per
O’Regan J
) held:
“
[27]
The Minister and the Chief Director argue that the applicant did not
disclose its causes of action sufficiently clearly or
precisely for
the respondents to be able to respond to them. Where a litigant
relies upon a statutory provision, it is not necessary
to specify it,
but it must be clear from the facts alleged by the litigant that the
section is relevant and operative.
16
I
am prepared to assume, in favour of the applicant, for the purposes
of this case, that its failure to identify with any precision
the
provisions of PAJA upon which it relied is not fatal to its cause of
action. However, it must be emphasised that it is desirable
for
litigants who seek to review administrative action to identify
clearly both the facts upon which they base their cause of action,
and the legal basis of their cause of action.
”
See also
National
Horseracing Authority of Southern Africa v Naidoo & Another
2010(3) SA 182 (NPD) at 188G – 189C.
In the result I am
satisfied that the applicants have made out a proper case for the
relief sought which is set out in the order
below.
THE COSTS ISSUE
The applicants have
urged for costs on an attorney and client scale. Their counsel
contend that the department’s defence
is frivolous, that they
knew it, hence their only reliance on unmeritorious technicalities
set out in para 14 (above). I enquired
from counsel for the
department, Adv Khokho, why in light of the clear decision,
guidelines and finding in
Bengwenyama Minerals (Pty) Ltd &
Others
(above), which the department was aware of because it
was party to the proceedings, the department still persisted in
prosecuting
its defence, or the lack thereof. Counsel avoided the
question. Perhaps that says it all.
In
Nel v
Waterberg Landbouwers Ko-Operatiewe
1946 AD 597
at 607 the
Court said the following on the award of punitive costs:
“
The
true explanation of awards of attorney and client costs not expressly
authorised by Statute seems to be that, by reason of special
considerations arising either from the circumstances which give rise
to the action or from the conduct of the losing party, the
court in a
particular case considers it just, by means of such an order, to
ensure more effectually than it can do by means of
a judgment for
party and party costs that the successful party will not be out of
pocket in respect of the expense caused to him
by the litigation.
”
I am satisfied that
the applicants have made out a valid case for the punitive costs
award sought.
As far as the 4
th
,
5
th
and 6
th
respondents are concerned:
18.1 They opposed the
application but did not file any opposing papers;
18.2 There was no
appearance on their behalf;
18.3 They did not
withdraw their opposition to the application and are therefore liable
for the costs as losing parties; but on
an ordinary scale.
I therefore make
the following order:
That the first
respondent’s (the Minister of Minerals and Energy) and/or the
third respondent’s (the Regional Manager,
Mineral Regulation:
Northern Cape Region’s), decision to grant the mining permits
listed below to mine sand on a portion
of the Farm Jannel se Pan Nr
39, Administrative District of Kenhardt, measuring 1.5 hectares
each:
Mining Permit nr.
045/2009 (reference number (NCS) 30/5/1/3/2/738MP) to Sizwe Plant
Hire CC (4
th
Respondent); and
Mining Permit nr.
044/2009 (reference number (NCS) 30/5/1/3/2/737MP) to Jacobus
Wouter van Zyl (5
th
Respondent); and
Mining Permit nr. MP
043/2009 (reference number (NCS) 30/5/1/3/2/736MP) to Yolanda
Oberholster (6
th
Respondent);
is hereby reviewed and
set aside and that the aforesaid mining permits granted to the 4
th
(Sizwe Plant Hire CC), the 5
th
(Jacobus Wouter Van Zyl),
and the 6
th
(Yolanda Oberholster) respondents are hereby
set aside.
It is ordered that the
identified three mining permits are cancelled.
The first second and
third respondents are ordered to pay the costs of this application
on an attorney and client scale.
The fourth, fifth and
sixth respondents are ordered to pay the costs of this application
on a party and party scale.
The order in respect
of the costs in paras 3 and 4 hereof are to be paid jointly and
severally the one paying the others to be
absolved
pro tanto
.
________________________________
F
DIALE KGOMO
JUDGE-PRESIDENT
Northern
Cape High Court, Kimberley
I
agree.
________________________________
B
M PAKATI
ACTING-JUDGE
Northern
Cape High Court, Kimberley
On behalf of the
Appellans
:
Adv J G Van Nieker SC
Instructed by: Elliot
Maris Wilmans & Hay
On behalf of the
Respondents
:
Adv N D Khokho
Instructed by: State
Attorney