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[2009] ZAGPPHC 136
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Joubert NNO and Others v Maranda Mining Company (Pty) Ltd and Others (55216/09) [2009] ZAGPPHC 136; [2010] 2 All SA 67 (GNP) (5 November 2009)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH COURT,
PRETORIA)
DATE: 05/11/2009
CASE
NO: 55216/09
REPORTABLE
In the matter between:
MARGUERITE LOUISE JOUBERT N.O.
First Applicant
(In her capacity as trustee of
Sandwild Wildlife Trust)
ANDRIES
HENDRIK GROBLER N.O.
(In his capacity as trustee of
Sandwild Wildlife Trust)
Second
Applicant
LIZEL LOUISE KACHELHOFFER N.O.
(In her capacity as trustee of
Sandwild Wildlife Trust)
Third
Applicant
LIEZEL MORTIMER N.O.
(In her capacity as trustee of
sandwild Wildlife Trust)
Fourth
Applicant
ENGELA ELIZABETH CORNELISSEN N.O.
(In her capacity as trustee of
Sandwild Wildlife Trust)
Fifth
Applicant
MURRAY FOUNDATION CONSERVATION
Sixth Applicant
and
MARANDA
MINING COMPANY (Pty) Ltd
First
Respondent
THE MINISTER OF MINERAL RESOURCES
Second Respondent
THE DIRECTOR-GENERAL: DEPARTMENT
OF
Third Respondent
MINERALS & ENERGY
THE REGIONAL MANAGER: DEPARTMENT
OF
Fourth Respondent
MINING, LIMPOPO
________________________________________________________________
JUDGMENT
________________________________________________________________
MURPHY
J
1. The applicants seek a temporary
interdict pending the finalisation of a number of alternative claims
aimed variously at obtaining
judicial redress to either set aside a
mining permit granted to the first respondent or to ensure compliance
with the requirements
for dispute resolution, compensation and
environmental management provided for in the Mineral and Petroleum
Resources Development
Act 28 of 2002 (“the Act”).
2. The first five applicants are the
trustees of a trust known as Sanwild Wildlife Trust (“the
Trust”). The sixth applicant
is a private company that owns
the land subject to the mining permit and upon which it and the Trust
have established a wildlife
sanctuary. The first respondent is a
mining company. The second respondent is the Minister of Mineral
Resources, the third respondent
is the Director-General of the
Department of Minerals and Energy and the fourth respondent is the
Regional-Manager of the Department
of Mining in Limpopo. Only the
first respondent has actively opposed the application.
3. The dispute between the parties has
been the subject of previous litigation which led to the decision in
Joubert and Others v Miranda
Mining
Company
(Pty) Ltd
[2009] 4 All SA
127
(SCA). The Supreme Court of Appeal in its unanimous judgment
usefully summarised the factual background in paragraphs [2] and
[3]
as follows:
“
[2] The
matter revolves around a gold mine on the land that was originally
worked in the 1890’s, after which all mining activities
ceased.
However, mineral sampling reports conducted subsequently indicate
that the land remains mineral-rich. The title deed
records that,
subject to certain conditions, the mineral rights on the land vested
in the State. In any event, when the Mineral
and Petroleum Resources
Development Act, 28 of 2002 (the Act) came into effect on the 1
st
of May 2004 the State became the custodian of all minerals in the
whole of the Republic of South Africa. The portion on which
the
mineral rights are found cover 0,3 per cent or 1,5 hectares of the
land. For convenience I refer to this portion of the land
as the
mineral rights area.
[3] The respondent
acquired the mineral rights in February 2005 from Dynamic Mineral
Development (Pty) Limited whose predecessor-in-title
had acquired
them in 2002 from the Department of Minerals and Energy (DME)
representing the State. At the time the respondent
acquired the
mineral rights, Come Lucky (Pty) Limited (Come Lucky) was the owner
of the land. The Deed of Transfer in terms of
which the DME
alienated the mineral rights defined these as “certain 20
unnumbered base mineral claims.’
4. After acquiring the mineral rights
the first respondent applied to the Minister of Minerals and Energy
for a mining permit and
a prospecting right under the Act. Only the
mining permit is at issue in the present matter. Mining permits are
typically granted
in the case of small scale mining. In terms of
section 27 of the Act a mining permit may only be issued if the
mineral in question
can be mined optimally within a period of two
years and the mining area in question does not exceed 1.5 hectares in
extent. Any
person who wishes to apply for a mining permit has to
lodge the application at the office of the Regional Manager in whose
region
the land is situated. If the application complies with
certain formalities the Regional Manager is obliged to accept the
application.
Within 14 days after accepting the application the
Regional Manager has to make known that an application for a mining
permit
has been received in respect of the land and must call upon
interested and affected persons to submit their comments regarding
the application within 30 days of the notice. If a person has
objections to the granting of a mining permit, the Regional Manager
has to refer the objections to the Regional Mining Development and
Environmental Committee to consider them and advise the Minister
in
this regard. If the Regional Manager accepts the application, within
14 days from the date of acceptance he must notify the
applicant in
writing to submit an environmental management plan and also to notify
in writing and consult with the owner and lawful
occupier of the land
and any other affected persons and submit the result of the said
consultation within 30 days from the date
of the notice - section 10
and section 27(5) of the Act. If the requirements for a mining
permit are satisfied, and there have
been no objections and the
applicant has submitted the environmental management plan, the
Regional Manager is obliged to issue
the mining permit (section
27(6)).
5. In terms of section 27(7) of the
Act the holder of a mining permit may enter the land to which it
relates for the purpose of
constructing infrastructure which may be
required for the purposes of mining and may mine for the mineral to
which the permit relates.
As the Supreme Court of Appeal intimated
in the judgment cited, with the introduction of the Act, mining law
in South Africa has
altered fundamentally by virtue of section 3(1)
of the Act which provides that mineral and petroleum resources are
the common heritage
of all the people of South Africa and the State
is the custodian thereof for the benefit of all South Africans. The
Act accordingly
establishes a scheme whereby mining is accomplished
through the grant of various rights and permits by the State acting
in its
capacity as custodian. In
Meepo
v Kotze and Others
2008 (1)
SA 104
(NC) the court stated that the Act effects a “prevalence
of State power of control over the mineral resources of the Republic
and the concomitant ousting of the (mineral) rights of the land owner
and/or the holder of mineral rights”. The holder of
a mining
permit is able to encroach significantly upon the rights of the owner
of the land where the mineral deposits exist. The
provisions of the
Act constitute the legal and administrative framework for balancing
the conflicting rights and interests involved.
6. The first respondent applied for
the mining permit in April 2005 to the relevant Regional Manager of
the Department of Minerals
and Energy in Limpopo. In terms of
section 27(5) of the Act, as I have indicated, once the Regional
Manager accepted the application,
as he did in this instance, he was
obliged within 14 days from the date of acceptance to notify the
applicant for a permit to submit
an environmental management plan and
notify in writing and consult with the land owner, lawful occupier
and any other affected
parties and submit the results of that
consultation within 30 days. On 17 June 2005, the general manager of
the first respondent
wrote a letter to the representative of the then
owner of the land, Come Lucky (Pty) Ltd (“Come Lucky”),
informing
it that the Regional Manager had accepted the application
and making certain proposals. It also lodged an environmental
management
plan in July 2005. The legal representatives of Come
Lucky lodged an objection against the application in a letter dated
29 June
2005. The relevant part of this letter reads:
“
As
you are aware, our client is actively involved in the operation of an
eco-tourism business on the farm which has necessitated
the
commitment of extensive capital. It has also required the employment
of skilled and dedicated staff in establishing the infrastructure.
Furthermore, the business encompasses
inter
alia
game breeding, game capture and safari operations with the attendant
game hunting lodge and game camp. You will appreciate that
this
operation has required the erection of game fencing and the
acquisition of appropriate vehicles and machinery, as well as
construction and maintenance appropriate to the operation.
We are in receipt of your
letter hand-delivered to these offices on Monday, 20 June 2005.
The purpose of this
correspondence is to register our client’s objection to the
proposed mining activities your Company wishes
to undertake on the
farm.
The proposed mining
operations will undoubtedly have a deleterious impact on the
eco-tourist and environmentally orientated activities
of our client
and the nature of its business. Without in any way limiting the
effects of the proposed mining activities, the deleterious
impact and
ecologically degrading results include, but are not limited to
inter
alia
:
1. The disturbance of
game and game breeding operations arising from the noise and blasting
associated with the mining operation;
2. The cancellation of
safaris as a result of the noise and disturbance of drilling and
mining operations; and
3. The general
degradation and pollution of the environment arising from the open
cast mining operations.
You will appreciate the
impact that this will have on our client’s business, as well as
on the area as a whole.
Please confirm receipt of
this objection. We have taken the liberty of sending a copy to the
Department of Minerals and Energy.
7. On 15 July 2005 the first
respondent placed a notice in a local newspaper advising that it had
initiated an environmental assessment
process in respect of its
applications and invited interested and affected parties to a public
meeting on 22 July 2005. The advertisement
appears not to have
attracted much interest and few or no people attended the meeting.
The Minister ultimately granted the respondent
the mining permit on
21 September 2006 and approved the environmental management plan on
19 December 2006. These decisions were
not challenged by the then
owner of the land, Come Lucky, when it was eventually informed of the
permit in March 2007.
8. The original mining permit
specifically provided that it would be valid from the date of issue
until 20 September 2008 and could
be renewed for three periods not
exceeding one year each. The permit is thus in accordance with the
provisions of section 27(8)(a)
of the Act which provides that a
mining permit is valid for the period specified in the permit which
may not exceed a period of
two years and may be renewed for three
periods, each of which may not exceed one year. Such is consistent
with the legislative
purpose of issuing mining permits for smaller
scale and restricted mining operations.
9. On 25 June 2007, Come Lucky sold
the land to Wilduso 103 (Pty) Ltd which later changed its name to
Murray Foundation Conservation
Holdings (Pty) Ltd, the sixth
applicant. The first respondent only became aware of the sale of the
land to the sixth applicant
during October 2007. A “voetstoots”
clause in the sale agreement records that the sixth applicant was
aware of the
mining claims of the first respondent. Clause 4.3 of
the agreement reads:
“
The
parties further record that the Purchaser is aware of the mining
claims over the Property, including but not limited to
inter
alia
,
the Application for Mining and Prospecting on a portion of the
Property by the Maranda Mining Company and that the Sellers have
lodged an objection to such an Application and that the Application
and claims do not constitute a bar to the successful conclusion
of
this Agreement.”
10. Despite the fact that the first
respondent had informed Come Lucky in March 2007 of the mining permit
and had provided its attorney
with a copy in April 2007, the
“voetstoots” clause did not record that the permit had in
fact been granted and the
objection by Come Lucky had been
unsuccessful at the time the sale agreement was concluded.
11. During the first half of 2007, the
first respondent sought but failed to obtain access to the land in
terms of the mining permit
in order to commence mining activities.
The Act, in section 54, provides for a specific procedure to deal
with such an eventuality.
It provides that the permit holder must
notify the Regional Manager if it is prevented from commencing or
conducting mining operations
because the owner or lawful occupier of
the land refuses to allow the holder to enter the land or places
unreasonable demands in
return for access to the land. The Regional
Manager, in terms of the section, must within 14 days call upon the
owner or occupier
to make representations regarding the issues raised
by the permit holder and inform it of any steps that might be taken
if the
contravention of the Act is persisted with. After considering
the issues raised by the permit holder and any written
representations
made by the owner or occupier, if the Regional
Manager concludes that the owner or lawful occupier is likely to
suffer loss or
damage, he or she must request the parties concerned
to endeavour to reach an agreement for the payment of compensation.
In terms
of section 54(4) of the Act, if the parties cannot reach
agreement, compensation must be determined by arbitration or by a
competent
court, a judge of the High Court. Where the Regional
Manager determines that the failure to reach agreement is due to the
fault
of the permit holder, he or she may prohibit the permit holder
from commencing or continuing with the mining operations until such
time as the dispute has been resolved by arbitration or the competent
court (section 54(6)). Section 54(7) allows the compensation
process
to be initiated in similar vein by the owner or occupier who has
suffered or is likely to suffer any loss by the conduct
of mining
operations.
12. On 11 July 2007, the Regional
Manager, Limpopo, acting in terms of section 54(2), addressed a
notice to Come Lucky regarding
the refusal to grant the first
respondent access and called upon it to make representations and show
cause why the first respondent
should not be allowed access to the
land. On 13 September 2007 the attorneys of the Trust addressed a
letter to the Department
of Minerals and Energy informing it that the
Trust had taken occupation of the land pursuant to the sale agreement
and that the
land had been incorporated into a wild life conservancy
which accommodated game, including a herd of elephant. The letter
went
on to state that mining operations on the land would be
disruptive and dangerous.
13. The letter does not state when the
Trust or the sixth applicant took occupation of the land. The date
has acquired relevance
because the applicants contend that their
rights to be notified and consulted in terms of section 27(5) of the
Act were not honoured
with the possible consequence that the permit
may be reviewable on the ground that a mandatory and material
procedure or condition
prescribed by the Act was not complied with.
The first respondent contends that the notification and consultation
with Come Lucky,
the then owner and occupier, was sufficient
compliance. The latter notification and consultation occurred during
June and July
2005. The mining permit was granted to the first
respondent after that, in September 2006.
14. In paragraph 36 of her founding
affidavit the first applicant states that from September 2005 the
Trust had joint occupation
of the land with Come Lucky. In the
documentation filed in the internal appeal proceedings pending before
the department, the
first respondent contended that the claim by the
first applicant to have been in occupation since September 2005 was
not true.
It alleged that the Trust only took occupation in August
2006. To this the first applicant replied that the Trust became the
lawful occupier before the grant of the permit and added in
contradiction of what is said in her founding affidavit that: “at
no stage did Sanwild (“the Trust”) allege that it was the
occupier of the relevant land as far back as 2005”.
She did
not however state precisely when the Trust became the occupier. In
paragraph 136 of the answering affidavit in these
proceedings the
first respondent drew attention to the discrepancy as follows:
“
The applicants
have purposely omitted to provide any facts or present any
contractual basis as to when they obtained occupation
of the land and
knowledge of the first respondent’s rights. The objections of
Come Lucky was dealt with by the second and
third respondents in
their decision-making process. In reply to the appeal documents, the
first respondent who now wants to contend
that she was on the
property in 2005, stated that she was not the occupier of the land
and never contended that it was the occupier
of the land as far back
as 2005.”
15. The first applicant does not deal
with averment satisfactorily in reply. In particular, she fails to
state when exactly the
Trust took occupation. The best evidence of
the date of occupation is found in clause 5.1 of the sale agreement
which reads:
“
The parties record
that the purchaser’s agent is already in occupation of the
property and has been so since 1 August 2006.”
16. It is common cause that the Trust
was the agent in question. Therefore the fact put up by the
respondents that occupation occurred
on 1 August 2006 is a fact set
out by the respondent which the applicant cannot and does not
effectively dispute. Accepting this
as the relevant date would mean
that the Trust took occupation seven weeks before the permit was
granted, eleven months before
the sale of the land and more than a
year after the first respondent had notified and consulted with Come
Lucky, who then lodged
an objection. Neither Come Lucky, the Trust,
nor the sixth applicant, appear to have taken any steps to join in
the objection
lodged by Come Lucky on 29 June 2005, despite the fact
that all parties were aware of the objection as is recorded in clause
4.3
of the agreement, the “voetstoots” clause.
17. In February 2008 the first
respondent launched an application to gain access to the land in
terms of the permit. Claassen J,
in this division, granted the
order. When leave to appeal was granted to the applicants to appeal
the order of Claassen J, to
the Supreme Court of Appeal, the first
respondent suspended its mining operations. The appeal by the
applicant to the Supreme Court
of Appeal was dismissed in May 2009.
18. The applicants also brought an
application in April 2008 seeking a declarator against the first
respondent ordering it to comply
with the environmental management
plan. This application culminated in an order by consent containing
an interim arrangement regulating
access and including various
undertakings with regard to trees and vegetation in and outside the
prospecting and mining area.
19. About nineteen months after the
mining permit had been granted, on 7 April 2008, the applicants filed
an internal appeal against
the decision to grant the permit in terms
of section 96(1) of the Act, which allows any person whose rights or
legitimate expectations
have been materially and adversely affected,
or who is aggrieved by any administrative decision, to appeal to the
Director-General
against a decision by a Regional Manager.
20. On 5 June 2008 the first
respondent applied in writing to the Regional Manager, Limpopo, for
renewal of the mining permit which
was due to expire on 20 September
2008. The application for renewal was filed therefore about 15 weeks
before it was due to expire.
The permit renewal, Annexure B3 to the
founding affidavit, was issued on 21 September 2008, and being a
renewal was to be valid
only for one year until 20 September 2009.
It does not appear
ex facie
the renewed permit when
exactly the decision to renew the permit was taken. The date of
issue, 21 September 2009, was a Sunday.
21. After the decision of the Supreme
Court of Appeal was handed down in May 2009, the parties engaged in
negotiations regarding
the proposed point of access by the first
respondent to the land. A dispute then arose over the proper
interpretation of the court
order permitting access. In July 2009
the first respondent entered into contracts with the owner of the
adjacent property to facilitate
access which all parties agreed would
be less intrusive to the applicants. Later that month a dispute
arose when the first respondent
began fencing off the prospecting
area. This led to a further deterioration in the relationship, and
ultimately the launching
of this application for an interdict.
22. On
3 June 2009 the applicants lodged an internal appeal against the
first renewal of the mining permit on 21 September 2008.
The permit
was again renewed on 21 September 2009 for a further year. This
latter renewal is not the subject of an internal appeal.
23. There is no clear indication on
the record of precisely what steps the Director-General has taken to
process the appeals against
the initial grant of the permit and the
subsequent renewal of it. There is though correspondence to the
effect that certain documents
are outstanding and that the matter
will receive consideration in the near future.
24. The applicants have brought the
application for a temporary interdict on an urgent basis. As already
stated, they seek the
interdict pending the finalisation of a number
of alternative claims. The claims are aimed at either setting aside
the mining
permit or directing the first respondent to comply with
the requirements of the Act in relation to dispute resolution,
compensation
and environmental management.
25. The first respondent has disputed
whether the application is urgent. It contends that the urgency is
self created by the applicants’
delay in taking the necessary
steps relating to the administrative decisions which they contest,
and not, as the applicants allege,
because of the imminent mining and
blasting activities which will harm the immediate environment and
disturb the wild animals on
the land. It is common cause that the
applicants took no steps to request the Director-General to suspend
the permit pending the
internal appeal. Section 96(2) of the Act
provides that an internal appeal in terms of section 96(1) does not
suspend the administrative
decision appealed against, unless it is
suspended by the Director-General or the Minister as the case may be.
As I understand
the point made by the first respondent in this
regard, and it has relevance beyond the question of urgency, the
failure by the
applicants to seek suspension of the permit has
exacerbated the difficulties for both parties; for the applicants by
leaving the
lawful authority in place; and for the first respondent
by causing the limited time period of validity to continue running.
That
said, I am nonetheless prepared to take a liberal approach to
the question of urgency. The first respondent has suffered no
prejudice
by the abridgement of the prescribed times and an early
hearing. I agree with the applicants that it will be in the
interests
of all parties for clarity to be obtained before actual
mining commences. Any prejudice to the first respondent is
overshadowed
by the extensive encroachment upon the property rights
of the applicants which the mining permit will allow; and it is best
that
such should only happen with some measure of confidence that the
activities and operations are not deserving of prohibition. I
accordingly am prepared to dispense with the ordinary forms and
services and to allow the matter to be heard as one of urgency.
26. The requisites for an interim
interdict are well known. The applicants are obliged to show that
the right which is the subject
matter of the main application which
they seek to protect by means of interim relief is clear, or if not
clear, is
prima facie
established, though open to some doubt. If the right is only
prima
facie
established then it
must be shown that there is a well grounded apprehension of
irreparable harm to the applicants if the interim
relief is not
granted and they ultimately succeed in establishing their right; that
the balance of convenience favours the granting
of interim relief;
and that the applicants have no other satisfactory remedy. In
determining whether the applicants’
prima
facie
right is established,
the court should have regard to the facts put up by the applicants,
the facts set out by the respondent which
the applicants cannot
dispute, and the inherent probabilities, and then should consider
whether the applicants could obtain final
relief at the trial of the
main action or application. The facts set up in contradiction by the
respondent should then be considered.
If serious doubt is thrown upon
the case of the applicants, they cannot succeed -
LF
Boschoff Investments (Pty) Ltd v Cape Town Municipality
1969 (2) SA 256
(C) at 267B-F;
Simon
N.O. v Air Operations of Europe AB and Others
[1998] ZASCA 79
;
1999
(1) SA 217
(SCA) at 228G-H.
27. The first respondent has commenced
preparatory mining activities on the land and on 23 September 2009
gave notice to the applicants
that it intended to commence with
blasting. The obvious concern of the applicants is that once
blasting and the other mining activities
commence, it will be
difficult to undo the results. The applicants contend they are
entitled to the interim interdict pending
the finalisation of the
other relief they seek.
28. The notice of motion is divided
into eight parts, effectively eight applications seeking various
relief. Part A is the urgent
application to obtain the temporary
interdict restraining the first respondent from conducting the mining
activities pending the
finalisation of the relief contained in parts
B-H of the notice of motion. Part B is an application declaring that
the renewal
of the mining permit on 21 September 2008, the first
renewal, is void. Part C is an application directing that the second
and
third respondents should finalise the internal appeal against the
granting of the mining permit, alternatively that the mining permit
be cancelled. Part D is an application to review the grant of the
mining permit in the event that the internal appeal is dismissed
by
the second and third respondents. Part E is an application to compel
the second and third respondents to finalise the internal
appeal
against the renewal of the permit on 21 September 2008. Part F is an
application to review the renewal of the mining permit,
in the event
that the internal appeal by the second and third respondents is
dismissed. Part G is an application to direct the
first respondent
to finalise several outstanding issues pertaining to the mining
permit and execution thereof, before it commences
with mining. Part
H is an application to compel the first respondent to comply with the
provisions of the environmental management
plan and adhere to its
stipulations of the environmental management plan. The applicants
contend that if they make out the
prima
facie
case in respect of
any of the grounds set out in parts B-H, they will have established a
prima facie
right entitling them to interim relief in the event of the other
pre-requisites for an interim interdict also being present. Should
any of the applications in part B-H of the notice of motion be
granted it would have the effect of putting a stop to mining on
the
land or at least directing how the mining should be conducted taking
into account the applicants’ interests. It should
also be kept
in mind that the applicants have only to succeed on one of the
grounds set out in part B-H to give rise to the result.
29. The subject matter of the claim in
part B is the procedural right to obtain a declarator to the effect
that the renewal of the
mining permit on 21 September 2009 was void.
Two sections of the Act are relevant. Section 27(8)(a) provides that
a mining permit
is valid for the period specified in the permit,
which may not exceed a period of two years, and may be renewed for
three periods
each of which may not exceed one year. Section 56(a)
of the Act provides that any permit granted or issued in terms of the
Act
shall lapse whenever it expires. The applicants contend that on
a proper reading of these provisions a mining permit can only be
renewed before it has lapsed, that is, before the date of expiry of
the first two year period. They submit that the renewal in
this case
was only issued on 21 September 2009, whilst the permit, in terms of
section 56(a) of the Act, lapsed on the previous
day.
30. The applicants have placed
reliance on the other provisions of the Act dealing with the expiry
of prospecting rights, mining
rights, exploration rights and
production rights. In respect of these, the Act provides that a
right in respect of which an application
for renewal has been lodged
shall, despite its stated expiry date, remain in force until such
time as such application has been
granted or refused - see, for
example, section 18(5); section 24(5); section 81(5); and section
85(5). These provisions in respect
of those rights provide for the
extension of validity beyond the date of expiry. In regard to mining
permits, so the argument
goes, there is no similar provision
extending the validity of the permit beyond the date specified in the
permit. It is thus submitted
that the legislature consciously and
expressly created transitional arrangements in regard to the other
rights, but deliberately
did not do so in respect of mining permits.
Accordingly, it was further submitted that for a mining permit to
remain valid after
the initial expiry date, its renewal as provided
for in section 27(8)(a) has to occur prior to the expiry date. If
that is not
done, the result will be that in terms of section 56(a)
the mining permit would finally lapse.
31. In support of these submissions
the applicant argued that the position in regard to the expiry of a
mining permit is comparable
to that which applies to the expiry of a
liquor licence where the courts have held that once expired there was
no power to renew
it. They rely on
Winkelbaur
and Winkelbaur t/a Erics Pizzeria and Another v
Minister of Economic Affairs
and Technology and Others
1995 (2) SA 570
(T) at 574D; and
Montagu
Springs (Pty) Ltd t/a Avalon Springs Hotel v Liquor Board
,
Western Cape and Others
1999 (4) SA 716
(C) at 721. I am of the view that the applicants’
reliance on these authorities is misplaced. In
Montagu
Springs
the appellant had
been the holder of a valid hotel liquor licence issued to it in terms
of the Liquor Act 27 of 1989. It had however
not paid its annual
liquor licence fees and as a result its licence had lapsed on 1
January 1998 in terms of the provisions of
sections 107 and 108 of
that Act. On appeal the appellant admitted that its liquor licence
had in fact lapsed and contended that
the relevant provisions
conferred rights exclusively on the liquor board and that the
sections were enacted for its special benefit.
As the public
interest was not involved in the application, so the appellant
submitted, the Liquor Board’s rights could
be validly waived in
the discretion of the Liquor Board and where that happens the court
had the power to restore or revive a lapsed
licence and to order and
authorise the authorities to accept late payment of the annual fees.
The court’s conclusion, with
reference to the wording and
timeframes set out in section 108 of the Act, was that the court
lacked power to revive a liquor licence
once it has lapsed.
Accordingly, these decisions are specific to the empowering
provisions of the legislation in question and
are not authority for
the general proposition that once a licence or a permit has lapsed it
cannot be renewed. That rather depends
on the language and structure
of the provisions regulating the permit or licence in question.
32. In this instance the relevant
provision, section 27(8)(a), makes it clear that a mining permit may
be renewed for three periods
each of which may not exceed one year.
The first respondent has submitted, with reference to the Concise
Oxford English Dictionary
11
th
edition page 1217, that the word “renew” bears the
following meaning:
“
Resume
or re-establish after an interruption; give fresh life or strength
to; extend a period of validity of (a licence, subscription,
or
contract); replace or restore (something broken or worn out).”
In
CUSA
v Tau Ying Metal Industries
[2008] ZACC 15
;
2009 (2) SA 204(CC)
at 232, the Constitutional Court had an
opportunity to pronounce upon the meaning of the words “amend”,
“extend”
and “replace”. It stated as
follows:
“
The
words “amended” or “extended” presuppose the
continued operation of the same agreement and the continued
application of the exemption granted in respect of the agreement.
The exemptions apply to the agreement in respect of which they
were
granted if the agreement is “amended” or “extended”.
The meaning of the word “replaced”
which fits into this
context is “renewal”, which is consistent with the
continued operation of the same agreement.
To my mind the word
“replace”, as used in the context of the exemption, is
used in the first sense, namely to put
back again in place or to
restore to a previous place or position. In relation to the
industrial council main agreement it means
to renew or re-enact the
main agreement.”
33. Applying such to the present case
it would mean that the concept of renew as is used in section
27(8)(a) of the Act means that
the permit is restored or
re-established on the same terms. It is effectively re-enacted.
There is no immediate apparent justification
for holding as a general
proposition that this can occur only before the original permit has
lapsed. There is no reason in principle
why such could not occur
after an interruption. Thus, the first respondent has submitted that
the applicants’ argument confuses
the concept of renewal with
the extension of a period of time set by legislation within which
something has to be done.
34. In
Consolidated
Textile Mills Ltd v President of the Industrial Court and
Others
1989 (1) SA 302
(A), the court was concerned with a dispute referred
to an industrial council in terms of section 43 of the Labour
Relations Act
28 of 1956. After the 30 day period for the settlement
of the dispute by the industrial council had expired, an official of
the
Department of Manpower purported to granted an extension (in
terms of section 46(9)(a)(i)) of the said 30 day period for the
settlement
of the dispute. The industrial council then settled the
dispute in favour of the employer. The union and its members
considered
the settlement of the dispute to have been unlawful and
contended that the dispute should be referred to the Industrial Court
for
determination. The provincial division held that the industrial
council’s authority to settle the dispute had terminated
when
the 30 day period had expired and that the purported extension of the
period was not a valid one. The Appellate Division
agreed. Corbett
JA had regard to various provisions of the governing legislation and
noted that there were a number of sections
of the Act in which a
period is specified for the doing of a certain act and provision is
made for some person or body to fix a
further period or periods
within which the act may be done. In a number of those provisions
the formula used made it quite clear
that the body was empowered to
fix the further period or periods either before or after the expiry
of the original specified period.
In contrast to this, in a number
of other sections dealing with the power to fix a further period or
periods for the doing of
the act, including the subsection under
consideration, the formula used followed much the same wording, but
with the important
difference that it omitted the words “either
before or after the expiry of any such period”. He then
concluded:
“
The
difference in the wording of the two formule used for fixing, or
determining, a further period or periods for the doing of the
act in
question must, in my view, be taken to have been deliberate; and this
deliberate change of wording must represent a difference
of
intention. The only possible explanation seems to me to be that
where it is not expressly stated that the fixing of the further
period or periods may be before or after the expiry of the original
period, then the intention was that such fixing has to take
place
before the expiry of this period; and, of course, where it is so
expressly stated, then such fixing may take place before
or after
such expiry. (308 A-B)”
35. This authority may lend support to
the applicants’ contention that having regard to the other
provisions in the Act regulating
the renewal of rights other than
mining permits, the renewal ought to have been done before the expiry
of the permit in order to
be valid. On the other hand and most
importantly, it is uncertain on the facts before me, whether the
renewal was granted after
or before the expiry of the initial period.
The permit was
issued
on 21 September 2008. That in itself does not establish that the
permit was renewed after the expiry of the period. It is common
cause that the application for renewal was made 15 weeks before the
renewal was issued. The issuing stamp bears the date 21 September
2008, a Sunday. It is possible that the decision to renew occurred
before then. It is therefore not possible on the papers to
determine
when the permit was in fact renewed. The fourth respondent has not
filed an affidavit specifying the date he or she
decided to renew the
permit.
36. The first respondent has contended
that even if one were to accept the applicants’ argument, it
would not necessarily
follow that the renewed permit would be set
aside. A compelling case has been made that the application to
review and set aside
the permit was not launched timeously and was
brought after unreasonable delay. Section 7(1) of the Promotion of
Administrative
Justice Act 3 of 2000 (“PAJA”) provides
that proceedings for judicial review must be instituted without
unreasonable
delay and not later than a 180 days after the date on
which the person concerned was informed of the administrative action
or became
aware of the action and the reasons for it, or might
reasonably have been expected to have become aware thereof. The
applicants
stated that they only became aware of the renewal of the
permit on 4 May 2009. The respondents submit that by acting
prudently
they would have become aware of it when it was issued on 21
September 2008. They knew that the permit was going to expire. Yet,
they only brought the application for review on 7 September 2009,
that is nearly 12 months after the permit was renewed and some
4
months after they claim they were informed thereof. When the Supreme
Court of Appeal confirmed the judgment regarding access
on 21 May
2009, the applicants engaged in a negotiation process with the first
respondent. As part of that process the first respondent
engaged the
adjoining neighbour in order to acquire an interest in its land for
the purpose of gaining access to the applicants’
land in a more
convenient fashion. The first respondent purchased the interest in
the neighbouring land at a cost of R3.5 million
after the renewal of
the permit and after the judgment was handed down in the Supreme
Court of Appeal. Thereafter lengthy negotiations
pursued in respect
of a number of issues between the parties. Throughout this the
applicants took no steps at all to bring any
review in respect of the
permit renewal.
37. The first respondent asserts that
the applicants unreasonably delayed in bringing the review
proceedings and as a result have
caused severe prejudice to the first
respondent. They stood by while the first respondent purchased an
interest in a neighbouring
farm for the purpose of gaining access.
They submit consequently that it is unlikely that a court will set
aside the renewal because
the application for judicial review in
respect of it was unreasonably delayed. There is merit in that
submission, though the merits
of the application may yet outweigh
those considerations. In conclusion, therefore, the first respondent
submitted that the application
to have the renewal declared void
established no
prima facie
right. I will return to this critical and ultimately determinative
question after first outlining the rights and relief of issue
in the
other parts of the application.
38. Part C and part D of the notice of
motion seek relief in relation to the grant of the mining permit in
the first place. As
mentioned earlier, part C is an application for
an order directing the second and third respondents to finalise the
internal appeal
against the grant of the mining permit, and part D is
an application to review the grant of the mining permit in the event
that
the internal appeal is dismissed by the second and third
respondents. The rights then which are the subject matter of the
relief
claimed in these instances are the procedural right to obtain
a
mandamus
;
the procedural right to be successful in the appeal; and the
procedural right to the review of the permit.
39. The permit was granted on 21
September 2006. The applicants lodged the appeal on 8 April 2008.
Regulation 74(1) of the regulations
enacted under the Act requires an
appeal to be lodged within 30 days after a person has become aware,
or should reasonably have
become aware of the administrative decision
concerned. Regulation 74(4) provides that the appeal authority may
in his discretion
and on such terms and conditions as he may decide,
condone the late noting of an appeal. The respondents contend that
there is
no proper application for condonation. In paragraph 2.1 of
the appeal document it is simply stated that the appellant did not
know that it could appeal against an administrative decision and was
only informed by its counsel during 2008 of the internal appeal
process. One tends to agree with the first respondent that there is
no proper condonation application and not much in the way
of good
cause has been set out that would justify granting condonation.
Accordingly, it seems unlikely that condonation will be
granted.
40. However, even were condonation
granted, the grounds of appeal are not strong on the merits. The
appeal is based upon the alleged
failure by the first respondent to
consult with the applicants in terms of section 27(5)(b) of the Act
and the failure by the Regional
Manager to call upon the Trust as an
interested and affected party. As set out above, section 27(5)(b)
requires the Regional Manager
to direct the applicant for a permit
within 14 days of the acceptance of the application to notify in
writing and consult with
the landowner, lawful occupier and affected
persons within 30 days of the notice. Similarly, section 10 provides
that within fourteen
days after accepting the application the
Regional Manager must call upon interested and affected parties to
submit their comments
regarding the application within 30 days from
the date of the notice. It is common cause that the first respondent
by letter dated
17 June 2005 informed Come Lucky of the acceptance of
the application and invited it to object to the granting of the
permit and
to react to the proposals contained in the letter by no
later than 30 June 2005. Come Lucky responded to the letter and
registered
its objection on 29 June 2005. For the reasons I have
already explained, it must be accepted for the present proceedings
that
the first applicant and the Trust only occupied the land from 1
August 2006. It was therefore not entitled to be consulted in terms
of section 27(5)(b) of the Act. It also did not join in the
objection despite being made aware of it in the sale agreement.
Moreover, the applicants do not make out a case that the Regional
Manager did not comply with the provisions of section 10.
41. It follows that the internal
appeal and review against the original grant of the mining permit
have extremely limited prospects
of success, and it is therefore more
than doubtful that either gives rise to a clear right entitling them
to the relief sought.
Moreover, the review of the appeal decision is
problematic by virtue of its hypothetical nature. There is as yet no
specific
decision taken against which a review can be launched at
this stage. The review application is premature as the internal
appeal
has not been finalised.
42. The relief sought in parts E and F
of the notice of motion relate to the renewal of the permit. On the
assumption that the
renewal is valid, the applicants seek under part
E to compel the second and third respondents to finalise the internal
appeal against
the renewal, and part F deals with the application to
review the renewal of the mining permit in the event that the
internal appeal
by the second and third respondents is dismissed. In
this case the appeal was lodged within the 30 days prescribed by the
regulations.
However, that only occurred on 3 June 2009, about three
months before this application was launched. The Department
addressed
a letter to the applicants on 7 August 2009 advising that
it was in the process of finalising the appeals. Accordingly, it is
doubtful whether a proper case for a
mandamus
has been made out at this
stage. With regard to the prospects of success with this appeal, the
appeal is based upon the failure
of the department to call upon the
applicants as interested and affected parties to submit comments on
the renewal of the permit.
There is no procedure for an application
for renewal prescribed in the regulations. The first respondent
submits that it was
not contemplated by the legislature that an
application for renewal had to again comply with the provisions of
section 27, or that
the Regional Manager should once again comply
with the provisions of section 10 in respect of the renewal of the
mining right.
I tend to agree that it seems logical and sensible
that a full application procedure is not required with the renewal of
the permit.
The renewal is only granted for one year at a time and
the original grant of the permit already contemplates future renewals
for
the short periods mentioned in section 27(8). Moreover, in so
far as the provisions of section 3 of PAJA apply, it should be kept
in mind that section 3(4) and (5) of PAJA permit departure from the
ordinary requirements of procedural fairness when it is justifiable
to do so, or when the empowering provision contemplates a different
procedure which would be fair. The appeal procedure in section
96 of
the Act (which includes the right to seek suspension of the renewal)
allows for procedural fairness
ex
post facto
. That may be
sufficient compliance with the requirements of procedural fairness
under the Act, particularly in relation to the
renewal of a permit
that has been granted after full compliance with the procedural
requirements of consultation and an assessment
of the environmental
impact. Accordingly, I do not see either the internal appeal or
review application having prospects of success
on this ground. Once
more, the review application is premature as the internal appeal has
not yet been finalised. Accordingly
no
prima
fa
cie right for review has
been established.
43. The subject matter of the claim
contained in part G and which is sought to be protected by means of
the interim relief is the
alleged right to obtain a final interdict
ordering the first respondent to negotiate on various topics related
to the commencement
of the mining operations. There has been some
dispute about the access road, including an access gate, in
accordance with the
environmental management plan. However, this
appears to be largely resolved. The other issues relate to the terms
of occupation
for mining purposes and the compensation payable to the
applicants for the occupying of the access road and the mining permit
area.
The applicants allege that the first respondent must consult
them before it commences with activities on the land. Accordingly,
it seeks an order compelling the first respondent to negotiate with
the applicants and should agreement not be reached on the measures
within thirty days that any party should be allowed to apply to court
for an order directing that certain measures be implemented.
44. The
applicants fundamentally misconstrue their rights under the Act. I
agree with the first respondent that there is no right
in law to
negotiate and agree the terms of occupation. The first respondent
acquires a statutory right, once the permit is granted,
in terms of
section 27(7), to enter the land to which the permit relates, and to
bring on employees, plant, machinery and equipment
to construct or
lay down any surface or underground infrastructure which may be
required for the purposes of mining. The permit
holder is also
entitled to use water from any excavation previously made, or may
sink a borehole required for use relating to prospecting
and mining
on the land. The manner in which these activities are to be
conducted is regulated by the environmental management
plan.
45. The consultation processes that
are set down by the legislation in section 27 and section 10 relate
to the period before the
mining permit is granted. The only
consultative interaction that the Act anticipates after approval of
the mining permit is that
prescribed by section 5(4) of the Act. It
provides:
“
No person may
prospect for or remove, mine, conduct technical co-operation
operations, reconnaissance operations, explore for and
produce any
mineral or petroleum or commence with any work incidental thereto on
any area without -
(a) an approved
environmental management programme or approved environmental
management plan, as the case may be;
(b) a reconnaissance
permission, prospecting right, permission to remove, mining right,
mining permit, retention permit, technical
co-operation permit,
reconnaissance permit, exploration right or production right, as the
case may be; and
(c) notifying and
consulting with the landowner or lawful occupier of the land in
question.”
46. The applicants seem to suggest
that the duty on the permit holder in section 5(4)(c) imposes upon
the first respondent a duty
to negotiate with them to agree on the
terms of occupation. This is not correct. The duty there
contemplated is a duty to notify
and consult. The duty to consult
requires only that the permit holder engage in a consensus-seeking
process involving the exchange
of proposals and representations. In
the event of a deadlock, after all consultative avenues have been
exhausted, the scheme of
the legislation anticipates that the permit
holder will be permitted to proceed immediately to exercise its
rights under the permit.
This much is evident from section 54 of the
Act. The section deals with the compensation payable under certain
circumstances.
It provides that where a mining permit holder is
prevented from commencing mining operations because the owner or
lawful occupier
of the land refuses to allow access, or places
unreasonable demands in return for access to the land, the holder
shall then inform
the Regional Manager of that difficulty. The
Regional Manager must within 14 days call upon the owner or lawful
occupier of the
land to make representations regarding the issues
raised by the holder of the permit and inform the owner or occupier
of the rights
of the holder of the permit and set out the provisions
of the Act which the owner or occupier may be contravening by failing
to
grant access. If the Regional Manager after having considered the
issues raised by the holder and any written representations by
the
owner or lawful occupier of the land concludes that the owner or
lawful occupier has suffered or is likely to suffer loss or
damage as
a result of the mining operations, he or she may request the parties
concerned to endeavour to reach an agreement for
the payment of
compensation for such loss or damage. If the parties fail to reach
an agreement, compensation must then be determined
by arbitration or
a competent court.
47. From these provisions it is clear
that the only topic for consultation is the question of compensation
for loss or damage suffered
or to be suffered as a consequence of the
mining operations. Section 54 does not include a general provision
that if the parties
are unable to reach agreement on compensation
that the consequence of that is that the mining operations should be
suspended.
That will only occur where the Regional Manager
determines that the failure of the parties to reach an agreement or
to resolve
the dispute is due to the fault of the mining permit
holder. In such instances, in terms of section 54(6), the Regional
Manager
may in writing prohibit the permit holder from commencing or
continuing with prospecting or mining operations on the land in
question
until such time as the dispute regarding compensation has
been resolved by arbitration or by a competent court. There is
accordingly
an internal remedy available to the applicants of which
they have not availed themselves for reasons which are not evident.
48. Section 96(3) of the Act provides
that no person may apply to the court for the review of an
administrative decision until that
person has exhausted his or her
remedies in terms of the relevant provisions. Section 96(4) provides
that sections 6, 7(1) and
8 of PAJA apply to any court proceedings
contemplated in the section. Notable by its absence is any reference
to section 7(2)
of PAJA. This section provides that no court or
tribunal shall review an administrative action in terms of the Act
unless internal
remedies have been exhausted and allows for a court
in exceptional circumstances to exempt persons from the obligation to
exhaust
internal remedies. The absence in section 96(6) of any
reference to section 7(2) of PAJA is an indication that the court may
not
exempt an applicant from exhausting its remedies under this Act
on the grounds of exceptional circumstances. Consequently, the
only
relief available to the applicants regarding the terms of occupation
and compensation arising from the mining operations is
to pursue the
remedies in section 54. In so far as terms of occupation may be
particularly onerous, no doubt the arbitrator or
court properly
seized of the matter will assume the authority to grant greater
compensation.
49. Moreover, in the earlier dispute
between the parties, the Supreme Court of Appeal (at paragraph 14 of
its judgment) held that
there is no dispute that the respondent had
complied with all the requirements set out in section 27(1) - (5)
before the grant
of the mining permit and in section 5(4) after the
grant of the permit. That is an authoritative pronouncement that the
first
respondent is required to do no more in terms of a consultation
process before operationalising the mining permit. It remains only
for the applicants to refer the issue of any loss or damage it may
suffer as a result of the mining to arbitration or adjudication
for
the purpose of determining compensation.
50. In the result, it seems to me that
the applicants have no prospects of success at all in seeking an
order compelling the first
respondent to negotiate terms of
occupation for mining purposes.
51. Finally, the subject matter of the
claim contained in part H, and the right there sought to be protected
by means of the interim
relief, is the right to obtain a final
interdict ordering the first respondent to conduct its mining
activities in accordance with
the environmental management plan. The
interdict is not sought to protect the status quo until such time as
a final interdict
for prohibition of mining activities may be
obtained. The orders sought relate to adherence to the plan and the
limitation of
the first respondent’s access to the effect that
it may use the 7,5 kilometer road only to gain access in order to
establish
a new access in accordance with the environmental
management plan. The Supreme Court of Appeal dealt with the issue of
the access
road and in accordance with that judgment the applicants
are in principle obliged to provide access and whether such access is
in specific circumstance reasonable or not will depend upon the facts
that may arise from time to time. It is clear that the intention
of
the first respondent is to provide for a more convenient access road
from the adjoining farm.
52. The only other issue raised under
this head is that certain trees and grasses in the mining permit area
have been uprooted contrary
to the environmental management plan.
The respondent takes the view that it is not necessary that it be
ordered to comply with
the environmental management plan. If the
contravention of the environmental management program has already
occurred then an interim
interdict can serve no purpose. No case is
made out regarding any future violations that are anticipated or
pending. Moreover,
in terms of section 47 of the Act, the Minister
may cancel or suspend any mining permit if the holder thereof is
contravening the
approved environmental management program. This
remedy too should be exhausted before seeking relief from this court.
53. From the foregoing analysis, there
is significant doubt about whether any of these claims establish
prima facie
rights entitling the applicants to the relief they seek. The only
application that strikes me as possibly having some merit is
that in
part B which alleges that the renewal of the permit is void by reason
of the renewal having occurred after the expiry of
the permit. The
line of reasoning in the
Consolidated
Textile Mills Ltd
case
supports the contention by the applicants that the difference in
treatment of the expiry of the permit under section 27(8)
when
compared to the expiry of the rights and permits under other sections
means that once expired the permit is incapable of renewal
after the
expiry date. On the other hand, the peculiar context of labour
relations and dispute resolution that was applicable
in that case
serves to distinguish it from the present case. Provision for the
expiry of a process in a dispute resolution system
is fundamentally
different to the expiry of a licence or a permit. A contextually
sensitive interpretation of the renewal of a
permit to mine would
take account of the fact that the first period of mining under the
permit would involve extensive investment
of capital and human effort
to achieve the objectives of the permit. Under a dispute resolution
system, on the other hand, the
interests of finality and speed in
resolving disputes and the relative strategic bargaining positions of
the parties are key relevant
factors, which find no place in the
context of renewing mining permits. The limited period of renewal of
a mining permit has as
its purpose the temporal limitation of small
scale mining to minimise the harmful effects on the landowner.
Provided the decision
maker effects the renewal of lapsed permits
with that objective in mind, there can be no objection in principle
or policy to the
renewal or the re-enactment, taking place after the
lapse of the permit. Consequently, even here I doubt whether the
applicants
have established a
prima
facie
right. And even more
pertinently, as I have explained, it may also be that the permit was
in fact renewed before it expired.
The facts are not sufficiently
clear on this critical aspect. Such being the case, the maxim
omnia
praesumuntur rite esse acta
compels a factual finding of compliance in the face of the doubt
occasioned by the insufficiency of the evidence.
54. However, lest I be mistaken, and
the applicants have indeed established a
prima
facie
right under part B of
the notice of motion, that alone would not entitle them to the grant
of an interim interdict. They need
to show also that they will
suffer irreparable harm if the relief is not granted. The
irreparable harm the applicants claim they
will suffer is that to the
environment if the first respondent continues with its activities.
They contend that the effect of
open cast mining and blasting on the
wild animals will be horrific, especially taking account that many of
the animals will be
traumatised. In this regard, in order to keep
proper perspective, it must be emphasised that the portion on which
the mineral
rights are found covers 0,03% of the land, being 1.5
hectares of a total of 2604 hectares of land. The applicants also
submit
that there is a scarcity of water on the farm. There are two
flooded mine shafts in the mining permit area, that the applicants
believe should rather be used to provide water to the animals. They
claim that what the first respondent proposes to do is similar
to
conducting open cast mining and blasting in the Kruger National Park
and there is danger that some of their supporting donors
will
withdraw their financial support.
55. In
other words the applicants are seeking to prevent damage to the
property itself by means of open cast mining and any harm
to the
wildlife sanctuary conducted on their land.
56. The respondents submit in contrast
that the mining activities will not cause irreparable harm as
provision is made for rehabilitation
of the damage done to the
environment in terms of the environmental management plan which has
been approved by the Department.
The first respondent has an
obligation, in so far as it is reasonably practicable, to
rehabilitate the environment affected by
the mining operations to its
natural or predetermined state or to a land use which conforms to the
generally accepted principle
of sustainable development. In terms of
section 43 of the Act, the holder of the permit is responsible for
any environmental and
ecological degradation and this liability
extends beyond the lapsing of the permit. Moreover, before the
permit is granted financial
provision has to be made for
rehabilitation. The first respondent has lodged R200 000 with the
Department for this purpose. It
is possible for the applicants to
seek for this amount to be increased. Moreover, the applicants are
entitled to compensation.
57. It follows that the harm to the
land itself cannot be described as irreparable and also falls within
the scope of what a mining
permit holder is lawfully entitled to
accomplish even at the expense of the landowner. It is one of the
notable features of mining
law that the rights of the landowner are
often subjugated to those of the person with mining rights.
58. With regard to the wildlife
sanctuary, the respondent makes the point that the sanctuary was
established after the purchase
of the land from Come Lucky, with full
knowledge of the application for the mining permit as well as the
conditions relating to
access for mining purposes contained in the
title deed. The applicants took the risk of establishing a wildlife
sanctuary on land
which has been subjected to mining rights and
activities for more than a hundred years.
59. Section 53 of the Act provides
that any person who intends to use the surface of any land in any way
which may be contrary to
any object of the Act or which is likely to
impede any such object, must apply to the Minister for approval in
the prescribed manner.
The applicants were required, in terms of
this section, to obtain the approval of the Minister to use the land
as a wildlife sanctuary
and they have failed to do so. The use of
the land as a wildlife sanctuary does not fall within the exceptions
provided for in
section 53(2) of the Act. The applicants have
consistently maintained that the land is not used for farming (one of
the exceptions)
but that it is rather used for environmental
protection, species conservation and environmental education and
training.
60. The use of the property by the
applicants as a wildlife sanctuary would appear to be unlawful. In
terms of regulation 7 of
the regulations enacted under the National
Environment Management: Biodiversity Act, 10 of 2004, no person may
operate a captive
breeding operation, sanctuary or rehabilitation
facility unless registered in terms of the Act with the issuing
authority. The
applicants are in possession of permits to continue
such activities on another farm, Harmony. It is apparent from the
terms of
those permits that the authority is limited to the
particular farm. Accordingly, there is no permit entitling the
applicants to
conduct the sanctuary on the land in question.
Therefore the respondent is correct in its submission that the harm
against which
the applicants seek to be protected is of their own
making and the consequence of unlawful conduct on their part.
61. In the result, I am not persuaded
that the applicants will suffer irreparable harm if the interdict is
not granted.
62. Where an applicant for an interim
interdict establishes a
prima
facie
right open to some
doubt, it is also within the court’s discretion to refuse to
grant the interdict if it is of the view
that the balance of
convenience favours the respondent. The mining permit was issued to
the respondent for a period of two years.
In terms of section 27(8)
of the Act, as we have seen, it may only be renewed for a further
three periods of one year each. The
permit was issued on 21
September 2006 and expired on 20 September 2008. It was further
renewed for one year to 20 September 2009
which date has also come
and gone and a second renewal was then granted to 20 September 2010.
Therefore only one further renewal
for one year is possible until 20
September 2011. The mining activities contemplated, as set out in
the application for the permit,
will take some 18 months to complete.
If the interim relief is granted, the first respondent’s
permit to mine will effectively
be rendered nugatory. In the process
it will lose not only the substantial profit to be made by the mining
activities, estimated
to be R1.2 million per month, but also the R14
million already invested in preparation for the mining, including the
R3.5 million
paid for the interest in the adjoining farm.
63. On the other hand, it is common
cause that the mining will be restricted to 1.5 hectares of the total
of the farm measuring
2604 hectares. The area where the mining
activity will occur has already been scarred by mining activities
over the past century
and contains numerous pits, slopes and
trenches. Added to that, the mining period will be for a short
period of 18 months, whereafter
the mining works will have to be
rehabilitated in accordance with the environmental management plan.
64. Furthermore, the delay in bringing
the review application must be taken into account in assessing the
balance of convenience.
The applicants have clearly delayed
unreasonably on a number of occasions and it is clear that had the
review of the original
permit been brought expeditiously the first
respondent could have been spared both expense and considerable
inconvenience.
65. Associated with the latter point,
is the fact that the applicants have also had available to them a
number of alternative remedies
that if applied expeditiously would
have been more effective than attempting to interdict the mining
operations at the eleventh
hour. The applicants could have filed
their appeal in terms of section 96(1) timeously and engaged the
Minister or the Director-General
in terms of section 96(2) of the Act
to have the permit suspended pending the internal appeal. The
applicants took no steps whatsoever
to avail themselves of this
remedy, which obviously would have been the most appropriate remedy
in the circumstances and could
have been invoked timeously and at a
minimal cost. They have offered no convincing explanation for not
doing so. The failure
to exhaust this remedy may be fatal to their
review applications by virtue of the provisions of section 96(3) and
(4) which makes
it plain that the exhaustion of internal remedies is
mandatory and cannot be condoned in exceptional circumstances under
section
7(2) of PAJA. Added to that, the other remedies of referring
the dispute to arbitration or adjudication for the determination of
compensation have also not been invoked.
66. These factors cumulatively lead me
to conclude that the balance of convenience favours the first
respondent and for that reason
alone an interim interdict should not
be granted.
67. This
is a case where the employment of two counsel was justified and
accordingly costs should be awarded on that basis.
68. In the result, I make the
following orders:
1. An order is granted in terms of
rule 6(12) dispensing with the forms and services provided for in the
rules, and allowing for
this matter to be heard as one of urgency.
2. The application for interim relief
as sought in part A of the notice of motion is dismissed with costs,
such costs to include
the costs pertaining to the employment of two
counsel.
3. The application in respect of the
relief set out in parts B-H of the notice of motion is postponed
sine
die
.
JR MURPHY
JUDGE OF THE HIGH COURT
Date Heard: 13 October 2009
For
the Applicant: Adv CA Da Silva SC, Pretoria
Adv SA Visser, Pretoria
Instructed By: Stewart Maritz &
Basson Attorneys c/o Klopper & Vorster Attorneys c/o Pennels
Beyer & Calits, Pretoria
For the Respondent: Adv SJ Grobler
SC, Johannesburg
Adv LGF
Putter, Johannesburg
Instructed By: Vezi & De Beer
Inc. c/o Ehlers Inc., Pretoria