Sandrift Diamond CC and Others v Trans Hex Mybou Beperk and Others (429/05) [2006] ZANCHC 112 (24 March 2006)

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[2006] ZANCHC 112
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Sandrift Diamond CC and Others v Trans Hex Mybou Beperk and Others (429/05) [2006] ZANCHC 112 (24 March 2006)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape
Division)
Case
no: 429/05
Date
heard: 17/02/06
Date
delivered
:
24
/03/2006
In
the matter of
:
SANDDRIFT
DIAMANTE CC
First
Applicant
N
A T DIAMANTE BK
Second
Applicant
CRYSTAL
CAVE TRADING 118CC
Third
Applicant
RICHTERSVELD
MUNISIPALE RAAD
Fourth
Applicant
and
TRANS
HEX MYNBOU BEPERK
First
Respondent
MINISTER
OF MINERALS & ENERGY
Second
Respondent
TRANS
HEX OPERATIONS (PTY) LTD
Third
Respondent
RICHTERVELD SIDA! HUB COMMUNAL
PROPERTY
ASSOCIATION
Fourth
Respondent
JUDGMENT
TLALETSI J:
The applicants
have brought an application against the respondents seeking orders
inter
alia
,
along the following terms.
that the first
respondent is entitled to prospect/win precious stones on certain
portions of the Richtersveld as shown on the
sketch plan attached
to the founding affidavit as annexure 1;
that the first respondent is
authorised to abandon the whole or portions of the land in the
Richtersveld in which it has rights
to prospect/win precious
stones;
that the agreement entered into on
8 April 2000 between fourth applicant and first respondent attached
to the founding affidavit
as annexure S2, is valid and enforceable;
that the first respondent is in
accordance with his obligations in terms of annexure S2, obliged to
take all reasonable steps
to ensure that the specified portions of
the land as shown with co-ordinate references in the annexures to
the agreement are
excised out of the mining leased area, and that
they do not resort within the mining leased area;
that the second respondent in the
light of the findings in 1.1 to 1.4 above, is obliged to process
and reconsider the applications
for prospecting permits lodged by
first, second and third respondents;
that first and or third
respondents are, pending the final determination of the prayers in
paragraph 1.1 to 1.5 above, interdicted
from mining activities in
the areas respectively marked as ‘A’, ‘B’ and ‘C’ on
annexure to ‘S2’ respectively.
The application
is opposed by first and third respondents. Both the second and
fourth respondents have elected to abide by the
decision of the
court. In addition, the fourth respondent has through its
chairperson filed and affidavit bringing to the attention
of the
court, the position and status of the fourth respondent, as well as
the effect the orders as sought by the applicant’s
may have on
them. The deponent states that its members have been in occupation
and using the land in the Richtersveld area. They
have consistently
claimed ownership of the land and there is a pending claim with the
Land Claims Commissioner. The third and
fourth respondents were at
the hearing of the application joined in as respondents on an
unopposed basis.
The factual
background on which the applicants base their application is set out
in the affidavit of Gert Van Der Heever. He is
a member of the
first applicant. Most of the facts set out are either common cause,
or not in dispute save for the interpretation
and conclusions
discerned from the facts. The then Minister of Minerals and Energy
Affairs of the Republic of South Africa, had
in terms of Section 21
of Act 73 of 1964, awarded the first respondent the right to mine
precious stones in certain portions of
the Richtersveld area as
indicated on the sketch plan kept in the office of the Commissioner
of Mines, Springbok under reference
RMT number M100/90. A Notarial
Mining Lease was as a result registered under Protocol number 185.
This agreement gave the first
respondent the right to mine precious
stones in the said areas.
The first respondent was in terms
of the agreement entitled to abandon the whole or portions of the
land in which he had mineral
rights. During April 2000 the first
respondent entered into a Fencing agreement (‘S2’) with the
entity described as “Richtersveld
Oorgansraad”. The latter was
acting on behalf of the Richtersveld community. Clause 5.3 of “S2”
reads as follows:-
“
5.3
Uitsluiting
van grond uit mynhuur: Landbougronde en ander
Die
10 landbouerwe en die oop areas tussen die erwe langs die rivier,
(aangedui met koördinaatverwysings aanhangsel “C1 en
C2”) en
ook die dorpsgebied Sanddrift, sal uit die bestaande mynhuurgebied
gesny word.
Die
land-erwe by Sanddrif, Stofbakkies, Bloeddrif en Reuning (aangedui
met koördinaatverwysings) op aanhangsel D1, D2, en D3)
sal, soos
reeds ooreengekom tussen die partye, ook uit die bestaande
mynhuurgebied gesny word.
THM
in oorleg met die RG sal die nodige stappe neem om te verseker dat
bogenoemde voorwaardes so spoedig as moontlik afgehandel
word om
te verseker dat die oordrag van die langbougronde
(sic)
aan die RG kan geskied.”
The specified
portions of the land referred to in clause 5.3 were
inter
alia
,
ten agricultural erven as well as three open areas between the ten
agricultural areas, and will therefore once excised not resort
within the fenced mining area. These portions are all situated
along the Orange River and are shown with precise co-ordinate

references.
The first, to
third applicants applied to the fourth applicant for prospecting
opportunities in respect of the open areas between
the 10
agricultural erven, respectively. Their applications were
recommended with approval by the fourth applicant. As requested
by
law the first to third applicants applied to the second respondent
to be issued with prospecting permits in respect of the three
open
areas. These applications were not approved by the second
respondent. In a letter communicating the disapproval, the Director
of Mineral Development, Northern Cape, advised the first to third
applicants that the areas they have applied for are situated
within
the boundaries of the mining lease registered in the name of the
fourth respondent; that the said mining lease is still
valid and a
mining licence has been issued already to the fourth respondent. It
is common cause that the first respondent who
was the beneficiary in
terms of the mining lease, has ceded its rights to the fourth
respondent.
It
is for this reason that fourth respondent was joined in the
proceedings, and the prayers sought are to refer to the fourth
respondent
as well.
The applicants
contend that in view of the fencing agreement between first
respondent and
Richtersveld
‘Oorgansraad’ and the recommendation by the third respondent,
they qualify and are entitled to the rights to prospect precious
stones in the areas applied for. The applicant’s case is centred
on the fact that according to them, the first and or third

respondents have abandoned their rights in favour of the fourth
applicant in terms of the mining lease agreement. That the first
and or third respondents continued mining of the area marked C in
annexure “S2” will deplete the precious stones leaving the
first
respondent with nothing to mine, unless the activities are stopped.
They contend further that nothing will prevent the first
and third
respondents from mining additional areas marked ‘A’ and ‘B’
in annexure ‘S2’ and should therefore be interdicted
as the
first to third applicants will suffer damages should their
applications to prospect precious stones in these areas be
successful.
The first and third respondents in
response, contend that the agreement relied upon by the applicants
envisaged the excision of
certain land from the mining lease with a
view to the transfer of such land to the Richtersveld community, for
agricultural and
related purposes. That no mining rights were to be
transferred, and that no rights accrued to the first to third
applicants who
now seek to appropriate such rights. The community
representatives, they contend, with whom the first and third
respondents are
obliged to co-operate, have requested a suspension
of the excision of the land in question. The second respondent
should therefore
not be faulted for refusing the first to third
applicants applications for prospecting permits in respect of the
land.
The first and
third respondents challenged the first to third applicants’
locus
standi
to the declaratory relief sought in prayers 1 - 5 as well as an
interdictory relief sought in prayers 6 of the notice of motion.

The basis for the challenge is that these applicants have not shown
on their founding affidavit that they have a direct and substantial
interest in the subject matter of the suit, which interest must be a
legal and not merely a financial one.
In determining
whether or not an order should be made in terms of Section
19(1)(a)(iii) of the
Supreme
Court Act
51 of 1959, the applicant must first satisfy the court that he/she
is a person interested in an existing, future or contingent
right or
obligation. Having satisfied this part, it is for the court to
decide whether it is a proper case for the exercise of
the
discretion conferred on it. (See:
Milani
and Another v South African Medical and Dental Council and Another
1990(1)
SA 899 (T) (1) at 902F-I). On the papers the only interest that
first to third applicants have shown is the prospect of
acquiring a
right to prospect for precious stones on the areas described as A, B
and C of annexure ‘S2’ respectively. Their
prospects depend on
abandonment on the part of first and/or third respondent, of their
mining rights in these areas, in favour
of the Richtersveld
community. It will also depend on whether the Richtersveld
community will be in a position to permit these
applicants to mine
these areas and whether the applicants will meet all the
requirements entitling them to the right to mine in
due course. The
interest the applicants may have, if any, is in my view very remote.
In
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
2005 (6) SA 205
(SCA) at 213A-G it was held:
“
[17] It
seems to me that once the applicant has satisfied the Court that
he/she is interested in an 'existing, future or contingent
right or
obligation', the Court is obliged by the subsection to exercise its
discretion. This does not, however, mean that the Court
is bound to
grant a declarator, but that it must consider and decide whether it
should refuse or grant the order, following an examination
of all
relevant factors. In my view, the statement in the above dictum, to
the effect that, once satisfied that the applicant is
an interested
person, 'the Court must decide whether the case is a proper one for
the exercise of the discretion' should be read
in its proper context.
Watermeyer
JA
could not have meant that in spite of the applicant establishing, to
the satisfaction of the Court, the prerequisite factors for
the
exercise of the discretion, the Court could still be required to
determine whether it was competent to exercise it. What the
learned
Judge meant is further clarified by the opening words in the dictum
which indicate clearly that the enquiry was directed
at determining
whether to grant a declaratory order or not, something which would
constitute the exercise of a discretion as envisaged
in the
subsection (cf
Reinecke
v Incorporated General Insurances Ltd
1974 (2) SA 84
(A) at 93A - E).
[18]
Put differently, the two-stage approach under the subsection consists
of the following. During the first leg of the enquiry the
Court must
be satisfied that the applicant has an interest in an 'existing,
future or contingent right or obligation'. At this stage
the focus is
only upon establishing that the necessary conditions precedent for
the exercise of the Court's discretion exist. If
the Court is
satisfied that the existence of such conditions has been proved, it
has to exercise the discretion by deciding either
to refuse or grant
the order sought. The consideration of whether or not to grant the
order constitutes the second leg of the enquiry.”
I am convinced that the declarator
sought is to advance or protect the first to third applicants
prospects of acquiring a right to
prospect for diamonds. They have
not shown that there are reasonable prospect that they will be able
to acquire such rights.
The next
contention by the respondents is that the applicants in prayer 5 are
asking the court to order the second respondent to
process and
reconsider their unsuccessful applications respectively, for
prospecting rights in respect of the land referred to
as C, A and B.
They are aggrieved by the refusal of their applications. Counsel
for the applicants submitted that this application
is not a review
application because the second respondent has not made any decision
in respect of the prospecting rights applications.
He based his
argument on the fact that in a letter dated 12 November 2003, the
Director: Mineral Development, Northern Cape, addressed
to the
applicants, it is stated that the office cannot proceed with the
application in the light of the reasons supplied and that
the
application files have been closed. It was however conceded that
should it be found that the application is in fact a review
then
this court is not a proper forum to determine the issue, and the
matter should automatically come to an end.
It is evident
from the founding affidavit that the applicants are seeking
declaratory orders merely as factors they would rely on
in order to
challenge the failure to grant their applications for prospecting
permits. By the declaratory orders, they seek to
respond to the
factors which seem to have played a role in them not being granted
permits. In the letters the applicants are informed
that the areas
they have applied for are situated within the boundaries of Mining
Lease no: 2/1991, which is registered in the
name of the third
respondent, and that the aforesaid lease is still valid and that
mining licences have been issued already to
the third respondent.
The
Constitutional Court in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
2004(4) SA 490 CC at p506I -507A had the following to say about the
common law review right
vis
a vis
the provisions of
Promotion
of Administrative Justice Act
3
of 2000
(PAJA)
:-
“
[25]
The provisions of s 6 divulge a clear purpose to codify the grounds
of judicial review of administrative action as defined in
PAJA. The
cause of action for the judicial review of administrative action now
ordinarily arises from PAJA, not from the common
law as in the past.
And the authority of PAJA to ground such causes of action rests
squarely on the Constitution. It is not necessary
to consider here
causes of action for judicial review of administrative action that do
not fall within the scope of PAJA. As PAJA
gives effect to s 33 of
the Constitution, matters relating to the interpretation and
application of PAJA will of course be constitutional
matters.”
This
pronouncement makes it clear that the PAJA has substituted the common
law review right and that it is the statute in terms of
which review
of administrative action should be processed. Section 6(2) lists the
grounds upon which a person may rely on for the
judicial review of an
administrative action.
The term
‘decision’ is defined in Section 1 of the PAJA to mean:
“ …
any
decision of an administrative nature made, proposed to be made, or
required to be made, as the case may be, under an empowering
provision, including a decision relating to-
(a) making,
suspending, revoking or refusing to make an order, award or
determination;
(b) giving,
suspending, revoking or refusing to give a certificate, direction,
approval, consent or permission;
(c) issuing,
suspending, revoking or refusing to issue a licence, authority or
other instrument;
(d) imposing
a condition or restriction;
(e) making
a declaration, demand or requirement;
(f) retaining,
or refusing to deliver up, an article; or
(g) doing
or refusing to do any other act or thing of an administrative nature,
and a reference to a failure to take a decision must
be construed
accordingly;”
It is in my view,
undoubtedly clear that the contents of a letter from the Director
Mineral Development, Northern Cape Region, constitutes
a decision as
defined in Section 1 of PAJA and the reasons underlining the decision
have been provided. The contention therefore
made on behalf of the
applicants that no decision has been made cannot be correct.
Furthermore, the applicants themselves have used
the word
“her-oorweeg” in prayer 5 of the notice of motion. At paragraph
21 of the founding affidavit applicants state
inter
alia
,
“
Tweede
Respondent het nie een van die
voormelde
aansoeke goedkeur nie
…”
and
in paragraph 23 they state:
“
Ten
spyte van verskeie skrywes en pogings deur die Vierde Applikant op
aandrag en versoeke van Eerste, Tweede en Derde Applikante
weier
en/of versuim
Eerste en Tweede Respondent in enige opsig saam te werk ten einde
Applikante
se aansoek suksesvol te verwerk en volhard Eerste en Tweede
Respondente met die houding soos uiteengesit in paragraaf 21
hierbo.
”
(My
underlining)
The
above is an indication of acceptance by the applicants that their
applications have been considered and not approved and they
are
seriously aggrieved by that decision.
Section 7(1) of
PAJA provides that the reviews of administrative action must be
brought without unreasonable delay and not later
than 180 days after
the date of the decision. This application was issued on 6 May
2005, a period far in excess of 180 days calculated
from 12 November
2003.
Another difficulty confronting the
applicants is the provisions of Section 7(2)(a) which prohibit a
court or tribunal from reviewing
an administrative action in terms
of the PAJA unless any internal remedy provided for in any other law
has first been exhausted.
A court or tribunal may however in terms
of Section 7(2)(c) in exceptional circumstances and on application
by the person concerned,
exempt such person from the obligation to
exhaust any internal remedy if the court or tribunal deems it in the
interest of justice.
Section 57 of the Minerals Act 50 of 1991,
which was the governing statute in 2003, and in terms whereof the
first to third applicants
brought their applications for prospecting
permits in terms of its Section 6, provided for an appeal against
any decision of the
Director: Mineral Development to the Director
General within one month of the decision. A further appeal lay from
the decision
of the Director General to the Minister within one
month of the decision. The applicants have not shown that they have
exhausted
the internal remedies available to them. They have also
not filed an application for the court to consider exempting them
from
the obligation to exhaust any or all of the internal remedies
in the interests of justice.
I am of the view
that the applicants application as it stands is defective and should
be dismissed. Even if it were to be found
that the first to third
applicants have
locus
standi
,
and that the entire application is not a disguised review but a
legitimate declarator, the applicants, on the merits still face
some
difficulties which I will briefly deal with henceforth.
In the first
prayer the applicants seek a declarator that the first and or third
respondents are entitled to prospect precious stones
in the areas as
identified in the annexed sketch plan. Prayer two seeks a prayer
that first or third respondent are entitled to
abandon the whole or
portion of the land in the Richerveld in which they have right to
prospects precious stones. The declarators
sought are not based on
any dispute between the parties and are matters which are common
cause. Likewise prayer 3 declaring that
the fencing agreement
between fourth applicant and first respondent is still in force is
not a subject of any dispute. One does
not seek a declaratory order
to interpret the provisions where there is no dispute and are common
cause.
Although
the applicants based their argument on the question whether the
first and third respondents have abandoned their rights
in respect
of the specific land, it has agreed to excise, there is no specific
prayer for abandonment. It was incumbent upon the
applicants if
that was their case to have indicated that they seek such an
specific order. Reliance on abandonment was only raised
for the
first time in the replying affidavit. They rely on the letter dated
26 January 2001 addressed to the Department of Minerals
and Energy
referring to an agreement to exclude 13 specified areas from the
mining lease. It is not disputed that the 13 areas
described in
that letter did not include the areas described as A, B and C being
the areas which first to third applicants applied
for prospecting
permits. Reliance on this letter was correctly not pursued during
argument as it does not assist the applicants
case at all.
Although the first to third applicants claim that they are merely
seeking limited contractual rights, they are themselves
not a party
to the contract relied upon. Furthermore, they do not seek
enforcement of any right in their prayers, but declarators.
Neither
do they seek an order against first and third respondents to take
the necessary steps in terms of the agreement. Their
main prayer is
for the second respondent to reverse the decision to refuse their
prospecting applications.
I am not
satisfied that the applicants have made out a proper case for
abandonment of any mining rights or land. They have also
not shown
that they are entitled to the interdictory orders prayed for. It is
not necessary, in my view of the conclusion I have
arrived at, to
deal with the other issues raised on the papers. To do so will be
academic. The application should therefore be
dismissed with costs,
such costs are to include costs of two counsel.
In the result
I make the following order
:
The application is dismissed with
costs, such costs are to include the costs consequent upon the
employment of two counsel.
___________
L
P TLALETSI
JUDGE
(Northern
Cape Division)
ADVOCATE
FOR THE APPLICANTS :
ADV
F J MURRAY
INSTRUCTED
BY : A KHAN ATTORNEYS (CAPE TOWN)
ADVOCATE
FOR THE RESPONDENTS :
ADV
C D A LOXTON SC
ADV
P R JAMMY
INSTRUCTED
BY : ENGELSMAN, MAGABANE INC.