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2024
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[2024] ZAMPMBHC 30
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Omaruru Minerals (Pty) Ltd v Mankele Community Trust and Others (954/2024) [2024] ZAMPMBHC 30 (22 April 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE NO: 954/2024
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED: YES
DATE: 22/04/2024
SIGNATURE
In the matter between:
OMARURU
MINERALS (PTY)
LTD
Applicant
and
MANKELE
COMMUNITY
TRUST
First Respondent
J28
MINING RESOURCE (PTY)
LTD
Second Respondent
MG
SECURITY
SERVICES
Third Respondent
THE MINISTER THE
DEPARTMENT OF MINERAL
RESOURCES
AND ENERGY
Fourth
Respondent
ALL OTHER PERSONS
ACTING ON OR CARRYING INSTRUCTIONS
ON
BEHALF OF THE FIRST AND SECOND RESPONDENT
Fifth
Respondent
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 22 April 2024 at 10:00.
JUDGMENT
MASHILE J:
[1]
The Applicant (“Omaruru”) applies to Court on urgent
basis seeking relief
that the operation of the order of this Court
granted on 8 April 2024 should not be suspended as a result of the
leave to appeal
launched on 11 April 2024. The essence of the order
was that the First and Second Respondents (“the Respondents”)
or
depending on the context, (“the Trust”) and (“J28
Mining”) should restore possession of the property described
as
the remaining portion and extent of Portion 3 of the farm,
Elandshoogte 207 JT in the Magisterial district of Nelspruit (“the
property”)
.
to Omaruru. The application is founded on
the provisions of Section 18(1) as read with 18(3) of the
Superior
Courts Act, 10 of 2013
. I will discuss the provisions of these
sections later below.
[2]
In its judgment of 8 April 2024, this Court found that Omaruru was in
peaceful and
undisturbed possession of the property when the
Respondents unlawfully, forcefully and without a court order ejected
it. This was
despite the fact that Omaruru did not hold a valid
license to be on the property save for an expired one, which it was
in the process
of renewing. In short, Omaruru satisfied the Court
that it was entitled to the remedy of spoliation notwithstanding that
it could
not prove legal entitlement to its occupation save for the
peaceful and undisturbed possession. In consequence, this Court
granted
final interdict against the Respondents until they can
legally evict Omaruru.
[3]
Following the granting of the remedy of spoliation to Omaruru on 8
April 2024, on
9 April 2024, the Respondents launched the leave to
appeal application. The application meant that the order of this
Court dated
8 April 2024 became automatically suspended by virtue of
the provisions of
Section 18(1).
It is the automatic suspension that
this current application seeks to achieve such that the order remains
executable. Its foundation
is that the leave to appeal has no merit
and that it has been noted merely to secure the suspension of the
order.
[4]
Central therefore to this matter is whether or not Omaruru has shown
that it has satisfied
the requirements of
Section 18(1)
and (3).
[5]
Section 18
is headed:
Suspension of
decision pending appeal.
Subsections
(1) and (3) thereof respectively provide as
follows:
(1)
Subject to subsections (2) and (3), and unless the Court under
exceptional circumstances orders
otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal,
is suspended pending the decision of
the application or appeal.
“
(2)
… … …
(3)
A Court may only order otherwise as contemplated in subsection (1) or
(2), if the party
who applied to the Court to order otherwise, in
addition proves on a balance of probabilities that he or she will
suffer irreparable
harm if the Court does not so order and that the
other party will not suffer irreparable harm if the Court so orders.”
[6]
The jurisdictional factors that Omaruru must establish to become
entitled to an order
suspending the effect of the leave to appeal
are:
6.1
Presence of exceptional circumstances;
6.2
Irreparable harm if the order is not granted; and
6.3
The Respondent will not suffer irreparable harm if the order is
granted.
[7]
Turning firstly to the existence of exceptional circumstances. It is
extraordinary
that the Respondents have been found to have spoliated
the property from Omaruru yet they want to continue occupying the
property
unlawfully. Countenancing the persistence of that state of
affairs will encourage disdain of the rule of law, which is so
respected
and cherished by this country. A finding that this is not
exceptional will be aberrant.
[8]
In the second place, Omaruru must show that it will suffer
irreparable harm if the
order is not granted. Omaruru’s
possession of the property is linked to the mining of gold. Its
displacement from the property
means that it has lost the opportunity
to mine the gold while the Respondents continue with their unlawful
possession and mining
activities on the property utilizing
infrastructure of Omaruru. The irreparable harm is evident –
loss of mining of gold,
depletion of the gold by the Respondents who
are conducting illegal mining activities and unauthorised use of
infrastructure. It
needs to be underscored that Omaruru’s
possession of the expired mining license and the current application
to renew it are
irrelevant considerations.
[9]
The next issue that Omaruru must show to succeed is that the
Respondents will not
suffer irreparable harm if the order is granted.
Irreparable harm cannot occur to the Respondents in circumstances
where their
possession is illegal and, in addition, are conducting
illegal mining. To allow a perpetuation of the current situation
would constitute
endorsement of their illegal activities, which is
inimical to the remedy of spoliation. Thus, the continued spoliation
coupled
with illegal mining activities on the property conducted by
the Respondents accentuated the need to attend to this matter on
urgent
basis.
[10]
In the result, the application succeeds and I make the following
order:
1.
This
application is heard as one of urgency
in terms of
Rule 6(12)
, the requirements of the Rules of Court in
respect of the notice and service are dispensed with and the
departure of Omaruru therefrom
is condoned;
2.
The suspension of the court order granted by this Court on 08
April
2024, under the above case number brought about as a result of the
pending application for leave to appeal, is uplifted in
terms of
Section 18(1)
read with 18(3) of the
Superior Courts Act, 10 of 2013
;
3.
The order is effected and/or implemented and/or executed with
immediate effect;
4.
The First and Second Respondents are jointly and severally liable,
the one paying the other to be absolved, for the costs of the
Applicant.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
APPEARANCES:
Counsel
for the Applicant:
Adv
J Scallan
Instructed
by:
MC
Incorporated Attorneys
Counsel
for the Respondent:
Adv
A Milazi
Instructed
by:
Milazi
AA Incorporated
Date
of Judgment:
22
April 2024