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2024
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[2024] ZANCHC 87
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Alexkor SOC Ltd v Vast Mineral Sands (Pty) Ltd and Others (CA+R26/2024; 1452/2023) [2024] ZANCHC 87 (10 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Appeal
Case No: CA+R26/2024
Court
a quo
Case No: 1452/2023
Reportable:
YES/NO
Circulate
to Judges:
YES/NO
Circulate
to Magistrates:
YES/NO
Circulate
to Regional Magistrates:
YES/NO
In
the matter between:
ALEXKOR
SOC
LTD
Appellant
(First Respondent
a
quo
)
And
VAST
MINERAL SANDS (PTY) LTD
First Respondent
(Applicant
a quo
)
RICHTERSVELD
MINING COMPANY
(PTY)
LTD
Second Respondent
RICHTERSVELD
SIDA IHUB
COMMUNAL
PROPERTY ASSOCIATION
Third Respondent
MINISTER
OF MINERALS AND ENERGY
Fourth
Respondent
Coram: Lever J, Nxumalo J
et Stanton J:
JUDGMENT
Lever
J:
1.
This is an
appeal that comes before us under the provisions of section 18(4)(ii)
of the Superior Courts Act
[1]
(the Act). The history of this matter shows that Alexkor together
with the second and third respondents listed above had entered
what
was referred to as the Pooling and Sharing Joint Venture (PSJV). The
PSJV holds the right to mine diamonds on a sizable tract
of land in
the Richtersveld. Vast Mineral Sands (referred to as “Vast”
in these proceedings) acquired a prospecting
right for certain
mineral sands on the same land mined for diamonds by the PSJV. The
said prospecting licence was issued under
the provisions of the
Mineral and Petroleum Resources Development Act
[2]
(“the MPRDA”).
2.
The said prospecting right was valid for an initial period of five
years. It appears that despite being
afforded an opportunity to do
so, none of the respondents objected to the prospecting licence being
issued. Initially Vast was
allowed onto the relevant land to go about
its prospecting as envisaged in the relevant prospecting licence.
This access was subsequently
stopped by Alexkor. After a process
envisaged by the MPRDA which did not resolve the issues between
Alexkor and Vast, Vast applied
for a final interdict on an urgent
basis from the High Court Northern Cape Division to allow it access
to the relevant land to
for the purpose of prospecting in terms of
the licence which it held. This application for the said interdict is
described as the
main application in these proceedings.
3.
Only Alexkor opposed the main application. In fact, throughout this
process the second and third respondents
have not been active
litigants in the sense that they have not supported Alexkor at any
stage of these proceedings, even though
they also hold an interest in
the PSJV. The fourth respondent has also not entered the fray.
4.
On the 15 September 2023 Mamosebo J granted a final interdict in the
following terms:
“
1.
The first respondent (including its employees, agents and
contractors) is directed and ordered
not to obstruct and/or interfere
and/or prevent in any manner, directly or indirectly, the applicant
from exercising its statutory
right of entry to the Remainder,
Portion 8 and Portion 9 of Farm 1 District Namaqualand as well as
farm 155 District Namaqualand
for prospecting purposes under or in
terms of its Registered Prospecting Right NC 11923 PR.
2.
The first, second and third respondents are directed and ordered to
provide the applicant free
and unrestricted access to the Remainder,
Portion 8 and Portion 9 of Farm 1 District Namaqualand as well as
farm 155 District Namaqualand
for prospecting purposes under or in
terms of its Registered Prospecting Right NC 11923 PR.
3.
The first respondent, Alexkor SOC Ltd, is ordered to pay the costs of
the application on a party
and party scale, such costs to include the
cost incumbent upon the employment of two counsel.”
5.
Alexkor sought leave to appeal the judgment and order in the main
application. Vast, in response to the
application for leave to
appeal, brought an application under the provisions of section 18(3)
of the Act to enforce the terms of
the Order handed down by Mamosebo
J on the 15 September 2023, notwithstanding the application for leave
to appeal or any pending
appeal.
6.
The application for leave to appeal and the application to enforce
the order in the main application
were heard simultaneously. On the
24 April 2024 Mamosebo J handed down a composite judgment in the said
applications and made an
Order in the following terms:
“
1.
The application for leave to appeal is dismissed with costs, such
costs to include those consequent
upon the employment of two counsel.
2.
It is declared that, in terms of
section 18(3)
of the
Superior Courts
Act, 10 of 2013
, the order granted by this Court on 15 September 2023
be put into immediate operation and effect notwithstanding any appeal
or
appeals.
3.
That the costs of the
section 18(3)
, which costs shall include the
costs of two counsel where so employed, be paid by Alexkor SOC Ltd.”
7.
Alexkor then sought leave to appeal from the Supreme Court of Appeal
as contemplated in
section 17(2)(b)
of the Act, to appeal the
judgment in the main application handed down on the 15 September
2023.
8.
Alexkor also sought to utilise its automatic right of appeal
contemplated in
section 18(4)(ii)
of the Act to appeal to the full
bench of this court to have orders 2 and 3, quoted above and handed
down on the 24 April 2024,
set aside. This is the appeal presently
before this court.
9.
There are a few issues relating to process before proceeding to
consider the applicable statutory provisions
and the law associated
therewith. Firstly, there was a notice contemplated by Rule 7 of the
Uniform Rules of Court (“the
Rule/s”) issued by Vast.
Alexkor filed a Rule 30 alternatively Rule 30A notice to set aside
the Rule 7 notice as an irregular
step. The day before the hearing of
this appeal, Vast filed a notice withdrawing the Rule 7 notice and
tendered costs on the unopposed
party and party scale. Mr Loxton SC
who appeared for Alexkor motivated for costs on the opposed scale.
Having considered the issues
relating to the Rule 7 and its
withdrawal, in my view it was such a minor matter and could not have
detained the parties for any
significant amount of time. It was also
withdrawn prior to the hearing, albeit the day before. In the
circumstances, I believe,
ordinary party and party costs on the
unopposed scale would be the appropriate costs order. Since these
costs have already been
tendered by the first respondent there is no
need to make an order in that regard.
10. The second issue
relating to process is that Vast filed a document titled
‘supplementary affidavit’ before the hearing
of this
appeal. The said affidavit tried to introduce two documents into
these proceedings. The first purporting to be authored
by an
Acting-Deputy Director: Water Use Authorisation from the Department
of Water and Sanitation. The second document was an Order
issued by
two Justices of the SCA dismissing the application for leave to
appeal in respect of the main application, brought under
the
provision of section 17(2)(b) of the Act. The said Order appears to
have been issued on the 30 July 2024. In terms of the said
Order, the
application for leave to appeal was dismissed on the basis that there
was no reasonable prospect of success and there
was no other
compelling reason why an appeal should be heard in the matter.
11. In response to this
‘supplementary affidavit’ and on behalf of Alexkor, Mr
Loxton filed a note in the form of Heads
of Argument. Mr Loxton in
substance objected to the letter ostensibly authored by the
Acting-Deputy Director: Water Use Authorisation
on two grounds.
Firstly, in the absence of a confirmatory affidavit from the author
of the said letter, it constituted hearsay
evidence. Secondly, from
the contents of the letter itself, it appeared that it was written in
response to an enquiry and that
such enquiry was not included in the
‘supplementary affidavit’. That the failure to include
the enquiry itself placed
Alexkor at an unfair disadvantage in
dealing with such letter.
12. Mr Loxton conceded
that the Order of the two SCA Justices was a public document and that
Alexkor did not object to it being
placed before the court but did
not consent to the admission of the ‘supplementary affidavit’.
13. Mr Oosthuizen SC who
appeared for Vast conceded that in the said circumstances such letter
was hearsay and further conceded
that the enquiry to which the said
letter was a response ought to have been included in the
‘supplementary affidavit’.
Mr Oosthuizen also accepted
that the Order of the SCA dismissing the application for leave to
appeal could, as a public document,
simply be placed before this
court.
14. Both Alexkor and Vast
accepted that the said SCA Order was in fact before this court. In
these circumstances the ‘supplementary
affidavit’ is not
admitted to the record.
15. In his note, Mr
Loxton, informed this court that Alexkor had referred its application
for leave to appeal to the President of
the SCA to exercise their
discretion to reconsider the dismissal of the application for leave
to appeal under the provisions of
section 17(2)(f) of the Act.
16. In his response, Mr
Oosthuizen conceded that the section 17(2)(f) referral was made
within the prescribed time and that such
application did engage the
discretion of the President of the SCA as contemplated in section
17(2)(f) to reconsider the refusal
of the application for leave to
appeal the main application.
17. In the circumstances
it is accepted that the SCA has refused the initial application for
leave to appeal brought under section
17(2)(b) and that the matter
has been referred for reconsideration by the President of the SCA as
contemplated under section 17(2)(f)
of the Act.
18. The centre –
piece of the argument put forward by Mr Loxton on behalf of Alexkor
has nothing to do with a direct application
of the provisions of
section 18 of the Act. In the circumstances, it is convenient to deal
with this argument first. Mr Loxton
submitted that Vast had a
prospecting licence but that such prospecting licence was subject to
its Environmental Authorisation
(“EA”). That the EA Site
Specific Conditions
inter alia
provided: “3.
An Integrated Water Use Licence (IWUL) must be obtained from
the
Department of Water and Sanitation (DWS) prior (sic) commencement of
activity”
19. Mr Loxton submitted
that it was common cause that Vast did not have an IWUL. That
possession of an IWUL was a necessary precondition
to commencing any
prospecting activity. Indeed, Vast does not claim to have an IWUL.
20. Mr Loxton submits
that the EA Site Specific Condition contained in condition 3, quoted
above, is clear and unambiguous despite
the obvious grammatical
deficiency as is evident from the quote above. Further, that this
granting of the EA subject to the said
condition constitutes an
administrative act that stands until it is set aside. That for this
court to allow prospecting activities
to take place in these
circumstances would be to countenance an illegal act. Mr Loxton
referred to this argument as the ‘Oudekraal
argument’ as
it invoked the law set out in the case of Oudekraal.
21. Mr Oosthuizen argued
on behalf of Vast that the said EA Site Specific Condition had to be
interpreted in the context of the
relevant water use legislation.
That the relevant water use legislation only required an IWUL when
one of the listed water use
activities was required for such
prospecting. That the prospecting activities of Vast did not and
would not trigger a requirement
for an IWUL. Therefore, Mr Oosthuizen
submitted that an IWUL was not required for Vast to exercise its
right to prospect under
the relevant licence.
22. These arguments were
before the Court
a quo
in the main application and subsequent
application for leave to appeal. Accordingly, these questions were
pertinently before the
two Justices of the SCA when they dismissed
Alexkor’s section 17(2)(b) application for leave to appeal on
the basis that
there was no reasonable prospect of success in an
appeal and that there is no other compelling reason why an appeal
should be heard.
23. In the process that
is before this court under section 18(1) as read with section 18(3)
of the Act, as I understand it, it is
not the role of this court to
allow what would be an additional layer of appeal for a
reconsideration of the merits in the main
application and the
application for leave to appeal. In short, and in other words it is
not our role to reconsider the merits of
the main application or the
application for leave to appeal. The Act provides other avenues for
that. Furthermore, Alexkor has
now invoked the provisions of section
17(2)(f) and has requested the President of the SCA to use their
discretion to refer the
matter to the court for reconsideration. This
argument put forward by Alexkor and the counterargument presented by
Vast forms the
basis upon which the President of the SCA must
exercise such discretion.
24. In these
circumstances it would be inappropriate for this court to pre-empt
the President of the SCA from exercising such discretion.
In my view
this court should confine itself to the appeal brought before it
under the provisions of section 18(4)(ii) of the Act.
Accordingly,
this appeal is confined to whether a proper case has been made out
under the provisions of section 18(1) read with
section 18(3) of the
Act for an order to enforce the judgment of the court
a quo
in
the main application.
25. In direct language
Alexkor’s ‘Oudekraal’ argument cannot be considered
or sustained in the circumstances.
26. Turning
now to the law relating to section18 of the Act.
27.
Rule 49(11)
which previously regulated the enforcement of judgments during the
appeal process has been repealed
[3]
.
The common law relating to enforcement of a judgment despite a
pending appeal has been replaced by section 18 of the Act. The
differences between the process set out in section 18 and the common
law will be highlighted in due course. Section 18 of the Act
reads as
follows:
“
18(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, 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.
(4)
If a court orders otherwise, as contemplated in subsection
(1)-
(i)
the court must immediately record its reasons for doing so;
(ii)
the aggrieved party has an automatic right of appeal to the next
highest court;
(iii)
the court hearing such appeal must deal with it as a matter of
extreme urgency; and
(iv)
such order will be automatically suspended, pending the outcome of
such appeal.
(5)
…”
28.
The
position under the common law has been authoritatively set out by
Corbett JA (as he then was) in the matter of South Cape Corporation
(Pty) Ltd v Engineering Management Services (Pty) Ltd
[4]
(“the South Cape case”). The intention behind the common
law rule was to prevent irreparable harm to the party seeking
to
exercise its right to appeal
[5]
.
29.
It is
apparent from the wording of section 18 of the Act that prevention of
irreparable harm to the party seeking to exercise their
right of
appeal is still the primary consideration. However, when one examines
the differences between the common law rule and
the requirements of
section 18(1) as read with section 18(3) of the Act, the current
position under section 18 is more onerous
on the party seeking to
enforce the relevant order pending the completion of the appeal
process than it was under the common law.
[6]
30.
The
position under the common law before section 18 of the Act came to
regulate the position when an order is put into effect whilst
an
appeal process was still pending gave the relevant High Court a broad
general discretion as to whether to grant relief or not.
This is no
longer the case
[7]
.
31.
Again,
under the common law, where there was potential for irreparable harm
to both parties should the order be put into effect
before the appeal
process was finalised, the court would weigh up the balance of
hardship as one of the factors to be considered
in making the
decision relating to the enforcement of the order pending the
finalisation of the appeal.
[8]
This balance of hardship is no longer a consideration under the
provisions of section 18 of the Act. This is evident from section
18
itself.
32.
The
prospects of success in the contemplated appeal process is not
mentioned anywhere in the wording of section 18 of the Act. However,
the SCA has determined that the prospects of success still plays a
role
[9]
.
33. Turning now to the
requirements to be established under the provisions of section 18 of
the Act for an order that that execution
of an order may be put into
effect pending the finalisation of the appeal process.
34. It is evident from
the provisions of section 18(1) that a person who seeks to put a
judgment and order into effect before the
finalisation of the appeal
process must establish ‘exceptional circumstances’ to
depart from the norm of an appeal
process suspending the operation of
such order pending the finalisation of the appeal. Reading section
18(1) together with section
18(3) the onus of establishing such
‘exceptional circumstances’ would fall on the applicant.
35. In
addition to establishing ‘exceptional circumstances’ the
applicant must, under the provisions of
section 18(3), establish on a
balance of probabilities that it would suffer irreparable harm if the
order being the subject of
an appeal is not put into effect and that
the opposing party (the appellant) will not suffer irreparable harm
if such order is
put into effect.
36. What is required by
section 18 has been succinctly set out by Sutherland J (as he then
was) in the case of Incubeta Holdings
(Pty) Ltd and Another v Ellis
and Another, and I quote the relevant passages:
“
[16]
It seems to me that there is indeed a new dimension introduced to the
test by the provisions of s 18. The test
is twofold. The requirements
are:
·
First, whether or not ‘exceptional circumstances’ exist;
and
·
Second, proof on a balance of probabilities by the applicant of –
o the
presence of irreparable harm to the applicant/victor, who wants to
put into operation and execute the order; and
o the absence
of irreparable harm to the respondent/loser, who seeks leave to
appeal.
[17]
What constitutes ‘exceptional circumstances’ has been
addressed by Thring J in
MV Ais Mamas Seatrans Maritime v Owners,
MV Ais Mamas, and Another
2002 (6) SA 150
(C), where a summation
of the meaning of the phrase is given as follows at 156I-157C:
‘
What
does emerge from an examination of the authorities, however, seems to
me to be the following:
1.
What is ordinarily contemplated by the words “exceptional
circumstances” is something out
of the ordinary and of an
unusual nature; something which is excepted in the sense that the
general rule does not apply to it;
something uncommon, rare or
different; “besonder”, “seldsaam”,
“uitsonderlik”, or “in
ʼn hoë mate
ongewoon”.
2.
To be exceptional the circumstances concerned must arise out of,
or be incidental to, the particular case.
3.
Whether or not exceptional circumstances exist is not a decision
which depends upon the exercise of a
judicial discretion: their
existence or otherwise is a matter of fact which the Court must
decide accordingly.
4.
Depending upon the context in which it is used, the word
“exceptional” has two shades of
meaning: the primary
meaning is unusual or different; the secondary meaning is markedly
unusual or specially different.
5.
Where, in a statute, it is directed that a fixed rule shall be
departed from only under exceptional circumstances,
effect will,
generally speaking, best be given to the intention of the Legislature
by applying a strict rather than a liberal meaning
to the phrase, and
by carefully examining any circumstances relied on as allegedly being
exceptional.’
[18]
Significantly, although it is accepted in that judgment that what
is cognisable as ‘exceptional circumstances’ may be
indefinable and difficult to articulate, the conclusion that such
circumstances exist in a given case is not a product of a discretion,
but a finding of fact.
[19]
The survey of authorities addressed by Thring J included a broad
range of circumstances, and his summation
or compendium appears to be
of universal application.
Nevertheless, it seems to me, to be
necessary to express caution about importing from one kind of enquiry
into another kind of enquiry
an
understanding
of
a familiar phrase.
It is important to appreciate that Thring J
was not addressing the phrase in
s 18
of the
Superior Courts Act but
in the provisions of section 5(a)(iv) of the Admiralty Regulation Act
105 of 1983, which confers a power on a competent court to
direct an
examination of various things in order to procure evidence.
[20]
A
given phrase in any statutory provision has a function specific to
that provision and to that specific statute and that the primary
aim
of the interpreter is to discover the function it performs in that
specific context. It may perform a different function in
another
statute and one must avoid being seduced by beguiling similarities.
[21]
The context relevant to
section 18
of the
Superior Courts Act is
the set of considerations pertinent to a threshold test to deviate
from a default position, ie the appeal stays the operation and
execution of the order.
The realm is that of procedural laws
whose policy objectives are to prevent avoidable harm to litigants.
The primary rationale for the default position is that finality must
await the last court’s decision in case the last court
decides
differently – the reasonable prospect of such an outcome being
an essential ingredient of the decision to grant leave
in the first
place. Where the pending happening is the application for leave
itself, the potential outcome in that proceeding,
although
conceptually distinct from the position after leave is granted, ought
for policy reasons to rest on the same footing.
[22]
Necessarily, in my view, exceptionality must be fact-specific. The
circumstances which are or may be ‘exceptional’
must be
derived from the actual predicaments in which the given litigants
find themselves. I am not of the view that one can be
sure that any
true novelty has been invented by
s 18
by the use of the phrase. …
[23] …
[24] …
The proper meaning of that subsection is that if the loser, who seeks
leave to appeal, will suffer
irreparable harm, the order must remain
stayed, even if the stay will cause the victor irreparable harm too.
In addition, if the
loser will not suffer irreparable harm, the
victor must nonetheless show irreparable harm to itself. A hierarchy
of entitlement
has been created, absent from the
South
Cape case
test. …”
[10]
(the emphasis is mine)
37.
The SCA in
the matter of Tyte Security Services CC v Western Cape Provincial
Government & Others
[11]
took a more nuanced and less formalistic approach to the application
of
section 18(1)
as read with
section 18(3)
of the Act. In the Tyte
case it was submitted before the SCA that each of the three
requirements set out in
section 18(1)
and (3) were distinct, separate
and self-standing. The response to this argument is important.
38. To some extent the
approach taken by the SCA in Tyte’s case is a counter point to
the approach taken in Incubeta’s
case and some of the other
authorities quoted above. In these circumstances it is necessary to
quote substantively from the Tyte
case to understand what is required
in the application of
section 18(1)
and (3).
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39. The relevant passages
responding to the argument that the three requirements that need to
be established under the provisions
of
section 18(1)
and (3) are
distinct, separate and self-standing by the SCA in the Tyte case read
as follows:
“
[10]
Whilst there are indeed statements in those judgments that would
appear to support counsel’s fundamental
hypothesis, they seem
to have been made in passing. They thus call for closer examination
in this matter. An important point of
departure, so it seems to me,
is that consideration of each of the so-called three requirements is
not a hermetically sealed enquiry
and can hardly be approached in a
compartmentalised fashion.
[11]
It is important to recognise that the existence of ‘exceptional
circumstances is a necessary prerequisite
for the exercise of the
court’s discretion under
s 18.
If the circumstances are not
truly exceptional then that is the end of the matter. The application
must fail and falls to be dismissed.
If, however, exceptional
circumstances are found to be present, it would not follow, without
more that the application must succeed.
…
[12] …
[13]
What constitutes irreparable harm is always dependant upon the
factual situation in which the dispute arises, and
upon the legal
principles that govern the rights and obligations of the parties in
the context of that dispute. It was accepted
in
Knoop
that:
‘the need to establish exceptional circumstances is likely
to be closely linked to the applicant establishing that they will
suffer irreparable harm if the … order is not implemented
immediately.’
The same, I daresay, can be said of its
counterpart, the absence of irreparable harm to the respondent. In
that sense, the presence
or absence of irreparable harm, as the case
may be, can hardly be entirely divorced from the exceptional
circumstances enquiry.
It would perhaps be logically incoherent for a
court to conclude, on the one hand, in favour of an applicant that
exceptional circumstances
subsist, but, on the other, against an
applicant on either leg of the irreparable harm enquiry.
[14]
The argument, as I have it, is that as the language of
s 18(3)
is
clear – it is for an applicant, in addition to exceptional
circumstances, to prove on a balance of probabilities that
it would
suffer irreparable harm and conversely the other party would not. A
court is thus required to undertake what would be
in the nature of a
tick-box exercise by enquiring into and satisfying itself as to the
first,
then the
second
and finally the
third
,
in that order. Unless each box is successfully ticked, the applicant
must fail. Here, so the argument proceeds, the high court
failed to
undertake such an exercise; had it done so, it could not permissibly
have ticked the third box, consequently, the
s 18
application should
have failed. Even accepting that the legislature has employed the
words ‘in addition [to exceptional circumstances]
proves on a
balance of probabilities’ in
s 18(3)
,
it
would be passing strange that if an applicant comes short in respect
of either the
second
or
third
requirements it would nonetheless still be able to successfully meet
the exceptional circumstances threshold
.
The use of the words ‘in addition proves’ in
s 18(3)
ought not to be construed as necessarily enjoining a court to
undertake a further or additional enquiry. The overarching enquiry
is
whether or not exceptional circumstances subsist.
To
that end, the presence or absence of irreparable harm, as the case
may be, may well be subsumed under the overarching exceptional
circumstances enquiry. As long as a court is alive to the duty cast
upon it by the legislature to enquire into, and satisfy itself
in
respect of exceptional circumstances, as also irreparable harm, it
does not have to do so in a formulaic or hierarchical fashion
.”
[12]
(references omitted and the emphasis is mine)
40. In Tyte’s case,
as can be seen from the passages quoted above, the SCA recognises the
fact that in most cases the irreparable
harm would be subsumed into
the ‘exceptional circumstances’. In those circumstances
one would have to rely on the same
facts and circumstances to
establish both requirements.
41. I have dealt with
Tyte’s case to the extent that it has a direct bearing on the
present appeal before this court. Any
litigant who seeks relief under
the provisions of
section 18(1)
and (3) where the questions of any
discretion a court might have in granting or refusing relief in terms
of the said subsections
or where the question of whether and in what
circumstances the harm suffered by the relevant parties can be
weighed against each
other, would be well advised to study the
judgment of the SCA in Tyte’s case. In fact, Tyte’s case
shows that the SCA
has departed from the position set out in
paragraph [24] of the Incubeta judgment. The relevant passage of the
Incubeta judgment
has been quoted above.
42. Turning now to
applying the law to the facts of this case. Vast in their
section
18(3)
application made out the case that their prospecting right was
for a limited period. Initially for five years and a possible
extension
was in the offing at the time they deposed to their
founding affidavit in the
section 18(3)
application. Only one
extension is possible and such extension would only be for a period
of three years. Subsequent to the deposing
of the founding affidavit
a three-year extension to the relevant prospecting right was granted.
The extended prospecting right
will come to an end in January 2026.
All of this is common cause between Vast and Alexkor.
43. Vast was afforded
access to the relevant land during this initial prospecting permit
for a period of approximately ten months.
Then Alexkor barred Vast
from accessing the relevant land and to date Vast has not been able
to exercise its right to prospect
either in the initial period or the
extended period of the prospecting right. This is also common cause.
44. Alexkor contends that
due process was not followed by Vast in obtaining its prospecting
right. This is disputed by Vast.
45. There was
correspondence between Vast and Alexkor to try and resolve the issues
between them. Vast implemented a process under
the MPRDA to try and
resolve the issues that Alexkor raised. This ultimately resulted in
the application for a final interdict
which is described as the main
application herein.
46. In the
section 18(3)
application Vast contends that exceptional circumstances exist due to
the fact that in the now eight year right that has been awarded
to it
ultimately, it has only been able to do approximately ten months
prospecting work. This Vast submits is not sufficient to
fulfil two
important requirements. The first being the need to satisfy the
relevant Department of State that administers the mineral
resources
that a mining right should ultimately be issued to Vast. Secondly,
that sufficient data is required from the prospecting
work to enable
Vast to attract investors to raise the finance required to exploit
the mineral sands resource.
47. In its answering
affidavit Alexkor raises a variation of the ‘Oudedekraal’
argument and then satisfies itself with
a blanket denial of the rest.
48. Vast submits that
there are only some 15 months left in its extended prospecting right.
This is already a very short time to
accomplish the two goals
referred to above. If this short period were to be eaten up by
further appeal processes, they would suffer
irreparable harm.
49. Vast further
submits that that depending on the outcomes at the various stages of
appeal open to Alexkor the remaining
period of its prospecting right
could conceivably be consumed. That if the President of the SCA
exercises their discretion in favour
of Alexkor in the
section
17(2)(f)
application and allows an appeal to the SCA it would eat up
the remaining period of Vast’s prospecting right. If the SCA
refers the matter to the full bench of this Division a similar result
would follow. Mr Oosthuizen on behalf of Vast pointed out
that if the
section 17(2)(f)
application fails that Alexkor might attempt to
petition the Constitutional Court.
50. Vast also contends
that its prospecting right cannot be further renewed. This fact
cannot be disputed by Alexkor.
51. Vast contends that if
the order is put into effect that Alexkor will not suffer any
irreparable harm.
52. Alexkor contends that
it will suffer irreparable harm if the order in the main application
is put into effect in that there
is no agreement between it and Vast
on the statutory health and safety requirements. Alexkor contends
that in those circumstances
if a fatal or serious accident occurs it
will suffer irreparable harm and that its mining right could
potentially be put at risk
in those circumstances.
53. Vast responds to the
alleged potential irreparable harm to Alexkor by pointing out that
during the ten months it did indeed
prospect on the relevant property
it followed Alexkor’s health and safety protocol with no
incidents. This was not denied
by Alexkor. Vast also points out that
in various correspondence it tried to negotiate an agreed health and
safety protocol. All
efforts to do so were either ignored or rebuffed
by Alexkor. Vast has tendered to abide by Alexkor’s existing
health and
safety protocol. Vast has also tendered to comply with
Alexkor’s security requirements and respect the PSJV’s
mineral
rights.
54. In oral argument Mr
Loxton submitted that there is nothing out of the ordinary in a
prospecting right being of limited duration
and submitted that this
could not form part of the ‘exceptional circumstances’.
In the context of what is set out above,
in my view this is nothing
more than a facile argument and it is not deserving of any further
consideration.
55. Mr Loxton adopted the
formalistic approach of first proving ‘exceptional
circumstances’, then considering the alleged
irreparable harm
to Vast and then the potential irreparable harm to Alexkor as if they
were in hermetically sealed silos and not
related to each other. Mr
Loxton further submitted that additional facts or circumstances would
require to be alleged and proved
to establish irreparable harm to
Vast. That Vast could not rely on the same facts as used to establish
exceptional circumstances.
As can be seen from the passages quoted
from the SCA judgment in the Tyte case, this approach has well and
truly been put to bed.
56. Mr Loxton also
submitted that Vast had not supplied details of its work program to
show that it would indeed suffer irreparable
harm. In my view and
given the circumstances Vast has supplied sufficient detail to
establish its irreparable harm.
57. In my view the
irreparable harm is self-evident from the facts and circumstances set
out by Vast.
58. The argument put
forward by Alexkor in relation to its irreparable harm is contrived
given the fact that Vast prospected on
the property for some ten
months adhering to Alexkor’s health and safety protocol without
incident and that it has again
tendered to do so.
59. Accordingly, the
appeal brought by Alexkor under the provisions of
section 18(4)(ii)
stands to be dismissed.
60. The remaining issue
is the issue of costs. No reason has been placed before this court as
to why costs should not follow the
result. The next question is on
what scale should the costs be awarded. The matter is clearly
important to both parties. Both parties
engaged both senior and
junior counsel which was appropriate in all of the circumstances. In
my view the appropriate scale that
fees should be awarded is on scale
“C”.
Accordingly,
the following order is made:
1.
The appeal is dismissed.
2.
The appellant, Alexkor, is to pay the party and party costs involved
on scale “C”. Such costs
to include the costs of
employing two counsel where two counsel were actually engaged.
LG
Lever
Judge-Northern
Cape Division,
Kimberley
I
agree,
APS
Nxumalo
Judge-Northern
Cape Division,
Kimberley
I
agree,
A
Stanton
Judge-Northern
Cape Division,
Kimberley
Representation:
For
the Appellants:
Adv
CDA Loxton (SC) & Adv TV Mabuda
Instructed
by:
Engelsman
Magabane Inc.
For
the Respondents:
Adv
MM Oosthuizen (SC) & Adv Erasmus
Instructed
by:
Van
De Wall Inc.
Date
of Hearing:
29
August 2024
Date
of Judgment:
10
September 2024
[1]
Act 10 of 2013.
[2]
Act 28 of 2002.
[3]
Repealed on 22 May 2015.
[4]
1977 (3) SA 534
(A) at 544H to 545H.
[5]
South Cape case., above., at 545B.
[6]
UFS v Afriforum
2018 (3) SA 428
(SCA) at paras [9] to [11].
[7]
Ntlemeza v Helen Suzman Foundation 2017 (5) SA 402 (SCA) at
para [20].
[8]
South Cape case., above at footnote 4., at p 545G.
[9]
UFS v Afriforum case., above footnote 6., at paras [14] and [15].
[10]
Incubeta Holdings v Ellis and Another
2014 (3) SA 189
(GJ) at p 194C
to 196B.
[11]
2024 JDR 2306 (SCA).
[12]
Tyte case., above at footnote 12., paras [10] to [14].