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2024
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[2024] ZANCHC 103
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Tau Mining Contractors (Pty) Ltd v Aveng Moolmans (Pty) Ltd and Another (2671/2024) [2024] ZANCHC 103 (1 November 2024)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 2671/2024
Reportable:
YES/NO
Circulate
to Judges:
YES/NO
Circulate
to Magistrates:
YES/NO
Circulate
to Regional Magistrates:
YES/NO
In
the matter
between:
TAU
MINING CONTRACTORS (PTY) LTD
Applicant
and
AVENG
MOOLMANS (PTY) LTD
1
st
Respondent
BLACK
MOUNTAIN MINING (PTY) LTD
2
nd
Respondent
Coram: Lever J
JUDGMENT
Lever
J
1.
This is an application for a
mandament van spolie
brought on
an urgent basis before this court. The matter was initially set down
in the motion court of the 11 October 2024. Due
to a combination of
factors including the abridged notice periods imposed by the
applicants, on the 11 October 2024 the court was
confronted with a
record of affidavits and annexures of slightly more than 500 pages.
By the time this matter could be heard after
the motion court on the
11 October 2024 there had been no time for the court to even read
most of this record. All the answering
affidavits and their annexures
as well as the replying affidavit were filed on the morning of the 11
October 2024.
2.
In these circumstances, discussions were held with the parties and
between the parties themselves. After
such discussions all concerned
agreed that the matter would be postponed to the 24 October 2024. It
was further agreed that the
hearing on the 24 October 2024 would be a
virtual hearing. The right to argue the question of urgency based on
the papers as they
stood on the 11 October 2024 was expressly
reserved by the respondents. The question of the costs occasioned by
the appearance
and postponement of the matter on the 11 October 2024
was reserved.
3.
The applicant is a mining contractor, who in terms of a contract
carried out mining activities at the
Gamsberg Mine in the vicinity of
Aggeneys in the Northern Cape. The first respondent is also a mining
contractor, who also in terms
of a contract carried out mining
activities at the Gamsberg mine as well. The second respondent owns,
controls, administers and
operates the Gamsberg mine in accordance
with the applicable legislation as it holds the relevant mining
right. The applicant’s
contract to carry out mining activities
on the Gamsberg mine was with the second respondent. The first
respondent’s contract
to carry out mining activities at the
Gamsberg mine is also with the second respondent.
4.
It is common cause between the applicant and both respondents that
the applicant had a contract with
the second respondent to carry out
mining activities on the Gamsberg mine. It is common cause between
the applicant and second
respondent that the relevant contract for
mining services between applicant and second respondent has been
terminated although
the date and circumstances of such termination is
disputed.
5.
Applicant claims that it was in possession of an area of the mine
before it was despoiled of such possession,
it alleged by the first
respondent. It is common cause that this took place during the
night shift on the 29 September 2024.
It is also common cause that
this was on a Sunday night. First respondent denied despoiling the
applicant and claimed it was acting
in accordance with a lawful and
valid work instruction issued by the second respondent.
6.
Applicant defined this area of the mine over which it claimed to have
possession by means of an aerial
photograph with the area alleged to
be in its possession delineated within a red line. This photograph
was referred to in the founding
affidavit as annexure “FA4”
and the founding affidavit contended that applicant was in possession
of the area within
the red line delineated on annexure “FA4”
prior to the spoliation alleged on the 29 September 2024.
7.
Both applicant and second respondent agree that the contract that had
existed between them had been terminated
one way or the other at the
latest by the 4 October 2024. Although the actual date of termination
and the circumstances of such
termination remain in dispute. This
application was issued and prosecuted on the 8 October 2024.
8.
Although the details are in dispute, the papers reveal that there was
an ongoing dispute between applicant
and second respondent relating
to certain monetary claims asserted by the applicant. Applicant
claims both a debtor and creditor
lien as well as an enrichment lien
that it asserted by reason of its alleged possession of the portion
of the mine defined by the
applicant in annexure “FA4”.
9.
There are several issues raised in the papers in this matter that
need to be considered before a decision
in the matter can be reached.
Inter alia
, these include: is the matter urgent; has urgency
been established on the papers; did applicant have peaceful and
undisturbed possession
of the mining site, as defined above, in the
sense necessary in order to justify a
mandament van spolie
; is
the ‘mining site’ as defined by the applicant in the
founding affidavit sufficiently certain and accurately defined
in
order to enable this court to make an order should it find that
applicant had possession and that such possession should be
restored;
and should this court find that on the papers the applicant has
established the requirements of the
mandament van spolie
this
court should exercise its discretion and not return the parties to
the
status quo ante
.
10. Naturally, before
this court can consider and determine any of the other issues between
the parties, it must consider and determine
the question of urgency.
If the matter is found to be urgent then the court will consider all
the other issues between the parties.
If the court finds that the
matter is not urgent or that urgency has not been established on the
papers, for whatever reason, it
will have to consider what is the
appropriate process in the circumstances.
11. Access to the High
Court on an urgent basis is governed by the provisions of Rule
6(12)(a) and (b) of the Uniform Rules of Court
(the Rule/s). The
relevant portion of the said Rule reads as follows:
“
(12)(a)
In urgent applications the court or a judge may dispense with the
forms
and service provided for in these rules and may dispose of such
matter at such time and place and in such manner and in accordance
with such procedure (which shall as far as practicable be in terms of
these rules) as it deems fit.
(b)
In every affidavit filed in support of any application under
paragraph (a) of
this subrule, the applicant must set forth
explicitly the circumstances which is averred render the matter
urgent and the reasons
why the applicant claims that applicant could
not be afforded substantial redress at a hearing in due course.”
12. The applicant
contends that it has complied with this rule. The applicant,
inter
alia
, relies upon: certain health and safety considerations set
out in its founding affidavit; the fact that the value of the liens
it asserts diminishes if it does not reestablish its liens and the
defined mining area is mined to its detriment; as well as the
contention that by its very nature the
mandament van spolie
is
inherently urgent.
13. The first respondent
disputes this and contends: Firstly, the applicant delayed in
instituting this action; Secondly, the applicant
has not made out a
factually defensible case for urgency in its founding affidavit; and
finally in its founding affidavit applicant
has failed to justify the
abridged time frames imposed on the respondents.
14.
The second
respondent submits that the matter is not urgent for
inter
alia
the following reasons: The applicant failed to adhere to the
requirements of Rule 6(12) and in particular 6(12)(b); The applicant
failed to engage with the warning and the degrees of urgency set out
in the case of Luna Meubels Vervaardigers (Edms) Bpk
v Makin
(t/a Makins Furniture Manufacturers)
[1]
;
and that whilst a
mundament
van spolie
is intended to be a robust and speedy remedy by its very nature and
is ordinarily afforded some degree of urgency
[2]
,
this does not mean that the applicant can disregard the rules
[3]
.
15. The claims that the
matter was urgent due to the health and safety considerations put
forward by the applicant as a basis for
urgency have been debunked by
the respondents. Nothing further needs to be said on these
considerations.
16. After the alleged
spoliation which took place on the 29 September 2024, the applicant’s
attorney wrote a letter to the
first respondent which was copied to
the second respondent. This letter is dated the 3 October 2024. In
the said letter the applicant’s
attorney demanded that the
first respondent vacate the defined mining area by 5pm on the 4
October 2024. This letter of demand
was obviously an attempt to avoid
the necessity of litigating.
17. On the 4 October 2024
the second respondent replied to the letter of the 3 October 2024,
and it is clear from the second respondent’s
letter that
possession of the defined mining area would not be returned to the
applicant. Thereafter and on the 4 October 2024
the applicant
instructed its attorneys to launch the present application. The
present application was issued and served on the
8 October 2024.
18. The Gamsberg Mine,
where the relevant events unfolded, is situated in a remote part of
the Northern Cape, being several hundred
kilometres from the seat of
this court. The applicant’s attorneys are situated in Sandton
in the province of Gauteng. Even
with the convenience of modern
communications, the logistics in launching this application would
take some time. Also, regard must
be had to the attempt to avoid
litigation in the present case. In these circumstances I think the
application for the relief under
the
mandament van spolie
has
been launched within a reasonable time and it cannot be said that
there has been an undue delay in seeking such relief to the
extent
that the right to seek such relief has been lost.
19. The difficulty is
however, in launching this application on the 8 October 2024, the
applicant sought to have it heard on the
11 October 2024. In effect
this left each respondent with only one day or twenty-four hours to
file their respective answering
affidavits. I am made to understand
that the second respondent was afforded an extra period overnight to
file its answering affidavit.
20. This resulted in a
situation where the answering affidavits and replying affidavit were
filed on the morning of the day the
matter was to be heard. The
matter was set down to be heard at the end of the ordinary motion
court. Given the volume of the application
and that the court had no
opportunity to read the answering affidavits, consider the annexures
where relevant and read the replying
affidavit, in these
circumstances, the matter had to be postponed to the 24 October 2024.
21. The applicant made
very little effort to explain why it could not obtain substantial
redress in the ordinary course. The most
that appears from the
founding affidavit is that the value of the liens asserted by the
applicant would diminish if ore were to
be removed from the defined
mining area. This is very thin and untenable in several respects.
Firstly, the available evidence shows
that the area within the
defined area, possession of which is claimed by the applicant, was
being prepared for the mining of ore.
The evidence further shows that
such area was not yet ready for the mining of ore. Secondly, the
applicant did not disclose when
ore might be mined in the relevant
area of the mine. Finally, no meaningful attempt was made to show why
applicant would not obtain
redress in the ordinary course in these
circumstances.
22. The abridged time
periods imposed on both respondents and the court were unduly
oppressive to both respondents and the court
in the circumstances.
Further, no factual basis was laid for imposing that abridged time
line.
23. The question now
becomes what to do with the matter. In my view justice will not be
served by striking the matter off the roll
in the circumstances of
this case. The matter will simply be left hanging and all parties
concerned will simply suffer further
delay in reaching a resolution
of the actual issues between them. I have heard full argument on both
the urgency and the merits
of the
spoliation
application.
Given the nature of the
mundament van spolie,
that it is to
discourage persons from acting unlawfully and taking the law into
their own hands and encourage those persons to
seek relief within the
parameters of the law, there is a residual measure of urgency that
remains even though applicant has not
fulfilled the requirements of
rule 6(12)(b). In all these circumstances I believe I should exercise
my discretion and entertain
the merits of the
spoliation
application and return to the applicant’s failings on the
question of urgency when I consider the appropriate order of costs
to
be made in the circumstances.
24. Procedurally, a
spoliation
application is an application for final relief. It
is an application for final relief in the sense that if it is
granted, such
order can be appealed. Conceptually, it is an
application to restore the status
quo ante
for a short period
whilst the entity that took the law into its own hands is afforded an
opportunity to pursue and prosecute a
process for any relief the law
allows. Conversely, it also allows the person or entity who suffered
the unlawful deprivation of
its possession to prosecute an interdict
or any other legal relief that may be open to it should it feel so
inclined. It is clear
from this that the purpose of a
mandament
van spolie
is not to determine the underlying disputes or issues
between the parties. Its purpose is to purge unlawful conduct and set
the
scene for a lawful process between the parties concerned to take
the matter forward.
25. Insofar as the relief
claimed under the
mandament van spolie
is concerned, the main
point at issue between the parties is whether the applicant had
possession of the defined mining area in
the sense required to seek
such relief.
26. To complicate matters
the facts of the present case are not comparable to a situation where
a technician is called in to fix
an electrical outlet. Nor are the
facts of the present matter comparable to a ‘turnkey’
project where a builder is
handed a site and employed to construct a
building. On both extremes the answer to the question of whether the
person employed
to do the necessary work had possession of the
workplace in the sense required to claim relief under the
mandament
van spolie
would be simple.
27. The present case, on
its facts, falls somewhere between the two extremes described above.
28. It is well
established in our law that the possession required to claim relief
in terms of a
mandament van spolie
requires both a physical
element and a mental element.
29. Initially, the
applicant claims the requisite possession of the defined mining area
was conferred upon it under the provisions
of its contract with the
second respondent. Thereafter applicant, on its version, cancelled
the said contract, the intention with
which it retained possession of
the defined mining area was to assert and secure the two liens which
it claims. What this
means is that the applicant claims
physical possession of the relevant mining area under the provisions
of the said contract. Applicant’s
intention to possess the
relevant mining area also flowed from the contract. In other words,
to fulfil its obligations in terms
of the contract and secure for
itself the benefits that would flow to it by virtue of such contract.
Applicant contends that after
it cancelled the contract it retained
physical possession of the defined mining area but its intention to
possess changed to being
to secure the two liens that it asserts. If
these contentions are established this would establish the possession
required to claim
relief under the
mandament van spolie
.
30. Mr Schäfer for
the first respondent, referred the court to the work of Duard Kleyn
who in dealing with the physical control
necessary set out the
position as follows:
“
Thus
it is taught that possession was acquired
corpore
et animo;
it was imperative for both elements to be present. The measure of
physical control (corpus) required depended on the nature of
the
thing and the surrounding circumstances.”
[4]
31. The respondents deny
the contention that possession of the defined mining area was
conferred on the applicant by the said contract.
Mr La Grange SC, who
appeared for the second respondent submitted I would search in vain
to find such a provision in the relevant
contract. Mr La Grange
further submitted that the second respondent: controlled access to
the mine itself; controlled mining activities
on the mine; had
overall control of mining activities. The second respondent itself
maintained that it could direct any one of
the mining contractors to
do anything within the duties assigned to it on any part of the mine.
In their papers the second respondent
creates the impression that it
did this on a daily basis.
32. Mr Miltz SC, in
reply, referred me to annexure “A” to the contact and
more particularly to the scope of work that
is defined in the
contract. This document is annexed to the second respondent’s
answering affidavit as annexure “AA3”.
The relevant
portion of the relevant document reads as follows:
“
The
scope of work to be carried out by the Business-Partner pursuant to
the terms of this agreement includes but is not limited
to arranging
required resources of equipment, people, materials and accordingly
executing the excavation, loading and hauling of
material in the
given sequence from the mining benches the scope includes the
following activities:
·
Drilling and blasting, wherever deemed necessary by the Business –
Partner based
on the Mine Plan;
·
Excavation, loading, hauling and dumping the waste material in the
designated dumps;
·
Haulage of the Ore from the pit to the crusher and/or Designated
Stockpiles;
·
Construction of in-pit and ex-pit (HMV and LDV) roads, as per the
agreed battery limits;
maintenance of shared roads to be executed as
per SLA. The roads should be constructed as per agreed designed (sic)
which includes
construction and shaping of side and central berms;
·
Construction and Maintenance of all the access roads in and around
the pit periphery
that require (sic) to carry out installation,
operation of mining support activities such as (sic) installation of
communication
tower, installation of Geomos, placement of drill rigs
for geological-geotechnical Investigation etc;
·
Drains for roads and sump construction for water control during
mining;
·
Provision of adequate lighting required for the Business-Partners
mining activities;
·
Security of the Business-Partner’s labour, equipment, workshop
and offices as
deemed fit by the contractor for providing Mining
Services; Primary access control at the mine gate will be done by the
Principal;
·
Dust control by means of water for all in-pit and ex-pit roads
operated, used and maintained
by the Business-Partner including the
North Access Ramp & other shared roads (based on the SLA between
other parties/mining
contractors). It is required that the
contractor (sic) to provide the chemical mixed with water for
dust suppression to improve
dust suppression and
·
All other activities that are explicitly written or not, in pit bore
hole drilling,
installation of slope stability system and other work
by provi.ng (sic) space as per plan and prepare area as part of pit
activities.
The scope of work shall
comprise of mining overburden Waste and Ore by open pit mining
method. The activity will involve site preparation,
blast hole
drilling, blasting, excavation of Waste and Ore to dumps and
Designated Stockpile areas as designated in tender or in
the Mine
Plan.”
33. In the context the
Business-Partner referred to in this document must refer to the
applicant.
34. Mr Miltz submitted
that for the applicant to carry out the duties described in the scope
of work that the applicant of necessity
must have physical control
over such area of the mine. That such control need not be over the
whole area of the mine. That such
control of necessity meant that the
applicant possessed that area. As the applicant carried out these
duties defined in the ‘Scope
of Work’ within the area
defined in annexure “FA4” it had, of necessity,
possession of this area.
35. Further on in the
document that is annexed to the second respondents answering
affidavit as annexure “AA3”, one
finds item 6(b) a
clause which places further obligations on the applicant and which
reads as follows:
“
6 b)
Provide a site manager as required by the MHSACT governing the
operation of the Mine and in accordance to (sic)
any statutory
requirements deemed necessary by the law enforcers. Provide competent
personnel and ensure that all manager (sic)
and supervisors appointed
are conversant with MHSACT requirement (sic) and all other laws
governing the mining operation.”
36. For the applicant to
comply with the legislation governing Mine Health and Safety, it
would have to take responsibility for
occurrences where it carried
out its obligations in terms of the “Scope of Work”
referred to above. Of necessity this
implies that the applicant must
have control over such area. To control such area, the applicant
would have to physically possess
it.
37. Apart from access
control to the mine overall the evidence did not establish that the
second respondent changed the mining area
and areas of responsibility
of the various mining contractors on a daily basis. The evidence
established only that there was a
three-month rolling Mine Plan. Only
two instructions to contactors were placed in evidence. There was an
issue with the date of
at least one of these instructions.
Interpreting dates of these documents in the most favourable way to
the respondents such instructions
were at least several weeks apart.
Clearly, the second respondent did not give daily directions to the
mining contractors including
the applicant, on the area of the mine
upon which it was to carry out its duties in respect of the “Scope
of Work”.
38. Whilst Mr La Grange
is correct that there is no explicit provision in the contract that
specifically provides that the applicant
had possession of the area
of the mine where it carried out its duties under the “Scope of
Work,” I think Mr Miltz
is correct that this is of necessity
implied in the very nature of the work contemplated in the agreed
“Scope of Work.”
This is reinforced by the nature of the
responsibility imposed on the relevant appointed managers and
officials of the applicant
by the relevant legislation which forms
part of the agreement between the applicant and second respondent.
The relevant part of
the agreement is quoted above.
39. On the issues of the
“Scope of Work” and the responsibility of the applicant’s
on-site management under the
relevant mining legislation, the first
and second respondents did not set up a real or
bona fide
dispute of fact. In these circumstances I accept the contention of
the applicant that it was in physical possession of the mining
area
defined by annexure “FA4”.
40.
The facts
of this case are far removed from, and distinguishable from, the
facts Zulman J (as he then was) confronted in the case
of Shoprite
Checkers Ltd v Pangbourne Properties Ltd.
[5]
41. The evidence shows
that the intention with which the applicant possessed the defined
mining area at the time it was despoiled
was to assert the two liens
claimed by the applicant. This court is not able to find that there
is absolutely no possibility of
either lien being established by the
applicant even though there are several questions raised by the claim
for such liens on the
facts presently before this court. It is beyond
the scope of the issues placed before this court to determine the
claim to such
liens. In these circumstances the liens are irrelevant
to the relief claimed by the applicant. There is nothing to gainsay
the
applicant’s assertion that the intention with which it
possessed the relevant mining area at the time it was despoiled was
to assert the liens it claims.
42. In these
circumstances the applicant has established both the physical and
mental aspects of its claim to possess the defined
mining area for
the purposes of the
mandament van spolie
. It is further clear
from all the circumstances that the applicant did not voluntarily
part with possession of the defined mining
area. The applicant was
despoiled, and the facts show that it was progressively pushed off
the mine in its entirety.
43. The next issue to be
considered is the assertion by the respondents that the applicant has
not sufficiently defined the area
it wishes this court to return to
its possession. It is true that the applicant has not used
co-ordinates on a map to define the
area it claims possession of. It
is also true that the mine has a system of ‘blocks’ to
identify specific areas. In
response to this Mr Miltz submitted that
both respondents know what area is being referred to. In assessing
whether this is an
adequate response it must be borne in mind that
first respondent, before the instruction to mine on a portion of the
applicants
assigned mining area, mined an area contiguous to the area
mined by the applicant. In these circumstances the first respondent
knows precisely the area assigned to the applicant. It was indeed the
second respondent who assigned the relevant area to the applicant
to
carry out its mining duties. Neither applicant contested the area
designated in annexure “FA4” as not accurately
reflecting
the area mined by the applicant. The evidence adduced by both
respondents show that they are well aware of the area
involved. In
these circumstances both respondents will have to think long and hard
before disregarding any order this court might
make. In the
circumstances I believe the relevant area is sufficiently delineated
for this court to issue and enforce any order
it might give in
respect of the possession of such mining area.
44. The next issue raised
by the respondents is that if this court finds that the applicant has
established the requirements for
a spoliation order, this court
should exercise its discretion and not grant such relief.
45.
In
motivating this course of action, the respondents rely on the
decision of Van Den Heever J (as she then was) in the matter of
Parker v Mobil Oil of Southern Africa (Pty) Ltd
[6]
.
In that case the spoliatory relief was ancillary to an application
for specific performance of a contract. In that case the applicant
conceded that without the relief of specific performance the return
of the aircraft refuelling equipment involved would be of no
use to
him. In those circumstances she exercised her discretion and refused
the spoliatory relief.
46. The facts of the
present case are far removed from those in the Parker case. Both
respondents have made out a case that they
would suffer serious
hardship if the relief requested was granted.
47.
The
respondents also sought to rely on the decision of Olivier J in the
matter of Polonyfis v The Provincial Commissioner SAPS NC
and
Others
[7]
. The learned Judge
indicated that it was easy to foresee circumstances where the court
might exercise its discretion to refuse
spoliatory relief. These
comments are in my opinion Obiter and were not necessary to decide
the case that was before him at the
time.
48. This court is not
indifferent to the hardship claimed by the respondents, but the
mandament van spolie
in our law is a robust and speedy
process. It is meant to deter unlawful activities and promote the use
of lawful processes.
49. The hardship and
inconvenience that the respondents claim might assist them in the
lawful process that they might be advised
to follow, and it might
even provide a basis to move for such relief on an urgent basis.
Lawful process ought to have been followed
in the first instance.
Such lawful process remains open to the respondents. The
mandament
van spolie
in the broad and general sense always intended
subsequent lawful process be followed, otherwise the
status quo
would be maintained.
50. The last issue to
consider on the merits of the application is the issue of the return
of the applicant’s equipment. Mr
La Grange raised the issue of
the equipment and submitted that a case had not been made out
specifically regarding spoliatory relief
in respect of such equipment
that was removed from the defined mining area. In my view this was
part and parcel of despoiling the
applicant of the area defined by
annexure “FA4” and the equipment removed from such site
must be returned to such site
and thereby placed in the applicant’s
possession.
51. The final issue to be
considered is the question of costs. Here there are two sets of costs
to be considered. Firstly, the costs
of the appearance and
postponement on the 11 October 2024 which costs were reserved for
later decision. Secondly the cost of the
application on its merits.
52. I don’t think
it can be disputed that the applicant was responsible for the
situation that arose on the 11 October 2024
and the necessity to
postpone the matter. In these circumstances the applicant should pay
the costs of both of the respondents
for the appearance and the
postponement that occurred on the 11 October 2024. Having regard to
the importance of the matter to
the parties involved and the issues
involved I believe it was justified to employ two Counsel. Having
regard to the same factors
I believe it would be equitable for me to
order that such costs be taxed on scale “C”.
53. Turning to the costs
on the merits. In the ordinary course the applicant would have been
entitled to costs on the basis of the
ordinary rule that costs follow
the result. However, as pointed out earlier, applicant had not
properly established the need for,
and proportionality of the urgency
with which it prosecuted this application. In these circumstances, I
believe the ordinary rule
would not be appropriate. In the
circumstances I believe that it would be equitable to order that each
party bears its own costs
on the merits of the application.
Accordingly,
the following order is made:
1.
The respondents are ordered to forthwith restore to the applicant
full access to and possession of the
mining area, situated at [...]
P[...] Road, Aggeneys, Northern Cape, 8839 (as demarcated in red on
the aerial photograph, being
annexure “FA4” to the
founding affidavit)(“the mining area”) by:
1.1. fully vacating the
mining area, including the removal of all the first and second
respondent’s employees, equipment and
structures from the
mining area and restoring the applicant’s possession of the
mining area to the status as at 29 September
2024;
1.2. permitting the
applicant’s employees to have access to and possession of the
mining area on the same conditions
that prevailed on and before 29
September 2024; and
1.3. returning all of the
applicant’s equipment and other moveable property that was
removed by the first and/or second respondent
(or their appointed
agents) from the mining area (“the applicant’s moveable
assets”) by:
1.3.1.
pointing out to the applicant where the applicant’s moveable
assets are situated; and
1.3.2.
allowing the applicant to attend to taking all necessary steps to
return the applicant’s moveable
assets to the mining area.
2.
The applicant will pay the costs of the respondents’ appearance
on the 11 October 2024 as well
as the costs occasioned by the
postponement on that date. Such costs will include the costs of two
Counsel where two counsel were
actually engaged. The said costs will
be taxed on scale “C”.
3.
In respect of the costs on the merits of the application itself, each
party shall pay their own costs.
L
G Lever
Judge
Northern
Cape Division, Kimberley
Representation:
For
the Applicants:
Adv I Miltz (SC) & Adv C De Villiers-Golding (Argued the matter)
Instructed
by:
Duncan & Rothman Inc.
For
The Applicants:
Adv AJ Daniels (SC) & Adv C De Villiers-Golding (Prepared Heads
of Argument)
Instructed
by:
Duncan & Rothman Inc.
For
The 1
st
Respondents:
Adv LI Schafer Olivier
Instructed
by:
Van De Waal Inc.
For
The 2
nd
Respondents:
Adv WG La Grange (SC) & Adv DS Hodge
Instructed
by:
Van De Waal Inc.
Date
of Hearing:
24 October 2024
Date
of Judgment:
01 November 2024
[1]
1977 (4) SA 135 (W).
[2]
Mans v Mans
[1999] 3 All SA 506
(C) at para [9].
[3]
Mans case., above at para [9].
[4]
Duard Kleyn., “Possession” in Reinard Zimmermann and
Daniel Visser., Southern Cross: Civil Law and Common Law in
South
Africa (1996) at p. 823.
[5]
1994
(1) SA 616
(W).
[6]
1979
(4) SA 250 (NC).
[7]
[2008]
ZANCHC 46.