IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CIRCUIT LOCAL DIVISION, THEMBALETHU)
CASE NO: 866/2023
In the matter between
COMPREGEN (PTY) LTD APPLICANT
AND
LEZMIN 2021 (PTY) LTD 1st RESPONDENT
GEORGE LOCAL MUNICIPALITY 2nd RESPONDENT
THE MINISTER OF MINERALS AND RESOURCES 3rd RESPONDENT
THE MINISTER OF FORESTRY, FISHERIES AND 4th RESPONDENT
ENVIRONMENT
THE MINISTER OF WATER AND SANITATION 5th RESPODENT
THE MINISTER OF LOCAL GOVERNMENT, 6th RESPONDENT
ENVIRONMENTAL AFFAIRS AND DEVELOPMENT
PLANNING,
THE MEC, DEPARTMENT OF LOCAL GOVERNMENT, 7th RESPONDENT
ENVIRONMENTAL AFFAIRS AND DEVELOPMENT
PLANNING, WESTERN CAPE
Date of Hearing: 12 June 2024
Date of Judgment: 27 September 2024 (to be delivered via email to the
respective counsel)
___________________________________________________________________
JUDGMENT
___________________________________________________________________
THULARE J
[1] This is an opposed application where the applicant sought to declare mining
activities conducted by the first respondent (Lezmin) unlawful and to prohibit Lezmin
from con ducting the mining activities conducted on Portions 8 and 48 of the Farm
Kraaibosch No. 195 (the properties) until the properties are specifically zoned for
mining and until Lezmin obtained the necessary water use authorization to conduct
mining activities on the properties. The applicant further sought that Lezmin be
prohibited from commencing with expansion of its mining activities on the properties
under phase 4 and 5 thereof or to continue with its mining operations on the
properties until and unless au thorization had been granted to it to do so in terms of
Western Cape Land Use Planning Act No. 3 of 2014 (LUPA) and the Land Use
Planning By-Law for the George Municipality (2015) (LUPB) and until and unless a
lawful water use licence has been granted to i t in terms of the National Water Act 36
of 1998 (NWA) and that pending the outcome of the appeal and review proceedings
under reference number WC 30/5/1/2/2/10114 NR Lezmin may not commence or
continue with the expansion of its mining activities under phas es 4 and 5 of its
mining operations on the properties.
[2] No relief was sought against the second to seventh respondents save in the
event of opposition. They were cited as competent authorities in terms of statutory
provisions which they regulated and controlled and in so far as they may have an
interest in the alleged illegal conduct. At the hearing of the application, Lezmin
sought leave to file a further affidavit and that certain passages from the applicant’s
replying affidavit be struck out on the basis that they constituted impermissible new
matter in reply. Lezmin also raised issue with applicant’s impermissible reliance on
hearsay evidence and applied to strike out all such matter from the founding affidavit.
Lezmin raised two threshold defences to the application. First, the existence of
material disputes of fact which rendered application proceedings inappropriate and
precluded the applicant from obtaining the relief it sought. The disputes were in so
far as Lezmin’s use of the relevant propert ies where it conducted mining activities,
and its water use on the properties. Secondly, the applicant’s standing to seek the
relief it did pursuant the alleged contraventions of the NWA and related legislation.
Lezmin also applied to strike out numerous p assages in the applicant’s founding
papers.
[3] Lezmin conducted open case mining activities at a gr anite quarry on the
remainder of portion 8 of the farm Kraaibosch measuring 40,9457 hectares and
portion 48 of the farm Sandkraal which was a portion of portion 13, measuring 105,
7317 of the farms Kraaibosch No 195 in George, Western Cape. The applicant’s
case was that during 1981 the initial mining right was lawfully obtained by way of a
consent use granted by the then Divisional Council of the Municipality to mine on 0.8
hectares of the properties. Since then, the mining activities had been unlawfully
extended to more than 20 hectares. No land use application to extend the mining
area were submitted to the Municipality. The area currently being mined extended
beyond the consent use which was granted. Lezmin’s mining activities on the
properties could not take place until the properties had been specifically zoned for
mining and a zoning determination was done under Special Planning and Land Use
Management Act 16 of 2013 (SPLUMA) read with LUPA and LUPB. As the properties
were not properly zoned and/or the zoning had not been determined, Lezmin did not
have the necessary water use authorization as envisaged in the NWA to conduct
lawful mining activities on the properties. According to the applicant, Lezmin did not
have (1) authorization to use water as envis aged in schedule 1 of the NWA, (2) the
General Authorisation (the GA) to use water without a licence as envisaged in
section 39 of the NWA, (3) an Existing Lawful Water Use (ELU) and a (4) Water Use
Licence (WUL) as envisaged in section 22(1)(b) of the NWA . Without the necessary
authorization to use water Lezmin;s mining activities on the properties was unlawful.
Under the circumstances and due to its illegal conduct Lezmin must be prohibited
from continuing with its mining operations until and unless autho rization had been
granted for such properties to be used for mining and a water use authorization had
been granted in terms of the NWA for the conducting of mining activities on the
properties.
APPLICATION TO STRIKE OUT
[4] Lezmin brought two applicat ions to strike out. The first related to numerous
passages in the applicant’s founding affidavit and the basis for the strike out is
hearsay evidence. The second related to numerous passages in the applicant’s
replying affidavit and the basis is impermissi ble new facts raised in reply. As regards
the first, it is common cause that the application was premised on a report obtained
from the Municipality which related to Lezmin’s application to expand its mining
activities. The report was compiled by the Deput y Director: Town Planning and
Environmental Management in the Human Settlements, Planning and Development
of the Municipality, Ms D Power (Power) in response to Lezmin’s application for
expansion of mining licence on the remainder of Portion 8 and Portion 48 of the
Farm Kraaibosch 195. The report was annexed as FA2 to the applicant’s founding
affidavit deposed to by the applicant’s Head of Development (HD). HD relied on the
report to advance applicant’s case. The case was that the consent use granted for
the mining right on the property in 1981 was 0.8 ha and that the mining activities had
been unlawfully extended to more than 20 ha. The area currently being mined
extends beyond the 0.8 ha and therefore it constituted unlawful use and Lezmin
does not have th e water use authorization as envisaged in section 2 of the NWA to
conduct mining activities. At the time when the 1981 consent use was granted no
zoning or town planning scheme existed in the municipal area where the properties
were situated. On applicatio n of LUPO council did not determine the entire property
to have mining rights, except the permitted area of 0.8 ha. During 1986 the
remainder of the properties were zoned agriculture zone 1 due to the farming
activities conducted on the property and no zon ing determination was carried out at
the time. Only 0.08 ha was zoned in accordance with the utilization thereof. Lezmin’s
mining activities extended to more than 20 ha over the properties and therefore well
outside the mining right granted. No land use ap plication was submitted since the
implementation of LUPO on 1 July 1986 to expand the mining area. Any mining
activity conducted over 0,8 ha constituted unlawful land use and Lezmin should be
prohibited from continuing and/or extending its mining operation s on the properties
until and unless it had obtained the necessary authorization in terms of the relevant
statutory provisions to use the properties for mining. Applications to rezone the
properties were approved but the rezoning lapsed due to the zoning n ot utilized
and/or implemented in accordance with the relevant approval. In 2022 Lezmin
successfully applied to extend its mining activities on the properties. The applicant
lodged an appeal which was opposed. The appeal suspended the proposed
extension and the parties were awaiting the outcome of the appeal. If the appeal was
not successful in respect of the 0.8 ha any further mining activities on the properties
was in any event unlawful.
[5] The applicant also relied on email correspondence between Ms Erasmus
(Erasmus), an environmental consultant appointed by the applicant to assist it with
its development on the properties and Ms Sibonelo Ndlovu (Ndlovu), a water use
officer in the employ of the Breede -Gouritz Catchment Management Agency
(BGCMA). Erasmus enquired from inter alia Ndlovu whether any lawful water uses or
authorized water uses such as a General Authorisation to use water (GA) or an
Existing Lawful Water Use (ELU) on the properties. Ndlovu’s response was that
there was no GA or ELU or Water Use Licence (WUL) for the properties. Ndlovu said
there was a water use registration in respect of the remainder of Portion 8 of the
farm Kraaibosch no. 195. Ndlovu attached some documents confirming that a water
use had been registered but not authorized . Ndlovu also indicated that a registration
certificate merely confirmed that a water use was registered and not that there was
an application for water use and/or an approval to lawfully use water. The email
correspondence was attached as FA4 to applicant ’s affidavit. The properties were
situated in a medium, long -term urban growth area and by implication the mining
operations conflicted with and did not support the Municipality’s long -term spatial
vision for the George, Kraaibosch and Victory Bay areas. T he area to the East and
Sout East of the current mining footprint was denoted as ‘critical biodiversity areas
and green corridors and updated data from the Western Cape Provincial
Government confirmed the existence of critically of critically endangered sp ecies in
the area and that a significant amount of biodiversity had already been
compromised. The Municipality also recognized that the blasting taking place on the
site has been problematic and disrupts the occupiers of the next -door development
and the w ildlife in the area. Residents have complained to their infrastructure and
buildings being damaged due to unlawful mining activities by Lezmin. Lezmin asked
the court to strike these portions from the founding affidavit as its constituted
impermissible and inadmissible hearsay.
[6] The applicant did not formally oppose Lezmin’s application to strike out nor has it
formally applied for any specific hearsay evidence to be allowed by the court.
Nowhere in the founding affidavit did the applicant even attemp t to make out a case
for the hearsay evidence upon which it relied, to be admitted by the court. The
applicant’s cause of action in respect of the land use question was exclusively based
upon written facts that depended upon the credibility of someone othe r than HD, the
deponent to its affidavit. Power was an official of the Municipality. The evidence was
not only hearsay, but related to matters spanning decades, in respect of which
Power had no direct knowledge and importantly, related to what the land use was at
the quarry on 1 July 1986, some 36 years ago. The applicant tendered no evidence
whatsoever in its founding affidavit addressing the constituent factors of section
36(1)(c) of the Law of Evidence Amendment Act, No. 45 of 1988 (the Hearsay Act).
The applicant did not apply, in which application it dealt with the factors that the court
had to consider and as a result Lezmin did not have the opportunity nor was it called
upon to answer to whatever factors the applicant wished to rely on to convince the
court to exercise its discretion in favour of the applicant and admit the otherwise
inadmissible evidence. The applicant did not file an opposing affidavit in response to
the Lezmin’s application to strike out. The applicant addressed the issue of hearsay
raised by Lezmin in reply. Lezmin did not have the opportunity to respond to the
allegations made in reply. The applicant could not compel Power to depose to an
affidavit for purposes of this application. Faced with this difficulty, the applicant still
pursued its relief by way of application and not action. The applicant had the option
to pursue relief by action, in which case it would have been able to subpoena Power
or any witness to testify at court alternatively to produce documents by way of
subpoena duces decum. The applicant could not rely on another party it joined, the
Municipality, to advance the applicant’s own case to the question of the land use of
the property. It is the applicant that must make out its own case.
Hearsay evidence.
[7] Section 3 and 4 of the Hearsay Act provides:
“3 Hearsay evidence
1. Subject to the provisions of any other law, hearsay evidence shall not
be admitted as evidence at criminal or civil proceedings, unless-
(a) each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such evidence
depends, himself testifies at such proceedings; or
(c) the court, having regard to-
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might
entail; and
(vii) any other factor which should in the opinion of the court be taken into
account,
is of the opinion that such evidence should be admitted in the interests of
justice.
(2) The provisions of subsection (1) shall not render admissible any evidence
which is inadmissible on any ground other than that such evidence is hearsay
evidence.
(3) Hearsay evidence may be provisionally admitted in terms of subsection
(1) (b) if the court is informed that the person upon whose credibility the
probative value of such evidence depends, will himself testify in such
proceedings: Provided that if such person does not later testify in such
proceedings, the hearsay evidence shall be l eft out of account unless the
hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or is
admitted by the court in terms of paragraph (c) of that subsection.
(4) For the purposes of this section-
'hearsay evidence' means evidence, whether oral or in writing, the probative
value of which depends upon the credibility of any person other than the
person giving such evidence;”
In Makhathini v Road Accident Dund 2002 (1) SA 511 (SCA) at para 27 and
28 it was said:
“[27] The purpose of the Act is to allow the admission of hearsay evidence in
circumstances where justice dictates its reception. In Metedad v National
Employers' Gener al Insurance Co Ltd 1992 (1) SA 494 (W) it was stated as
follows at 498I - 499G:
'It seems to me that the purpose of the amendment was to permit
hearsay evidence in certain circumstances where the application of
rigid and somewhat archaic principles might frustrate the interests of
justice. The exclusion of the hearsay statement of an otherwise reliable
person whose testimony cannot be obtained might be a far greater
injustice than any uncertainty which may res ult from its admission.
Moreover, the fact that the statement is untested by cross -examination
is a factor to be taken into account in assessing its probative value. . . .
There is no principle to be extracted from the Act that it is to be applied
only sparingly. On the contrary, the Court is bound to apply it when so
required by the interests of justice.'
In each case the factors set out in s 3(1) (c) are to be considered in the light of
the facts of the case. The weight to be accorded to such evidence, o nce it is
admitted, in the assessment of the totality of the evidence adduced, is a
distinct question.
[28] The factors set out in s 3(1) (c)(i) - (vii) should not be considered in
isolation. One should approach the application of s 3(1) (c) on the basis that
these factors are interrelated and that they overlap. See Hewan v Kourie NO
and Another 1993 (3) SA 233 (T) at 239B - C and Schmidt and
Rademeyer's Bewysreg (supra at 481) where the learned authors state:
'Soos reeds uit die voorafgaande bespreking van die afsonderlike
faktore sou blyk, behoort 'n hof nie die faktore onafhanklik, en sonder
inagneming van die ander, in ag te neem nie. Die afsonderlike faktore
hou tot 'n hoë mate op ve rskillende vlakke met mekaar verband, en
elkeen kan gevolglik net effektief in aanmerking geneem word indien
die hof, in die oorwegingsproses, die impak en invloed van die ander
ook in die weegskaal plaas.'
[8] The evidence of Power, Erasmus and Ndlovu is hearsay as defined in section
3(4). Lezmin did not agree to the admission of such evidence as envisaged in
section 3(1)(a). Power, Erasmus and Ndlovu did not provide affidavits for the
application to allow the admission of the hearsay evidence as envisa ged in section
3(1(b). The evidence can only be allowed if the court allowed it as envisaged in
section 3(1)(c). A party in application proceedings should not be ambushed by the
admission of hearsay evidence at the hearing of the matter. Where a party in
application proceedings sought to rely on hearsay evidence, the other party must,
from the papers, learn clearly and timeously that the court will be asked to consider
and rule on the admission of such hearsay as envisaged in section 3(1)(c) of the
Hearsay Act. It is unfair for the other party, for one party to seek for the first time in
argument to build up a case for admission of hearsay evidence in argument. In its
founding papers, the party seeking to rely on hearsay evidence should clearly signal
to the other its intention to invoke the provisions of the Hearsay Act to enable the
other party to appreciate the full evidentiary ambit it is required to traverse in
answering the case. In Giesecke & Devrient Southern Africa (Pty) Ltd v Minister of
Safety and Security 2012 (2) SA 137 (SCA) at para 24 it was said:
[24] “… Stated somewhat differently, in order to decide whether the plaintiff
has made out a case to answer, a defendant is entitled to know the
constituent elements of that case.”
The other party must be called upon and must have the opportunity to answer
whatever factors that the party seeking to rely on hearsay evidence puts
forward in its founding papers. The other party must have sufficient
particularity and opportunity to respond to the allegations and factors to
properly answer so as to assist the court in consideration of its discretion on
the admissibility of the hearsay evidence in respect of the hearsay evidence. It
is insufficient, in application proceedings, only at argument, to rely on the bald
reference to the court’s discretion to admit hearsay evidence. The nature of
the proceedings, under the circumstances, militates agains t admission. It is
worth noting that the applicant elected to pursue relief by way of application,
an election in which the applicant did not favour action proceedings which
would have allowed the applicant to subpoena relevant witnesses including
calling upon them to produce documents under subpoena.
[9] As regards the nature of the evidence (section 3(1)(c)(ii), what is required was
said to be the characterization of the evidence sought to be introduced
[Makhathini's at 523A; Maize Board v Hart 2005 (5) SA 480 (O) at 488 (B)]. Except
for her office in the Municipality, nothing much is known about Power from the
papers. It is even unknown whether she derives information from documents which
were in her lawful custody. It seems that she was neither the au thor, signatory nor
attesting witness to the documents she relied upon. Most importantly, the applicant
sought to rely on Power’s opinions which seems to be based on some historical
documents. Her opinions are challenged by Lezmin and that dispute was the very
reason for the application. It has always been within the applicant’s knowledge that
Lezmin did not accept Power’s opinion on the land use. The applicant knew that for it
to succeed, Power’s opinion was to be accepted by the court as a correct reflect ion
of the position. Acceptance of the opinion of Power on land use would amount to an
undeserved crucial and advantageous position for the applicant and an undue
evidential disadvantage to Lezmin. Similarly, Erasmus and Ndlovu’s opinions, where
contested, must be fairly considered. A dispute needs to be properly resolved
through deserved advantages and due disadvantages. The interests of justice do not
permit admission on the evidence of this nature under the circumstances.
[10] In respect of the purpos e for which the evidence is tendered, it was said in
Metedad v National Empoyers General Insurance Co Ltd 1992 (1) SA 494 (W) at
498D:
“The fact that the Court is required to have regard, inter alia, to the purpose for
which the evidence is tendered in d eciding whether or not to exercise its
discretion to allow hearsay evidence under s 3(1) (c)(iii) of the Act does not
affect this decision. It means only that evidence tendered for a compelling
reason would stand a better chance of admission than evidence t endered for
a doubtful or illegitimate purpose.”
In the circ umstances of this case, and the issues dealt with, the applicant
should have realized that a serious dispute of fact which was incapable of
resolution on the papers was bound to develop [ Adbro Investment Co Ltd v
Minister of the Interior 1956 (3) SA 354 AD at 350A]. From 349H to 35A it was
said:
“I may add that where the facts are in dispute a Court has a discretion
as to the future course of the proceedings. It may dismiss the
application with costs or order the parties to go to trial or order oral
evidence in terms of any Rule of Court. The first course may be
adopted when the applicant should have realised when launching his
application that a serious dispute of fact was bound to develop.
See Room Hire Co. (Pty.) Limited v Jeppe Street Mansions (Pty.)
Limited, 1949 (3) SA 1155 (T) at pp. 1162 and 1168.”
The use of the land at the quarry for mining was ongoing for many decades.
The applicant has itself no direct knowledge of what Lezmin’s water use was
at the quarry. The applicant relied on these materi al issues on persons who
did not depose to affidavits. There is an important date of 1 July 1986, a date
on which the Land Use Planning Ordinance Cape, 15 of 1985 (LUPO)
commenced. Amongst others, the issue between the parties was the
interpretation of section 14(1) of LUPO which provides:
“With effect from the date of commencement of this ordinance all land
referred to in section 8 shall be deemed to be zoned in accordance
with the utilization thereof, as determined by the council concerned.”
The Municipality took no action to what the applicant alleged to be unlawful
use of the land since 1986, 38 years before the applicant issues its process. A
hearsay untested opinion that Lezmin utilized the land without appropriate
zoning does not merit admission i n the circumstances. Furthermore, where
the applicant acknowledged that no water use for Lezmin have been
determined and that the authorization process for Lezmin’s water use has yet
to be confirmed, hearsay untested opinions cannot be admitted with the
purpose of constituting a proper cause of action. The evidence may still be
found useful if it is properly placed before the court, but I am reluctant to admit
untested hearsay opinions to be used against a party who puts such opinions
in contest. In Makhathini at para 32 it was said in respect of the probative
value of the evidence:
“[32] Section 3(1) (c)(iv) requires that the probative value of the evidence be
considered. Evidence sought to be introduced in terms of s 3(1) (c) may be
such that its probative value, even at first blush, is minimal and in those
circumstances the enquiry will end there. Questions of relevance and reliability
arise in the application of this subsection: see S v Ramavhale (supra at 649e -
650a).”
An untested opinion based on resources not placed before the court, where
the facts upon which the opinions are based are contested a nd not settled,
and the qualification of the person giving the opinion remained unclear, have
minimal probative value. Dealing with prejudice as envisaged in section
3(1)(c)(v) at para 32 in Giesecke it was said that:
[32] … The respondent's prejudice li es in the fact that he will be deprived of
the opportunity to test this evidence through cross -examination, which
is undoubtedly a real disadvantage.”
[11] I am unable to find any other factor on which to exercise my discretion to admit
the hearsay evi dence of Power, Erasmus and Ndlovu. The applicant should have
addressed the constituent factors of section 36(1)(c) upon which it sought to rely in
its founding affidavit, or by way of a distinct application supported by a founding
affidavit dealing therewith. In this way, Lenmin would have had an opportunity to fully
deal with the factors as relied upon by the applicant in its answer. This is what
fairness and justice demands for a court to arrive at an informed decision on the
question of the admission of hearsay evidence. The applicant’s case in its founding
affidavit is exclusively premised on hearsay evidence in respect of which no case is
made out for its admission. I am persuaded that the application to strike out hearsay
evidence should be granted.
Impermissible new matter in reply.
[12] The respondent also asked the court to strike out impermissible new matter from
applicant’s replying affidavit wherein the applicant made various allegations. The
applicant therein alleged that contrary to Lezmi n’s Basic Assessment Report (BAR)
(RA2 in the papers), Lezmin admitted that it did not have a WUL to use water for its
mining operations. The further allegations related to the rainfall which ran down the
stockpile and ultimately accumulated in the mining pit, which water was then being
used for dust suppression on haul roads, on the plant and in the washing plant which
triggered certain provisions of the NWA inter alia s torage water (section 21(b),
discharging waste or water containing waste into a water r esource through a pipe,
canal, sewer, sea outfall or other conduit (section 21(f), disposing of waste in a
manner which may detrimentally impact on a water resource (section 21(g) and
disposing in any manner of water which contained waste from, or which ha s been
heated in, any industrial or power generation process (section 21(h)). The BAR and
Environmental Management Plan Report described and depicted the dam wall,
settling pond system, still water cut -off drains, silt catchment pod and processing
plants, water body, surface water and its use. The case was that the excavated
mining pit in the BAR report accumulated and/or retained water which would
otherwise have flown from the property, which on all the available evidence was
situated on a typographically higher elevation than the remaining properties and that
this water would otherwise have flown from the property to the lower lying areas and
was now accumulating in the pit. The typography of the land was changed by the
excavation and impacted on the norma l flow of water. Lezmin had created an off -
stream dam and the excavated area enabled Lezmin to collect water which would
have otherwise either been absorbed into the soil to supplement underground
resources or would have reached one of the multiple streams in the region and
would have reached one of the surrounding rivers.
[13] The well-established rule was that an applicant must stand or fall by its founding
papers [Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at 635-636 in fine.]
The relief sought must be found in the evidence supported by the facts set out in the
founding affidavit [ Kleynhaans v van der Westhuizen NO 1970 (1) SA 565 (O) at
568E.] There are exceptions to the rule [ Body Corporate, Shaftesbury Sectional Title
Scheme v Rippert's Estate and Others 2003 (5) SA 1 (C)] and the court had a
discretion to admit new evidence [ Body Corporate at 6D -F; Mostert v First Rand
Bank 2018 (4) SA 443 at para 13]]. In exercising the discretion, the Court would
ordinarily strike out new issues raised in a replying affidavit if the applicant knew or
ought to have known of the existence of such issues but failed for whatever reason
to raise them in the founding affidavit [ Bayat and Others v Hansa and Another 1955
(3) SA 547 (N); Dawood V Mahomed 1979 (2) SA 361 (D); Faber v Nazerian
(2012/42735) [20 13] ZAGPJHC 65 (15 April 2013) at para 24]. New matter
introduced by the applicant’s replying affidavit is what applicant knew or ought to
have known at the time that it deposed to the founding affidavit, and were thus
known to the applicant before the app licant received the respondent’s answering
papers. The applicant knew that whether the Lezmin’s water use fell within the ambit
of the NWA was still an open question. Allowing the new evidence would be
prejudicial to Lezmin as it did not have the opportuni ty to deal with it, unless the
matter was postponed affording it such opportunity. In the circumstances, there is no
basis upon which the court should exercise its discretion in favour of allowing the
new evidence introduced by the applicant in the replyin g affidavit [Faber at para 26].
In my view the applicant has not made the hurdle of a cause of action. The
applicant’s reliance on inadmissible hearsay evidence and impermissible new matter
in reply is not allowed.
APPLICANT’S LOCUS STANDI
[14] The applicant alleged that it has locus standi as it was the owner of the
properties where Lezmin conducted mining activities. It relied on a title deed of
transferring ownership to the applicant dated 11 January 2023. According to the
applicant the transfer was not subject to any conditions which enti tled Lezmin to
mine on the properties. The applicant also relied on being an interested and affected
party that was directly affected by the mining activities. The applicant acknowledged
that the facts upon which its application was premised were obtained from a report
from the Municipality which related to Lezmin’s application to expand its mining
activities and to Lezmin’s alleged illegal activities. Lezmin did not dispute applicant’s
ownership of the properties with full knowledge of the existence of the ongoing
mining activities. Lezmin’s position was that it had the right to mine in terms of a
renewal of its mining right dated 9 November 2021, granted in terms of section 24(3)
of the Mineral and Petroleum Resources Development Act 28 of 2002 (the MPRDA)
and that Lezmin’s right to mine the properties in terms of such renewal was in
respect of an area of 30, 0530 hectares on the properties where the quarry was
situated and it endured for a period of 30 years commencing on 1 October 2021.
There was no attack on the validity of Lezmin’s mining right.
[15] Lezmin submitted that in relation to the complaint regarding the alleged
contravention of the NWA, the applicant had no standing. Its argument was that
water was a national resource which belonged to all people and that the purpose of
the NWA was to ensure that water resources were protected, used, developed,
conserved, managed and controlled in ways that took account amongst others
factors meeting the basic human needs of present and future generations an d that it
was manifestly legislation intended for the benefit of all South Africa’s people. The
NWA was not enacted for the protection of a particular class of persons. In
Makhanya NO v Goede Wellington Boerdery (Pty) Ltd 2012 JDR 2323 (SCA); [2013]
1 All SA 526 (SCA) at para 38 it was said:
“[38] The preamble to the Act makes it clear that water is a natural resource
that belongs to all people and that the discriminatory laws of the past have
prevented equal access to water and the use of water resourc es. It makes it
equally clear that water in South Arica is scarce. The preamble recognises
that the ultimate aim of water resource management is to achieve the
sustainable use of water for the benefit of all users. It states that the
'protection of the qua lity of water resources is necessary to ensure
sustainability of the nation's water resources in the interests of all water
users'.”
In the interest of all water users the NWA moved water law from the domain of
private law to public law. In Witzenberg Properties (Pty) Ltd v Bokveldskloof
Boerdery (Pty) Ltd and Another 2018 (6) SA 307 (WCC) at para 24 it was
said:
“[24] Given that Witzenberg seeks interdictory relief in pursuit of its own
interests, the issue of legal standing is approached in accordance with
the principles set out in Patz v Green & Co read with Roodepoort-
Maraisburg Town Council v Eastern Properties (Pty) Ltd , which we re
encapsulated E in Laskey and Another v Showzone CC and Others. In
essence these principles are:
[24.1] When it appears that a statute was enacted in the interest of a
particular person or any class of persons, a party who shows that he or
she is one of such class of persons, and seeks judicial F intervention
by way of interdictory relief premised on the statute, is not required to
show harm as a result of a contravention of the statute, such harm
being presumed.
[24.2] However, when a sta tutory duty was imposed, not in the
interest of a particular person or a particular class, but in the public
interest generally, the applicant must show that he or she has
sustained or apprehends actual harm to obtain interdictory relief on the
ground of breach of the statute.
[25] As Cameron J put it in Giant Concerts CC v Rinaldo Investments (Pty) Ltd
and Others:
'[33] The separation of the merits from the question of standing has
two implications for the own -interest litigant. First, it signals th at the
nature of the interest that confers standing on the own -interest litigant
is insulated from the merits of the challenge he or she seeks to bring.
An own-interest litigant does not acquire standing from the invalidity of
the challenged decision or la w, but from the effect it will have on his or
her interests or potential interests. He or she has standing to bring the
challenge even if the decision or law is in fact valid. But the interests
that confer standing to bring the challenge, and the impact th e decision
or law has on them, must be demonstrated.
[34] Second, it means that an own -interest litigant may be denied
standing even though the result could be that an unlawful decision
stands. This is not illogical. As the Supreme Court of Appeal poi nted
out, standing determines solely whether this particular litigant is entitled
to mount the challenge: a successful challenge to a public decision can
be brought only if the right remedy is sought by the right person in the
right proceedings. To this ob servation one must add that the interests
of justice under the Constitution may require courts to be hesitant to
dispose of cases on standing alone where broader concerns of
accountability and responsiveness may require investigation and
determination of the merits. By corollary, there may be cases where the
interests of justice or the public interest might compel a court
to scrutinise action even if the applicant's standing is questionable.
When the public interest cries out for relief, an applicant should not fail
merely for acting in his or her own interest.
[35] Hence, where a litigant acts solely in his or her own interest, there
is no broad or unqualified capacity to litigate against illegalities.
Something more must be shown.' [Emphasis supplied.]
[26] The preamble to the NWA expressly recognises that (a) water belongs 'to
all people'; and (b) national government has overall responsibility for and
authority over the nation's water resources and their use, including the
equitable allocation of water for beneficial use.
[27] Witzenberg cited the Minister as second respondent purely because she
has 'a substantial and direct interest in the subject matter of these
proceedings and is accordingly a necessary party hereto' . Section 3 of the
NWA stipulates that national government, acting through the Minister, is the
public trustee of the nation's wate r resources. It is clearly for this reason that
the Minister is empowered, under part 3 (ss 32 – 35) of the NWA to determine,
where necessary, an 'existing lawful water use'.
In Tavakoli and Another v Bantry Hills (Pty) Ltd 2019 (3) SA 163 (SCA) at para
26 it was said:
“[26] The appellants were required to establish their locus standi in
their founding papers. The only founding allegations concerning
standing are in para 21, where their deponent, Mr Tavakoli, said that
they had standing because they were entitled to enforce the DMS
against the respondent and because their constitutional rights to just
administrative action had been infringed by the approval of the plans.
The first of these grounds is a conclusion unsupported by facts. The
second, as the JDJ Properties case shows, does not relieve the
appellants of the burden of establishing their standing along
conventional lines. With reference to s 38 of the Constitution, the
appellants have not alleged that they are acting in anyone's interests
other than their own. The sufficiency of their own interest must be
determined in accordance with the principle emanating from Patz v
Greene. As Cameron JA stated in Giant Concerts CC v Rinaldo
Investments (Pty) Ltd and Others 2013 ( 3) BCLR 251 (SCA) ([2012]
ZASCA 28), an 'own -interest litigant' does not acquire standing from
the invalidity of the challenged decision but from the effect it will have
on his or her interests (para 33).”
In Giant Concerts CC v Rinaldo Investments (Pty ) Ltd 2012 JDR 2298 (CC);
2013 (3) BCLR 251 (CC) at para 35 it was said:
“[35] Hence, where a litigant acts solely in his or her own interest,
there is no broad or unqualified capacity to litigate against illegalities.
Something more must be shown.”
[16] To establish locus standi the applicant had to show that it suffered harm from a
contravention of the NWA beyond that which it may be supposed all members of the
public to. The applicant only had locus standi in respect of the alleged breach of the
NWA if it showed that it had suffered actual or apprehended harm or loss. The
applicant only relied on its ownership of the property and did not allege and prove
that it had sustained or apprehended actual harm of the kind required. When the
applicant acqui red the properties Lezmin’s mining activities were ongoing. The
applicant had no standing to pursue its case in respect of Lezmin’s alleged use of
water in breach of the provisions of the NWA. No relief can accordingly be granted to
it as it had no standing to be granted such relief.
RELIEF
[17] From the facts before me, I am unable to declare Lezmin’s mining activities
conducted on portions 8 and 48 of the Farm Kraaibosch No. 195 unlawful. I am
unable to prohibit Lezmin from commencing with the expan sion of its mining
activities on the properties under phase 4 and 5 or to continue with its current mining
operations on the properties.
ORDER
[18] For these reasons, I make the following order:
The application is dismissed with costs, such costs to include costs of Senior
Counsel on the scale C.
____________________________
DM THULARE
JUDGE OF THE HIGH COURT