IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Not reportable
CASE NO. 5414/2024
In the matter between:
L’ORMARINS (PTY) LTD First a pplicant
LYELL IRENE VAN RENSBURG Second applicant
and
THE MINISTER OF MINERAL AND
PETROLEUM RESOURCES First respondent
THE MINISTER OF FORESTRY, FISHERIES
AND ENVIRONMENT Second respondent
IRHAFU MINERALS CC Third respondent
DR BEYERS NAUDE LOCAL MUNICIPALITY Fourth respondent
______________________________________________________________________
JUDGMENT
______________________________________________________________________
LAING J
[1] This is an urgent application for interdictory relief , preventing the third respondent
from conducting mining operations on a portion of land described as remainder of erf
1814, situated in the district of Graaff -Reinet. No relief is sought against the remaining
respondents.
[2] The first applicant is the owner of the Camde boo Private Nature Reserve
(‘CPNR’) and the sec ond applicant is the registered owner of a farm known as Rietvallei
No. 525 , both situated adjacent to the land in question. The land is owned by the fourth
respondent ; it abuts the northern boundary of the Camdeboo National Park .
[3] In their founding papers, the applicants set out the history of the third
respondent’s mining operations. They averred that it previously held a permit to mine
dolerite . After the expiry thereof , the third respondent applied, on 14 November 2014,
for a mining right in terms of the relevant provisions of the Mineral and Petroleum
Resources Development Act 28 of 2002 (‘MPRDA’) . The applicants described numerous
shortcomings in the administrative pr ocedure that was followed . In summary, the
applicants alleged that the public participation process was entirely inadequate for the
purpose of granting a right to the third respondent. They also drew attention to
deficiencies regarding , inter alia , the third respondent’s environmental impact
assessment (‘EIA’) , required under the regulations made in terms of the MPRDA.1
[4] Communication amongst the applicants , the department, the third respondent,
and the latter’s agent, Stellenryk Environmenta l Services (‘SES’), effectively ceased
after 14 August 2017. The applicants concluded, wrongly as it turned out, that the third
respondent had abandoned its application.
[5] During the afternoon of 8 November 2024, the third respondent notified the first
applicant that blasting would take place on 11 November 2024 . This caught the first
1 Mineral and Petroleum Resources Development Regulations, published under GNR 527 on 23 April
2004.
applicant off guard, prompting it to make enquiries about whether the third respondent
had indeed been grant ed a mining right , but to no avail. A request made to the third
respondent to desist from its activities yielded no result. On 22 November 2024, the
third respondent notified the first applicant about further blasting that was scheduled to
occur later that day. An ultimatum was issued to the third respondent on 26 November
2024; this was ignored. The applicants instituted proceedings on 4 December 2024.
[6] At the outset, the third respondent stated in its answering papers that it was most
certainly in possession of a mining right. This has since become common cause . The
third respondent pointed out that the land had been mined for more than 50 years ,
providing stone aggregate and gravel for the improvement and maintenance of roads
and building infrastructure throughout the Graaff -Reinet district. CPNR was only
established after operations on the land had already commenced.
[7] Regarding the administrative procedure that accompanied the application for the
right, the third respondent alleged that the applicants’ complaints and objections were
considered and rejected in various expert reports and during the public participation
process itself. Because of the unreasonably short notice period afforded to the third
respondent in these proceedings , it was unable to supply a comprehensive answer to
the applicants’ allegations in relation to either the public participation process or the EIA.
In any event, argued the third respondent, the internal appeal process that was
prescribed in terms of the MPRDA had to be followed before reliance could be p laced
on the allegations in question.
[8] In reply, the applicants referred to interaction with the Manager: Land
Administration for South African National Parks (‘SANParks’) , Mr Mar thán Theart . The
latter confirmed that the third respondent’s mining operations were causing significant
environmental damage and detrimentally affecting the Camdeboo National Park. The
applicants asserted, furthermore, that after having become aware that the department
had granted a mining right to the third respondent, they intended to follow the internal
appeal process contemplated under the MPRDA.
[9] The issues to be decided are straight -forward. Firstly, the court must determine
whether the matter was indeed sufficiently urgent to warrant a departure from the
Uniform R ules of Court (‘URC’); secondly, the court must determine whether the
applicants have met the requirements for the interdictory relief sought, either final or
interlocutory in nature, as the case might be . In this regard, the requirements hardly
need to be res tated . For a final interdict, an applicant is required to demonstrate a clear
right, an injury actually committed or reasonably apprehended, and the absence of any
other satisfactory remedy.2 To obtain an interlocutory interdict, an applicant must prove
a prima facie right, a well -grounded apprehension of irreparable harm if the interim relief
is not granted and the ultimate relief is eventually granted, a balance of convenience in
favour of the granting of the interim relief, and the absence of any other satisfactory
remedy.3
[10] Regarding the issue of urgency, counsel for the third respondent referred to
Caledon Street Restaurants CC v D’ Aviera ,4 where Kroon J observed, within the
context of the inappropriate use of rule 6(12), that:
‘…the temptation is to brush the wrong handling of the matter and the applicant’s
presentation thereof as urgent beyond what was justified , under the mat. The
papers had to be read to adjudicate the argument about urgency and it could
come across as such a waste not to decide the merits. A refusal to do so would
entail all the work having to be done de novo. The temptation is enhanced by the
circumstance that an appropriate order for costs against the applicant can be
resorted to… However , the attractiveness of finally disposing of the litigation
should not be allowed to govern. The approach should rather be that there are
times where, by way of non -suiting an applicant, the point must clearly be made
that the rules should be obeyed and th at the interest of the other party and his
2 Setlogelo v Setlogelo 1914 AD 221 . The case is a locus classicus and the principles stated therein are
well established.
3 Ibid. See, too, the discussion in DE van Loggerenberg, Erasmus: Superior Court Practice (Juta, vol 2,
2ed, service 21, 2023 ), at D6 -1-26.
4 1998 JDR 0116 (SE).
lawyers should be accorded proper respect, and the matter must be looked at to
consider whether the case is such a time or not.’5
[11] The court enjoys a discretion, under rule 6(12), to dispose of a matter in such
manner and in accordance with such procedure as it deems fit. The provisions in
question stipulate, however, that the procedure adopted must be, as far as practicable,
in accordance with the URC.
[12] In Caledon , Kroon J made it clear that if a deviation from the URC was to be
permitted then the extent thereof will depend on the circumstances of the case. The
applicant or his or her legal advisors must analyse the facts to decide whether a greater
or lesser degree of relaxation of the URC was warranted; in each case, the applicant
was required to strike a balance between the duty to comply with rule 6(5)(a) and the
entitlement to deviate therefrom,6 subject to the urgency that prevailed.7
[13] From the applicants’ papers in the present matter, it is evident that the third
respondent’s mining operations had already commenced when the application was
launched. In the absence of any proof to the contrary at the time, the applicants
believed that such operations were unlawful. The third respondent’s activities en tailed,
moreover, not only blasting but also rock crushing, which gave rise to the nuisance
described in the papers. Whereas the applicants could possibly be criticised for having
taken more than three weeks to have instituted proceedings, they have detail ed the
efforts made to persuade the third respondent to halt or suspend operations, the
enquiries made to the fourth respondent and other parties about the possible granting of
the mining right , the examination of a substantial record of correspondence and related
documents pertaining to an application made by the third respondent to the department
some ten years ago, the steps taken to obtain authority for the commencement of legal
5 At 10 -11.
6 The rule in question stipulates that every application, other than one brought ex parte , must be brought
on notice of motion as near as may be in accordance with Form 2(a) of the First Schedule. In that regard,
Form 2(a) provides for, inter alia , a period of 15 days within which a respondent can file his or her
answering affidavits.
7 Caledon , at 8.
proceedings and the concomitant need to instruct attorneys, and the complic ations
involved in the drafting process. It is apparent that much of the preparation took place
after hours and over weekends. Ultimately, for the applicants to have granted the third
respondent a mere week within which to file its answering papers was not , in the
circumstances, unreasonable.
[14] In relation to the third respondent’s contention that its undertaking to suspend
blasting would have removed any urgency if accepted, the applicants point out that no
mention was made of rock crushing. The latter was the source of the greatest nuisance.
[15] Consequently, the court is satisfied that the applicants succeeded in striking the
required balance between compliance with rule 6(5)(a) and deviation therefrom. The
nature of the urgency warranted the degree of rela xation that was applied. There is no
basis upon which to non -suit the applicants.
[16] Turning to the next issue, the court must determine whether the applicants have
satisfied the requirements for interdictory relief. As a starting point, the right that the
applicants seek to protect is the right to just administrative action. There are, in th at
regard, two key elements to the applicants’ case: (a) the department’s unlawful granting
of the mining right to the third respondent; and (b) the third respondent’s conducting of
mining operations on the remainder of erf 1814 in contraven tion of the fourth
respondent’s land use scheme.
[17] Regarding (a), counsel for the applicants descr ibed in detail the requirements of
the MPRDA and the regulations thereto. What is evident from the applicants’ papers is
that the re were numerous irregularities that arose during the public participation
process. The applicants were initially excluded from registration as interested and
affected p ersons (‘IAPs’) and denied meaningful access to the contents of the third
respondent’s application, the scoping report, the EIA, and the environmental
management programme (‘EMPr’); such access as wa s gra nted later did not result,
however, in proper consideration of or engagement with the numerous issues raised by
the applicants in relation thereto. There was little, if any, attempt made by the third
respondent or its agent, SES, to adhere to the Public Participatio n Guideline,
notwithstanding the department’s request in that regard.8 No proper opportunity was
afforded to the applicants to address the Regional Mining Development and
Environmental Committee (‘RMDEC’), for further consideration and advice to the first
respondent.9 And so forth.
[18] Other than what amounted , effectively, to a b are denial, the third respondent
chose not to deal with the applicants’ various allegations. There is, accordingly, scant
evidence available to prevent the court from being persuaded that the applicants have,
at the least, a prima facie right to require the d epartment to have followed an
administrative procedure within a reasonable time and in accordance with the principles
of lawfulness, reasonableness, and procedural fairness.10 It is not apparent that this was
achieved.
[19] Regarding (b), the applicants relied on a letter from the erstwhile Camdeboo
Local Municipality to SES, dated 2 June 2016, in relation to the mining activities of a
related entity, Irhafu Transport CC. The municipality explained that the land in question
had been zoned as ‘ authority zone 1’ in terms of the Camdeboo Zoning Scheme, which
accommodated only municipal activities. Prior to the applicants ’ launch ing of the present
application, they learned from the fourth respondent’s planner, Mr Ndumiso Camngca,
that the land was zoned for a gricultural purposes; he failed, however, to provide any
further information in support thereof. Consequently, the applicants based their
challenge on the zoning stipulated by the Camdeboo Local Municipality, and pointed out
8 The Minister of Water and Environmental Affairs published the guideline under section 24J of the
National Environmental Management Act 107 of 1998 (‘NEMA’), on 10 October 2012, in terms of GG no.
35769. There seems to have been some dispute about whether the third respondent was legally obliged
to have complied therewith; this does not detract, however, from the inadequacy of the public participation
process, as evident from the applicants’ papers.
9 In terms of section 10(2) of the MPRDA, the Regional Manager , as defined, must refer any objections to
the granting of a mining right to RMDEC , which is required to consider the objections and to advise the
Ministe r thereon.
10 The principles are expressly indicated as such in terms of section 6(1) of the MPRDA. There is a clear
link between the legislation in question and the requirements of the Promotion of Administrative Justice
Act 3 of 2000 (‘PAJA’).
that the corresponding zoning l isted in the fourth respondent’s land use scheme was
consistent with what had previously been conveyed to SES.11
[20] The third respondent refuted the above assertions in its answering papers. It
contended that the land was zoned as ‘agriculture 1’, as conveyed to the applicants by
Mr Camngca. No evidence was furnished in support thereof, other than an affidavit from
the third respondent’s attorney, Mr Owen Huxtable. In that regard, the deponent referred
to a map described as the Camdeboo Zoning Scheme and to in formation extracted from
the Chief Surveyor -General’s website to conclude that the land was zoned as alleged.
[21] The papers demonstrate one of the ‘principal ways’ in which a dispute of fact may
arise, as explained in Room Hire Co (Pty) Ltd v Jeppe Street Ma nsions (Pty) Ltd .12 In
the present matter:
‘…the respondent denies all the material allegations made by the various
deponents on the applicant’s behalf, and produces or will produce, positive
evidence by deponents or witnesses to the contrary.’13
[22] Consequently, the general rule must be applied . Van Loggerenberg summarises
this as follows:
‘If the material facts are in dispute and there is no request for the hearing of oral
evidence, a final order will only be granted on notice of motion if the facts as
stated by the respondent together with the facts alleged by the applicant that are
11 The fourt h respondent is, in terms of section 14 of the Local Government: Municipal Structures Act 117
of 1998 (‘MStr’) , the successor in law to the disestablished Camdeboo Local Municipality . The assets,
liabilities, rights, and obligations of the latter, includin g those contained in its zoning scheme, would have
been transferred to the former in terms of a notice issued by the MEC for local government in terms of
section 12 of the MStr. After the Camdeboo Local Municipality’s notification to SES on 2 June 2016 , it is
common cause that the fourth respondent adopted and approved a single land use scheme, as required
under section 24(1) of the Spatial Planning and Land Use Management Act 16 of 2013 (‘SPLUMA’). The
scheme seems to have retained the zoning in question, i.e. ‘authority’, which is understood to refer to the
land use practi sed by a public authority.
12 1949 (3) SA 1155 (T).
13 At 1163. See, too, the discussion in Van Loggerenberg, at D1 -70-75.
admitted by the respondent, justify such an order unless, of course, the court is
satisfied that the respondent’s version consists of bald or uncreditworthy denials,
raises fictitious disputes of fact, is so far -fetched or so clearly untenable or so
palpably implausible as to warrant its rejection merely on the papers.’14
[23] The immediate difficulty that confronts the third respondent is that the re is
insufficient evidence to support its contention that the land is zoned as ‘agriculture 1’. It
has failed to produce any confirmation in that regard from the fourth respondent, in
whom the powers and functions regarding land use management for the Graaff -Reinet
district vest. Th e affidavit from Mr Huxtable, moreover, does not take the matter further.
Besides his being unqualified to have made any conclusions in relation to the zoning of
the land, Mr Huxtable indicated, too, that Mr Camngca ‘could not tell me what the
zoning of th e remainder or erf 1814 was’.
[24] The court has no difficulty in rejecting the third respondent’s version, on its
papers, that the land was zoned as ‘agriculture 1’. It is necessary to remark, as counsel
for the applicants contended, that even if the zoning w as as alleged, then the fourth
respondent’s land use scheme clearly stipulated that the listed primary uses excluded
mining operations. To the extent that such operations fell within the ambit of listed uses
for which special consent could be granted, e.g. ‘quarry site’, the third respondent
advanced no evidence to suggest that application had ever been made or granted for
the consent in question.
[25] The court is satisfied that the applicant s have demonstrated that they have a
prima facie right to require the fourth respondent to enforce the provisions of its land
14 Ibid. The general rule was stated in Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd
1957 (4) SA 234 (C), at 235, and amplified in Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A), at 635C. The decisions have bec ome familiar features in the landscape of South
African case law.
use scheme. The third respondent’s mining operations appear to amount to a direct
infringement thereof , which is legally impermissible.15
[26] When all is said and done, however, it cannot be held, pending the appeal to be
brought by the applicants in terms of section 96(1) of the MPRDA, and pending the
fourth respondent’s confirmation of the permissible land use for the remainder of erf
1814, that the applicants have proved the existence of a clear right in relation to either
of the elements described earlier as (a) and (b). They have, nevertheless , demonstrated
a prima facie right for the interlocutory relief sought. It is on the remaining requirements
in relation thereto that attention must now be focused.
[27] In relation to the requirement pertaining to irreparable harm, the third respondent
argued that the harm envisaged was not irreparable and was temporary in nature . That
is not, however, what t he applicants were required to show. They simply had to
persuade the court that they held a well -grounded apprehension thereof. The test is
objective. In Minister of Law and Order v Nordien ,16 Hefer JA held that, on the basis of
the facts presented, the court must decide whether there is any basis for the
entertainment of a reasonable apprehension of injury by the applicant.17 In the present
matter, the applicants contended that the mining operations gave rise to a substantial
and irreversible nuisance. Considerable noise and dust were caused by the third
respondent’s blasting and rock crushing activities, as well as the use of heavy vehicles.
The allegations were never disputed. Viewed objectively, the generation of such a
nuisan ce within close proximity to the Camdeboo National Park, let alone CPNR,
reasonably gives rise to a concern that the tranquillity and beauty of the adjacent area
will be damaged irreversibly. It cannot be said that the appeal of important tourist
attractio ns such as the Valley of Desolation would not be permanently compromised.18
15 See City of Tshwane Metropolitan Municipality v Grobler and Others 2005 (6) SA 61 (T); Intercape
Ferreira Mainliner (Pty) Ltd and Others v Minister of Home Affairs and Others 2010 (5) SA 3 67 (WCC);
and Maccsand (Pty) Ltd v City of Cape Town and Others 2012 (4) SA 181 (CC).
16 1987 (2) SA 894 (A).
17 At 896H -I.
18 The unfortunate scenario of either SANParks or the fourth respondent having to contend with a
possible perception that the attractio n ought to be rebranded as the Valley of Not Quite Desolation is
alarmingly obvious.
Whereas the full impact of the third respondent’s activities on animal and bird habitats in
the vicinity is unknown, not having been canvassed in the papers, the potential for
irreparable harm cannot be denied and ought not to be discounted.19
[28] Turning to the balance of convenience, the third respondent contended that it had
already incurred substantial expenses to conduct its mining operations . It had also
concluded contracts for the delivery of crushed aggregate in the coming months,
required for the construction of sub -structures and roads for a major wind farm project.
Significant prejudice would be caused to the third respondent were interim relief to be
granted . In contrast, there would be little prejudice to the applicants were it not.
[29] In Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another ,20
Holmes JA stated that :
‘[the requirements for interlocutory relief ] are not individually decisive, but are
interrelated ; for example, the stronger the applicant’s prospects of success the
less his need to rely on prejudice to himself . Conversely, the more the element of
“some doubt” , the greater the need for the other factors to favour him.’21
[30] Whereas the prejudice that would be caused to the third respondent has to be
acknowledged, it cannot be said , conversely, that there would be no prejudice to the
applicants . They would be required to endure the ongoing b lasting and rock crushing
19 Interestingly, section 3 of the National Environmental Management Act 107 of 1998 (‘NEMA’) provides
that development must be socially, environmentally, and economically sustainable. Furthermore, section
4(a) stipulates that sustainable development requires the consideration of all relevant factors, including
the application of a risk -averse and cautious approach that recognize s the limits of current knowledge
about the consequences of decisions and actions. The precautionary principle described above was
considered in Fuel Retailers Association of Southern Africa v Director -General: Environmental
Management, Department of Agriculture, Conservation and Environm ent, Mpumalanga Province, and
Others 2007 (6) SA 4 (CC). More recently, it was considered in this division in Sustaining the Wild Coast
NPC and Others v Minister of Mineral Resources and Energy and Others 2022 (2) SA 585 (ECG), at
paragraph [70].
20 1973 (3) SA 685 (A).
21 At 691E -F. This has become an established principle. Van Loggerenberg comments that the
requirement ‘will resolve itself into a consideration of the prospects of success in the main action and the
balance of convenience - the stronger the prospects of success, the less need for the balance
convenience to favour the applicant; the weaker the prospects of success, the greater the need for the
balance of convenience to favour him.’ At D6-20.
activities , the intensity of which being undoubtedly amplified on the open vlaktes of the
Karoo. Furthermore, t he third respondent has chosen not to deal with the applicants’
allegations regarding irregularities in the public participation process ; the court has
already rejected the third respondent’s assertions in relation to the zoning of the land.
Consequently , the applicants ’ case is far from weak. To the extent that the balance of
convenience might be tilted somewhat in favour of the third respondent, the impact
thereof is neutralised if not negated by the applicants’ stronger prospects of success.
[31] Finally, regarding the ex istence of any other satisfactory remedy , the applicants’
requests had no effect, and the third respondent’s undertaking was plainly inadequate.
The latter argued that the applicants’ remedy lay in the pursuit of an internal appeal
process in terms of the MPRDA , but this, too, will not suffice , given the probable delay
in the conclusion of such a process and the immediacy of the harm apprehended by the
applicants.
[32] Mention must be made, briefly, of the contention made by counsel for the third
respondent that section s 96(2) and (3) of the MPRDA prevent the applicants from
seeking interdictory relief, pending the outcome of the internal appeal process. The
provisions in question state as follows:
’96. Internal appeal process and access to courts
(1) …
(2) (a) An appeal in terms of subsection (1) does not suspend the
administrative decision, unless it is suspended by the Director -
General or the Minister, as the case may be.
(b) …
(3) No person may apply to the court for the review of an administrative
decision contemplated in subsection (1) until that person has
exhausted his or her remedies in terms of that subsection.’
[33] Counsel argued that a purposive interpretation of the provisions would reveal the
underlying intention, viz. administrative challenges should not be permitted to disrupt
the ordinary conduct of the activities envisaged under the MPRDA. The interdictory
relief sought by the applicants was an attempt to circumvent the relevant legislative
mechanisms .
[34] The difficulty with the above contentions, however, is that section 96(2) allows
the Director -General or the Minister to suspend the decision . There is no apparent
reason why a court should not enjoy similar power, expressed as an interlocutory
interdict. Furthermore, section 96( 3) merely prohibits the institution of review
proceedings, pending the outcome of the internal appeal process , noth ing more ; it does
not prohibit the applicants from launching an application such as th at in the present
matter .
[35] Ultimately, the court is satisfied that the applicants have demonstrated that they
are entitled to interlocutory relief. The general rule applies ; they are entitled to their
costs. Considering the nature and history of the matter, the use of two counsel was
warranted.
[36] In the circumstances, the following order is made:
(a) the application be and is hereby heard as a matter of urgency, in
accordance with the provisions of rule 6(12);
(b) the third respondent is interdicted and restrained from conducting any
mining operations on the property, i.e. remainder of erf 1814 Graaff -Reinet,
pending the finalisation of the applicants’ internal appeal to the first
respondent against the deci sion to grant a mining right to the third
respondent in terms of section 96(1) of the MPRDA, which such appeal
must be brought within 30 calendar days of the date of this order; and
(c) the third respondent is directed to pay the costs of the application, inc luding
the costs of two counsel, on Scale C, as contemplated under rule 69(7).
_________________________
JGA LAING
JUDGE OF THE HIGH COURT
APPEARANCE
For the applicants: Adv Richards SC with Adv Watt
Instructed by: Chenells Albertyn
44 Alexander Street
STELLENBOSCH
Email: fiona@chennesalbertyn.co.za
carol@chennelsalbertyn.co.za
Tel: 021 883 3189
Ref: 12286FB/cvdv
c/o Whitesides Attorneys
53 African Street
MAKHANDA
Tel: 046 622 7117
Email: barrowsec@whitesides.co.za
Ref: Mr Grant Barrow
For the 3rd respondent: Adv Smuts Sc
Instructed by: Huxtable At torneys
26 New Street
MAKHANDA
Tel: 046 622 2692
Email: law1@huxtattorneys.co.za
Ref: O.Huxtable/cl/021008001
Date heard: 06 January 2025.
Date delivered: 14 January 2025.