IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
( 1) REPORT ABLE: YES @
(2) OF INTEREST TO OTHER JUDGES: YES-®
(3) REVIEWED:@1No
22 April 2025
DATE
In the application by
MAMOKEBEINVESTMENTS(PTY)LTD
And
MINISTER OF MINERAL AND ENERGY
DIRECTOR GENERAL: DEPARTMENT OF MINERAL.
RESOURCES
REGIONAL MANAGER: MPUMALANGA REGIONAL
DEPARTMENT OF MINERAL RESOURCES
MAMOKEBE COLLIERY (PTY) LIMITED CASE NO: 2025/036849
Applicant
1st Respondent
2nd Respondent
3rd Respondent
4th Respondent
2
JUDGMENT
Raubenheimer AJ:
Order
[1] In this matter I make the following order:
1. The application is dismissed with costs on scale C.
[2] The reasons for the order follow below.
Introduction
[3] The applicant approached the court on an urgent basis for the following
relief:
3.1 That the first, second and third respondents are directed and ordered
to refrain from prosecuting, processing or giving effect to the transfer
of mining right MP10341 MR to Mamokebe Colliery (Pty) Ltd or any
other party;
3.2 That the order in para 3.1 shall endure as an interim order, pending
the final adjudication of the applications instituted in the High Court of
South Africa, Gauteng Division, Pretoria, under case numbers (i)
2023-100053 , (ii) 2023-067386 and (iii) 2023-071300.
The Parties
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[4] The applicant is a company involved in mining of coal as the holder of a
mining right on the farm Grootspruit in the district of Wakkerstroom. The mining
right applied for in 2021 was eventually issued 21 May 2024 with the
commencement date of the right as 5 April 2024 and would endure for a period of
10 years.
[5] Before being granted the mining right the company was granted a
prospecting right on the same property on 16 September 2010 for a period of 5
years. The prospecting right was renewed for a period of 3 years in 2015.
[6] The first respondent, the Minister of Mineral Resources and Energy, is the
executive authority of the relevant department in terms of sect 11 of the Mineral
and Petroleum Resources Development Act1 (MPRDA)
[7] The second respondent is the Director General of the Department of Mineral
Resources and Energy cited in his capacity as the highest ranking civil servant of
the mentioned department.
[8] The third respondent is the Mpumalanga Region Regional Manager of the
Department of Mineral Resources in his capacity as the administrative head of
that particular region in terms of section 8 of the MPRDA.
[9] The fourth respondent was granted leave to intervene in the application by
order of Mnquibisa-Thusi Jon 2 April 2025 due to its interest in the application as
the entity to which the mining right of the applicant is to be transferred.
Background
[10] The applicant was incorporated in 2006 initially as Adzam Trading 161 (Pty)
Ltd on 13 September 2006. The name was changed to Mamokebe Investments
(Pty) Ltd on 13 November 2006. Matsimele Francina Motjoadi (Motjoadi) and
1 Act 28 of 2002
4
Kgaapu Stanley Mphahlele (Mphahlele) was appointed as directors of the
applicant. There has been some changes of directors but for purposes of this
judgement it is only Motjoadi and Mphahlele who remain relevant.
[11] The shareholders of the applicant was Motjoadi (51 %) and Mphahlele
(49%) until 2016 when they entered into a shareholder's agreement with Alucento
(Pty) Ltd, trading as Rubicon Consortium Coal Mining, in terms of which the latter
purchased 70% of the sharecapital. The end result of this transaction was that
Motjoadi remained with 15.3% of the sharecapital and Mphahlele with 14.7%.
[12] The shareholders agreement furthermore provided that the majority
shareholder could appoint 3 directors and Motjoadi 2.
[13] The majority shareholder duly appointed 3 directors who at the time of the
commencement of the litigation was Potlaki Maine, Mirriam Bibi Adam and Protus
Francis Mhawukelwa Sokhela
[14] On 9 December 2022 Motjoadi and Mphalele, were removed as directors in
terms of an ordinary resolution of the shareholders in accordance with section
71 (1) of the Companies Act2. Motjoadi has since passed on in August 2024.
[15] Shortly before being removed as directors of the applicant, Motjoadi and
Mphahlele incorporated a new company , Mamokebe Collieries (Pty) Ltd and was
appointed as its directors on 22 November 2022, being the same date as its
incorporation .
[16] A further two directors were added on 22 July 2024 namely Phillipus
Johannes De Wit and Sthembiso Arnold Kubeka.
[17] On 10 April 2024 and thus after being removed as directors Motjoadi and
Mphahlele, in their capacity as directors of the applicant entered into a sale of
2 Act 71 of 2008
5
shares agreement with Kubeka (Pty) Ltd (Kubeka) in terms of which they as
holders of 100% of the shares of the applicant sold 51 % of their shares (Motjoadi
26% and Mphahlele 25%) to Kubeka. The effect of this transaction was that
Kubeka was entitled to appoint two directors to the Board of Directors of the
applicant. After this transaction, the two former directors remained with a
shareholding of 24% and 25% respectiveiy and Kubeka a 51 % shareholding.
[18] After the sale of shares the new directors of the applicant was Motjoadi,
Mphahlele, Phillipus Johan De Wit and Sthembiso Arnold Kubeka, the latter two
being appointed by Kubeka (Pty) Ltd.
The litigation chronolo gy
[19] There is a protracted litigation history between the applicant and the fourth
respondent as well as between their directors and shareholders.
[20] The disputes are as follows:
20.1 Motjoadi, Mphahlele and the applicant, as represented by Motjoadi
and Mphahlele, launched an application on 10 July 2023 to have the
2016 shareholders agreement with Alucento declared null and void
and secondly to declare the appointment of the three directors
appointed by Alucento in terms of the mentioned shareholders
agreement namely Adam, Jansen and Maine as null and void. This
matter is pending under case number 2023-067386 in this court
20.2 An urgent application was launched under case number 2023-071300
in this court by Matjoadi, Mphahlele and the applicant as represented
by Matjoadi and Mphahlele on 19 July 2023 to prevent Alucento (Pty)
Ltd and the directors of the applicant from convening meetings of the
Board of Directors in respect of Mamokebe Investments and staying
the operation of resolutions carried at the meeting of 19 July 2023
pending the outcome of the application mentioned in paragraph 15.1.
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This matter was struck off the roll due to lack of urgency.
20.3 Matjoadi and Mphahlele launched an urgent application citing as
respondents Alucento (Pty) Ltd, the four directors of the applicant, the
applicant and the Companies and Intellectual Property Commission
on 3 October 2023 under case number 2023-100053 for the
rectification of the share register of the applicant to the effect that the
applicants were the shareholders of the shares in the applicant from
2006 until the date of the application, setting aside the appointment
of the directors of the applicant, setting aside the removal of Matjoadi
and Mphahlele as directors of the applicant, setting aside the
appointment of the Chief Executive officer, Dr Adam of the applicant,
interdicting the convening of meetings of directors or shareholders
and interdicting the CEO of representing the applicant in any manner
pending the outcome of the application mentioned in paragraph 15.1.
20.4 Mphahlele launched an urgent ex parte application under case
number 6453/2024 in the High Court in Middelburg on 7 December
2024. This application was launched in the name of the applicant as
represented by Mphahlele to interdict the SAPS from closing the illicit
mining operations conducted on the area of the mining right. The
directors of the applicant intervened in the application and had the
rule nisi discharged on 7 February 2025.
20.5 The Kubeka Organisation (Pty) Ltd as shareholder together with the
directors de Witt and Kubeka, brought an urgent application in the
Middelburg High Court under case number 775/2025 against the
majority shareholder of the applicant, Alucento and the SAPS. This
application was struck for want of urgency.
20.6 On 26 February 2025, the applicant and a director, Shokela, launched
an urgent application under case number 2025-028369 which came
before me in the urgent court. The relief sought at that stage was to
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remove the names of the directors, Mphahlele, Kubeka and de Witt,
instilled as a result of the shareholders agreement of 7 April 2024 and
interdicting those directors from acting on behalf of or representing
themselves as directors of the applicant.
20.7 This application was settled and an order operating as an interim
interdict pending the final adjudication of the matters referred to in par
20.1, 20.2 and 20.3 was granted by agreement. The effect of the order
was that the directors of the applicant was restored as directors and
that Mphahlele was also so restored and shall remain a director of the
applicant pending the finalisation of the matters in 20.1-20.3 .
[21] The applicant submitted the application for the transfer of the mining right to
the fourth respondent which application was submitted on behalf of the applicant
by Matjoadi in her capacity as a director of the applicant and is dated August 2024,
despite being removed as a director and the litigation in this regard still pending ..
Urgency
[22) The applicant contends that the application is urgent on the basis of an
announcement made by Ms Dlamini, employed at the third respondent , to the
effect that the office of the third respondent had already recommended the
transfer and forwarded the recommendation to the Head Office of the Department
and is awaiting final approval which is immanent and that the transfer could only
be prevented from occurring was through a court interdict.
[23] This announcement was conveyed to the applicant after the Department
was informed on 7 March 2025 of the court order and that the Board of Directors
had resolved to withdraw the application for the transfer of the mining right with
immediate effect. The Department was requested to confirm that the processing
of the transfer will not be proceeded with. No such confirmation was forthcoming
[24] On 10 March 2025, the Department was again requested not to proceed with
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the processing of the transfer application and to provide an undertaking to that
effect. The Department acknowledged receipt of the communication and referred
the applicant's representatives to Ms Dlamini in so far as the undertaking was
concerned.
[25] The CEO of the applicant, Dr Adam attended to the offices on 12 March
2025 and delivered a hard copy of the court order of 7 March as well as the
resolution of 7 March. Ms Dlamini agreed to meet with a delegation of the
applicant . It was during this meeting that the announcement mentioned in
paragraph 21 was conveyed.
[26] The applicant further contends that the effect of the granting of consent by
the first respondent is that the mining right is transferred resulting in the loss of
that asset to the applicant. The basis of this contention is that all the other
processes for the transfer and registration of the mining right in terms of the Mining
Titles Registration Act 3(MTRA) is a mere formality. The applicant further contends
that the first respondent does not have a discretion is the granting of the consent
as the MPDRA obliges the first respondent to consent to the transfer when the
jurisdictional factors mentioned in sect 23 have been found to have been met.
[27] The jurisdictional factors mentioned in section 23 of the MPDRA deals with
requirements to be complied with in respect of the operations of the new holder,
guarantees to be provided as well as viability and sustainability factors. The
applicant contend that the majority of the factors have already been assessed and
found to be compliant and that the first respondent will consequently obliged to
grant consent for the transfer.
[28] The applicant denies that there are any other legal remedy and that when
the right has been transferred it has been lost in perpetuity by the applicant
[29) The contentions by the respondents are essentially that the application is
not urgent as the first respondent has not made a decision and that the application
3 Act 67 of 1967
9
is to interdict future administrative action. They further contend that the granting
of an interdict would amount to an infringement of the separation of powers and
that the first respondent should be allowed to exercise his statutory obligations .
[30] The first three respondents contends that the applicant has alternative
remedies namely sect 96 of the MPRDA in terms of which the applicant can lodge
an appeal and apply for the administrative action to be suspended pending the
outcome of the appeal.
[31] The fourth respondent essentially raises the same grounds in opposition of
the urgency of the application. It raises the further opposing point that the urgency
is self-created as the applicant has had knowledge of the application for consent
since January 2025.
Discussion
[32] The discussion shall deal with the requirement of urgency first.
[33] The applicant states that it became aware of the application for the transfer
of the mining right in January 2025 when a contract miner, Greenlands, informed
the directors of the applicant that the fourth respondent had submitted an
application for the transfer of the mining right to the fourth respondent.
[34] Between January and April 2025 the applicant brought the urgent application
on 26 February and which culminated in the order granted on 7 March which
restored the directors of the applicant as such so that they could resolve to
withdraw the transfer application .
[35] This does not amount to undue delay neither does it constitute self-created
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urgency.4
[36] The meeting referred to in paragraph 25 occurred after the order of 7 March
2025 which restored the directorship of Mphahlele and the resolution of the Board
of Directors withdrawing the application both of which were provided to the third
respondent. .
[37] There is consequently no application for the transfer of the mining right
before the first applicant for consideration and as such the first respondent has
no basis to consider the application any longer.
[38] Section 96 of the MPRDA provides as follows:
(1) Any person whose rights or legitimate expectations have been materially and
adversely affected or who is aggrieved by any administrative decision in terms
of this Act may appeal in the prescribed manner to-
( a) the Director-General , if it is an administrative decision by a Regional Manager
or an officer; or
(b) the Minister, if it is an administrative decision by the Director-General or the
designated agency.
(2) 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.
(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.
(4) Sections 6. 7(1) and 8 of the Promotion of Administrative Justice Act, 2000
(Act No. 3 of 2000), apply to any court proceedings contemplated in this section.
[39] This right of appeal does not deal with an appeal based on a decision by the
first respondent to grant consent. The section deal only with an appeal to the first
4 Chung-Fung (Pty) Ltd v Maifair Residents Association and Others (2023/080436) [2023) ZAGPJHC 1162
(13 October 2023). Dynamic Sisters Trading (Pty) Ltd v Nedbank Limited (081473/2023) [2023)
ZAGPPHC 709 (21 August 2023)
11
respondent based on a decision by a subordinate official or entity such as the
Director General or the designated agency appointed in terms of section 70 of the
MPRDA.
[40] For a transfer of a mining right or an interest in such right the written consent
of the Minister is required in terms of section 11 (1) of the MPRDA.
[41] As there is no appeal to the Minister based on his own decision this provision
does not constitute an alternative remedy.
[42] After the consent of the first respondent have been obtained the process of
registration of the transfer has to occur. This is done in terms of the MTRA.
[43] Registration of a transfer of a mining right in terms of the MTRA occurs when
the registrar affixes his signature thereto.5
[44] Before registration, the registrar is required to examine all documents
submitted to him for registration. If the registration is not permitted by the MTRA
or any other law or as to which any other valid objection exists the registrar shall
reject the registration of such document.6
[45] In the process of examination of any document presented to him for
registration, the registrar has the power to require the production of proof by way
of affidavit of any fact necessary to be established in connection with any matter
sought to be performed by him. 7
[46] The granting of the consent by the first respondent for the transfer of the
mining right consequently does not constitute the transfer of the right. It is a mere
step in the process. The registrar is entitled to entertain objections to the
registration and has to satisfy himself as to compliance with the applicable
5 Sect 13(1) Mining Titles Registration Act.
6 Sect 5(1 )(b) Mining Titles Registration Act
7 Sect 6(1 )(a) Mining Titles Registration Act
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requirements in respect of registrability of the transfer of the mining right.
[47] The MTRA provides for an alternative remedy to be exercised during the
registration process. The applicant can avail itself of the right to object to the
registrar and can even provide the registrar with factual evidence under oath in its
objection .
Conclusion
[48] Based on the reasons above I make the order in paragraph 1
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
PRETORIA
Electronically submitted
Delivered: This judgement was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically by circulation to the Parties/
their legal representatives by email and by uploading it to the electronic file of this
matter on Caselines. The date of the judgment is deemed to be
COUNSEL FOR THE APPLICANT:
INSTRUCTED BY:
COUNSEL FOR THE FIRST TO THIRD
RESPONDENTS :
INSTRUCTED BY:
COUNSEL FOR THE FOURTH
RESPONDENT Adv Naude SC
Jaffer Inc
Adv Mpakane
State Attorney
Adv Stoop SC
13
INSTRUCTED BY
DA TE OF ARGUMENT: 10 April 2025
DATE OF JUDGMENT: 22 April 2025 Hajibey Bhayay Mayet & Stein Inc