RF.PUBLIC OI· SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION,
JOHANNESBURG
I) REPORTABLE: NO 1
12/ OF INTERES1 TO OTHER JUDGES: NO
'3) R~r,is,1D. ~ CASE NO: 2024-149729
J.?1-0.1.,.2..~~~ .
D' TE ~.IGNATURE
IN THE MATTER BETWEEN
PP GEMSTONES MINING AND
EXPORT ING {PTY) LIMITED
and
ASSMANG (PTY) LIMlTED
BLACK ROCK MINE OPf:RA I ION:;:» Applicant
First Respondent
So.:-ond Respondent
MINISTER OF POLICE
THE COMMISSIONER OF THE SOUTH AFRICAN
REVENUE SERVICES
MINISTER OF MINERALS AND PETROLEUM
RESOURCES
BENSON AJ
INTRODUCTION JUDGMENT 2
Third Respondent
Fourth Respondent
Fifth Respondent
(1] This matter was heard before me on the urgent court roll on the 3first of
December 2024, being New Years' Eve.
(2] On the 10th of January 2025, I gave an Order in the following terms:
(2.1] The application is dismissed for lack of urgency.
[2.2] The applicant is to pay the costs of the first, second and fourth
respondents , on a party and party scale, with such costs to be taxed on
Scale C of the Uniform Rule of Court 67 A (as amended ).
(2.3.] Reasons shall follow this Order.
[3] The reasons for the Order are now set out below.
3
BACKGROUND & ANALYSIS OF ARGUMENT
[4] The applicant launched an urgent application on or about the 20th of December
2024 for direct interdictory relief as against the first, second and fourth
respondents .
[5] Whilst the relief sought is couched as "pending the final decision of this
application " and ostensibly interim in nature, the application is not brought on
the ordinary 'Part A and B' basis, and as drafted, would in the event that it was
granted, constitute final relief, and would be dispositive of the merits 1. The relief
sought was opposed by the first, second and fourth respondents. No
appearance was entered into on behalf of the third and fifth respondents .
[6] The applicant's case, in summary , is that it is a mining company with a mining
permit to extract and dispose of the mineral known as 'sugilite' which "co-exists"
with another mineral, manganese , on the Farm N'Chwaning No 267, Black
Rock ("the Farm"), in the Kuruman District in the Northern Cape. In addition to
these permits, the applicant argues, "its subsidiaries " (of only one is mentioned ,
namely the Matebetsi Family Trust) hold an Environmental Management Permit
granted by the fifth respondent2. The Matebetsi Trust is however not a party to
these proceedings and its actual status and relation to the applicant is not
entirely clear. What its share of the sugilite extraction may be is not explained.
[7] Briefly, and for purposes of understanding the dispute between the parties
herein (albeit not directly relevant to the reasons set out below for this Court's
Order), sugilite is a relatively rare cyclosilicate mineral that ranges from colour
1 Notice of Motion, particularly prayers 7 to 12, Caselines, pp 02-4 to 02-5
2 Annexure PP7 to the Notice of Motion
4
from light lavender to deep purple. The first large deposits of deep purple
sugilite were discovered in South Africa in 1979 in the Kuruman area. Sugilite
is mined from a strata-bound manganese deposit, and is found in a matrix with
other minerals. Owing to its scarcity, sugilite is often mistaken for other
minerals, and in particular, amethyst.
[8] The first and second respondents , according to the applicant, were the first
entities to be granted permits to mine manganese on the Farm, and were also
the first to sink their shaft into the land situate thereat. The fact that the
manganese and sugilite are comingled underground within the same orebody,
has led to various disputes as amongst the parties, as to the entitlement,
quantity and value of the sugilite that has been extracted, produced and
allegedly sold, at the Farm.
[9] According to the applicant, it came to its attention as early as February 2024,
that the first and second respondents have allegedly been mining and
extracting manganese and disposing of same, for their own account and to the
exclusion of the applicant , without accounting to the applicant for its share of
the compensation owed to it for the sugilite component of such extracted
manganese (the share which may be owing to the other 'subsidiaries ' is not
mentioned) . In support of this contention , and the far reaching conclusions
reached by the applicant in the founding affidavit, the applicant places its main
reliance upon a statement purportedly deposed to by one Mr Chang Chingfu
("Chin9fu11)3 .
3 Annexure PP9 to the Founding Affidavit, Caselines 02-83
5
[1 O] Upon closer scrutiny of this document , it appears that it was prepared on the
10th of May 2024 at the Douglasdale Police Station, Fourways , Johannesburg ,
in relation to what appears to have been a matter dealing with the seizure by
the fourth respondent of a consignment of sugilite at Oliver Tambe International
Airport ("ORT"), from an entity known as Asuca lnternation (Pty) Limited
("Asuca"), and whilst its consignment was being held by a carrier identified
therein as 'Air Menzies International Forwarding Services'. In the document , the
author claims that Asuca had "transacted " the sugilite from the second
respondent , but was not advised that it required the requisite permit to import
or export sugilite. Asuca is not joined as a respondent to these proceedings ,
and the extent of its involvement in the alleged trade of sugilite cannot be
verified by this Court in relation to the applicant's case. How this document
came into the possession of the applicant, and the purpose for which it was
prepared, cannot be readily ascertained from the papers.
[11] To further its contentions that the first and second respondents are conducting
themselves in the unlawful manner complained of, the applicant further relies
on a host of documents which it contends constitute clear evidence that the first
and second respondents are conducting themselves unlawfully in relation to the
trade of sugilite. However, and when one considers Annexures PP10 to PP15
to the founding affidavit", it is not clear whether such documents relate to a
criminal investigation or otherwise relating to the first and second respondents '
suspicions of suspected theft at their premises by their staff of their own
'product'. In addition, interspersed reference is made throughout these
4 Caselines at pp 02-99 to 02-111
6
annexures to "MASS" (Manganese Associated Specimen Stones),
"manganese " and "sugilite", which is of no particular assistance in identifying
exactly which mineral is being referred to in each document. None of these
documents are capable of being tested and give rise to a myriad of speculative
conclusions.
[12] Whilst broad and sweeping statements are made on behalf of the applicant
throughout the founding and replying affidavits, and albeit amidst highly
suspicious circumstances that may warrant criminal investigations by the
relevant authorities as to the illicit national and international trade of
manganese , sugilite or other minerals in South Africa at large-the identity of
the subject matter to which the applicant lays entitlement in this application ,
cannot be identified by this Court. The status of the investigations (if any) that
may have prompted the production of these additional documents appended to
the founding affidavit, has not been disclosed by the applicant, which may have
had a critical bearing on the outcome of this application .
[13] In addition to the above, the applicant justifies its urgency (pertinently on New
Year's eve), as having arisen pursuant to becoming aware of a case of theft per
Tarlton CAS No. 19/12/2024 and as appears from Annexure PP4 to the
founding affidavit5. This document appears to be a copy of a subpoena issued
out of the Kuruman Magistrate 's Court in relation to an apparent charge of theft
(against an unknown entity or individual) , and which is directed to the fourth
respondent for additional information required from the prosecutor , following
what appears to be a forfeiture of a consignment of unidentified minerals at
5 Caselines at pp 02-41
7
ORT. Relying on a further statement by the deponent to the founding affidavit,
one Pitsoyagae Gabriel Matebesi,("Matebesi ") it is alleged that the applicant
first learnt of the 'arrest of Chinese Nationals on the sth of December 2024'
'
which prompted the actions of the applicant which followed 6. Matebesi's
statement to the South African Police Services ("SAPS") was made on the 11th
of December 2024, some two days after hearing of the arrests.
[14] It is not explained at any point why this urgent application was brought at this
late stage and upon such a stringent basis to allow for meaningful opposition.
This is exacerbated by the fact that most entities -whether private or public -
are not operational over the annual December/January festive season, or
function with exceptionally limited staff.
[15] Be that as it may, scant information is furnished as to the significance or
relevance of the 'arrest of the Chinese Nationals ' and why this necessitated
urgency in the extreme on the part of the applicant. What the applicant fails to
set out in its founding affidavit, however, is the fact that the product confiscated
by the fourth respondent from Asuca (and Chingfu by implication -which must
have prompted the preparation of Annexure PP9) occurred as early as
February to May 2024. This was conceded in argument.
[16] To date, the product, which was confiscated from Asuca, and on other
occasions , is alleged to be sugilite. No expert confirmation to this effect is
available, and the applicant cannot confirm it as such. This too was conceded
in argument on behalf of the applicant, and the figure of 619 kg initially relied
upon in the Notice of Motion was whittled down and subsequently reduced to
6 Caselines, Annexure PP3, p 02-38
8
an alleged 30 kg to which the applicant now lays claim. This reduced quantity,
of course, has a significant bearing on the question of urgency, owing to the
significant reduction in the commercial value of the alleged right which the
applicant relies upon, and the absence of an alternative remedy as against the
respondent s it seeks direct and compensatory relief against.
[17] More significantly however, is the fact that the applicant failed to disclose in its
founding affidavit that prior to Matebesi making his statement referred to above
to SAPS, and on the 10th of December 2024, the applicant had launched an
application in the ordinary course for essentially and substantially the same
relief, in the Gauteng Division of the High Court, Pretoria7 under case number
146107/2024 , as against the same respondents . After the applicant had
brought the initial application , it's attention was drawn by the fourth respondent
to the provisions of section 96 of the Customs and Excise Act, No 91 of 1964
("the Customs Act") on the morning of the 19th of December 20248. The
applicant nevertheless deemed it appropriate to proceed to hastily complete the
founding affidavit in this matter and issue the application on the 20th of
December 2024.
[18] The urgent application was only served on the first respondent on the 23rd of
December 2024, and on the second respondent on the 2fourth of December
2024, the latter being Christmas eve. Whilst it appears that the fourth
respondent filed its Notice of Intention to Oppose on the 23rd of December 2024,
it is not clQar when it was served with the application. Be that as it may, it bears
mentioning that in the stringent time frames afforded to the respondents to
7 First and second respondents' answering affidavit, para 17, Annexure AA2, Caselines at p 02-193
8 Caselines 02-350 to 02-354
9
oppose this application , this Court was only afforded the opportunity to consider
the replying affidavit to the fourth respondent's answer at approximately 02h00
on the morning of the 3first of December 2024.
STATUS OF APPLICANT'S ENVIRONMENTAL AUTHORISATIONS AND
MINING PERMIT
[19] Although the Matebesi, the Matebesi Family Trust and the applicant were
granted Environmental Authorisations in terms of section 24L of the National
Environmental Management Act 107 of 1998 ("NEMA"), for an activity which
requires a mining permit in terms of section 27 of the Mineral and Petroleum
Resources Development Act, 2002 ("MPRDA")9, the exercise of an
environmental authorisation is dependant on the granting of a mining permit
authorising the activities for which the environmental authorisation has been
issued.
[20] For a party to mine lawfully, an environmental authorisation is required for
relevant listed activities. Section 24(2) of NEMA provides that the Minister of
DFFE may identify activities which may not commence without environmental
authorisation from the competent authority. Government Notice number R327
of 7 April 2017 identifies activity number 21 as "an activity requiring an
environmental authorisation , being any activity including the operation of that
activity which requires a mining permit in terms of section 27 of the MPRDA".
9 An environme ntal authorization is defined in section 1 as the authorization by a competent authority of a
listed activity in terms of NEMA.
10
[21] Pertinently omitted from the founding affidavit, is the fact that previously , and
by Order of the 20th of November 2023, upon application by the first respondent
in these proceedings to the Gauteng Division (Pretoria) , Van Der Schyff J.
reviewed and set aside the three environmental authorisations so granted.
Leave to appeal by the Regional Manager: Mineral Regulation, Northern Cape
Regional Office was subsequently sought, which was dismissed on the 18th of
November 2024 by the Court a qua. This was not long before the first
application was launched by the present applicant in that same division.
Whether any application has been made to challenge the judgment , to the
Supreme Court of Appeal, is not clear. Accordingly , the issue of the applicant's
entitlement to the sugilite as asserted, is further placed in question. Whether
the applicant even has the requisite permits to export sugilite is also not on the
papers before this Court.
[22) In terms of section 96(1) of the MRPDA:-
"(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 within 50 days becoming [sic]
aware of such administrative decision in the prescribed manner ... "
[23) In terms of section 96(3) of the MPRDA:-
"No person may apply to the court for the review of an administrative decision
contemplated in section (1) until that person has exhausted his or her remedies
in respect of that subsection ."
11
[24] Whilst the Constitutional Court has acknowledged that a litigant has no
obligation to exhaust such internal remedies to appeal in terms of section 96
where the Department makes it clear that the matter should be decided by the
Court or where the Department requests non-exhaustion of the remedy, this is
not the issue I am asked by the applicant to determine 1°. In any event, the first
respondent has lodged an appeal to the Director General of Mineral Resources
and Energy in terms of section 96(1) of the MPRDA read with regulation 74,
and dated 16 May 202411, which appeal is pending. It is accordingly not
necessary for me at this juncture, -and in the absence of being asked to do so
by the applicant in any event -to determine whether this Court would enjoy
jurisdiction to determine whether the applicant has a lawful mining permit or not
under the present circumstances , although it is doubtful that our Courts would
arrive at such a conclusion.
[25] Be that as it may, as argued by Mr. Peter on behalf of the fourth respondent ,
and even assuming in the applicant's favour that the substantive validity of the
grant of the environmental authorisation was not necessary for the issue of the
mining permit, but rather only the factual existence of the environmental
authorisation -irrespective of whether or not it was validly issued -the mining
permit only had legal effect until 17 November 2023 when the environmental
authorisations were set aside 12.
[26] Aside from this difficulty the applicant has failed to provide evidence of when
~nd \Nhere the allG19ed sugilite was mined. Even if it had been extracted at a
10 Dengetenge Holdings (Pty) Limited v Southern Sphere Mining and Development Co Ltd & Others 2014 (5) SA
138 (CC) at 91 to 93
11 First and second respondents' answering affidavit, Caselines at p 02-262
12 Oudekraa/ Estates {Pty) Limited v City of Cape Town & Others 2004 (6) SA 222 (SCA) at 243-244 par 31
12
time when the applicant's permit was valid (or that of its 'subsidiaries '), it would
be incumbent upon the applicant to make out a case and provide evidence to
the Court that the extraction took place in the area for which the applicant's
permit was issued. The applicant has failed to deal with either the timing or the
location of the alleged extraction relied upon.
[27] In the absence of the applicant meaningfully dealing with these critical aspects
of its mining rights and requisite environmental authorisations at all, it has failed
to set out the prima facie or clear right that would entitle it to the interdictory
relief it seeks. Simply put, it has failed in this application to establish ownership
of the sugilite in question and failed to disclose critical facts that would have a
direct bearing on its application . What compounds issues is that the applicant
cannot even establish when last any mining activity took place in the 4.9 ha
area referred to in its permit13.
[28) The applicant's reliance in this regard to the decision in Trojan Exploration
Company (Pty) Ltd & another v Rustenberg Platinum Mines Ltc:114 & others
is misplaced. Firstly, in that matter the founding of co-ownership of the parties
was as a consequence of a cession agreement , and the imputed intention of
the parties that they would jointly acquire such co-ownership . There is no such
agreement in this case. Secondly a co-owner who performs mining and
separation of minerals is entitled to sell the other minerals (albeit not for its own
account) but must still account to the other co-owner whose minerals are so
sold. Such a sale leads to a loss of ownership rights in the minerals themselves .
and all that is retained is an obligation to account to the co-owner whose
13 Caselines 02-133/38.5 and 138/46
1414 1996 (4) SA 499 (A) at
13
minerals may have been sold or the 'beneficiat ion' of the minerals 15. The Trojan
decision does not constitute authority for preservation of ownership , nor a claim
for vindicatory relief as argued by Mr. Ntsewa on behalf of the applicant.
CONCLUSION & COSTS
[29] The High Court has inherent jurisdiction to prevent abuse of its process. The
applicant launched the present application in exceptionally truncated times
(especially given the time of the year) in circumstances where there is no
justification for the urgency on the papers 16.
[30] Notshe AJ stated in East Rock Trading 7 (Pty) Limited v Eagle Valley Granite17
that:
"[7] It is important to note that the rules require absence of substantial
redress. This is not equivalent to the irreparable harm that is required
before the granting of interim relief It is something less. He may still
obtain redress in an application in due course, but it may not be
substantial. Whether an applicant will not be able to obtain substantial
readiness in an application in due course will be determined by the facts
of each case. An applicant must make out his case in that regard."
[31] Not only does the applicant have a pending application in the Pretoria High
Court that can be heard in due course on its own merits (and as may be duly
amplified upon or duly supplemented in due course if necessary or permitted) ,
but on the applimmt'o own vernion and in addition to the pending litigation the
15 Trojan supra at 82
16 Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasie s
17 (2011) ZAGPJHC 196 {23 September 2011) at 7
14
alleged confiscated sugilite is in the custody of the fourth respondent. It cannot
be said that the fourth respondent will be unable to satisfy any alternative claim
for damages in the event that the applicant can establish that the confiscated
items are indeed sugilite and that it has some form of entitlement thereto in due
course. As pointed out by Ms. Eksteen for the first and second respondents ,
the applicant has presented no evidence to suggest that without being heard
and granted relief by this Court, that it will not be able to obtain substantial
recourse or redress at some future date.
[32] It was further argued on behalf of the fourth respondent that before even dealing
with the absence of any case for urgency that this court simply lacks the
jurisdiction to grant any relief against the fourth respondent by reason of lack of
compliance with section 96 of the Customs Act on the part of the applicant. To
this end, it was further argued that section 96 is peremptory , and that non
compliance therewith cannot be condoned.
[33] Section 96(1)(a) makes clear provision that no process by which any legal
proceedings are instituted against the Commissioner may be served before the
expiry of one month after the delivery of a notice in writing, setting forth clearly
and explicitly the cause of action of the litigant and certain other details.
[34] it was argued on behalf of the applicant in reply (which is not contained in the
affidavits) that in the event that section 96 is peremptory, and that non
compliance therewith cannot be condoned , that it is unconstitutional and should
be subjected to the scrutiny of the Constitutional Court.
[35] However, considering that the application is stillborn on urgency and that the
applicant has failed to demonstrate its entitlement to claim relief as against the
JS
C0mrrnss1one, in letms ot the Customs Act (bearing in mind it is neither the
exporter or the cleanng house from which the minerals in question were se,z:ed)
coupled with the fact that the exporters, importers and clearing houses that
may have an interest m the outcome of this application are not before this Court
-1t is not necessary for the urgent court to decide such vexed legal issues at
this time.
[36] In addition it is not necessary that the fourth respondent's application to strike
out certain offending portions of the founding affidavit be dealt with, as the
outcome of same is moot.
[37} I see no reason to revise the Order previously given, in dismissing the
application for tack of urgency. Nor do I deem it appropriate to deviate from the
normal principle that costs follow the result. Considering the facts, I am not
persuaded that the first, second and fourth respondents should be deprived of
their costs in opposing this matter. Owing to the complexities which have arisen
in this matter, and the need to employ senior counsel over the festive season,
I am satisfied that the applicant pays the first, second and fourth responden ts
on a party and party scale, with such costs to be taxed in accordance with Scale
C, of the Uniform Rules of Court.
G.Y.BENSON
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL DIVISION ,
JOI IANNr=SQURG
Appearances:
Date of hearing
Date of judgment:
For the Applicant:
Instructed by:
For First & Second Respondents:
Instructed by:
For Fourth Respondent:
Instructed by:
For the Third & Fifth Respondent: : 31 December 2024
: 27 January 2025
ADV. K. NTSEWA
Moloko Mokobi Attorneys
Adv. E. EKSTEEN
Werksmans Attorneys
ADV. J. PETER SC
Ramashu Mashile Attorneys
No appearance 16