REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No : 2023 -031181
GIDEON PETRUS ANDERSON
First Applicant
JOHANNA CATHARINA ANDERSON
Second Applicant
and
SILVER UNICORN COAL AND MINERALS (PTY) LTD
First Respondent
SCRIBANTE NEW GEN MINING (PTY) LTD
Second Respondent
KERNSIG TWAALF (PTY) LTD
Third Respondent
THE MINISTER, DEPARTMENT
WATER AND SANITATION
Fourth Respondent
THE MINISTER, DEPARTMENT OF
MINERAL RESOURCES AND ENERGY
Fifth Respondent
THE MINISTER, DEPARTMENT OF Sixth Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED : YES .
16 May 2025
FORESTRY, FISHERIES AND THE ENVIRONMENT
MEC FOR AGRICULTURE, RURAL DEVELOPMENT,
LAND AND ENVIRONMENTAL AFFAIRS ,
MPUMALANGA
Seventh Respondent
OLF MINING (PTY)) LTD First Intervening Party/
Eighth Respondent
KALAMIN (PTY) LTD Second Intervening
Party/
Ninth Respondent
MENAR CAPITAL (PTY) LTD Third Intervening Party/
Tenth Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
SK HASSIM J
[1] Portion 3 (“portion 3”) of the Farm Olifantslaagte 378 JS (“Olifantslaagte ”) is
owned by OLF Farms (Pty) Ltd (“ OLF Farms ”). 1 The applicants are the owners of
erven which lie close to portion 3. They apply to interdict the first respondent, Silver
Unicorn Coal and Minerals (Pt y) Ltd (“ Silver Unicorn ”), a coal mining company, from
conducting open cast coal mining on portion 3 .
[2] The first applicant, Mr. Anderson, is the registered owner of portions 9, 10, 13,
14, 17, 19, and the remaining extent of Olifantslaagte. His wife, the second
applicant, is the registered owner of portion 4 of Olifantslaagte. The applicants live
on portio n 17. Mr. Anderson conducts agricultural operations on the various portions
of the farm Olifantslaagte owned by him and his wife. Portion 3 lies next to some
portions of the Farm Olifantslaagte owned by the first applicant.
1 Kernsig Twaalf (Pty) Ltd , the third respondent was the previous owner of portion 3. It sold the
property to OLF Farms on 18 January 2023 .
[3] Silver Unicorn was the holder of the mining right over the Farm Olifantslaagte
378 JS. It successfully applied under section 102 of the Mineral and Petroleum
Resources Development Act, Act 28 of 2002 (“the MPRDA ”) for an amendment to
the mining right to extend its area to include amongst others portion 3 . It
commenced open -cast coal mining on portion 3 , during January 2023.
[4] Menar Capital (Pty) Ltd (“ Menar ”) has launched an application to review the
decision to amend the mining right.
The respondents
[5] OLF Mining (Pty) Lt d (“OLF Mining ”) is a contractor appointed by Silver
Union. That relationship is a holder -contractor relationship contemplated in section
101 of the MPRDA. Kalamin (Pty) Ltd (“ Kalamin” ) is financing the mining activities
under a written agreement between it and OLF Mining.
[6] OLF Mining, Kalamin and Menar have intervened as the eighth, ninth and
tenth respondents, respectively , by agreement . OLF Mining and Kalamin support
Silver Unicorn ’s opposition to this application and oppose the Andersons’ application.
They counter -apply for a structural interdict in the event the mining operations on
portion 3 are interdicted.
[7] Menar contends that in light of its successful application 2 for a prospecting
license in respect of portion 6 , 3 the run of mine (“ROM”) and coal mined by S ilver
Unicorn are part of the resource over which it enjoys a prospecting right. It therefore
claims to have an interest in the cessation of mining activiti es on portion 6 . Menar is
optimistic that it will obtain prospecting rights over portion 3 and will consequently
have the exclusive right to exploit the coal reserve. It contends that Silver Unicorn is
appropriating Menar’s coal reserves causing it preju dice.
2 The decision to grant the prospecting license to Menar is the subject of an internal appeal by
Silver Unicorn. The internal appeal w as pending when this applic ation was argued.
3 Menar has prospecting rights in respect of certain portions of the farm Olifantslaagte 378,
Middelburg which included prospecting rights with regards to portions
3,4,5,7,8,9,11,12,13,14,15,16,17,18 as well as the remainder of farm Olifantslaagte 378,
Middelburg.
[8] As mentioned, Menar is also the applicant in an application to review the
decision made under section 102 of the M PRDA to extend Silver Unicorn’s mining
right to portion 3. The review application was pending when this application was
launched and argued.
[9] Menar supports the Andersons’ application for an interdict , but wants the
scope of the relief claimed by the Andersons expanded to prohibit Silver Unicorn
from disposing of the run of mine (“ROM”) and stockpiles on portion 6 .
[10] The second respondent abides the decision in this application . The third, and
fourth to seventh respondents have not participated in the proceedings. In summary,
Silver Unicorn, OLF Mining , and Kal amin oppose the application . Menar supports
the application and mov es for an order expand ing the relief claimed by the
Andersons to interdict Silver Uni corn from disposing of run of mine and coal
stockpiles which have been extracted and placed in the yard on portion 3 and which
Silver Unicorn plans on removing to avoid an environmental emergency.
[11] Silver Unicorn avers that the obligation under NEMA to obtain an
environmental authorisation does not apply if prospecting and mining activities had
been conducted before the statutory requirements were imposed . It argues that
because prospecting and mining operations had been conducted on portion 3 since
1986 , it did not have to obtain an environmental authorisat ion. It thus commenced
mining activities on portion 3 in the belief that it did not require prior environmental
authorisation. It avers elsewhere in the answering affidavit that it was under the
impression that the environmental authorisation issued to i t on 20 March 2022 in
respect of portions 4 and 19 had been amended in November 2008 to include
portions 3,11 and 12 thereof. In March 2023, some two months after mining
operations had commenced on portion 3, Silver Unicorn discovered that this was not
the case. On 3 April 2023, it applied under section 24G of NEMA to rectify the
unlawful commencement of mining (“ the section 24G rectification application”) .
[12] Regarding a water use license, Silver Unicorn argued that it believed that a
water use application submitted in 2011 covered all portions of the farm
Olifantslaagte . When it discovered that portion 3 was not included, it applied for a
new water use license in April 2023. The new application for a water use license
was pending when this application was heard. Silver Union claims that the water
use license will be issued. The Andersons on the other hand express doubt .
[13] The applicants s eek the following relief in the notice of motion:
(a) “An i nterdict restraining the fir st and/or second respondent from
conducting any mining activities and any activities preparatory , ancillary
or incidental to mining , including without limita tion any cutting or clearing
of vegetation, any establishment of roads, any construction or installat ion
of buildings , infrastructure or equipment and any drilling , excavation ,
digging , removal of soil, coal , ore or any mineral on portion 3 of the farm
Olifantslaagte JS , district Middelburg unless and until at least,
cumulatively , the following have transpired regarding statutory
autho risatio ns relating to portion 3 of the farm Olifantslaagte JS :"
(i) “A valid water use license …authorised by the Department of Water
and Sanita tion in terms of section 21 of the National Water Act , No
36 of 1998 (“the NWA ”); and/or ”
(ii) “An Environmental Authorisation ("EA") … authorised in terms of
section 24 of the National Environmental Management Act No . 107 of
1998 (" NEMA ") by the Minister of Mineral Resources and Energy .”
[14] The Andersons notified the respondents of their intention to amend the notice
of motion. They objected to the amendment. Consequently, the Andersons applied
to amend the notice of motion by the inserti on of the following paragraphs :
"2.3 Pending the first respondent's attempts to obtain a valid Water Use
Licence and Environmental Authorisation over Portion 3 of the farm
Olifantslaagte, and in the light of the current illegal and unauthorised
mining project being carried out over the farm, the first respondent is
compelled, withi n fourteen (14) days after this Order to take the following
steps under the management and control of the fourth to seventh
respondents to regulate and rehabilitate any environmental issues as
follows:
2.3.1 to appoint a suitable professional with at least 15 years' experience within
seven (7) days of this Order, to compile a rehabilitation action plan within a
further seven (7) days of appointment with regard to its unlawful activities.
2.3.2 the rehabilitation action plan must entail and include, amongst others –
(a) actions to be implemented to assess and address the impact and
risks associated with the mining activities on water resources and the
environment;
(b) Immediate actions to be implemented to address any immediate risks
pending finalisation and implemen tation of the full rehabilitation action
plan;
(c) to indicate the estimated cost of the implementation of the entire
rehabilitation action plan and process;
2.4 to submit the rehabilitation action plan to the fourth to seventh respondents
for consideration;
2.5 implement any recommendation or directive of the fourth to seventh
respondents subject to their powers and objects under the National
Environmental Management Act, 107 of 1998 (" NEMA”) or the National
Water Act, 36 of 1998 ("the NWA ”) in respect of the mining activities which
were unlawfully conducted on the farm."
[15] The application for the amendment was opposed. For reasons that will
emerge I do not have to consider the application nor do I have to consider Kalamin’s
conditional counterapplication.
[16] The joint practice note filed by the parties prior to the hearing records the
following facts to be common cause:
(a) “Silver Unicorn is the holder of the mining right in respect of portion 3 ”;
(b) “Silver Unicorn, through its mining contractor, OLF Mining, is mining on
portion 3 and the mined coal has been stockpiled on portion 3 ”.
(c) “Silver Unicorn does not hold an EA and a WUL” .
(d) “Silver Unicorn brought an application in terms of section 24G of NEMA
for the grant of an EA to continue mining, which application is pending.
Silver Unicorn disputes that the application was brought to continue
mining.”
[17] The application is aimed at the cessation of mining operat ions on the basis
that without the requisite authorisations, the mining operations on portion 3 are
unlawful. The Andersons seek to restrain mining activity “at least until [Silver
Unicorn] has complied with the requirements imposed by [NEMA ], the [MPRDA ] and
the [NWA ] and related legislation”. According to the Andersons the area where
Silver Unicorn is conducting mining is environmentally a highly sensitive area. They
aver that the unlawful commencement of mining activities on portion 3 will be
environmentally catastrophic and will cause irreparable harm to the environment, to
their agricultural operations , and those of local communities. And therefore, the
unlawful mining should be restrained until a water use license and/or an
environmental authorisation is issued.
The rights and obligations under the relevant statutory instruments applicable
to mining activities , the consequences flowing from, and interplay between ,
them
[18] An environmental authorisation is a condition prior to a mining right being
granted under the MPRDA. Mining is prohibited in the absence of an environmental
authorisation and a mining right (section 5A of the MPRDA). However, the holder of
a mining or other right , or permit under the MPRDA who conducts an operation in
contravention thereof , or contravenes a condition in an environmental authorisation ,
is allowed an o pportunity to remedy the contravention, or breach (section 47(3) of
the MPRDA) . In the event that a person , despite being directed under se ction 47 to
remedy the breach or failure , failing to do so, the Minister of Minerals and Petroleum
Resources has the right to cancel or suspend the mining right or permit.
[19] Section 24F of NEMA prohibits the commencement or continuation of mining
activities without an environmental authori sation. If such activities have commenced ,
section 24G allows the person concerned to apply for an environmental
authorisation. And , the Minister responsible for Environmental Affairs and the
Minister responsible for Minerals and Petroleum Resources, whichever applicable , is
empowered to direct the applicant to do a wide range of things set out in section
24G(1)(c)(aa) 4. These include the immediate cessation of the mining activity, the
remediation of any adverse effects of the activity on the environment, cease modify
or control any act, activity process or omission causing pollution or environmental
degradation, eliminate any source of pollution or degradation. In deciding an
applicati on under section 24G the relevant Minister may take into account whether
the directive issued under section 24G(1) was complied with. Section 24G(4) 5 sets
4 “24G Consequences of unlawful commencement of activity
(1)(c) …
the Minister, Minister responsible for mineral resources or MEC concerned, as the
case may be
(aa) must direct the applicant to
(A) immediately cease the activity pending a decision on the application
submitted in terms of this subsection, except if there are reasonable
grounds to believe the cessation will result in serious harm to the
environment;
(B) investigate, evaluate and assess the impact of the activity on the
environment;
(C) remedy any adverse effects of the activity on the environment;
(D) cease, modify or control any act, activity, process or omission causing
pollution or environmental degradation;
(E) contain or prevent the movement of pollution or degradation n of the
environment;
(F) eliminate any source of pollution or degradation;
(G) undertake public participation which is appropriate to bring the
unlawful commencement, undertaking or conducting of a listed,
specified or waste management activity to the attention of interested
and affected parties, and to provide them with a reasonable
opportunity to comment on the application in accordance with relevant
elements of public participation as prescribed in terms of this Act; and
(H) compile a report containing
(AA) a description of the need and desirability of the activity;
(BB) an assessment of the nature, extent, duration and significance of
the consequences for, or impacts on, the environment of the
activity, including the cumulative effects and the manner in
which the geographical, physical, biological, social, economic
and cu ltural aspects of the environment may be affected by the
proposed activity;
(CC) a description of mitigation measures undertaken or to be
undertaken in respect of the consequences for, or impacts on,
the environment of the activity; and
(DD) a description of the public participation process followed during
the course of compiling the report, including all comments
received from interested and affected parties and an indication of
how the issues raised have been addressed, if applicable; and
(bb) may direct the applicant to compile an environmental management
programme or to provide such other information or undertake such further
studies as the Minister, Minister responsible for mineral resources or MEC,
as the case may be, may deem necessary. ”
5 “A person contemplated in subsection (1) must pay an administrative fine, which may not
exceed R10 million and which must be determined by the competent authority, before the
Minister, Minister responsible for mineral resources or MEC concerned may act in terms of
subsection (2) (a) or (b).”
out the consequences of the commencement of an activity in contravention of
section 24F. One of t hese is the requirement that the person who applies under
section 24G for an environmental authorisation must pay an administrative fine
before an environmental authorisation , subject to conditions which the relevant
Minister deems necessary, may be issued .
[20] Section 5(3) of the MPRDA entitles t he holder of a mining right to use water
from any natural spring , lake, river, or stream, situated on, or flowing through, such
land or from any excavation previously made and used for prospecting, mining,
exploration, or production on such land. The right is however not absolute. The use
must be authorised under a license, or authorisation, issued under the NWA.
Interdictory r elief
[21] It is not clear from the papers, neither the affidavits nor heads of argument,
whether the Andersons are seeking final or interim interdict ory relief . The lack of
clarity is compounded by averments of irreparable harm 6 to land, water resources,
and surrounding ecosystems. It was held in Setlogelo , 7 and been repeatedly
confirmed, that an applicant for interdictory relief on the basis of a prima facie right,
not a clear right, must establish irreparable harm. This app ears from the following
passage in the judgment of Innes CJ in Setlogelo :
“The requisites for the right to claim an interdict are well known; a clear right,
injury actually committed or reasonably apprehended, and the absence of
similar protection by any o ther ordinary remedy…
But it was urged that … no irreparable injury had been sustained. That was
not the ground upon which the learned judge based his refusal; but in any
event it is not a ground which can avail the respondent in this case. The
argument as to irreparable injury being a condition precedent to the grant of
an interdict is derived probably from a loose reading in the well -known
6 An applicant who has established a clear right need not prove any irreparable damage. If it
establishes only a prima facie right, then it must prove irreparable damage in addition to a well-
grounded apprehension of injury. Cf. Free State Gold Areas Ltd v Merriespruit (Orange Free
State) Gold Mining Co. Ltd and Anot her GM Co 1961 (2) SA 505 at 515A -D
7 Setlogelo v Setlogelo 1914 AD 221 at 227
passage in Van der Linden's Institutes where he enumerates the essentials
for such an application. The first, he says , is a clear right; the second is injury.
But he does not say that where the right is clear the injury feared must be
irreparable. That element is only introduced by him in cases where the right
asserted by the applicant, though prima facie established, is open to some
doubt. In such cases he says the test must be applied whether the
continuance of the thing against which an interdict is sought would cause
irreparable injury to the applicant. If so, the better course, is to grant the relief
if the disconti nuance of the act complained of would not involve irreparable
injury to the other party: Van der Linden, Inst. (3, 1, 4, 7).”
[22] The opposing respondents contend that the Andersons are seeking a final
interdict. Mr Louw SC, who appeared for Menar Capital in his written argument,
discusses why Menar Capital also holds the view that the relief claimed is final. I
agree that the relief claimed by t he Andersons is final. Even though an interdict may
be operative for a fixed or determinable period, it may still be final in its nature and
effect. 8 Though the order as couched will endure until, and unless, the requisite
authorisations are issued to Silver Unicorn , the relief is final in its nature and effect.
The immediate objective of an interim interdict is to preserve or restore the status
quo pending the final adjudication of the parties' rights. 9 There will be no later and
final determination of the parties ’ rights. 10 The Andersons seek to interdict Silver
Unicorn from carrying on mining in perpetuity without the necessary authorisations,
namely (i) a valid water use license under section 21 of the NWA; and/or (ii) an
environmental authorisation under sect ion 24 of NEMA. The Andersons must
therefore establish a clear right and the question whether irreparable harm would be
caused to them if an interdict is refused does not arise.
[23] Accordingly, the Andersons must establish (i) a clear right ; (ii) an unlawf ul
interference with that right, actually committed or reasonably apprehended; and (iii)
the absence of any other satisfactory remedy. 11
8 Airoadexpress v LRTB, Durban 1986 (2) S A 663 at 681E -F.
9 See Prest The Law and Practice of Interdicts 1996, p .2.
10 Airoadexpress at 681D -E.
11 Setlogelo v Setlogelo 1914 AD 221 at 227.
[24] I cannot discern the right which the Andersons seek to protect or prevent
interference with. It is averred in the founding affidavit:
“7. [Silver Unicorn] cannot lawfully mine on [portion 6]. There are two primary
reasons why this is so:
7.1 Firstly, [Silver Unicorn] does not have a valid Water Use License
(WUL);
7.2 Secondly, [Silver Unicorn] does no t have a valid Environmental
Authorisation (“EA”).
8. The applicants thus have a clear right, alternatively a prima facie right.
The impact of the unlawful commencement of mining activities on the
environment and surrounding areas will be environmentally catastrophic
and will cause irreparable harm to the environment, the agricultural
operations of the applicant, and local communities. The applicants are
justified in seeking an urgent interdict to prevent this irreparable harm to
this highly sensitive area. ”
[25] The founding affidavit mentions the various rights listed in section 24 of the
Constitution of the Republic of South Africa, 1996 (“ the Constitution ”). But, the
right, clear , or prima facie that the Andersons want to prote ct from infringement is
not specifically identified . It is unclear whether the y are asserting that the “unlawful”
mining confers upon them a right to restrain Silver Unicorn from continuing mining
operations , or whether they are asserting that they have a right to prevent
“environmentally catastrophic ” impact s and “irreparable harm to the environment
and [their] agricultural operations ”, and seemingly the agricultural operations of local
communities .
[26] My understanding of the Andersons’ , and Menar’s , argumen t is that the mere
carrying on of mining activities without the requisite authorisation s, vests in them the
right to compel Silver Unicorn to cease mining activities on portion 3.
[27] I do not agree with the Andersons, nor Menar that mining activities without
the necessary statutory authorisations creates a right which the Andersons, or
Menar can enforce through interdictory relief. The MPRDA (section 47) as well
NEMA (section 24G) add ress the situation where mining is carried out with out the
requisite authorisations.
[28] Section 24G (1)(c)(aa) of NEMA empower s and obliges the Minister of
Mineral Resources and Energy to direct the person who commenced mining without
an environmental autho risation to immediately cease mining. The person is allowed
the opportunity to rectify the contravention and take the steps the Minister has
directed. The s ection envisages a situation where albeit that mining commenced
without an environmental authorisat ion, the Minister would not direct the cessation
of mining “if there are reasonable grounds to believe the cessation will result in
serious harm to the environment”. Where such grounds exist the Minister who is
given the power and obligation to direct the cessation of mining cannot do so. This
suggests that the right (and power) to stop mining rests with the Minister. And
mining without an authorisation does not create or confer a right on someone other
than the Minister to apply for interdictory relief. Section 47 of the MPRDA
empowers the Minster to cancel a mining right if mining is conducted without an
environmental authorisation. However , that power can not be exercised unless the
Minister has notified the holder of the right of his intended action, given reasons
therefor , and has afforded the holder of the right an opportunity to show why the
right should not be cancelled. Section 53 of the NWA affords to the person who
contravenes the provisions of Chapter 4, which includes section 22, to r ectify the
contravention. As far back as Patz v Green 12 it has been established that:
“Where a statute prohibits the doing of a particular act affecting the public, no
person has a right of action against another merely because he has done the
prohibite d act. It is incumbent on the party complaining to allege and prove
that the doing of the act prohibited has caused him some special damage -
some peculiar injury beyond that which he may be supposed to sustain in
common with the rest of the Queen's subjec ts by an infringement of the law.
But where the act prohibited is obviously prohibited for the protection of a
particular party, then it is not necessary to allege special damage .”
12 1907 TS 427 at 433.
[29] NEMA, the NWA and MPRDA fall within a category of statutes that prohibit
the doing of acts which affect the public. I am not satisfied that Silver Unicorn has
established, nor for that matte r that Menar has established , some special damage.
[30] Horn J in Interwaste (Pty) Ltd and Others v Ian Coetzee 13dealt with the
question whether the applicants could restrain and interdict the operation of a
landfill site until such time as the requisite licence or permission had been obtained.
The applicant s contended that because the respondents were operating a land fill
site w ithout a licence , they were entitled to interdict the respondents from doing so.
The following passages from the judgment are instructive in this case:
“[26] An important aspect of the appellants’ [sic] case, is their reliance on the
failure by the res pondents to obtain a licence in terms of the provisions
of the Waste Act to operate the landfill site. Insofar as it concerns the
applicants’ reliance on the lack of a licence, I am not convinced that
this per se gives the applicants a clear right for the purpose of a final
interdict.
[27] In my view the applicants are confusing the situation where a licence is
required for a particular activity and the operation of that activity. The
mere failure to obtain a licence will not necessarily satisfy the
essentialia required for a final interdict. The clear right must lie with the
applicants, not with the respondents’ failure to obtain a licence. The
clear right does not become established simply because the
respondents are contravening a statutory provis ion. The contravention
of a legislative requirement does not per se infringe on the rights of the
applicants. The mere fact that there has been a failure to obtain a
licence in terms of the legislation does not, for the purpose of obtaining
a final inter dict, establish a clear right vis-à-vis the applicants.
[28] A person should not take it upon himself to play policeman and seek
to enforce laws which fall squarely within the domain of the
environmental authorities who are after all directly responsibl e for the
enforcement of the environmental legislation.
13 Case No 23921/2012 (24 April 2013) South Gauteng High Court
…
[38]
38.1 In Lazkey and Another v Showzone CC and Others 2007 (2) SA
48 (C) Binns -Ward AJ (as he then was) found, with respect,
correctly in my view, that the Environmental Conservation Act was
enacted for the benefit of the public. At p. 56 (par (16) of the
judgment he says:
‘The aforementioned contextual considerations support the
conclusion that the regulations were intended to provide for the
controlled utilisation of the environment and matters incidental
thereto for the general benefit of the public. ’
38.2 It is trite that where legislation has been enacted for the public
benefit, an applicant in interdict proceedings has to show actual
harm committed or reasonably apprehended (p. 55, par (13 ) of
the judgment of Binns -Ward AJ in Lazkey supra ). Insofar as the
judgment of Van Reenen J in the unreported case of Tergniet and
Toekoms Action Group and Another v Outeniqua Kreosool Pale
(Pty) Ltd and Others , Case no 10083/2012 dated 29 January
2009, is in conflict with the judgment of Binns -Ward AJ in Laskey
(supra ) in respect of this aspect, I prefer the findings of Binns -
Ward AJ.
38.3 There can be no doubt that the provisions of the Waste Act and
NEMA, which really take their example from the Environmen tal
Conservation Act, were enacted for the benefit of the public.
Consequently the applicants, in particular the second and third
applicants, had to prove actual harm committed or reasonably
apprehended. In my view they have failed to do so. ”
[31] I am not satisfied that the Andersons have established a right, neither clear
nor even prima facie , worthy of protection at law. With the result that wrongful
conduct vis -à-vis the Andersons (or an interference with their rights) has not been
established by them . Simplistically, I would put it as ‘no right, no infringement or
injury ’. In these circumstances , I cannot find that Silver Unicorns’ mining activities
constitute an interference with the Andersons’ rights. The failure to establish a clear
right is dispos itive of the application for a final interdict.
[32] Lest I have erred in finding that the Andersons have not established a right,
clear or prima facie , the application must still fail for a different reason. The
Andersons have not met the second requirement for a final interdict either.
[33] The test in determining whether an applicant has established a reasonable
apprehension of an infringement of its rights was set o ut by Williamson J in Free
State Gold Areas L td v Merriespruit (Orange Free State) Gold Mining Co Ltd and
Another 14
A reasonable apprehension of injury, in my view, is one which a reasonable
man might entertain on being faced with certain facts. …[An] applicant only
ha[s] to show that it [is] reasonable to apprehend that injury would result”
[34] The Andersons refer, in their affidavits, to a motley of harmful consequences
that m ining activities general ly cause to the environment, water resources, human
health, and aquatic biota (vegetation, birds, microorganisms and fauna). In the
written submiss ions it is contended that the Andersons’ living, and living
environment, is threatened by the open cast mining on portion 3.
[35] They rely on a report prepared by a specialist in water -and environmental
governance, Ms Catharina Bosman (“Ms Bosman”) to establ ish a reasonable
apprehension of an interference with its rights, and resultant prejudice. Silver
Unicorn has produced a report from Mr Van Staden, an ecologist and aquatic
ecologist. Mr Van Staden reviewed Ms Bosman’s report and attended a site
inspecti on at Silver Unicorn’s Mine on portion 6 to verify the risk of environmental
degradation and contamination of the water resources as a result of mining
activities. He disagrees with Ms Bosman’s views on the impact of the mining
operations on water resourc es and the environment. Mr Johan Mar é was instructed
by the Andersons to review M s Bosman’s and Mr Van Staden’s report. Mr M aré’s
14 1961 (2) SA 505 (W) at 518A -C.
evidence is introduced in the Andersons’ replying affidavit. Mr Maree disagrees
with Mr van Staden. There are material disputes of facts which cannot be decided
on the papers.
[36] Aside the dispute s, I cannot find on the Andersons’ expert evidence that
Silver Unicorns’ mining operations infringe on, or interfere, with rights protectable in
law. Nor does the evidence establish a reasonable apprehension of an
infringement with resultant prejudice. 15 (Prest p. 44).
[37] Ms Bosma n’s instructions were to:
“…evaluate the situation as it relates to the activities and operations
undertaken by [Silver Unicorn] specifically with regard to impacts on water
resources caused by these activities on properties adjacent to and
downstream of [portion 3] regarding the authorisation of what uses
associated with these activities and operations, based on publicly available
and open source information ”.
[38] Notwithstanding an invitation from Silver Unicorn, Ms Bosman did not visit
the site of the mining activities . Nor did she c onduct any physical investigations.
She describes in her report the source of he r facts:
“
“1) Relevant site -specific information and documentation such as property
details, applicable authorisations, records, reports, etc, was obtained from
the Client as well as from open -source information on the internet and the
latest available Google Earth imagery…
2) A desktop investigation by means of evaluations of Google Earth® aerial
imagery and Wind eed searches was undertaken to confirm property details
and ownership of properties on which water uses may occur. The available
information and documentation were reviewed in order to identify sensitive
environmental components and socio -economic activities that may be affected
15 Prest at 44.
by the mining operations, as we ll as to identify activities undertaken by the
mine that may have detrimental effects on water resources, or that may be
regarded as water uses.
3) The site -specific situation at Silver Unicorn was analysed, and is described
with regard to activities, facilit ies and operations that may have a detrimental
effect on water resources.
4) Based on the available information, activities at Silver Unicorn were evaluated
to determine if any of these can be regarded as water uses as described in
section 21 of the NWA, and each identified water use was described in terms
of its description in the NWA, and the property on which it is occurring, or may
be occurring. The type of authorisation in terms of Chapter 4 of the NWA that
is applicable to each identified water use was d etermined based on the
available information.
5) Conclusions and recommendations are made based on the outcome of the
assessment.”
[39] The objective of the assessment she conducted was “to (a) outline the
potential impacts on water resources resulting from the activities and operations at
the mine in order to establish it [sic] poses [sic] a risk of pollution and (b) to identify
the activities that take place at [Silver Unicorn’ s] Colliery that may be regarded as
water uses described in section 21 of the NWA, an d determining the type of water
use authorisation (Schedule 1, GA, ELU, WUL) that is required for each identified
water use , where possible, in order to establish which activities require authorisation
by means of a WUL.”
[40] In her own words, she conducted “ [a] desktop investigation”. She did not
conduct an independent investigation of the impact of the mining activities . She
assessed potentially applicable environmental sensitivities using the Department of
Fisheries, Forestry and Environmental Affairs’ web -based screening tool . She
asserts that this tool indicates very high sensitivities in relation to water sources,
agricultural land capability potential, unique bird species, palaeontological features,
aquatic biodiversity, and t errestrial biodiversity. And s he had regard to the
Mpumalanga Biodiversity Conservation Plan.
[41] Ms Bosman’s report is theoretical and academic. It is not a report on Silver
Unicorns’ mining operations on portion 6 and the impact of those activities. It is a
discussion of the general impacts of mining on the environment. It coll ects and
collates information from various source s. And is an exposé of the various statutory
instruments, and other instruments regulating certain activities that impact the
envir onment to give effect to the right under section 24 of the Constitution . It
explains the relationship between mining legislation and environmental legislation
and summarises the rights and obligations of various stakeholders . The report is
perhaps best d escribed as a compilation . Ms Bosman reviewed available
information and documentation “in order to identify sensitive environmental
components and socio -economic activities that may be affected by the mining
operations, as well as to identify activities undertaken by the mine that may have
detrimental effects on water resources that may be regarded as water uses.”. Her
views on the impact of the mining operations are based on what was publicly and
openly available. Her views on the impact of the mining activities on water sources
appear to have been informed by the proximity of the mining operations to a water
source. She states i n her report that “[the] operations of the mine are primarily
located in close proximity to the tributaries of the Selons River (a tributary of the
Olifants River) , and has [as such] the potential to detrimentally affect the surface
water in this water resource downstream from its operations , as well as have a
detrimental effect on groundwater in the vicinity of the operations. This in turn will
have a detrimental effect on the uses of surface -and ground water resources” .
[42] My understanding of her report is that mining operations in general have a
detrimental effect on water resources , that w ater use licenses are aimed at
controlling potential impacts on water resources. And t his control is exercised
through conditions that prescribe and control the implementation of management
and monitoring measures to prevent potential detrimental effects on water
resources resulting from the mining activities.
[43] I am not satisfied that the A ndersons have established a reasonable
apprehension of an infringement of its rights .
[44] Turning to the expanded relief which Menar wishes to secure, assuming that
Menar’s application for a prospect right creates a clear right enforceable through
interdictory relief, Menar has not established the second requirement for a final
interdict, namel y an injury actually committed or reasonably apprehended. It has
also not established why a claim for damages would not constitute a satisfactory
remedy.
[45] As far as the third requirement for a final interdict is concerned, the MPRDA
and NEMA , have mechan isms for measures to address the contraventions, and
also to remedy and rectify them. Both Silver Unicorn and Menar have the right to
demand that the relevant authorit ies enforce the provisions of the legislation.
[46] Leaving aside the material disputes of facts on expert evidence on a
reasonable apprehension of harm or injury which cannot be decided on the papers,
I believe that the neither the Andersons, nor Menar has discharged the onus in
respect of the fundamental requirements for a final interdict. In view of this, I do not
have to consider the Andersons’ application for the amendment of the notice of
motion. Nor Kalamin’s conditional counterapplication . I add that even if an interim
was claimed, Silver Unicorn and Menars cannot succeed. Neither hav e established
irreparable harm.
[47] Before turning to costs, I must address the two applications brought by Silver
Unicorn under rule 6(5)(e) to introduce additional evidence after argument was
concluded. One was delivered in November 2023 and the other in February 2024.
The applications and the responses thereto produced a large volume of paper ,
close to 3 00 pages , if not more . I extended an invitation for a meeting with the
parties to determine how those applications should be managed . I gained the
impression that not all the parties had an appetite for a meeting. I subsequently
issued directions for the delivery of affidavi ts in response to those applications. The
last set of responses were filed in June. Considering the order I intend making I do
not consider it necessary to consider th ose applications.
[48] Turning to costs . I have decided to depart from the general rule th at costs
should follow the result. There is a reluctance to make orders for costs against
litigants whose motivation to institute legal proceedings is to give effect to the rights
in section 24 of the Constitution , and legislation that gives effect theret o. The
enforcement of environment al rights and the implementation of measures to protect
the environment and human health and well -being are for the public good.
Environmental issues seldom affect only an applicant. And a favourable decision
benefits no t only the contesting litigants . The impact of a favourable decision could
stretch beyond any single applicant. Environmental issues in South Africa are still
in a developmental stage. While legislation is in place, legal issues arising from the
legisla tion are slowly making their way to the courts. Decisions in favour of
applicants as well as those in favour of respondents , decide issues leading to
certainty as to the rights and obligations of society in general. This , especially so,
because environme ntal law is still in its infancy. Adverse costs orders would
discourage persons and organisation s from asserting rights in their own interest or
in the public interest. Those who embark on litigation to protect environmental
rights , much like those who embark on litigation to protect socio -economic rights ,
are usually not large commercial entities. The development of a n environmentally
responsible culture is largely reliant on non -profit organisations and private
individuals litigat ing. In the absence of mala fides and an ulterior motive to the
application , it is not in the interest of justice to order the Andersons to pay the costs
of the application. My approach may have been different had it been shown that the
Andersons were ac ting in bad faith or with an ulterior motive.
[49] It is common cause that Silver Unicorn was carrying on mining activities
without the requisite authorisations and therefore contrary to environmental laws. A
costs order in favour of a party who has conducte d activities prohibited by a statute
is unconscionable and not in the interest s of justice.
[50] I am mindful that unlike Silver Unicorn, OLF Mining and Kalamin are not
acting contrary to legislation. However, their participation is self -serving, and to
bolster Silver Unicorns’ opposition . Their interests were not directly implicated.
[51] Menar entered the fray late in the day . I cannot find that its participation was
in bad faith or had an ulterior motive . Unlike the other intervening parties , its
participation was to protect its direct interests and not simply to benefit the
Andersons. Menar’s papers have not been voluminous, and the oral submissions
were cri sp and short. It will not be fair and reasonable for Menar to pay the costs of
the o ther parties .
[52] In the result , the application is dismissed. The parties shall pay their own
costs.
_______________________________
S K HASSIM
Judge of the High Court of South Africa
Gauteng Division, Pretoria
Counsel for the Applicants: Adv C Woodrow SC
Adv JD Matthee
Counsel for the 1st Respondent : Adv J Heunis SC
Adv M De Beer
Counsel for the 8th Respondent Adv M Antrobus SC
Adv I Oschman
Counsel for the 9th Respondent Adv HF Jacobs SC
Adv H Vermaak
Counsel for the Tenth Respondent Adv P Louw SC
This judgment was prepared and authored by the Judge whose name is reflected
and is handed down electronically by circulation to the parties’ legal representatives
by e-mail and by uploading it to the electronic file of this matt er on CaseLines. The
date for hand -down is deemed to be 16 May 2025