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IN THE IDGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
YES I NO
YES/ NO
YES / NO
YES/ NO
Case no: 2025-195441
In the matter between:
JOHANNES KRUGER Applicant
and
SYNCHROPLEX (PTY) LTD I st Respondent
(Reg No: 2009/006022/07)
THE MINISTER OF THE DEPARTMENT OF
MINERAL RESOURCES AND ENERGY 2nd Re spondent
THE REGIONAL MANAGER: DEPARTMENT
OF MINERAL RESOURCES AND ENERGY,
NORTHERN CAPE 3rd Respondent
THE MINISTER OF WATER AND SANITATION 4th Respondent
THE MUNICIPAL MANAGER: DA WID KRUIPER
LOCAL MUNICIPALITY 5th Respondent
Coram: MAMOSEBOJ.
Heard: 04/11/2025.
Delivered: 05/12/2025.
2
Summary: Urgent application - Applicant seeks supervisory or structural
interdict to prevent illegal mining from taking place or continuing to take
place - Three grounds of illegality are alleged: (a) no valid water use
licence; (b) lack of all other "relevant licences and permits"; and (c) no
proof of zoning of the property for mining - No case made out for the relief
sought.
ORDER
The following order is made:
1. The application is dismissed with costs, including the costs of two
counsel. Such costs to be taxed on Scale C .
JUDGMENT
MamoseboJ
[I] The applicant seeks, on an urgent basis, an order in a form of a
supervisory interdict, interdicting and restraining the first
respondent from conducting "illegal" mining activities on the Farm
Areachap No 426 in the Magisterial District of Gordonia,
measuring 19239 hectares_ in extent ("the property"). The
supervisory interdict sought is such that all mining activities are to
be interdicted, unless and until the following has been sought and
obtained by the first respondent:
3
(a) a valid Water Use Licence;
(b) all other relevant licences and permits required for the
purpose of lawfully conducting mining activities from the
property; and
( c) proof of zoning of the property to pennit the conduct of
mining activities at the property.
The applicant then prays that the first respondent be granted leave
to approach the Court once it has complied with all the statutory
requirements for the aforementioned order to be amended.
[2] The applicant, Mr Johannes Kruger, is a director of the first
respondent and brought the application based on his fiduciary
duties as well as in the interest of the public. The first respondent,
Synchroplex (Pty) Ltd ("Synchroplex") with Registration number
2009/006022/07, is a company registered and incorporated in terms
of the company laws of the Republic of South Africa. The second
respondent is the Minister of the Department of Mineral Resources
and Energy as the minister responsible for the administration of the
Mineral and Petroleum Resources Development Act1 ("the
MPRDA"). The third respondent is the ,Regional Manager:
Department of Minerals and Energy, Northern Cape, as the officer
designated by the Director-General of the Department of Minerals
and Energy in terms of s 8 of the MPRDA to perform delegated
functions in terms of the MPRDA or any other law. The fourth
respondent is the Minister of Water and Sanitation responsible for
the administration of the National Water Act2 (NWA). The fifth
respondent is the Municipal Manager: Dawid Kruiper, Local
1 28 of 2002.
2 36 of 1998.
4
Municipality, as the accounting officer in terms of s 2 of the Local
Government: Municipal Systems Act3, and responsible for the
implementation and enforcement of the Land Use Management
Scheme in accordance with the Spatial Planning and Land Use
Management Act4•
[3] All the respondents were duly served. The second to the fifth
respondents did not participate in these proceedings which are
opposed only by the first responden4 represented by Adv A Subel
SC, assisted by Adv H Pretorius. For the applicant is Adv PF Louw
SC , assisted by Adv D Vetten.
[4] Apart from this urgent application, the applicant had also brought
an urgent application in July 2025 in the Gauteng Division of the
High Court, Pretoria, seeking to .interdict the Synchroplex's
shareholders' meeting to be held on 16 July 2025 in which a
resolution would be taken for his removal as director of
Synchroplex. The parties have agreed to refer that dispute for
arbitration to be arbitrated by a retired Judge of the Supreme Court
of Appeal (SCA) , Judge Malan, in December 2025. I also take note
of a Notice of Motion marked "RA3" of an application brought in
the Gauteng Division of the High Court which is pending before
that court.
[5] Be that as it may, I will only concern myself with the urgent
application before me. The applicant is adamant that until the
dispute referred for arbitration is settled, he still owes his fiduciary
duties to Synchroplex and is entitled to information thereto. On the
3 32 of 2000.
4 16 of 2013.
5
contrary, it was contended on behalf of Synchroplex that the
applicant's purported concerns about the legality of Synchoplex's
mining operations are not genuine. His only concern is to exert
pressure on the company in the underlying feud between
shareholders and directors to maximise his settlement in the
shareholding dispute. The applicant vehemently disputes these
contentions.
[6] It is common cause that the first respondent is a holder of a mining
right awarded to it in terms of s 23(1) of the MPRDA on 05 March
2025, with the commencement date of 10 February 2025. Unless
cancelled or suspended in terms of clause 13 of the mining right
and or s 47 of the MPRDA, it will continue to be in force for a
period of thirteen (13) years ending on 09 February 2038. The
holder must commence with the mining operations within a year
from the date upon which the mining right becomes effective.
(7] The issues that stand for determination are the following:
7.1 Whether the application should be heard on an urgent basis;
7.2 Whether the applicant is seeking an interim or final
interdict; and
7.3 Whether he has satisfied the requirements for an interdict.
Urgency
[8] Rule 6(12) of the Uniform Rules of Court stipulates that:
'(a) In urgent applications the Court or a Judge may dispense with the
forms and service provided for in these Rules and may dispose of
such matter at such time and place and in such manner and in
6
accordance with such procedure (which shall as far as practicable be
in terms of these Rules) as it deems fit.
(b) In every affidavit filed in support of any application under paragraph
(a) of this subrule, the applicant must set forth explicitly the
circumstances which is averred render the matter urgent and the
reasons why the applicant claims that applicant could not be afforded
substantial redress at a hearing in due course.'
[9] In his founding papers, the applicant explained that for the period
2 to 29 September 2025, he exchanged correspondence with the
first respondent and its attorney requesting to be placed in
possession of documents relating to the mining operations of the
first respondent. After the 29th of September 2025, he caused an
investigation to be conducted, and it is only after receiving
feedback from Mr John Mare, the consultant and managing director
of M2 Environmental Connections (Pty) Ltd, and Mr Geza Douglas
Nagy, a businessman and town planner of Boston and Associates
Urban Planners, that he was convinced that the first respondent
carried out illegal mining. He attempted to convene a board
meeting on 02 October 2025, but it was unsuccessful. A virtual
board meeting only took place on 09 October 2025, but he was still
not placed in possession of the sought documents.
[10] Mr Louw , for the applicant, submitted that although urgency was
initially based on the avennent that Synchroplex's mining
operations would imminently commence by the end of October
2025 after the blasting certificate was issued, it became apparent
after the advice rendered to the applicant by his experts that mining
activities had already started. Mr Louw relied on the definition of
mining as dealt with in Benhaus Mining (Pty) Ltd v Commissioner,
7
South African Revenue Service5 and Ezulwini Mining Company
(Pty) Ltd v Minister of Mineral Resources and Energy and Others6
in maintaining that Synchroplex has commenced mining and the
activities are illegal. The applicant contends that he will not obtain
substantial redress in due course as the relief he seeks is for the
Court to halt the illegal mining by Synchroplex. He further
contends that the environment and social considerations will be
prejudiced by these mining activities without the necessary licences
or permits.
[11] At paragraph 30 of his founding affidavit, the applicant stated that
he instructed his attorneys to brief counsel to prepare the
application over the weekend of 18 and 19 October 2025. What
really nudged the applicant to have the urgent application set down
for 04 November 2025 was that he was under the impression that
Synchroplex's mining activities were commencing before the end
of October 2025, as alluded to during the board meeting convened
on 09 October 2025. The Court notes as also submitted by the first
respondent that, despite the applicant's knowledge that mining
would commence by the end of October 2025, 12 days still lapsed
before he brought the application. The applicant did not proffer any
explanation for the 12-days delay.
[12] In countering the aspect of urgency, Mr Subel, for the first
respondent, submitted that there is no urgency, or should the Court
find any, it is self-created. Counsel, invoking Nelson Mandela
Metropolitan Municipality and Others v Greyvenouw CC and
5 2020 (3) SA 325 (SCA) para 3 I.
6 2023 JDR 1815 (SCA).
8
Others1, argued that this Court's urgent intervention is not
warranted where the applicant, despite knowing of the alleged
infringement complained of earlier, dragged his feet in approaching
the court for relief. In substantiation of this submission, counsel
pointed out that on 25 July 2025, the applicant directed an email at
one of Synchroplex's directors alerting him that his next step was
to interdict the company to stop all mining operations. Following
an exchange of correspondence and some documents between the
parties, on 25 September 2025 the applicant's attorney wrote an
email to Synchroplex's attorneys which started in this fashion:' We
are presently preparing an urgent application which will issue out
of the Northern Cape Division, Kimberley ... ' Surprisingly, the
applicant did not disclose the email in his founding affidavit even
though it shows that he had already started preparing for the urgent
application at least by 25 September 2025, long before 21 October
2025 when the application was finally launched. (Own emphasis.)
[13] The fact that the applicant threatened to bring the application for an
interdict as far back as 24 July 2025 to halt the mining operations
unless he was furnished with the demanded documents, means that
he only issued the application almost three months later. He had
again threatened to bring an urgent application on 01 September
2025 while his attorneys confirmed in an email dated 25 September
2025 that they were preparing the application. That would then
mean that it took the applicant one month to issue this application,
so argues the first respondent. The applicant's version is that he
only became certain on 29 September 2025 after being advised by
his experts that any mining activity conducted by Synchroplex
7 2004 (2) SA 81 (SE) paras 33 - 34.
9
would be illegal. On this version, it took him 22 days to file the
application for which, in all the presented scenarios, there is no full
explanation for the delay. It is trite that for urgent applications, 'if
there is some delay in instituting the proceedings, an applicant has
to explain the reasons for the delay. '8
[14] It was contended on behalf of Synchroplex that the applicant has
not made out a case why he claims that he will not be able to obtain
substantial redress at a hearing in due course. The argument being
that if he wishes to interdict the mining activities by Synchroplex
under the guise that they are unlawful, nothing would prevent him
from pursuing that same course even after the mining activities
have commenced. Synchroplex asked that the matter be struck from
the roll for lack of urgency, or be dismissed on the merits.
[15] The principles regarding urgency are trite.9 In Luna Meubel
Vervaardigers (Edms) Bpk v Makin (t/a Makin's Furniture
Manufacturers}1° Coetzee J remarked:
'Practitioners should carefully analyse the facts of each case to determine, for
the purposes of setting the case down for hearing, whether a greater or lesser
degree of relaxation of the Rules and of the ordinary practice of the Court is
required. The degree of relaxation should not be greater than the exigency of
the case demands . It must be commensurate therewith. Mere lip service to the
requirements of Rule 6(12)(b) will not do and an applicant must make out a
case in the founding affidavit to justify the particular extent of the departure
8 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite {Pty) Ltd and Others [2011)
ZAGPJHC 196 para 9.
9 Luna Meubel Vervaardigers (Edms) Bpk v Makin (tla Makin 's Furniture Manufacturers) ("Luna") 1977
(4) SA 135 (W) at 139F - 140A; See generally East Rock Trading 7 (Pty) Ltd and Another v Eagle
Valley Granite (Pty) Ltd and Others (Supra) fn 8.
•0 Luna Supra at 137D -F.
10
from the norm, which is involved in the time and day for which the matter be
set down.'
[16] The application lacks the requisite elements of the degree of
urgency and under normal circumstances, I would have struck it off
the roll. The applicant had ample time within which to bring the
application but failed to do so. The parties had submitted that the
issues of urgency and the merits are intertwined, and it would pose
a challenge to argue urgency without touching on the merits. I
allowed the parties to argue the matter in full.
Interim or final interdict?
[17] The requirements for a final interdict are well established, namely,
(a) clear right, (b) an injury actually committed or reasonably
apprehended and ( c) the absence of similar protection by any other
ordinary remedy.11 Similarly, it is established law that an applicant
seeking only an interim interdict needs to establish a prima facie
rather than a real right.12 It is in light of this distinguishing
requirement that one must be clear on the relief sought so as to
apply the correct legal standard on the merits of the case. Needless
to say that, in determining the nature of the relief sought, substance
generally prevails over form. 13
[18] In his founding affidavit, the applicant claims a prima facie right.
He seeks an interim interdict pending the production of the
necessary authorisations confirming that Synchroplex is acting
11 Setlogelo v Set/ogelo 1914 AD 221 at 227; Hotz and Others v University of Cape Town 2017 (2) SA
485 (SCA) para 29.
12 E riksen Motors (We/kom) Ltdv Protea Motors, Warrenton and Another 1973 (3) SA 685 (A) at 6910.
13 Municipal Manager: Qaukeni Local Municipality and Others v F V General Trading CC 2010 (I) SA
356 (SCA) para 26.
11
lawfully in its mining activities. His right is also based on the
assertion that he is entitled to the documents specified in the notice
of motion as a director carrying out his fiduciary duties. In the
written submissions by Mr Louw, the following submissions are
made: That this application is a public law matter bringing to the
Court's attention what emerges as common cause illegal mining
activities conducted by Synchroplex. That the illegality is
evidenced by Synchroplex's description of its own activities and
the evidence of the applicant's experts. Finally, that the Court is
obliged to act to end the illegal conduct and ensure that the rule of
law is upheld.
[19] According to the applicant, Synchroplex must be interdicted and
restrained from carrying out any mining activities at Fann
Areachap Number 4 26 until it has procured the necessary
authorisations. He maintains that Synchroplex does not have such
authorisations and is therefore acting illegally which this Court
should not sanction.
[20] In as far as the irreparable harm requirement is concerned, the
applicant repeats his claim of preventing the illegality from either
commencing or continuing. He is silent in respect of the third
requirement of available alternative remedies. Mr Louw conceded
during his oral submissions that the relief sought has a final effect
and only then, from the bar, added that there is no other remedy
available.
[21] On the other hand, Mr Subel for the respondent submitted that what
the applicant seeks cannot be interim pending final relief because
he is not planning to return to court to seek final relief. Instead, he
12
is seeking a structural interdict in which Synchroplex must itself
return to court to amend the order upon satisfying the court that the
commencement of the mining operations will be lawful. Mr Subel
submitted that the approach sought for this structural interdict is
unorthodox. To bolster the argument that prayer 2 in the notice of
motion is not interim in nature because the applicant is seeking final
relief, Mr Subel referred this Court to Pikoli v President of the
Republic of South Africa and Others where Du Plessis J insightfully
remarked:
'(O]ne of the aims of an interim interdict is to preserve the status quo pending
the final detennination of the rights of the parties to pending litigation. The
interim interdict does not involve a final determination of the parties' rights
and it does not affect such final determination.' 14
[22] While the applicant's founding papers and counsel's written
submissions referred to the relief sought as 'an interim supervisory
interdict', Mr Louw ultimately conceded during his oral
submissions that the relief sought is final in effect and therefore a
final interdict. I find that the concession was correctly made for
indeed the relief sought is final in effect.15 I proceed to deal with
the merits of this application on the aforesaid basis.
Analysis
[23] The upshot of the applicant's case is that the first respondent's
imminent or/and ongoing mining is/will be illegal and unlawful in
that there are issues with the zoning of the property, Water Use
14 2010 (I) SA 400 (GNP) at 403H-404A.
15 Anderson and Another v Silver Unicorn Coal and Minerals (Pty) Ltd and Others 2025 JDR 2140 (GP)
para 22.
13
Licence (WUL), and other "relevant licences and permits". The
first respondent is adamant that it was still involved with site
establishment and also awaiting a blasting penrut before it can
commence with the clean-up operations to establish the site for
drilling which must precede blasting. The company would further
finalise a blasting programme and pit designs, obtain quotes for the
blasting work, and determine the availability of blasting
contractors.
[24] Where there is a dispute of fact, the Plascon -Evans princip]e16
finds application. The principle was reiterated in Wightman t/a JW
Construction v Head/our (Pty) Ltd and Another17 to this effect:
'Recognising that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who seeks final relief on
motion must, in the event of conflict, accept the version set up by his opponent
unless the latter's allegations are, in the opinion of the court, not such as to
raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly
untenable that the court is justified in rejecting them merely on the papers ... '
[25] In relation to the zoning argument, the applicant, relying on Mr
Nagy's affidavit, contended that Synchrop]ex does not have the
correct zoning permit and is impennissibly mining in an area zoned
Category C Agricultural Area. Mr Nagy investigated the zoning of
the property on request by applicant's attorneys, OWP Partners.
His findings were that a mining right was granted over the property
compnsmg:
16 Plascon Evans PainJs Ltdv Van Riebeeck PainJs (Pty) Ltd 1984 (3) SA 623 (A).
17 2008 (3) SA 371 (SCA) para 12.
14
(i) Remainder of the farm Areachap No. 426 measuring
19108.4188 HA by Areachap Plase (Pty) Ltd held under
Deed of Transfer T704/l 973; and
(ii) Portion 2 of the farm Areachap No. 426 measuring
129. 9941 HA by Cullinan Refractories Ltd (Registration
number 1971/007066/06) held under Deed of Transfer
Tl 708/2006.
He found that the zoning area to which the mining right relates is
Category C Agricultural Areas, a finding he said was confirmed
verbally by the Directorate Development and Planning of the
Dawid Kruiper Municipality without specifying the name of the
person who made the confirmation and the date on which it was
made. Mr Nagy contended that he was unable to obtain a zoning
certificate.
[26] Mr Nagy further opined that the primary use of the property in issue
in terms of the Scheme Regulations is Agriculture, defined as:
'The breeding of animals on natural veld, land and pasture, boarding stables,
stock, feeding-or auction pens, the processing of products produced on the
fann, the cultivation of crops and at most one single residential house and other
buildings that is reasonably relevant to the main agricultural activity on the
farm, including bona fide staff housing.'
He went on to explain that secondary use(s) which may be
considered by the Municipality are Second Residential Unit, Fann
Stall, Nursery, Equestrian Facilities and Animal Hospital. He wrote
further that the Municipality may also consider consent uses like
15
guest house and occupational practice. He concluded that the
agricultural zoning does not include mining activities.
[27] This is what appears at paragraph 24 of Mr Nagy's affidavit:
'Mining activities under the. .Scheme Regulation falls under the Category E
Industrial Areas more specifiqally E.E.1: Extractive Industry means: "an
industry which practices the extraction of raw materials from the earth,
whether by means of surface or underground methods and may include, but
not limited to the refinery of such extracted materials in order to facilitate in
the transportation thereof: as well as any other relevant land uses that are
normally associated with an extractive industry, e.g. offices, recreational
facilities for staff, caretaker's quarters, etc. but does not include the
subdivision of individual portions of any unit thereof."'
Mr Nagy's conclusion cautions against any commencement of
mining activities as a contravention of the Scheme Regulations
which may attract a general penalty or an offence with a possible
criminal sanction.
[28] On the other hand, in its answering affidavit, Synchroplex
explained that although the mining right covers the entire farm
historically zoned as agricultural, a portion of the farm has been
designated for Extractive Industry located on Portion 2 of the farm
which is where Synchroplex intends to conduct its mining.
Synchroplex went further and produced a zoning certificate marked
"GS12" produced by the Dawid Kruiper Municipality. In his
replying affidavit, the applicant takes issue with the fact that the
certificate ought to have been produced before litigation because it
has contributed to the bringing of the application.
16
[29] In both the written and oral argument by Mr Louw, it was submitted
that the mining area is vast and Portion 2 is only 20% of the total
area. If Synchroplex wanted to mine only on Portion 2 it would
have limited itself to that area and not the entire farm. But this
contentio~ in my view, is scratching where it does not itch.
Synchroplex has deposed to an affidavit clearly stating that its
mining operations will be limited to Portion 2. The applicant seems
to be morphing its argument because it is now moving away from
the entire farm being zoned for agriculture to questioning why
Synchroplex is not mining on the entire farm. Clearly, Mr Nagy's
position was overtaken by the production of the certificate and must
fall away.
[30] Mr Louw relied on Maccsand (Pty) Ltd v City of Cape Town and
Others18 in which the Constitutional Court pronounced that mining
cannot take place until the land in question is appropriately
rezoned. This case does not assist the applicant because Portion 2
on which Synchroplex will be mining is already zoned for that
purpose, and no rezoning is necessary. It therefore follows that the
zoning certificate annexed to the papers as "GS 12" lays this
challenge under prayer 2( c) to rest. Simply put, I accept that Portion
2 is zoned for mining activities.
[31] I now proceed to deal with the argument relating to other "relevant
licences and permits". The applicant further raised his concern
regarding Synchroplex not having obtained approval for its
Environmental Impact Assessment (EIA) and Env ironmental
Management Programme (EMPr) which is refuted by Synchroplex.
18 2012 (4) SA 181 (CC) para 48.
17
To bolster his concern, the applicant relied on the affidavit by Mr
Mare who, on request by the applicant's attorneys, evaluated
Synchroplex's environmental regulatory compliance in respect of
Farm Areachap 426.
[32] Mr Mare recorded at paragraph 11 of his affidavit that Synchroplex
needs an approved EIA and the EMPr in terms of the National
Environmental Management Act19 (NEMA); a Waste Management
Licence in terms of the National Environmental Management
Waste Act2° (NEMWA); and a Water Use Licence in terms of the
NW A for the following water uses:
(a) Section 21(a): Taking water from a water resource;
(b) Section 2l(b): Storing water;
( c) Section 21 ( c) and (i) if the 7.3 km pipeline traverses
drainage lines;
(d) Section 2l(f): Discharging of water containing waste;
( e) Section 21 (g):_ Disposing of waste in a manner which may
detrimentally impact on a water resource; and
(f) Section 21G): Removing or discharging water found
underground.
[33] Despite his searches, Mr Mare could not find any confirmation that
Synchroplex has applied for an Environmental Authorisation. He
concludes his affidavit by statmg that it appears that Synchroplex
does not have a WUL for the uses that he specified above, neither
does it have an approved EIA oi EMPr nor a Waste Management
Licence (WML ).
19 107 of 1998.
20 59 of 2008.
[34] Synchroplex attached a copy of the Environmental Authorisation
annexed to its answering affidavit as "GS I 3" granted on I 3 June
2024 in terms of s 24 .of NEMA and Regulation 24(l)(a) of the
2014 NEMA Regulations. Synchroplex had submitted the EIA and
EMPr which have been approved by the Department of Mineral
Resources and Energy; Tw.o:.ifl•spector.~-had visited the property on
19 June 2025 to inspect its compliance with the EIA and EMPr,
mining righ4 environmental ·audit reports; .and the Environmental
Authorisation. · They did: not mention . any non-compliance.
Synchroplex is assisted . by Milnex Environmental Consulting
Services for environmental .compliance issues and ongoing onsite
mining consulting services.
[35] The applicant wrote the following at paragraph 20 of his replying
affidavit under the heading; the Environmental Authorisation:
'In this part of my affidavit I rely on advice that I received from Mr Mare. Mr
Mare considered the Environrriental Authorisation annexed as "0S13 " to the
answering affidavit and he advised me that this does constitute environmental
authorisation required under the relevant environmental legislation.'
'.
[36] Mr Louw made the submission that the applicant's challenge also
stems from s SA of the MPRDA, dealing with the prohibition
relating to illegal ac4 which .stipulates:
'No person may prospect for or remove, mine, conduct technical co-operation
operations, reconnaissance operaticms, explore (or and produce any mineral or
petroleum or commence with any work incidental thereto on any area without-
(a) an environmental authorisation;
(b) a reconnaissance permission, prospecting right, pennission to
remove, mining right, mining permit, retention permit, technical co-
'·' '
19
. operation permit, reponn,aissance permit, exploration right or
production rigb~, as th~ case. may .be; and
(c) giving the landown~r or lawful occupier of the land in question at
least 21 days written notice.'
, • . . . . . . , r . . .
Synchroplex has produced ?oth the mining right as well as the
environmental authorisati~n: it'is'inconceivable h~w the applicant
can still rely on this· secti~n i~ ~ubstantiation ofhis allegations that
Synchroplex's mining operations are illegai.
[37] Synchroplex does· not den{ that ·it does not have a WML yet.
However, in refuting the a;~usation of iilegal activity due to not
.:·.
having this licence, it contends that it is not required to have this
licence at this immediate commencement phase.
[38] Section 20 of NEMWA stipulates:
'No person may commence, undertake or conduct a waste management
activity, except in accordance with-
. ,, ' ,
(a) The requirements or standards determined in terms of s 19(3) for that
activity; or
(b) A waste management }icence issued in respect of that activity, if a
licence is required.'
(39] Section 19 of NEMW A · .deals with listed waste management
activities and provides that:
'(I) The Minister may ·by·notice in the Gazette publish a list of waste
management activities'that have, or are likely to have, a detrimental
effect on the environment.
(2) The Minister may amend 'the list by-
(a) adding other waste management activities to the list;
20
(b) removing waste management activities from the list; or
( c) making other changes to the particulars on the list.
(3) A notice referred to in subsection (1 )-•
(a) must indicate whether a waste management licence is required
to conduct the activity or, if a waste management licence is not
required, t)1e requirements. or standards that must .be adhered to
• •• ' . j • • • . • •
when conducting the.activity; • . . . .. • • • .. ~ . ~ ·. •, . ' • ' ; ,: . ~ • . ; ' . ·, ', ' •
(b) may exclude certain quantities or categories of waste or
categories of persons froin ~he application of the notice if the
waste in question is-'':. : .
(i) of such a small quantity or temporary nature that it is unlikely
to cause pollution tQ the.envi(Qf\ment .or harm to human health;
or
(ii)
(c)
adequately controlled by other legislation; . . ..... . . . . .
may contain transitional and other special arrangements in
respect of waste manage~ent activities that are carried out at
the time of their listing; and
(d) must determine the date·on which the notice takes effect.'
[40] Synchroplex explained at paragraph 106 of its·answering affidavit
that the list of waste management activities for which a licence is
required is contained· in ihe NEMW A "List of Waste Management
Activities that have, or are likely to have, a Detrimental Effect on
the Environment", published under GN 921 n GG 37083 of 9
November 2013.
[ 41] Synchroplex explaip.ed at ·p~ragraph J 07 of its answering affidavit
that it is not undertaking any mining operations at this juncture that
trigger any of the thresholds -for the activities in Categories A, B or
C of the "List of :Waste ·Management Activities". There will
therefore be no disposal • of process residues to land, and no
hazardous waste generation beyo~ci normalconstruction or general
21
waste streams which are • governed by the environmental
management programme -and standard waste handling provisions.
It goes on to list the act1viti~ at paragraph 109 of the answering
:.,.·:. .
affidavit which will trigger the need to apply for the licence. At the . • . · :- ' ; .- ~ ~ '.. ' . ' ' '
stage when it reaches the'.,~~tivi~ies ,requiring a WML it will
' , . ;. . . \ ~ . .. . ' ' ' .. '
certainly apply.
[42] This is a question of interpretation':· The SCA . in Natal Joint
Municipal Pension Funci v "end~ii'eni Municipality-1 made these
salutary remarks:
'Interpretation is the process .9f attri_buting meap_ing to the words used in a . ', •.,,, .. . .
document, be it legislation, ~ome • other statutory instrument, or contract,
• t • • ,
having regard to the context provided by readi~g the particular provision or
·.·• . . .
provisions in the light of the document as a whole and the circumstances
' . ,.
attendant upon its coming into existence. Whatever the nature of the document,
• l • , ,, • • • '•
consideration must be given to the language used in the light of the ordinary
rules of grammar and syntax ... '
. [43] My reading ofs 20 o(NEMWA ·is that obtaining a WML depends
on the activities as so~e aciivities may not require a licence. I say
'
so based on the provisio~ "of s • 20(b) • considering its ordinary
• • • : • ~ I • • • ... : ,' . : ! . •. .
language and syntax.22 The activities undertaken by Synchroplex in
the immediate commencement phase, as deposed to in the
answering affidavit, may not prohibit their commencement of
operations wttho~t ~ ·w;ste· M~~~g-~~e~f Licence if one reads (b)
to say a Waste Management L1cence ·issued in respect of that
21 2012 ( 4) SA 593 (SCA) para 18. . .
22 Importantly, there is nothing in this interpretation ·that le~ds to any absurdity or that renders the statute
inoperable. See generally Cool Ideas 1186 CC: v ffubbard and Another 2014 (4) SA 474 (CC) para 2~ • , . . . .
22
activity, if a licence is required. Synchroplex's explanation in the
paragraphs quoted above is sensible. I therefore find the allegation
that there are illegal mining activities taking place without the
WML unsubstantiated. (Own emphasis.)
[ 44] In relation to the WUL issue, it is common cause that Synchroplex
does not hold such a licence. Mr Mare expressed a view that it is
illegal for Synchroplex to even continue with the preparatory work
and conduct blasting without a water use licence. According to Mr
Mare's advice, the activities that Synchroplex intends to undertake
triggers 21 of the NWA. The applicant's counsel submitted in his
written heads of argument that Mr Mare and not Mr Steyn is an
expert, insinuating that the former's views/opinions should be
accepted by this Court and afforded more weight.
[ 45] In paragraph 11 of his founding affidavit, the applicant wrote:
'It is a requirement of the Mining Right that the first respondent complies with
all laws applicable to the land and the use of the land for purposes of mining.
This includes:
11.1 That the respondent, to the extent that the mining activities to be
conducted under the Mining Right involve any of the Water Uses set
out ins 21 of NW A, has a valid Water Use Licence ("WUL") issued
in terms of NW A.'
[ 46] Section 21 of the NW A deals with water use and provides:
'For the purposes of this Act, water use includes-
(a) taking water from a water resource;
(b) storing water;
( c) impeding or diverting the flow of water in a watercourse;
23
( d) engaging in a stream flow r.eduction activity contemplated in section
36;
(e)
(f)
(g)
(h)
(i)
(j)
engaging in _a controlled activity identified as such in section 3 7 ( 1) or .... > ~; . '. ... . ••. : ~ • .. '.: . • • . ~ . • . . . • : • •
declared under section 38(1);
... ;!-,,::-u;:·_1;·~,.. . .•. :~ ,. . ..
discharging waste· or water containing waste into a water resource
through a pipe, canal, sewer, sea outfall or other conduit;
. :' • ; ~~ : . ~J- :·!?:•• \-.: .• ·:: ' ... ·., ~· ~ • •. ·• • .
d1sposmg of waste 1n a·manner which may detrnnentally impact on a
water resource; .
1
disposing in;M.y ~ann.e.r: -o.f.·w<,lter :which contains waste from, or
which has bee11:~.e?,eA)H,}~t:l)'.iQ.dustrjal or po~er ~eneration process;
altering the bed, banks, course or characteristics of a watercourse;
. • • . • ;· .. ·: '. . . •,. : ~ .< .. : ... ': . : ~- • •. . ' • ' •
removing, discha:ging or disposing of water found underground if it
.~. . .. . : L~:~ . . . . . .
is necessary for the efficient continuation of an activity or for the
safety of peopl~; and
(k) using waterfor recreatforlaFpurposes·.'
[47] Mr Mare deposed to an affidavit in which he opined at paragraph 7
thereof as follows:
'The property is definitely supjept to_ a Water ys~ Licence application. From
the Mining Works Progra_m~e i~ is clear_that latge volumes of water will be
required to operate the !Uirie. There seems to be a possibility to source water
from the Upington Water Borq_:S,S\lpply line w~ich is located 7.3 km's due
east of the property. If w,ater J.~ Jo .Qe provided fi:om a Water Servi_ce Provider,
then there is no need to_applyJor ~:,s21(.a) w~ter,use in terms of the National
Water Act 36 ofl998 (NWA).~ , . __
. [48] Synchroplex has applie4,f<t.r,but-l)as pot19~tained the WUL yet. It
was argued on behalf pf Synchroplex that despite Mr Mare having
stated in his affidavit.thatSynchr.opl,ex wiUdefinitely need a WUL,
his affidavit fell short-ofnaming'the-specific activities that trigger
his affidavit fell short-ofnaming'the-specific activities that trigger
the need for its immedfate procurement. In its answering affidavit,
Synchroplex explains that' the· ·rrie.chanic~l site preparation and
~ •, , ... . . :-... .
24
blasting do not invo:lve water abstraction or dewatering. It will,
however, ensure that it is compliant with the requirements for a
WUL before engag~g iri rriin.ing acti;ities: that will require water
',>' ,. ', ;'. .·.:. .:-. . •• • /
being taken from a source. Synchroplex further stated that it may
..•• • .. :1~:':~,1~~.~ • •.•. !'.• • , .- · ~:"
be a period of one ye~r before such .. activitie_s will occur.
. : . .• ,,• ~ . .,: ' '. . • \. \ . , ' ! ' ' . . ~· • ~ . ·,. ,
· .. [49} This is what appears in Chapter 4 of the NWA pertaining to the use
of water which is signifi~ant: • ••.• •
: ~•; ·.; .
'As this Act is founded ~n the principl~ ·that National Government has overall
• ... .. • • , • .. • •• • • .: ' ,~ •• ; ; • • ', : ., • • <
responsibility for and authority over water resource management, including
the equitable allocation ·add b~~-~fi~i~l us~ ·of water. in the public interest, a
:. -~ : ·, ·,.; ~~\..'\.' ·.::. • . •
person can only be entitled to use water if the use is pennissible under the Act.
, ~ . •. ' . ' ~- .,•. ~ :, : • '· ·. : ·, . ; ~
This Chapter is therefore of central significance to the Ac t, as it lays the basis
for regulating water use. Th_e various types· of licensed and unlicensed
entitlements to use wat~r a~e d~;it with in· detail. ••
': • '. ·:r~tt f':' General Principles
This part sets out general principles for regulating water use. Water use is
defined broadly, and includes taking and·storing water, activities which reduce
streamflow, waste dci~charges and: disposals; controlled activities (activities
which impact detrimentally ,on , a 1water. resource), altering a watercourse,
removing water found-underground-for certain purppses, and recreation. In
general, a water use·must.be.licence.d unless it is listed in Schedule 1, is an
existing lawful use,: is permissible und,er a general authorisation, or if a
responsible authority waives.the need for a_licence. The Minister may limit the
responsible authority waives.the need for a_licence. The Minister may limit the
amount of water which a responsible authority may allocate. In making
regulations the Min ister. m&y cij(f~.rel):tiat~ Jjetween-differen,t water resources,
classes of water reso~r~es t ancj .~_eo~pqic~l are~s. '. . . . . , .
; .[50] I am persuaded by th~ first respondent's submissions that the
, ' j • • • •
current activities involve dry mining of site preparation for which . ~ · .. ~ ~ . • .
it does not need a WUL. S~~chrople". mad~ it clear that it awaits a
.. ;
'"
25
WUL and that it-shall' not conduct any other activities until it
acquires the licence; This. Court.has no-reason to be1ieve otherwise.
In any event, should. Synchrople):'.· elect-to· follow.the Upington
Water Supply route, there will not. be-a -n~d for:a licence.
,. ,,,· :., f51J:.: In summary, the applicant's case centres around the perceived
illegality of the :·mining•_ ·pperatioris·-py .: Synchroplex. I have
considered his case and. the relief he, is-seeking. In· amplification,
the applicant attached two affidavits of Messrs Mare and Nagy
which in my view :did· not take,his ease :further. First and foremost,
Synchroplex is a;;inihing.-ticenc·e ;htilder. • Portion 2 is· zoried for
mining. There is. a ~alid • Eri~ircin~~n'tal. Atithorisation .• The two
:}. outstanding licences, namely, the Water Us_e Licence and the Waste
• . :·.: • : . ·...... . . : ,. ~- : . • . . ~ ... :· . ,-, • .
Management Licenc~ have. ~een _applied for and not obtained yet. I
. .• . , ...... • . + • • •
am persuaded by the-submi~sions made .. on, behalf of Synchroplex
that it will not engage in activities requiting the two licences before
they are obtained.' Thete is tiothing in the,papers that contradicts its
submission that brit.h'·\lce~~~s ·are·.-:a~aitel The . applicant has
' ........ : ~ ·., •.. : ..•
therefore failed to m ·ake out a. case for a supervisory interdict.
~.-. 1' • .• • ·.'-t;~: ... •.• .. ·.;..,, • : ,.· : ·:. ~ : .
. .[52-] : On the question of costs~ th~re is. no .. reason why . costs should not
follow the result. Both-parties had "senior and junior counsel which
is justifiable. There is no teason why' tlic(order should not cover
both counsel.
[53] In the result, the following order is mad e:
.
/.
.. • I
': '· ,•
1.
Appearances
26
The application is dismissed with costs,. including the costs
of two counsel. Such-·costs:to be taxed on Scale C .
. · .......
' • •;. I \
• ~-:; • :.·: ·M.C. MAMOSEBO
. . . JUDGE OF THE HlGH COURT
~ :·-: .-... ,,.j . ·NokTHER'N c·Ai>E 01v1s10N
For the Applicant: .. , , ::Adv ;,PF .Louw: SC
Adv.. D Vetten
Instructed by: • •. ,;_,dWP 'P~ers, Sandton
• · · ;· , it,/o Elliott-Maris, Kimberley
For the First Respondent: •• ··Aav :-:A:-'slibel sc· •••
• , Adv.1H Pretorius
Instructed by: . • Adams and Adams, Pretoria.
• . • .... f • ~ :. · .... ':·:' : + . • • ; • -i • • •• ~ • + '
I .