IN TH E HI G H C O U R T O F SO U TH AFRICA
GAU T ENG DIVI SIO N , PRETORIA
(1) REP O RTABLE:
(2) O F INTEREST TO O TH ER JU D G ES:
(3) RE VISED .
DA TE 14/11/2025
Date: 2025
In the matter between:
BEESTEPAN BOERDERY (PTY) LTD
and
VANDABYTE(PTY)LTD
JUDGMENT
BRANDAJ
Introduction and background
Case number: 021118/2024
Applicant
Respondent
[1] This matter concerns the interpretation of section 54 of the M inerals and
30-1
30-1
2
Petroleum Resources Development Act 28 of 2002 (the ‘MPRDA') and the question
whether a holder of a mining right may enter onto land to which that right applies and
commence mining despite the dispute resolution process provided for in section 54 to
determine compensation for loss that may result from the mining for the owner of the
land not having been exhausted. The matter comprises an application (‘the main
application’), coupled with an interlocutory application; and a counter application.
[2] With the main application the applicant seeks to prevent the respondent from
accessing one of its farms and commencing open-cast coal mining in terms of a mining
right that it holds, until the process prescribed in section 54 of the MPRDA to determine
compensation for any loss caused the applicant by the mining has been concluded,
and such compensation paid; and to gain access to information concerning the
respondent’s mining right.
[3] In the interlocutory application the applicant seeks leave to file a supplementary
affidavit; to join another party (the Minister of Minerals and Energy – ‘the Minister’);
and to amend its notice of motion in the main application to add prayers for orders
related to the respondent’s duties concerning rehabilitation of the applicant’s land once
mining has been concluded.
[4] With the counter application – in essence the flipside of the main application -
the respondent seeks to force the applicant to allow it to move onto its farm and
commence mining, in exercise of the mining right that it holds, despite that the
compensation issue has not yet been resolved.
Background
[5] The applicant is Beestepan Boerdery (Pty) Ltd (‘Beestepan’), a commercial
farming concern based in Middelburg, Mpumalanga. Beestepan farms crops and stock
on several farms in the Steve Tshwete Local Municipality in Mpumalanga. These farms
include a portion of the farm Dunbar,1 which Beestepan owns.
[6] The respondent is Vandabyte (Pty) Ltd (‘Vandabyte’), a company based in
[6] The respondent is Vandabyte (Pty) Ltd (‘Vandabyte’), a company based in
Centurion, Gauteng but with its sole director, one Deale, resident in Middelburg in
Mpumalanga.
1 The Remaining Extent of Portion 2 of the farm Dunbar, No. 189 Registration Division I.S.,
Mpumalanga (‘Dunbar farm’).
30-2
30-2
3
[7] Vandabyte holds a mining right to conduct open-cast coal mining on parts of
several farms around Middelburg, including Dunbar farm. It obtained this right through
the processes prescribed in the MPRDA.
[8] Vandabyte was granted the mining right on 15 June 2023, for a period of 10
years, until 15 June 2033. It is required to execute the mining right (ie, commence
mining) within one year after the date of grant. To do so, it requires access to the land
to which the mining right applies, including Dunbar farm.
[9] Substantially before the grant of the right, Vandabyte, through its majority
shareholder, Dunbar (Coal) (Pty) Ltd (‘Dunbar Coal’) already entered into discussions
with Beesteplaas about access to Dunbar farm. While there may be dispute about the
content of those engagements and the positions taken by the protagonists (the idea
at the time was that Vandabyte would purchase either a part of or the whole Dunbar
farm, with disagreement on the purchase price and valuations), the parties are agreed
that they engaged either through correspondence or in meetings at least eight times
before the mining right was granted.
[10] Once the mining right was granted these engagements continued. On 31 July
2023, Dunbar Coal on behalf of Vandabyte wrote Beestepan to inform it that it had
acquired the mining right. It also indicated that it required access to Dunbar farm to
execute the mining right, that its intention to acquire Dunbar farm for that purpose
remained and that its previous offer to purchase it was still in place.
[11] Beestepan responded through its attorneys that Vandabyte’s offer was not
acceptable. It proposed a meeting to resolve the issue. This meeting indeed took place
on 4 September 2023, but no agreement resulted, with the sticking point still the
purchase price.
[12] On 13 September 2023, Beestepan submitted a notice in terms of section 54
of the MPRDA to the Regional Manager of the Department of Minerals and Energy
of the MPRDA to the Regional Manager of the Department of Minerals and Energy
(‘the DME’) informing him that Beestepan was likely to suffer damages or loss as a
result of Vandabyte’s proposed mining on Dunbar Farm and that the parties, despite
attempts at reaching a resolution concerning compensation for that loss or damage,
were unable to do so. On 26 October 2023, Vandabyte for its part, also in terms of
section 54 of the MPRDA, notified the Regional Manager that in its view, Beestepan
was making unreasonable demands in return for access to Dunbar farm. It requested
30-3
30-3
4
the Regional Manager to set in motion the dispute resolution process provided for in
section 54 to resolve the impasse between it and Beestepan.
[13] The Regional Manager responded to Vandabyte’s notice on 22 November
2023, requesting Beestepan and Vandabyte to attend a meeting on 29 November
2023 to try to reach agreement. In the meantime, on 23 November 2023, Beestepan
wrote Vandabyte with another offer to purchase a portion of Dunbar farm. This offer
was rejected as Vandabyte did not accept the purchase price.
[14] The meeting with the Regional Manager took place on 29 November 2023.
There Vandabyte and Beestepan agreed each to obtain and exchange independent
valuations of Dunbar farm by 31 January 2024 and then to meet on 12 February 2024
to try to reach agreement. In the event this failed, the Regional Manager would be
informed.
[15] Both parties obtained and then exchanged their independent valuations. The
valuations were markedly different. In this light, the planned meeting of 12 February
did not take place. Instead, on 13 February 2024, Vandabyte informed Beestepan in
writing that, because they had proven unable to agree on an amount of compensation,
it had decided to refer the determination of compensation to arbitration or a competent
court, ‘as anticipated by the provisions of section 54(4) of the [MPRDA]’.
[16] On the same day, Vandabyte also delivered a notice to Beestepan in terms of
section 5A(c) of the MPRDA. In this notice, it informed Beestepan that it intended
commencing with mining on Dunbar farm on 18 March 2024 and would for that
purpose enter onto Dunbar farm on that date.
[17] Beestepan responded in writing on 17 February 2024 that it denies Vandabyte
access to Dunbar farm. It also requested an undertaking from Vandabyte that it would
not attempt to access and commence mining on Dunbar farm until proper consultation
concerning compensation for loss occasioned by the mining had taken place and such
concerning compensation for loss occasioned by the mining had taken place and such
compensation had either been agreed or determined in terms of section 54 of the
MPRDA.
[18] Vandabyte responded on 22 February 2024 that there was no reason why
access could be withheld and that the consultation process concerning compensation
could proceed parallel to commencement of mining.
[19] To this Beestepan replied on 23 February, that in light of Vandabyte’s refusal
30-4
30-4
5
to provide the undertaking sought, it would launch proceedings to interdict Vandabyte
from entering onto Dunbar farm and commencing mining there. True to its word,
Beestepan filed and served its application for this interdict (the main application in this
matter) on 26 February 2024.
[20] On 29 February 2024 Vandabyte wrote Beestepan that it undertook not to
access Dunbar farm until the then current maize crop had been harvested, which was
estimated to be around the end of July 2024. It also repeated its proposal that the
matter of compensation be referred for arbitration, but while mining commences.
[21] On 28 February 2024, Vandabyte noted its opposition to the main application.
On 5 March it filed its answering affidavit to the main application and at the same time
(and on the basis of the same affidavit) launched its counter application in which it
sought an order granting it access to Dunbar farm and prohibiting Beestepan from
interfering with such access. Although both the main and counter application were
originally urgent, the parties later agreed that they should instead proceed in the
ordinary course.
[22] This was no doubt at least in part prompted by the fact that the parties had
reached agreement on referring the determination of compensation to an arbitrator.
During the first half of April 2024, the arbitration agreement was finalised, and the
arbitrator was appointed. From there the arbitration process proceeded parallel to the
still pending litigation. Statements of claim and defence were finalised and the
arbitration hearings commenced on 14 March 2025. Indeed, when this matter came
before me for hearing on 14 and 15 May 2025, the arbitration hearing was ongoing
and it was in fact set to conclude on 16 May, one day after the hearing before me.2
[23] As could be expected, the parallel litigation and arbitration processes dealing
with ostensibly different (but obviously closely related) aspects of one and the same
dispute, could not be hermetically sealed from one another.
dispute, could not be hermetically sealed from one another.
[24] Once the arbitration process took shape, the object of the parties’ engagement
changed. Prior to this, they negotiated about an appropriate purchase price for Dunbar
farm, on the assumption that Vandabyte wished to acquire ownership of the farm to
enable mining to commence. In the arbitration the object became determination of
compensation for loss that Beestepan as owner of Dunbar farm would suffer as a
2 In the event, the arbitration award was delivered on 1 October 2025.
30-5
30-5
6
consequence of Vandabyte’s mining.
[25] To Beestepan, this indicated that Vandabyte no longer wished to acquire
Dunbar farm and that it stood to remain owner of Dunbar farm for the duration of the
execution of Vandabyte’s mining right, and after its conclusion after 10 years. In its
view, this meant that it no longer faced only the loss occasioned by the interference in
its farming activity on Dunbar farm, which could perhaps have been fully recompensed
through an appropriate purchase price. It also incurred the risk of potential liability for
a possible failure by Vandabyte properly to rehabilitate the farm once mining has been
concluded.
[26] In part to anticipate and cater for this potential risk, Beestepan then launched
its interlocutory application on 20 December 2024. In this application Beestepan
sought leave to file a supplementary affidavit. This supplementary affidavit was
intended to serve as founding affidavit for its interlocutory application, placing facts
before court related to the new potential harm Beestepan perceived, and as a
supplementary answering affidavit to Vandabyte’s counter application. Beestepan in
the interlocutory application also sought several additional orders that would enable it,
on its version, to mitigate and manage the risk occasioned by it remaining owner of
Dunbar farm.
[27] The interlocutory application triggered the exchange of several sets of
additional affidavits. In addition to the supplementary affidavit for which Beestepan
sought leave to admit in the interlocutory application there followed three
opposing/replying/further affidavits from Vandabyte; and two replies from Beestepan.
[28] All of this contributed to the further burgeoning of an already voluminous set of
papers. In this light not surprisingly, when this matter came before Basson J on its first
hearing date, 12 February 2025, it was transferred to a Special Motion Court and by
agreement postponed to 14 and 15 May 2025.
Issues
agreement postponed to 14 and 15 May 2025.
Issues
[29] As stated at the outset, I am called upon against this background to decide a
main application; coupled with an interlocutory application; and a counter application.
Below I address the interlocutory application first and then the main and counter
applications. But before I do so, it pays to identify what the issues in this matter are.
These cut across and are determinative of all three applications.
30-6
30-6
7
[30] Despite the seeming complexity of this matter that prompted the parties to
expand the papers to such an extent that a hearing before a special motion court was
warranted, the main and counter applications relate to the same basic question,
namely whether or not Vandabyte is entitled to enter onto and commence mining
operations on Dunbar farm before the dispute between the parties concerning
compensation for loss that will be caused to Beestepan through Vandabyte's mining
on Dunbar farm has been resolved through the processes provided for and to the
extent required by section 54 of the MPRDA. More precisely, only two concrete
substantive issues arise:
[30.1] whether Vandabyte is entitled to access Dunbar farm to execute its
mining right before compensation for Beestepan has been either agreed to or
determined, and in particular before an arbitration process concerning this, initiated in
terms of section 54(4) of the Minerals and Petroleum Resources Development Act 28
of 2002 (‘the MPRDA’) has been concluded; and
[30.2] whether Vandabyte is entitled to access Dunbar farm to execute its
mining right before whatever compensation has been either agreed to or determined,
has been paid to Beestepan.
[31] To be sure, these two basic issues raise several sub-questions concerning the
interpretation of section 54 of the MPRDA and the nature and extent of the entitlements
that arise for its holder from a mining right. But these must be determined only in aid
of determining the two main issues above.
[32] What is not before this court for determination is in the first place the quantum
of any compensation Beestepan is entitled to; and secondly for which items of loss,
potential in the longer term or imminent now, Beestepan is entitled to claim. These are
issues that stood to be determined in the arbitration the parties have agreed to subject
themselves to and as a result of which an award was delivered on 1 October 2025,
not by this Court.
The interlocutory application
not by this Court.
The interlocutory application
[33] Beestepan’s interlocutory application comprises three substantive prayers.
First, Beestepan seeks leave to file a supplementary affidavit. Second, Beestepan
wishes to join the Minister of Minerals and Energy (‘the Minister’) as party, due to a
supposed interest in the additional relief Beestepan seeks to introduce through the
30-7
30-7
8
amendment of its notice of motion, concerning Vandabyte’s rehabilitation duties. Third,
Beestepan seeks the amendment of its notice of motion in the main application,
through addition of several prayers directed at itself and the Minister concerning
Vandabyte’s rehabilitation duties. Below I address each of these three aspects of the
interlocutory application in turn.
The supplementary affidavit
[34] Ordinarily in motion proceedings only three sets of affidavits are allowed: a
founding, answering and replying affidavit. However, in terms of Uniform Rule 6(5)(e),
a court may, in its discretion, allow further affidavits. Further affidavits will ordinarily be
allowed only upon application for leave to the court and whether to grant such leave
is in the discretion of the court. This discretion must be exercised judiciously, in light
of all the relevant facts 3 but on the understanding that leave will be granted only in
exceptional circumstances.4
[35] The following factors may play a role in the exercise of the court’s discretion: 5
- The reason the evidence was not produced earlier.
- The materiality of the evidence.
- The possibility that it may have been filed to ‘relieve the pinch of the shoe’.
- The balance of prejudice if the application is refused or granted.
- The stage of the litigation.
- The possibility of an appropriate cost order to address the late filing.
- The need for finality in judicial proceedings.
- The appropriateness of visiting attorneys’ faults upon the heads of their client.
Of course, not all these factors will be relevant to every case – below I address only
those that indeed clearly relate to this one.
[36] The purpose of the supplementary affidavit Beestepan seeks now to have
admitted is twofold. First, it serves as a supplementary answer to Vandabyte's counter
application. Second, it founds the remainder of the interlocutory application – the
3 Hano Trading CC v JR 209 Investments (Pty) Ltd 2013 (1) SA 161 (SCA) at 165A-C.
3 Hano Trading CC v JR 209 Investments (Pty) Ltd 2013 (1) SA 161 (SCA) at 165A-C.
4 Impala Platinum Ltd v Monageng Mothiba N.O. and Others (JR2567/13) [2016] ZALCJHB 475 (10
June 2016 at para [4].
5 Porterstraat 69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd 2000 (4) SA 598 (C).
30-8
30-8
9
prayers to join the Minister and to amend the main application through adding
additional relief. On both these counts the affidavit contains evidence concerning the
extent of Vandabyte’s planned mining operations and Vandabyte’s compliance and
capacity in future to comply with its statutory obligations to rehabilitate Dunbar farm
once mining on it has been concluded. This evidence relates to what on Beestepan’s
version is the liability that it as owner of Dunbar farm will incur for rehabilitation should
Vandabyte not comply with its rehabilitation obligations.
[37] Beestepan submits that the reason for it providing this evidence only at the late
stage that it did is likewise twofold. First, it avers that when it launched the main
application it did not have insight into Vandabyte’s Environmental Impact Assessment
(EIA) and its Environmental Management Programme (EMP). It also did not yet have
available its own expert report on the adequacy of Vandabyte’s rehabilitation plans nor
its own statement of claim (SOC) in the arbitration proceedings that it later agreed to.
Because all of these things on Beestepan’s version are relevant to the main
application, once it did become available at a later stage it had to be placed before
court.
[38] Second, Beestepan avers that, prior to it launching the main application,
Vandabyte had throughout indicated that it wished to buy Dunbar farm, so that the
issue in dispute between them was only the appropriate purchase price. However,
once the main application had been launched, Vandabyte made what Beestepan calls
an ‘about-turn’, no longer willing to acquire Dunbar farm but only willing to negotiate
about compensation. It was only then that Beestepan, on its version, realised that its
potential loss resulting from the mining could also include a possible liability for the
failure of Vandabyte properly to rehabilitate Dunbar farm; and it was only then that it
realised that the evidence concerning that potential liability was relevant to the main
realised that the evidence concerning that potential liability was relevant to the main
application and must be placed before court.
[39] Neither of these two reasons hold water. In its affidavit in opposition to the
interlocutory application Vandabyte through its deponent avers that Beestepan ‘had
sight’ of the EIA and the EMP long before it had even started preparing, let alone
finalising and launching its main application. It shows with supporting documentary
evidence, that these documents were provided to Beestepan in draft form on 16
October 2019 and again on 12 November 2021 (to both one of Beestepan’s directors,
a Mr Kane-Berman and its lawyers, as now Webber Wentzel Inc). When Vandabyte’s
30-9
30-9
10
EIA was approved on 15 September 2022 and its Integrated Environmental
Authorisation (EA) granted on the same date, Beestepan was likewise notified,
including of its right of appeal against those decisions.
[40] Against Beestepan’s bare averment that it had not had sight of the EIA or the
EMP prior to launching its main application these detailed and documented denials of
Vandabyte’s version must prevail, not only because this is indicated in terms of the
Plascon Evans rule 6 (with Vandabyte’s version that of the respondent) but also
because Vandabyte’s version is clearly documented while Beestepan’s is simply
asserted.
[41] Given that it had these documents available before it started preparing its main
application, Beestepan has only itself to blame for its failure to obtain an expert opinion
of its own concerning the adequacy of Vandabyte’s rehabilitation plans at an earlier
stage. It was not prevented from obtaining its own expert opinion earlier and
presenting it to this Court earlier – it either decided not to do so itself or neglected to
do so when it could have.
[42] It is unclear why the fact that Beestepan did not have its own SOC in the
arbitration proceedings at its disposal when it launched its main application is a reason
motivating admission of a supplementary affidavit containing references to that SOC
now. The reasoning concerning this seems entirely circular – Beestepan offers its wish
to have this evidence admitted as a reason for its submission.
[43] Beestepan’s averment that Vandabyte surprised it with a sudden ‘about-turn’ to
compensation instead of purchasing Dunbar farm after Beestepan had already
launched its main application doesn’t accord with the common cause facts. The last
time that purchasing Dunbar farm was still in issue between the parties was on 12
February 2024, when they were supposed to meet to compare and discuss their
respective valuations of Dunbar farm. After this meeting failed to take place because
respective valuations of Dunbar farm. After this meeting failed to take place because
the two valuations differed too dramatically, the dispute turned into one about
compensation more broadly.
[44] On 13 February 2024 Vandabyte informed Beestepan in writing that, because
they had proven unable to agree on an amount of compensation, it would refer the
6 Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd. (53/84) [1984] ZASCA 51; [1984] 2
All SA 366 (A); 1984 (3) SA 623; 1984 (3) SA 620 (21 May 1984).
30-10
30-10
11
determination of compensation to arbitration or a competent court in terms of section
54(4) of the MPRDA. Every interaction between the parties after that referred explicitly
to compensation rather than purchase of Dunbar farm. This culminated in Beestepan
launching its main application on 22 February 2024. Tellingly, in its notice of motion it
too refers to compensation rather than an appropriate purchase price for Dunbar Farm.
In sum, it stretches credulity that Beestepan did not know before it launched its main
application that the dispute between the parties was no longer about settling on an
appropriate purchase price, but more broadly about compensation for loss occasioned
by mining.
[45] Beestepan also does not meet the requirement concerning the degree of
materiality of the evidence it seeks to place before this Court through its
supplementary affidavit. In Porterstraat 69 Eiendomme (Pty) Ltd v PA Venter
Worcester (Pty)7 Davis J made it clear that at issue here is not simply relevance in
general, but the question of what bearing the new evidence at issue would have on
the outcome of the application concerned. If the new evidence has a ‘significant
bearing on the outcome of the … application’8 then that is a strong indication in favour
of its admission.
[46] Mr Franklin SC submitted on behalf of Beestepan that the evidence in the
supplementary affidavit should be admitted as it is relevant to determining the main
application and specifically the balance of convenience, irreparable harm and interest
of justice aspects for the interdict.
[47] The more than 300 pages of evidence pertaining to the extent of Vandabyte’s
planned mining on Dunbar Farm and the potential liability for deficient rehabilitation
arising from that for Beestepan contained in the supplementary affidavit certainly is
relevant in general terms to the determination of the nature, scope and extent of the
loss that Vandabyte’s mining could cause Beestepan, and in that way to determination
loss that Vandabyte’s mining could cause Beestepan, and in that way to determination
of the compensation to be paid Beestepan.
[48] But it is at best tangentially relevant and certainly not material to the main
application. What is at issue in the determination of the balance of convenience,
irreparable harm and interest of justice in the main application is the extent to which
7 Porterstraat 69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd 2000 (4) SA 598 (C)
(Porterstraat 69 Eiendomme).
8 Porterstraat 69 Eiendomme (above) at 617H-I.
30-11
30-11
12
Beestepan’s capacity to recoup any losses it may suffer as a result of Vandabyte’s
mining will be affected should the mining be allowed to commence before the nature
and quantum of loss (and so compensation) has been determined. What should be
before this court concerning loss and compensation to determine that issue, is at best
for Beestepan an indication of the different kinds or items of loss that are likely to arise
for it from Vandabyte’s mining. The reams of evidence in the supplementary affidavit
concerning the scope and size of Beestepan’s potential liability for Vandabyte’s
potential failure properly to rehabilitate Dunbar farm post-mining need not.
[49] In this matter the most important consideration determining admissibility of the
supplementary affidavit is the stage of the litigation at which it was introduced. The
interlocutory application containing the supplementary affidavit was launched on 23
December 2024, slightly more than 10 months after the main application.
[50] The interlocutory application not only had the effect that Vandabyte had to file
several additional affidavits of its own to answer to the supplementary affidavit
(something that can of course be remedied with an appropriate order as to costs). It
also caused Basson J at the originally allocated hearing date to postpone the matter
to place it on the special motions roll for 14 and 15 May 2025, to accommodate the
additional submissions required by the more than 300 pages of additional evidence.
Given that this matter, originally prosecuted by both parties as urgent, despite the fact
that it was since moved by agreement to the ordinary roll, remains manifestly time-
sensitive for Vandabyte, this delay caused by the attempt to admit the supplementary
affidavit is significant.
[51] More importantly, by the time Beestepan sought to introduce the supplementary
affidavit through the interlocutory application the parties had long since agreed to refer
affidavit through the interlocutory application the parties had long since agreed to refer
the question of the scope and quantum of compensation due Beestepan to arbitration.
Indeed, Beestepan's statement of claim (that is of course referred to in the
supplementary affidavit) had already been finalised and in general the issues and
evidence that would be subject to the arbitration had been agreed. This places this
court in an invidious position: if the supplementary affidavit is to be admitted, I will be
required to consider and evaluate evidence that at the same time is being considered
and evaluated by the appointed arbitrator and that, in the event were eventually
decided by the arbitrator before this judgment was handed down, on 1 October 2025.
30-12
30-12
13
[52] This cannot be countenanced. It is in part to avoid this very problem – ‘a
situation where different [tribunals] pronounce on the same issue with the risk that they
may reach differing conclusions’9 – that in general the same parties, in terms of the
doctrine of lis alibi pendens, are not allowed to litigate the same issues and evidence
at the same time in two or more different fora.
[53] Although a plea of lis pendens was not raised and would not apply in this matter,
it would be imprudent for this court by admitting the supplementary affidavit to put itself
in a position where it might make findings of fact and draw conclusions from facts that
may conflict with the findings made and conclusions drawn by the arbitrator about the
very same facts. For this and the other two reasons set out above, taken together but
also each on its own, the leave sought to admit the supplementary affidavit cannot be
granted.
The amendment of the notice of motion
[54] Beestepan applies to amend its notice of motion in the main application through
insertion of the following prayers:
2A The Applicant is directed to submit all information relevant to the
Respondent's rehabilitation obligations on the Remaining Extent of Portion 2 of
the farm Dunbar No 189 Registration Division /.S. Mpumalanga, measuring
637,5316 Hectares, held by Deed of Transfer T16868/2016 (“the Property”) to
the Department of Mineral Resources and Energy.
2B The Department of Mineral Resources and Energy is permitted to call
for additional information from the Applicant and/or the Respondent concerning
the Respondent's rehabilitation obligations on the Property.
2C The Minister of Mineral and Petroleum Resources, responsible for
mineral resources is directed to consider, under section 47 of the Mineral and
Petroleum Resources Development Act No 28 of 2002 (“MPDRA”), whether the
Respondent has submitted inaccurate, false, fraudulent, incorrect or misleading
information for the purposes of the application or in connection with any matter
information for the purposes of the application or in connection with any matter
required to be submitted under the MPDRA concerning the Respondent's
Mining Right on the Property and whether the Minister should cancel or
9 Per Wallis JA in Caesarstone Sdot-Yam Ltd v The World of Marble and Granite CC (741/12) [2013]
ZASCA 129 (26 September 2013) at para [2].
30-13
30-13
14
suspend the Mining right.
2D The Minister of Mineral and Petroleum Resources, responsible for
mineral resources is permitted, in his discretion, and after having considered
the information provided by the Applicant and called for by the Department of
Mineral Resources and Energy, to direct that the Respondent's environmental
management programme, including the Respondent’s financial provision to
the Department of Mineral Resources and Energy according to the
requirements of Section 24PA of the National Environmental Management Act
No 107 of 1998 (“NEMA”) concerning the Property, be adjusted in such a way
as the Minister or the MEG may require.
2E. The Minister of Mineral and Petroleum Resources, responsible for
mineral resources is permitted, in his discretion, to require that the Respondent
make financial provisions to the Department of Mineral Resources and Energy
according to the provisions of Section 24PA of NEMA read with the Financial
Provision Regulations, 2015, promulgated in terms of NEMA, to the reasonable
satisfaction of the claimant, for the costs to remedy the environmental
degradation caused by the Respondent's proposed opencast mining activities
on the Property, in the aggregate of- -
2E(i) The potential rehabilitation liability for Opencast 1, being R473 860 647,
minus the Respondent's estimation and guarantee of R13 330 768.07 (Exel.
VAT), which equals R460 829 879 plus VAT, alternatively an amount to be
determined by the Department of Mineral Resources and Energy; and
2E(ii) The potential rehabilitation liability for Opencast 2 and other intended
mining activities on the remainder of the Property in the amount of R473 860
647 plus VAT, or such other amount which the Applicant will quantify upon
receipt of the Respondent's mining plan regarding Opencast 2 and other
intended mining activities on the remainder of the Property, alternatively an
amount to be determined by the Department of Mineral Resources and
Energy."
amount to be determined by the Department of Mineral Resources and
Energy."
[55] If the opposing party does not agree to it, amendment of a notice of motion will
usually be permitted upon it being applied for to court, ‘unless it is made mala fide or
would cause prejudice to the other party which cannot be compensated for by an order
30-14
30-14
15
for costs or by some other suitable order such as a postponement’.10
[56] Mr Wickins SC for Vandabyte suggested both in written heads of argument and
during the hearing before me that Beestepan had brought its interlocutory application,
including the application to amend the notice of motion mala fide, with the intention to
delay and frustrate the due prosecution of the main and counter applications.
Although, as found above it is difficult to discern what reason other than that
Beestepan had for launching the interlocutory application there is not enough before
me to conclude that the amendment of the notice of motion is indeed motivated by
such bad faith.
[57] Nonetheless, the amendment sought cannot be permitted because in at least
two important ways it causes prejudice that can be remedied neither by an appropriate
order as to costs nor by a postponement, nor by any other apparent means.
[58] In Imperial Bank Ltd v Barnard and Others NNO Mpati P provided as one
example of an instance where an amendment would cause undue prejudice, cases
where the amendment ‘has the effect of introducing a new cause of action’.11 For the
amendment to be permitted it must relate to substantially the same cause of action as
the main application, in the sense that it is ‘recognisable or identifiable’ in the original
cause of action and goes no further than clarifying or correcting the previous pleading
in which the original cause of action is set out.12
[59] The cause of action of the main application is what on Beestepan’s version is
its statutory right in terms of section 54 of the MPRDA to deny Vandabyte access to
Dunbar farm to commence mining until compensation that may be due it has been
agreed or determined (and paid) and a threatening breach of that right through
Vandabyte’s intention to indeed enter Dunbar farm and start mining. The main
application is an application for a prohibitory interdict that would prevent such breach
of that right.
of that right.
[60] Although somewhat difficult to make sense of (more on this below), the
10 Four Tower Investments (Pty) Ltd v Andre’s Motors 2005 (3) SA 39 (N) at para [15] (‘Four Tower
Investments’) cited with approval in Imperial Bank Ltd v Barnard and Others NNO 2013 (5) SA 612
(SCA) (‘Imperial Bank’) at para [8].
11 Imperial Bank Ltd v Barnard and Others NNO 2013 (5) SA 612 (SCA) (‘Imperial Bank’) at para [8].
12 Neon and Cold Cathode Illuminations (Pty) Ltd v Ephron 1978 (1) SA 463 (A) at 474A; Sentrachem
Ltd v Prinsloo 1997 (2) SA 1 (A) at 15J-16D (the amendment must not amount to more than a
clarification (‘opklaring’) of the previous pleading in which the original cause of action is set out).
30-15
30-15
16
amendment, apart from prayer 2A in which Beestepan seeks relief against itself,
comprises an application for several declaratory orders concerning the Minister’s
powers related to Vandabyte’s rehabilitation duties and what appears to be an order
directing the Minister to exercise certain of his statutory powers and to exercise them
in a certain way. The orders sought all relate to the validity and sufficiency of
Vandabyte’s undertakings concerning rehabilitation of the land on which it seeks to
mine, and the Department's and Minister's oversight functions and powers concerning
those.
[61] As such the amendment is not a clarification, amplification or correction of the
main application, substantially related to the cause of action in the main application. It
is instead, as ably submitted by Mr Wickens SC for Vandabyte, an entirely new and
distinct application with a new cause of action, albeit difficult to discern: provisions of
the MPRDA other than section 54 and of related environmental legislation that impose
rehabilitation duties on Vandabyte and the perceived danger that the provision
Vandabyte made for rehabilitation is somehow inadequate and might lead to liability
and loss for Beestepan in the future. It should have been brought separately, not as
an amendment to the existing main application.
[62] Beestepan’s amendment cannot be permitted also for a second reason: all five
proposed prayers are bad in law and will be excipiable should they be allowed. In the
first prayer – 2A – Beestepan asks this court to direct it to provide certain information
to the Minister. That is, it seeks directory relief against itself. No more needs be said.
[63] Prayers 2B, D and E are alike. They are all prayers for what look like declaratory
orders, that the Department and/or the Minister is ‘permitted’ to do certain things.
These prayers all three face the following intractable bind: A public entity such as the
Department or the Minister can only exercise those powers that are explicitly or by
Department or the Minister can only exercise those powers that are explicitly or by
necessary implication conferred on it by legislation. If legislation does not so confer
authority on the Department to ‘call for additional information from the Applicant and/or
the Respondent concerning the Respondent's rehabilitation obligations on the
Property’, or on the Minister to ‘direct that the Respondent's environmental
management programme be adjusted’ and to ‘require that the Respondent make
financial provisions to the Department of Mineral Resources and Energy according to
the provisions of Section 24PA of NEMA read with the Financial Provision
Regulations, 2015, promulgated in terms of NEMA, to the reasonable satisfaction of
30-16
30-16
17
the claimant, for the costs to remedy the environmental degradation caused by the
Respondent's proposed opencast mining activities on the Property’ then they do not
have that authority and this court cannot through its orders confer that authority on
them. But if legislation does in fact confer those powers on them, then these prayers
are wholly superfluous, and this court should not entertain relief that has no practical
purpose. Either way, if permitted, they will certainly be excipiable.
[64] Likewise prayer 2C. In prayer 2C, Beestepan seeks an order directing the
Minister to exercise its statutory power in terms of section 47 of the MPRDA. There is
a particular remedy in our administrative law through which one obtains an order
directing an administrator to exercise a statutory power. Under the common law it used
to be called an application for a mandamus. Currently it is an application for the review
of the administrator's failure or refusal to exercise the relevant power, in terms of
section 6(2)(g) of the Promotion of Administrative Justice Act 3 of 2000 (‘the PAJA').
[65] Both at common law and under the PAJA such an application to direct the
exercise of a statutory power must follow a particular process and be presented in a
particular form. Apart from the fact that this remedy is available only when an
administrator was under a duty to exercise the power and then failed to do so within a
reasonable time, currently it can only be accessed through the process for the review
of an administrative action as prescribed in the PAJA and in terms of Uniform Rule 53.
None of these processes and requirements have been followed or complied with
concerning prayer 2C. As such, it is also legally incompetent and if admitted, would
certainly be excipiable.
[66] In light of the above, this is one of those exceptional cases where the
amendment of the notice of motion applied for cannot be permitted.
The Minister's joinder
amendment of the notice of motion applied for cannot be permitted.
The Minister's joinder
[67] A party may be joined to an existing application only if it has a direct or
substantial interest in the relief sought, or alternatively a legal interest. Clearly, the
Minister has no interest in Beestepan's main application, which in fact does not
concern the Minister at all – Beestepan made no claim to the contrary.
[68] Beestepan sought the Minister's joinder because of a perceived interest in the
amended prayers for which admission was sought in the interlocutory application. On
the face of it, it does seem as if the Minister is directly implicated in several of the
30-17
30-17
18
amended prayers (prayer 2D is specifically directed at it) but I need not come to any
conclusion on this. Given that I have already held above that the amendment of the
notice of motion of the main application is not permitted, any interest that the Minister
may have had in this matter had the amendment been permitted, falls away.
Accordingly, also the application for the joinder of the Minister must fail and the
interlocutory application in its entirety must be dismissed.
The main and counter applications
[68] The central issue in both the main and the counter application is the same:
access for Vandabyte to Dunbar farm, to commence mining there. Beestepan seeks
orders that would prevent such access and commencement until compensation has
been agreed or determined and paid; Vandabyte with its counter application seeks
orders that such access and commencement must be allowed forthwith, despite the
arbitration to determine compensation still being pending.
[69] The two applications in this sense are two sides of the same coin. Dismissal of
the main application would inevitably mean that Vandabyte would be allowed to enter
onto Dunbar farm and commence mining. Grant of the main application in turn would
inevitably mean that the counter application fails. Moreover, the issues that arise in
both applications are generally the same. In this light it would make little sense to
address the two applications separately. Instead, I proceed below to consider and
decide the issues for both applications together. I am aided in adopting this approach
by the fact that concerning the issues raised for both applications, the salient facts are
mostly common cause, so that the application of Plascon Evans 13 presents no
problems.
[70] One preliminary issue must be disposed of first. Beestepan brings its main
application as one for an interim rather than a final interdict, on grounds that, should it
be granted, the interdict sought will only be in place pending agreement or
be granted, the interdict sought will only be in place pending agreement or
determination, and payment of compensation. Vandabyte disputes this
characterisation, submitting instead that the interdict applied for is final. Mr Wickens
pointed out that what renders an interdict final rather than interim in nature, is not the
period for which it will apply if granted, so that an interdict that applies only until some
other intervening fact occurs at a later stage (such as here) will for that reason be
13 Plascon Evans (above).
30-18
30-18
19
interim rather than final. Instead, an interdict is final if it determines the rights of the
parties finally, for whatever period those rights once determined would then apply. An
interim interdict by contrast is one that determines the rights of the parties in the interim
until they may be determined finally in a further proceeding. As much was held in Pikoli
v President of the Republic of South Africa14 where Du Plessis J described it as follows:
[An] interim interdict does not involve a final determination of the parties’ rights and it
does not affect such final determination. When considering whether to grant or refuse
an interim interdict, the court seeks to protect the integrity of the proceedings in the
main case.
[72] With this application, although the interdict prohibits Vandabyte’s entry and
commencement of mining for an interim period (only until such time as compensation
has been agreed or determined, and paid), were the interdict to be granted,
Beestepan’s right to exclude would be determined finally, countering Vandabyte’s right
of entry equally finally. The interdict applied for is accordingly final.
[73] I agree with this characterisation: The interdict Beestepan seeks is indeed final.
Nonetheless, as becomes clear below, my conclusions remain the same whether I
apply the more stringent requirements for final or the more lenient ones for interim
relief.
[74] The requirements for a final interdict are a) a clear right; b) an injury actually
being committed or reasonably apprehended; and c) the absence of an adequate
alternative remedy.15 I consider each of these requirements on the facts of this matter
below.
A clear right
[75] The clear right that an applicant relies on in an application for a final interdict
must both be established as a matter of law and proven indeed to accrue to the
applicant on the evidence, on a balance of probabilities.16
[76] The right that Beestepan asserts for purposes of this first leg of the interdict
[76] The right that Beestepan asserts for purposes of this first leg of the interdict
enquiry is its right as owner to deny Vandabyte access to Dunbar farm to commence
mining until such time that compensation for the injury Vandabyte’s mining activity on
14 2010 (1) SA 400 (GNP) (‘Pikoli’) at 403I.
15 See for a recent statement of this well-settled set of requirements Equistock Properties 8 (Pty) Ltd
and Another v Oosthuizen and Others [2025] ZASCA 06 (‘Equistock’) at para [17].
16 Equistock (above) at para [17].
30-19
30-19
20
Dunbar farm may cause Beestepan has been either determined or agreed and has
been paid. It grounds this right in section 54 of the MPRDA, which it says creates a
procedure for determining or agreeing to such compensation, that the Constitutional
Court in Maledu v Itereleng Bakgatla Mineral Resources 17 held must be exhausted
before a holder of a mining right such as Vandabyte may gain access to the land to
which that mining right applies and commence mining. It proposes that the section 54
process is only exhausted once compensation has either been agreed or determined
and paid (which on the facts of this case for it means once the arbitration has been
finally concluded).
[77] The right that Vandabyte relies on for its counter application is its right to
execute its mining right by entering onto land to which it applies and commencing
mining, once that right has been granted and after it has given the owner or lawful
occupier of the land to which its right applies 21 days advance notice of its intention
so to do. It grounds this right in section 5(3) read with 5A(c) of the MPRDA.
[78] Whether either of these rights exist in law depends on the proper understanding
of the relationship between section 54 on the one hand, and section 5(3) read with
5A(c) of the MPRDA. That relationship was decided by the Constitutional Court in
Maledu, a judgment that Beestepan and Vandabyte understand differently. This
means that the existence of either of these (mutually exclusive) rights depends on the
interpretation this court affords the judgment in Maledu.
[79] Section 54 of the MPRDA determines the following:
54. Compensation payable under certain circumstances
(1) The holder of a reconnaissance permission, prospecting right, mining right or
mining permit must notify the relevant Regional Manager if that holder is prevented
from commencing or conducting any reconnaissance, prospecting or mining
operations because the owner or the lawful occupier of the land in question-
operations because the owner or the lawful occupier of the land in question-
(a) refuses to allow such holder to enter the land;
(b) places unreasonable demands in return for access to the land; or
(c) cannot be found in order to apply for access.
(2) The Regional Manager must, within 14 days from the date of the notice referred to
17 Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another (CCT265/17)
[2018] ZACC 41; 2019 (1) BCLR 53 (CC); 2019 (2) SA 1 (CC) (25 October 2018) (‘Maledu’).
30-20
30-20
21
in subsection (1)-
(a) call upon the owner or lawful occupier of the land to make representations
regarding the issues raised by the holder of the reconnaissance permission,
prospecting right, mining right or mining permit;
(b) inform that owner or occupier of the rights of the holder of a right, permit or
permission in terms of this Act;
(c) set out the provisions of this Act which such owner or occupier is
contravening; and
(d) inform that owner or occupier of the steps which may be taken, should he
or she persist in contravening the provisions.
(3) If the Regional Manager, after having considered the issues raised by the holder
under subsection (1) and any written representations by the owner or the lawful
occupier of the land, concludes that the owner or occupier has suffered or is likely to
suffer loss or damage as a result of the reconnaissance, prospecting or mining
operations, he or she must request the parties concerned to endeavor to reach an
agreement for the payment of compensation for such loss or damage.
(4) If the parties fail to reach an agreement, compensation must be determined by
arbitration in accordance with the Arbitration Act, 1965 (Act No. 42 of 1965), or by a
competent court.
(5) If the Regional Manager, having considered the issues raised by the holder under
subsection (1) and any representations by the owner or occupier of land and any
written recommendation by the Regional Mining Development and Environmental
Committee, concludes that any further negotiation may detrimentally affect the objects
of this Act referred to in section 2(c), (d), (f) or (g), the Regional Manager may
recommend to the Minister that such land be expropriated in terms of section 55.
(6) If the Regional Manager determines that the failure of the parties to reach an
agreement or to resolve the dispute is due to the fault of the holder of the
reconnaissance permission, prospecting right, mining right or mining permit, the
reconnaissance permission, prospecting right, mining right or mining permit, the
Regional Manager may in writing prohibit such holder from commencing or continuing
with prospecting or mining operations on the land in question until such time as the
dispute has been resolved by arbitration or by a competent court.
(7) The owner or lawful occupier of land on which reconnaissance, prospecting or
mining operations will be conducted must notify the relevant Regional Manager if that
owner or occupier has suffered or is likely to suffer any loss or damage as a result of
30-21
30-21
22
the prospecting or mining operation, in which case this section applies with the
changes required by the context.
[80] The relevant parts of sections 5(3) and 5A(c) in turn read as follows:
5. Legal nature of prospecting right, mining right, exploration right or production
right, and rights of holders thereof
…
(3) Subject to this Act, any holder of a prospecting right, a mining right, exploration
right or production right may-
(a) enter the land to which such right relates together with his or her employees, and
bring onto that land any plant, machinery or equipment and build, construct or lay down
any surface, underground or under sea infrastructure which may be required for the
purpose of prospecting, mining, exploration or production, as the case may be;
(b) prospect, mine, explore or produce, as the case may be, for his or her own account
on or under that land for the mineral or petroleum for which such right has been granted
…
…
(e) carry out any other activity incidental to prospecting, mining, exploration or
production operations, which activity does not contravene the provisions of this Act.
5A. Prohibition relating to illegal act
No person may prospect for or remove, mine, conduct technical co-operation
operations, reconnaissance operations, explore for and produce any mineral or
petroleum or commence with any work incidental thereto on any area without—
…
(c) giving the landowner or lawful occupier of the land in question at least 21 days
written notice.
[80] The interplay of these sections and the manner in which they provide resolution
to the tensions between the rights of mining right holders and the holders of surface
rights to land to which mining rights apply were authoritatively described by the
Constitutional Court in Maledu. In Maledu, the mining right holder had sought to
exercise its rights in terms of section 5(3) first by simply unilaterally entering onto the
land in question and commencing preparation for mining. Once it was stopped from
30-22
30-22
23
doing this through a successful application for a spoliation order brought by the surface
right holders, it obtained an order for their eviction in the Limpopo division of this court.
Crucially, it did so having given notice to the Regional Manager that the surface rights
holders were in its view unreasonably withholding access to the land and requesting
its intervention, but without having made any prior or resultant effort to engage with
the surface right holders and obtain a resolution through mediation or negotiation
(apart from having given them the required notice in terms of section 5A(c)) or to take
the section 54 mediation process through the Regional Manager any further.
[81] In this light the issue before the Constitutional Court on appeal against the
eviction order was whether a mining right holder that had given notice in terms of
section 5A(c), was by virtue of section 5(3) entitled to evict surface rights holders to
commence mining despite that the section 54 dispute resolution process had been
initiated but taken no further and in the absence of any other attempts at good faith
negotiation with the surface rights holders about the impact that mining would have on
their rights. Petse AJ (as he then was) held as follows concerning this:
[S]ection 54 itself provides for a speedy dispute resolution process that is premised on
parties reaching some sort of agreement through mediation. It also provides that if
parties fail to reach an agreement, then they may approach a court. It is unclear why,
pending the finalisation of this process [emphasis added], a mining rights holder should
be entitled to mine. On the contrary, to allow them to do so will undermine the purpose
of section 54 and the MPRDA: to strike a balance between the interests of the mining
right holder and the owner.18
[82] The crucial part of this passage for this case is the highlighted phrase ‘this
process’ and the question when it is that this process has been finalised so that the
process’ and the question when it is that this process has been finalised so that the
mining right holder is ‘entitled to mine’. Beestepan holds the position that Vandabyte
is precluded from commencing with mining until the amount of compensation it is
entitled to has been either agreed or finally determined and paid. It interprets the word
‘process’ used by Petse AJ to refer not only to the engagement between the parties
under direction of the Regional Manager referred to in sections 54(1), (2) and (3), but
to also include the arbitration or litigation that may ensue should the parties be unable
to reach agreement on compensation and the matter is referred to court or arbitration
18 Maledu (above) at para [92].
30-23
30-23
24
in terms of section 54(4). In casu on this basis its claim is that Vandabyte is precluded
from mining until the arbitration between them has been finally concluded.
[83] In support of this interpretation Beestepan submits that the impact of the award
of a mining right on surface rights to the land to which it applies (such as its ownership
of Dunbar farm) amounts to or is at least akin to expropriation, in that it causes the
loss of those rights in their entirety, or of central aspects of those rights. Relying on
section 25 of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’),
it then proceeds to point out that expropriation of any property right can only occur for
or against ‘just and equitable’ compensation. Such compensation, it continues, must
be finally determined before the expropriation itself (the actual ‘taking’ of the right in
question) occurs. It cites the matter of Haffejee NO and Others v Ethekwini
Municipality and Others19 in support of this final contention and also claims that Maledu
supports it.20 The ‘process’ that in terms of Maledu must be concluded before mining
may commence must in this light, so it concludes, include the arbitration or court
process ensuing from a section 54(4) referral, as, unless it is agreed, compensation
will only finally be determined once those processes as applicable in any given case
have been concluded.
[84] Vandabyte in turn says that the ‘process’ Petse AJ referred to in Maledu
concludes sooner – on the facts of this matter in its view, as soon as it transpires that
the parties are unable to reach resolution of their dispute through the mediation
required in terms of sections 54(1) to (3). This means for it that its section 5(3) right to
enter onto Dunbar farm and commence mining became operative the moment that it
was clear that parties were not going to reach agreement and would have to resolve
the issue of compensation through arbitration, while Beestepan’s right to deny it
access ceased at that same moment.
access ceased at that same moment.
[85] For Vandabyte, section 54 is intended to create an informal mediative process,
conducted under the direction of the Regional Manager, to allow the mining right and
surface rights holders to resolve their disputes (whether about access, conflicting land
use, compensation for loss or damage caused by mining or whatever else arising from
the fact of competing rights exercised concerning the same piece of land) through
19 Haffejee NO and Others v Ethekwini Municipality and Others 2011 (6) SA 134 (CC) (‘Haffejee’) at
para [21]
20 Maledu (above) at para [90] to [92].
30-24
30-24
25
negotiation aimed at reaching an agreement. It is only this process that, while it is
ongoing, suspends the mining right holder’s entitlement to access and commence
mining. When this process fails to result in a solution by agreement, it concludes.
Section 54 then provides two different and distinct alternative processes through which
the issues causing the deadlock and conclusion of the mediation process can be
resolved (expropriation in terms of section 54(5) and referral of the determination of
compensation to arbitration or a competent court in terms of section 54(4)).
[86] Against this background it is for Vandabyte clear that the process that Petse AJ
refers to in Maledu that suspends the exercise of a mining right is only the mediation
process shepherded by the Regional Manager, as that is the process that section 54
was created for, with the other processes (arbitration, litigation, expropriation, all
extraneous to the MPRDA) ensuing only when the section 54 process has failed and
so concluded. Once this process had concluded through its failure, on Vandabytes
view it was free to commence mining.
[87] This question of until when the execution of a mining right remains suspended
by the operation of the section 54 process has been considered and decided by two
different divisions of this court, in Sydney on Vaal Property Association v Theta Mining
(Pty) Ltd21 and Stuart Coal (Pty) Ltd v Regional Manager of the Department of Mineral
Resources and Energy, Mpumalanga & Another, 22 judgments to which Messrs
Woodrow SC (in heads of argument) and Wickens SC (at the hearing) helpfully
referred me.
[88] In Sydney on Vaal, the applicant (‘the CPA’), a communal property association
and beneficial owner of land concerning which the first respondent (‘Theta’), a mining
concern held a mining right, sought inter alia an order prohibiting Theta from entering
onto its property and commencing mining there, until the compensation to be paid to
onto its property and commencing mining there, until the compensation to be paid to
the CPA for loss or damage occasioned by Theta’s mining had been determined by
agreement in terms of section 54.
[89] The CPA, to establish its clear right to exclude Theta from its land pending
determination of compensation, relied squarely on the above quoted passage from
21 Sydney on Vaal Property Association v Theta Mining (Pty) Ltd 2020 JDR 0519 (NCK) (‘Sydney on
Vaal’).
22 Stuart Coal (Pty) Ltd v Regional Manager of the Department of Mineral Resources and Energy,
Mpumalanga & Another
30-25
30-25
26
Maledu to argue that execution of Theta’s mining right through entry onto the land and
commencement of mining was suspended until compensation had been determined
by agreement in terms of section 54.
[90] Williams J disagreed. To her, Maledu could be distinguished in that it did not
concern a dispute about compensation. Instead, on her reading Maledu was about
‘two competing rights in the context of evictions’, the surface rights holders’ right of
occupation to the land for which they had statutorily protected tenure rights and the
mining right holder’s statutory right to commence mining, in a context where these two
rights could not co-exist, in the sense that ‘it was not possible for the respondents to
undertake their mining operations while the applicants remained in occupation of the
farm’.23 For her, that is, Maledu was purely about access and occupation and not about
compensation. As such, Petse AJ’s remark concerning access and commencement
of mining being suspended until the section 54 process had been concluded, were
made on an understanding of that process as dealing with disputes about access and
commencement of mining. Those remarks do not apply to disputes concerning
compensation. On this basis she then proceeded to hold that the CPA does not have
the right it claims, so that the interdict application failed.
[91] In Stuart Coal, the mining right holder sought an interdict providing it with
access to the land to which its mining right applied and prohibiting the landowner from
preventing such access and/or the commencement of mining. In this matter the parties
had utilised section 54 in an attempt to reach agreement about access and
compensation but were unable to reach agreement. This then prompted the mining
right holder to approach the High Court for determination of compensation. The
landowner continued to refuse access on the basis that access and commencement
of mining remain suspended until compensation has been finally resolved, whether by
of mining remain suspended until compensation has been finally resolved, whether by
agreement or determination in court as it is only then that the section 54 process would
be concluded in terms of Maledu.
[92] Langa J rejected this interpretation of section 54 and Maledu, as follows: 24
[29] In my understanding section 54 only creates and facilitates a quick dispute
resolution process led by the Regional Manager in respect of compensation … The
Regional Manager is in charge of this process which, if it fails, must be dealt with by
23 Sydney on Vaal (above) at para [23.4].
24 Stuart Coal (above) at para [29] et seq.
30-26
30-26
27
arbitration or a court. Consequently, once there is a deadlock, the involvement of the
Regional Manager in the mediation process comes to an end and so does the section
54 mediation process. In my view the section 54 process would have become
exhausted at this stage.
[30] … [O]nce the negotiations have failed, and the issue [is] referred to arbitration
or court, it is out of the ambit of section 54. So, there is only one process provided for
by section 54 which is mediation and once it fails the matter either goes to arbitration
or court.
[31] … The argument that the section contemplates a final determination of the
compensation payable first cannot be correct. Nowhere in the section or the MPRDA
is it provided that the compensation must be determined first before mining operations
can commence.
[93] While I do not share the distinction that Williams J seeks to draw between
disputes about mutually exclusive rights and access on the one hand and those about
compensation on the other to reach it, I agree with the conclusion in both these
judgments, that section 54 does not contemplate nor is Maledu authority for the
proposition that access and commencement of mining is suspended until
compensation has finally been determined, whether by agreement, arbitration or court.
[94] I do so for several reasons. First, the text of section 54 indicates this. The only
dispute resolution process that is created anew for purposes of the MPRDA in section
54 is the notification and mediation process referred to in sections 54(1) to (3). The
other processes referred to in section 54(4) and (5) (arbitration; litigation;
expropriation) are pre-existing processes regulated by other legislation that resort may
be had to only once the section 54 process has failed to achieve resolution.
[95] Tellingly, also in support of the position that these other processes when resorted
to no longer suspend exercise of the mining right, section 54(6) determines that only
to no longer suspend exercise of the mining right, section 54(6) determines that only
in the exceptional case where the Regional Manager determines that the failure to
resolve the dispute about compensation is the fault of the mining right holder, the
Regional Manager may prohibit the commencement of mining until arbitration or a
determination through a court has concluded. Clearly, unless this determination is
made by the Regional Manager, the suspension of execution of the mining right lifts
as soon as the matter is referred to arbitration or a competent court. Section 54(6)
would be wholly superfluous were this otherwise.
30-27
30-27
28
[96] Second, in my view the passage from Maledu that Beestepan relies on for its
understanding that access and mining are suspended until compensation has been
finally determined, in fact means the opposite. The first sentence of that passage reads
as follows: ‘[S]ection 54 itself provides for a speedy dispute resolution process
[emphasis added] that is premised on parties reaching some sort of agreement
through mediation.’ Petse AJ then proceeds to say that ‘[i]t [section 54] also [emphasis
added] provides that if parties fail to reach an agreement, then they may approach a
court.’ The ‘also’ in the second sentence quite clearly indicates that Petse AJ regards
the arbitration and court process referred to in section 54(4) as separate from – ie not
part of – the ‘speedy dispute resolution process’ that section 54 ‘provides for’, which
is in turn the process that Petse AJ refers to when he continues in the third sentence
to say that ‘[I]t is unclear why, pending the finalisation of this process [emphasis
added], a mining rights holder should be entitled to mine.’ Here it should also be kept
in mind that in Maledu, while the mediation process in terms of section 54(1) to (3) had
been initiated it had not proceeded any further than that, so that it cannot be said to
have been concluded in any sense. Also, the eviction application that the mining right
holder had brought was not a referral of a compensation dispute to court in terms of
section 54(4) – indeed, Petse AJ concludes that the eviction application was an
impermissible circumvention of the statutory remedy provided to the mining rights
holder in section 54.25 All this indicates that Petse AJ did not contemplate the process
that he holds suspends access and commencement of mining to be anything more
extensive than the mediation process provided for in sections 54(1) to (3).
[97] But third, and most importantly, there is also a substantive reason why the
interpretation that Beestepan advances cannot stand. There seems to me to be a
interpretation that Beestepan advances cannot stand. There seems to me to be a
particular reason why it is necessary for access and commencement of mining to be
suspended specifically while the ‘speedy dispute resolution process that is premised
on parties reaching some sort of agreement through mediation’ that sections 54(1) to
(3) provides for is ongoing. A negotiation through which parties in conflict attempt to
reach agreement to resolve the dispute between them can only be a real and effective
negotiation if both parties have some element of bargaining power. If one party holds
all the cards, then there can be no negotiation – the other then simply places itself at
the mercy of the holder of all the cards. In the context of section 54, the only real card
25 Maledu (above) at para [109].
30-28
30-28
29
that a surface right holder has to play against the mining right holder’s statutory
entitlement to commence mining is its capacity to withhold access and prevent
commencement of mining. Without that, it is at the mercy of the mining right holder.
[98] That Petse AJ regards the section 54 mediation process as a process of
mediated negotiation of conflicting interests and rights where a mutually beneficial
agreement to the satisfaction of both parties is the goal, is clear. He describes the
purpose of section 54 as ‘to strike a balance between the interests of the mining right
holder and the owner’ 26 and he commences his judgment (citing the earlier
Constitutional Court judgment in Bengwenyama)27 by reminding that all the
consultative and mediative processes prescribed by the MPRDA, including section 54
should be understood as intended to reach a mutually beneficial accommodation of
the respective interests and rights of the mining right holder and surface right holder.28
[99] The section 54 mediation process can only be this if the surface rights holder
still has its only card – withholding access – to play. However, the same is not true
once that process has concluded and the determination of compensation is referred
to arbitration or a court in terms of section 54(4). The processes of arbitration or
litigation in court are not negotiations. Instead, both are processes where parties place
their dispute before an independent, objective and impartial adjudicator for
determination on the law and the facts. As no bargaining occurs there, no bargaining
chips are required. In contrast to during the mediation process, there is no substantive
reason why a surface rights holder must still be able to withhold access and prevent
commencement of mining once the dispute has been referred to either arbitration or
court. Accordingly, I hold that, while a mining right holder such as Vandabyte’s section
5(3) right to enter onto land and commence mining is indeed suspended once the
5(3) right to enter onto land and commence mining is indeed suspended once the
dispute resolution process provided for in sections 54(1) to (3) has been initiated and
is still ongoing, that suspension is lifted as soon as this process concludes, and in
particular no longer applies once the dispute has been referred to either arbitration or
court for determination in terms of section 54(6).
26 Maledu (above) at para [92].
27 Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd [2010] ZACC 26; 2011 (4) SA 113
(CC); 2011 (3) BCLR 229 (CC) at para 63.
28 Maledu (above) at para [78] to [81].
30-29
30-29
30
[100] Beestepan’s attempt to base its counter-interpretation of section 54 on section
25 of the Constitution and the notion that just and equitable compensation must be
determined before expropriation occurs has no wings. While it may well be so that in
case of expropriation, compensation must always be determined before the right in
question is taken, Beestepan’s obstacle here is that Petse AJ held in Maledu that the
award of a mining right, while clearly subtracting in significant respects from the
dominium of a landowner or holder of other surface rights does not constitute
expropriation of such rights. 29 This means that section 25 and the authority cited by
Beestepan doesn’t apply. For sake of completeness, concerning Beestepan’s claim
that in case of expropriation, compensation must not only be determined beforehand,
but also actually paid: Beestepan provides no authority for this proposition so that it
too must be rejected.
[101] To be sure, Beestepan might (and did) complain that it was not agreed that the
mediation process had failed so that the compensation dispute had to be referred to
arbitration by virtue of section 54(4). Even were this so (the facts show differently) then
there was a remedy in section 54 at its disposal that it should have utilised at the time:
It could have approached the Regional Manager and requested it to exercise its power
in terms of section 54(6) to determine that access and commencement of mining would
remain suspended while the arbitration unfolded as the failure of mediation was
Vandabyte’s fault. This section 54(6) remedy is an important mechanism to prevent
mining right holders from referring matters to arbitration or court prematurely, without
having made a good faith effort first to resolve the dispute through mediation in terms
of section 54(1) to (3). But Beestepan did not invoke it, so that it no longer has the
right to withhold access and prevent commencement of mining.
right to withhold access and prevent commencement of mining.
[102] It follows that, given that in this matter the section 54(1) to (3) process had
concluded through failure and arbitration had commenced, Beestepan no longer has
the clear (nor even the prima facie) right it requires to found its interdict. On that basis,
the main application fails.
[103] The converse is true for Vandabyte. There is no dispute that Vandabyte
possesses the clear right to enter onto Dunbar farm and commence mining, in terms
of its mining right and by virtue of section 5(3) of the MPRDA. While Beestepan was
29 Maledu (above) at para [103].
30-30
30-30
31
correct that this right was suspended while the section 54(1) to (3) mediation process
was ongoing, once it ended in failure and arbitration ensued as required by section
54(6) its clear right became operative and could be exercised. It has established the
clear right it requires for its interdict in the counter application.
[104] While my conclusion that Beestepan has failed to establish either a clear right
or one that is prima facie, although open to some doubt means that its main application
has reached the end of the road, Vandabyte’s has not. I continue to consider the
remaining two requirements for a final interdict concerning the counter application.
An injury committed or reasonably apprehended
[105] For an applicant for a final interdict to succeed it must show that it has either
actually suffered an injury (in the form of irreparable harm) or reasonably apprehends
such an injury. 30 An injury in this context refers to a prejudicial invasion of or
interference with an applicant’s right.31
[106] Beestepan continuing to prevent Vandabyte from accessing Dunbar farm and
commencing mining operations undeniably interferes with Vandabyte’s established
clear right in terms of section 5(3) of the MPRDA – it completely prevents the exercise
of that right and so renders it nugatory for the time being. It is also an unlawful
interference: As concluded above, once the section 54(1) to (3) mediation process had
failed and ended, Beestepan no longer had any right in law to withhold access and
prevent mining.
[107] It can also not be gainsaid that this unlawful interference with Vandabyte’s right
causes it irreparable prejudice. It is common cause that Vandabyte’s mining right has
been awarded it for a finite period of 10 years only. Every day that Vandabyte is unable
to proceed with mining is one day less of the potential life of the mine, with a clear
resultant loss in overall profit. This loss is irreversible (those days of potential
resultant loss in overall profit. This loss is irreversible (those days of potential
production cannot be recouped) and it has a range of spin-off effects on Vandabyte’s
profitability as a business and its capacity to expand and maintain itself. I conclude
30 Equistock (above) at para [17].
31 V&A Waterfront Properties (Pty) Ltd and Another v Helicopter and Marine Services (Pty) Ltd and
Others (392/2004) [2005] ZASCA 87; [2006] 3 All SA 523 (SCA); 2006 (1) SA 252 (SCA) (26
September 2005) (‘V&A Waterfront’) at para [21].
30-31
30-31
32
therefore that Vandabyte has shown the injury actually committed that is required of
it.
[108] For the sake of completeness: Had I concluded above that Beestepan indeed
possessed the prima facie right it claims for purposes of what it styles as its interim
interdict, its application would have failed at this second hurdle, in that it would not
have been able to show the irreparable harm reasonably apprehended that is required.
While it is clear that in such case Beestepan’s right would have been imminently
threatened with invasion, Beestepan would not have been able to show that this
invasion and the resultant prejudice is irreparable, as it must be to found an interim
interdict.32 Beestepan, before it approached this court had at its disposal the mediation
process provided for in section 54(1) to (3) of the MPRDA through which to agree to
compensation for any loss it may suffer and thereafter has been by agreement
engaged in the arbitration with the very purpose of determining the compensation it is
due. These processes were designed precisely to ensure that its harm is indeed
repaired.
Absence of an adequate alternative remedy
[107] It remains to consider this last requirement for the award of a final interdict in
relation to Vandabyte’s counter application. In Hotz v University of Cape Town 33 the
Supreme Court of Appeal per Wallis JA held that an alternative remedy, to be
adequate and so to prevent the grant of an interdict, must be a legal remedy (ie, one
a court may grant) and must be one that affords substantially the same relief and
achieves substantially the same purpose as the interdict sought would.34
[108] The only claim that Beestepan makes of a remedy alternative to the interdict at
Vandabyte’s disposal is the rather circular one that Vandabyte can continue to subject
itself to the process that it has been participating in for determination of Beestepan’s
compensation and once that is concluded and compensation has been determined, it
will gain the access it seeks.
will gain the access it seeks.
[109] Patently, this, if it is a remedy at all, is not adequate in the sense described by
Wallis JA in Hotz. The purpose with which Vandabyte applies for its interdict is nothing
32 Setlogelo v Setlogelo 1914 AD 221.
33 Hotz and Others v University of Cape Town (730/2016) [2016] ZASCA 159; [2016] 4 All SA 723
(SCA); 2017 (2) SA 485 (SCA) (20 October 2016) (‘Hotz’).
34 Hotz (above) at para [36].
30-32
30-32
33
other than to obtain the assistance of this court to order Beestepan to allow it to
exercise its right of access and commencement of mining while the process to
determine compensation is ongoing . Simply to allow that process to unfold to
conclusion does the opposite of achieving Vandabyte’s interdict’s purpose – it subverts
it. Accordingly, I conclude that there is no adequate alternative remedy at Vandabyte’s
disposal.
[110] As Vandabyte has succeeded in establishing a clear right, an injury actually
committed and the absence of an alternative remedy, its counter application succeeds
and must be granted.
Costs
[111] Above I have concluded that a) Beestepan’s interlocutory application as a
whole is dismissed; b) Beestepan’s main application is dismissed; and c) Vandabyte’s
counter application succeeds. What remains is to determine the issue of costs.
[112] Concerning the interlocutory application, I see no reason why costs should not
follow the result and that it should not be awarded simply on a party-to-party basis. I
did during the hearing rule that the third additional affidavit filed by Vandabyte in
response to the interlocutory application is not admitted, but given that the interlocutory
application that gave rise to this multiplication of affidavits has failed, this ruling has no
bearing on costs. While some references were made in passing both in the heads of
argument and at the hearing that Beestepan brought the interlocutory application in
bad faith, consciously to delay proceedings further, these were not seriously pursued
so that I cannot find that any form of punitive costs order at a higher scale applies.
[113] For the main application I likewise conclude that costs should follow the result
on the ordinary scale. While it remains unclear to me why it was necessary for
Vandabyte to launch and persist with its counter application rather than simply to
oppose Beestepan’s main application I cannot conclude that it was unnecessary for it
oppose Beestepan’s main application I cannot conclude that it was unnecessary for it
to do so. Vandabyte’s success there indicates that the unsuccessful party, Beestepan
should carry the costs for the counter application, again on the ordinary scale.
[114] For all three applications the complexity and scope of the matter warrants the
briefing of two counsel and costs for such counsel at scale C.
Order
30-33
30-33
34
[115] Accordingly, I order as follow s:
1. The applicant's ('Beestepan's') interlocutory application is dismissed
w ith costs, w hich costs include that of two counsel at scale C.
2. Beestepan's ma in application is dism issed, w ith costs, w hich costs
include that of two counsel at scale C.
3. The respondent's ('Vandabyte's') counter application is granted, w ith
costs, w hich costs include that of two counsel at scale C:
3.1 Access is granted to Vandabyte to the property described as
Portion 2 of the Farm D unbar 189 IS, w ithin the magisterial district of
Bethal, Mpumalanga ('the property'), for purposes of executing
Vandabyte's m ining right, as contemplated by the M inerals and
Petroleum Resources Development Act 28 of 2002.
3.2 Beestepan, its representatives, employees and anyone
associated w ith it or acting upon its instructions are interdicted from
interfering w ith and/or preventing and/or restricting in any manner,
Vandabyte, and its employees, contractors, representatives and anyone
involved w ith or related to Vandabyte's mining operations, to enter upon
the property to establish and execute mining operations in terms of
Vandabyte's m ining right.
JFD Brand
Acting Judge of the High Court
Gauteng Division, Pretoria
30-34
30-34
35
COUNSEL FOR THE APPLICANT: A Franklin SC
AJR Booysen
INSTRUCTED BY: Webber Wentzel Attorneys
COUNSEL FOR THE RESPONDENT: G Wickins SC
I Oschman
INSTRUCTED BY: Malan Scholes Inc
DATE OF THE HEARING: 14 and 15 May 2025
DATE OF JUDGMENT: 14 November 2025
30-35
30-35