(1) REPORTABLE : NO
(2) OF INTERES1/TO O ER
JUDGES:NO
(3) REVISED .
DATE : ll f
SIGNATURE
In the matter between:
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
BLACK CHROME MINE (PTY) LTD
(formerly Umnotho weSizwe Resources (Pty) Ltd)
and
CHEETAH CHROME SOUTH AFRICA (PTY) LTD
DILOKONG CHROME MINE (PTY) LTD
HANS KLOPPER N.O.
CHRISTOPHER REY N.O.
Case no. 44631/2020
Applicant
1 st Respondent
2nd Respondent
3rd Respondent
41h Respondent
MINISTER OF MINERAL RESOURCES AND ENERGY
DIRECTOR -GENERAL OF THE DEPARTMENT OF MINERA L
RESOURCES AND ENERGY
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
The judgment and order are published and distributed electronically .
PA VAN NIEKERK, J
INTRODUCTION:
5th Respondent
6th Respondent
2
[1] Applicant applies for leave to appeal against the whole of the judgment and order handed
down by this court on 27 October 2025 Cthe judgment"). In terms of the judgment this
court dismissed an application to declare that the construction and operation of a certain
mining shaft and related infrastructure as described in the notice of motion in the
application was unlawful, and also dismissed ancillary interdictory relief against First
Respondent. Applicant in this application was the applicant in the main application and
Respondents in this application were the respondents in the application. For sake of
convenience, the same acronyms as used in the judgement will be used hereunder.
[2] The background facts to the judgment are set out in paragraphs [4] to [16] and need not
be repeated herein, save for the following concise summary of the relevant facts:
[2.1] DCM was the holder of a mining right and on 18 March 2008 the Minister
approved an amended EMP in terms whereof DCM commenced the construction
of surface structures to facilitate the sinking of a mining shaft on land leased from
3
the Pulana Maroga Community Trust. The features of the amended EMP are
described in paragraph [7] of the judgment . and two shafts to be constructed and
which were a vital requirement for purposes of the amended EMP were depicted
to be on land which forms part of the mining area in respect of which UWS later
acquired a mining right.
[2.2) The mining right awarded to DCM related to the mining area in respect of mineral
areas numbers 3 and 4 on the Farm Maandagshoek 245, Registration Division KT,
Limpopo Province and a portion of Portion 1 of the Farm Mooihoek 255,
Registration Division, KT, Limpopo Province. The DCM mining right was
transferred to First Respondent in terms of a registered cession on 18 February
2021 after due process was followed under section 11 of MPRDA.
[2.3] Applicant holds a mining right over a portion of Portion P1 and the whole of
Portion 2 of the Farm Mooihoek 255, Registration Division KT, Limpopo Province
("the UWR mining area"). It is common cause that the DCM mining area and the
UWR mining area are contiguous but do not overlap.
[2.4] The DCM mining right was converted to a new order mining right during 2014. The
requirements and process followed in this regard are set out in paragraph [12) of
the judgement.
[2.5) During 2016, DCM was placed in business rescue and eventually the DCM mining
right was transferred to First Respondent. For purposes of such transfer, consent
had to be granted by the Minister in terms of Section 11 of MPRDA and it is
common cause that such consent was duly granted;
4
(2.6] At all relevant times during the processes referred to above, the necessity to sink
mining shafts on the land where the impugned shaft was sunk, was a material
consideration and formed part of the rationale of the amended EMP as well as the
DCM MWP. This fact was thus known to the Minister on every occasion when the
Minister granted permission and/or approved the amended DCM EMPD and DCM
MWP.
(2.7] In summary, the impugned mining shaft was constructed by DCM on land in terms
whereof UWR acquired a mining right, presently held by Applicant. The impugned
shaft is one of two shafts indicated on the EMP and MWP, was approved by the
Minister, and is required for purposes of the mining operations previously
conducted by DCM and presently conducted by First Respondent as the specific
mining area in relation to which mining rights were granted to DCM and thereafter
transferred to First Respondent cannot readily be accessed otherwise;
(3] Central to the dispute in the application is the contention of the Applicant that the sinking
of the TMT shaft on land which falls within the mining area of the Applicant is unlawful
with reference to the definition of "mining" and "mine" as contained in MPRDA, because
section 5A of MPRDA prohibits mining outside a mining area in respect of which a mining
right is granted. Based on the Applicant's interpretation of "mining" and "mine" as it
appears in section 1 of MPRDA, the crux of Applicant's case was namely that the sinking
of the TMT shaft on land which falls within the "mining area" of the Applicant's mining
right, constitutes "mining" or a "mine· and thus offends the provisions of Section 5A of
MPRDA which prohibits mining on land in respect of which no mining right is awarded. In
response, Respondents contended that the construction of the impugned shaft and
associated infrastructure does not fall under the definition of "mine" or "mining" as it
5
appears in MPRDA, but is an activity incidental to mining, and therefore permissible under
subparagraph (b) of the definition of "mining area" in section 1 of MPRDA. Further issues
were raised by the parties which are dealt with hereunder.
[4] This court analysed the Applicant's argument of unlawfulness, based on the Applicant's
interpretation of MPRDA and the effect of such interpretation in the judgment. 1 This court
held that the material issue for determination related to an interpretation of the meaning
"incidental operations" as it appears in subparagraph (b] under the definition of "mining
area" and the definition of "mine" as it appears in MPRDA in the context of the relevant
facts of the matter, and found that the court is enjoined by virtue of the provisions of
Section 4 of MPRDA to interpret any provision of MPRDA to arrive at any reasonable
interpretation which is consistent with the objects of the Act and which must be preferred
over any other interpretation which is inconsistent with the objects of the Act.2 Based on
the aforesaid legislative prescript relating to the interpretation of MPRDA, this Court found
that the interpretation which the Applicant advocates the court to apply will have
substantial detrimental consequences, contrary to the objects of MPRDA and therefore
that the court is enjoined to interpret. in the context of the relevant factual matrix, the
erection of the TMT shaft not to constitute "mine" either as a verb or a noun as defined in
MPRDA, but to interpret the construction of the TMT shaft as an ''incidental operation" as
defined in subparagraph [b] of the definition of "mining area" as it appears in the MPRDA.3
(5] The application was also dismissed because this court found that the exercise of a mining
right in terms of an approved MWP is not unlawful,4 and the fact that the application is in
' See: Judgment, para. [29/ to {36]
2 See: Judgment, por. [25/ on page 17 and paragraph {31}
• See: Judgment, por. /33} to /35/
2 See: Judgment, por. [25/ on page 17 and paragraph {31}
• See: Judgment, por. /33} to /35/
4 See; Judgment, paragraph [37) to [43]
6
effect a disguised review of the Minister's decisions to approve the section 11 application.
Absent compliance with section 96 of MPRDA. such a review is not permissible. 5
APPLICANT 'S GROUNDS FOR LEAVE TO APPEAL:
[6] As a first ground Applicant submitted that this court incorrectly interpreted the definition
of "mine" in the relevant factual matrix. Concisely stated, Applicant's submission is that
the purpose of the TMT shaft is to enable an expansion of mining operations, and absent
the shaft, DCM could not access minerals that are located in the area over which it had a
right to mine. The impugned shaft is a necessary and integral step in the process of DCM
"trying to win its minerals" which brings the construction of the shaft within the ordinary
grammatical meaning of the definition of "mine" expressed as a noun as well as a verb.
[7] In Heads of Argument filed on behalf of Applicant, the Applicant elaborates to submit on
the relevant facts that the construction of the TMT shaft is distinguishable from other
listed activities which are regarded as "incidental" to mining and reiterates that the
construction of the TMT shaft is integrally related to, and is immediately and directly
necessary, for the winning of minerals that are covered by the DCM mining right as a
result of which it falls squarely within the definition of "mine".
[8] As a second ground Applicant submitted that the finding of this court namely that the
construction of the TMT shaft did not violate Section 5A of MPRDA because DCM had a
duty to conduct its mining operations in terms of the amended EMP and MWP is
unsustainable because the approval of the amended EMP and the MWP imposed on
DCM a duty to mine in accordance with their provisions, but did not extent the area over
5 See; Judgment, paragraph [44] to [47)
7
which it had an exclusive right to mine. Essentially, Applicant submits that neither the
EMP nor the MWP can alter the limited real rights and duties contained in a registered
mining right.
[9] As a third ground of review Applicant submitted that this court erred when it held that the
application was in substance a review of the Minister's decision to grant the converted
mining right and approved its transfer to Cheetah, which is impermissible in the light of
Section 96 of the MPRDA. In this regard Applicant submited that this ground was not
pleaded by the Respondents and that it was therefore not open for this court to mero
motu, without affording UWR an opportunity to file an affidavit dealing with it, to dismiss
the application on that basis. It was further held that the aforesaid finding is bad in fact
and in law as the Minister's decision to approve the transfer to Cheetah is not relevant to
the relief sought by UWR and has no bearing on the issue whether the construction of the
TMT shaft was lawful.
(10] Finally, Applicant submitted that there are other compelling reasons why a court of
appeal should entertain the appeal because the matter concerns the important issue
whether the holder of a mining right who wants to access minerals on land in which it has
a mining right may lawfully construct infrastructure on land in respect of which another
party has an exclusive right to mine. Furthermore, so submitted the Applicant, the legal
issues in this matter are nuanced and complex and requires a contextual consideration to
interpret the provisions of MPRDA. Furthermore, so submitted the Applicant, the practical
and economic impact of the judgment on Applicant is significant and affects the public,
including existing and prospective holders of mining rights as well as third parties on
whose land such infrastructure will potentially be constructed.
[11) The aforesaid grounds for appeal will be considered individually hereunder.
8
SECTION 17 OF THE SUPERIOR COURTS ACT:
[12] The application is brought under Section 17(1)(a)(i) of the Superior Courts Act 2013
alternatively Section 17(1 )(a)(ii) of the Superior Courts Act. Applicant referred to
authority in terms whereof the Supreme Court of Appeal reiterated that an appeal lies
against a court order, and not its reasons.6 It needs to be remarked that it is now trite law
that an applicant in an application for leave to appeal faces a more stringent test under
Section 17(1 )(a) of the Superior Courts Act compared to the repealed Supreme Court Act
59 of 1959, and that a mere possibility of success or an arguable case that is not
hopeless is not enough. There must be a sound, rational basis to conclude that there is a
reasonable prospect of success on appeal.7 The legislator's use of the word "would" in
Section 17(1 )(a)(i) of the Superior Courts Act imposes a most stringent and vigorous
threshold.8
[13] By virtue of the provisions of Section 17(1} of the Superior Courts Act it follows that this
court is enjoined not to grant leave to appeal unless the Applicant can show that there is a
reasonable prospect, based on a sound rational basis, that another court will uphold an
appeal and grant the relief as claimed in the Applicant's Notice of Motion in the main
application.
(14] Based on the aforesaid considerations, the Applicant's grounds for leave to appeal are
dealt with hereunder.
• See: Abso Bonk Ltd v Mkhlle ond two similor coses, 2014 (5) SA 16 (SCA) ot por. {64)
1 See: M ECfor Health, Eostem Cope v Mkhitho 2016JDR 2214 (SCA) 01 poro. [16) ond {17]
1 See: Qty of Johannesburg MetropoUton M uniclpollty v Spectrum (Pry) Ltd & Others 2022 JDR 3708 (GJ) at poro. /6) to {7}
9
FIRST GROUND: INCORRECT INTERPRETATION OF THE DEFINITION OF "MINING":
(15) This court considered the factual matrix underlying the construction of the TMT shaft and
concluded that the construction of the shaft does not constitute a "mine" or "mining" but
relates to activities incidental thereto. This conclusion was arrived at after due
consideration of the provisions of the definition of "mining area", "mining operation" and
"mine" as appear in Section 1 of MPROA.9 Applicant submitted that this approach was
incorrect as it is in essence an outcomes-based approach which was held to be
impermissible. Applicant advocated an interpretation based on a textual, contextual and
purposive reading of the relevant provisions of the act to arrive at the conclusion that the
sinking of the impugned shaft is in fact a mine or mining as defined in the act, and not an
incidental activity to mining.
[17) In the judgment the effect of Section 4 of MPRDA was dealt with10 and the effect of the
interpretation which the Applicant advocated the court to apply was dealt with in
paragraph (33) of the judgment. It must be noted that the adverse consequences of such
an interpretation, clearly against the objects of MPRDA, was not disputed by Applicant in
the application. In terms of section 4(1) of MPRDA the court is enjoined to follow any
reasonable interpretation which is consistent with the objects of MPROA. Section 4(2) of
MPRDA enjoins the court not to follow the common law when it is inconsistent with
MPRDA, which therefore enjoins this court to follow a reasonable interpretation enjoined
by section 4(1) of MPRDA. even when it is an outcomes based interpretation, in order not
to be inconsistent with the objects of MPRDA. Section 4(1) of MPRDA only limits the
interpretation followed by the court to be a reasonable interpretation.
• See: Judgment, para. {23/ to {24]
Jo See: Judgment, page 17 par. {25]
10
[18) In my view it was thus incumbent on Applicant to illustrate that this court's interpretation
was unreasonable. Put otherwise, Applicant must show that there is a sound rational
basis to find that there is a reasonable prospect that another court will conclude that the
interpretation which this court followed, with due regard to the facts of the matter and the
objects of MPRDA, is so unreasonable that another court will interfere. It must be
stressed that there is no complete list of activities in MPRDA classified as "incidental"
activities to mining, neither is there any specific list of activities which are classified to
constitute a "mine" or "mining". There is no provision in MPRDA which classify activity of
sinking and/or operation of a mine shaft. Both parties advanced reasonable
interpretations of the relevant sections of MPRDA to arrive at a conclusion that it is a
"mine" or an activity "incidental" to mining. This court followed the interpretation which will
not offend the objects of MPRDA.
[19) Applicant failed to show that the interpretation followed by this court was unreasonable
within the context of the objects of MPRDA. As a matter of fact, Applicant did not attempt
to deal with the effect of section 4 of MPRDA on the interpretation issue in the Notice Of
Application For Leave To Appeal. On this ground alone, the application for leave to
appeal should be dismissed.
SECOND GROUND: THE EFFECT OF THE EMP AND MWP:
[20) Concisely stated, Applicant's contention is namely that neither the EMP nor the MWP can
alter the limited real rights and duties contained in a registered mining right. It was
submitted that the Minister's approvals of the amended EMP and MWP did not extent, or
purported to extent, the content of DCM's mining right.
11
[21] This ground for appeal, in my view, is over simplistic and ignores the fact that a mining
right is granted with due regard to an approved EMP and MWP. As set out in the
judgment the grant of a mining right as well as the exercise of a mining right is subject to
various conditions, including an environmental authorisation. The holder of a mining right
is also enjoined to exercise that right in accordance with the MWP as Section 25(2)(c) of
MPRDA mandates the holder of a mining right to following the MWP. 11 The DCM mining
right thus placed a statutory obligation on DCM to follow the MWP, which provides for the
impugned shaft to be constructed on a designated portion of land.
[22] Where the Minister grants a mining right, to be exercised in terms of an approved MWP,
and where Section 25(2) of MPRDA enjoins the holder of a mining right to actively
conduct mining in accordance with the MWP, any such mining activity duly conducted in
terms of the MWP cannot be held to be unlawful. Applicant's contention that the fact that
the Minister granted the mining right subject to an approved MWP is irrelevant, can thus
not be upheld. In my view there is no sound rational basis advanced by the Applicant that
another court will conclude that the exercise of a mining right in terms of an approved
MWP, thereby in compliance with section 25(2) of MPRDA, can be held to be unlawful.
[23] In my view, there is therefore also no merit in this ground for appeal.
THIRD GROUND : THE APPLICATION IS NOT A DISGUISED REVIEW :
JJ see:judgment, par. {26} and {37J to {43J
12
[24] Section 96 of MPRDA prevents access to the court for review of an administrative
decision contemplated in terms of the Act unless the remedies in terms of Section 96(1)
was exhausted.12
[25] In my view there is no sound rational basis to conclude that another court will find that the
effect of the relief as claimed by the Applicant is not essentially an attempt to pursue an
appeal against the Minister's Section 11 approval for the transfer of DCM mining right to
Cheetah or a review of any of the previous decisions in terms whereof the amended EMP
and/or MWP was approved because any finding that the sinking of the TMT shaft is
unlawful clearly implies that the approval of the Minister for the amended EMP, MWP or
the conversion of the DMC mining right as well as the Section 11 approval to transfer the
mining right was unlawful as it enables a contravention of Sections SA and 25(2)(c) of
MPRDA. Applicant should thus have exercised its rights of appeal in terms of section 96
of MPRDA against the decision of the Minister when consent was granted to transfer the
mining right to First Respondent. It is common cause that such an appeal was lodged by
Applicant prior to the institution of the application and then abandoned when this issue
was raised in the answering affidavit.
]26] This very principle was already dealt with by another court
13
•
[27] Where there is a statutory provision which limits this court's jurisdiction to entertain any
dispute, the court is enjoined to raise such an issue and is not constrained by the
pleading of the parties. H
u See: Judgment, par. {27)
" See: Shanduka Resources (Pty) Ltd v Western Cape Nickle M ining (Pty) Ltd 2017 JDR 0285 (WCC) an para. {45) to {55)
" See: Shanduka Resources (Pty) Ltd v Western Cape Nickle M ining (Pty} Ltd, 2017 JDR 0285 (JCC} at par. [54)
Cusa v Tao Ying Metal Industries & Others 2009 (2) SA 204 (CC} at par. {68]
13
[28] It was submitted that Applicant was prejudiced by not being afforded the opportunity to
deal with this issue during the hearing of the matter. This argument of Applicant is self
serving, because the facts illustrate that there was an appeal lodged by Applicant against
the Minister's section 11 consent decision which the Applicant then withdrew when this
issue was raised in the answering affidavit. Applicant provided no explanation for this
conduct in the replying affidavit. Most importantly, these facts illustrate that the Applicant
was aware of its obligations under section 96 of MPRDA, and appreciated that the correct
remedy was an internal appeal under section 96 of MPRDA In my view there was an
obligation on Applicant to explain this strange modus operandi. This ground of appeal can
therefore also not be upheld and this issue, alone, is dispositive of the application.
FOURTH GROUND : COMPELLING REASONS :
[29] In my view there is no merit in the Applicant's submission that there are compelling
reasons why leave to appeal should be granted, for the following reasons:
[29.1] The interpretation issue as it arose in this application is fact specific, with due
regard to the provisions of Section 4 of MPRDA, and was based on facts which
are mostly common cause in the application. In my view there is no specific
contentious legal interpretation which warrants a court of appeal to be seized with
the matter;
[29.2] The issues which arose in this application are, contrary to the submission made by
Applicant, not issues which concerns the general public. The issues may affect the
parties to the litigation and the local communities where the mining operations are
conducted but clearly not the broader public;
14
[29.3) The effect of the judgment and order on the Applicant, insofar as the economic
implications thereof are concerned, are not compelling reasons to grant leave to
appeal. Should this be held to be the case, any party who is adversely affected in
an economic sense will automatically be entitled to leave to appeal.
CONCLUSION :
[30) In the premises, Applicant failed to advance any sound rational basis to conclude that
another court will uphold the relief as claimed in the application's notice of motion.
[31] I therefore make the following order:
1. The application for leave to appeal is dismissed;
2. Applicant is ordered to pay the costs of the application including costs of two
counsel, to be taxed on Scale .
APPEARANCES
FOR THE APPLICANT:
INSTRUCTED BY:
FOR SECOND TO FOURTH RESPONDENTS:
PA VAN NIEKERK
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
PRETORIA
ADV. M. KRUGER
WEBBER WENTZEL ATTORNEYS
ATTORNEYS FOR APPLICANT
ADV. A.J. EYLES SC
INSTRUCTED BY:
15
ADV. C.L .ROBERTSON
WJJ BADENHORST INCORPORATED
SECOND TO FOURTH RESPONDENTS ' ATTORNEYS