THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)
(l) Reportable: No
(2) Of interest to other Judges: No
(3) Revised:
05 March 2026
SIGNATURE DATE
BOSMANSPRUIT BELEGGINS (PTY)L TD
And
LIBERTY COAL (PTY)L TD
In re.
BOSMANSPRUIT BELEGGINS (PTY)L TD
THE REGIONAL MANAGER:
MPUMALANGA REGION
Case Number: A2026-045613
Applicant
Respondent
First Respondent
Second Respondent
DEPARTMENT OF MINERAL RESOURCES AND ENERGY
JUDGMENT
INTRODUCTION
1. This is an urgent application brought in terms of Rule 6(12) of the Uniform Rules
of Court. The applicant seeks, in essence:
1.1 A declaratory order that the execution order granted on 4 December
2025 in terms of section 18(3) of the Superior Courts Act 10 of 2013 is
suspended pending the determination of the appeal lodged in terms of section
18(4) Instituted on 5 December 2025 and amended on 26th February 2026; and
1.2 An order interdicting the respondent from carrying out any mining or
ancillary mining activities unless and until the applicant grants written consent.
2. The respondent opposes the application on urgency and on the merits.
3. The respondent also raised the preliminary point that the founding affidavit filed
by the respondent was defective. The court first dealt with the respondent’s cause of
objection and made a ruling as follows:
ORDER
1. The preliminary objection raised by the respondents is dismissed.
2. The applicant’s founding affidavit is admitted.
3. The matter shall proceed for determination of urgency.
4. Costs of the preliminary objection shall stand over for determination with
the merits.
4. The reason for the order is in the judgment.
BACKGROUND
5. On 4 December 2025 this Court granted an order in favour of the respondent
restraining the applicant from interfering with the respondent’s mining operations and
granting the respondent access to the property to conduct mining activities.
HISTORY OF THE MATTER
6. On 20 February 2026 the applicant addressed correspondence to the
respondent demanding an undertaking that the respondent cease its mining
operations pending the determination of a section 18(4) appeal. The respondent
declined the request and indicated that it had already taken access to the property on
4 December 2025 and had since maintained an open and visible presence on the site.
The respondent further asserted that its mining activities were authorised in terms of
section 5 of the Mineral and Petroleu m Resources Development Act and that its
statutory entitlement remained operative.
7. On 26 February 2026 the Office of the Judge President advised the applicant
that any appeal in terms of section 18(4) of the Superior Courts Act had to be enrolled
at the seat of the court that granted the order, namely the Middelburg Local Seat.
8. Despite this guidance, the applicant launched an urgent interlocutory
application set down to be heard on 4 March 2026 in Mbombela pending the section
18(4) appeal. On 27 February 2026 the applicant withdrew that interlocutory
application.
9. The applicant thereafter launched an urgent section 18(4) appeal which was
initially set down to be heard in Mbombela on 4 March 2026. The respondent objected
to the enrolment of the appeal at that seat, relying on the communication from the
Acting Judge President confirming that the appeal ought to be heard at the seat where
the original order was granted.
10. Following the objection, the applicant withdrew the Mbombela proceedings and
subsequently secured a hearing date for the section 18(4) appeal at the Middelburg
Local Seat on 6 March 2026.
In the interim, the applicant launched the present urgent application, styled as an
interlocutory application, which was set down for hearing on 4 March 2026 — two days
before the scheduled hearing of the section 18(4) appeal.
ISSUES FOR DETERMINATION
The court must determine the issues as follows:
1. Whether the applicant has made out a case for urgency in terms of Rule
6(12);
2. Whether the declaratory relief sought in prayer 2.1 is competent in light
of the automatic statutory suspension provided by section 18(4);
3. Whether the applicant has established the requirements for an urgent
interdict in prayer 2.2.
URGENCY
Applicant’s submissions
7. The applicant contends that the matter is urgent and that the urgency arose on
19 February 2026 . On this basis, the applicant approached the court on an
urgent basis seeking the relief set out in the notice of motion. The applicant
maintains that the matter requires immediate judicial intervention given the
pending developments relating to the section 18(4) proceedings.
Respondent’s submissions
8. The respondent disputes that the application is urgent and argues that the
urgency is self-created.
9. Firstly, the respondent points to correspondence addressed to the applicant on
20 February 2026 , in which it recorded that the section 18(4) appeal process
had been improperly instituted in Mbombela. According to the respondent, the
applicant failed to respond to this correspondence and took no steps to advance
the matter for nearly a week before eventually launching the present
application.
10. Secondly, the respondent submits that the applicant failed to act with the
necessary expedition in prosecuting the section 18 (4) appeal. The responded
protests that t he applicant filed a notice of appeal on 5 December 2025 , but
only approached the Acting Judge President’s office on 25 February 2026 to
obtain a hearing date and a date of 6 March 2026 (two days after this urgent
application) was allocated . The respondent contends that had the applicant
sought a hearing date when the notice of appeal was filed , the appeal could
have been heard as early as December 2025.
11. The respondent further argues that the applicant’s reliance on the reasons for
judgment as the cause for the delay is mischievous, since the appeal lies
against the order itself and not the reasons for the judgment.
12. Lastly, the respondent submits that the present application amounts to an
abuse of process , particularly because a section 18(4) urgent appeal has
already been enrolled for hearing on 6 March 2026, two days after the present
hearing. The respondent also criticises the applicant for failing to disclose in the
founding affidavit that such urgent appeal had already been enrolled for
hearing.
SUMMARY OF SUBMISSIONS ON MERITS OF THE APPLICATION
The declaratory relief (prayer 2.1)
13. The respondent challenges the relief sought in prayer 2.1 on the basis that it is
unnecessary. While the respondent does not dispute the statutory consequences of
section 18(4) once an appeal has been noted, it contends that the applicant
nevertheless seeks a declaratory order confirming that the order of 4 December 2025
was and remains suspended.
14. The respondent submits that such relief is misplaced as the applicant relies on
the notice of appeal dated 5 December 2025 which was filed in the wrong seat of the
court and has since been withdrawn and replaced by a fresh notice of appeal filed on
26 February 2026 . The respondent further points out that, notwithstanding this, the
applicant’s notice of motion still refers to both the 5 December 2025 notice and the
fresh notice filed on 26 February 2026.
15. It is accordingly contended that prayer 2.1 is moot and misdirected as it merely
seeks a declaration that mirrors the wording of section 18(4)(i) of the Superior Courts
Act, namely that the operation and execution of the section 18(3) order granted on 4
December 2025 was and remains suspended by virtue of the notice of appeal filed on
5 December 2025, as amended on 26 February 2026.
Interdict (Prayer 2.2)
16. The respondent also opposes the relief sought in prayer 2.2, which seeks an
interdict restraining the respondent from continuing its mining operations.
17. The respondent submits that it does not require the applicant’s permission to
continue mining activities. Reliance is placed on section 5 of the Mineral and
Petroleum Resources Development Act …, which confers a statutory right on the
holder of a mining right to access the land and conduct mining operations. Counsel for
the respondent among other authorities relied on the Constitutional decisions in
Maledu and others v Itereleng Bakgathla Minerals Resources (Pty) Ltd and another
2019 (2) SA 1 (CC), Zincede Ngokwakho Housing (Pty) ltd and Another v Matatiele
Local Municipality 2026 ZASCA 17 at paragraph 14 and the judgment of Bam AJ dated
15 May 2025 which was granted in favour of the respondent. The respondent argued
that t, which, it is contended, affirm the respondent’s entitlement to exercise its mining
that t, which, it is contended, affirm the respondent’s entitlement to exercise its mining
rights and the corresponding obligation on the applicant to grant access to the land.
18. The respondent further contends that the applicant has failed to establish the
jurisdictional requirements for an interdict and that the founding papers do not set out
a proper basis upon which the respondent should be restrained from accessing the
mine and continuing its mining operations.
19. Lastly, the respondent argues that prayer 2.2 is fundamentally incompetent, as
it effectively seeks to impose a blanket standstill on the respondent’s mining
operations unless the respondent provides written consent, which would amount to
granting the applicant a private veto over the respondent’s statutory mining rights.
ANALYSIS AND THE APPLICATION FO THE LAW
ON URGENCY
20. Rule 6(12) requires an applicant to explicitly set out the circumstances
rendering the matter urgent and the reasons why substantial redress cannot be
obtained in due course.
21. The applicant contends that urgency arose during February 2026 when the
respondent indicated that it would continue mining operations however section 18(4)
appeal was noted as early as 5 December 2025.
22. The applicant failed to prosecute the appeal with expedition.
23. The appeal is already enrolled for hearing on 6 March 2026 . The applicant did
not disclose in its founding papers that the urgent appeal was imminent.
24. The alleged urgency is self -created. The statutory position has been in
existence since the noting of the appeal. The applicant seeks relief two days
before the appeal is to be heard.
25. Furthermore, from the formulation of prayer 2.2, it is apparent that the dispute
between the parties is fundamentally commercial in nature. The applicant seeks to
regulate or restrain ongoing mining operations pending issues relating to consent and
commercial arrangements.
26. Commercial disputes, without more, do not ordinarily justify truncation of the
Rules. No exceptional circumstances have been demonstrated. The application
therefore does not meet the threshold of urgency required under Rule 6(12).
On Merits
THE DECLARATORY RELIEF (PRAYER 2.1)
27. Section 18(4) of the Superior Courts Act provides that the noting of an appeal
against a section 18(3) execution order suspends the operation and execution of that
order pending the outcome of the appeal.
28. The suspension operates by law. It does not depend on a further court order.
The applicant nevertheless seeks a declaratory order that the section 18(3) execution
order “was and remains suspended”.
29. Courts do not grant declaratory relief where no live controversy exists and
where the statute already provides the legal consequence sought to be declared.
30. The relief sought merely mirrors the wording and effect of section 18(4). It
serves no practical purpose and adds nothing to the legal position already created by
statute.
31. To approach the Court urgently for confirmation of what the statute
automatically provides is unnecessary and amounts to a misuse of the urgent roll.
32. The declaratory relief sought in prayer 2.1 is accordingly incompetent.
THE INTERDICT (PRAYER 2.2)
33. The applicant seeks to interdict the respondent from conducting mining
activities unless written consent is obtained from the applicant.
34. The requirements for an interim interdict are trite:
34.1 A prima facie right;
34.2 A reasonable apprehension of irreparable harm;
34.3 The absence of an alternative remedy;
34.4 A balance of convenience favouring the grant of relief.
35. The respondent holds mining rights in terms of section 5 of the MPRDA, which
confers a limited real right entitling it to enter the land and conduct mining activities.
Section 5(3) of the Mineral and Petroleum Resources Development Act (MPRDA) 28
of 2002 defines the core entitlements of a holder of a prospecting right, mining right,
or mining permit. It grants the holder the legal capacity to enter land, bring machinery,
and conduct mining or related activities, acting as a "limited real right" over the land. It
sates as follows:
5. (1) “A prospecting right, mining right, exploration right or production right granted in terms
of this Act is a limited real right in respect of the mineral or petroleum and the land to which
such right relates.
(2) The holder of a prospecting right, mining right, exploration right or production right is
entitled to the rights referred to in this section and such other rights as may be granted to,
acquired by or conferred upon such holder under this Act or any other law.
(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
may 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
purposes 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;
( c) remove and dispose of any such mineral found during the course of prospecting,
mining, exploration or production, as the case may be;
mining, exploration or production, as the case may be;
(d) subject to the National Water Act, 1998 (Act No. 36 of J 998), use water from any
natural spring, lake, river or stream, situated on, or flowing through, such land or from any
excavation previously made and used for prospecting, mining, exploration or production
purposes, or sink a well or borehole required for use relating to prospecting, mining,
exploration or production on 25 such land; and
(e) carry out any other activity incidental to prospecting, mining, exploration or
production operations, which activity does not contravene the provisions of this Act.”
36. The order of 4 December 2025 did not create those rights. It did not pronounce
upon or grant the mining right. It merely restrained the applicant from interfering with
the respondent’s exercise of its statutory entitlements and reinforced the respondent’s
access.
37. The suspension of the execution order under section 18(4) does not extinguish
the respondent’s statutory mining rights. It merely suspends the enforceability of the
specific execution order.
38. The status quo prior to and at the time of the granting of the order was that the
respondent was already conducting mining operations pursuant to its statutory
entitlement.
39. Prayer 2.2 seeks to impose a new condition , namely written consent of the
applicant before the respondent may continue exercising its statutory rights.
40. The applicant cannot, through an interdict, create a private veto over rights
conferred by statute. The conditions regulating the exercise of mining rights are
prescribed by the MPRDA and related legislation, not by the unilateral consent of a
landowner.
41. The relief sought is therefore fundamentally incompetent. Moreover, the
applicant has failed to establish the jurisdictional requirements for an interim interdict.
No prima facie right to restrain lawful mining has been demonstrated, nor irreparable
harm that cannot be addressed in due course.
WHEREFORE AN ORDER AS FOLLOWS IS MADE:
ORDER
1. Application is dismissed.
2. The applicant to pay the costs of the respondent on attorney and client scale.
Heard :
Delivered:
04 March 2026
05 March 2026
JT LESO
Acting Judge of the High Court
( The judgment was handed down electronically by circulation to the parties'
representatives by email, by being uploaded to the Caselines system of the
Mpumalanga Division, Middleburg Local Seat)
APPEARANCES
For the Applicant
Counsel:
Contacts:
Attorneys :
For the Respondent
Counsel:
Contacts:
Attorney:
ROUX SC
Boshoff Smuts
C/O Brandmiller Attorneys
013 282 5983
bmlitigation@law.co.za
caitline@boshoffsm uts.co.za
GD WICKINS SC
Tabacks Att Inc
C/O De Jager Hattingh Att and Notaries
013 001 0227
litigation@tabackslegal.com