About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2026
>>
[2026] ZAGPPHC 315
|
|
York Timbers (Pty) Ltd v Black Reef Mining (Pty) Ltd and Others (52455/2018) [2026] ZAGPPHC 315 (13 March 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 52455/2018
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE:
13/03/2026
SIGNATURE
In
the matter between:
YORK
TIMBERS (PTY) LTD
Applicant
and
BLACK
REEF MINING (PTY) LTD
First
Respondent
MINISTER
OF MINERAL RESOURCES
Second
Respondent
DEPUTY
DIRECTOR GENERAL
Third
Respondent
MINERAL
REGULATION
DIRECTOR
GENERAL:
Fourth
Respondent
DEPARTMENT
OF MINERAL RESOURCES
REGIONAL
MANAGER:
Fifth
Respondent
In
re:
BLACK
REEF MINING (PTY) LTD
Applicant
and
MINISTER
OF MINERAL RESOURCES
First
Respondent
DIRECTOR
GENERAL:
Second Respondent
DEPARTMENT
OF MINERAL RESOURCES
REGIONAL
MANAGER: MPUMALANGA
Third
Respondent
DEPARTMENT
OF MINERAL RESOURCES
JUDGMENT
The
judgment and order are published and distributed electronically.
PA
VAN NIEKERK, J
INTRODUCTION:
[1]
Applicant is a company with limited
liability, and a subsidiary of a listed company which is involved in
the forestry and paper
industry with its head office in Sabie,
Mpumalanga. For purposes of this judgment Applicant will be referred
to as “
York Timbers”
.
[2]
First Respondent is Black Reef Mining, a
company with limited liability with registered office in Pretoria,
who is the holder of
an impugned prospecting right granted in terms
of section 17(1) of the Mineral and Petroleum Resources Development
Act 2002 (Act
No. 28 of 2002) (“
MPRDA”
)
over a prospecting area being Portion 1 of the Farm London 496 KT,
situated in Mpumalanga, district Pilgrims Rest, of 1020,0000
hectares
in extent (“
the prospecting
area”
). It is common cause
that the Applicant is the registered owner of the property on which
the prospecting area is situated. First
Respondent will be referred
to herein as “
the mining
company
”.
[3]
Second Respondent is the Minister of
Mineral Resources (“the Minister”); Third Respondent is
the Deputy Director General,
Mineral Regulation; Fourth Respondent is
the Director General, Department of Mineral Resources; and Fifth
Respondent is the Regional
Manager, Mpumalanga Department of Mineral
Resources. These Respondents are all functionaries bestowed with
powers and functions
in terms of MPRDA and were joined in this
application insofar as they may have an interest in the litigation,
and no relief was
sought against them. These Respondents filed a
notice to abide.
[4]
On 19 February 2026 York Timbers caused
this application to be instituted in this Court and in the notice of
motion an order in
the following terms is sought:
TAKE
NOTICE that the applicant (‘York’) intends applying
urgently
to this Court on
Tuesday, 24 February 2026
at
10:00 am or as soon thereafter as the urgent court is able to hear
the matter, for an order in the following terms:
1.
The matter is urgent and any non-compliance with the uniform rules
by
York in relation to the manner of service, or any non-compliance with
the uniform rules by York in relation to the form of the
application,
is hereby condoned.
2.
A rule nisi is hereby issued calling upon the respondents to appear
in the week of Tuesday …………………,
or on some other date determined by this Court,
to show cause why the
following interim interdict should not be granted
pending the
determination of the main application
(the notice of motion in
the main application, issued on 19 November 2026, is attached hereto
as annexure ‘NoM1’):
2.1
The first respondent (‘the Mining Company’) is
interdicted from
implementing and/or enforcing any of the provisions
of the prospecting right granted to it by either the second, third,
fourth
or fifth respondents (‘the DMR’) to prospect for
gold and silver on York’s property described as Portion 1 of
the Farm London 496 KT situated within the Magisterial District of
Pilgrims Rest in Mpumalanga (‘York’s property’)
pending the final determination of the main application; and
2.2
The Mining Company is prohibited from accessing or entering upon
York’s
property pending the final determination of the main
application.
3.
The costs of the rule nisi shall be costs in the cause.
4.
Further and/or alternative relief.”
[5]
The mining company filed an affidavit
ostensibly deposed to by a director of the mining company, opposing
the relief sought by the
Applicant, and further instituted by way of
urgency a counter application seeking an order that the mining
company be entitled
to immediate commence with prospecting on the
prospecting area, and further an order prohibiting York Timbers from
preventing the
mining company to exercise such prospecting rights.
[6]
Before this court there are therefore
the following matters to be determined namely:
[6.1]
Whether the application and/or counterapplication should be heard as
urgent application(s);
[6.2]
Whether
the application for a temporary interdict instituted by York Timbers
against the mining company, claiming the relief as
set out in the
notice of motion as quoted
supra,
should be granted;
[6.3]
Whether the counter application by the mining company, for a
declarator that it is entitled to immediately
exercise its
prospecting rights on the prospecting area, should be granted;
[7]
The reason why the “
counter
application”
was instituted at
all is not clear. If, as alleged by the mining company, there is no
merit in the application for an interim interdict
instituted by the
Applicant and the prospecting right is not subject to any challenge,
the relief as sought in the counter application
is moot. It also
follows that, if the relief claimed by York Timbers for an interim
interdict be granted, the counterapplication
stands to be dismissed.
RELEVANT
BACKGROUND TO THE URGENT APPLICATION
[8]
On 29 April 2019, York Timbers received
a letter from the mining company in terms whereof York Timbers was
informed that the Department
of Mineral Resources (as it was known
then) (“DMR”) granted a prospecting right over the
property referred to
supra
of York Timbers. York Timbers then filed an internal appeal in terms
of section 96 of MPRDA against that decision to grant the
prospecting
right and this appeal was submitted to the Appeal Authority on 11
June 2019. The appeal was premised
inter
alia
on the following grounds:
[8.2]
York Timers has not been properly
consulted as the owner of the property.
[8.3]
The prospecting rights for gold and
silver is incompatible with commercial forestry and threatens the
business and licence activities
of York Timbers.
[8.4]
The prospecting area is situated in an
environmentally sensitive area which is home to threatened and
endangered species and the
granted right will threaten the
environment, eco systems and biodiversity.
[8.5]
There was inadequate participation of
interested parties.
[9]
Only during September 2025 (some 6 years
later) the Minister informed York Timbers that the section 96 appeal
was dismissed. As
reason for this dismissal the Minister replied
that the prospecting right was granted in terms of an order issued
from this
court on 12 September 2018 by Makose AJ, and that the
Minister was thus enjoined, in terms of that order of court, to issue
the
prospecting right. It is common cause that York Timbers was never
joined in that application.
[10]
Pursuant thereto and during November
2025, York Timbers instituted an application which serves to rescind
the order of Makose AJ,
as well as an application in terms of rule 53
to review the grant of the prospecting right by DMR to the mining
company ( “the
rescission/review application”) and in the
notice of motion of that application the following relief is sought:
“
TAKE
NOTICE that the applicant (‘York’) intends making
application to this Court on a date to be allocated by the Registrar
for an order in the following terms:
1.
The
order
granted by this Court under this case number, per
Makose AJ, dated 12 September 2018, is hereby rescinded and set
aside.
2.
The
decision
taken by the second and/or third and/or fourth and/or fifth
respondents (individually and collective referred to as ‘the
DMR’) to grant a prospecting right to the first respondent
(‘the Mining Company’) is reviewed and s
et
aside.
3.
The
prospecting right
granted by the DMR to the Mining Company
to prospect for gold and silver on Portion 1 of the Farm London 496
KT situated within
the Magisterial District of Pilgrims Rest in
Mpumalanga is hereby reviewed and set aside.
4.
The Mining Company is liable to pay York’s costs on the
attorney
and client scale, such to include the costs of Senior
Counsel, in relation to:
4.1.
The rescission application granted in paragraph 1 of this order.
4.2.
The review application granted in paragraphs 2 and 3 of this order.
4.3
The internal appeal lodged by York on 11 June 2019 in terms of
section 96 the
Mineral and Petroleum Resources Development Act of
200.
5.
Alternatively to paragraph 4, all of the respondents are jointly and
severally liable to pay York’s costs on scale C.
6.
Further and/or alternative relief”.
[11]
On 2 February 2026, notwithstanding the
fact that the aforesaid rescission/review application is pending, the
mining company addressed
correspondence to York Timbers by email,
informing York Timbers that it insists on entry to the property in
respect of which the
prospecting rights are situated in order to
exercise its rights. In this letter it was stated as follows
(including accentuation):
“
It
bears emphasising that the provisions of section 5(3) of the MPRDA
entitles us as the holder of the prospecting right to
access
the land
to which the
prospecting right relates and that York Timbers as the surface right
owner of the land to which the prospecting right
relates
is
obliged to allow the holder access to its land
to do whatever is reasonably necessary for the effective exercise of
the prospecting holder’s rights”
.
[12]
After the exchange of further
correspondence between the parties, resulting in an impasse and a
persistent demand by the mining
company to commence exercising its
prospecting rights, this application was launched as an urgent
application and set down for
24 February 2026. By agreement between
the parties an interim order was made an order of court by Tolmay AJ
on 24 February 2026,
the result of which was that this application
and the counter application was enrolled as an urgent application
before this court.
From that order it further follows that any
interim relief granted to York timbers will be a temporary order,
pending finalisation
of the rescission/review application.
THE
ISSUES IN DISPUTE:
[13]
On behalf of York Timbers it was
submitted that the nature of relief sought by York Timbers is that of
an interim interdict, and
that the requirements for an interim
interdict (which are trite law and will not be repeated herein) are
met. If the requirements
for an interim interdict are met, the
counter application cannot succeed. The mining company on the other
hand made substantial
reference to the merits in the pending
rescission/review application and submits that the requirements for
an interim interdict
are not met. During argument of the matter, the
legal representative acting on behalf of the mining company submitted
that the
present application seeks to rescind the order of Makose AJ
and to review the grant of the prospecting right, and it became clear
that the nature of this application was completely misunderstood.
[14]
In the counter application it is averred
that the mining company is the lawful holder of a prospecting right
and therefore by law
entitled to access the prospecting area and
exercise its rights as a result of which the mining company is
entitled to the relief
as sought in the counter application.
URGENCY:
[15]
As usual in these matters, the issue of
urgency was opposed by the mining company, notwithstanding the fact
that the mining company
called the counter application before this
court by way of “
extreme
urgency”
.
[16]
In my view the matter is urgent. The
effect of the dispute between the parties being adjudicated in the
normal manner, will result
in an untenable situation where the mining
company, armed with an impugned prospecting right, will insist to
access land of York
Timbers and commence with operations which may
cause irreparable harm to that land. In this regard I refer to the
environmental
considerations in respect of this land as set out
infra
.
[17]
For these reasons, I informed the
parties, after some debate, that I exercised my discretion to condone
non-compliance with the
provisions of Rule 6(12) and dealt with this
matter as an urgent application.
MERITS
OF THE APPLICATION FOR AN INTERIM INTERDICT
[18]
In heads of argument filed on behalf of
the mining company, it was submitted that the requirement of an
interim interdict were not
met and submissions essentially directed
at the merits of the recission/review application were made. After
some debate with the
legal representative of the mining company on
the issue whether the merits of the recission/review application
should appropriately
be dealt with in this application, or whether
this court should determine if York Timbers disclosed a prima facie
right (even if
open to some doubt), it was (correctly) conceded that
the second approach is correct.
[19]
In the founding affidavit reference is
made to the rescission/review application and it was submitted on
behalf of York Timbers
in heads of argument and in the application
that the application for rescission/review has a reasonable prospect
for success based
inter alia
on the following averments:
[19.2]
The order of Makose AJ referred to
supra
was granted without joining York Timbers as a party. This is common
cause.
[19.3]
The Minister failed to consult parties
involved (which includes York Timbers) and failed to consider the
environmental impact at
all or properly.
[20]
It must be stressed that there were
further reasons advanced why the rescission/review application is
meritorious but for purposes
of this judgment the aforesaid issues as
identified will be dealt with.
[21]
Based on the aforesaid contentions, on
behalf of York Timbers it was submitted that it had established a
prima facie
right.
Clearly, should the issues raised in the recission/review application
be disposed of in favour of York Timber, an order rescinding
the
judgment and/or declaring the grant of the impugned prospecting right
to be unlawful will follow.
[22]
In my view the order granted by Makose
AJ was erroneously granted for an additional reason. The order of
Makose AJ was made on an
application by the mining company wherein it
was alleged that the Minister refused to grant a prospecting right
because the Minister
incorrectly held that the mining company failed
to submit an Environmental Management Plan (“EMP”). This
allegation
carries the clear implication that the Minister therefore
did not consider the EMP. By granting the order, Makose AJ assumed
the
powers of the Minister and granted a prospecting right to the
mining company, which offends the principle of the separation of
powers and is unconstitutional. The learned acting Judge should have
remitted the matter to the Minister to consider the EMP. This
erroneous order was made in the absence of York Timbers.
[23]
On
behalf of York Timbers it was further submitted that irreversible
prejudice will follow, should the interdictory relief not be
granted.
The prejudice lies therein that the Applicant’s business
activities (forestry) will be disrupted and further includes
the fact
that the land over which the prospecting right was granted was
declared, in part, a Critical Biodiversity Area (“
CBA”
)
under the National Environment Management; Biodiversity Act 10 of
2004 and is particularly environmentally sensitive. It is further
averred in the application that the property of York Timbers is an
important part of the buffer zone that has been proclaimed as
a
protected area under the relevant environmental legislation (the
National Environmental Management, Protected Areas Act of 2004)
(“
NEMPAA”
),
namely the Blyde River Canyon Nature Reserve. This allegation
triggers the provisions of section 40 of
Mineral and Petroleum
Resources Development Act 28 of 2002
, which clearly was not complied
with by virtue of the fact that Makose AJ failed to remit the matter
as set out in paragraph [22]
supra
.
The essence of the allegations on which the Applicant rely is namely
that prospecting and mining activities in that area will
cause
irreparable harm to the environment. The right to a protected
environment is a constitutional right granted to all.
[1]
[24]
In my view the issue of potential
prejudice, should the relief claimed by the York Timbers not be
granted, is so clear that it needs
no further elaboration.
[25]
It was further submitted on behalf of
York Timbers that there is no suitable alternative remedy. I agree.
The damage that will follow
should prospecting and/or mining rights
be exercised contrary to the environmental consideration principles
in a biodiverse sensitive
area is irreparable and unconstitutional.
[26]
Finally, York Timbers submitted that the
balance of convenience favours York Timbers. Once again, I am of the
view that logic and
common sense dictate that, in circumstances where
the rescission/review application may be heard during 2026, the
inconvenience
suffered by the mining company is insignificant
compared to the irreparable harm which may follow, not only to York
Timbers, but
also the environment, should the order not be granted.
In this regard it must be noted that York Timbers annexed to the
founding
affidavit in this application a report from an environmental
expert, which elaborates on the negative environmental impact that
the grant of this impugned prospecting right will have.
CONCLUSION:
[27]
In the light of the aforesaid, I am of
the view that York Timbers satisfied the requirements for an
interim interdict which
has the result that the counter application
of the mining company should be dismissed. The draft order prepared
on behalf of York
Timbers is in my view an order which correctly
reflects the relief which should be granted and simultaneously an
order will be
made that the counter application be dismissed.
[28]
What remains is the issue of costs. Both
parties sought punitive orders for costs against each other and at
the instance of York
Timbers, an order was sought for costs of two
counsel. I am of the view that the principle “..
costs
should follow the event..”
applies but I am of the view that punitive costs are not appropriate
in the present circumstances.
In
the result, I make an order in the following terms:
1.
The First Respondent’s
counterapplication is dismissed with costs.
2.
The draft order which I have marked with
a “X”, dated and initialled by me, is made an order of
court.
P
A VAN NIEKERK
JUDGE
OF THE GAUTENG DIVISION,
PRETORIA
APPEARANCES
FOR THE
APPLICANT:
Adv. K Hopkins SC
INSTRUCTED BY
:
KEBD INC
.
FOR
THE FIRST RESPONDENT:
Mr.
K. Mahlase
INSTRUCTED
BY
:
WADP
attorneys (PTA)
[1]
Constitution of the Republic of South Africa,
1996, section 24