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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NO:  B4429/2024

DATE:  20-12-2024

(1) REPORTABLE:  YES / NO.

(2) OF INTEREST TO OTHER JUDGES:  YES / NO.

(3) REVISED:YES

DATE: 20 DECEMBER 2024

SIGNATURE

 

In the matter between

 

MINING AFFECTED COMMUNITIES UNITED              Plaintiff

IN ACTION

 

and

 

MEC FOR COMMUNITY SAFETY AND                   Defendant

TRANSPORT MANAGEMENT + 6 OTHERS

 

 

JUDGMENT

 

MAZIBUKO, AJ: 

 

[1]    In this matter of Mining Affected Communities United in Action and the Member of Executive Council for Community Safety and Transport Management and six others, case number B4429/2024.  This is an opposed urgent application where the applicant seeks relief in terms of its amended notice of motion. 

 

[2]    The brief litigation history is that early, during the first week of December 2024, more particularly on 5 December 2024, an order was granted wherein the first to third respondents were ordered to file their answering affidavits by a specific date, as well as the applicant was ordered to file their replying affidavits by a certain date, pending the return date. The rule nisi that was issued is returnable on 12 February 2025. Further, pending the return, the order was granted that the first to fifth respondent will allow the supply of water, food and medication to the miners underground at shafts 10 and 11 of Buffelsfontein Gold Mine on Mondays to Fridays between the hours of 8 o’clock in the morning and 4 o’clock in the afternoon.

 

[3]    A prohibitory order is contained in paragraph 6 of that order, and then the last paragraph relates to the cost.  

 

[4]    Now, the matter comes before this Court, where the applicant seeks the amendment of the notice of motion that resulted in the 5 December 2024 order.  More particularly, the urgency is that the community providing food to the trapped miners, if I were to use that phrase, have run out of resources to do so.  They cannot continue to supply the food as per the order dated 5 December 2024.

 

[5]    I have perused the papers filed of record and heard counsel on behalf of the applicant, Ms De Vos, and counsel on behalf of the first, second and third respondent, Mr Badenhorst.  Perhaps it is important to pause here and mention that the first respondent is the MEC for Community Safety and Transport Management, the second is the Minister of Minerals and Petroleum Resources, and the third is the Minister of Police.  As I have already indicated, I have heard submissions and arguments made on behalf of both parties, and I have considered the matter.  

 

[6]    I accept that the matter is urgent in dealing with paragraph 1 of the notice of motion.  It is urgent because it deals with access to essentials for the trapped miners, and the applicant seeks an order for them to be provided with the essentials. Otherwise, they will die of starvation because the communities that have been providing the food have run out of funds or supply.  There are other paragraphs seeking relief.  For instance, 2.3 relates to their rescue from the said shafts as they are trapped, as asserted.

 

[7]    I could not find any evidence or facts that were brought before me that there is a duty or responsibility by the police, as Ms De Vos submitted, that the police have to supply food under the circumstances, which is to the trapped miners.  I accept that the miners need access to whatever humanitarian aid they need.  What I struggled with was the reliance placed by the applicant on the basis that the police have done this before and, therefore, they must continue to do that.  

 

[8]    As much as I accept that in terms of Section 27 of the Constitution, these trapped miners cannot be starved, I agree with Mr Badenhorst on behalf of the respondents that Section 38, if the applicant wants to use Section 38, the applicant is required to set out facts for the for such remedy.  Having listened to Ms De Vos on behalf of the applicant, I could not find any facts that the three respondents or the respondents should be ordered to supply food to the trapped miners, as they have no duty to do so.  

 

[9]    However, I agree with the original order that the respondents, either one of them or all of them, should allow any community member or persons to provide humanitarian aid to the trapped miners, including food, water, medication or any other needed emergency aid.

 

[10]    For these reasons, though I find that the matter is urgent, the application, in my view, will have to be dismissed.  Consequently, I make the following order:

      1.   The matter is enrolled and heard as urgent in terms of Rule 6(12) of the Uniform Rules of Court.

      2.   The Application is dismissed with costs, including the employ of two counsel at scale B.  

 

Thank you, counsel.

 

 

NGM MAZIBUKO AJ

ACTING JUDGE OF THE HIGH COURT

 

DATE:  20 DECEMBER 2024

 

 

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