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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MIDDLEBURG

 

CASE NO: 5481/2022

(1)      REPORTABLE: NO

(2)      OF INTEREST TO OTHER JUDGES: NO

(3)      REVISED: YES

DATE 25/02/2025

SIGNATURE

 

In the matter between:

 

PIETER DE JAGER N.O                                                                        FIRST APPLICANT

 

MARIA ELIZABETH DE JAGER N.O                                               SECOND APPLICANT

 

MARIUS JACOBS obo TIME ACCOUNTANTS CC N.O                      THIRD APPLICANT

 

ANELE BOTHA N.O                                                                        FOURTH APPLICANT

 

LIZELLE MAREE N.O                                                                            FIFTH APPLICANT

 

DORETTE VAN DE WALT                                                                     SIXTH APPLICANT

 

and

 

THE MINISTER OF WATER AFFAIRS                                              FIRST RESPONDENT

 

MINISTER OF MINERAL RESOURCES AND

ENERGY                                                                                      SECOND RESPONDENT

 

RIETSPRUIT CRUSHER CC                                                            THIRD RESPONDENT

 

RIETSPRUIT CRUSHERS (PTY) LTD                                          FOURTH RESPONDENT

 

IZINGANE MINING                                                                            FIFTH RESPONDENT

 

MPUMALANGA BRICK AND CRETE (PTY) LTD                            SIXTH RESPONDENT

 

ALMENTA (PTY) LTD                                                                 SEVENTH RESPONDENT

 

CRAIG DERICK JORDAAN                                                          EIGHTH RESPONDENT

 

This judgment was handed down electronically by circulation to the parties and/or parties’ representatives by email. The date and time for hand-down is deemed to be -25 February 2025 at 10:00.

 

 

JUDGMENT

 

 

Vele AJ

 

[1]      The first to sixth applicants approached this court seeking the orders against the first and second respondent to enforce the directives by their delegated officials, in respect of the quarry area forming part of portion 7 (a portion of Portion 3) of the Farm Rietspruit 437, Registration Division IS, for the following orders:

1.1.    The first respondent, Minister of Water, be ordered to enforce compliance with the directive issued by the delegated official in terms of the provisions of National Water Act 36 of 1998 (hereinafter referred to as “the NWA”) on 28 January 2016 against the fourth respondent and a further directive issued on 08 February 2022 for the fourth respondent to disconnect and remove the borehole pump situated at co-ordinates – 26,6116020 and 29,95121100 degrees.

1.2.    The first respondent’s delegated officials to ensure that pumps pumping water from any quarry pit within the quarry area are disconnected and removed in order to prevent the fourth respondent from abstracting any water from the said pits.

1.3.    The first respondent to take all necessary steps to prevent the fourth respondent from using the abstracted water to wash aggregate from the quarry.

1.4.    The second respondent, the Minister of Minerals, to take all steps necessary to enforce the directive dated 16 November 2021, issued against the fourth respondent.

1.5.    The second respondent be ordered to issue compliance notice to the fourth respondent in terms of section 31L and section 24P (3) of the National Environmental Management Act[1] (hereinafter referred to as “NEMA”) to submit information in compliance with the order within 10 days of the notice, failing which the second respondent be ordered to take steps in prevention of further mining within the quarry area.

1.6.    The second respondent be ordered to take steps that the cement mixing facility established in contravention of the Environmental Management Plan of the fourth respondent is removed and the area rehabilitated.

1.7.    The second respondent be ordered to take steps to ensure that mining activities within the quarry are stopped pending compliance with current empowering legislation as the fourth respondent’s environmental management program is not compliant.

1.8.    The first, second and fourth respondents be ordered to pay the costs.

 

[2]      The first and second respondents did not file the opposing papers despite the proof that the application was served at their respective National Department offices, on 15 December 2022 on the first respondent and 12 January 2023 on the second respondent. The fourth, fifth and eighth respondents challenged the service on the first and second respondents on the basis that it did not comply with Rule 4(9) of the Uniform Rules of Court, which reads as follows:

 

“(9) In proceedings in which the State or an organ of state, a Minister, a Deputy Minister, a Premier or a Member of an Executive Council in such person’s official capacity is the defendant or respondent, the summons or notice instituting such proceedings shall be served in accordance with the provisions of any law regulating proceedings against and service of documents upon the State or organ of state, a Minister, a Deputy Minister, a Premier or a Member of an Executive Council.”  

 

[3]      Rule 4(9) directs that service on Ministers or state departments must be in accordance with provisions of any other law, in this regard, the Act requires that service on the Ministers or government departments should be at their national offices as well as the office of the State Attorney. There is no return of service on the State Attorney in respect of the first and second respondents in this matter. The applicants in their replying affidavit, did not address this aspect.  

 

[4]      The third respondent did not file any opposition, as it is clear from the opposing affidavit filed on behalf of the fourth, fifth and eighth respondents, that the third respondent ceased to exist and its successor in title is the fourth respondent. The fourth, fifth and eighth respondents filed the opposing papers and further filed two supplementary affidavits following the court orders made on 14 February and 08 August 2023. The applicants did not file the replying affidavits.

 

[5]      The first and second applicants raised a point in limine; challenging the deponent of the opposing affidavit’s personal knowledge of the information contained therein, in support of the fourth, fifth and eighth respondents, alleging that he has no personal knowledge, and failed to indicate the source thereof. It is submitted that he did not state his position in the fourth and fifth respondent nor his relations with the eighth respondent. For a person to be able to swear positively to facts in legal proceedings, the said facts must be within his or her personal knowledge or have a confirmatory affidavit by the person upon whose personal knowledge the fact are. Court was referred to Maharaj v Barclays National Bank Ltd,[2] wherein Corbett, JA (as he was then) held the following:

 

“For this reason, the practice has been adopted, both in regard to the present Rule 32 and in regard to some of its provincial predecessors (and the similar Rule in the magistrates’ courts), of requiring that a deponent to an affidavit in support of summary judgment, other than plaintiff himself, should state, at least, that the facts are within his personal knowledge.”

 

The court is not bound to accept that deponent has personal knowledge, if such assertion has no basis.

 

[6]      The above was confirmed in President of the Republic of South Africa and Others v M & G Media Ltd.[3] The applicants objected to the said affidavit stating that the deponent to the opposing affidavit’s statement is nothing more than bold assertions.

 

[7]      Mr Zwart, the deponent of the opposing affidavit, indicated that he was a director of the fourth and fifth respondents, therefore the perfect person to depose the affidavit, as he had personal knowledge of the information acquired in the cause of running the affairs of the fourth respondent. The fourth, fifth and eighth respondents, referred to Annexure “PDJ2” of the applicants’ founding affidavit, the Company Report as set out in the Windeed Search obtained from the Companies and Intellectual Property Commission, which reflects Mr Zwart as one of the active Directors, as at the time of deposing the said affidavit. Annexure “CD2” is the appointment Certificate of Mr Craig Derick Jordaan, as Business Rescue Practitioner of the fourth respondent, was signed by Mr Zwart in his capacity as the director thereof.

 

[8]      In the first supplementary affidavit, Mr Zwart is relying in some instances on the information supplied by others who have personal information, like Attorneys Ms Terry Jane Winstanley “CD3” and Mr Andre Paul Brandmuller “CD4”, as well as Mining-Engineers, Mr Grant Logan Wishart “CD5” and Mr Johan Van Greunen “CD6”, who are Managers in the employ of the fourth respondent, who filed confirmatory affidavits for the correctness of the contents of his affidavit in as far as it relates to them. In the supplementary affidavit, Mr Zwart states that he is the director of both the fourth and fifth respondent and was never challenged, the first and second applicants did not file any further papers in this regard.

 

[9]      The deponent has met the requirement of personal knowledge in this regard and filed confirmatory affidavits in instances where he relied on information of other people. The fourth, fifth and eighth respondent further argued that the applicants’ remedy in the circumstances would have been to apply for the affidavit to be struck-off, as set out in the rules, which was never done.

 

[10]    Taking into consideration the cases dealing with this aspect as set out above, the court is satisfied that the deponent of the fourth, fifth and eighth respondents’ affidavit had sufficient personal knowledge of the contents contained therein. The defect in the opposing affidavit is cured by the filing of a supplementary affidavits, in this instance, that applicants did not reply to.

 

[11]    The background of the matter is, the applicants are trustees of the Oubaas De Jager Familie Trust, that purchased Portion 7 (a portion of Portion 3) of the Farm Rietspruit 437, Registration Division IS on 24 July 2013, copy of deed of sale “PDJ3”. At the time of the sale, there was a 30 years long lease for the quarry operations with an entity known as “Rietspruit Crushers CC, registration number 87/00810/23”, hereinafter called “the Close Corporation” following an extension from 01 September 1991 to 31 August 2021. At the time of current application, there was no lease in place for the Close Corporation to carry on the quarry operations, as the long-term lease expired in August 2021. The seller misrepresented that the conditions of the lease were those attached to the sale agreement.

 

[12]    A converted mining right was granted to the Close Corporation’s successor in title Rietspruit Crushers (Pty) Ltd on 10 October 2012 and registered at the Minerals and Petroleum Registration Office in Pretoria. The Close Corporation was in possession of a mining licence issued by the Department of Mineral and Energy Affairs awarded on 30 November 1994 under number 22/94, valid until 31 August 2021. The Close Corporation also registered the water use with the Minister of Water on 14 January 2004, securing the following rights:

12.1    Storage of raw water in 4 circular farm type reservoirs;

12.2    Storage of an estimated 241 000 cubic meters of water in the Rietspruit Dam 1; and

12.3    Storage of water containing waste of an estimated 240 000 cubic meters in the Rietspruit Dam 2.

 

[13]    The true position is as set out in the Confirmation Report in the Register number 2[...], the Close Corporation did not register any water use as set out in section 21(a) of NWA, for taking of water.

 

[14]    The farm was transferred to the trust by transfer number T4916/2014, on 31 March 2014. The farm is situated within the Vaal Dam Catchment Government Water Control Area, as it was declared a Government Water Control Area on 10 July 1970 by Proclamation 181 of 1970, in line with section 59(1)(a) and 59(1)(b) of the repealed Water Act 54 of 1956 (hereinafter referred to as “the RWA”). The Government Notice number 1187, issued on 24 July 1970 in terms of section 62(2) of the RWA, imposed general restrictions on the construction of storage dams and volume of public water that may be abstracted in the Vaal Dam Catchment Government Water Control Area. New dams erected in the rivers that are tributaries of the Vaal River had maximum storage capacity they are restricted to.

 

[15]    The prima facie information contained in the Confirmation Report for Register number 2[...], was that the Close Corporation was storing more than the prescribed capacity of 113 652, 5 cubic meters. The applicants allege that the actions of the Close Corporation, being the third respondent in this regard, and all its successors in title’s actions, were unlawful as they contravened paragraph 1(b) of the Government Notice 1187 of 24 July 1970. At the time of transferring the farm into the Trust’s name, the quarry operations were carried out by Rietspruit Crushers (Pty) Ltd, the fourth respondent and not the Close Corporation, the third respondent. The Close Corporation’s core business was to mine and remove dolerite.

 

[16]    As time progressed, further operations were carried out within the leased area in the form of the cement mixing facility and the facility operated by MBC alternatively Almenta (Pty) Ltd trading as Stallion Ready-mix. The applicants allege that these activities are conducted in contravention of the NWA and the Mineral and Petroleum Resources Development Act[4] (hereinafter referred to as the “the MPRDA”). The cement mixing facility and the brick making facility are conducted with the full knowledge of the officials in the employ of both the Minister of Water and the Minister of Minerals’ departments, for the past few years.

 

[17]    Rietspruit Crushers is in business rescue and operated by the eight respondent, Mr Jordaan (Business Rescue Operator). The area over which the mining operations are carried out, has increased over the years as set out in various aerial photographs, taken from time to time. A notice of intention to issue a directive was issued by the delegated official of the Minister of Water to Rietspruit Crushers on 22 September 2014, alerting them of the unlawfulness of their activities, following the construction of a new dam.

 

[18]    The directives notice related to refraining from the following activities: taking water from a water resource through a borehole and use in a plant; storing water in four new and two old dams; impeding water and construction of a dam on a water resource; disposing of water or water containing waste on old pit slimes-dam and dirty water dam, as well as abstracting water found underground for continuation of a mine operation. Since the fourth respondent was none responsive, on 25 January 2016, the delegated official of the Minister of Water issued a directive in terms of section 53(1) of the NWA, directing Rietspruit Crushers to cease operations with immediate effect and provide proof of the compliance within 10 working days. As of 29 August 2022, Rietspruit Crushers was operating as usual, extracting water from a borehole fitted with a water-meter that was fully operational, reflecting a reading of 156 721 m3, which had increased to 157 621 m3 on 16 September 2022.

 

[19]    A notice of intention to issue a compliance notice in terms of section 31L of NEMA, was issued to Rietspruit Crushers by the delegated official of the Minister of Minerals, for the following contraventions that were identified; the annual financial provisional review in terms of section 24P(3) of NEMA was not conducted by a specialist and was submitted to the Department without a trust fund supporting document; construction of cement factory within the mining area was not approved by the EMPR; and the existing environmental management program is not aligned with the current empowering legislation.

 

[20]    The fourth, fifth and eighth respondents are challenging the validity of such a directive, stating that the delegated official of the Minister of Minerals has no authority to issue such a directive, as the environmental matters fall under the Minister of Environmental Affairs.

 

[21]    Provisions of section 38A(1) of the MPRDA are in line with the “One Environmental System” that came into effect from 8 December 2014, which empowers the Minister of Minerals to issue environmental authorisations and waste management licences issued in terms of NEMA and National Environment Management: Waste Act 59 of 2008.

 

[22]    The applicants submit that there is need for the orders to be made, as both the Minister of Water and the Minister of Minerals are not opposing the application, and the fourth respondent has no good reason to oppose, as it is not alleging that it is the holder of a water use licence issued by the delegated official of the Minister of Water in terms of the NWA or existing lawful water use as define in section 32 of NWA, for water use two years prior to the coming into operation of the Act, as set out in the RWA.

 

[23]    Section 32 of NWA’s provisions are as follows:

 

“32(1) An existing lawful water use means a water use –

(a)      which has taken place at any time during a period of two years immediately before the date of commencement of this Act and which –

(i)       was authorised by or under any law which was in force immediately before the date of commencement of this Act;

(ii)       is a stream flow reduction activity contemplated in section 36(1); or

(iii)      is a controlled activity contemplated in section 37(1).”

 

[24]    The established fact that is not in dispute is that the general restrictions in terms of section 62(2) of the RWA regarding construction of storage dams and permitted volumes that may be abstracted in the Vaal Dam Catchment Government Water Controlled Area, are in force since coming into operation of Government Notice 1187 of 24 July 1970. What is clear is that Rietspruit Crushers can only erect new storage dams in or outside the river beds of such streams, if the maximum storage capacity did not exceed the 113 652 cubic meters as per paragraph 1(b). The said storage was to be registered in terms of provisions of section 62(2)(c) of RWA within a month of the completion of the facility.

 

[25]    Government Notice 1187 of 24 July 1970, provides that anyone who abstracts, impounds, or stores water in the area or alters a water work, otherwise than in accordance with the provisions of section 62 of RWA, is committing an offence under section 62(7).

 

[26]    The total storage of water in four circular dams is unknown, the only figures provided are for Rietspruit dams 1 and 2; with the combined capacity in excess of 481 000 cubic meters, which is way in excess of the limit of 113 652,5 cubic meters permitted.

 

[27]    The fourth, fifth and eighth respondents filed a supplementary affidavit, following the Department of Water and Sanitation’s publication on 10 March 2023 of two notices in terms of the NWA requiring registration of water use in Government Gazette No 48187. Notice 3137[5] requires water users to apply for amendment of registration of water use information for:

(a)            Taking water from a water resource (section 21(a) of the NWA);

(b)            Storing water (section 21(b) of the NWA);

(c)             Engaging in a stream flow reduction activity as contemplated in section 36 (section 21(d) of the NWA).

 

[28]    Notice no 3138[6] requires water users to register the following water uses:

28.1    Engaging in a controlled activity as defined in section 37(1) with specific reference to irrigation of any land with waste or water containing waste generated through any industrial activity or by water work (section 21€ of the NWA);

28.2    Discharging waste or water containing waste into a water resource through a pipe, canal or other conduit (section 21(f) of the NWA);

28.3    Disposing of waste in a manner which may detrimentally impact on a water resource (section 21(g) of the NWA);

28.4    Disposing in any manner of water which contains waste from, or which has been heated in, any industrial or power generation process (section 21(h) of the NWA);

28.5    Removing, discharging, or disposing of water found underground if it is necessary for the efficient continuation of an activity or for the safety of people (section 21(j) of the NWA).

 

[29]    It is submitted on behalf of the applicants that Rietspruit Crushers was acting in contravention of section 151(1)(a) of the NWA, as it was storing water without a licence. It was further submitted that contravention of section 151(1)(a) of the NWA is a criminal offence with a prescribed penalty. The applicants further submitted that Mr Jordaan’s actions continue to violate the water usage as prescribed, but he is masking them by relying on the provisions of section 133 of the Companies Act[7]  (hereinafter referred to as “the Companies Act”). It is further submitted that, Mr Jordaan’s reliance on provisions of section 133, in that no legal action can be taken or enforced against a business whilst under business rescue was misplaced, as the directive issued is an administrative action, not amounting to legal action.

 

[30]    It was further submitted that section 133(1)(d) of the Companies Act expressly provides that the company and/or any of the directors are not protected against institution of criminal charges. It was further submitted that the mere fact that the fourth respondent is under business rescue, does not mean it can continue to violate the law without any impunity, by using water without a licence and in contravention of a directive by the authorised official of the Minister, unless it applies for a suspension or setting aside thereof.

 

[31]    The first and second applicants pointed out that cement mixing facility was not necessary for Rietspruit Crushers to conduct its mining activities, hence it cannot allow the cement mixing to continue within the quarry area, as it is not related to the mining right.

 

[32]    The fourth respondent addressed the issue of compliance with registration requirements as set out in the Government Gazette[8] in first supplementary affidavit, which is an action that is sought by the applicants for taking water from a borehole, as it is necessary for compliance, meaning the application to stop drilling of boreholes becomes moot, as drilling is part of the compliance process.

 

[33]    The fourth, fifth and eighth respondents pointed out at the discrepancy regarding the number of trustees of the trust, referring to the annexure “PDJ 31”, a court order of the Gauteng Division granted on 16 March 2018, where only three trustees were cited as acting on behalf of the trust, whereas in the current matter the number of trustees has increased to six and that is not addressed in the court papers.

 

[34]    The fourth, Fifth and eighth respondents refer to Annexure “PDJ 9”, a confirmation Report from Department of Water and Sanitation issued on 10 November 2017, confirming the water usage right of Rietspruit Crushers for storage of raw water in four Circular Farm type reservoirs from 01 January 1987 and has not be been revoked. Annexure “PDJ9” to the founding affidavit “Confirmation Report for Registration Number: 2[...]” on page 4, reflected that there was existing authorisation for water use effective from 01 January 1987.

 

[35]    The delegated officer of the Minister of Minerals took an action by issuing a notice of intention to issue directives, followed by the directive and compliance in terms of section 93(1)(b)(i) of the MPRDA. The Minister of Minerals did not take the action within 180 days as provided for in the Promotion of Administrative Justice Act[9]  (hereinafter referred to as “PAJA”), as more than two years had expired without an action to enforce. Mere filing of the objection by Reitspruit Crushers did not suspend the working of the directive, as it was not a directive of the Director-General of Department of Minerals or the Minister, as set out in section 96(2)(a) of the MPRDA.

 

[36]    The mere fact that the officers from various sections within the Department of Water were monitoring the process did not suspend the directive that was already issued to stop water use.

 

[37]    From the proceedings it is clear that whilst the application was pending, Government Gazette No 48187 dated 10 March 2023 in Notice no 3137 and Notice no 3138 allowed existing water users to apply for water use licence. The fourth, fifth and eighth respondents are engaging with the several sections within the Minister of Water’s department to ensure full compliance with various statutory provisions for water use. The fourth respondent is currently conducting various assessments and compiling the Reports as a way of compliance with the directives. Further drilling of the boreholes that the applicants want stopped is a requirement of the compliance with the directive, with full knowledge of the monitoring officers, as no permission from the delegated official of the Minister of Water is necessary.

 

[38]    On 16 November 2021, the delegated official of the Minister of Minerals issued a further notice to Rietspruit Crushers in terms of section 93(1)(b)(i) of the MPRDA that was served on 23 November 2021, requiring Rietspruit Crushers to:

38.1    Submit a plan with clear targets, timeframes and budget of how shortfalls will be addressed; and

38.2    Submit BEE Shareholding documentation.

 

[39]    The said directive was not reviewed or set aside by the order of either the Director-General of the Minerals department or the Minister thereof, meaning that such a directive is operational and cannot be ignored by the fourth, fifth and eighth respondents. Rietspruit Crushers failed to comply with the directive. The applicants further submit that mere filing of an objection to a directive issued in terms of section 93(1)(b)(i) of the MPRDA does not suspend its operation.

 

[40]    The fourth respondent is engaged in negotiations with the Minister of Waters’ representatives and officials within the relevant department but continues to use water in contravention of the directive of 16 January 2016, in terms of section 53(1) of the NWA. The applicants’ evidence is that unlawful water use is prohibited, as per the provisions of section 22(2)(b) and (c) of NWA, which provides that use of water resources can only be used by someone who is a holder of the licence under the Act. It is common cause that Rietspruit Crushers has to date not challenged such a directive.

 

[41]    The fourth, fifth and eighth respondents’ point of non-joinder of the Minister of Environmental Affairs, was addressed, as the dispute arose from mining and related activities, in terms of section 93(1)(b)(i) of MPRDA, with the authority lying with the Minister of Minerals. In section 1 of the MPRDA, the definition of “Minister”, refers to the Minister of Minerals and Energy. In as far as the directive issued by the delegated officer in the Department of Minerals is concerned, the court is satisfied that, it is in line with the “One Environmental Systems”, the Minister of Minerals is empowered to issue the environmental authorisations and waste management licences, as provided for in NEMA and National Environment Management: Waste Act, as they fall under mining and related activities. It will only be in the case of appeal of such a decision that the Minister of Environmental Affairs will be the appeal authority.

 

[42]    The court order made on 16 March 2018, as per annexure “PDJ 31” to founding affidavit was an order against the officers within the Minister of Minerals to provide access and to make available copies of all the Environmental Authorisations, in terms of the Promotion of Access to Information Act,[10] (hereinafter referred to as “PAIA”). The Minister of Minerals and/or his delegated officials were to provide Water Licences and Mining Permits for MP 30/5/1/2/2/373 in relation to Portion 7 (a portion of Portion 3) of Rietspruit 437 IS, which is an administrative action issued in 2018 by the delegated official of the Minister alternatively to confirm that no such information and/or documentation exist. The order was for an administrative action, either to take a decision or no decision.

 

[43]    The said court order was not complied with by the Minister and/or his delegated officials, as it is clear that no steps were taken in compliance thereto. The court order was made as a way of accessing information in possession of the State Department in terms of the PAIA. This being a way of allowing the applicants to be able to access justice in terms of PAJA.

 

[44]    Directives and compliance notices that were issued by the delegated official of the Minister of Minerals are administrative actions. Same principles that are applicable to water use directives and compliance notices issued by Minister of Water in as far as PAJA is concerned will be applicable to those of Minister of Minerals.

 

[45]    The Minister of Water, did not take the action within 180 days as provided for in PAJA, and did not take any action to enforce the directives. The applicants were within their rights when they approached this court in terms of PAJA for judicial deference as no action was taken. In Minister of Water Affairs and Forestry v Stilfontein Gold Mining Co Ltd and Others,[11] Hussein J, held that, the courts have a duty in terms of section 24 of the Constitution to assist the State in enforcement of the environmental obligations of mining companies and their directors for failing to comply with directives issued in terms of section 19 of the NWA. The above was the approach in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others,[12] that where the directives are not enforced within the prescribed time, judicial deference will be a better option.

 

[46]    The fourth respondent is using water without an Integrated Water Use Licence (“IWUL”), and the officials within the various sections of the first respondent’s Department are fully aware of same, despite the fact that this activity impacts on the directive to cease unlawful water use, as the directive is aimed at ensuring that all assessments are conducted and reports filed to allow consideration of the issue of IWUL to continue, no action was taken.

 

[47]    When dealing with these matters, the court is to take into consideration that the Minister’s representatives will be better equipped to provide the solutions based on their expertise, in this highly technical sphere that is foreign to the courts. A period of more than five years has lapsed since the issuing of the directive as the first respondent’s officials monitoring processes continue with various assessments, as further boreholes were drilled but only for the purpose of compliance with the statutory requirements. This is a long period for such consideration, as the fourth respondent continues with the unlawful water use, as it is done without a valid licence.

 

[48]    What is common cause between the parties is that the delegated official of Minister of Water issued a directive in terms of the NWA for water use in following activities to stop and disconnection of a water-pump at the mentioned co-ordinates. This directive is still in place as it has not been withdrawn by the Director General of Water Affairs or the Minister as provided in the NWA. The fourth, fifth and eighth respondents have to date not complied with the said directive, as all they have done was to file an objection thereto, which on its own does not suspend or set aside the said order. The fourth, fifth or eighth respondent, have not complied with the said order.

 

[49]    There is no court order in terms of PAJA setting the said administrative order aside. The provisions of Government Notice in Government Gazette No 48187 dated 10 March 2023 in Notice no 3137 and Notice no 3138, do not suspend the carrying out of the directives that are currently in place for water use and storage as set out in the NWA. The fourth, fifth and eighth respondents raise the fact that the officials of the Minister of Water were considering the various Reports that were commissioned on behalf of Rietspruit Crushers.

 

[50]    The applicants in the replying affidavit, dealt with the aspect as to why the directive in terms of the environmental provisions as set out in NEMA was issued by the delegated official of the Minister of Minerals, citing section 38A(1) of the MPRDA, which empowers the Minister of Minerals to deal with directives in relation to environmental issues in as far as they are connected to prospecting, mining, exploration, production or any activity that is incidental to above activities. So, the issuing of enforcement directive falls with the provisions of the section 38A(1).

 

[51]    The Minister of Environmental Affairs and Tourism has no direct and substantial interest in the matter, as the Minister of Minerals is the one vested with the powers to issue the notices as aspect relate to mining activities. The fact that Rietspruit Crushers is on business rescue, does not suspend any of the directives issued in terms of section 53(2)(a) of the NWA, as they are not legal processes, but administrative actions outside the provisions of section 133 of the Companies Act. The Government Notices 3137 and 3138, do not suspend the effect of the directive issued in terms NWA, as only the Director General of Department of Water, or the Minister can suspend or set aside such a directive. In the absence of such an action, the directive is fully effective.

 

[52]    In the circumstances, this Court finds that the applicants’ application should succeed.

 

[53]    In the results, the following order is made:

1.       The first and second respondent is to forthwith enforce the directive dated 28 January 2016 issued against the fourth respondent to disconnect the borehole pump that is situated at the following co-ordinates – 26, 6116020 and 29,9512100 degrees that provide water to fourth respondent and remove the pump.

2.       The first respondent is to see to it that all pumps pumping water from any quarry pit within the quarry are disconnected and removed in order to prevent the fourth respondent from abstracting any water from the said pit within the quarry.

3.       The first respondent is to take necessary steps to see to it that the fourth respondent does not use any abstracted water to wash aggregate from the quarry.

4.        The second respondent is ordered to take all steps to enforce the directive dated 16 November 2021 issued against the fourth respondent.

5.         The second respondent is ordered to issue a compliance notice to the fourth respondent within one month of the date of this order in terms of section 31L of the National Environment Management Act 107 of 1998 in order for the fourth respondent to submit the annual financial provision review as is required in terms of section 24P(3) of the National Environment Management Act, within 10 days of the date of the compliance notice, failing which the second respondent is ordered to take all necessary action to prevent the fourth respondent from mining within the quarry area.

6.        The second respondent is ordered to see to it that, the cement mixing facility that has been established contrary to Environmental Management Plan of the fourth respondent be removed and the area be rehabilitated.

7.        The second respondent is ordered to see to it that until such time as the existing environmental management program is not aligned with the current empowering legislation, all mining activities cease.

8.        The first, second and fourth respondent be ordered to pay the costs of the application, on High Court Scale B, including costs of Counsel.  

 

SO VELE

ACTING JUDGE OF THE HIGH COURT

MPUMALANGA DIVISION, MIDDELBURG

 

Appearances

On behalf of the Applicants:	Advocate J Saunders
Instructed by:	Taute, Bouwer & Cilliers Inc
	Pretoria
	C/O Riaan Jacobs Attorneys
	Middelburg
On behalf of 4th, 5th and 8th Respondents:	Adv M Snyman SC,
	with Adv A. Mare
Instructed by:	Brandmullers Inc
	Middelburg
HEARD ON:	29 OCTOBER 2024
DELIVERED ON:	25 FEBRUARY 2025

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