---

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

 

Case No.: 128/23

Reportable:  YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates:            YES / NO

 

In the matter between:       

SHADRACK SELLO RAMOKOKA N.O                          First Applicant

 

THABO SIMON SELEKE N.O                                          Second Applicant

 

ANNAH MONALE RANGWETSI                                     Third Applicant

 

ITSHEGENG ADELAIDE MATSAPO N.O                      Fourth Applicant

 

PINKY DINEO PETA N.O                                                  Fifth Applicant

 

BAPHALANE BA MANTSERRE

COMMUNITY DEVELOPMENT TRUST                         Sixth Applicant

 

BAPHALANE BA MANTSERRE

BENEFICIARIES SSOCIATION                                       Seventh Applicant

 

RAMOKOKA FLAVIOUS MOMOKA                               Eighth Applicant

 

and

 

SAMANCOR CHROME LIMITED                                    First Respondent

 

THE MINISTER OF MINERAL RESOURCES

AND ENERGY                                                                Second Respondent

 

DIRECTOR – GENERAL: DEPARTMENT OF MINERAL

RESOURCES AND ENERGY                                           Third Respondent

 

REGIONAL MANAGER, NORTHWEST PROVINCE:

DEPARTMENT OF MINERAL RESOURCES

AND ENERGY                                                                   Fourth Respondent

 

MINISTER OF AGRICULTURE, LAND REFORM

AND RURAL DEVELOPMENT                                        Fifth Respondent

 

MEC: AGRICULTURE AND RURAL DEVELOPMENT:

NORTHWEST PROVINCE                                                  Sixth Respondent

 

MINISTER OF POLICE                                                      Seventh Respondent

 

THE SHERIFF OF THE HIGH COURT,

RUSTENBURG                                                                  Eighth Respondent

 

These reasons were handed down electronically by circulation to the parties’ representatives via email. The date and time of hand-down is deemed to be 14 August 2023 at 10h00.

 

 

REASONS FOR ORDER MADE

 

Mfenyana J

 

 

[1]        This matter served before me in the opposed motion Court. In essence, the applicants sought an order interdicting the first respondent from holding a meeting scheduled to take place on 21 June 2023 at 13h00, until such time that the first respondent had complied with the provisions of the law, in particular, the Mineral and Petroleum Resources Development Act (“MPRDA”/ “the Act”) relating inter alia to consultation and engagement with the Community.

 

[2]        The application was opposed only by the first respondent.  

 

[3]        After hearing submissions from Mr Nel on behalf of the first to sixth applicants, Mr Maluleke for the seventh and eight applicants, as well as Ms Oschman on behalf of the first respondent, I made the following order:

 

1.    The applicants’ non-compliance with the prescribed forms and time limits in respect of service, as provided in the Rules, is condoned and the matter is treated as urgent in terms of Rule 6(12) of the Uniform Rules of Court.

 

2.    The first respondent and any entity or person representing the first respondent, are interdicted, and restrained from holding a public meeting on 21 June 2023 in the Mantserre Village, or anywhere else, with the members of the Baphalane Ba Mantserre Community (“the Community”.

 

3.    The first respondent and any entity or person representing the first respondent, are interdicted, and restrained from calling, holding, or arranging any public meetings with the members of the Community.

 

4.    The first respondent and any entity or person representing the first respondent, are interdicted, and restrained from engaging in, negotiating and/or concluding any Agreements, including Land Use Lease Agreements and Compensation Agreements or Arrangements relating to Portion 1 of the Farm Varkensvlei 403, Registration Division K.Q, North West Province, measuring 703 6553 hectares and the Remaining Extent of the Farm Varkensvlei 403, Registration Division K.Q, North West Province, measuring 1335, 1407 hectares (“the Communal Land”).

 

5.    The first respondent and any entity or person representing the first respondent, are interdicted, and restrained from conducting any mining activities and mining-related activities (including, but not limited to public participation meetings, activities preparatory, ancillary  or incidental to mining, such as, but not limited to any fencing or fence removal, cutting or clearing of vegetation, any establishment of roads, any construction or installation of buildings, infrastructure or equipment and any drilling, removal of soil, ore or any mineral) on the Communal Land.

 

6.    In the event that any Land Use Lease Agreement, Compensation Agreement, or any other Agreement and/ or other Agreements relating to, or in respect of the Communal Land have been concluded between the first respondent and any person or entity, other than the Trustees of the Baphalane Ba Mantserre Community Development Trust and the Seventh and Eighth Applicants, the operation of any and all such Agreements or Arrangements is suspended and declared unenforceable.

 

7.    The relief sought in paragraphs 2, 3, 4, and 6 above shall operate as an interim interdict pending the final determination of Part B of this application, and the Objection lodged by the Community against the first respondent, in terms of section 10(2) of the Mineral and Petroleum Resources Development Act, No. 28 of 2002, as amended (“the MPRDA”).

 

8.    The relief sought in paragraph 5 above, shall operate as an interim interdict pending the final determination of the Objection lodged by the Community against the first respondent, and compliance by the first respondent with the provisions of sections 19(d), 19(e), 25(d), 25(e) 54(5) and 54(7) of the MPRDA and the final determination of Part B of the application.

 

9.       In the event that the first respondent and any entity or person or contractor representing or enlisted at the instance of the first respondent fail to comply with this Order, the Eighth respondent, with the assistance of the South African Police Service, is directed and authorised to enforce this Order, and put a stop to all and any mining activities and mining – related activities on the Communal Land.

 

10.   The applicants are granted leave to supplement their papers, if necessary, in respect of Part B.

        

11.   The first respondent shall pay the costs of the intervention application.

 

12.  The first respondent is ordered to pay the costs of the hearing of the interim relief on scale as between attorney and client which costs shall include the costs of two counsel.

 

[4]        The salient facts of the application are that the first respondent (Samancor) is the holder of a mining right over a property known as Farm Varkensvlei 403. (Farm Varkensvlei ), situated within the North West province.  On 7 June 2003, the Land Claims Court made an order declaring inter alia that the sixth applicant (the Trust) was entitled to restitution of ownership of portions of a property known as Schilpadsnest  as well as retention of the Farm Varkensvlei,  (the Communal Land). In terms of the said Order, the Trust consists of the Baphalane Community as the claimants. 

 

[5]        The circumstances leading to the acquisition of  a mining right by Samancor is in dispute between the parties.

 

[6]        Prior to the hearing of the application the seventh and eighth applicants brought an application seeking to intervene in the proceedings.  The basis for the intervention application as set out in the founding affidavit, is that both the Baphalane Ba Mantserre Beneficiaries Association and Ramokoka Flavious Mokoka are beneficiaries of Portion 1, Farm Varkensvlei and thus have a direct and substantial interest in the matter. They join issue with the first to sixth applicants and seek to interdict the meeting proposed by the first respondent.  They aver that they only became aware of the present proceedings until 15 June, whereafter, on 17 June 2023, they received the papers in the present application. They further aver that Samancor has failed to consult with them as the owners of Varkensvlei.

 

[7]        I granted leave for the intervening parties to be joined in the main application, as the seventh and eighth applicants. I indicated at the time that the reasons for that Order would be incorporated as part of the judgement in the main application. On that score, I deem it prudent to first deal with those reasons.

 

[8]        It is trite that a party who seeks to intervene in a matter must show that it has a direct and substantial interest in the order that the Court is requested to make.

 

[9]        There can be no gainsaying that the issue of the entitlement to the Farm Varkensvlei, and the potential benefits accruing from such entitlement are a cause of much contestation between the parties. These would, at some point, have to be resolved between the various beneficiaries. That notwithstanding, there can be no dispute that a determination is yet to be made in this regard.

 

[10]      The question is whether the intervening applicants have demonstrated a direct and substantial interest in the matter.  They have established that the eighth applicant is part of the Baphalane Community and the seventh applicant, part of a class of people and pensioners, all of whom are members of the Baphalane Community. In terms of the Order issued by the Land Claims Court, the Baphalane Community are beneficiaries of the relevant portions of  Schilpadsnest  and Varkensvlei.  This was not disputed by the first respondent. What the first respondent says is that the intervening parties did not adduce any evidence that they are entrusted with the duty of overseeing the operations of the Baphalane.

 

[11]      Much was made, on behalf of the first respondent, that the intervening applicants have no locus standi as there is no proof that the Baphalane Ba Mantserre Beneficiaries Association is a registered entity. Section 38 of the Constitution provides for the enforcement of rights by ‘anyone’ who acts in their own interest, or as a member of , or in the interest of, a group of or class of persons. To the extent that it may be argued that the intervening parties acted on behalf of other members of the Baphalane Ba Mantserre Beneficiaries Association, it is settled law that section 38 (d) ….does not require anyone acting in the public interest to join the members of public in such litigation. This was determined by the Constitutional Court in various decisions including Limpopo Legal Solutions v Vhembe District Municipality and Others (CCT119/16) [2017] ZACC 30; 2018 (4) BCLR 430 (CC) (17 August 2017); Also, Lawyers for Human Rights v Minister of Home Affairs [2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC).  Nothing in law suggests that the applicant should have joined the members of the public, in particular, the pensioners who associate themselves with the seventh applicant,  in order to show that it is acting in their interests.

 

[12]      Similarly, the eighth applicant is well within his rights in terms of section 38 (a) and (c) to approach the court. I would venture to say that even section 38(d) also affords him that right. ‘The degree of their vulnerability, coupled with the nature of the right they seek to protect as well as the consequences of the infringement of that right, are also important considerations’[1], which place them in a category of people covered by section 38.

 

[13]      There is thus no merit to any suggestion that the intervening parties either have no authority to litigate in these proceedings, or that they lack locus standi.  Any order made by the Court in these proceedings would have a direct impact on their rights, which the first respondent does not challenge. 

 

[14]      For the above reasons, I was satisfied that the applicants had demonstrated the requisite interest to be granted leave to intervene in the proceedings. Accordingly, I granted the application.

 

[15]      In respect of the costs of the application, the application was opposed only by the first respondent. I could not find any reason to depart from the general rule that costs should follow the result. I ordered the first respondent to pay the costs of the application.

 

[16]     Pertaining to the main application, the applicants contend that the first to fifth applicants, as trustees of the sixth applicant have the necessary locus standi to bring this application pursuant to the provisions of section 32 of the National Environmental Management Act 107 of 1998 (NEMA), as amended.  They seek an order interdicting Samancor from holding a meeting on 21 June 2023 until such time that Samancor has complied with the provisions of the MPRDA, which relate to certain rights and obligations of Samancor as a holder of prospecting (section 19(d)&(e))and mining rights (section 25(2)),and the determination of compensation payable (section 54(5) & (7)).

 

[17]     The applicants’ contention is that in the intended meeting Samancor seeks to discuss new mining operations and a lease agreement for the use of the communal land. This, the applicants aver, flies in the face of ongoing negotiations with the Trust. In addition, the applicants aver that the Objection lodged by the Community has not been resolved. According to the applicants, were Samancor to be allowed to proceed in this manner, and hold meetings with only a select few, the rest of the community would be deprived of their rights to the communal land.

 

[18]      In opposing the application, Samancor raised five points in limine. In summary, these points in limine relate to non- joinder, the timing and competence of the relief sought, locus standi, and urgency. I briefly deal with these, hereunder:

 

[19]     On non-joinder, Samancor argued that the applicants have failed to join the Traditional Council (Council), as the body responsible for overseeing and ensuring that due process is followed in the affairs of the Community. It averred that the existence of the Trust does not oust the Council’s authority.

 

[20]     In respect of the relief sought by the applicants, Samancor raised two issues. It contended that the application is premature as the applicants have not tendered any evidence that the outcome of the intended meeting of 21 June, will negatively affect the interests of the community. It further contended that the relief sought by the applicants is not competent, as the meeting seeks to ensure that it complies with its legal obligation to engage with the members of the community. Thus, the relief sought by the applicants in this regard, in so far as it seeks to interdict the meeting from taking place, and forcing Samancor to conclude an agreement with the Trust is not competent, so contends the first respondent. In essence, Samancor maintained throughout the proceedings that the applicants are acting in their own interest, and not that of the Community.

 

[21]     On the issue of locus standi, it is the first respondent’s contention that the trust deeds relied upon by the applicants only relate to the Farm Schilpadsnest 385 KQ, and (Portion 1, and the remaining extent thereof), which is the land restored to the Baphalane Community. As regards to Farm Varkensvlei, the first respondent contends that this property was not transferred to the Trust and is retained by the Baphalane Community which the applicants do not have the mandate to act on behalf of. Notably, the first respondent further avers that the Objection was resolved and finalised, and the granting of the mining right presupposes that section 10 of the MPRDA has been complied with as this process precedes the granting of a mining right.

 

[22]     Lastly, the first respondent contended that the matter is not urgent as it is simply based on unfounded speculations about various outcomes and reasons for the meeting of 21 June 2023, which in any event, the applicants have no authority to represent the Community on.  They further contended that the applicants had known of the notice of the meeting, since 18 May 2023 when the notice of the meeting was issued.  Samancor further averred that the application is an abuse of the urgent court process as the urgency, is self-created.

 

[23]     In resisting the points in limine, the applicants contended that in view of the collaboration agreement concluded between the Trust and The Traditional Council, the Trust exercises control over the assets of the community on behalf of the beneficiaries, and the applicants are duly authorised in terms of the Trust Deed to represent the community, including the Traditional Council. In consequence thereof, the Traditional Council deposed to an affidavit in support of the application and the relief sought by the applicants. This, in my view, disposed of the issue of non- joinder.

 

[24]     As far as the timing and competence of the relief sought goes, the applicants retort that there is no merit to this contention, as the relief sought seeks to prevent the respondents from carrying on with the meeting as anticipated. They further contended that they would not obtain substantial redress in due course if the meeting was allowed to take place. They, thus deny that the relief is premature.

 

[26]     It is trite that the courts are only concerned with live disputes between litigants, and not disputes that are moot or academic. There matter would “no longer present an existing or live controversy”[2] had the applicants waited for the meeting to take place. There is thus no merit to the first respondent’s contention in this regard.

 

[27]     In terms of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA), Samancor is required to obtain the Community’s consent for a mining right over property held by the community. I agree with the applicants that the first respondent cannot simply ignore the customary law and usurp the powers of the Kgosi, in calling a meeting. The first respondent cannot on the one hand, recognise the authority of the Traditional Council to institute legal proceedings, and on the other hand, take over that authority by assuming its responsibilities.

 

[28]     In Baleni[3] the court held that the provisions of IPILRA which require the community’s consent, and MPRDA, which require consultation with the community, should be read together. The court concluded that consent by the community is necessary before a mining right can be obtained.  Both Baleni and Maledu[4] serve to protect communities with informal or customary land tenure.

 

[29]     Relevant to the present application, it is clear that the parties have not reached any consensus with regard to this aspect of the MPRDA and IPILRA. Notably, the applicants, in their replying affidavit aver that they learnt for the first time, upon receipt of Samancor’s answering affidavit, that Samancor had been granted a mining right.  During the hearing of the matter, it was argued on behalf of the applicants, that Samancor has been secretive in dealing with the matter, for reasons unknown to the applicants.

 

[30]     The applicants aver that in their capacities  as trustees, they have the necessary locus standi to institute these proceedings. I do not consider it necessary to belabour this point much further, save to state that even if the first respondents were to assail the authority of the trustees in their capacities as such, the collaboration agreement together with the supporting affidavit by the Traditional Council puts this issue to bed.

 

[31]     As regards urgency, it is trite that  where the continuance of the act against which an interdict is sought, would cause irreparable injury to the applicant, the application should be entertained.  The relief should be granted if the ‘discontinuance of the act complained of would not involve irreparable injury to the other party’[5]. By extension, the applicant should demonstrate that it would not obtain substantial redress at a hearing in due course. They aver that they requested an undertaking from Samancor that it would not proceed with the meeting, and sought to discuss timeframes, to no avail. The applicants further allege that Samancor has opted for a divisive attitude among community members.

 

[32]     How the first respondent went about setting up the meeting sought to be interdicted has been placed under attack by the applicants. They contend that Samancor has adopted a hard- handed approach and expects community members to simply attend the meeting and cast votes in respect of a complex lease agreement, Thus the urgency of the matter lies not only on the fact that the notice of the meeting was issued over a month ago, but that the requirements of the MPRDA and IPILRA were not complied with.

 

[33]     Ms Oschman argued on behalf of the first respondent that the first respondent cannot invite the whole community. In this contention This lends credence to the applicants’ contention that Samancor a adopted a divisive attitude among community members.  In it, lies a concession that the requirements of the Act have not been met. There is thus no merit to the first respondent’s contention that the applicants have not made out a case for urgency or the contention that the applicants form part of the group of interested parties invited to the meeting.

 

[34]     As regards the merits, the first respondent contended that the applicants have not proven a prima facie right, worthy of the protection of this Court, as there was no threat to such right being infringed.  This, presumably on the basis that the first respondent maintains the properties are to be retained by the Baphalane community, in terms of the Land Claims Court order, and not the applicants. I find it difficult to follow the first respondent’s submission in this regard. There cannot be any talk of an infringement if no right exists, as contended by the first respondent. I have already dealt with this aspect in limine on the issue of locus standi. In terms of the Trust Deed and the collaboration agreement, the applicants are authorised to act on behalf of the Community. In that respect, there is no merit to this argument.

 

[35]     Consequently the first respondent avers that there can be no harm to the applicants as there is no right to be protected, to begin with. They further aver that the meeting of 21 June 2023 is not the beginning of mining operations but seeks ‘to engage the Community on the potential conclusion of a surface lease agreement.’  I do not understand the applicants’ case to be that they are opposed to an engagement with the first respondent, but that such engagement must take place once the prerequisites set out in the applicable legislation have been complied with, and the pending engagements in respect of an Objection have been concluded. Notably, the Objection relates to the very issue of lack of consultation with the Community.

 

[36]     Throughout the proceedings the Community was represented by the Trustees. Tellingly, in its response to the Objection, the Regional Mining Development and Environmental Committee (REMDEC) enjoined the first respondent to inter alia convene meetings with the applicants and address equity, socio-economic and other related issues involving the Community. 

 

[37]     The first respondent relies on section 5(3) of the MPRDA which entitles it  to ‘cause whatever is necessary … to give effect to and advance the objects’ of the Act. The irony of it is that the Act makes section 5(3) subject to the Act itself in so far as it states that the activities to be undertaken should ‘not contravene the provisions of the Act’ (section 5(3)(e)).

 

[38]      What the applicants aver is that there will be no prejudice to the first respondent as all that is required in the application is that they follow due process, and only commence with mining operations once all the prerequisites have been met. This is in contrast to the prejudice that would be suffered by the applicants and the beneficiaries if Samancor were to be permitted to proceed with unauthorised engagements and subsequently agreements, and any subsequent mining operations would be equally unauthorised.  By the first respondent’s admission, the purpose of the meeting is ‘to engage the Community on the potential conclusion of a surface lease agreement.’

 

[39]     The applicants contend that they have attempted, without success to hold meetings with Samancor. Samancor does not deny this. What is says is that it is under no obligation to hold such meetings with the applicants and is well within its rights to proceed in the manner that it did. It further argues that the mere calling of a meeting will not deprive the Community of any rights it may have in the land. What this submission overlooks, is that the calling of meetings in these circumstances is not an isolated event, but forms part of the process of consultation and engagement, which are prerequisites for the mining process to proceed. It is an important consideration which will influence the outcome of the entire mining project.

 

[40]     Amidst all these allegations, the first respondent’s responses are sweeping statements that the Objection had been resolved. They say no more on this aspect.  They maintain that they have always complied with the law and that the proposed meeting is in itself proof of such compliance, at least to an extent. I cannot see how this submission advances the first respondent’s case. The authorities are specific in as far as they require that the consent of the Community be obtained.  While this relates to the mining right itself, which this court has not been called to adjudicate on, what is clear is that the parties are miles apart on the issue of consultation and engagement.

 

[41]     Having considered all these submissions, I found no merit in the respondents’ contentions and the points in limine. I proceeded to grant the application and ordered the respondents to pay the costs of the application and the intervention application.

 

 

S. MFENYANA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

APPEARANCES

DATE OF HEARING:	20 JUNE 2023
DATE ORDER GRANTED:	21 JUNE 2023
DATE REASONS REQUESTED:	30 JUNE 2023
DATE OF JUDGEMENT:	14 AUGUST 2023
For the 1st to 6th Applicants:	Adv. G Nel SC
Assisted by:	Adv. M Shakung
Instructed by:	Shuping Attorneys
c/o:	DC Kruger Attorneys
Email:	info@shupingattorneys.co.za
For the 7th & 8th Applicants:	Adv. G Maluleke
Instructed by:	Mhlongo and Chauke Attorneys
Email:	info@mhlongoandchaukeattorneys.com
For the 1st Respondent:	Adv. I  Oschman
Instructed by:	Malan Scholes Inc.
c/o:	Van Rooyen Thlapi Wessels
Email:	ssingh@malanscholes.co.za
	ssieberhagen@malanscholes.co.za

---