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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

 

CASE NO: M550/21

Reportable: YES/ NO
Circulate to Judges: YES/NO
Circulate to Magistrates: YES/NO
Circulate to Regional Magistrates: YES/NO

 

In the matter between:

 

RUSTENBURG PLATINUM MINES LIMITED               Applicant

AND

 

KEBALETETSE WILLIAM KELAHLILE                       1^ST Respondent

 

LUCAS OBAKENG NTSHABELE                                2^nd Respondent

 

DODO DONALD MOEKETSI                                        3^rd Respondent

 

IPELENG MORENA THALE                                         4^th Respondent

 

BOITUMELO CAROLINE TSHEOLE                           5^th Respondent

 

GODFREY CHINA MODISAOTSILE                            6^th Respondent

 

GROUP OF PROTESTORS AT MORTIMER               7^th Respondent

SMELTER ON 3^RD AND 4^TH AUGUST 2021

 

MINISTER OF POLICE                                                8^th Respondent

 

PROVINCIAL COMMISSIONER OF POLICE

NORTH WEST, PROVINCE                                         9^th Respondent

 

STATION COMMANDER, MOGWASE

POLICE STATION                                                        10^th Respondent

 

Judgment is handed down electronically by distribution to the parties’ legal representatives by e-mail. The date that the judgment is deemed to be handed down is 05^th December 2024 at 14h00.

ORDER

 

The application is dismissed with costs.

 

 JUDGMENT

REDDY J

 

Introduction

 

[1]        On 05 May 2022, the applicant sought opposed final interdictory relief. On 16 May 2022 Hendricks DJP (as he then was) referred the matter to oral evidence in terms of Rule 6(5)(g) of the Uniform Rules of Court, (“the Rules”). This order provides in part as follows:

 

(a)      “The first to the seventh respondents, hereinafter referred to as the “respondents”, protest activities, and at or near the applicants’ business premises, on the 3^rd and 4^th August 2021, were peaceful or whether or not the respondents on the said days were violent , without detracting from the aforegoing whether or not the respondents, individually or part of a larger group, held employees of the applicant hostage, blocked access to the business premises, hijacked trucks, dumped their loads on the street, and intimidated the applicant’s employees.

 

(b)      Whether or not the respondents who gathered at applicants’ business premises on the 3^rd and 4^th August 2021, and again on the 18^th of August 2021, did so for the purpose of intimidating the applicant and its employees into meeting the demands of the respondents as to employment opportunities and access to information or whether they attended for the purposes of peacefully meeting with the applicant.’’

     

[2]        On 04- 05 March 2024 the applicant led viva voce evidence of Mr Mathinus Van Der Westhuizen, Mr Kobus Coetzer, Ms. Bernice Du Preez and Mr Odirile Love Joy Pule. The respondents elected not to present evidence. The matter was postponed sine die for the filing of heads of argument which was duly done by both parties on 28 March 2024 & 12 April 2024. It seems that by virtue of the order postponing the matter sine die it was incorrectly tracked. Therefore it  did not make its way to my reserved list. On receipt of a query by the applicant’s attorney as regards the status of the judgment, it was immediately investigated and the shortcoming identified. This judgment does not appear on any of my reserved lists. This oversight is highly regretted.     

 

The parties

 

[3]        A proper introduction of the dramatis personae is essential for ease of reference.

 

[4]        The applicant is Rustenburg Platinum Mines Limited, a company with limited liability incorporated as such according to the company laws of the Republic of South Africa with its registered address being 13^th Floor, 55 Marshall Street, Johannesburg.

 

[5]        The first respondent is the Kebaletetse William Kelahlile. The second respondent is Lucas Obakeng Ntshabele.The third respondent is Dodo Donald Moeketsi. The fourth respondent is Ipeleng Morena Thale. The fifth respondent is Boitumelo Caroline Tsheole. The sixth respondent is Godfrey China Modisadife.

 

[6]        The seventh respondent is a Group of respondents at Mortimer Smelter, (“ the smelter”),  on 03 and 04 August 2021, comprising of adult persons, whose identities, save for the first to the sixth respondents are to the applicant unknown.

 

[7]        The eighth respondent is the Minister of Police cited herein in his capacity as the Minister in charge of the South African Police. The ninth respondent is the Provincial Commissioner of Police, North West Province. The tenth respondent is The Station Commander of the South African Police Services, Mogwase.

 

[8]       The eighth to tenth respondents, initially delivered a notice of intention to oppose. This notice was subsequently withdrawn.

 

[9]        The first to the sixth respondents opposed the application. For purposes of brevity, when reference is made to the “respondents” such reference is to the first to the sixth respondents.

 

The version of the applicant

 

[10]     On 12 October 2010, the applicant was issued with a Precious Metals Refining Licence in terms of section 7 of the Precious Metals Act 37 of 2005. The applicant operates a smelter. The issuing of a licence made it legally permissible for the applicant amongst others to smelt, refine or change the form of any unwrought precious metal in its lawful possession. To this end, the nature of the applicant’s business is the receipt of ore, the beneficiation of same, if necessary, the redefining of the ore and the processing of the ore into platinum. For the applicant to operate the smelter, it processes platinum group metal baring concentrates daily. This concentrate is dried and smelted in an electric furnace to produce a platinum group metal group metal rich furnace matte. This matte can further be redefined to produce platinum group metals and base metals. The applicant processes 86 615 of 4E tons of platinum group metal barring concentrate per day. It follows that the any interruption of the smelter causes immense financial loss.

 

[11]      Given processing levels and the scale of its operations, the applicant must operate daily. Consequently, approximately two hundred and twelve (212) employees form part of its permanent work force. The latter excludes contractors. Notwithstanding, the policy of the applicant to engage with the surrounding community, business forums and individuals representing local businesses to ensure a mutually beneficial relationship. However, incidences do occur that conflict with the laws.

 

[12]     On 03 August 2021, at about 10h00 a group of thirty (30) adults from the Moruleng community arrived at the smelter. The first to the sixth respondents formed part of this group. The respondents are all members of the Bakgatla Ba Kgafela Business Forum. The group inclusive of the respondents proceeded to the gate house controlling access and egress from the smelter. Stones were thrown in the direction of the gate house, which resulted in damage to same. Individuals who intended to access the smelter were chased away. Furthermore, the driver of a bulk carrier from Kamojoe Transport was coercion into parking the truck that he was driving in strategic position to prevent access to the smelter. Moreover, the keys to this bulk carrier were removed and the driver was ordered to leave same. Additionally, seven (7) motor vehicles were used to circumvent access to the smelter. Six (6) of these motor vehicles were identifiable by registration numbers, whilst a white Golf 7 GTI was identified by general classification.

 

[13]     Resultantly, two hundred and seventy-seven (277) persons were locked in. The latter comprised of employees, contractors and clients. This conduct made it impermissible for anyone to leave the smelter. The Protection services of the applicant were deployed with a specific mandate to protect the diesel tanks on site. At 11h30AM, the South African Police (“the SAPS”), arrived. Shortly thereafter, the applicant’s Social Performance Team (“the SPT”), arrived. Forming part of the SPT were Mr Thabo Moyo, (“Moyo”) and Mr Matome Shishoka, (“Shishoka “).

 

[14]     The SPT engaged with the first, second and third respondents to defuse and resolve the situation. It was established that first, second and third respondents were the representatives of the group. Several demands were made. At approximately 13h10PM, negotiations deadlocked. After the SAPS had been again contacted, Colonel Pilane (“Pilane”) arrived accompanied by three (3) members. The members of the SAPS were brought up to speed in respect of the hostages. Pilane then engaged with the respondents. This did not result in any solution. Pilane then called for the Public Order Service (“the POPS”) to be positioned.

 

[15]     At approximately 17h32PM, a few contracted employees who were held hostage in the visitors parking succeeded in breaking open a lock on the gate and exited the smelter. On noticing this, the respondents then entered the car park to prevent this gate from further being used as an escape route. To firmly secure control of this newfound exit, a truck from Interlink was “hijacked” and strategically parked preventing the entrance and egress from the smelter by this gate.

 

[16]     What stands out is that there were a few skirmishes occurring within the subset on the main protest action. A driver of a front loader attempted by way of force to drive out of the car park. The driver was ordered to switch of the front loader and was escorted off it. Mr Odirile Lovejoy Pule (“Pule”), who was also present was confronted by the respondents. The respondents averred that Pule had betrayed his forefathers. Pule was assaulted with open hands. He was overpowered.  His firearm being removed from his possession. This firearm was later returned to Pule by one of the respondents. Ms Bernice Valerie Du Preez, (“Du Preez”) who was confronted by one of the respondents who identified himself as “Dan” the Kgosi of Moruleng ordered the security to leave. Later, the second respondent, spat at her feet, remarking that Du Preez was a “white b###h” who had been cloaked with white privilege which would not work against him. Furthermore, Du Preez was imprudent and a dog, which they will kill if required.  Other incidences occur which simply confirm the mayhem that was occurring.

 

[17]     Given the fact that the respondents were on private property, the various divisions of the SAPS adopted a non-possum attitude. A criminal case was registered under CAS 47/08/2021. On 04 August 2021 at approximately 11h20AM, the POPS dispersed the respondents. This caused all the hostages to be freed.

 

[18]     Due to the unlawful actions of the respondents, no persons but for the respondents were able to enter and egress the smelter from 10h00AM on 03 August 2021 – 11h20AM on 04 August 2021. It axiomatically follows that all business operations had to be paused during this period.

 

[19]     On 18 August 2021, at 8h33AM four (4) motor vehicles arrived at the smelter parking on the opposite direction of the main entrance. In these motor vehicles were ten (10) community members. The fourth respondent was part of this group who had been part of the controlling group of 03 & 04 August 2021. The Protection Services of the applicant blocked the main entrance to guard the employees from potential harm. At about 10h45AM this convoy of which the fourth respondent was a part of left.

 

The version of the respondents

 

[20]     No evidence was presented by the respondents. The following can be extrapolated from the respondents’ affidavits. On 03 August 2021 the respondents contend that a tender information meeting was to be held at the premises of the applicant. The community were uninformed of this meeting. Resultantly, the respondents, unarmed with any kind of weapon proceeded to the smelter to ascertain what formed the decision to have excluded the local community business forum and local community owned businesses from this tender information meeting. The respondents were summarily dismissed. This led the respondents to congregate outside the main entrance in protest.

 

[21]     This protest was unaccompanied by any violence or intimidation that was directed at any employees, clients, contractors or sub-contractors. Ultimately, the respondents were invited to attend a meeting with Moyo and other employees of the applicant. The meeting did not yield a positive solution. Moreover, there was no firm indication of the work that was available. Furthermore, there was no guaranteed inclusion of the community in tender briefing and being part of the service providers. The failure to have reached consensus was largely caused by the representatives of the applicant who did not have the requisite authority to negotiate meaningfully. This impasse caused the respondents to remain present at the main gate in silent protest in anticipation of an audience with a representative of the applicant who was able to consider the respondents stance.

 

[22]     Given the operations of the applicant, security is of paramount importance. The presence of armed security personnel would have discouraged any thoughts of unlawful intentions. More pertinently, the respondents deny any of the conduct complained of. Access to the applicant’s premises was unhindered. During this period constant communication occurred amongst the SAPS, POPS and the respondents.  The respondents aver that they remained present outside the main gate until approximately 11h00AM on 04 August 2021 without any satisfactory audience or answer from the applicant. On the request of the SAPS the respondents left the smelter still aggrieved by the issues that remained unsolved.

 

[23]     The fourth respondent contends the following relating to 18 August 2021:

 

           “27. On 18 August 2021, I (together with some community members) again attempted to gain audience with the applicant, which was again summarily dismissed, whereafter we left to avoid any confrontation. I specifically deny that we intimidated anyone (be it directly or indirectly) as is clear from the applicant’s photos.”

 

[24]      On 03 September 2021 a communiqué was received from the applicant which was addressed to various Local Business Structures and Local Leaders providing a report and feedback of the events of 03 August 2021. This communiqué was not disclosed during litigation. This communiqué effectively disposes of any issues between the parties, notwithstanding the applicant’s assertions in this regard.  The respondents seem to blow hot and cold in the answering affidavit. This is best illustrated by referring to a part thereof. It thus reads:

 

         “32 The respondents herewith further tender not to commit any act as set out in the relief claimed.

 

            33. It is further specifically denied that:

 

            33.1. The applicant is entitled to the relief sought.

 

 33.2. The respondents made themselves guilty of unlawful acts of violence and intimidation.

 

           33.3. The respondents held persons hostage.

 

           33.4. The respondents caused injury to the applicant, its employees, contractors, sub-contractors, clients and/or its property.

 

          33.5. Any injury or threat of injury is continuous.”

 

[25]     Preceding a determination on final interdictory relief, the factual disputes that were referred to oral evidence must first be determined. It is irrefutable that the applicant led the viva voce evidence of Mr Mathinus Van Der Westhuizen, Mr Kobus Coetzer, Ms. Bernice Du Preez and Mr Odirile Love Joy Pule.  The collective evidence of these witnesses remained largely unblemished by limited cross examination. The law in this respect is trite. 

 

[26]     In President of the Republic of South Africa and Others v South African Rugby Football Union and Others (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September 1999), the apex court held:

 

“[61] The institution of cross-examination not only constitute a right, but it also impose certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on particular point, to direct the witness’s attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness’s testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn and has been adopted and consistently followed by our courts.

 

[62] The rule in Browne v Dunn is not merely one of professional practice but “is essential to fair play and fair dealing with witnesses”. It is still current in England and has been adopted and followed in substantially the same form in the Common wealth jurisdictions.

 

[63] The precise nature of the imputation should be made clear to the witness so that it can be met and destroyed, particularly where the imputation relies upon inferences to be drawn from other evidence in the proceedings. It should be made clear not only that the evidence is to be challenged but also how it is to be challenged. This is so because the witness must be given an opportunity to deny the challenge, to call corroborative evidence, to qualify the evidence given by the witness or others and to explain contradictions on which reliance is to be placed.’

 

[27]     The evidential matrix presented by the applicant’s evidence remained unrefuted on the core issues. This evidence unequivocally demonstrates the unlawful conduct of the respondents, which included amongst others being an integral part of holding the various individuals’ hostages at the smelter between 03 August 2021 & 04 August 2021. It was a far cry from peaceful protest which was the narrative which the respondents disingenuously proposed to perpetuate. It cannot be found that on 18 August 2021, the respondents had embarked on any unlawful conduct.

 

[28]     Forasmuch as this factual finding has been made, I now turn to consider if the applicant has met the threshold of final interdictory relief.

 

The law

 

[29]      It is commonplace in our law that a final interdict is founded on three primary pillars, a clear right: a threat to breach such right (in the case of a prohibitory interdict) or a refusal to act in fulfilment of such right (in the case of a mandatory interdict) and no other remedy. To find that an applicant has a clear right is a matter of substantive law, which must be demonstrated by evidence See: Minister of Law & Order, Bophuthatswana v Committee of the Church Summit of Bophuthatswana  1994 3 SA 89 (BG) at 97–98^. This requires of an applicant/s to demonstrate a clear right, the applicant/s must prove on a balance of probability, facts which in terms of substantive law establish the right relied on. LAWSA Vol. 11, 2nd Ed. 397.

 

[30]      In NCSPCA v Openshaw [2008] ZASCA 78; 2008 (5) SA 339 (SCA) at para [20], Farlam, JA, Cameron JA, Heher  JA, Hurt AJA and  Mhlantla AJA, concurring, posited the following:

 

“ [20] An interdict is not a remedy for past invasion of rights but is concerned with present or future infringements. It is appropriate only when future injury is feared. Where a wrongful act giving rise to the injury has already occurred, it must be of a continuing nature or there must be a reasonable apprehension that it will be repeated. The requisites for the right to claim an interim interdict are:

 

(a) A prima facie right. What is required is proof of facts that establish the existence of a right in terms of substantive law;

 

(b) A well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted;

 

(c) The balance of convenience favours the granting of an interim interdict;

 

(d) The applicant has no other satisfactory remedy

 

[21] The test in regard to the second requirement is objective and the question is whether a reasonable man, confronted by the facts, would apprehend the probability of harm. The following explanation of the meaning of 'reasonable apprehension' was quoted with approval in Minister of Law and Order v Nordien:

 

'A reasonable apprehension of injury has been held to be one which a reasonable man might entertain on being faced with certain facts. The applicant for an interdict is not required to establish that, on a balance of probabilities flowing from the undisputed facts, injury will follow: he has only to show that it is reasonable to apprehend that injury will result. However the test for apprehension is an objective one. This means that, on the basis of the facts presented to him, the Judge must decide whether there is any basis for the entertainment of a reasonable apprehension by the applicant.

 

[22] If the infringement complained of is one that prima facie appears to have occurred once and for all, and is finished and done with, then the applicant should allege facts justifying a reasonable apprehension that the harm is likely to be repeated.”

 

Discussion

 

[31]      It is indisputable that the applicant has a clear right to conduct its enterprise pursuant to a Precious Metals Refinery License. This much was correctly conceded to by Adv Le Grange for the respondents. It is the remaining two fundamental requirements for final interdictory relief that are in dispute.

 

[32]      Regarding the second requirement, an injury committed or reasonable apprehended, Adv Smit for the applicant contended that:

 

(a)  The applicant’s employees were intimidated, assaulted, held hostage and its business blockaded for a period of 24 hours, forcing it to shut down its operations.

 

(b)   An injury was committed by the respondents against the applicant.

 

(c)  The applicant fears further injury as testified by Kobus Coetzer, the issue of employment opportunities remains alive, and that if the interdict is not granted, the respondents will resume their unlawful protest action.

 

(d)  Importantly, Adv Le Grange did not in any way challenge this evidence of the applicant and did not put it to Kobus Coetzer, that the respondents will not persist with their unlawful action if the interdict is not granted.

 

(e)   Further, the fact that the respondents were willing to pursue their demands in an unlawful and violent manner indicates scant respect for the law and showed that they would not stop at anything to pursue their own interests.

 

(f)   In the circumstances, a reasonable apprehension exists that the respondents would continue with their unlawful protest action, if the relief sought is not granted.

 

[33]      Adv Le Grange contended that given chronology of events from 3 & 4 August 2021 to 04 February 2024, none of the respondents had been to the premises of the applicant. This averment which went unchallenged in the replying affidavit renders this requirement of the interdictory relief stillborn. Put simply, Adv Le Grange asserts that given these irrefutable timelines and the inaction of the respondents, no factual basis exists for this Court to conclude that an objective apprehension of harm existed when this application was first launched and/or will result in future harm.

 

[34]     In NCSPCA v Openshaw, the SCA restated that an interdict is not a remedy for a past invasion of rights but is concerned with present or future infringements. Put simply, the SCA reasoned that an interdict is appropriate only when future injury is feared. Where a wrongful act giving rise to the injury has already occurred as in this instance it must be of a continuing nature or there must be a reasonable apprehension that there will be a recurrence. The timelines as set out in various affidavits dispels any notion of a recurrence. Appreciably, the tenure of the communiqué dated 03 September 2021 is against the grain that the applicant harbours a reasonable apprehension that the injury occurred will continue or that there will be a recurrence. Factually there has been no recurrence. The evidence in the applicant’s case underscores this. As at the date of hearing of evidence (04 & 05 March 2024) no incidences were reported. There is no basis to find that this second pillar of final interdictory relief has been met.   

 

[35]      In addressing the final pillar namely, no other remedy, Adv Smit contends that the SAPS are not an adequate alternative remedy. What underscores this leg of the argument was that criminal charges were registered notwithstanding same; the SAPS were ineffective in neutralizing the hostage situation and had not executed any arrests. Moreover, Adv Smit reiterated the evidence of Coetzer that should the applicant not be successful further violent action will follow, given that the issue of business opportunities remains extant. This reasoning is without substance. The applicant has registered a criminal case which was to be pursued. This constitutes an alternative remedy. Should the SAPS adopt a recumbent approach, the mechanics within the hierarchy of the SAPS is to be pursued to ensure progress. The applicant is not without relief. Resultantly, an alternative remedy is available. On this final score, the applicant has not met the jurisdictional requirement.

 

[36]     The granting of an interdict is discretionary. See: United Technical Equipment Co (Pty) Ltd v Johannesburg City Council  1987 (4) SA 343 (T); Burger v Rautenbach  1980 (4) SA 650 (C) and Grundling v Beyers  1967 (2) SA 131 (W). A court would be reluctant to grant an interdict in circumstances where there is an alternative remedy available to an applicant. Such an alternative remedy may satisfactorily safeguard the right sought to be protected. Put differently, the discretion of the court is bound up with the question whether the rights of the party complaining can be protected by an alternative and ordinary remedy. See: Transvaal Property Investment Co v SA Townships Mining and Finance Corp  1938 TPD 521.

 

[37]     In respect of costs, costs follow the result. There is no basis to deviate from this principle. In the premises, I make the following order:

 

Order

 

The application is dismissed with costs.

 

 

A REDDY

JUDGE OF THE HIGH COURT

OF SOUTH AFRICA, NORTH WEST DIVISION,

MAHIKENG

 

 

APPEARANCES:

 

Attorney for Appellant          :                       Advocate D smit

 

Instructed by:                                                Nienaber& Wissing Attorneys

                                                                        Office No. 1 Tillard Street  

Mahikeng 

 

Counsel for Respondent:                            Advocate LE Grange

Instructed by:                                                Smit Stanton Attorney

                                                                        29 Warrant Street 

Golfview

Mahikeng

 

Date of Hearing                              05 March 2024

 

Date of submission of

applicant’s heads:                            25 March 2024

 

Date of submission of

 respondents’ heads:                       02 April 2024

 

Date of Judgment:                            05 December 2024

 

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