Afrisam (SA) Properties (Pty) Ltd v Elandspoort Farming (Pty) Ltd and Others (48644/2017) [2018] ZAGPPHC 580 (13 June 2018)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 48644/2017

In the matter between:

AFRISAM (SA) PROPERTIES (Pty) LTD APPLICANT

and

ELANDSPOORT FARMING (PTY) LTD FIRST RESPONDENT

HVH GOLD (PTY) LTD

SECOND RESPONDENT

YARONYAMIN

THIRD RESPONDENT

JUDGMENT

MOOSA AJ:

Introduction:

[1] This is a contempt of court application brought by the applicant against the respondents for failing to comply with an order of this court, per His Lordship Tuchten J on 04 July 2017.

[2] On 12 June 2017, the applicant launched an urgent application in this court under case number 39897/2017 for an order interdicting the first and second respondents from removing, processing and refining material from certain mine dumps, and evicting the second respondent from the mining area in which the dumps are situated.[1] The Greater Nigel Transitional Local Council being cited as the third respondent in the aforementioned proceedings. I do not intend

referring to the third respondent in my judgment, as it is not a party to the contempt proceedings that are before me.

It is noteworthy to mention that in the aforementioned proceedings HVH Gold (Pty) Ltd was cited as the first respondent and Elandspoort

Farming (Pty) Ltd as the second respondent.

[3] On the aforesaid date, the court after hearing argument handed down judgment and granted the following order against the aforementioned

respondents:[2]

(1). Pending the final determination of an action to be instituted by the applicant against the respondents, or any of them, or any of them and any other person, for appropriate relief, the first respondent HVH Gold (Pty) Ltd is hereby interdicted from removing, processing, and/or refining any material from the mine dump situated on a certain portion of portion 28 of the farm Varkensfontein 169 IR and a certain portion of portion 169 of the farm Bultfontein 192 IR in the magisterial district of Heidelberg Gauteng.

(2). The first respondent is directed to vacate the aforesaid area and remove all plant equipment and personnel therefrom within a period of three days from date hereof failing which the Sheriff or his deputy shall be authorised to do so.

(3). The summons in the action to the (sic) issued by the applicant, must be issued by the Registrar within no more than 30 days from date hereof.

(4). The costs of this application will be reserved for later determination

(5). The application by HVH Gold for a stay of this application is dismissed with costs.

[4] The applicant in this current application seeks the following relief in the following terms:

(1). That the matter be dealt with on an urgent basis in terms of Rule 6(12) of the Uniform Rules of this court.

(2). Declaring the respondents to be in contempt of the order of this Court of 04 July 2017.

(3). 3.1 Directing the first and second respondents to pay a fine of R 50 000,00 each alternatively such other sum as the court deems meet.

3.2 Commtiting the third respondent to prison for a period of 30 days alternatively such other period as the court deems meet.

(4). The orders in prayer 3 above are suspended and shall become operative and effective in the event that the respondents fail within 48 hours hereof to:

4.1 permit the applicant free and undisturbed access the area identified in the order of 4 July 2017; and

4.2 to vacate and remove all plant, equipment and personnel from the aforesaid area.

(5). The respondents are ordered to pay, jointly and severally, the one paying the other to be absolved, the applicant's costs of this application on the scale as between attorney and client including the costs of two counsel.

(6). Further and/or alternative relief.

The applicable law on contempt of court:

[5] Contempt of court has been defined as "the deliberate intentional (i.e wilful), disobedience of an order granted by a court of competent jurisdiction".[3]

[6] It is trite that an applicant in a contempt of court application must prove beyond a reasonable doubt that the respondent is in

contempt.[4]

[7] An application for contempt of court must show:

(a). That the order was granted against the respondent;

(b). That the respondent was either served with the order or informed of the grant of the order against them and could have no reasonable ground for disbelieving the information;

(c). That the respondent is in wilful default and mala fide disobedience of the order.

See in this regard Uncedo Taxi Service Association v Maninjwa and others (1998) 6 BCLR 683 (E) at 691 B-C.

[8] If it is shown that the respondent was aware of the order and disobeyed it or neglected to comply with it, the onus is on the respondent to rebut the inference that he willfully disobeyed or neglected to comply the order.[5] Even though the defaulting party may be wilful, and admittedly so, he may yet escape liability if he can show that he was bona fide in his disobedience, that is, that he genuinely, though mistakenly, believed that he was entitled to commit the act, or the omission, alleged to be a contempt of Court.

[9] It must be noted that a material failure to comply with the order has to be shown.[6] A court will not order committal for contempt, for not complying with the judgment of the court if it appears that the non-compliance is not due to willful disobedience, but rather to a misunderstanding to the true meaning of the judgment.[7]

Background facts:

[10] The first respondent is a company incorporated in South Africa and the owner of the immovable property described as Portion 28 of the farm Varkensfontein 169 IR, and referred to in more detail hereinafter. I pause to mention that the first respondent in these proceedings was cited as the second respondent in the interdict proceedings.

[11] The second respondent is a company incorporated in South Africa with it's head office and principle place of business at 39 Springs Road, Nigel. I pause to mention that second respondent in these proceedings was cited as the first respondent in the interdict proceedings.

[12] The third respondent is a businessman and director of the second respondent working at 39 Springs Road, Nigel. I pause to mention that the third respondent was not cited as a respondent in the interdict proceedings.

[13] The applicant is the Holder of a converted Mining Right, as defined in section 1 of the Mineral and Petroleum Resources Development Act 28 of 2002 ("MPRD Act") as amended, in respect of the mine dumps ("dumps") situated on a certain portion of Portion 28 of the farm Varkensfontein 169 IR ("Portion 28") and a certain portion of Portion 69 of the farm Bultfontein 192 IR, in the magisterial district of Heidelberg, which was notarially executed on 22 June 2010 and registered in the Mineral and Petroleum Titles registration Office on 25 October 2011 in terms of the Mining Titles Registration Act 16 of 1967.

[14] It has been argued on behalf of the applicant that in terms of Section 5(1) of the MPRD Act the converted mining right is a limited real right, and as such the exercise of the right may conflict with the interests of the landowner and in the case of an irreconcilable conflict, the interests of the latter are subordinated.[8]

As such the converted mining right entitles the applicant to the sole and exclusive right to mine and recover waste rock in, on and under the mining area in which the dumps are situated from 22 June 2010 until 21 June 2025 and to:

(a). enter the land to which the right relates, together with its employees, and to bring onto that land any plant, machinery or equipment and to build, construct or lay down any surface or underground infrastructure which may be required for the purpose of mining;

(b). mine for it's own account on or under the mining area for the mineral for which such right had been granted;

(c). remove and dispose of such mineral during the course of mining;

(d). subject to the National Water Act 36 of 1998, use water form any natural spring, lake, river or stream, situated on or flowing through such land; and

(e). carryout any other activity incidental to mining or production operations which does not contravene the provisions of the Act.

[15] It has been submitted by the applicant that it has exercised these rights and conducted mining operations at the mining area since 2007, supplying 20 000 (twenty thousand) tonnes per annum to the industry. It is noteworthy to mention that the applicant employs a contract security company to patrol the area three times per week and twice during the weekend in an effort to prevent illegal mining at the dumps.

[16] According to the voluminous documents of record filed in this matter it would appear that on 16 May 2017, the first and third respondents concluded an agreement permitting the third respondent through the first respondent to remove the mine dumps located within the mining area on portion 28 of the farm Varkensfontein.

[17] On 17 May 2017, the third respondent through the second respondent and Sony Mineral Mining Investments (Pty) Ltd ("Sony"), which holds 74% of the shares in the second respondent, commenced processing, removing and refining materials from the mine dumps. These activities were not confined to the dumps on portion 28 of the farm Varkensfontein, but extended to those on portion 69 of the farm Bultfontein too.

[18] The applicant viewed such conduct as unlawful and in gross infringement of it's converted mining right. Further, being advised by the second respondent's attorneys and employees that it was the second respondent that was involved in this conduct, and the involvement of Sony not being revealed at that stage.

[19] Despite a request to the second respondent to forthwith cease its unlawful activities, it refused to do so.

[20] The second respondent denied that it was processing and removing the mine dumps. It alleged that Sony was doing so and it was only refining the materials. The applicant argued that the Sony enjoyed 74 % shareholding in the second respondent and that the third respondent is the director of the second respondent and Sony.

[21] On 27 May 2017 the representative of the second respondent who deposed to the answering affidavit wrote to the applicant as follows: "I am aware that Afrisam hold (sic) rights over a certain portion and I respect that, hence why I have place (sic) a barrier wall as to not allow my people that side. Once again please send me your mining right." Further, on 22 May 2017 the attorney for the second respondent confirmed that the second respondent had concluded an agreement with the owner of the land (first respondent) to remove the material.

[22] In the circumstances, the applicant approached this court for urgent relief in the grant of an interdict. The court a quo granted an interim order pending the outcome of an action to be instituted within 30 days for final relief. Tuchten J decided the application on the balance of convenience, finding that it was overwhelmingly in favour of the applicant whose converted mining right was valid until set aside. The court dismissed the counter application because it would be "most unjust" to grant it, as it would enable the second respondent to exploit the mine dumps, which could lead to there being nothing left for the applicant.

[23] The applicant argues that it is clear that the manifest purpose of the interim order is to protect the applicant's converted mining right against unlawful interference pending the outcome of the action to be instituted.

The Parties Contentions:

[24] That applicant contends that pursuant to the grant of the court order, that on 10 July 2017, one Daneel Celliers ("Celliers") the works manager and Ishmael Mokhoka ("Mokhoka") a dump surveyor in the employ of the applicant proceeded to the dumps in order to determine the extent to which the dumps had been depleted by the second respondent. They observed that the plant and equipment had not been removed and that additional plant and equipment had been brought onto the site. They were prevented access onto the site by armed security guards who reported that the second respondent contracted them.

[25] On 11 and 12 July 2017 the aforementioned again attended at the site and observed that the plant and equipment had not been removed and that personnel were now present thereat.

[26] On 11 July 2017 at 1Oh 58, the applicant's attorney, Mr Hulme Scholes of Malan Scholes Inc, wrote to the respondents attorney, Mr Michael Karp of Cranko Karp requesting that the security guards and all plant and equipment be removed from the Mining Area subject to the applicant's converted mining right in compliance with the court order. Requesting that the first, second respondents and Sony vacate the Mining Area and that no personnel or equipment remains behind. Further placing on record that the applicant is being denied access to the Mining Area by the security guards stationed in the Mining Area.

[27] On 12 July 2017 at 13h47, a copy of the court order was served upon a Mr Thomas of PG Construction (Elandspoort Farming). The Sheriff Nigel found 2 x Mine plant screeners, 1 x Excavator and 1 x Front-end loader at the site. However, he noted that the said equipment was stationery and not in use at the time. He thereafter proceeded at 14h24 to the business premises of the second respondent and served a copy of the court order upon the third respondent.

The Sheriff noted in his return that the third respondent informed him that the second respondent had no machinery or plant equipment at the given address. Further stating that all of the second respondent's assets were removed and that the remainder of the plant equipment at the site belonged to the landowner.

The Sheriff further advises the applicant's attorneys in his return of service that he would provide a quotation from various contractors at the soonest available time in order to proceed with the removal of the aforementioned equipment. He however noted "that upon perusing the court order he was only ordered to remove the second respondent's plant equipment and personnel from the premises. In the event of the court order to be executed it must be more comprehensive to include the first respondent (in these proceedings) and all other parties found at the premises. Please provide your insight hereto".

[28] On the aforesaid date, Cranko Karp attorneys responded to the mail of Mr Scholes, advising therein per his instructions, inter alia, as follows:

(a). That the second respondent is currently abiding and will continue to abide by the decision of the court in this matter;

(b). That the first respondent had made it clear to the second respondent and themselves that it had substantial claims which total approximately R 30 000 00 (thirty million rand) against the applicant, which include inter alia environmental damage, agricultural damage as well as the unauthorised removal of waste rock and substantial amount of crusher fines outside the "permit area" for which it has never been compensated. Further advising that the applicant has never attended to any rehabilitation of any portion of land, which it has damaged.

(c). That the first respondent has taken control of it's property, as it is entitled to do, and in particular the property around the dump and is not prepared to allow any further damage to such property by the applicant. Further, that the applicant would require permission from the first respondent in order to access and egress the first respondents property.

(d). That the deadlock which has arisen can be easily resolved by a simple commercial agreement between all three parties which will be to the effect:

"(i) . your client will in future be entitled to the aggregate from the waste rock and our client will be entitled to the fine material for the extraction of the gold content;

(ii). our client will do the screening of the waste rock. This will benefit the applicant in the sense that it will have supply of rock material with four to five different sizes being supplied. The saving will be to the benefit of the applicant and cut its operational costs substantially;

(iii). the first respondent will do all things necessary for our client (second respondent in these proceedings) to attend to the aforementioned screening and for your client to receive the aggregate;

(iv). your client (applicant) will have access and egress to the property to the extent that it requires to comply with statutory requirements and/or to inspect the operations at the premises."

(e). That the applicant's attorneys prevail upon their client to meet with the relevant parties and to broker an arrangement that will be just and equitable to all parties and would result in a "win win" for all three parties.

(f). Further noting that the parties had previously co-operated with each other and that they can see no reason as to why the same mutually beneficial relationship cannot continue.

[29] On 14 July 2017, the applicant's attorneys duly responded to the respondents attorneys and placing on record that at all material times the respondents in this application were fully aware of the court order and that they were individually or collectively frustrating it's execution by preventing the applicant from accessing the Mining dumps. This is borne out by the previous correspondence received from the respondents' attorneys. Further, noting the thinly veiled and cohusive attempt by the respondents to coerce the applicant to permit the respondents to continue with the very mining activities prohibited by the order. Such attempt being rejected by the applicant. The applicant's attorneys placed on record that the respondents were in contempt of the court order, and accordingly demanding a written undertaking that they would comply, failing which the applicant would approach the court for the necessary relief.

[30] On 14 July 2017, Celliers and one Marthinus Burger ("Burger") attend at the dump and were again prevented from accessing the site. The security personnel confirmed again to the aforementioned that they worked for the second respondent and that the equipment on the site belonged to the second respondent.

[31] The applicant having failed in it's attempt to access the site once again and not been furnished with an undertaking proceeded to approach this court on an urgent basis for the current relief as set out in it's notice of motion

[32] The applicant contends in its founding affidavit:

(a). That Mr Yamin, HVH and Elandspoort have knowledge of the order and refuse to comply with it.

(b). That the aforementioned have collaborated with one another in frustrating the order and in coercing the applicant into agreeing to permit HVH to continue with the very conduct that the order prohibits.

(c). Elandspoort agreed to abide the decision of the court, but now refuses to provide applicant access to the site.

Further arguing that this conduct is wilful and ma/a fide and contemptuous of the order.

[33] It has been argued that the judgment and order granted against the second respondent on 04 July 2017 is binding upon it. Further, that the order is also binding on the first respondent as it agreed to abide by the decision of the court. It is further argued that the attorneys of the respondents were in court at the time when the order was granted, and that as soon as an interdict is granted it becomes binding and that it does not need to be served as the respondents attorneys were in court at the time when the order was granted on the aforesaid date.

[34] The first respondent argues that the court order of 04 July 2017 was not granted against the first respondent. Arguing further that whilst in civil proceedings the whole purpose is to enforce the court order on the party against whom it was granted; in criminal contempt proceedings there is perhaps scope to prosecute someone as an accomplice, but not in these proceedings.

[35] Arguing that the court order of 04 July 2017 is so worded that it is incapable of enforcement by way of civil contempt proceedings.

(a). Contending that there is clearly a disconnect between the founding affidavit and the aforesaid court order. Submitting that the founding affidavit relies on material removed from a mine dump whilst the court order deals with material removed from a mining dam. Arguing further that the available satellite images show that there is both a mining dump and a mining dam on the property

(b). Contending that the court order refers to a "certain portion" of the property which is the subject matter of the court order and the

interim interdict. Arguing that the identification of the area in question and the reference thereto makes the court order vague and ambiguous and as such cannot be enforced by way of these proceedings.

[36] The first applicant argues that the manner in which the relief pursued in these proceedings amounts to an impermissible abuse of process and/or shifting of the goalposts:

(a). In the original application no relief of any kind was claimed from the first respondent.

(b). More specifically, no relief to the effect that the applicant must be given free and undisturbed access to the area allegedly identified in the court order of 04 July 2017, either by the first respondent or by the other respondents , was sought or obtained.

(c). That the applicant is seeking an order that the first respondent must vacate the land of which it is the registered owner.

(d). That· the first respondent is required to remove all plant, equipment and personnel from the said area whilst there is simply no basis to find that the aforementioned are under the control of the first respondent.

(e). Submitting that the version of the first respondent is that such plant, equipment and personnel have been removed from the said area and stored elsewhere with the permission of the registered owner of the farm.

[37] The first respondent argues that the requirements for contempt of court have not been established against the first respondent:

(a). The relief claimed by the applicant in this matter is in the nature of final relief and accordingly the well-known Plascon-Evans rule applies.

(b). The case of the applicant against the first respondent is squarely based on some or other conspiracy or complicity in the alleged conduct of the other respondents . Such speculative theory having been denied and disposed off in the answering affidavit of the first respondent.

(c). The first respondent in its answering affidavit denies that it had any intent or will to frustrate or obstruct the implementation of the court order.

[38] The second respondent argues that no order was granted against the first and third respondents on 04 July 2017. Despite the fact that it was considering its position regarding a possible appeal and awaiting legal advice on this aspect, it took steps out of respect for the order to move equipment which was capable to be moved, given the impossible notice period of 3 (three) days, as provided for in the order. Due to the size of the equipment and the need to obtain a permit for the transportation thereof, the second respondent was simply unable to remove all the equipment from the area in question.

[39] The second and third respondents denied removing or screening any material from the mine dump as provided for in the order. It has only ever refined the gold and distributed it after it has been removed and screened from the waste material by it's holding company, which the applicant was invited to join in the main application, but failed to do so.

[40] Arguing that in terms of the interdict granted on 04 July 2017, the second respondent was not required to grant any access to the area, identified by the applicant in the main application.

[41] That the applicant has not mined or occupied the mine dump situate at Portion 28 of the Farm Varkensfontein 169 IR, being the only mine dump in which Sony and the second respondent had any involvement in.

[42] That the court order was served on the offices of the second respondent on 12 July 2017 and pursuant to receipt of the order it complied as best as it could and started moving what equipment it could from the area in question.

[43] That the applicant had never sought an order for access to the dumps or the properties in the main application and as such cannot seek such relief from the second and third respondents as they are unable to provide such access, as they are not the land owners.

[44] The aforementioned submitted that the guards and personnel were placed at the area in question by the first respondent and Sony in order to guard the property and equipment. Further denying that the aforementioned were posted thereat by the second respondent.

[45] The aforementioned respondents denied having acted in any manner so as to frustrate the court order.

[46] The third respondent denied that the interdict was applicable to him.

Evaluation and Analysis:

[47] It is noteworthy to mention that the parties introduced a tremendous amount of static and interference in this matter which has caused this court to carefully distill the matters, in order to apply it's mind to the application at hand, and to ignore all the peripheral issues that were introduced in the affidavits and the heads or argument by the parties. However, I wish to thank the parties for their sterling efforts in the preparation and argument of this matter.

[48] It is trite that an application for contempt of court must show:

(48.1) That the order was granted against the respondent:

(a). To this end it is clear in my mind that despite the fact that the first, second and the Greater Nigel Council Transitional Council were the three respondents in the main application, under case number 39897/2017, that the order was only granted against the second respondent (HVH Gold) as set out in paragraphs one and two of the aforesaid order. The order is unambiguous regarding the identification of the party against whom the order is made.

(b). To this end, it is clear that the order was not granted against the first and third respondents, in this application for contempt proceedings against the respondents.

(48.2) That the respondent was either served with the order or informed of the grant of the order against them and could have no reasonable

ground for disbelieving the information:

(a). It is clear that the court order was served on 12 July 2012 at 13h47 upon the given address of one Mr Thomas of PG Construction, as per the Sheriff's return.[9] To this end, the first respondent in it's answering affidavit denies having been served with the court order and further denies any knowledge of Mr Thomas and the existence of PG construction.

(b) . The court order was duly served upon the second and third respondents on the aforesaid date at 14h24. The order was served upon the third respondent who is the CEO of the second respondent.

(c). Despite the fact that the court order was served upon the aforementioned by the Sheriff Nigel, it is important to analyse the content of the order that was duly served upon them. In this regard I deem it important that an examination of the contents of the order be performed in order to determine as to whether this pre-condition for contempt of court has been satisfied.

• On page 6, line 25, paragraph 1 of the order in the typed judgment, which was handed in by the applicant during these proceedings, reads as follows: "HVH Gold (Pty) Ltd (second respondent in these proceedings) is hereby interdicted from removing, processing, and/or refining any material from the "mine dump" (my emphasis) situated on a certain portion of portion 28 of the farm Varkensfontein 169 IR and a certain portion of portion 169 of the farm Bultfontein 192 IR in the magisterial district of Heidelberg Gauteng".

• The court order stamped 05 July 2017 on page 47 of the founding affidavit, paragraph 1, reads as follows: "HVH Gold (Pty) Ltd (second respondent in these proceedings) is hereby interdicted from removing, processing, and/or refining any material from the "mining dam" (my emphasis) situated on a certain portion of portion 28 of the farm Varkensfontein 169 IR and a certain portion of portion 169 of the farm Bultfontein 192 IR in magisterial district of Heidelberg Gauteng".

• The court order stamped 10 July 2017 on page 45 of the founding affidavit, paragraph 1, reads as follows: "HVH Gold (Pty) Ltd (second respondent in these proceedings) is hereby interdicted from removing, processing, and/or refining any material from the "mine dumps" (my emphasis) situated on a certain portion of portion 28 of the farm Varkensfontein 169 IR and a certain portion of portion 169 of the farm Bultfontein 192 IR in magisterial district of Heidelberg Gauteng".

• However, the court order that was served upon Mr Thomas of PG Construction and the second and third respondents on page 62 stamped 05 July 2017 reads as follows: "HVH Gold (Pty) Ltd (second respondent in these proceedings) is hereby interdicted from removing, processing, and/or refining any material from the "mining dam" (my emphasis) situated on a certain portion of portion 28 of the farm Varkensfontein 169 JR and a certain portion of portion 169 of the farm Bultfontein 192 IR in magisterial district of Heidelberg Gauteng".

It is clear form the aforementioned that the order that was served upon the respondents interdicted HVH from removing, processing, and/or refining any material form the mining dam and not the mine dumps. In this regard, the respondents have argued that there was no reason to disbelieve the order, as

there is a mine dump and a mining dam on the aforesaid portion.

(48.3) That the respondent is in wilful default and mala fide disobedience of the order.

(a). Having due regard to the import of the court order it is clear that it was not made against the first and third respondents. As such, it has been argued that the aforementioned cannot be held in contempt of the court order, as it was not granted against them.

(b). As regards, the second respondent, it has been argued that upon service of the order, it has taken steps to comply with the order. The applicants representatives attended at the premises on 10 July 2017 and observed that the equipment had not been removed, additional equipment had been brought onto the site and were advised by the security guards that the second respondent contracted them. On 11 and 12 July the applicants' representatives once again attended and observed that the plant and equipment had not been removed.

Save for the hearsay report by the security guards regarding their employer, the applicant has failed to provide other evidence to support the allegation that the equipment thereon had belonged to the second respondent and not to Sony or Mr Thomas of PG Construction.

[49] Save for the hearsay of the security guards, the applicant has not placed any other evidence before this court to prove beyond a reasonable doubt that the equipment that was observed in the mining area on 10, 11 and 12 July had in fact belonged to the second respondent. The applicant is unable to dispute the averment of the second respondent that it had attempted to comply with the court order.

[50] I find it strange that the applicant's attorney did not proceed further with the removal of the equipment by the Sheriff having due cognisance to paragraph 2 of the court order. It is clear from the documents filed on record that despite the Sheriff advising that the court order needed to be more comprehensive and requesting insight therein, the applicant's attorneys lay supine with the removal by the Sheriff and proceeded to engage in an exchange of correspondence with the respondents attorneys and ultimately launching this application, without exhausting the remedies as provided for in the court order.

[51] It is clear that there is a dispute between the parties regarding the converted mining right of the applicant and which was to be determined in due course by an action to be instituted by the applicant against the respondents et al in this court within 30 days of the grant of the interdict. However, it would appear that the thrust of this contempt application is to ensure that the applicant enjoys access to the mining area. In my view, it is clear that the applicant enjoys the benefit and protection in terms of it's converted mining right as regards access to the mining area. Further, it is clear that it has the necessary remedy in terms of an administrative action against the respondents.

[52] It would appear from a perusal of the various affidavits filed in these proceedings and arguments raised that there are several disputes of fact, inter alia, as follows:

(a). There is a dispute as to whether the correct order was served upon the respondents. It is clear from the Sheriff's return that the incorrect court order was served upon the respondents.

(b). The applicant avers that the court order included the first respondent, which averment is vehemently denied by the first respondent.

(c). There is·a dispute between the parties as to whether the order was of an interim order, interdicting only HVH, whilst the second and third respondents contend that the order granted has final effect.

(d). There is a dispute regarding the identification of the portions as per the answering affidavit of the first respondent.

(e). The first respondent disputes the ownership of the dumps in question and contends that the order was of an interim nature as it contemplated the issue of summons by the applicant so that the dispute may be resolved.

(f). There is a dispute as to whether the equipment, vehicles and plant have been moved and relocated to another part of the farm. Further whether the movables in question have been moved.

(g). There is a dispute as to whether there was collaboration between the owner of Elandspoort (first respondent) on the one hand and Yaron Yamin and any of his companies with a view to circumvent the court order of 04 July 2017. To this end, the applicant has failed to produce any evidence to support such allegation.

(h). The respondents aver that the conduct which is complained of in the founding affidavit does not fall squarely within the scope and ambit of the court order of 04 July 2017.

(i). There is a dispute as to whether the converted mining right in question gives the applicant any right or entitlement to mine, process and recover any of the material contained in the old mine dumps, and it is for this reason that only an interim order was granted so as to enable the applicant to institute the necessary legal proceedings.

(j). The first respondent denies that Mr Thomas of PG Construction is known or linked to the first respondent.

(k). The return of service does not indicate the ownership of the equipment that remained on the property as belonging to the first respondent, observed by the Sheriff when he attended at the mining area. It is argued that he only received hearsay information from the third respondent

(l). There is a dispute as to whether Mr Michael Karp had acted for the first respondent or one Hurter. Further, whether he had received specific instructions from Elandspoort.

(m). There is a dispute regarding the reason as to why access was denied by the first respondent and whether Mr Michael Karp had conveyed a stance to the applicant on behalf of the first respondent of his own accord.

(n). There is a dispute as to whether the court order dated 04 July 2017 had dealt with the granting of access to the site by the applicant.

[53] Counsel for the applicant in his heads of argument submits that in the event that the court finds that there are disputes of fact that are incapable of resolution on the papers, the applicant will request those issues to be referred to oral evidence. Counsel for the second and third respondents also contends that there is a dispute of fact in respect of the compliance with paragraph 2 of the court order.

[54] The general principles with regard to applications to refer motion proceedings to oral evidence was set out in Kalil v Decotex (Pty) Ltd and Another[10] where the Court said the following:

'The applicant may, however, apply for an order referring the matter for the hearing of oral evidence in order to try to establish a balance of probabilities in his favour. It seems to me that in these circumstances the Court should have a discretion to allow the hearing of oral evidence in an appropriate case.... Naturally, in exercising this discretion the Court should be guided to a large extent by the prospects of viva voce evidence tipping the balance in favour of the applicant. Thus if on the affidavits the probabilities are evenly balanced, the Court would be more inclined to allow the hearing of oral evidence than if the balance were granted against the applicant. And the more the scales are depressed against the applicant the less likely the Court would be to exercise the discretion in his favour. Indeed, I think that only in rare cases would the Court order the hearing of oral evidence where the preponderance of probabilities on the affidavits favoured the respondent.'

[55] It has been held in many cases that an application to refer a matter to evidence should be made at the outset and not after argument on the merits.[11]

[56] It is clear that as a general principle, the Court has a discretion to decide whether to refer motion proceedings to oral evidence where there is a dispute of fact that needs to be resolved. In exercising this discretion, a litigant applying for a matter to be referred to oral evidence should at least advance reasonable grounds to support this discretion being exercised in favour of the litigant. Proper and formal application must be made in this regard. It should at least be set out what evidence presented by the other litigating party in the affidavit is lacking in credibility and how the referral to oral evidence will resolve this. The Court should consider to what extent this referral to oral evidence could tip the scales in support of the litigant seeking referral. The final issue is convenience to the Court.

[57] The applicant has unfortunately not made out a case for the matter to be referred to oral evidence in terms of the above principles. The applicant has not made a proper application for this relief, and has simply asked for this to happen in heads of argument. The applicant has further not sufficiently motivated as to which of the contentions of the respondents in their answering affidavits could be successfully discredited by a referral to oral evidence and what kind of evidence would be led to establish this. Considering the nature of the application before me, it is simply not convenient to delay its determination any further by a referral to oral evidence. The applicant has simply not convinced me to exercise the wide discretion that I have in this regard in its favour.

Findings:

[58] At the outset of this matter it was agreed that it should be dealt with as one of urgency. Accordingly, this matter proceeded on this basis.

[59] I am satisfied that the court order of 04 July 2017 was not granted against the first and third respondents and it was only against the second respondent.

[60] After a careful consideration of the totality of the documentary evidence before me and the arguments raised by the parties, I am not satisfied that the applicant has proved beyond a reasonable doubt that the respondents are in contempt of the court order dated 04 July 2017.

Costs:

[61] Counsel for the first respondent has argued that the allegations that have been leveled against his client are serious and reckless having due regard to the fact that there is no proper foundation in empirical fact to sustain the specious allegations. Further that the first respondent was accused of criminal conduct in the absence of any direct evidence and in the absence of even circumstantial evidence, which could have explained such an inference, and only on the basis of hearsay and rumours and speculation.

[62] That the impermissible expansion of the relief pursued in these proceedings was with respect clearly opportunistic and an attempt by the applicant to abuse the process of the Court in order to gain an advantage over the first respondent in the historical dispute between them over the regulation of access to the property for the purpose of mining operations; and which a dispute the resolution of which Section 54 of the MPRD Act makes provision for.

[63] That the first respondent was forced to come to court and oppose this matter under circumstances where there is no good reason as to why the aforementioned should be out of pocket.

[64] That it is outrageous that the applicant knowing full well that the first respondent is the registered owner of the land, seeks an order that the aforementioned be forced to vacate its own land.

[65] As such arguing that punitive costs be awarded against the applicant as between attorney and own client, such costs to include the cost of two counsel to the extent that the counsel were employed.

[66] The legal representative of the second and third respondents argued that the court award punitive costs against the applicant on the attorney and client scale having due regard to the vexatious nature of the application.

[67] There is no reason as to why costs should not follow the result.

[68] In the result. I make the following order:

The application is dismissed with costs, on the scale as between attorney and own client, including the costs of two counsels to the extent that the counsel was employed.

C I MOOSA

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION

PRETORIA

Counsel for Applicant:

Mr G D Wickins

Instructed by:

Mr M Gumede

Malan Scholes Inc.

c/o K.E.B. De Vries Inc 2

20 Lange Street

Nieuw Muckleneuk

Pretoria

Tel: 012 - 4528900

Counsel for 1st Respondent:

Mr MM Oosthuizen SC

Instructed by:

Cranko Karp Inc.

c/o Savage Jooste & Adams Inc.

141 Boschoff Street

Tel: 012 - 4528200

Attorney for 2nd & 3rd Respondents

Mr A Christophorou

Instructed by:

Biccari Bollo Mariano Inc.

112 Oxford Road Houghton Estate

Tel: 011 - 6289300

cbollo@bbm law.co .za

[1] Founding affidavit-Page 7,paragraph 8

[2] Judgment page 6,line 7 line 14

[3] Consolidated Fish Distributors (Pty) Ltd v Zive 1968 SA 517 ©

[4] Fakie NO v CC ii Systems (Pty ) Ltd 2006 (4) SA 326 (SCA)

[5] Puto Ltd v TV & Radio Guarantee Co (Pty) Ltd 1985 94) SA 809 (4) at 836 D-E

[6] Southey v Southey (1907) EDC 133

[7] Botha v Dreyer (1880) 1 EDC 74

[8] Minister of Minerals and Energy v Agri South Africa (2012) 3 ALL SA 266 (SCA) at 25

[9] Applicant's founding affidavit - Annexure GEJ 7, page 55 and 61

[10] 1988 (1) SA 943 (A) 979 F - I

[11] Di Meo v Capri Restaurant 1961 (4) SA 614 (N) at 615H - 616A