Distressed Mining Community of Ogies v Glencore Operations South Africa (Pty) Ltd and Others (12014/028477) [2019] ZAGPJHC 226 (8 July 2019)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NUMBER:12014/028477

In the matter between:

DISTRESSED MINING COMMUNITY OF OGIES Applicant and GLENCORE OPERATIONS SOUTH AFRICA (PTY) LTD 1st Respondent ANGLO-AMERICAN OPERATIONS LIMITED 2nd Respondent SOUTH 32 SA COAL HOLDINGS 3rd Respondent MINISTER OF MINERAL RESOURCES 4th Respondent MEC FOR MINERAL RESOURCES, MPUMULANGA 5th Respondent REGIONAL MINING DEVELOPMENT & ENVIRONMENTAL COMMITTEE 6th Respondent PUBLIC PROTECTOR OF SOUTH AFRICA 7th Respondent SOUTH AFRICAN HUMAN RIGHTS COMMISSION 8th Respondent EMALAHLENI LOCAL MUNICIPALITY 9th Respondent MINISTER OF ENVIRONMENTAL AFFAIRS 10th Respondent

Heard: 01 November 2018

Delivered: 8 July 2019

Summary: (common law of nuisance - Interdict to compel mining company to install dust and noise monitoring systems and to abate the alleged

nuisance – negative effects of blasting not exceeding statutory limits on dustfall and airblast except in a few incidents – those exceptions insufficient in severity and frequency relative to blasting activity to warrant a finding of an actionable nuisance - water pollution by mining operations not substantiated – application for interdict dismissed)

JUDGMENT

LAGRANGE J

Introduction

[1] This application was first launched on 3 March 2017 on an urgent basis as the first part (part A) of a two-part application. Part B of the application is a review application seeking to set aside the decision of the Minister of Mineral Resources (‘the fourth respondent’) to grant the First Respondent (’Glencore’) prospecting and mining rights within a 10 km radius of Ogies Police Station.

[2] The Applicant is an unincorporated voluntary association consisting of approximately 26 residents of the town of Ogies. The First, Second and Third Respondents are all coal mining companies engaged in open cast mining operations within a 10 km radius of the town, as measured from the Ogies police. More particularly, the coal mining operations by the respondents are conducted at the following mines:

2.1 the first respondent operates the Tweefontein and Goedgevonden mines which conduct blasting operations 9 and 1.5 km from the town respectively;

2.2 the second respondent operates the Zibulo and Weltevreden mines which conduct blasting operations 1.8 and 2 km from the town respectively, and

2.3 the third respondent operates the Klipspruit and Khutula mines which conduct their blasting operations 3.9 and 4.4 km from the town respectively.

[3] When the matter came to Court on 11 April 2017 an Order was made by agreement providing, inter alia, that the urgent application under part A be removed from the roll for the purposes of re-enrolment as a special urgent application, with further affidavits and heads of argument to be filed by 12 May 2017. The order also recorded that the applicants had withdrawn the application against the second and third respondents, and a formal notice of withdrawal was filed on 3 April 2017.

[4] After the applicants had filed their replying affidavit, they filed a further supplementary founding affidavit, to which Glencore responded with its own supplementary answering affidavit. The applicant replied to the supplementary answering affidavit and attached its amended prayer for relief, which is discussed below.

[5] The matter lay in abeyance from the end of May 2017 and it was only a year later on 15 May 2018 that the applicant made a request for a special allocation on the roll on the basis of the length of the pleadings. No mention was made in its request of urgency still being an issue. Although Glencore originally disputed the urgency of the application, arguably with good reason, by the time the matter came to be heard it no longer opposed the application on that ground. In truth the issue of urgency had fallen away in the course of time.

[6] It should also be mentioned that the MEC for Public Works, Roads and Transport, Mpumulanga Province purportedly applied to intervene in the matter. That application was not opposed by the applicant but was opposed by Glencore. Glencore also challenged the authority of the person purportedly launching the application to act on the MEC’s behalf. No replying papers were filed on behalf of the MEC and the MEC was not represented at the hearing and appeared to have abandoned the application to intervene.

Relief sought

[7] Initially, the substantive relief sought by the applicants under part A of the application was a final order:

7.1 directing the first ,second and third respondents to abate the nuisance created by the mining activity by forthwith ceasing/terminating all mining operation/activities and matters incidental thereto within a radius of 10 km from Ogies police station, and

7.2 directing the same respondents to immediately stop all noise pollution by stopping all blasting activities and the activation of sirens within a radius of 10 km from Ogies police station.

8. Subsequently[KN1] , after withdrawing the application against the second and third respondents and only when they filed their supplementary replying affidavit, the applicant sought to amend their notice of motion seeking very specific and different relief under part A, pending the finalization of the application under part B. No affidavit was filed in support of the amended notice of motion, so the factual basis for the amended relief must be found in the pleadings already filed. The amended relief now sought in this application may be summarized as an order compelling Glencore:

8.1 to reduce the air and noise pollution it allegedly creates by reducing its blasting activities to below 125 dB, as measured by six seismographs located at various specific locations in Ogies;

8.2 to install an additional seismograph and maintaining the seismographs in question and providing the applicants with calibration certificates from the seismographs at six weekly intervals;

8.3 to cease blasting activity between 7 PM and 7 AM daily and not to activate any sirens during the same time interval;

8.4 to obtain expert advice and install automated dust suppression technology at the site of both its Goedgevonden and Tweefontein mines, which must be equipped with systems to monitor their activation and deactivation;

8.5 to provide the applicants with regular reports on the utilization of the dust suppression technologies, and

8.6 to provide 10,000 litres of fresh drinking water to water storage tankers located at the Mosque in Ogies.

Glencore did not oppose the amendment of the notice of motion.

[9] In order to contextualise the above relief it must be mentioned that the relief sought in the main application [Part B] is for an order, in summary, to:

9.1 review and set aside the minister of mineral resources’ decision to grant prospecting and mining rights to Glencore within a 10 km radius of Ogies;

9.2 declare Glencore’s Environmental Management Plan [EMP] or Environmental Impact Assessment [EIA] to be non-compliant with Section 39 of the Mineral and Petroleum Resources Development Act 28 of 2002;

9.3 declare that the Minister of Mineral Resources arbitrarily and irrationally, or by misdirection, approved Glencore’s EMP or EIA;

9.4 declare that the applicant’s rights to just administrative action under Section 33 of the Constitution Act 108 of 1996 (‘the Constitution’) were infringed by not being afforded a hearing before granting the said mineral rights to Glencore;

9.5 review various steps taken in the process of applying and recommending the approval of Glencore’s EMP or EIA by the sixth respondent, the Regional Mining Development and Environmental Committee;

9.6 order the seventh respondent, the Public Protector, to investigate and report on the circumstances surrounding the granting of the mining rights to Glencore, and

9.7 order the eighth respondent, the South African Human Rights Commission, to investigate and seek redress for “human rights violations” inflicted upon the applicants by Glencore.

[10] Apart from the application in Part A, there is also an application for condonation for the late filing of Glencore’s answering affidavit in the original urgent application. The applicants oppose Glencore’s condonation application.

Condonation application

[11] The original notice of motion was served on Glencore’s attorneys on 13 March 2017. Glencore filed its answering affidavit

five days late on 5 April 2017, having served it by email on the applicant’s attorneys on 4 April 2017. On the same day that

Glencore filed its answering affidavit, the applicant filed a notice under rule 30 A calling on Glencore to remedy its failure to file the answering affidavit by 29 March 2017, within two days.

[12] The applicant’s notice of motion stipulated that Glencore should file its notice of opposition within two days instead of the normal five and file any answering affidavit within nine court days, bearing in mind the holiday on 21 March, instead of the usual 15 days. This would have given the applicant 7 days to file a replying affidavit before the matter was heard on 11 April 2017.

[13] At that stage the interim relief sought by the applicant would effectively have stopped Glencore from conducting any mining

operations within a 10 km radius of the town. The applicant’s founding papers ran to 286 pages. The founding affidavit was deposed to on 21 February 2017 and the notice of motion was signed a week later and then issued on 3 March but only served on Glencore’s

attorneys on 13 March.

[14] It is true that the applicant’s attorney did make Glencore’s attorneys aware of the application on 6 March 2017, but did not forward a copy of the application to it at that stage. By dint of their own efforts Glencore’s attorneys obtain a copy of the application from the registrar of the court on 8 March 2017. When the served copy of the application was received on 13 March, it became apparent that the notice of motion filed with the registrar was not the same as the one served on Glencore. The notice of motion in the court file required Glencore to file its notice of opposition by 8 March, whereas the date had been altered in manuscript on the served version to read 13 March. Paragraphs 11 and 12 of the prayers sought in part B had also been altered to include additional relief not mentioned in the notice of motion filed with the registrar.

[15] Other than stating that enrolling the matter in the ordinary course would have meant that the application under part A would only be heard some seven or eight months later, the applicant provided no explanation why the expedited timetable it set for finalising

pleadings was necessary or indeed why the matter had to be heard on 11 April rather than a week or a fortnight later. There is no evidence that it suffered any prejudice other than not having enough time to file its replying affidavit in time for the date of the hearing, which it had chosen. The serious implications of the urgent relief sought at that stage and the scope of the issues Glencore had to address in order to oppose the application did not warrant the abbreviated time periods set by the applicants, particularly when the founding affidavit was only deposed to six weeks after the applicant had initially consulted its attorney, Mr Z Omar. The applicant also proceeded out its leisure taking another eight days before issuing the application.

[16] In the circumstances, I am satisfied that Glencore’s delay was insignificant and the applicant suffered no prejudice, except being hamstrung by its own unnecessarily attenuated timetable it had determined for the hearing of the application.

Legal principles

[17] Albeit that the applicants seek the above relief pending the outcome of the sweeping reviews and various constitutional challenges in part B of the application, the relief sought in that application is quite independent of the relief sought in this application, which is founded squarely in the common law of nuisance. In effect, they seek final relief in the form of specific measures to be imposed on Glencore to be taken pending in the determination of their claim for more comprehensive relief under Part B. The merits of their claim for relief under Part A is not related to the merits or prospects of success in their claim for relief under Part B.

In order to obtain relief in this application, the applicants must therefor satisfy ordinary requirements for an order of final relief namely they must prove '… a clear right, injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy'.[1]

[18] The basic principle underlying the law of nuisance has been expressed thus:

“(A)lthough an owner may normally do as he pleases on his own land, his neighbour has a right to the enjoyment of his own land. If one of neighbouring owners uses his land in such a way that material interference with the other's rights of enjoyment results, the latter is entitled to relief.”[2]

[19] In the same case, the court elaborated further:

“ Implicit in the judgments to which I have referred is the reservation that the 'interference' with the neighbours right of enjoyment must be material or substantial, for it goes without saying that, especially in contemporary conditions, some discomfort or inconvenience or annoyance emanating from the use of neighbouring property must be endured. Indeed, the Chief Justice expressly excepted (at 110) [of the judgment in Regal v African Superslate (Pty) Ltd 1963 (1) SA 99 (A)]

''die gewone, wederkerige laste wat die een buurman van die ander moet verduur''.

The difficulty in cases of this nature lies in determining the level at which a disturbance which results from the contiguity of two properties, each of which is a potential source of disturbance to the other, ceases to be a ''to-be-expected-in-the-circumstances'' interference with rights of enjoyment of property and becomes an unwarranted and actionable interference. This is largely a question of fact and of judgment and opinion, but there are guiding considerations which should be borne in mind in the interests of fairness to both parties, many of which considerations have frequently been stated in South African decisions, borrowing freely from judgments in the English courts. The factors which have been regarded as material in determining whether the disturbance is of a degree which renders it actionable, include (where the disturbance consists in noise) the type of noise, the degree of its persistence, the locality involved and the times when the noise is heard. The test, moreover, is an objective one in the sense that not the individual reaction of a delicate or highly sensitive person who truthfully complains that he finds the noise to be intolerable is to be decisive, but the reaction of ''the reasonable man'' - one who, according to ordinary standards of comfort and convenience, and without any peculiar sensitivity to the particular noise, would find it, if not quite intolerable, a serious impediment to the ordinary and reasonable enjoyment of his property.” [3]

[20] Another element of an unlawful encroachment on another’s property is the persistence of the encroachment or its repetitive character. See East London Western Districts Farmers' Association And Others v Minister of Education and Development Aid and Others [4] and Rademeyer and Others v Western Districts Council and Others [5] ,Obviously, that must also be considered relative to the period over which the possibility of encroachment exists

Merits

[21] The nuisance factors complained of in the applicant’s founding affidavit, which are pertinent to the amended notice of motion, is that the blasting activities of Glencore have the following consequences:

21.1 creating vibrations which instil fear, unsettlement and often trauma in the children and people of Ogies;

21.2 cause air and dust pollution, which has led to increase in respiratory illnesses amongst residents;

21.3 the loud, unexpected sound of the ‘screeching’ and ‘frightening’ warning sirens preceding blasting aggravates the situation;

21.4 pollute and contaminate water, which has the effect of depriving worshipers at a mosque and learners at a madrasah of access to running water.

The founding, answering and replying affidavits

[22] Owing to the supplementary affidavits filed after 11 April 2017, it is convenient to separate the averments relating to the narrow relief now sought as they arose in the founding papers and then to consider any additional material arising from the supplementary papers.

[23] Support for the factual allegations on which those claims were based in the founding affidavit was provided in the form of:

23.1 alleged admissions by Glencore to being the cause of various elements of the nuisance mentioned above, contained in a minute of a meeting held on 19 July 2016 at Anemerska Guesthouse typed on Glencore’s letterhead;

23.2 An averment that the blasting activities cause vibrations having the effect of instilling a sense of fear, unsettlement and often trauma in the residents of Ogies, which is aggravated by the screeching and frightening sound of the blast warning sirens;

23.3 colour photographs allegedly depicting the release of smoke and dust into the air caused by Glencore’s blasting;

23.4 an affidavit by Mr HJ Greyling, who is described as a building contractor, building developer, plumber, carpenter, bricklayer and cabinetmaker, former environmental controller on a mine, with knowledge in mining and military explosives and aware of the damage caused to buildings and the cause of such damage; and

23.5 an affidavit by Dr AG van Tonder, a doctor who has been serving the Ogies community for approximately 30 years confirming the contents of the letter by another medical practitioner, Dr I Ranchod.

[24] Further, the averments made regarding the supply of fresh water to the mosque are only dealt with in an annexure to a supporting

affidavit deposed to by Mr A Omar, a lawyer employed at the applicant’s attorneys of record. The annexure describes various

photos attached thereto. In particular it describes a photo taken showing coal heaps near a road to Leandra, which is now closed. He states:

“Clearly visible is the muddy contaminated water surfacing in the trenches surrounding the mining area. This area is less than 1 km from the school ground and residential area and less than 500 m from the mosque. The water supply and flow is interrupted to the extent that there is no water supply at the mosque, madrasah and residential houses.”

Further in the same annexure he describes another picture showing a water storage drum from a borehole on a guesthouse premises in the residential area and states that this is the “means of water supply most residents employed since there is no drinking water supply from the municipality. The use of boreholes for drinking water will stop when full mining activity takes place at point 5, 700 m away, just as the mosque and Madresah, and Ogies CBD businesses are deprived.”

[25] In summary, Glencore’s answering affidavit responded in the following terms to these allegations:

25.1 The minute of the meeting between two representatives of Goedgevonden and two members of the Ogies community simply recorded concerns brought forward by residents, which inter alia complained of a “few occurrences” where blasting had taken place after sunset in their view and complained of excessive

dust coming from the mine after blasting. The minute also records suggestions put forward by both parties, which included: notification

of the guesthouse owner by SMS of blasts; that Goedgevonden would ensure that blasting occurred within legal time frames; the blasting

siren would not be prolonged, and vibration and dust monitoring instruments should be installed at the guesthouse. The blasting

activities conducted by Glencore have not been conducted. [KN2]

25.2 Copies of photographs adduced at that meeting by community representatives in support of their claims about dust were not given to Goedgevonden representatives and the photographs attached to the founding affidavit were taken after 20:00 on 19 July 2016, by which stage Glencore points out it would have been already dark.

25.3 Greyling’s affidavit, which was primarily concerned with the alleged damage caused by blasting operations to buildings in Ogies, insofar as it relates directly to the more circumscribed relief now claimed by the applicant, contains the following averments:

25.3.1 large quantities of dust and chemicals are flung out of the mine during blasting explosions and from his “observation” the mine is less than 1000 m from residences, the local school and religious buildings;

25.3.2 the blasts are excessive and he estimated they would record approximately 7 on the Richter scale;

25.3.3 on average there was seven or eight blasts per day, and

25.3.4 “conventionally”, mining activity is restricted to a minimum of 10 km away from residential areas.

Glencore denies that Greyling has the necessary qualifications to draw the conclusions he did, which he claims is derived largely on his experience in the mining industry over many years in which he acquired, inter alia, a knowledge of mining explosives and the effect of blasting on built structures. Glencore points out that Greyling’s evidence that blasting forces are equivalent to 7 on the Richter scale appears to be wildly exaggerated when it is considered that an earthquake which devastated Christ Church in New Zealand in 2011 registered 6 on the Richter scale, whereas Greyling attributes cracks in some buildings to a more potent explosive force. The applicant submitted in reply that Glencore did not deny specialist knowledge of Greyling.

It is true that Glencore did not deny his averments as to how he gained the varied experience he relates in his affidavit, but the point made by Glencore was that other than his own say-so , nothing else validates his experience or capacity to give an expert opinion on the subject matter at hand. It is noteworthy in this regard that, no further affidavit from Greyling dealing with the criticism of his allegedly exaggerated assessment of blast forces was filed. Moreover, Greyling’s opinion’s are offered without any insight as to the methodology he employed or the factors he considered in arriving at his opinion.

In relation to the distance at which blasting takes place Glencore avers that no blasting currently takes place closer than 1.5 km from the edge of Ogies town.

25.4 In response to the claim that the blasting is excessive and that it occurs at all times of the day and night, Glencore’s response was the following:

25.4.1 blasting occurs in the mid to late afternoon and, “very exceptionally” at night;

25.4.2 it does not occur seven or eight times a day but only once a day, though several blasts are usually timed to occur within a few seconds of each other;

25.4.3 similarly, the warning sirens are only used once a day when blasting takes place and the only effective way of warning those persons who might be physically threatened by their proximity to the blast.

25.5 In support of its assertion that the force of the blasts is not excessive, Glencore attached reports by an independent company, Blast Management and Consulting on the results of monitoring ground vibration and air blast in the vicinity of the mine using seismographs. The recommended South African air blast limitation level is 134 dB (decibels). During the period from 29 November to 31 December 2016 only three blast events were recorded at the seismograph placed at the Anemerska guesthouse in Ogies. In all three cases the blast level was below the 134 dB level.

25.6 Other locations where seismographs were placed were a farmhouse, mosque, mine offices and a bus depot of Phola coaches. In a further report, the seismographs were triggered by any blast where the air blast measured on the monitors from 3 January to 25 January 2017 was triggered at a level of 125 dB or 127 dB in the case of the farmhouse. Of the 20 blasting events registered, there were only two occasions when the blast registered at the mosque exceeded 134 dB, namely 134.9 dB and 134.7 dB. The only other location to register an air blast force above the limit was the farmhouse which is situated in the mining area itself.

25.7 Further tests at the same sites from 26 February until 25 March 2017 showed 30 blasts which triggered the 125dB limit on the monitors. Of those only two of the blasts registered an air blast above the 134dB limit, which were at Phola Coaches premises, namely at 136.20 and 135.70. By contrast the readings of both those blasts at Anemersk guesthouse were 128.20 dB and 131.70 dB respectively.

25.8 Similarly, the ground vibration levels were monitored. The recommended ground vibration limits are 25 mm/s (millimeters per second) for houses of proper construction and 12.5 mm/s for houses of less than proper construction. The results of the same blasts measured at the guesthouse did not exceed 0.6 mm/s. The monitoring report for January 2017 based on the five seismographs mentioned did not record ground vibration levels exceeding 2.1 mm/s.

25.9 In response to the affidavit by Dr Van Tonder, in which he certifies that “following the high degree of blasting activity carried out by the mining companies in the Ogies and surrounding areas there has been an increase in the degree of air pollution”, Glencore does not dispute the increased incidence of respiratory illnesses reported by the doctors, but contends that the statement does not specifically identify Glencore as the only cause of the alleged air pollution.

25.10 Moreover, Glencore provided reports produced by an independent expert company of dust levels recorded at seven different locations around the mine on 16 January and 20 February 2017. The monitor located halfway between Goedgevonden and Ogies recorded dust levels of 161 and 125 mg/m2 respectively. By comparison, regulation 3 of the National Dust Control Regulations (No R 827, gg 36974 dated 1/11/13) published under the National Environmental Management: Air Quality Act, 39 of 2004 (‘the Air Quality Act’), stipulates that the

acceptable dust fall rate for a residential area may not be greater than 600 mg/m2.

Glencore also points out that the mines are not the only potential source of air pollution within the 10km radius of Ogies, which also includes a coal-fired electricity generation plant at Kendal.

25.11 At this juncture, it should be noted that Section 14 of the Air Quality Act requires the appointment of national, provincial and municipal air quality officers responsible for air quality management for the areas within their remit. In terms of the regulations these officials may require a person to undertake a dustfall monitoring programme under certain circumstances, including where a person conducts an activity that gives rise to dust that may exceed the dustfall maxima in the regulation. Where the levels are exceeded, the person exceeding the dustfall levels is obliged to develop a dust management plan for the air quality officer’s approval and failure to implement that plan is a criminal offence carrying a maximum penalty of a R 5 million fine or five years imprisonment.

25.12 On the allegation of water contamination at the mosque, Glencore disputes the claim that the mosque and madrasah have no running water owing to pollution and contamination from Goedgevonden’s mining activities. It acknowledges that the buildings in question have access to a borehole and tank but disputes that any evidence has been produced or found to substantiate the statement made in the schedule to Mr Omar’s affidavit. Glencore states that it collects and treats waste mine water through its water treatment plant which is then discharged into the Zaaiwaterspruit and is regulated by a separate water use license held by Glencore.

[26] Apart from the defence of Greyling’s expertise, the replying affidavit did not deal further with the limited matters under consideration in this application.

The supplementary papers

[27] The court order of 11 April 2017,inter alia, permitted the applicant to file a supplementary founding affidavit if it wished to, having had an opportunity to inspect mining licenses and environmental authorizations pertaining to Tweefontein and Goedgevonden at the offices of Glencore’s attorneys. Likewise, provision was made for Glencore to file a supplementary answering affidavit and for the applicant to file a reply thereto. As mentioned, it was only when the applicant filed its replying affidavit that it announced its intention to amend its notice of

motion in respect of the first part of the application. The court will only consider those parts relevant to the relief sought will leave in the amended notice of motion.[KN3]

[28] In the applicant’s supplementary answering affidavit it seeks to augment its argument about the impact of blasting by referring to a summary of a report on blasting by a blasting expert, in [KN4] Mr AJ Rorke, who conducted an assessment in May 2005 to provide an opinion on estimates of likely vibration and air blast amplitudes based on computer models and empirical equations derived from measurements at other sites. The summary stated his opinion that:

“The highest negative impact risk will occur from air blast at buildings within 2000 m of any blasting. The negative impact is likely to cause distress to the people living in these properties. There is a risk that air blast and vibration amplitudes could be high enough to present a possible risk of damage to structures. However with management controls in place, the negative impact from blasting will be low in this area.”

The applicant submits that the previous statement by Glencore that no blasting takes place closer than 1500 m from Ogies town clearly

demonstrates that such blasting is within the 2000 m range mentioned by Rorke.

[29] Glencore denies that Rorke’s 2005 assessment can form a reliable indication of the effects of existing blasting technology

and methods currently used at Goedgevonden. Firstly, his report was written when so-called ANFO explosives were used whereas currently a modern emulsion blend of explosives is used, which substantially reduce the volume of exploding air resulting in much lower air blast impacts and associated noise and dust, while releasing more of the energy of the explosion into the surrounding rock causing better fragmentation. Secondly, sealing of blast holes has markedly improved by filling the top 5 m of the blast home with aggregate or slack which further reduces the air blast and prevents uncontrolled scattering of rock fragments and inhibiting transmitted vibrations. This technique has also allowed the mine to reduce the amount of explosion required per blast hole. Lastly, in 2005 pyrotechnic firing devices caused several blast holes to frequently explode simultaneously which created high vibration and air blast impacts. The current method uses electronic sequencing so that the simultaneous firing of blast holes does not occur thereby preventing blast forces compounding each other.

[30] Glencore does not dispute that blasting does occur within the 2000 m range mentioned by Rorke but denies that is unlawful and notes that in any event Rorke’s assessment acknowledges that with controls in place the negative impact would be low in that area.

[31] Further, the applicant submits that Glencore admitted in its answering affidavit that blasting takes place at all times of the day and night but that air blast measures were only taken by it between the hours of 7 AM to 7 PM. The applicant bases this simply on the fact that Glencore did not respond directly to that point when replying to a broader claim by Muller [KN5] about damage allegedly caused by blast shockwaves. Though Glencore did not directly address the issue of when blasting took place[KN6] in answering that particular paragraph in the affidavit, it did so elsewhere as mentioned above and repeated in the supplementary

answering affidavit that no blasting takes place between 7 PM and 7 AM and accordingly no seismographic monitoring occurs during that time either.

[32] The applicant contends that the report on air blast strengths provided by Glencore supports its contention that the blasting is excessive. As mentioned, the only seismograph in the town which registered two air blasts out of thirty in excess of 135dB during the month ending 25 March was the one at Phola coaches, which is located at the southern edge of the town. It can be seen from the figures registered for those same blasts at Annemersk guesthouse were both below the residential area limit. From the aerial photo included in the expert report on ground vibration and air blasts, it can be seen that Phola coaches is on the edge of the town and the centre of the town lies further north, with Annemerska guest house located further east of the town.

Evaluation

[33] the applicant contends that the pleadings reveal that:

33.1 Glencore’s own experts acknowledged that blasting occurs in an area likely to be harmful to residents of Ogies;

33.2 blasting takes place at all hours of the day and night, and

33.3 at levels above the statutorily prescribed limits.

This has caused the harm set out in the founding affidavit which constitutes a nuisance.

[34] The test applied in resolving disputes of fact in motion proceedings is the well known one enunciated in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd:

'It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some A[KN7] other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent,

together with the facts alleged by the respondent, justify such an order. The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by the respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact determining final relief”[6].Glencore denies that blasting takes place at night and the applicant does not rebut this with any sworn testimony

[35] The comprehensive reports of the independent monitoring company over the period from 29 November 2016 to 25 March 2017 disclose that only on two occasions in that period did an air blasts emanating from blasting at Goedgevonden exceed the 134 dB limit at the mosque. On those two occasions the blast force exceeded the limit by 0.7%. On two other occasions during that period the air blast limit was exceeded at Phola coaches.

[36] The assessment made by Rorke in 2005 predated actual blasting at Goedgevonden and was made before new blasting materials and

techniques were adopted at Goedgevonden. Moreover, his predictive desktop assessment is obviously not the same as a study of measurements of the actual effects of blasting and cannot be used as a basis for disputing those results. The applicant is unable to dispute the air blast results and consequently seeks to place the whole weight of its case of nuisance based on that aspect on the handful of exceptional results.

[37] In relation to the timing of blasting, the applicant’s vague assertion that blasting takes place at all times of the night and day, apart from lacking in any detail, was not corroborated and was emphatically denied by Glencore. It cannot rely on a supposition that because the monitoring equipment is not operative between 7 PM and 7 AM that means there is blasting which is not monitored, in the absence of any other evidence on affidavit or expert report to that effect.

[38] Incidentally, the measurements of ground vibrations also revealed that their intensity was well below upper limits for houses of normal and less than normal construction, though the applicant has abandoned a claim of nuisance based on that.

[39] To the extent that the mining operations of Glencore might contribute to air pollution in the town, dustfall levels recorded at the various monitoring stations fall far below the maximum limits for residential areas stipulated in the Air Quality Act. The findings of the doctors that they are treating an increased incidence of respiratory illness among residents of Ogies is not disputed. However, the low recorded dustfall levels place their conclusion that it is caused by pollution from the coal mining operations of Glencore, Anglo and South 32 coal mining operations in doubt, in the absence of other scientific evidence of poor air quality. Quite apart from this, it is difficult to see how Glencore alone could prevent the harm if it is attributable to all three companies.

[40] The claim about alleged pollution of water at the mosque was baldly asserted as a fact but not substantiated by the applicant on any objective basis. Based on its water sampling and analysis, Glencore disputes there is any evidence of its operations being the cause of contamination or pollution. The applicant has adduced nothing tangible to contest this and has failed to prove the existence of polluted water on the papers.

[41] Living in a rural town situated near open cast coal mines entails enduring at least some of the unwelcome features of being in close proximity to such activity, in a similar way that living under the flight path of a busy airport or living near traffic lights on a busy main road diminishes the quality of residential life in those environments. However, not every imposition arising from the manner in which another uses their land and detracts from the untrammelled enjoyment of one’s property is actionable.

[42] To the extent that the blasting activities of Glencore do impact negatively on the residents of Ogies, the applicant has failed to make out a case on the evidence available that such impact is the result of an impermissible abuse of Glencore’s rights to conduct mining operations in accordance with the regulatory framework governing such operations. Also, to the extent that Glencore had breached air blast maxima on four occasions in three months, that is insufficient to constitute a regular and persistent abuse amounting to a material and unreasonable interference with the rights of residents of Ogies, taking account the duration of each blast, the overall compliance with statutory limits on air blasts, the marginal character of those exceptions, the locations where the excess decibel values were measured, and the frequency of blasting. In passing, it is also noteworthy that an undertaking offered by Glencore to ensure that no blasts exceeded the limits was not accepted by the applicant. In respect of dust and vibrations the recorded values were well within the environmental standards set, and in respect of dust no other alternative measures of air quality backed with the necessary supporting data were placed before the court.

[43] The results may have been different if the matter had been conducted by way of trial proceedings and if the applicant had been able to obtain more scientific evidence to support its claims. As things stand it was unable to rebut the facts alleged by Glencore, as supported by third party monitoring reports. Pursuing a claim like this in motion proceedings on the evidence available to the

applicants was a risk from the start.

[44] It was also argued that the applicant should have made use of the alternative remedies available under statutes like the Air Quality Act [discussed above], the National Environmental Management Act, 107 of 1998; the National Water Act, 36 of 1998 and the Mineral and Petroleum Resources Development Act, 28 of 2002. A variety of enforcement mechanisms of environmental standards are created by this body of legislation, by which means of which it ought to be possible to hold a party like Glencore to account by requiring the statutory functionaries charged with enforcing the provisions of those acts to ensure that it complies with all its obligations under those statutes. However, in view of my conclusion above it is not necessary to take a view on whether the existence of these mechanisms precludes a party from seeking interdictory relief.

Order

[1] The first respondent’s late filing of its answering affidavit is condoned.

[2] The application is dismissed with costs.

_______________________

Lagrange J

Judge of the Labour Court of South Africa

APPEARANCES

PLAINTIFF:

Z Omar of Zehir Omar Attorneys

DEFENDANT:

A Bham, SC assisted by M Wesley instructed by Mervyn Taback Inc.

[1] Setlogelo v Setlogelo 1914 AD 221 at 227

[2] De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) SA 188 (D) at 191F

[3] Ibid at 192A-F Cited with approval in Pgb Boerdery Beleggings (Edms) Bpk and Another v Somerville 62 (Edms) Bpk And Another 2008 (2) SA 428 (SCA) at 432B-C and yes I 2007 (2) SA 48 (C) at 5-58, par [22].

[4] 1989 (2) SA 63 (A) at 66I-67B.

[5] 1998 (3) SA 1011 (SE) at 1017D-G.

[6] [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634 - 5

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