Itireleng Bakgatla Mineral Resources (Pty) Ltd and Another v Maledu and Others (M495/2015) [2017] ZANWHC 34 (22 June 2017)

HIGH COURT

REPUBLIC OF SOUTH AFRICA

NORTH WEST HIGH COURT, MAFIKENG

Chambers of the High Court Judge: Cnr Hector Peterson and University Drive, Private Bag X2010,

MMABATHO, 2735

Tel: (018) 392 8200 Fax: (018) 392 1908

CASE NUMBER: M495/2015

In the matter between:-

ITIRELENG BAKGATLA MINERAL

RESOURCES (PTY) LTD 1ST APPLICANT

PILANESBERG PLATINUM MINES (PTY) LTD 2ND APPLICANT

And

GRACE MASELE (MPANE) MALEDU 1ST RESPONDENT

SHIMANKI RASEPAE 2ND RESPONDENT

OBAKENG MATSHEGO 3RD RESPONDENT

NKASHE MATSHEGO 4TH RESPONDENT

DONNY MATSHEGO 5TH RESPONDENT

MMAPULA PILANE 6TH RESPONDENT

PHOPHO KOTSEDI 7TH RESPONDENT

THERO MMALE 8TH RESPONDENT

JACOB MOALOSI RASEPAE 9TH RESPONDENT

NTUTU RASEPAE 10TH RESPONDENT

GOPANE RASEPAE 11TH RESPONDENT

MANTIRISI RASEPAE 12TH RESPONDENT

MPHO RAMFATE 13TH RESPONDENT

MOTLHAGODI PILANE 14TH RESPONDENT

JOSEPH SITSI TLHASI 15TH RESPONDENT

ISAAC RAMAFATSHE PALAI 16TH RESPONDENT

VICTOR KOTSEDI 17TH RESPONDENT

KUTLWANO MATSHEGO 18TH RESPONDENT

DANIEL MAUGOLE MALEBYE 19TH RESPONDENT

MOSES TSHWEU MALEBYE 20TH RESPONDENT

ALBAUES RAPULA MMALE 21ST RESPONDENT

EVA MALEBYE 22ND RESPONDENT

GERTRUDE PILANE 23RD RESPONDENT

SETWE MANNETJIE PILANE 24TH RESPONDENT

INOLOFATSENG RAMFATE 25TH RESPONDENT

ELIAS BAFYE RASEPAE 26TH RESPONDENT

MAKUBESELE DORIS SENOELO 27TH RESPONDENT

MAUDRIES GERTSOU RASEPAE 28TH RESPONDENT

MOGOTSI LEVY RASEPAE 29TH RESPONDENT

MESU RASEPAE 30TH RESPONDENT

TSHOSE DANIEL RASEPAE 31ST RESPONDENT

MMAKGOMO MARIA MATABEGE 32ND RESPONDENT

MMAMMU DORIEEAH TLHASI 33RD RESPONDENT

MMAMMUSI ELIZABETH PALAI 34TH RESPONDENT

MOGAPI KAISER MATSHEGO 35TH RESPONDENT

MOTLHEGODI JOSEPH MATSHEGO 36TH RESPONDENT

OLAOTSE TLHASI 37TH RESPONDENT

LESETLHENG VILLAGE COMMUNITY 38TH RESPONDENT

MOSES KOTANE MUNICIPALITY 39TH RESPONDENT

THE HEAD OF THE DEPARTMENT OF RURAL

DEVELOPMENT AND LAND REFORM,

NORTH WEST 40TH RESPONDENT

MINISTER OF RURAL DEVELOPMENT

AND LAND REFORM 41ST RESPONDENT

MINISTER OF MINERAL RESOURCES 42ND RESPONDENT

BAKGATLA-BA-KGAFELA COMMUNITY 43RD RESPONDENT

BAKGATLA-BA-KGAFELA TRADITIONAL

AUTHORITY 44TH RESPONDENT

LEAVE TO APPEAL JUDGMENT

GUTTA J.

[1] The 1st to the 38th Respondents filed an application for leave to appeal my judgment and order that I handed down on 16 February 2017. For ease of reference the parties will be referred to as in the main application.

[2] The respondent raised the following grounds which are dealt with ad seriatim hereinbelow.

INVALIDITY OF MINING RIGHT AND LEASE

[3] The respondents contend in their application for leave to appeal that the court erred in finding that the applicants have a valid mining right and valid lease agreement and should have found that the mining right and lease are invalid because the respondents who are the de facto owners of Wilgespruit, were not extensively consulted prior to the grant of the right and the lease.

[4] I have dealt with this issue in paragraph 13 to 23 of my judgment and I am of the view that on this ground the applicants have no prospects of success and there are no compelling reasons why the appeal should be heard.

INSUFFICIENT CONSULTATION

[5] The respondents contend the respondents were not approached as owners of the land but as members of the tribe. Hence there was no real consultative process. The respondents claim that they bought the land and purchased it and should have been consulted. The respondent also contend that this court erred in not having regard to the Supreme Court of Appeals (SCA) decision of Bengwenyana-ya-Maswazi Community and others v Minister for Mineral Resources and others[1] and the Constitutional Court (CC) case of Bengwenyana Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others[2], in which the nature and extent of consultation with owners and lawful occupiers under the MPRDA are dealt with.

[6] The importance of consultation was not overlooked and the SCA judgment of Bengwenya-ya-Maswazi Community and Others supra was considered when coming to my finding that there were numerous consultations with the Bakgatla Community before and after the mining right was granted which finding was based on the evidence before me in the affidavits. Further the aforesaid cases are distinguishable to the facts in casu where the community itself applied for the mining right. As the respondents have not applied for the review and setting aside of the mining right, the respondents cannot attack the mining right in these proceedings by way of a collateral attack on the basis of a lack of consultation. As stated in my judgment the mining right remains valid and enforceable until it is set aside on review. Accordingly I am of the view that on this ground the respondent has no reasonable prospect of success on appeal.

NEED TO EXHAUST SECTION 54 OF THE MINERAL AND PETROLEUM RESOURCES DEVELOPMENT ACT 28 OF 2002 (MPRDA)

[7] The respondents contend in the application for leave to appeal that “the learned judge a quo erred in finding that the applicants can proceed to exercise the mining even though they have not complied with section 54 of the

MPRDA” and contends that the judge a quo should have found that they were not entitled to commence mining unless and until an agreement had been reached with the community.

[8] In my judgment I relied on the SCA decision of Joubert v Maranda Mining Co (Pty) Ltd[3] which supports the finding that the applicants could proceed with their mining right before exhausting the procedure in section 54. I stand by my judgment and am of the view that the respondent has no reasonable prospect of success on this ground. This issue is also canvassed infra under the heading “NEW GROUND”.

RESPONDENTS INFORMAL RIGHTS NOT TERMINATED

[9] The respondents contend in the application for leave to appeal that “the learned judge a quo erred in finding that the respondents’ residual informal rights were terminated in accordance with the customs and usage of the Bakgatla Community when the Kgotha Kgothe in June 2008 resolved to enter into a surface lease agreement with IBMR as contemplated in section 2(2) of the Informal Land Rights Act 31 of 1996 (“IPILRA”)”. The respondents contend further that “the judge a quo should have found that, as the applicants’ mining operations have nothing to do with the custom and usage of the respondents (in relation to Wilgespruit) as envisaged in section 2(2) of IPILRA, the mining operations cannot proceed as they will not benefit the respondent in any way”. The above was not the respondents’ case on the papers in the court a quo. In any event, I am of the view that the contention is legally flawed and factually incorrect as set out hereinbelow.

[10] Section 2(2) of IPILRA provides that:-

“where land is held on a communal basis, a person may, subject to section (4), be deprived of such land or right in land in accordance with the custom or usage of that community”.

Section 2(4) of IPILRA provides that:-

“for the purposes of this section the custom and usage of a community shall be deemed to include the principle that a decision to dispose of any such right may only be taken by a majority of the holders of such rights present or represented at a meeting convened for the purpose of considering such disposal and of which they have been given sufficient notice, and in which they have had a reasonable opportunity to participate”.

[11] On reading section 2(2) and 2(4) of the IPILRA supra, it is clear that although the mining operations have nothing to do with the custom and usage of the respondents this does not mean that they cannot enter into a surface lease agreement with a mine and thereby dispose of their (informal) rights to use the surface for agriculture. Section 2(2) is therefore relevant to customs versus termination and not customs versus mining. The mining rights and the registered lease agreement stand until reviewed and set aside[4]. As to the facts, the benefits of the mining operations to the whole community was fully canvassed in the court a quo which facts were not denied.

[12] The respondents further contend that the lease was invalid without the consent of the respondents having been obtained as contemplated in section 2 of IPILRA. This issue was dealt with in my judgment and I stand by my reasons and I am of the view that there are no prospects of success on appeal.

NO CLEAR RIGHT

[13] The respondents contends in their application for leave to appeal that “the learned judge a quo erred in finding that the applicants have a clear right and that they have not contravened the Moses Kotane Town-Planning Scheme (“the Scheme”)” and that the court ought to have found that prospecting conducted prior to commencement of the scheme did not qualify as “mining industry” under the Scheme.

[14] This issue was fully canvassed in my judgment and was succinctly summarized by applicants that:

14.1 the concept of “mining” is a broad one which includes a host of activities pertaining to the exploitation of minerals[5].

14.2 the concept of “mining industry” in the scheme includes the integrated process of prospecting and mining on the surface; and

14.3 if mining were interpreted so as to exclude prospecting under the scheme, it would have the absurd, and clearly incorrect, result that prospecting will be absolutely prohibited by virtue of clause 2 of the scheme.

[15] The respondents furthermore contend in their application for leave to appeal that this court “ought to have found that the use of the land by the applicants one month before commencement of the scheme must have been lawful at the time it was conducted in terms of the regulatory scheme applying at that time, that it was not lawful as required and that the applicants’ reliance on clause 4(7) and section 43 of the Ordinance therefore had to fail”.

[16] I agree with the applicants contention that there was no allegations in the respondents’ affidavits that the applicants were not prospecting lawfully one month before the Moses Kotane Scheme commenced in December 2006, and that this court should not consider this issue on appeal. It is trite that in motion proceedings, the affidavits constitute both the pleadings and the evidence[6]. Any prohibition or illegality applicable to the applicants prospecting on the farm one month prior to commencement of the Moses

Kotane Scheme, should have been pleaded in the respondents’ affidavit and proved and the applicants were entitled to rebut[7].

[17] The respondents failed to plead any such prohibition in any of its affidavits. Accordingly I am of the view that there are no prospects of success on this ground.

FURTHER EVIDENCE

[18] The respondents contend in their application for leave to appeal that this court erred in “refusing to admit further evidence” from the community regarding the failure by the applicants to secure the special consent of the Moses Kotane Municipal Council regarding the rezoning of Wilgespruit from ‘agricultural’ to ‘mining’.

[19] The respondents failed to apply for leave to admit further evidence. This issue was dealt with in an ex tempore ruling I made. There are in my view no prospects of this ground succeeding.

COSTS

[20] The respondent contend that “the learned Judge ought to have found that, although not specifically mentioned, the dispute between the parties involves an attempt by the Community to protect their rights to their property as envisioned in section 25 of the Constitution. Pursuant to this, the principles of Biowatch Trust v Registrar Genetic Resources and Others[8] are clearly applicable and as such the Community should not have been saddled with a cost order”.

[21] I applied the Biowatch principles to the present case and found that the present matter (even though involving a constitutional issue) was a private dispute between private companies and individual land occupiers and found that no exceptional circumstances were present to warrant a departure from the general principle in private litigation and that costs should follow the result. Although I used the word private company and counsel for the respondents, Ms de Vos correctly pointed out that the applicants were public companies, this does not influence my finding as it is not disputed that this case does not involve state entities. It is a private matter involving two subjects who are not government and not organs of the state. It is a company versus private people who are trying to enforce their right. Hence it is a private law matter. The Biowatch decision is regularly abused. In Lawyers for Human Rights v Minister in the Presidency and Others[9] the court said the Biowatch principles should not be abused to avoid ordinary court process, where cost orders are made after judicial consideration and discretionally

considered and imposed.

NEW GROUND

[22] The respondents at the hearing of the application for leave to appeal raised a new ground for seeking leave to appeal, namely that there is a compelling reason why the appeal should be heard being the changing face of the legal concept of ownership as discussed in the recent Constitutional Court judgment of Daniels v Scribante[10] which judgment has a substantial impact on the interpretation of the issues in this case.

[23] Ms de Vos submitted inter alia that:

23.1 The court a quo followed an absolutist approach to mining rights and ownership.

23.2 The dispute between the parties involves an attempt by the community to protect their rights to their property as envisioned in Section 25 of the Constitution of the Republic of South Africa 1996 (the Constitution). If the questions as posed by the applicants in this matter and more specifically, the issues relating to compliance with the procedure prescribed in section 54 of the MPRDA and the nature of the rights claimed by the community, are adjudicated with the principles as set out in the Daniels case in mind, a different outcome can be expected.

23.3 It important for the SCA to revisit the judgments relating to section 54 of the MPRDA in view of the Daniels judgment. The SCA needs to reconsider their attitude of mining rights trumping land rights, because the issue of ownership is less absolutist as in the Daniels case, therefore the issue of mining rights should also be less absolutist. In the Daniels case, the CC considered inter alia ownership viza viz occupation rights where the owner had an absolute right and the occupant had rights only in terms of ESTA which rights did not include the right to extend and the CC in applying constitutional values extended the occupants’ rights of occupation to include the right to extend. The court must look at competing rights and not a hierarchy of rights and the court may find a duty to compensate in terms of section 54 before mining commences.

[24] Counsel for the applicant Mr Grobler in brief submitted that:

24.1 Firstly, the respondents are bound to the grounds set out in their application for leave to appeal.

24.2 Secondly, the respondents do not in any way identify or describe the aspects of the Daniels judgment which are pertinent or in what way this judgment would impact on the issues in the present case. The statement is vague in the extreme. No case is made out that a compelling reason exists.

24.3 Thirdly, the issues in the Daniels case have no bearing on the present case as Daniels case pertained to the questions -

24.3.1 whether ESTA affords an occupier the right to make improvements to her or his dwelling;

24.3.2 if it does, whether the consent of an owner is required for an occupier to make the improvement; and

24.3.3 if consent is not necessary, whether an occupier may effect improvements to the total disregard of an owner.

[25] Notwithstanding the fact that the new ground was not raised in applicants’ grounds for leave to appeal. I have considered same as it concerns a Constitutional issue and there may be compelling reasons to grant leave to appeal which I have considered hereinbelow.

[26] Although Daniels case moves away from the absolutist approach to ownership, it is in my view distinguishable from this case as Daniels case concerns someone with a residence protected by ESTA, while the respondents in casu reside elsewhere, in Letlakeng and only farm in Wilgespruit. This case involves structures occupied by herdsmen who are tending the cattle. The court in Daniels case interpreted ESTA in terms of the Constitution and considered an occupant’s rights to include the right to human dignity and balanced the two rights, namely the occupiers’ rights and the right of the owner. Thus it is an ESTA right versus the right of an owner. ESTA is there to give security of tenure to vulnerable people. It is in this context that the court swayed from the absolute right of the owners of land.

[27] The MPRDA is legislation borne from the Constitution. It is a creature of the Constitution involving mutually exclusive uses of land, the one must give way to the other. In terms of section 5 of the MPRDA, the rights of the holders of mining rights are real rights. In this context you weigh the right of the owners or occupiers versus the holders of the mining rights. Strict legislation

was necessary to allow the holders of the real right to mine. The holder of a mining right has the right to enter upon land and the right to access land. In Maranda[11] the court granted an interdict against an owner who refused access to a holder of a mining right.

[28] Section 50 of the MPRDA has built in safeguards to compensate the owner of the land for any loss or damage. Further in terms of section 54(7) of the MPRDA, both the owner or occupier must notify the regional director if he has suffered damages or is likely to suffer loss or damages. Therefore both sides can make representations as to loss suffered. Hence both lawful and unlawful refusal is covered under the MPRDA. The owner or occupants’ rights have been protected under the Constitution and in terms of the MPRDA. In casu, the applicants gave notice to the regional director who failed to take any steps. In terms of the MPRDA if dispossession amounts to expropriation then compensation follows. Before the mining right is granted, the owner has full ownership and after the mining right is granted, the Minister grants a limited real right and now the owner has a servitude on his land. Hence when a mining right is granted this amount to expropriation. Thus neither the owners or occupants’ rights can be treated on equal footing to the holder of a mining right. Therefore in terms of section 54, an owner or occupier’s right is on the grant of a mineral right diminished because of the real right over ownership. Mining will come to a standstill if the holder of the mining right must first compensate before expropriation. The MPRDA provides for balancing between the land owners, occupants and holders of the mining rights. There is in my view no violation of any constitutional principles.

[29] The respondents in their application for leave to appeal have lost sight of the following common cause facts:

1. that respondents are not the registered owners of Wilgespruit;

2. that respondents are farming on Wilgespruit and not residing on there;

3. that decision to grant the mining right has not been set aside on review;

4. that the decision of the Bakgatla Community at the Kgotha kgothe to enter into the surface lease agreement with the first applicant has not been reviewed and set aside;

5. that the respondents admit to being part of the Bakgatla-ba-Kgafela tribe;

6. that the Bakgatla-ba-Kgafela tribe was consulted both before and after the mining right was awarded;

7. that the respondents can claim compensation in terms of section 54 of the MPRDA.

[31] Counsel for the respondent, Ms de Vos said that her intention should this court refuse leave to appeal was to petition to the SCA for leave to appeal and eventually take this matter to the Constitutional Court. Thus to exhaust all available avenues. Although finalisation of litigation is an important consideration in granting leave to appeal, this in my view is not a ground or a consideration for granting leave to appeal. The test remains whether there are any prospects of success and in my view as stated supra on all the grounds raised, the respondent has no prospects of success on appeal and further there are no compelling reasons to grant leave to appeal.

ORDER

[32] In the result, the application for leave to appeal is dismissed with costs.

______________

N. GUTTA

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 01 JUNE 2017

DATE OF JUDGMENT : 22 JUNE 2017

COUNSELS FOR APPLICANT : ADV G L GROBLER (SC)

COUNSELS FOR RESPONDENT : ADV DE VOS (SC)

ATTORNEYS FOR APPLICANT : SMIT STANTON INC.

(Instructed by Edward Nathan Sonnenberg Inc.)

ATTORNEYS FOR RESPONDENT : NIENABER & WISSING ATTORNEYS

(Instructed by Lawyers for Human Rights)

[1] 2015(1) SA 197 (SCA)

[2] 2011(4) SA 113 (CC) at paragraph 65 -67

[3] 2010(1) SA 198 (SCA) paragraph 16

[4] Oudekraal Estates (Pty) Ltd v City of Cape Town & Others 2004(6) SA 222 (SCA)

[5] Coal of Africa & Another v Akkerland Boerdery NGHC 38528/2012 (February 2014)

[6] Minister of Land Affairs and Agriculture v D&F Wevell Trust 2008(2) SA 184 SCA 200D-E

[7] Yannakou v Apollo Club 1974(1) SA 614 (A) at 623 G-H; Courtney-Clarke v Bassingthwaighte 1991(1) SA 684 (Nm) at 690A-B; R v L & M Joseph, 1912 TPD 729

[8] 2009(6) SA 232 (CC)

[9] Lawyers for Human Rights v Minister in the Presidency and Others 2017(1) SA 645(CC) at 652H paragraph 23 – 26

[10] Daniels v Scribante CC 750/16 handed down 11 May 2017

[11] 2010(1) SA 198 SCA