Moloi v Minister of Minerals and Energy (254/05) [2005] ZANCHC 123 (7 October 2005)

Reportable: Yes / No

Circulate to Judges: Yes / No

Circulate to Magistrates : Yes /No

IN THE HIGH COURT

OF SOUTH AFRICA

(Northern Cape Division)

Case no: 254/05

Date heard: 23/ 09/2005

Date delivered: 07/10/2005

In the matter between:

FETANE

MOLOI APPLICANT

and

THE

MINISTER OF MINERALS

AND ENERGY 1ST

RESPONDENT

THE

DIRECTOR GENERAL OF

THE

DEPARTMENT OF

MINERALS AND ENERGY 2ND

RESPONDENT

THE REGIONAL MANAGER:

REGION

OF THE DEPARTMENT

OF MINERALS & ENERGY 3RD

RESPONDENT

JUDGMENT

TLALETSI J:

The applicant in this matter applied on urgent basis for a mandamus directing the third respondent to hand over to him the mining permit issued to the applicant on 11 February 2004 in respect of portion of the farm 350, Winter’s Rush, district of Barkley West (“Winter’s Rush”) with reference number NC 5/3/2/3408 as well as an order for costs against the respondents jointly and severally, the one paying the other to be absolved pro tanto on attorney and client scale. The application is opposed by all the respondents.

It is not in dispute that on 7 May 2003 the applicant submitted an application for a mining permit in terms of the provisions of Section 9(1)(b) of the Minerals Act 50 of 1991 (before it was repealed) in respect of portion of Farm 350, Winter’s Rush, Barkley West district. This application was received by the third respondent’s office and was allocated reference number NC 5/3/2/3408.

The applicant submitted a second application simultaneously with the one referred to in paragraph 2 above, for a mining permit for Erf 1 Windsorton. This application was allocated reference number NC 5/3/2/1859.

On 11 February 2004 the applicant was issued with two mining permits. Both permits related to Erf 1 Windsorton and they bore reference numbers NC 5/3/2/3408 and NC 5/3/2/1859 respectively. Later during February 2004 the mining permit bearing reference number NC 5/3/2/3408 was taken by the 3rd respondent, claiming that same was not proper as it referred to Erf 1 Windsorton and not Farm 350 Winter’s Rush.

In order for the applicant to succeed with his application for a mandatory interdict he has to establish that he has a clear right, that he has suffered harm or reasonably apprehends that harm will occur, and the absence of similar protection or an alternative rememdy. (See: Setlogelo v Setlogelo 1914 AD 221 at 227; Alliance Cash & Carry (Pty) Ltd v Commissioner, South African Revenue Service 2002(1) SA 789 (TPD) at 795 H-I). The respondents defence is that the applicant has not shown that he has a clear right. The basis for this contention is that applicant was never issued with a mining permit for farm 350 Winter’s Rush. They contend that at the time of the submissions for the application officials of the respondents due to a bona fide error processed the application as relating to Windsorton despite the fact that they bore different reference numbers. It is common cause that the other requirements for a mandamus are not in dispute.

At the time of the submission of the applications for mining permits, the applicable procedure was contained in Section 9 of the Minerals Act 50 of 1991 before it was repealed. In summary the application must be made in the prescribed form together with payment of the prescribed application fee. The application form, fee and form of mining permit were found in chapters 32 and 34 of the Minerals Act Regulations. In casu because the applicant is categorised as a person who had acquired the written consent of the holder to mine therefore on his own account and dispose thereof, and that the state is the holder of the mineral rights, a written consent upon written application had to be granted by the Minister, who may impose such terms and conditions as may be determined by her. An application for a mining authorisation must be accompanies by:-

proof of the right to the mineral in respect of the land or tailings;

a sketch plan indicating the location of the intended mining area, the land comprising the subject of the application, the lay-out of the intended mining operations and the location of surface structures connected therewith;

particulars about the manner in which and scale on which the applicant intends to mine such mineral under a mining authorisation optimally and to rehabilitate disturbances of the surface which may be caused by the intended mining operations;

particulars about the mineralisation of the land or tailings, as the case may be, comprising the subject of the application;

particulars about applicant’s ability to make the necessary provision to mine a mineral optimally and to rehabilitate such disturbances of the surface;

particulars about the applicant’s ability to mine in a healthy and safe manner, and

other information and documents which may be required by the regional director.

The holder of the mining authorisation must submit an Environmental Management Programme (“EMP”) in respect of the surface of the land for the intended mining operations to the Director: Mineral Development for approval (Sec 39). The regional director may exempt the holder of a mining authorisation from submitting the EMP or grant an extension of time within which to submit the EMP (Sec: 39(2)(a)). The regional director must as to the issuing of the permit consult with the Chief Inspector appointed in terms of Section 48 of the Mine Health and Safety Act 29 of 1996. For the mining permit to be issued the regional director must be satisfied :-

with the manner in which and scale on which the applicants intends to mine the mineral concerned optimally under a mining authorisation;

with the manner in which an applicant intends to rehabilitate disturbances of the surface which may be caused by his mining operations;

that the applicant has the ability and can make the necessary provision to mine the mineral optimally and to rehabilitate the disturbances of the surface; and

that the mineral in respect of which a mining permit is to be issued –

occurs in limited quantities on the land or in tailings; or

will be mined on a limited scale; and

will be mined on a temporary basis.

For a full discussion of all the other relevant provisions related to the issuing of the mining authorisation as the law then was see: The Law of South Africa: First Reissue Volume 18 Butterworths; paragraphs 163, 164, 165 and 166 and M Kaplan & M.O Dale: A guide to the Minerals Act 1991; Butterworths 1992 at p78 -80. The regional director issues a mining authorisation in the prescribed form for a period determined by him or her.

From an administrative point of view the third respondent has set out a procedure that was followed at his office in processing the applications. In short he states that the application is dealt with in two phases. The first phase is from the mineral law section and the second phase is from the environmental section. The applicant is required to sign and enter into two agreements with the respondent, one in relation to the rehabilitation fund which is prepared by the environmental section and the other with the minerals section which also inter alia deals with the royalties. The environmental section analyses the EMP and determines what impact the mining operation will have on the environment. This is a consultative process with various role players. After this consultative and evaluation process of the EMP, the section determines what amount is required to be paid to the rehabilitation fund. An estimate of what the environmental disturbance resulting from the mining operation will be, is made. The applicant will then be asked to pay the money into the

rehabilitation fund to cover the costs of the environmental disturbances. An agreement is prepared for signature by the applicant and is attached to the applicant’s papers.

Upon completion of the consultative process the mineral law side prepares a submission, a power of attorney authoring the third respondent to sign on her behalf as well as an agreement which will be entered into by the applicant and first respondent. The agreement and power of attorney will bear inter alia, the correct property description to which the permit applied for relates, and the reference number. As regards the submission that is prepared to the first respondent the following is dealt with. The background to the application, the deliberations as to how many permits have been applied for and how they have been issued; whether or not the applicant complies with the minimum requirements in terms of the Act; the status of empowerment of the applicant which is in terms of the Black Economic Empowerment of the department; the fees in terms of the minimum royalties to be paid, the parties with whom the consultative process took place; the analysis of the responses received from interested and/or affected parties; the financial position of the applicant; recommendations of second respondent and the third respondent. Should the first respondent accept the recommendations for the approval of the mining permit she will then sign the power of attorney authorising third respondent to sign the agreement and issue the permit.

It is common cause that the applicant’s application for Winter’s Rush mining permit followed the prescribed procedure, and he submitted all the required information and documentation. As the third respondent’s put it, he met the minimum requirements necessary for the grant of the permit. However the respondents case as put forward by the third respondent is that throughout the application was treated on the basis that it related to Erf 1, Windsorton. This fact is disputed by the applicant. Applicant contends that although there is a mistake relating to the description of the property at least in the power of attorney and the permit issued by third respondent, all the information available in the third respondent’s file point to the fact that the subject matter of the application was at all times Winter’s Rush.

In my view it is important to understand the precise nature of the bona fide error, how it came about, and what effect if any does it have on the right of the applicant to be issued with a mining permit for Winters Rush, and whether the disputes of facts are of such a nature that they may not be decided on the papers as they stand.

The answering affidavit of the third respondent is not of much assistance when it comes to the actual events relating to the handling of this specific applications. According to Xolani Gamede (‘Gamede’) whose affidavit was filed after the applicant’s replying affidavit, he is the Mineral law officer who was responsible for the processing of the applicant’s application. He is the person who wrote the submissions and drafted the power of attorney to be signed by or on behalf of the first respondent. He states that when doing so he made an error and drafted submissions in respect of the property as Windsorton. He did not consider the application for Winter’s Rush nor did he consider the attached sketch plans in detail. All what he did, he continues, was to look at them for purposes of establishing the number of hectares which the applicant was applying for a permit for. He states that had he properly considered the application for Winter’s Rush there would have been additional requirements which the applicant would have had to comply with due to the number of hectares he was applying for. However Gamede does not state the nature of the information he would have required from the applicant for the Winter’s Rush application.

What Gamede is suggesting is that he wrote the submission without reading the information in the file, or he did not have a complete file before him. This is somewhat a strange scenario. In the submission to the first respondent he states that he has consulted as interested and affected parties, Dikgatlong Municipality, the state Departments consisting of Water Affairs and Forestry, Environmental affairs and Tourism, Nature Conservation and Agriculture. He states that none of these parties have made any negative comments. In the letter sent to the affected and interested parties he requested comments relating to Winter’s Rush farm and the EMP relating to Winter’s Rush was attached. In the minds of the interested parties, there was no confusion that they were not dealing with Winter’s Rush. The application form filled by the applicant also refers to Winter’s Rush and is not capable of creating any confusion about the description of the property. The covering letter to which the application form or questionnaire filled and signed by the respondent is attached clearly describes the property as ‘Winters Rush Portion of farm 350’. Furthermore the site map submitted by the applicant drawn by professional land surveyors provides the exact area and its extent as 9.5852ha. The area is also shown on the map of the area and bold letters “Winter’s Rush” appear on the shaded area of the Farm 350. There is so much information on the submission which makes it improbable that Gamede had Windsorton in mind and not Winter’s Rush.

What complicates Gamende’s explanation further is the Memorandum prepared by the Director: Mine Economics in Pretoria dated 19 June 2003 addressed to the Director: Mineral Development, Northern Cape Region, Kimberley. The heading of the Memorandum refers to portion of farm 350 Winters Rush, District of Barkley West. A description of the applicant and his intended operations are given and it is further recommended inter alia, that in order for the applicant to qualify as a subsistence miner the are applied for should be reduced to 3 hectares or less, and a sketch plan indicating that the mining area is reduced to 3 hectares or less should be submitted by the applicant. It is not disputed that in order to comply with this recommendation the applicant had to submit another sketch plan depicting the reduced area from the one originally applied for. The same sketch plan of the reduced area was signed and approved by the Director Mineral Development, Northern Cape Region. Further more the permit issued by the third respondent does not merely refer to a piece of land but refers to the attached sketch plan number NC 5/3/2/3408 signed by the Director: Mineral Development. The recommended annual minimum royalties in the amount of R 195-00 based on Winter’s Rush were paid by the applicant. The allegation by Gamede that had he been aware that he was making a submission for Winter’s Rush he would have requested additional requirements cannot stand as such requirements were met.

In an attempt to explain how the confusion or the mistake could have come about, Gamede states that the applicant had three applications pending, namely 1804, 3406 and 3408 and often when the applicant made enquiries regarding his applications the file references were confused and incorrectly referred to. This cannot be true. Firstly I was informed by counsel for the applicant, which is not disputed by the respondent’s counsel, that after the allegation of the pending applications was raised in the affidavit of Gamede (which was filed after the replying affidavit) applicant’s attorney of record attended at the third respondent’s offices to peruse these files. He managed to establish that number 1804 related to a certain Le Roux and number 3406 to a certain Manyadi. Both these persons have nothing to do with the applicant. Furthermore in the submission to the first respondent signed by both Gamede and the then Director: Mineral Development, Northern Cape Region on 11 February 2004, it is stated that the applicant has an existing permit MP147/2004 in Windsorton area, and that no opposing applications have been received, that the Inspectorate Mine Health and Safety has been consulted and there are no land claims on the relevant property. This should have been clear to an absent minded person that he is making positive conclusions from the information that was made available to him at the time.

There is a dispute as to how it happened that this permit should be retrieved by the third respondent. What is important is that the decision to withhold the permit was made by third respondent and the applicant made several calls and attendances at the third respondent’s offices requesting the permit due to him for Winter’s Rush. On this aspect Godfrey Ikobeng Mfetoane who was the then Acting Regional Manager: Mineral Development of the third respondent states that he suggested to the applicant to abandon the permit and re-apply for a permit in respect of Winter’s Rush. However in the affidavit filed after the replying affidavit he states that they informed the applicant that they would have to process his application for Winter’s Rush and prepare the documents for submission and approval in Pretoria. This can only mean that they would work on the application already submitted and not for the applicant to lodge a new application which should comply with the amended legislation. I also find it strange why would they process the application afresh as they had already gone through the consultative process and all the other requirements having been fulfilled by the applicant.

There is nothing else other than the description of the property in the submission and the power of attorney, that shows that all the other information related to Windsorton. Of course it cannot relate to Windsorton because all the relevant consultative process and enquiries related to Winter’s Rush. Had this not been the case at least the third respondent would have been quick to point out in details that the submission relate to Windsorton. There is nothing placed before the court from first and second respondents to state that when permission was granted they were only concerned with Erf 1, Windsorton. On the contrary the recommendation from the Director: Mine Economics: Pretoria dated 19 June 2003 discussed at paragraph14 above shows that the subject matter was Winter’s Rush.

In my view the allegations made by the third respondent and the deponents to the confirmatory and additional affidavits when it comes to the circumstances relating to the issuing of the permit and whether it was intended not to be for Winter’s Rush farm 350, are so far-fetched or clearly untenable that they should be rejected merely on the papers. (See: Plascon Paints Ltd v Van Riebeeck (Pty) Ltd 1984(3) SA 623 (AD) at 634E- 635C). In the heads of argument the respondents raised an alternative argument that there is a dispute of fact on the papers which cannot be resolved without the hearing of oral evidence. Respondents counsel, and correctly so, did not pursue this point. A referral of the matter for oral evidence will not change the situation as all the relevant information pertaining to the subject matter of the application is before the court. I am satisfied that at all times during the processing of the application the officials of the respondents had farm 350 Winter’s Rush in mind, and reference to Erf 1 Windsorton is at best to the respondents, a mistake. Such mistake should have been easily rectifiable by the respondents by correcting the power of attorney which is in my view not a legal requirement in terms of the Act for this purpose but an internal arrangement, to convey that the second respondent who has been delegated the authority by the Minister, grants power to the Director: Mineral Development, Northern Cape Region to sign a written agreement with the applicant. The agreement signed by the applicant and Northern Cape Officer refers to the property shown on sketch plan NC 5/3/2/3408 held in the office of the Director. This area cannot at all be Erf 1, Windsorton as the agreement refers in the preamble.

M Kaplan & M.O Dale (supra) at page 78 paragraph 4.24.3 puts it:

gThrough the system of mining authorisations, control is exercised by the state in order to achieve the three fundamental principles of optimal utilization, safety and heath, and surface rehabilitation. This is reflected in section 9(3)(a), (b), (c) and section 9(5)(c), (d) and (e), which prescribe the prerequisites for the issue of a mining authorization.

Proof of the applicant’s ability must form part of the application, but otherwise the section requires no personal qualifications of an applicant”

I am in agreement with these remarks. For the reasons set out above I find that the applicant has succeeded to establish a clear right and is therefore entitled to the relief sought as amended.

What remains to be decide is the issue of costs. There should be no reason why costs should not follow the results. I find the conduct of the third respondent’s office to have been reckless. They continued to hide behind the mistake made by their office to the prejudice of the applicant. Out of frustration the applicant resorted to the office of the Public Protector and the South African Police Services for assistance. This process yielded no positive results for the applicant. The papers do not show that attempts were made by the third respondent to resolve the problem through the office of the first and second respondents. Not even an explanation is given why an affidavit from the first or second respondent was not filed to explain the situation from their end. I do not think that the first and second respondents should be held responsible for the costs of this application. The third respondent’s office through Gamede placed a factually incorrect information before court in an attempt to explain their ineptness. He deliberately refers to file numbers which he knew had nothing to do with the applicant. This is a dishonest tactic to cover one’s own mistake. I do not think the applicant who is an uneducated person should be put out of pocket due to their conduct. He resorted to litigation as a last resort after seeking assistance from state agencies at no cost, for a mistake which is not of his own creation. In my view this is a case deserving a special order for costs.

In the result I make the following order:

The third respondent is ordered and directed to hand over to the applicant the mining permit issued to the applicant on 11 February 2004 under reference number NC 5/3/2/3408 in respect of a portion of the farm 350 Winter’s Rush, district Barkley West.

Third respondent is ordered to pay applicant’s costs in respect of this application on Attorney and Client scale.

____

L P TLALETSI

JUDGE

(Northern Cape Province)

On Behalf of the Applicant: Adv. J. G Van Niekerk Instructed by: MSSRS Job Attorneys On Behalf of the Respondents: Adv. J. I Henriques Instructed by: Towell & Groenewaldt