Schimper N.o. and Others v Director General: Department of Mineral Resources - Free State Province and Others (5769/2015) [2017] ZAFSHC 225 (11 December 2017)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case No: 5769/2015

In the application between:

JOHANNES VAN JAARSVELD SCHIMPER N.O. First

Applicant

MARIA

JOHANNA SCHIMPER N.O.

Second Applicant

JAN

DIRK HEYNS N.O. Third

Applicant

[In their capacity as co-trustees of the

SCHIMPER FAMILY TRUST - IT 559/12]

JOHANNES

VAN JAARSVELD SCHIMPER Fourth Applicant

and

THE DIRECTOR GENERAL: DEPARTMENT OF

First Respondent

MINERAL RESOURCES - FREE STATE PROVINCE

THE MINISTER: GOVERNMENT OF

THE

Second Respondent

REPUBLIC OF SOUTH AFRICA, DEPARTMENT

OF

MINERAL RESOURCES

MONASTERY MINE (PROPRIETARY)

LIMITED

Third Respondent

CORAM:

C REINDERS, J et S CHESIWE, AJ

JUDGMENT BY: C REINDERS, J

DELIVERED ON: 11 DECEMBER 2017

[1] The farms known as the Reainder of Monstery 237 ("the property") and the Remainder of Laura 267 are situated in the district Marquard. This is an application for the review and setting aside of a decision taken on 11 December 2013 by the First Respondent (The Director General: Department of Mineral Resources - Free State Province, "the DG") to grant to Third Respondent (Monastery Mine (Pty)Ltd) a mining right in terms of Section 22 of the Mineral and Petroleum Resources Development Act 28 of 2002 ("the MPDRA") in respect of the aforementioned farms.

[2] The First to Third Applicants are the trustees of the Schimper Family Trust - IT 559/12 ("the Trust"). The First Applicant is also the Fourth Applicant (Mr Johannes van Jaarsveld Schimper - "Mr Schimper") in his personal capacity and the deponent to the founding affidavit as co-trustee. Reference to the First to Fourth Applicants collectively would be “the applicants”. The application is opposed by the Third Respondent.

[3] It is common cause that the Trust is the owner of the farms and that mining and prospecting activities had been conducted intermittently

on the property for more than a century. The mine on the farm comprises of an open pit of 3 hectares and 30 metres deep, and the kimberlite pipe (in respect of diamonds) was mined previously. The last time that the mine was in production was in 1983 and the application for a mining right by the Third Respondent (accepted by the Department on 25 February 2012) was for the continuation of mining the kimberlite pipe by deepening and extending the open pit.

[4] The application is brought under the provisions of Section 6 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and was preceded by an unsuccessful internal appeal ("the appeal") in terms of the provisions of Section 96(1)(b) of the MPRDA against the decision by the DG as decision-maker to grant a mining right to the Third Respondent.

[5] In the founding affidavit applicants submit that the decision taken by

the DG is reviewable on the following grounds:

5.1 It was materially flawed because of the fact that the views and input of various government departments who are stakeholders were not obtained and/or considered;

5.2 The decision was taken based on irrelevant considerations and/or on the basis of a failure to take account of relevant considerations;

5.3 The decision is not rationally connected to the information which was before the decision maker

5.4 The decision is one which was taken arbitrarily or capriciously;

5.5 The decision was not authorized by MPRDA, whilst there had been non-compliance with the mandatory requirements in relation to information and documentation which had to be before the First Respondent and considered by him.

[6] To substantiate the aforementioned Mr Louw, appearing on behalf of the applicants, in his heads of argument summarised the main thrust of the application to have the decision by the DG reviewed and set aside, as follows:

6.1 Due to misrepresentations or misstatements of relevant facts in the application and/or the lack of relevant factors, it cannot be argued that the decision to grant the mining right was based on relevant considerations, but rather irrelevant considerations.

6.2 It is clear the consultation process was flawed and that it ought to have been clear to the decision-maker that the interests of all parties had not been properly addressed, including the occupants of the farms.

[7] According to the Applicants the Trust has always been concerned about the proposed mining area covered by the mining right. The farm Monastery forms the nucleus of various other farms owned by the Trust which are operated as a unit. There are various fixed infrastructure comprising of sheds, offices and the like on the property. The mining area covers the homestead on the property which is occupied by the Schimper family, and there are several labourers who reside on the property. The Applicants state that mining activities will include blasting with explosives and it does not appear that the mine submitted any tenable plans as to how it would manage threats so caused. The true impact of the mining activities and threats to the property and to "life and limb" had not been considered.

[8] The Trust has various concerns. All the productive boreholes on the farms are situated in the proposed mining area, with one the strongest situated on the outer-perimeter of the open pit which will be lost entirely should the existing pit be enlarged. The only supply of electricity by Eskom for all farming activities are situated within the proposed mining area and poses a risk for farming activities if adequate supply of electricity should be affected. Two dams, which are heavily relied upon for farming activities, fall within the new mining area and the water in the existing open pit is essential for maintaining the water table. Graves of four generations of the Schimper family and farm workers are situated within the proposed mining area and might be damaged by blasting activities. Prospecting activities done previously were done without any kind of service agreement. Moreover, the sketch plan which was submitted to the DG by the Third Respondent was materially lacking as it did not properly or at all indicate existing infrastructure and land use of the properties.

[9] At the request of the Trust the Principle Inspector of Mines: Department of Mineral Resources, Free State ("the department")

agreed to an inspection in loco. Same was held on 10 May 2013 between representatives of the Trust and officials of the department.

In a letter dated 16 May 2013 from the Trust's attorney to the department, the concerns as stated in paragraph [8] above raised by the Trust at the inspection, were recorded. Prior to the decision taken by the DG neither the department nor Third Respondent replied to same.

[10] According to the Applicants the salient facts relating to the existence of heritage buildings and graves in the area, the consequences on water resources and to the environment in general necessitated consultation with at least the departments of Agriculture, Water Affairs and Arts and Culture (the South African Heritage Resources Agency), and their views ought to have been considered by the DG prior to the making of a decision.

[11] It is the Applicants' case that Third Respondent was obliged to meaningfully consult with the them and submit a consultation report together with its application for the mining right. The said consultation report (“the report”) is annexed as Annexure "AVJ 7" to the Third Respondent's answering affidavit. In submitting that the consultation processes were flawed and that it ought to have been clear to the decision-maker that the interest of all parties had not been properly addressed, reliance is placed on submissions made by the Applicants in the appeal. Same is annexed to the founding papers as Annexure "FA 4". According to the Applicants information was misrepresented in the Consultation Report of inter alia the following aspects:

"No old buildings or graves are on the property or heritage sites are on the property."

"No infrastructure will be affected as no new roads are necessary." "No lawful occupiers (were) identified."

“Since no amjor(sic) mining operation will be conducted, no air or noise factors

will impact on the environment."

[12] In view of the factual matrix as alluded to by the Applicants above, it is submitted that it is evident that the DG did not consider the impact of the proposed mining activities on the lawful occupiers of houses or socio-economic rights, security of tenure, physical integrity and the like.

Reference is also made by the Applicants to "various other issues raised in the appeal" without stating under oath what these issues are that should be considered by the court.

[13] In its answering affidavit the Third Respondent annexes the Regulation 2(2) Plan (Annexure "AJV26D") which accompanied

the application for the mining right. From the plan it is evident that the mining area comprises 117.5344 hectares on the farms which are respectively 630.489 and 3.426 hectares. It is also patently clear from the plan that, although the farm house falls within the proposed mining area, no mining will be conducted where the homestead is located. The ore body to be mined is a vertical kimberlite pipe and the proposed mining aims at deepening and extending the existing open pit. The future outer perimeter of the pit is indicated on the maps annexed to the answering affidavit (inter alia Annexure "AJV 4") which was included in the mining work programme that accompanied the application for the mining right which served before the DG.

[14] The pit is located 300m from the farm house, as is clear from Google maps annexed to the answering affidavit (Annexures "AVJ8" and

) .

"AVJ25b”).Third Respondent explains that the actual surface mining operation will likewise not come close to the cottages of the labourers who reside within the mining area as it is approximately 1km away. With reference to all the maps it is denied by Third Respondent that the whole of the mining area is going to be excavated. The concerns of the applicants that mining operations would have an adverse effect in the ways as complained of were accordingly based on incorrect facts.

[15] In its replying affidavit Applicants elaborate on possible adverse effect by blasting in that it will damage or pose a threat to existing structures by referring to previous damage to the roof of the garage caused by a flying rock and submits that this fact was not properly disclosed to the DG. The deponent to Third Respondent's answering affidavit, Mr Auret Pritchard van Jaarsveld, is an expert in mining operations. Not only is he of the view that there is no reason to believe that blasting operations would have adverse consequences in respect of the farming infrastructures or graves, but as mine manager during the production period on the farm in the 1980's, there were no material problems relating to damages to heritage sites, houses, injuries or other problems and none were reported by the farmer. Furthermore, the concerns about the blasting were raised at the inspection and recorded in a report dated 5 July 2013 (Annexure "AVJ 32") in which reference is made to the inspection. This report also served before the DG in the Granting Submission.

[16] Detailed planning of blasting are operational issues which is obligatory to the holder of a mining right and regulated by the Mine Health and Safety Act 29 of 1996. It plays no role at the consideration stage of granting a mining right and is accordingly not a ground to seek a review of the decision to grant such a right. Likewise the effect of mining on boreholes and dams are regulated under the National Water Act 36 of 1998 and is therefore likewise not a consideration to be taken into account in the granting of a mining right. In any event, the borehole that stands to be lost during the enlargement of the existing pit, was drilled by the late Mr Schimper notwithstanding being warned of such a possibility. This is not denied by the Applicants in reply. As for the remainder of the boreholes and dams, no expert evidence or factual basis is laid by Applicants and these concerns are mere speculation. The fact that no impact on boreholes was reported in previous mining activities, is also not denied by the Applicants. As to the Applicants' concern that there may be possible damage to the Eskom line, no factual basis is laid by Applicants. Third Respondent had these lines installed in the 1980's, it was not effected by mining operations then and states that the mine will attend to have it rerouted if necessary as a disruption

of electricity would also have a negative impact on mining operations.

[17] According to the Applicants the decision to grant a mining right was flawed and thus stands to be reviewed. Ms Gildenhuys on behalf of Third respondent submitted that the alleged misrepresentations in the report whereupon Applicants rely that no meaningful consultation took place, should be viewed in light of all the information that served before the DG as alluded to above. Reference to no buildings or graves or heritage sites on the property would be understood in the context of the latter not being within the area to be mined. Reference to "no lawful occupiers identified" was taken out of context by the applicants as the relevant sentence in the report read as follows:

No lawful occupiers identified. 6 Worker's houses have been identified and the workers are on the property, The Monastery, with the permission of the farmer, Mr Jannie Schimper." This demonstrates that the DG was aware of the fact that there are workers and their houses are on the property.

[18] In respect of air or noise factors that will impact on the environment, these were addressed in the environmental report which

served before the DG and proposed mitigation measures were considered to be effective and efficient when implemented as outlined in the Environmental Management Programme.

[19] In terms of the acceptance letter by the Third Respondent was amongst others required to notify in writing and consult with the landowner(s) or lawful occupiers and any other affected party and electronically submit the results of such consultation before or on 23 March 2012. From the historical background to the granting of a mining right to Third Respondent, it is evident that the latter previously conducted mining operations on the property, the last time period from 1980 to 1998. The Third respondent also held prospecting rights over the property from 2007 to 2011. The present application for a mining right entails continuation of previous existing mining operations on the same property owned by the same family.

The parties were no strangers to communications over many years. The Schimper family was represented by various attorneys acting on their behalf and verbal and electronic communications via emails were exchanged. Third Respondent annexed examples of same to its answering affidavit.

[20] Applicants in their replying affidavit in reply to the many interactions between the parties as alluded to by Third Respondent,

held the view that consultations held after 23 March 2013 were irrelevant for purposes of proper consultation. Mr Louw argued that

the consultations so held in any event pertained to the prospecting rights only. Apart from several meetings set up and attempted to set up by the Third Respondent, a public consultation meeting was set up and held on 28 November 2012. Despite ample notice given to Applicants of this meeting, Applicants chose not to attend the meeting but their attorneys instructed another attorney to attend the meeting on their behalf. No questions or concerns were raised, whilst it is clear that Applicants had knowledge of this meeting which also formed part of the consultative processes. The inspection in loco on 10 May 2013 followed upon a letter addressed to the Regional Manager of the department in which the Applicants stated the Third Respondent “did not follow a proper consultation process...prior to the submission of an application for a prospecting right and the new application for a mining right.” As alluded to above the concerns raised by the Applicants were addressed and served before the decision­ maker.

[21] It was argued by Ms Gildenhuys that the consultation required by the MPRDA in respect of the granting of a mining right was aimed at affording a hearing to the persons affected by such a granting in order for them to object to same and to determine how any adverse impact on the could be managed or mitigated. It follows that all consultations even after 23 March 2012 up until the decision by the decision-maker should be considered. I agree.

[22] That the landowners knew the persons involved and were well aware of issues that could arise, is not denied by Applicants. I do not intend referring to each and every letter exchanged, but suffice it to say that from the correspondence it can be gleaned that the Applicants were less than co-operative in attending meetings with the Third Respondent. The Applicants persist that there simply was no consultation at all. This can clearly not be correct in view of the factual matrix stated above. In my view it is hard to phathom that the Applicants can be heard to complain that they were not properly consulted if they had the opportunity to participate actively and elected rather to persist in not being properly consulted with. What constitutes proper consultation should be decided on the merits of each case. I am satisfied that there is no merit in the ground for review advanced by the Applicants that there was not proper consultation or even no consultation processes at all in view of the aforementioned.

[23] Ms Gildenhuys submitted that the Applicants have not made out a case for a review based thereon that relevant considerations were not considered and that the decision was based on irrelevant considerations. I agree. In my view it has been demonstrated by Third Respondent that the DG as decision-maker was well appraised of the correct and relevant facts in making the decision to grant a mining right to the Third Respondent.

[24] In judicially reviewing the decision of an administrative body the role of the court is to ensure that the administrative process is conducted fairly and decisions so taken are in accordance with the law and consistent with the requirements of the controlling

legislation. If these requirements are met, and if the decision is one that a reasonable authority could make, a court would not

interfere with the decision so taken.

See: Bel Porto School Governing Body v Premier, Western Cape [2002] ZACC 2; 2002 (3) SA 265 (CC) at para [87].

[25] I am satisfied that the decision by the First Respondent to grant a mining right to the Third Respondent was lawful, reasonable and procedurally fair.

[26] It follows that I would have made the following order:

The application is dismissed with costs.

____

C. REINDERS, J

I agree.

S. CHESIWE, J

It is so ordered:

On behalf of the Applicants:

Adv. M.C. Louw

Instructed by:

Peyper Attorneys

BLOEMFONTEIN

On behalf of the Third Respondent: Adv. J.L. Gildenhuys

Lovius Block Attorneys