Sedibeng Iron Ore (Pty) Ltd v Rexton Holdings (Pty) Ltd and Others (717/2020) [2020] ZANCHC 63 (31 August 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE HIGH COURT, KIMBERLEY)

CASE NO.: 717/2020

Date heard: 05,06-08-2020

Date delivered: 31-08-2020

In the matter between:

SEDIBENG IRON ORE (PTY) LTD

Applicant

And

REXTON HOLDINGS (PTY) LTD

1st Respondent

MEC FOR ROADS AND PUBLIC WORKS,

2nd Respondent

NORTHERN CAPE PROVINCE

ISAACS KLIPFONTEIN CC

3rd Respondent(in

the counter­

Application

MINISTER OF MINERALS AND ENERGY

4th Respondent (in

the counter

application)

CORAM: WILLIAMS J:

JUDGMENT

WILLIAMS J:

1. This application and counter-application concerns the interests of three parties in the farm Klipfontein 437 (Klipfontein) situated in the administrative district of Hay, Northern Cape Province.

2. Sedibeng Iron Ore (PTY) Ltd, (Sedibeng), is the holder of a converted mining right to mine for iron ore on Klipfontien and is the applicant in the main application and the 1st respondent in the counter-application.

3. Rexton Holdings (PTY) Ltd (Rexton), is the holder of a prospecting right to prospect for manganese on Klipfontien and is the 1st respondent in the main application and the applicant in the counter-application.

4. Isaac Klipfontien CC is a close corporation established as a vehicle to effect transfer of Klipfontien to the community. Isaac Klipfontein CC, henceforth referred to as "the Klipfontein community", is the 3rd respondent in the counter-application.

5. Sedibeng and Rexton have a history of disputes as a result of their respective rights over Klipfontein. Sedibeng has been the holder of a converted mining right since about 2009 and it and its predecessors have been mining for iron ore on Klipfontein for many years. Rexton first made application for a prospecting right for manganese on Klipfontein during 2014. Sedibeng lodged an objection but the prospecting right was nevertheless granted during 2016. Sedibeng then appealed the granting of the prospecting right to Rexton in terms of s96 of the Mineral and Petroleum Resources Development Act 28 of 2002 (M PR DA). The prospecting right granted to Rexton was set aside after the internal appeal by Sedibeng was upheld. The matter was then referred to the Regional Mining Development and Environmental Committee (RMDEC) to consider Sedibeng's objection and to advise the Minister of Mineral Resources and Energy (the Minister) therein.

6. After considering the representations by both parties and, conducting a geological investigation and an inspection of Klipfontein, RMDEC recommended to the Minister that the prospecting right be granted to Rexton

7. On 18 February 2020 the Minister granted a prospecting right for manganese ore to Rexton. On 17 March 2020 Sedibeng launched a review application in the High Court of South Africa (Gauteng Division, Pretoria) for the review and setting aside of the prospecting right granted to Rexton. This review is still pending.

8. On 17 March 2020 Rexton initiated proceedings in terms of s 54(1) of the MPRDA after the attorneys for the Klipfontein community as well as Sedibeng's attorneys informed it of their clients' refusal to allow Rexton access Klipfontein to commence prospecting operations. The Klipfontien community and Sedibeng in turn initiated proceedings in terms of s54(7) of the MPRDA.

9. On 17 April 2020 Sedibeng launched an urgent application to interdict Rexton and the MEC for Roads and Public Works, Northern Cape to access Klipfontein based on regulations issued in terms of the National Disaster Management Act 57 of 2002 (the NOMA). This application was removed from the roll on 21 April 2020.

10. On 28 April 2020 Sedibeng launched an urgent application in the North Gauteng High Court (Pretoria) for an interdict against Rexton to prevent it from prospecting on Klipfontein pending final determination of the review application.

11. The application in casu was brought by Sedibeng on 4 May 2020 on an urgent basis to interdict and restrain Rexton from entering onto or being on Klipfontien in breach of any regulations promulgated under the NOMA. The order sought was in the form of a rule nisi returnable on 30 June 2020.

12. The 2nd respondent in the main application is the MEC for Roads and Public Works, Northern Cape. No relief is sought against the 2nd respondent and it is cited purely for the interest the Department may have in the matter as custodian of Klipfontein on behalf of the Northern Cape Provincial Government, the registered owner of Klipfontein. Rexton and the Northern Cape Provincial Government entered into a lease agreement in respect of Klipfontein during March 2020.

13. Sedibeng alleges in its founding affidavit that despite an undertaking by Rexton not to access Klipfontein during the lockdown period, which lasted until 30 April 2020, a representative of Rexton, a certain Mr T Botha, accompanied officials from the Department of Roads and Public Works on a site visit of Klipfontein under the guise of being a geologist for the Department. Thereafter on 1 May 2020 after having been advised by Sedibeng's Mine Manager, Mr Tau Koaho not to enter the mining area since Covid-19 management was critical to Sedibeng, seven of Rexton's representatives intent on accessing Klipfontein, to commence prospecting operations on the strength of Rexton's lease agreement and its prospecting right, overpowered Sedibeng's security guards at the access gate to the mine, broke open the lock of the gate and forced entry to the mine in direct violation of mine health and safety as well as the Level 4 Regulations which were in place at the time. Sedibeng alleged that two of the Rexton representatives were not wearing face masks in direct contravention of the regulations, consequently placing the entire mine and the community at risk.

14. Sedibeng contended that it had a clear right as the holder of a mining right over Klipfontein and being in possession of Klipfontein. It is further obliged to maintain strict Covid-19 protocols and cannot allow parties who are not authorised by Sedibeng or who have not complied with health and safety protocols access to Klipfontein.

15. Sedibeng contended furthermore that mining companies were expected to implement rigorous screening and testing of workers and were under extreme pressure to ensure that its workers are not exposed to the Covid-19 virus. That, should Rexton fail to adhere to the Level 4 Regulations, it will endanger the lives of the workers of Sedibeng and their families.

16. Sedibeng, importantly contended that Level 4 Regulation provided for mining operations to restart under strict conditions and not prospecting operations as prospecting operations do not fall under essential services as defined by the Level 4 Regulations.

17. Finally, Sedibeng contends that there was no suitable alternative remedy to stop Rexton from accessing Klipfontein, given its breach of past undertakings.

18. When the urgent application served before me on 4 May 2020, I issued a rule nisi by agreement, returnable on 14 May 2020. Rexton filed an opposing affidavit/founding affidavit in its counter-application. The rule was extended again by agreement on 14 May 2020 and 17 June 2020 in order inter alia for the parties to file further affidavits

19. The Klipfontein community's involvement can be summarised as follows:

19.1 The Klipfontein community consists of four families which previously resided, as part of the Khosis Community, on land which was allocated by the State for purposes of establishing the Lohatla Military Base. During about 1992 the majority of the Khosis community were resettled in the township of Jenn Haven. The Klipfontein community were not agreeable to move to Jenn Haven and preferred to resettle on Klipfontein.

19.2 The Klipfontein community alleges that the State purchased the Klipfontein from a private owner during 1992 for purposed of resettling the Klipfontein community, with the intention of transferring ownership of Klipfontein to the members of the Klipfontein Community. Such transfer never occurred dispite resolutions and undertakings by various Northern Cape Provincial Government officials over the years. The Northern Cape Provincial Government however currently dispute the Klipfontein community's entitlement to the occupation or transfer of Klipfontein. The Klipfontein community has recently lodged an application for the transfer to Klipfontein and the setting aside of the lease agreement between Rexton and the Northern Cape Provincial Government.

19.3 The Klipfontein community opposed the counter­ application herein on the basis that s 54(7) proceedings initiated by themselves had not been finalised yet and that Rexton had not given them the requisite 21 days notice in terms of s 5A (c) of the MPRDA. At this stage it should be mentioned that the Regional Manager has dismissed the complaints of both Sedibeng and the Klipfontein community. An appeal has been lodged.

20. The initial relief sought by Rexton in its counter-application was to:

20.1 Compel Sedibeng to grant Rexton access to the farm Klipfontein for purposes of exercising its statutory right to prospect for manganese ore as set out in its Prospecting Right;

20.2 Compel the MEC for Roads and Public works, Northern Cape Province (the second respondent) to allow Rexton as lessee to take "Vacua Possessio" of the leased property (the farm Klipfontein) in terms of the Lease Agreement concluded with the registered land owner and to enjoy the right of access and possession without any hindrance by Sedibeng and the Klipfontein community and any third party; and

20.3 Interdict Sedibeng from illegally mining manganese ore on Klipfontein.

21. After filing the counter-application , Rexton on 11 May 2020, filed a Notice of Motion in the counter-application in which it sought only that Sedibeng allows it access to Klipfontein and that Sedibeng pay the costs of the counter-application. In its amended Notice of Motion, Rexton seeks the following relief (as amended on 5 August 2020):

"2. It is declared that First Respondent is entitled to access the Farm Klipfontein 437, district Hays, Postmasburg, Northern Cape pursuant to the prospecting right granted to First Respondent by Fourth Respondent on 18 February 2020, and in accordance with the provisions of section 5(3) of the Mineral and Petroleum Resources Development Act 28 of 2002.

3. The Applicant is ordered to grant First Respondent access to the farm Klipfontein 437, district Hay, Postmasburg area, Northern Cape in accordance with the provisions of section 5(3) of the Mineral and Petroleum Resources Development Act 28 of 2002, for purposes of exercising the prospecting right granted by the Fourth Respondent to First Respondent on 18 February 2020, in accordance with the provisions of section 5(3) of the Mineral and Petroleum Resources Development Act 28 of 2002.

Alternatively to paragraph 3 above, that the Applicant be ordered to grant First Respondent access to the farm Klipfontein 437, District Hay, Postmasburg area, Northern Cape in accordance with the provisions of section 5(3) of the Mineral and Petroleum Resources Development Act 28 of 2002, for purposes of exercising the prospecting right granted by the Fourth Respondent to First Respondent on 18 February 2020, in accordance with the provisions of section 5(3) of the Mineral and Petroleum Resource Development Act 28 of 2002, but subject to the First Respondent complying with the provisions of sec 5A (a) and 5A (c) of the Mineral and Petroleum Resources Development Act 28 of 2002. by giving Applicant and Third Respondent 21 days' notice of First Respondent's intention to commence its prospecting activities."

22. Given their history the disputes between Sedibeng and Rexton are numerous. The papers in this application/counter­ application run to some 2000 pages. I do not intend to traverse all the issues between the parties, only those pertinent to the relief sought.

The main application

23. Rexton denies that Mr Botha was in its employ on 29 April 2020 and also denies that two if its officials were not wearing masks on 1 May 2020. Rexton also denies that its officials had overpowered the security guards to gain entry to Klipfontein. The explanation is that the security guards did not have a key to the lock and in fact assisted the Rexton delegation by holding the gate while the lock was cut through. I consider this explanation to be rather far fetched.

24. Be that as it may, Mr Nel for Rexton argues, that the relief sought by Sedibeng was based on Alert Level 4 Regulations. At the time the application was heard, Alert Level 3 applied, under which the mining industry had been opened completely, thus rendering the main application moot.

25. Mr Van Niekerk SC, who with Mr Olivier appeared for Sedibeng, persisted that the order sought in the main application is not moot in that it is not limited to the breach of Regulations under Alert Level 4 but applies to "any" regulations promulgated under the NOMA. As such, the argument goes, Sedibeng as an "institution" in terms of the Regulations is still tasked with the obligation to ensure that their employees are not exposed to the Covid-19 virus and the risk of illness to them and their families.

26. Regulation 16(6) of Regulations 480 published in Government Gazette 43258 dated 29 April 2020, which applied to all industries, businesses, entities, both private and in the public sector which were permitted to operate during Alert Level 4, provided that such industries or businesses (under which Sedibeng resorted) must:

"(a) designate a COVID-19 compliance officer who will oversee the:

(i) implementation of the plan referred to m subregulation (b); and

(ii) adherence to the standards of hygiene and health protocols relating to COVID-19 at the workplace:

(b) develop a plan for the phased in return of their employees to the workplace, prior to reopening the workplace for business, which plan must correspond with Annexure E and be retained for inspection and contain the following information:

(i) which employees are permitted to work;

(ii) what the plans for the phased-in return of their employees to the workplace are;

(ii) what health protocols are in place to protect employees from COVID-19; and

(iv) the details of the COVID-19 compliance officer;

(c) phase in the return of their employees to work to manage the return of employees from other provinces, metropolitan and district areas; and

(d) develop measures to ensure that the workplace meets the standards of health protocols, adequate space for employees and social distancing

measures for the public and service providers, as required."

27. These provisions relate to Covid-19 protocols at the workplace . The Regulations do not provide a definition for "workplace", neither does the MPRDA. The Mine Health and Safety Act, 29 of 1996 does however provide a definition for "working place" under s 102 thereof as being "any place at a mine where employees travel or work"

28. The Regulations do not impose any obligation on institutions, industries or businesses to provide for Covid-19 health and, safety protocols outside of the workplace. Mr Nel's argument in this regard, that it could not have been the intention of the legislator that Sedibeng act as Covid-19 watchdog over the whole extent of Klipfontein (almost 3000 hectare with more than one access gate), in my view holds water.

The Regulations relating to Covid-19 health and safety protocols, even under Level 4 did not entitle Sedibeng to refuse authorised stakeholders access (in terms of the regulations) to the whole of Klipfontein, but only to those areas where their employees worked and travelled. On this basis alone the main application should be dismissed.

The counter-application

29. S 5(3) of the MPRDA provides that:

"(3) Subject to this Act, any holder of a prospecting right, a mining right, exploration right or production right may-

(a) enter the land to which such right relates together with his or her employees, and bring onto that land any plant, machinery or equipment and build, construct or lay down any surface, underground or under sea infrastructure which may be required for the purpose of prospecting, mining, exploration or production, as the case may be;

(b) prospect, mine, explore or produce, as the case may be, for his or her own account on or under that land for the mineral or petroleum for which such right has been granted;

(c) remove and dispose of any such mineral found during the course of prospecting, mining, exploration or production, as the case may be;

·

30. The rights granted to the holder of a prospecting right (such as Rexton) is subject to s SA of the MPRDA which reads as follows:

"5A. Prohibition relating to illegal act.- No person may prospect for or remove, mine, conduct technical co-operation operations, reconnaissance operations, explore for and produce any mineral or petroleum or commence with any work incidental thereto on any area without-

(a) an environmental authorisation;

(b) a reconnaissance permission, prospecting right, permission to remove, mining right, mining permit, retention permit, technical co-operation permit, reconnaissance permit, exploration right or production right, as the case may be; and

(c) giving the landowner or lawful occupier of the land in question at least 21 days written notice...

31. Sedibeng's opposition to the counter-application is based inter alia on the fact that Rexton has, despite numerous requests, failed to provide an environmental authorisation which is required under s SA (a) before any prospecting operations may commence and has also not given the required 21 days notice to the landowner or lawful occupier in terms of s SA(c). As such it is argued that Rexton is not entitled to the relief sought in its counter-application.

32. With regards to the provisions of s 5A(c) "owner' in relation to land is defined in s1 of the MPRDA as meaning:

(i) the person in whose name the land is registered; or (ii) if it is land owned by the State, means the State together with the occupant thereof .

33. Mr Nel conceded that the above definition of "owner' would apply to the Klipfontein community since the farm Klipfontein is owned by the state. There is also a dispute as to whether Sedibeng is a lawful occupier of Klipfontein - it being disputed that the Klipfontein community had any right to enter into a Surface Use Agreement with Sedibeng and the registered owner of Klipfontein, the Northern Cape Provincial Government, denying that it gave Sedibeng permission to occupy Klipfontein. Be that as it may, Rexton concedes that it did not give the Klipfontein community or Sedibeng the requisite 21 days notice. It has only given notice to the registered landowner - hence the amendment to the notice of motion to include the alternative to paragraph 3 thereof.

34. During the course of the second day of argument Mr Nel made application to hand up a document from the bar in terms of s20 of the Civil Proceedings Evidence Act 25 of 1965, which reads as follows:

"20.Certified copies of or extracts from official documents sufficient. -

1. Except when the original is ordered to be produced any copy of or extract from any document in the custody or under the control of any State official by virtue of his office, certified as a true copy or extract by the head of the department in whose custody or under whose control such document is or by any officer in the service of the state authorized by such head, shall be admissible in evidence and be of the same force and effect as the original document.

2. Any such copy or extract may be handed in by any party who desires to avail himself thereof.

3. No such copy or extract shall be furnished to any person except upon payment or an amount in accordance with the tariff of fees prescribed by or under any law or, if no such tariff has been prescribed an amount in accordance with such tariff of fees as the Minister in consultation with the Minister of Finance may from time to time determine."

33. This application was opposed by Mr Van Niekerk on the basis that the fact that such a certified copy of an official document shall be admissible in evidence does not entitle Rexton to circumvent the normal rules with respect to the production of documents in

application proceedings.

34. The document which Mr Nel proposed to hand up was apparently in the possession of Rexton since February 2020 - long before the main

application was launched. It was apparently only certified on the morning of 6 August 2020, hence the application.

35. S 20(1) of the Civil Proceedings Evidence Act has been introduced as an exception to the rule that the contents of a document may be proved only by production of the original, specifically so that the original state document may be kept in safe custody. The requirements of admissibility and production have otherwise not been affected by s20. Without proper cause being shown for the production of the document at such a late stage I was of the view that the prejudice to the opposition and possible ensuing delay in the proceedings far outweighs the possible prejudice to be suffered by Rexton should the document not be allowed. I refused to allow the document.

35. The question which remains is whether Rexton is entitled to the relief if claims in the absence of compliance with s 5A(a) and 5A (c) of the MPRDA. Mr Van Niekerk has argued that absent these requirements Rexton has failed to show a clear right which is a prerequisite for the relief claimed and as such the counter application stands to be dismissed.

36. I agree with Mr Van Niekerk. Rexton seeks a declaratory order coupled with an interdict. In both instances a clear right to the relief has to be established. The counter-application thus stands to be dismissed.

37. The only issue remaining is that of costs. Normally an appropriate costs order would be one that costs follow the result. In the case of the main application I am of the view that an exception to the norm would be appropriate. Sedibeng was fully entitled to bring the main application based on Rexton's actions and the Level 4 Regulations which did not authorise prospecting activities and is entitled to its costs up until 1 June 2020 when the Level 3 Regulations took effect. As far as the costs relating to the postponements are concerned, such postponements were all made by agreement between the parties and as such I am of the view that each party bear its own cost in that regard.

The following orders are made:

a) The rule nisi issued on 4 May 2020 in the main application is discharged and the application is dismissed.

b) The first respondent (Rexton Holdings (Pty) Ltd) is to bear the costs of the main application until 1 June 2020. Any costs therafter are to be borne by the applicant.

c) The counter-application is dismissed with costs, inclusive of the costs of two counsel.

e) Each party is to bear his own costs with regard to the postponements of 4 May 2020, 14 May 2020 and 17 June 2020.

CC WILLIAMS

JUDGE

For Applicant:

Adv. Van Niekerk SC

with Adv. A Olivier

Mervyn Taback Inc.

c/o Van der Wall Inc.

For 1st Respondent/Applicant: Adv. P Nel

Jaco Roos Attorneys Inc.

c/o Magoma Attorneys