Sydney on Vaal Property Association v Theta Mining Proprietary Limited and Others (363/2019) [2020] ZANCHC 6 (28 February 2020)

Reportable:

Yes/No

Circulate to Judges:

Yes/No

Circulate to Magistrates:

Yes/No

IN THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE HIGH COURT, KIMBERLEY)

CASE NO.: 363/2019

Date heard: 05-05-2019

Date delivered: 28-02-2020

In the matter between:

SYDNEY ON VAAL PROPERTY ASSOCIATION

Applicant

And

THETA MINING PROPRIETARY LIMITED

1st Respondent

LONRHO MINING SA PROPRIETARY LIMITED

2nd Respondent

SOL PLAATJE MUNICIPALITY

3rd Respondent

MINISTER OF PUBLIC WORKS

4th Respondent

MEC FOR THE DEPARTMENT OF AGRICULTURE,

LAND REFORM AND RURAL DEVELOPMENT

NORTHERN CAPE

5th Respondent

INISTER OF MINERAL RESOURCES

6th Respondent

THE REGIONAL MANAGER, NORTHERN CAPE REGION

OF THE DEPARTMENT OF MINERAL RESOURCES

7th Respondent

SCARLET SUN 15 (PTY) LTD

8th Respondent

CORAM: WILLIAMS J:

JUDGMENT

WILLIAMS J:

1. The applicant, the Sydney on Vaal Community Property Association (the CPA), is the beneficial owner of the farms Drooge Veldt No 292, Portion 1 of Mozib and Portion 1 of Than by virtue of the settlement of a land restitution claim in terms of the Restitution of Land Rights Act, 22 of 1994.

2. The eighth respondent, Scarlet Sun 15 (Pty) Ltd, (Scarlet Sun) is the holder of a mining right over both Mozib and Than. The CPA holds 51% shareholding in Scarlet Sun.

3. The first respondent, Theta Mining Proprietary Limited (Thetha), is the holder of a mining right over Drooge Veldt No 292 (the property).

The second respondent, Lonrho Mining SA Proprietary Limited (Lonrho) is the contractor to Theta as well as a 49% shareholder. The Vaalbos Community Trust holds 51% of the shares in Theta.

4. The beneficiaries of the Vaalbos Community Trust are, according to Theta, those members of the Sydney on Vaal community who do not want to be associated with the CPA. There is a dispute between the parties as to the identity of the beneficiaries of the Vaalbos Community Trust and their right to benefit from the land. This dispute does however not impact on the determination of the issues in casu.

5. A brief background, merely to place this application in context, is called for. During 2006 Theta had obtained a prospecting right over the property. Scarlet Sun, driven by the CPA had also applied for a prospecting right, but was unsuccessful. Since 2015 Theta holds a mining right over the property to mine diamonds for 20 years.

6. The present application is but one in an impressive history of litigation between the CPA and Theta and which appears to stem mainly from Theta’s mining right over the property. An application to review and set aside the mining right, launched by the CPA during September 2015, is still pending.

7. Further litigation after Theta obtained its mining right includes inter alia:

an application brought by Theta and Lonrho against the CPA and Scarlet Sun seeking access to the property over the farm Than. On 9 February 2018 Lever AJ granted an interim access order subject to compliance with reasonable mine health and safety requirements;

during June 2018 Theta and Lonrho brought an application for contempt of court since the CPA and Scarlet Sun refused access over Than, contending that respondents failed to comply with the reasonable and necessary health and safety requirements. On 31 August 2018, O’Brien AJ granted an order as to what constitutes reasonable and necessary health and safety requirements and postponed the contempt proceedings; and

on 20 February 2018 the CPA and Scarlet Sun launched an application for interdictory relief preventing Theta and Lonrho from mining pending rezoning of the property. This application was dismissed during October 2018.

8. The present application was launched during February 2019. Herein the CPA seeks under Part A of the Notice of Motion a spoliation order against Theta and Lonrho ordering them to immediately restore undisturbed possession of the property to the CPA, pending the determination of Part B of the Notice of Motion together with an interdict prohibiting Theta and Lonrho from engaging in any mining activities on the property, pending the determination of Part B. In Part B of the Notice of Motion the CPA seeks to interdict Theta and Lonrho from entering or engaging in any mining activities on the property unless and until the compensation payable to the CPA in terms of s 54 of the Mineral and Petroleum Resources Development Act 28 of 2004 (the MPRDA) has been determined by agreement with the CPA or in terms of s54 (4) of the MPRDA.

9. Theta and Lonrho, the only opposing respondents and who henceforth will be referred to as the respondents, countered the application with a Rule 7 notice disputing the authority of the CPA’s attorneys Van de Wall Inc to act on behalf of the CPA. The Rule 7 notice led to the CPA seeking a declaratory order on 11 March 2019 confirming their attorneys authority so to act. Phatshoane J found in favour of the CPA on 12 March 2019, but these proceedings had the effect of delaying the main application. On 15 March 2019, the date on which Part A of the application was set down for hearing the matter was postponed to 3 May 2019, with the parties reaching agreement that, pending the finalisation of Part A of the application and for purposes of the CPA quantifying any damages the CPA might ultimately contend for, that the CPA is entitled to appoint a nominee to be present at all final recoveries, weighing and recording of diamonds in the diamond register in respect of all diamonds mined on the property by the respondents.

10. With this arrangement in place one would have thought that the CPA would at least have abandoned the relief sought in Part A, but at the hearing of the matter Mr Knoetze SC informed that the CPA intended to pursue both the spoliatory relief sought in Part A together with Part B of the Notice of Motion.

11. The relief sought relies entirely on the provisions of s 54 of the MPRDA and the Constitutional Court’s findings in Maledu v Itereleng Bakgatla Mineral Resources (Pty) Ltd 2019(1) BCLR 53 (CC). The CPA is of the view that the Maledu judgment has effectively held that the holder of a mining right is not allowed to enter and mine on a property unless the procedure laid down in s54 of the MPRDA has been finalised.

12. To this end the allegations regarding spoliation are that the respondents on 4 February 2019 unlawfully and without the permission

of the CPA entered the property with security guards and mining equipment. Despite an arrangement reached between the CPA and the respondents in the presence of a police general, that the parties disperse and meet later to discuss their issues, the respondents of its own accord, continued over the following three days to bring heavy mining machinery onto the property. On 15 February 2019, the depondent to the founding affidavit, Mr Tommie Swarts and a Mr Maile went to the property to inspect water points for the cattle and game on the property when they were stopped by a guard who insisted that they sign a register and be escorted while they completed their duties on the property. While on the property they noticed that a water pipe line had been damaged by the respondents’ workers and that the respondents were using the equipment they had brought onto the property. These events prompted the CPA to bring the spoliation application on an urgent basis with the interdict under Part B to be determined at a later stage.

13. The respondents oppose both Part A and Part B of the application on the basis inter alia that:

(i) the CPA has misinterpreted the Maledu judgment; and (ii) that in any event the s54 requirements have been complied with in that the parties entered into a Surface Use Agreement (SUA) during 2013 and more recently an agreement referred to as a Term Sheet, which both addressed the compensation payable to the CPA as envisaged in s 54.

S 54 of the MPRDA reads as follows:

“54. Compensation payable under certain circumstances (1) The holder of a reconnaissance permission, prospecting right, mining right or mining permit must notify the relevant Regional

Manager if that holder is prevented from commencing or conducting any reconnaissance, prospecting or mining operations because the owner or the lawful occupier of the land in question-

(a) refuses to allow such holder to enter the land;

(b) places unreasonable demands in return for access to the land; or

(c) cannot be found in order to apply for access.

(2) The Regional Manager must, within 14 days from the date of the notice referred to in subsection (1)-

(a) call upon the owner or lawful occupier of the land to make representations regarding the issues raised by the holder of the reconnaissance permission, prospecting right, mining right or mining permit;

(b) inform that owner or occupier of the rights of the holder of a right, permit or permission in terms of this Act;

(c) set out the provisions of this Act which such owner or occupier is contravening; and

(d) inform that owner or occupier of the steps which may be taken, should he or she persist in contravening the provisions.

(3) If the Regional Manager, after having considered the issues raised by the holder under subsection (1) and any written representations by the owner or the lawful occupier of the land, concludes that the owner or occupier has suffered or is likely to suffer loss or damage as a result of the reconnaissance, prospecting or mining operations, he or she must request the parties concerned to endeavor to reach an agreement for the payment of compensation for such loss or damage.

(4) If the parties fail to reach an agreement, compensation must be determined by arbitration in accordance with the Arbitration Act, 1965 (Act No. 42 of 1965), or by a competent court.

(5) If the Regional Manager, having considered the issues raised by the holder under subsection (1) and any representations by the owner or occupier of land and any written recommendation by the Regional Mining Development and Environmental Committee, concludes that any further negotiation may detrimentally affect the objects of this Act referred to in section 2(c), (d), (f) or (g), the Regional Manager may recommend to the Minister that such land be expropriated in terms of section 55.

(6) If the Regional Manager determines that the failure of the parties to reach an agreement or to resolve the dispute is due to the fault of the holder of the reconnaissance permission, prospecting right, mining right or mining permit, the Regional Manager may in writing prohibit such holder from commencing or continuing with prospecting or mining operations on the land in question until such time as the dispute has been resolved by arbitration or by a competent court.

(7) The owner or lawful occupier of land on which reconnaissance, prospecting or mining operations will be conducted must notify the relevant Regional Manager if that owner or occupier has suffered or is likely to suffer any loss or damage as a result of the prospecting or mining operation, in which case this section applies with the changes required by the context.”

14. If agreement as to compensation had been reached between the parties, as alleged by the respondents, the provisions of s54 would not apply in the context of this application. However the CPA in its founding affidavit placed in dispute the validity of both the SUA and the Term Sheet. The CPA alleges that the SUA had been signed by a previous chairperson who at the time of signature had already been removed from that position and thus had no authority to do so. The Term Sheet attached to the respondents’ papers is alleged to be a forgery and in any event had been rejected by the members of the CPA at a special business meeting of its members held on 12 January 2019.

15. I do not intend to deal in any great detail with this dispute of fact. Mr Gilbert who appeared for the respondents, did not place much reliance on the SUA. The original Term Sheet appears to have gone missing, with the parties each alleging that the other should be in possession of it. The minutes of the CPA meeting of 12 January 2019, which Phatshoane J accepted in the Rule 7 proceedings show that a Memorandum of Understanding, which I assume to be the Term Sheet, had been rejected by the members of the CPA. For purposes of this application I will therefore accept that the parties had not reached agreement on compensation and determine the issues at hand on the basis of the requirements for the relief sought.

The spoliation order

16. The mandament van spolie is available where a person has been deprived unlawfully of the whole or part of his possession of movable or immovable property. What the applicant must therefore prove in order to succeed with a spoliation order are that it was in peaceful and undisturbed possession of the property and that it has been unlawfully deprived of the property. The purpose of the mandament van spolie is to speedily restore possession to the person who has been deprived thereof before the merits of the case can be considered.

17. The respondents dispute the CPA’s entitlement to the mandament van spolie on the basis that they - the respondents’ employees and consultants - had access to and had entered the property since the order of O’ Brien AJ on 31 August 2018.

They contend that they had entered the property on a regular basis since then in order to do the necessary preparation work on the property before commencing with mining after the December 2018/January 2019 holidays. According to the respondents the 4th of February 2019 was no different from any other day except for the fact that the respondents had requested police accompaniment since they were informed of possible disruptive activities by members of the CPA in order to prevent them from entering the property. The respondents state that they were in fact co-possessors with the CPA since 31 August 2018 and had not denied the CPA access to the property, provided that the necessary mine health and safety requirements had been complied with.

18. The CPA holds the view on the other hand that the respondents were aware all along that the CPA was not willing to allow the respondents to mine on the property and a letter written by the chairperson of the CPA, Mr H Langeveldt to the respondents’ attorneys on 2 October 2018 should have acted as trigger for the respondents to approach the Regional Manager in terms of s 54 of the MPRDA. The argument proceeds that since the respondents had failed to invoke the provisions of s 54 and in light of the Maledu judgment they could not lawfully enter and mine on the property.

19. The relevant portion of the letter of 2 October 2018 is the following:

“9. In addition, section 54 of the MPRDA grants the CPA the right to claim compensation for losses and damages caused by or that will be caused by the activities of Theta. The CPA is also protected by the zoning legislation as stated above. This can also not be disputed by Theta.

10. Theta refused to provide all the documentation listed in paragraph 3 of our said email. The CPA has no alternative but to approach the DMR in terms of section 54(6) and (7) and ask that the DMR prohibit the commencement or continuing of mining operations until the dispute has been determined by arbitration or a competent court. It is recorded that the members of the CPA have specifically been excluded as beneficiaries of the Trust that holds 51% of the shares in Theta.

20. Reliance on this letter as a trigger for the respondents to implement the s54 provisions is somewhat problematic for the CPA for reasons, amongst others, that it is the CPA who threatened to implement s54, which it failed to follow through with, at least not until 4 February 2019. Instead it entered into negotiations with the respondents as to compensation for the land use and on their own version allowed the respondents access to the property, albeit begrudgingly. There can be no reason for the respondents in these circumstances to have initiated the s54 procedure or refrain from entering the property for the purposes of exercising its mining right, when they were allowed to enter.

21. In my view the CPA has failed to prove that it was in peaceful and undisturbed possession of the property or that it has been unlawfully

deprived of the property. Consequently the relief sought in Part A of the Notice of Motion cannot succeed.

The interdictory relief (Part B)

22. As stated hereinbefore, the case for the CPA hinges on an interpretation of the Maledu judgment to the effect that, in the event of a dispute between the landowner or lawful occupier and the holder of the mining right, the latter is not allowed to enter the property and commence with mining activities unless the s 54 procedure has been finalised.

23. To place this argument in perspective it is necessary to give a short overview of the facts in the Maledu case.

23.1 The applicants in Maledu were the lawful occupiers of a farm which they and their predecessors had occupied for nearly a century. They conducted stock and crop farming operations on the farm and had over the years erected houses and shacks for occupation by themselves and their employees as well as stock kraals and pigpens. The respondents were holders of mining rights on the farm and commenced with full-scale mining operations on the farm during 2014. These operations impacted on the peaceful and undisturbed possession of the applicants, as a result of which they obtained a spoliation order against the respondents during 2015.

23.2 This prompted the respondents to seek an eviction order against the applicants as well as an interdict restraining them from entering,

remaining or conducting farming operations on the farm.

The High Court found, (despite defences inter alia: that the consultative process had been flawed and; that the respondents were precluded from obtaining an interdict and commencing with mining activities until the process provided for in s 54 of the MPRDA had been finalised), with reference to the decision in Joubert v Maranda Mining Company (Pty) Ltd 2010(1) SA 198 (SCA), that the respondents had attempted in good faith to comply with the MPRDA and that they were free to commence their mining operations notwithstanding the fact that the s 54 process had not been finalised and concluded that the applicants were not without a remedy for they retained their rights to claim compensation in terms of s 54.

23.3 On appeal to the Constitutional Court, the applicants persisted with their defences against the High Court’s decision to grant the application.

23.4 The Constitutional Court found that the case primarily concerned two competing rights in the context of evictions. The first being the right of the applicants to occupy and enjoy the farms which they and their ancestors have enjoyed for over a century and the other, the right of the respondents to mine on the same farm. It was accepted that it was not possible for the respondents to undertake their mining operations while the applicants remained in occupation of the farm.

23.5 The rights of the respondents as mining right holders as set out in s 5 of the MPRDA (inter alia to enter the land to which such right relates, to bring on to the land machinery and equipment and to build or construct any surface,

underground or under sea infrastructure for mining purposes; to mine for his or her own account and to remove and dispose of any minerals found), had to be balanced with the rights afforded to the applicants as informal land right holders under the Interim Protection of Informal Land Rights Act 31 of 1996 (the IPILRA). In short, s 2(1) of the IPILRA provides that no person may be deprived of any informal right to land without his or her consent; s 2(2) states that where land is held on a communal basis, a person may, subject to s 2(4) be deprived of such land or right in land in accordance with the custom and usage of that community; s 2(4) states that the custom and usages of a community shall include the principle that a decision to dispose of such right may only be taken by a majority of the holders of such rights present at a meeting convened to consider such disposal, that sufficient notice be given and in which they had been given a reasonable opportunity to participate.

23.6 The Constitutional Court held that the respondents’ assertions that a proper consultation process had been followed and that s2 (4) of the IPILRA had been complied with in that a surface lease agreement had been adopted at an open community meeting of the adult members of the applicants community, did not pass muster. The Constitutional Court most importantly held that the dispute resolution process in s 54 of the MPRDA was available to the respondents. Moreover that it was not open to the respondents

to have instituted eviction proceedings without first exhausting the remedy provided for in s 54 and which in fact the respondents had initiated before bringing the application.

24. It is obvious from the above overview, which turned out be longer than anticipated, that the issues in casu are on a different footing to that of Maledu which concerned the deprivation of protected land rights versus mining rights. The issue in the present case concerns the payment of compensation for surface use of the property. That much is clear from the relief sought in the Notice of Motion, despite the various other disputes raised in the papers.

25. The CPA is not, as far as I could glean, opposed to mining taking place on the property, just that reasonable compensation be paid. The issue of the validity of the respondents’ mining right is a matter left for determination in the review.

26. Following upon the Maledu judgement, the stance taken by the CPA is that there is an obligation on the respondents, after receiving letters from the CPA dated 2 October 2018 and 24 January 2019 alerting them to the process envisioned in s 54, to initiate and pursue the s 54 process to its finality before it can commence its mining operations. The respondents having failed to do so, the CPA now contends that it has no other satisfactory remedy other than to seek an interdict against the respondents.

27. I have already referred to the relevant portion of the letter of 2 October 2018 in paragraph 19 above. The relevant paragraphs of the letter of 24 January 2019 read as follows:

“5.1 The Constitutional Court made serious and relevant findings regarding the competence to exercise the entitlements of the holder of a mining right and the Informal rights to land protected by the interim Protection of Informal Rights Act, 31 of 1966 (IPILRA). The case is Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd (2018) ZACC 41 (“the Maledu case”).

5.2 The Constitutional Court held that the award of a mining right constitutes a deprivation informal rights to land which rights the CPA and the community and its members are also holding (see paragraphs 98 to 106 of the Maledu case).

5.3 The Constitutional Court also ruled that the holder of a mining right has a duty to exhaust the internal process under Section 54 of the MPRDA, before the holder may approach the court relief to enter the land in question (paragraph 85 to 97).

5.4. Your clients did not exhaust this internal remedy and are therefore not entitled to commence mining or to enter the land.

5.5 Your clients will therefore not be allowed to enter Drooge Veldt and commence with mining operations unless and until the internal process under Section 54 of the MPRDA has been complied with according to the ruling of the constitutional Court.”

28. It is obvious from the above letter that the CPA has now changed its tack since the 2 October 2018 letter, insisting that the respondents implement the s 54 process before it is allowed to mine. This attitude has been maintained during argument despite the CPA itself having notified the Regional Manager in terms of s 54(7) on 4 February 2019 to commence the s 54 process in order to determine compensation to the CPA, and to order the respondents not to enter the property and commence with mining operations until compensation has been determined and a list of 13 other issues have been addressed. At the time the application was heard, some 3 months after the s 54(7) notification, the Regional Manager had not yet responded but there was also no evidence of the CPA making any effort to pursue that avenue, relying instead on Maledu for its attitude that the respondents are obliged to pursue the s 54 process before it can mine on the property.

29. What the CPA loses from sight is that the Maledu judgment deals primarily with the issue of the respondents (the mining right holder), who obtained an eviction order and an interdict

without having first exhausted the internal remedy provided for in s54. The Constitutional Court found that the MPRDA contained

its own internal mechanism for resolving obstacles of the kind encountered by the respondents when they sought to exercise their

mining rights and that the respondents could not bypass the express provisions of s54 by resorting to an alternative remedy under the common law.

30. In casu the CPA finds itself in the position of the respondents in the Maledu matter by seeking an interdict without first exhausting the internal remedy in s54. The CPA contends however that s54 does not provide an internal remedy for the landowner/lawful occupier and that s54(7) relates to compensation for damages which is not an internal remedy, and which differs from s54(1) which deals with compensation for the use of the land before mining can commence.

31. I have difficulty in understanding the distinction which the CPA wants to draw between s 54(1) and s54(7), which in my view appears to be a distinction without a distinction for purposes of this application. The only difference of any relevance in my view is that s 54(1) refers to a complaint emanating from the mining right holder and s54 (7) to one emanating from the landowner or lawful occupier.

32. S54 (1) should be read with s54 (3), since the issue in casu is one concerning the payment of compensation. S53 (1) refers to the situation where the “holder is prevented from commencing or conducting. . . . mining operations. . . ”. (my underlining). The inclusion of the words “or conducting” in my view presupposes the situation where mining has already commenced. This view I have is strengthened by the wording of s54(3) which states that where the Regional Manager concludes “. . . that the owner or occupier has suffered or is likely to suffer loss or damage as a result of the . . . . . mining operations” (own underlining). Sec 54(1) read with s 54(3) clearly deals with payment of compensation in both pre-commencement and post-commencement situations.

33. S54 (7) refers to the “owner or lawful occupier of land on which . . . mining operations will be conducted (own underlining), which assumes a pre-commencement situation. It also speaks of where “the owner or occupier has suffered or is likely to suffer any loss or damage . . . ”, which implies in my view both pre-commencement or post-commencement apprehension of loss or damage.

34. The argument therefore that s 54(1) relates to pre-commencement compensation for land use and s54 (7) relates to, presumably, a

post-commencement claim for damages, does not hold any water. In any event s54(1) read with s54 (3) on the one hand and s54(7) on the other, both refer to the suffering of loss or damage without the distinction argued by the CPA. Both s54(1) and s 54(7) are couched in mandatory language and s54(7) makes it clear that s54 applies (in the case of a landowner/lawful occupier) with the necessary changes required by the context. Therefore, if s54 provides an internal remedy for the holder of a mining right, which is not disputed, it cannot but provide the same for the owner/occupier. The CPA’s contention that s54 does not provide an internal remedy for a landowner/occupier thus cannot stand.

Is the CPA correct in contending that Maledu prohibits any mining from commencing until the s 54 process has been finalised?

35. In this regard one should look at the context in which the Maledu judgment was given. The Maledu matter did not deal with a dispute as to compensation for land use but with conflicting rights to the land which could not co-exist.

To allow the holder of mining rights to commence mining in those circumstances would inevitably mean the deprivation of the occupiers

of their rights to the land and would undermine the purpose of s 54. It is in this light that paragraph 92 of Maledu should be read. Paragraph 92 states the following:

“[92] The respondents further submitted that in the event that this Court holds that section 54 must be exhausted before an interdict can be sought, then mining right holders would be unjustifiably prevented from commencing with mining pending the finalisation of section 54 proceedings. But this submission entirely overlooks the fact that section 54 itself provides for a speedy dispute resolution process that is premised on parties reaching some sort of agreement through mediation. It also provides that if parties fail to reach an agreement, then they may approach a court. It is unclear why, pending the finalisation of this process, a mining rights holder should be entitled to mine. On the contrary, to allow them to do so will undermine the purpose of section 54 and the MPRDA: to strike a balance between the interests of the mining right holder and the owner. It bears mentioning that section 54(5) contemplates that if negotiations between the affected parties and the mining right holder are deadlocked, and the Regional Manager concludes that any further negotiations may detrimentally affect the objects of the MPRDA, he or she may recommend to the Minister that the land be expropriated in terms of section 55.

36. Where the dispute relates solely to compensation, the situation described in paragraph 92 of Maledu should not arise, since the commencement or continuation of mining operations would not deprive the landowner/lawful occupier of his entitlement to compensation. The CPA’s bald assertions in its affidavits to the effect that continued mining would result in irreparable harm has no factual basis.

37. S 54 also does not envisage the prohibition of mining operations should agreement on compensation not be reached. In my view, on a proper reading of s 54, the determination of disputes relating to payment of compensation is conclusively dealt with in s 54(3) and s 54(4) which state that if agreement on the payment of compensation cannot be reached, the matter must be determined by arbitration or a competent court. That would effectively be the end of the Regional Manager’s involvement in the dispute relating to compensation.

38. Sections 54(5) and 54(6), which respectively empowers the Regional Manager to recommend expropriation and prohibition from mining until the dispute is determined by arbitration or a court, do not refer specifically to disputes relating to payment of compensation – but rather, I would suggest, to disputes of the nature the Constitutional Court was confronted with in Maledu. Therefore, no doubt, the reference to s 54(5) in paragraph 92 of that judgment quoted above.

39. In my view therefore the CPA’s reliance on Maledu for its contention that mining operations cannot proceed until compensation has been determined is ill-conceived.

40. Even if my interpretation of the Maledu judgment and s54 of the MPRDA in relation to a compensation dispute is wrong, the CPA is in any event in no position to insist on an order restraining the respondents from entering the property. As alluded to hereinbefore, Lever AJ on 9 February 2018 granted an order in favour of the respondents (the applicants in that matter) that pending the final determination of an action instituted by the respondents to determine their entitlement to traverse the farm Than; the following order shall operate:

“a) subject to compliance with the sixth respondent’s reasonable and necessary health and safety requirements, the applicants and their employees, contractors, invitees and guest are entitled to traverse the Than farm by making use of the road marked B-A-D, traversing the Than farm as described on annexure “NM1” to the Notice of Motion in this matter, for the purpose of accessing the public road R311 (“the public road”) from Droogeveldt farm identified on annexure “NM1” of the Notice of Motion and for the purpose of accessing Droogeveldt farm from the said public road.

b) save for the reasonable and necessary health and safety requirements referred to above, the first and sixth respondents are interdicted and restrained from taking any steps to prevent or hinder the applicants and their employees, contractors, guests and invitees from making use of the road marked B-A-D on the locality plan annexed to the Notice of Motion marked “NM1”.

(Own emphasis)

41. This order still stands and despite the CPA’s contention that the order does not grant the respondents the right to enter or to mine on the property, it is clear that the order grants the respondents access to the property which is no different from granting it the right to enter the property. Whether or not the order allows the respondents to mine on the property is arguable. However the order should not be read in isolation, but together with the reasons therefore, in order to properly interpret the order. Nevertheless this order places an obligation on the CPA to allow the respondents access to the property, the only condition being that the respondents comply with the reasonable and necessary health and safety requirements when traversing Than. The CPA cannot in these circumstances, where the respondents are armed with an order allowing them access, demand that the respondents initiate the s 54 proceedings merely because the CPA has expressed an unwillingness to grant access. The proper remedy for the CPA in these circumstances is to pursue the process it has started in terms of s 54(7).

42. In the circumstances, the CPA has failed to show the requisites for an interdict and the relief sought under Part B of the Notice of Motion cannot be granted.

43. As far as costs are concerned, there is no reason why costs should not follow the result. The costs which were reserved on 15 March 2019, when the parties appeared in order to finalise the date for the hearing of this application, should follow the same course.

The following order is made:

The application (both Part A and Part B thereof) is dismissed with costs, inclusive of the costs of 15 March 2019.

CC WILLIAMS

JUDGE

For Applicant:

Adv. B Knoetze SC with Adv. CN Van Heerden

Van De Wall Inc

For 1st and 2nd Respondent: Adv. V M Gilbert

David Levithen Attorneys

c/o Duncan & Rothman Inc