Theta Mining (Pty) Ltd and Another v The Sydney on Vaal Communal Property Association and Others (1535/2017) [2018] ZANCHC 17 (9 February 2018)

Theta Mining (Pty) Ltd and Another v The Sydney on Vaal Communal Property Association and Others (1535/2017) [2018] ZANCHC 17 (9 February 2018)

The court found that the applicants established a prima facie right to traverse Than farm to access Droogeveldt farm, either by immemorial usage or necessity, pending final determination in the action. The MPRDA does not prohibit such access, and the administrative acts granting mining rights remain valid until set aside. The respondents' arguments based on statutory remedies, res judicata, and sterilisation of public road rights by mining permits were rejected. The balance of convenience favoured the applicants, who undertook to comply with reasonable health and safety requirements. No alternative satisfactory remedies were available, and the requirements for interim interdict were met....

Citation
[2018] ZANCHC 17
Parties
Applicant: Theta Mining (Pty) Ltd; Applicant: Lonhro Mining SA (Pty) Ltd; Respondent: The Sydney on Vaal Communal Property Association; Respondent: Scarlet Sun 15 (Pty) Ltd; Respondent: The Government of the Republic of South Africa; Respondent: The Minister of Rural Development and Land Reform; Respondent: Northern Cape Provincial Government: Department of Agriculture, Land Reform and Rural Development; Respondent: Department of Public Works; Respondent: The Minister of Mineral Resources; Respondent: The Regional Manager, Northern Cape Region of the Department of Minerals and Energy; Respondent: The Registrar of Deeds, Kimberley; Respondent: The Trustees for the Time Being of the Vaalbos Sydney on Vaal Restitution Community Trust
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
9 February 2018
Case Number
1535/2017
Procedural Posture
Urgent Application / Application for Interim Interdict and Spoliation Relief
Outcome
Interim interdict granted in favour of the applicants, permitting access over Than farm pending final determination of the action. Costs reserved.
Judges
Lever AJ
Legal Topics
Right of Way, Interim Interdict, Mandament Van Spolie, Mining Rights, Public Road Access, Landlocked Property
Land and Property Civil Procedure Right of Way Interim Interdict Mandament Van Spolie Mining Rights Public Road Access Landlocked Property

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Parties

Theta Mining (Pty) Ltd

Applicant

Lonhro Mining SA (Pty) Ltd

Applicant

The Sydney on Vaal Communal Property Association

Respondent

Scarlet Sun 15 (Pty) Ltd

Respondent

The Government of the Republic of South Africa

Respondent

The Minister of Rural Development and Land Reform

Respondent

Northern Cape Provincial Government: Department of Agriculture, Land Reform and Rural Development

Respondent

Department of Public Works

Respondent

The Minister of Mineral Resources

Respondent

The Regional Manager, Northern Cape Region of the Department of Minerals and Energy

Respondent

The Registrar of Deeds, Kimberley

Respondent

The Trustees for the Time Being of the Vaalbos Sydney on Vaal Restitution Community Trust

Respondent

Procedural Posture

Urgent Application / Application for Interim Interdict and Spoliation Relief

Legal Issues

  1. 1 Whether the applicants are entitled to traverse the Than farm to access Droogeveldt farm pending final determination of their claimed right of way.
  2. 2 Whether the applicants have established a prima facie right to interim relief based on public road, immemorial usage, or necessity.
  3. 3 Whether the defences raised under the Mineral and Petroleum Resources Development Act (MPRDA) preclude interim relief.

Ratio Decidendi

The court found that the applicants established a prima facie right to traverse Than farm to access Droogeveldt farm, either by immemorial usage or necessity, pending final determination in the action. The MPRDA does not prohibit such access, and the administrative acts granting mining rights remain valid until set aside. The respondents' arguments based on statutory remedies, res judicata, and sterilisation of public road rights by mining permits were rejected. The balance of convenience favoured the applicants, who undertook to comply with reasonable health and safety requirements. No alternative satisfactory remedies were available, and the requirements for interim interdict were met....

Court Disposition

Interim interdict granted in favour of the applicants, permitting access over Than farm pending final determination of the action. Costs reserved.

Orders

  • Pending final determination of the action under case number 1697/2017, applicants and their employees, contractors, invitees and guests are entitled to traverse Than farm via the road marked B-A-D, subject to compliance with the sixth respondent's reasonable and necessary health and safety requirements, for the...
  • First and sixth respondents are interdicted and restrained from preventing or hindering applicants and their employees, contractors, guests and invitees from using the road marked B-A-D as described in the locality plan annexed to the Notice of Motion.