Wiid and Another v Wxplomin No 1 (EDMS) Bpk and Another (1175/03) [2004] ZANCHC 4 (1 January 2004)

Wiid and Another v Wxplomin No 1 (EDMS) Bpk and Another (1175/03) [2004] ZANCHC 4 (1 January 2004)

The court found that Explomin had materially breached the mining contract by failing to provide the required rehabilitation guarantee and by not rehabilitating the land on an ongoing basis as required by clause 9. The notice of 10 October 2003, although specifying 7 days, was valid and afforded Explomin the full 15 days stipulated in the contract to remedy the breaches. Explomin failed to remedy the breaches within this period. The Trust did not waive its right to cancel the contract, and cancellation was properly communicated after the expiry of the remedy period. The applicants were entitled to declaratory and interdictory relief, including the prohibition of further mining activities,...

Citation
[2004] ZANCHC 4
Parties
Applicant: Francois Gerhardus Johannes Wiid; Applicant: Reinette Jeppe Wiid NO; Respondent: Explomin No 1 (EDMS) Bpk; Respondent: Member of the Executive Council: Mineral and Energy Affairs, Northern Cape Province
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
1 January 2004
Case Number
1175/03
Procedural Posture
Urgent Application / Final Judgment After Urgent Application and Interim Relief
Outcome
Application granted. Declaratory and interdictory relief awarded to applicants. Costs awarded against first respondent.
Judges
Lacock R
Legal Topics
Mining Contracts, Contract Cancellation, Rehabilitation Obligations, Security for Performance, Urgent Interdict, Costs Award
Land and Property Commercial and Corporate Civil Procedure Mining Contracts Contract Cancellation Rehabilitation Obligations Security for Performance Urgent Interdict +1 more

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Parties

Francois Gerhardus Johannes Wiid

Applicant

Reinette Jeppe Wiid NO

Applicant

Explomin No 1 (EDMS) Bpk

Respondent

Member of the Executive Council: Mineral and Energy Affairs, Northern Cape Province

Respondent

Procedural Posture

Urgent Application / Final Judgment After Urgent Application and Interim Relief

Legal Issues

  1. 1 Whether Explomin breached material terms of the prospecting and mining contract entitling the Trust to cancel the agreement.
  2. 2 Whether the notice of 10 October 2003 constituted proper notice to remedy breaches under clause 16.1 of the contract.
  3. 3 Whether Explomin was afforded the contractually required 15 days to remedy breaches before cancellation.

Ratio Decidendi

The court found that Explomin had materially breached the mining contract by failing to provide the required rehabilitation guarantee and by not rehabilitating the land on an ongoing basis as required by clause 9. The notice of 10 October 2003, although specifying 7 days, was valid and afforded Explomin the full 15 days stipulated in the contract to remedy the breaches. Explomin failed to remedy the breaches within this period. The Trust did not waive its right to cancel the contract, and cancellation was properly communicated after the expiry of the remedy period. The applicants were entitled to declaratory and interdictory relief, including the prohibition of further mining activities,...

Court Disposition

Application granted. Declaratory and interdictory relief awarded to applicants. Costs awarded against first respondent.

Orders

  • It is declared that the prospecting and mining contract concluded between the applicants and the first respondent on 11 February 2003 was validly cancelled and is no longer binding on the parties.
  • The first respondent is interdicted from conducting any further prospecting or mining activities on the property known as the remainder of the farm Klipfontein No. 38, Hopetown Division, Northern Cape Province, held under Deed of Transfer No. T98932/2001.