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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

REPUBLIC OF SOUTH AFRICA

 

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED

 

Case Number: 75327/2019

10/12/2019

 

In the matter between:

 

SAMANCOR CHROME LIMITED                                                            Applicant

 

And

 

BILA CIVIL CONTRACTORS PROPRIETARY LIMITED                     First Respondent

THE MINISTER OF ENVIRONMENT, FORESTRY AND

FISHERIES                                                                                                      Second Respondent

THE MINISTER OF MINERAL RESOURCES AND ENERGY              Third Respondent

THE REGIONAL MANAGER: NORTH WEST PROVINCE                   Fourth Respondent

JUDGMENT

JANSE VAN NIEUWENHUIZEN J

[1]       The applicant prays for an interim Interdict against the first respondent in the following terms:

“2.       Interdicting and restraining the first respondent Its employees and contractors from conducting, facilitating or being Involved in any manner whatsoever in any activities (Including prospecting operations), on the areas subject to the first respondent's Prospecting Right and Environmental Authorisation, specifically on the Remaining Extent of Portion 2 of the farm Elandskraal 465 JQ, pending the outcome of the appeal submitted by the applicant in terms of the provisions of section 43 of the National Environmental Management Act, 107 of 1998, as amended, read with Regulation 4 of the National Appeal Regulations (GNR 993 of 8 December 2014).”

 

[2]        The first respondent opposes the application and included a counter claim in its opposing papers. The counter claim is Instituted on condition that the applicant's paint in limine in respect of the application being premature does not succeed. The prayer reads as follow :

 

“102.1        Declaring the Applicant's appeal lodged on 3 October 2019 in terms of section 43 of NEMA, read with regulation 4 of the National Appeal Regulations against the decision to grant the First Respondent an environmental authorization falls outside the parameters of Regulation 4 of the Appeal Regulations and is accordingly void.”

[3]       This application is the third round of litigation between the parties. The previous two applications dealt with different causes of a ion and will only be referred to insofar as the facts and allegations contained therein have a bearing on the issue in dispute in casu.

 

Applicant's cause of action

[4]       The applicant relies on the provisions of section 43(7) of the National Environmental Management Act, 107 of 1998 (NEMA), read with regulation 4 of the National Appeal Regulations (GNR 993 of 8 December 2014).

[5]        The relevant provisions of section 43 of NE:MA read as follows:

"(1)      Any person may appeal to the Minister against a decision taken by any person acting under a power delegated by the Minster 11nder this Act or a specific environmental management Act.

(1A)     Any person may appeal to the Minister against a decision made in terms of this Act or any specific environmental management Act by the Minister responsible for mineral resources or any other person acting under his or her authority.

…

 

(4)       An appeal under subsection (1), (1A) ... must be noted and must be dealt with in the manner prescribe of and upon payment of a prescribed fee.

…

(7)       An appeal under this section suspends an environmental authorisation, exemption, directive, or any other decision made in terms of this Act or any other specific environmental management Act, or any provision or condition attached thereto.”

[6]        Regulation 4 prescribes the manner in which an appeal in terms of section 43 must be noted. Regulation 4(1)(a) is relevant to the Issue in dispute and reads as follows:

"4.       Appeal submission

(1)      An appellant must submit the appeal to the appeal administrator, and a copy of the appeal to the applicant, any registered interested and affected party and any organ of state with interest in the matter within 20 days from-

(a)      the date that the notification of the decision for an application for an

 environmental authorisation or ... was send to the registered interested and affected parties by the applicant; or…."

 

Background facts Prospecting right

[7]        The first respondent is currently conducting prospecting on inter alia the Remaining Extent of Portion 2 of the farm Elandskraal 465 JQ ("the property"), in terms of a prospecting right granted to it on 21 June 2018.

[8]        The applicant is the co-owner of the property and holder of a converted mining right in respect of chrome on the property. The applicant has lodged an internal appeal to the relevant authority in terms of section 96 of the Mineral and Petroleum Resources Development Act, 28 of 2002 (MPRD) against the granting of the prospecting right to the first respondent. The appeal Is pending.

[9]        On 1 July 2019 the applicant obtained an order before Neukircher J interdicting and restraining the first respondent from conducting any mining operations on the property. The order further interdicted and restrained the first respondent from removing any material containing chrome or chrome ore or other materials from the property outside of that allowed by its prospecting right.

[10]      The first respondent applied for leave to appeal the order and judgment, which application was refused by Neukircher Jon 12 August 2019.

[11]      Notwithstanding the aforesaid dismissal, the first respondent allegedly continued with its mining operations on the property In defiance of the order of Neukircher J. The first respondent did, however, at that stage Indicate that it considers applying to the Supreme Court of Appeal for leave to appeal the Neuklrcher J application.

[12]      No application was forthcoming, which prompted the applicant to launch a contempt application and an application in t rms of section 18(1) of the Superior Courts Act, 10 of 2013.

[13]      Prior to judgment in the application and on 27 September 2019 the first respondent filed the application for leave to appeal the Neukircher J judgment at the Supreme Court of Appeal. The application is pending.

[14]      On 30 September 2019 Van der Westhuizen J dismissed the contempt application, but granted the application in terms of section 18(1) of the Superior Courts Act.

[15]      The first respondent exercised its rights of an automatic appeal in terms of section 18(4)(ii) of the Superior Courts Act and the appeal was heard by a full bench of this division. Judgment was reserved.

 

Environmental Authorisation

[16]      Prior to the granting of the prospecting right and on 7 February 2018 the Department of Mineral Resources granted an Environmental Authorisation ("EA") to the first respondent. The description of the authorisation reads as follows:

"EN VIRONMENTALAUTHORISATION IN TERMS OF THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1988 (ACT NO. 107OF 1998) AS AMENDEO (HEREIN REFERRED TO AS WEMA' AND THE ENVIRONMENTAL IMPACT ASSESSMENT REGULATIONS, 2014 (HEREIN REFERRED TO AS "EIA" FOR PROSPECTING ACTIVITIES FOR CHROME ORE, PHOSPHATE ORE, NICKEL ORE, PLATINUM GROUP METALS, VANADIUM ORE, MANGANESE ORE IN RESPECT OF PORTION 2, 5, 56, 157, 159, 165 AND 185 OF THE FARM ELANDSKRAA; JQ, SITAUTED IN THE MAGISTERIAL DISTRICT OF BRITS, NORTH WEST REGION."

 

[17]      On 3 October 2019 the applicant filed an internal appeal in terms of section 43 of NEMA read with regulation 4 of the regulations promulgated in terms of the Act against the granting of the EA. The appeal is pending.

 

Applicant's case

[18]      The applicant submits that upon the lodging of the appeal on 3 October 2019 and in terms of the provisions of section 43(7) of NEMA, the prospecting operations of the first respondent on the property were automatically suspended.

[19]      Notwithstanding the aforesaid, the first respondent in contravention of NEMA refuses to cease its operations, which refusal has necessitated this application for an interim interdict.

 

First respondent's defences

[20]       The first respondent opposes the application on the following grounds:

[20.1]  point in limine. the application is premature;

[20.2]  there is no valid appeal;

[20.3]  the application is an abuse of court process; and

[20.4]  the applicant has not satisfied the requirements for the granting of an interim interdict.

 

Point in limine

Submissions

[21]     The first respondent submitted that the application is premature due to the fact that the validity of the applicant's appeal is in dispute in the pending Internal appeal. According to the first respondent, any finding by this court in respect of the validity of the appeal would pre-judge the dispute pending in the internal appeal and would be inappropriate.

[22]     In the result, the application cannot be heard prior to a determination in respect of the validity of the applicant's appeal by the relevant authority.

Discussion

[23]      In deciding the point in limine It is apposite to distinguish between the test applicable to the granting of an interim interdict vis-a-vis the test applicable to the granting of final relief.

[24]      In interim interdict proceedings a court does not pronounce finally on the issue in dispute between the parties in the main proceedings. The court does no more than to pronounce a prima facie view on the merits of the issue in dispute, which view is not binding on the forum in which the main proceedings are pending.

[25]       More often than not, the dispute in the main proceedings needs to be considered when an application for an interim interdict is adjudicated upon. The very object of interim relief is to protect a party until the main dispute is determined.

[26]     The position has been succinctly summarised In Erasmus Superior Court Practice, Van Loggerenberg, 2^nd edition, Vol 2 at 06-4:

"An interlocutory interdict is one which is granted pendent lite. It Is provisional order designed to protect the rights of the complainant party pending an action or application to be brought by him to establish the respective rights of the parties. It doss not involve a final determination of the rights of the parties and does not affect such determination. Its effect is to 'freeze' the position until the court decides where the; right lies, at which point it ceases to operate. It is aimed at ensuring, as far as it is reasonably possible, that the party who is ultimately successful will receive adequate and effective relief. "

[27]     In the result and due to the fact that a prime facie finding in respect of the validity of the pending internal appeal Is not binding on the appeal authority, the application for interim relief is not premature and the point in limine is dismissed.

 

Valid appeal Submissions

[28]     In support of its contention that a valid appeal is not pending, Mr Mpofu SC, counsel on behalf of the first respondent, submitted that the appeal had to be lodged in terms of regulation (4)(1)(a) within 20 days from the date that notification of the decision was sent to registered interested and affected parties, The first respondent presented proof that it had sent the required notifications to all registered interested and affected parties on 8 February 2018.

[29]      In the premises, the appeal had to be lodged by the end of February 2018. Mr Mpofu SC submitted that the timeous lodging of the appeal is a jurisdiction factor and failure to do so renders the appeal a nullity.

[30]       Mr Daniels SC, counsel on behalf of the applicant, did not agree. Mr Daniels SC submitted that the applicant only became aware of the possible existence of an EA when the first respondent alluded thereto in its opposing papers filed in the application before Van der Westhuizen J. The applicant's attorney immediately, on 16 September 2019, addressed a letter to the first respondent's attorney requesting a copy/ copies of any environmental authorisation(s) held by the first respondent in respect of the property.

[31]      The first respondent ignored the request and an urgent follow-up letter was sent to the first respondent's attorneys on 27 September 2019. This request also went unanswered.

[32]      Notwithstanding the fact that the applicant was not In possession of the requested EA, it proceeded to lodge the appeal on 3 October 2019. The first respondent only provided a copy of the EA to the applicant on 8 October 2019.

[33]      The applicant submitted that the 20-day period referred to in regulation 4(1)(a) only commences upon receipt of notification that the EA was granted. In the premises, the appeal was in time and a valid appeal is pending.

[34]      The first respondent did not agree and submitted that the running of the period commenced the moment the applicant became aware that the first respondent had been granted an EA This, according to the first respondent, occurred on 18 June 2019 when it filed its opposing papers In the application that was heard by Neukircher J. Clause 7.2 of the prospecting right that was attached to the first respondent's opposing papers referred to an "approvt:1d Environments! Management Plan This should have alerted the applicant that an EA was granted to the first respondent.

[35]       As a result, the appeal is still out of time and a nullity.

[36]       Mr Daniels SC with reference to the word "notification" in regulation 4 submitted that the mere attachment of a prospecting right to a court application, falls dismally short of the clear wording of the regulation. Notification of the granting of the EA must be provided to registered interested and affected parties.

[37]     Mr Mpofu SC, then changed fact and submitted that the applicant was, in any event, not a registered interested and affected party and it was consequently not necessary to give notice to the applicant. This would entail that the applicant has no standing to lodge an appeal.

[38]     Mr Daniels SC, faced with this new approach, submitted that the sole reason that the applicant was not registered as an interested or affected party is due to the first respondent's failure to comply with the provisions in respect of public participation as provided for in section 24(1A)(c) of NEMA read with regulation 41(2)(b)(i) and (ii) of the Environmental Impact Assessment Regulations, 2014 (EIA regulations). Regulation 41(2)(ii) is applicable due to the fact that the applicant is also the owner of the land adjacent to the property. Section 24(1A)(c) read with regulation 41(2)(b)(i) and (ii) provides that written notice of the application for an EA must be given to the owner of the property and to the owner of land adjacent to the property to which the application relates.

[39]     The applicant, being the co-owner of the property and owner of the land adjacent to the property, should therefore have received written notice of the application by the first respondent for an EA on the property. The first respondent failed to do so and as a result the applicant was not registered as an Interested or affected party and could not participate in the process. According to the applicant, the failure by the first respondent in this regard could and should not deprive the applicant of its rights as envisaged in NEMA.

 

Discussion

[40]      In terms of regulation 4, only registered interested and affected parties have the right to receive notification of the decision to approve an EA. Once notification is received, the right to appeal in terms of section 23 of the Act, has, in terms of regulation 4, to be . exercised within 20 days.

[41]      The applicant was deprived of these rights by virtue of the first respondent's alleged failure to comply with the provisions of section 24(1A) of NEMA read with regulation 41(2)(b)(i) and (Ii) of the EIA regulations. The notification enables the party that has been notified to participate in the application process by inter alia submitting comments on the various reports that must be submitted by an applicant applying for an EA. The applicant was as a result deprived of its right to participate in the EA process.

[42]      Although the first respondent alleges that it has complied with its duties in terms of the relevant legislation, no proof of a written notice to the applicant as envisaged in regulation 41(2)(b)(i) or (ii) was provided.

[43]      I agree With Mr Daniels that the mere attachment of the prospecting right to an opposing affidavit, is not enough to alert a party of the existence of an EA. Furthermore, the attachment falls foul of the provisions of regulation 4 of the EIA regulations.

[44]      The first time the applicant expressly stated that an EA exists was in the opposing affidavit filed in the Van der Westhuizen J application. The appeal was lodged on 3 October 2019, being within the 20-day period that commenced when the applicant became aware on 16 September 2019 of the possible existence of an EA. Furthermore, the applicant only received written notice of the EA on 8 October 2019, some five days after it lodged the appeal.

[45]      In my view, the first respondent's failure to comply with its statutory duties would need to be considered by the appeal authority in determining the validity of the appeal.

[46]      The appeal having been lodged in the circumstances set out supra, I am of the prima facie view that a valid appeal is pending.

 

Abuse of court process Submissions

[47]       In respect of the abuse of court process, the following is inter alia stated in the heads of argument filed on behalf of the first respondent:

"67      The applicant has purportedly filed an appeal before the second respondent and then approached the court for an interdictory order. We submit that the litigation history (including appeal processes before the second and third respondents) supports the inference we wish the court to draw, namely, that the real and everlasting objective of the applicant is to obtain the exclusive rights to the minerals found at RE Portion 2. "

and

"68.     A further Inference that an Improper result was intended is that having repeatedly failed to achieve its intended results vis the acceptable court processes and due to the operation of section 18 of the Superior Courts Act and, more particularly, the dismissal of the applicant's contempt of court application, it has now cooked up a new stratagem to cancel the prospecting rights of the first respondent by conjuring up a fake appeal against the granting of the EA as a precursor to approaching this court to stop the lawful prospecting operations through the back door."

 

Discussion

[48]      In considering the abuse of court process point, one should bear in mind that both parties are exercising their constitutional right to have their disputes ventilated in a court of law. On the one hand, the first respondent is no doubt frustrated with the various applications and internal appeals the applicant has lodged. On the other hand, the applicant is, each time it obtains success, faced with an application for leave to appeal and in the Neukircher J case with a further petition to the Supreme Court of Appeal.

[49]      The relief claimed in the present application is, furthermore, based on a new cause of action and differs substantially from the relief that was granted by Neukircher and Van der Westhuizen JJ.

[50]      In the result, the first respondent's assertion that the present application is an abuse of the court process is somewhat opportunistic and is dismissed.

 

Interim interdict

[51]       A board overview of the object of an interim interdict has been discussed supra. I will now tum to the requisites for an interim interdict, to wit:

[50.1] a prima facie right;

[50.2] a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted;

[50.3] the balance of convenience favours the granting of the interim interdict; and

[50.4] the absence of any other satisfactory remedy.

[See: Setlogelo v Setlogelo 1914 AD 221 at 227]

 

Prima facie right

[52]     The right upon which an applicant relies for an interim interdict need not be shown on a balance of probabilities. It is enough for an applicant to prima facie establish a right although open to some doubt. [See: Webster v Mitchell 1948 (SA) 1186 at 1189]

[53]     The applicant submits that Its rights as the co-owner of the property and owner of the land adjacent to the property in terms of NEMA read with the regulations promulgated in terms of the Act is not in dispute. By virtue of the aforesaid, it had the right to be notified of the first respondent's application for an EA as envisaged in section 24(1A)(c) of NEMA read with regulation 41(2)(b)(i) and (ii) of the EIA regulations. The applicant was deprived of this right due to the first respondent's failure to comply with the legislative prescribes.

[54]      In the result, the applicant has a statutory right of appeal in terms of section 43(1).

[55]      The first respondent denies that the applicant has established a prima facie right to obtain an interim Interdict prohibiting the first respondent from prospecting on the property. The first respondent contends that, in view of its prospecting right granted in terms of the MPRD, its right to prospect cannot be challenged under NEMA.

[56]      in support of its submission, the first respondent emphasised that section 43(7) only refers to an EA that was granted "in terms of this Act”.

[57]      This assertion is not legally sustainable. I have referred supra to the EA that was granted by a person acting under a delegated authority of the Minster responsible for mineral resources. The EA refers specifically to prospecting and as a result the applicant's right to appeal the EA pertaining to the first respondent's right to prospect is contained in section 43(1A) of NEMA.

[58]      Once the EA is suspended, prospecting must cease. Save for the aforesaid, section 5A of the MPRD prohibits the prospecting of any mineral without an environmental authorisation.

[59]      Lastly, the first respondent contended that "the Oudekraal rule" entails that the validity of the prospecting licence survives the administrative suspension (or even removal) of the EA until the prospecting licence itself was set aside. The suspension of the first respondent's prospecting activities is, however, not administrative, but statutory in terms of both section 43(7) of NEMA and section 5A of the MRPD. I am of the view that the first respondent's contention in this regard cannot be sustained.

[60]     In the premises, I am satisfied that the applicant has established a prima facie right to the relief claimed herein.

 

Irreparable harm

[61]     The test in regard of a well-grounded apprehension of irreparable harm if the interim interdict is not granted is objective and must be decided on the facts contained in the affidavits.

[62]     The harm caused by the first respondent's continued prospecting has, Inter alia, been set out by the applicant as follows:

"72.     The Bila £4 specifically provides on page 5, inter alia, that the pit sizes in respect of Bila's proposed prospecting activities are 3mx3mx10m and the trenches are 10mx40mx10m. This accords with the dimensions referred to in the Prospecting Work Programme itself. As outlined in paragraph 34 above and in August 2019, Bila excavated two pits within the Cuffent Pit which are 284mx66mx13m and T0mx41mx10m. Pits of these dimensions are clearly in contravention of the Bila E4 and its Prospecting Right.

73.       Furthermore, the Bila EA provides, on page 7, that financial provision of an amount of R119 925, 00 has been made by Bila for, inter alia, rehabilitation, closure and ongoing post decommissioning management of negative environmental impacts, as required by section 24P of NEMA. Considering the extent of the unlawful mining operations by Bila on, inter alia, RE Portion 2, the rehabilitation costs of such unlawful mining activities is likely to be significantly more than this amount.”

 

[63]       The first respondent did not set out facts to gainsay the aforesaid allegations.

[64]       Bearing the aforesaid facts in mind it is clear that the first respondent's continued prospecting on the property will have an impact on the environment and as a result on the applicant's rights as co-owner of the property.

[65]       An EA pertains to the protection and prevention of harm to the environment. It is no doubt for this reason that prospecting activities are suspended pending the finalisation of an appeal process.

[66]       In the result, I am satisfied that the applicant has established an apprehension of irreparable harm should the interim interdict not be granted.

 

Balance of convenience

[67]     In establishing whether the balance of convenience favours the granting of an interim interdict, the court must weigh the prejudice the applicant will suffer if the interlocutory relief is refused against the prejudice the first respondent will suffer if it is granted. [See: Tshwane City v Afriforum and Another 2016 (6) SA 279 at 302 B-C]

[68]     The applicant maintains that the first respondent's continued prospecting on its property is unlawful due the statutory suspension contained in section 43(7). Should the first respondent be allowed to continue with its prospecting activities, the applicant will suffer prejudice, which prejudice far outweighs the first respondent's right to continue with an unlawful activity,

[69]     The first respondent alleges that it will suffer financial loss if the interim interdict is granted. The first respondent, has, however failed to provide any details in respect of its expected financial loss.

[70]     In balancing the prejudice that will be suffered by the parties, I take note of the harm to the environment and consequently, the applicant as co-owner of the property will suffer if the interim interdict Is not granted. The financial loss the first respondent will suffer has not been set out in detail in its opposing papers and is difficult to gauge.

[71]       I am of the view, that the harm that will be caused to the environment if the interim interdict is not granted outweighs any potential financial loss the first respondent may suffer as a result of the granting of the relief.

[72]       In the premises, the applicant has satisfied the requirement that the balance of convenience favours the granting of the interim interdict.

 

Alternative remedy

[73]      In order to satisfy this requirement, the applicant must establish that it has no other satisfactory remedy available to it. In the present circumstances, the applicant's only remedy to stop the first respondent from prospecting in contravention of section 43(7), is an interim interdict.

 

Counter application

[74]     The counter application was launched by the first respondent in the event that its point in limine did not succeed. I held supra that the application is not premature and dismissed the first respondent's point in limine.

[75]      In the result, the first respondent's counter application needs to be determined. The first respondent prays for an order declaring that the applicant's appeal is void for lack of compliance with section 43 of NEMA read with regulation 4 of the National Appeal Regulations.

[76]      This would entail that the court must finally adjudicate on an issue that is pending before the appeal authority which brings the principle of the separation of powers into play.

[77]      Mr Mpofu SC, referred in his heads of argument to the following extract from the National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 CC judgment:

"Beyond the common law, separation of powers Is an even more vital tenant of our constitutional democracy. This means that the Constitution requires courts to ensure that all branches of Government act within the law. However, courts in tum must refrain from entering the exclusive terrain of the Executive and the Legislative branches of Government unless the intrusion is mandated by the Constitution itself."

 

[78]      Although the judgment was referred to in another context, I am of the view that the extract is apposite to the relief claimed by the first respondent herein.

[79]      This court will be entering the exclusive terrain of the Executive if the court makes a final determination on an issue that is pending in an appeal in terms of section 43 of NEMA.

[80]      In view of the separation of powers principle, I am not prepared to grant the relief prayed for by the first respondent and the counter-application stands to be dismissed.

 

COSTS

[81]     The applicant alleges that the first respondent's opposition to the application was vexatious and that a punitive cost order should follow. The defences raised by the first respondent justified its opposition of the application and I am not prepared to penalise the first respondent with a punitive cost order.

 

ORDER

[82]       In the premises, I grant the following order:

1.         The first respondent, its employees and contractors are interdicted and restrained from conducting, facilitating or being involved in any manner whatsoever in any activities (including prospecting operations), on the areas subject to the first respondent's Prospecting Right and Environmental Authorisation, specifically on the Remaining Extent of Portion 2 of the farm Elandskraal 465 JQ, pending the outcome of the appeal submitted by the applicant in terms of the provisions of section 43 of the National Environmental Management Act, 107 of 1998, as amended, read with Regulation 4 of the National Appeal Regulations (GNR 993 of 8 December 2014).

2.         The first respondent is ordered to pay the costs of the application.

3.         The counter-application is dismissed with costs.

 

 

 

N. JANSE VAN NIEUWENHUIZEN

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NG DIVISION, PRETORIA

 

 

DATE HEARD                                                         2 December 2019

JUDGMENT DELIVERED                                     10 December 2019

 

 

 

APPEARANCES

Counsel for the Applicant:                                          Advocate J.P. Daniels SC

Instructed by: Malan Scholes

(011 718 4600)

Ref: Ms S Singh/Ms L Bolz/MAT2499

 

Counsel for the First Respondent:                              Advocate D.C. Mpofu SC

and Advocate T. Motloenya

(083 260 1433/072 418 1561)

 

Instructed by:                                                            Mabuza Attorneys

(011 48 2837)

 

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