Minister of Water Affairs and Forestry v Stilfontein Gold Mining Co Ltd and Others

• Jurisdiction: South Africa
• Judge: Hussain J
• Judgment Date: 15 May 2006
• Citation: 2006 (5) SA 333 (W)
• Docket Number: 2005/7655
• Hearing Date: 25 July 2005
• Counsel: Z F Joubert SC (with K Lengane) for the applicant. C H J Badenhorst SC (with C Whitcutt) for the second to fifth respondents. No appearances for the sixth to eighth respondents. D N Unterhalter SC (with N J Graves) for the ninth respondent.
• Court: Witwatersrand Local Division

Hussain J:

This is an urgent application wherein the applicant seeks an order declaring the first to the fifth G respondents to be in contempt of an order of this Court under case No 7655/2005, dated 18 May 2005. Pursuant to such a declaration, the applicant required that the said respondent be punished for such contempt.

Introduction H

The following is the factual background, an understanding of which brings the whole application into perspective.

[1] The applicant is the Minister of Water Affairs and Forestry. The first and sixth to tenth respondents are companies that operate or operated gold mines in the I Klerksdorp - Orkney - Stilfontein - Hartebeesfontein area (known as the 'KOSH'). The second to the fifth respondents were directors of the first respondent. At the date of hearing of this application, the second to the fifth respondents had resigned as directors of the first respondent. The ninth to the twelfth respondents are joined in this application insofar as they have an interest in the proceedings and no J

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relief is sought against them. The ninth respondent was, however, represented in Court by senior counsel who A was instructed to support the applicant's application against the first to the fifth respondents.

[2] Mining activities of the first and sixth to tenth respondents in the KOSH area resulted in a situation where underground water will, if not raised to the surface and treated appropriately, become polluted and this will, in turn, result in the B pollution of valuable water resources. Herein lies the principal interest of the applicant. The first respondent has under its control a shaft known as the Margaret shaft, which required the daily pumping of water from the shaft to the surface. Failure to manage this water will not only lead to pollution but will have disastrous effects on other mines in the KOSH area operated, in particular, by the ninth C respondent. Failure to pump water from the Margaret shaft will result in serious flooding of shafts operated by the ninth respondent with the consequential loss of property, and potentially the lives of miners working in these mines. D

[3] As a result of this situation, representatives of the applicant and the respondents met in order to reach agreement on how the water could be managed in the interests of all the parties including public interest. The parties failed to reach agreement and, as a result, two things happened. First, the ninth respondent on 11 April 2005, launched an application for an order directing the E first, sixth and seventh respondents to continue with the pumping and extraction of water from various shafts operated and controlled by them. Secondly, the regional director: Free State of the applicant began preparing and issuing a directive to the mines in order to address the problem. The first directive was issued on 13 April 2005. A supplementary directive was issued on 15 April 2005. F

[4] The seventh and ninth respondents agreed to accept the measures contained in the directive dated 15 April 2005, subject to certain reservations. The sixth respondent decided to launch an application reviewing and setting aside the directives. This application was heard by Goldstein J under case No 8274/05. The sixth G respondent was unsuccessful and, on 22 April 2005, its application was dismissed. The sixth respondent successfully applied for leave to appeal and that appeal is pending.

[5] On 7 May 2005, further directives were issued by the regional director. The first respondent failed to comply with the H directives by failing to provide the information which the applicant required to issue a final directive and also by failing to contribute towards the cost of pumping water from affected shafts.

[6] On 18 May 2005, as a consequence of the first respondent's failure to comply with the directives, the applicant I obtained an order from Goldstein J under case No 7655/05 in terms of which the first respondent was ordered to comply with the provisions of the directives issued by the director-general: Free State of the applicant. Notwithstanding the order granted by Goldstein J, the first respondent failed to comply. J

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[7] The first respondent, in the mean time, brought an application for its winding-up. The application was opposed by a number A of intervening parties and the application was dismissed. I, in fact, dismissed the application after noting that the first respondent failed to appear in Court, nor did any of its erstwhile directors, the second to the fifth respondents, make an appearance. More will be said about this elsewhere in this judgment. B

[8] Due to the first respondent's non-compliance, the applicant brought this application before me. I heard argument over a period of four days, during the course of which I gave the parties an opportunity to reach some form of settlement. To this end, the parties eventually agreed to a draft order and I postponed the case to 25 C July 2005. On that day, the matter was called before me and I was told that the first respondent had failed to comply with the draft order and still failed to comply with the directives. The applicant then proceeded to seek an order as prayed for in the notice of motion. D

[9] It is worth pointing out at this stage that, during all of the proceedings before me, the first respondent was not represented. Counsel appeared on behalf of the directors of the first respondent only, namely the second to the fifth respondents. The applicant accordingly pointed out that it was entitled to an order against the first respondent. However, the second to the fifth E respondents argued, inter alia, that the applicant had failed to make out a case against the first respondent and therefore was not entitled to any relief against them.

[10] The second to the fifth respondents relied on the following defences: F

(a)

The matter was not urgent and ought to be struck off the roll.

(b)

The respondents did not receive notice of Goldstein J's order.

(c)

The nature of Goldstein J's order was such that contempt proceedings were inappropriate.

(d)

The directive was, in material parts, unintelligible and therefore not capable of being complied with. G

(e)

The first respondent was, due to its financial status, unable to comply with the directives.

(f)

The second to the fifth respondents had resigned as directors of the first respondent. H

Based on these defences, the second to fifth respondents allege that neither they nor the first respondent was in wilful contempt of the order granted by Goldstein J. I will deal with each of these defences.

Urgency

[11] I

[11.1]

The applicant relies mainly on two grounds of urgency: (a) That pumping operations must continue at the affected shaft in the KOSH area, failing which, serious and potentially catastrophic consequences may follow and (b) that, unless the first respondent furnishes the information sought in the J

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directives, as it was ordered to do by Goldstein J, the applicant will A not be in a position to issue a further or final directive when the interim payment provisions of the directives expire on 30 June 2005. The above grounds of urgency were also relied upon by the applicant when the matter came before Goldstein J, nor was it disputed before me that, on the facts presented by the applicant, these grounds of urgency indeed exist. B

[11.2]

The first to fifth respondents' principal attack on urgency is that the grounds of urgency relied upon by the applicant have no bearing on the relief sought in the notice of motion. The first to the fifth respondents' submission is that the finding of C contempt and the imposition of a fine will not secure uninterrupted pumping operations, nor will it expedite the provision of information sought in the directives. Thus, the respondents argue that the application is defective for want of compliance with Rule 6(12) of the Uniform Rules and ought to be dismissed. D

[11.3]

Rule 6(12)(b) provides that:

'In every affidavit or petition filed in support of any application under para (a) of this subrule, the applicant shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims he could not be afforded substantial redress at a hearing in due course.' E

The degree of relaxation of the stipulated time periods should not be greater than the exigency of the case demands. It must be commensurate therewith. Mere lip-service to the requirements of Rule 6(12)(b) will not do and an applicant must make out a case F in the founding affidavit to justify the particular extent of the departure from the norm which is involved in the time and day for which the matter be set down. In terms of Rules 27 and 6(12), the applicant has to show good cause why the time should be abridged and why it could not be afforded substantial redress at a hearing in due course. See G Luna Meubelvervaardigers (Edms) Bpk v Makin and Another (t/a Makin's Furniture Manufacturers) 1977 (4) SA 135 (W) at 137F; IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another 1981 (4) SA 108 (C) at 110F - 111A. In assessing whether H the requirements of this Rule have been complied with, 'the substance of the affidavit, and not its form, will weigh with a court; if an affidavit sets out facts upon which a court can decide that an applicant is entitled to relief in terms of the subrule, the court will entertain the application'. See Sikwe v SA Mutual Fire and I General Insurance Co Ltd 1977 (3) SA 438 (W) at 440H; Cekeshe and Others v Premier, Eastern Cape, and Others 1998 (4) SA 935 (Tk) (1997 (12) BCLR 1746) at 948A - E (SA).

[11.4]

Although there appears to be some logic in the...