Ramokoka NO and others v Samancor Chrome Limited and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mfenyana J |
| Judgment Date | 14 August 2023 |
| Citation | 2023 JDR 3066 (NWM) |
| Hearing Date | 20 June 2023 |
| Docket Number | 128/23 |
| Court | North West Division, Mahikeng |
Mfenyana J:
2023 JDR 3066 p3
Mfenyana J
This matter served before me in the opposed motion Court. In essence, the applicants sought an order interdicting the first respondent from holding a meeting scheduled to take place on 21 June 2023 at 13h00, until such time that the first respondent had complied with the provisions of the law, in particular, the Mineral and Petroleum Resources Development Act (“MPRDA”/ “the Act”) relating inter alia to consultation and engagement with the Community.
The application was opposed only by the first respondent.
After hearing submissions from Mr Nel on behalf of the first to sixth applicants, Mr Maluleke for the seventh and eight applicants, as well as Ms Oschman on behalf of the first respondent, I made the following order:
The applicants’ non-compliance with the prescribed forms and time limits in respect of service, as provided in the Rules, is condoned and the matter is treated as urgent in terms of Rule 6(12) of the Uniform Rules of Court.
The first respondent and any entity or person representing the first respondent, are interdicted, and restrained from holding a public meeting
2023 JDR 3066 p4
Mfenyana J
on 21 June 2023 in the Mantserre Village, or anywhere else, with the members of the Baphalane Ba Mantserre Community (“the Community”.
The first respondent and any entity or person representing the first respondent, are interdicted, and restrained from calling, holding, or arranging any public meetings with the members of the Community.
The first respondent and any entity or person representing the first respondent, are interdicted, and restrained from engaging in, negotiating and/or concluding any Agreements, including Land Use Lease Agreements and Compensation Agreements or Arrangements relating to Portion 1 of the Farm Varkensvlei 403, Registration Division K.Q, North West Province, measuring 703 6553 hectares and the Remaining Extent of the Farm Varkensvlei 403, Registration Division K.Q, North West Province, measuring 1335, 1407 hectares (“the Communal Land”).
The first respondent and any entity or person representing the first respondent, are interdicted, and restrained from conducting any mining activities and mining-related activities (including, but not limited to public participation meetings, activities preparatory, ancillary or incidental to mining, such as, but not limited to any fencing or fence removal, cutting or clearing of vegetation, any establishment of roads, any construction or installation of buildings, infrastructure or equipment and any drilling, removal of soil, ore or any mineral) on the Communal Land.
In the event that any Land Use Lease Agreement, Compensation Agreement, or any other Agreement and/ or other Agreements relating to, or in respect of the Communal Land have been concluded between the first respondent and any person or entity, other than the Trustees of the Baphalane Ba Mantserre Community Development Trust and the Seventh and Eighth Applicants, the operation of any and all such Agreements or Arrangements is suspended and declared unenforceable.
2023 JDR 3066 p5
Mfenyana J
The relief sought in paragraphs 2, 3, 4, and 6 above shall operate as an interim interdict pending the final determination of Part B of this application, and the Objection lodged by the Community against the first respondent, in terms of section 10(2) of the Mineral and Petroleum Resources Development Act, No. 28 of 2002, as amended (“the MPRDA”).
The relief sought in paragraph 5 above, shall operate as an interim interdict pending the final determination of the Objection lodged by the Community against the first respondent, and compliance by the first respondent with the provisions of sections 19(d), 19(e), 25(d), 25(e) 54(5) and 54(7) of the MPRDA and the final determination of Part B of the application.
In the event that the first respondent and any entity or person or contractor representing or enlisted at the instance of the first respondent fail to comply with this Order, the Eighth respondent, with the assistance of the South African Police Service, is directed and authorised to enforce this Order, and put a stop to all and any mining activities and mining – related activities on the Communal Land.
The applicants are granted leave to supplement their papers, if necessary, in respect of Part B.
The first respondent shall pay the costs of the intervention application.
The first respondent is ordered to pay the costs of the hearing of the interim relief on scale as between attorney and client which costs shall include the costs of two counsel.
2023 JDR 3066 p6
Mfenyana J
The salient facts of the application are that the first respondent (Samancor) is the holder of a mining right over a property known as Farm Varkensvlei 403. (Farm Varkensvlei), situated within the North West province. On 7 June 2003, the Land Claims Court made an order declaring inter alia that the sixth applicant (the Trust) was entitled to restitution of ownership of portions of a property known as Schilpadsnest as well as retention of the Farm Varkensvlei, (the Communal Land). In terms of the said Order, the Trust consists of the Baphalane Community as the claimants.
The circumstances leading to the acquisition of a mining right by Samancor is in dispute between the parties.
Prior to the hearing of the application the seventh and eighth applicants brought an application seeking to intervene in the proceedings. The basis for the intervention application as set out in the founding affidavit, is that both the Baphalane Ba Mantserre Beneficiaries Association and Ramokoka Flavious Mokoka are beneficiaries of Portion 1, Farm Varkensvlei and thus have a direct and substantial interest in the matter. They join issue with the first to sixth applicants and seek to interdict the meeting proposed by the
2023 JDR 3066 p7
Mfenyana J
first respondent. They aver that they only became aware of the present proceedings until 15 June, whereafter, on 17 June 2023, they received the papers in the present application. They further aver that Samancor has failed to consult with them as the owners of Varkensvlei.
I granted leave for the intervening parties to be joined in the main application, as the seventh and eighth applicants. I indicated at the time that the reasons for that Order would be incorporated as part of the judgement in the main application. On that score, I deem it prudent to first deal with those reasons.
It is trite that a party who seeks to intervene in a matter must show that it has a direct and substantial interest in the order that the Court is requested to make.
There can be no gainsaying that the issue of the entitlement to the Farm Varkensvlei, and the potential benefits accruing from such entitlement are a cause of much contestation between the parties. These would, at some point, have to be resolved between the
2023 JDR 3066 p8
Mfenyana J
various beneficiaries. That notwithstanding, there can be no dispute that a determination is yet to be made in this regard.
The question is whether the intervening applicants have demonstrated a direct and substantial interest in the matter. They have established that the eighth applicant is part of the Baphalane Community and the seventh applicant, part of a class of people and pensioners, all of whom are members of the Baphalane Community. In terms of the Order issued by the Land Claims Court, the Baphalane Community are beneficiaries of the relevant portions of Schilpadsnest and Varkensvlei. This was not disputed by the first respondent. What the first respondent says is that the intervening parties did not adduce any evidence that they are entrusted with the duty of overseeing the operations of the Baphalane.
Much was made, on behalf of the first respondent, that the intervening applicants have no locus standi as there is no proof that the Baphalane Ba Mantserre Beneficiaries Association is a registered entity. Section 38 of the Constitution provides for the enforcement of rights by ‘anyone’ who acts in their own interest, or as a member of, or in the interest of, a group of or class of persons.
2023 JDR 3066 p9
Mfenyana J
To the extent that it may be argued that the...
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