Reportable:                                 YES / NO
Circulate to Judges:                      YES / NO
Circulate to Magistrates:               YES / NO
Circulate to Regional Magistrates:  YES / NO	

IN THE HIGH COURT OF SOUTH AFRICA
                    NORTHERN CAPE DIVISION, KIMBERLEY			                      					Case number: JA 78/10
Case No: 1959/2016
						            Heard on: 20/10 /2016									Delivered on: 25/11/2016
In the matter between:

THETA MINING PROPRIETARY LIMITED			1ST APPLICANT

LONRHO MINING SA PROPRIETARY LIMITED		2ND APPLICANT

And

SCARLET SUN 15 PROPRIETARY LIMITED			 1ST RESPONDENT

BSO KONSULTANTE CC trading as 
DELTA GESPESIALSEERDE DIENSTE				2ND RESPONDENT

THE GOVERNMENT OF THE REPUBLIC 
OF SOUTH AFRICA						3RD RESPONDENT
THE MINISTER OF RURAL DEVELOPMENT 
AND LAND REFORM						4TH RESPONDENT

THE SYDNEY ON VAAL COMMUNAL 
PROPERTY 	ASSOCIATION					5TH RESPONDENT								

NORTHERN CAPE PROVINCIAL GOVERNMENT:		6TH RESPONDENT
DEPARTMENT OF ROADS AND PUBLIC WORKS

THE MINISTER OF MINERAL RESOURCES			7TH RESPONDENT

THE REGIONAL MANAGER, NORTH CAPE REGION	8TH RESPONDENT
OF THE DEPARTMENT OF MINERALS AND ENERGY
THE REGISTRAR OF DEEDS, KIMBERLEY			9TH RESPONDENT

JUDGMENT
MAMOSEBO J

[1]	On 16 September 2016 the applicants, Theta Mining Proprietary Limited 	and Lonrho Mining SA Proprietary Limited, approached the Court on an 	urgent basis seeking interim relief pending the final determination of 	proceedings still to be launched	 to determine their entitlement to the use 	of the road traversing Portion 1 of the Farm Than No 280 in the 	Administrative District of Barkley West (the Than farm) to access the 	farm Drooge Veldt No 292 also in the Administrative District of Barkley 	West. The application was opposed by the first respondent, Scarlet Sun 	15 Proprietary Limited (Scarlet Sun) and the fifth respondent, The 	Sydney on Vaal Communal Property Association, only. The fourth 	respondent, The Minister of Rural Development and Land Reform, filed a 	Notice to Abide the decision of the Court.

[2]	Having been satisfied that the matter was urgent I granted an interim 	interdict effectively restoring to the applicants the use of the road B-A-	D.  The parties also agreed on timeframes within which to file further 	affidavits and their written arguments. The matter was to be heard on 20 	October 2016.

[3]	Upon the return date the applicants, conceding the existence of a dispute 	of fact not soluble on the papers, submitted that the Court need not make 	a final determination at this stage on whether or not they have a clear 	right to make use of the roads traversing the Than farm in order for them 	to access Drooge Veldt. Mr Gilbert, for the applicants, contended that 	they merely required the extension of 	the interim relief already in place 	pending the outcome of an action yet to be instituted.
	
	 The parties
[4]	The first applicant is Theta Mining Proprietary Limited (Thetha Mining). 	The second applicant is Lonhro Mining SA Proprietary Limited (Lonhro 	Mining). The first respondent is Scarlet Sun. The 	second respondent is 	BSO Konsultante CC T/A Delta Gespesialiseerde Dienste. The third 	respondent is the Government of the Republic of South Africa. The 	fourth respondent is the Minister of Rural Development and Land 	Reform. The fifth respondent is the Sydney on Vaal Communal Property 	Association. The sixth respondent is Northern Cape Provincial 	Government: Department of Roads and Public Works. The seventh 	respondent is the Minister of Mineral Resources. The eighth 	respondent is the Regional Manager, Northern Cape Region of the 	Department of Minerals and Energy. The ninth respondent is the 	Registrar of Deeds, Kimberley. 	

	The background
[5]	Theta Mining is the holder of a mining right granted to it on 12 August 	2015 to mine alluvial diamonds on Drooge Veldt. Lonhro Mining has 	been appointed by Theta Mining as its contractor to mine the alluvial 	diamonds. 

[6]	The  applicants  maintain  that  Drooge  Veldt  has no direct access to a 	public road and is in that sense landlocked, an assertion disputed by the 	opposing respondents. The applicants used the roads A-D since June 	2009 and from March 2014 used the road B-A-D 	which Scarlet Sun 	had, with effect from 01 September 2016, barred them from. They were 	granted interim access relief on 16 September 2016 with directions to file 	further affidavits and for argument to be heard on 20 October 2016. 

[7]	There are in fact three (3) farms owned by the Government which are contiguous.  They are Drooge Veldt where Theta Mining conducts its mining operations and the Than and Mozib farms where Scarlet Sun conducts its mining operations. In terms of the Deed of Transfer T2079/89 the Registrar of Deeds registered the farms under the name Sydney on Vaal Farms (Proprietary) Limited. These farms are perpetual quitrent land held in trust by the Government until all processes have been finalised for them to be transferred to the fifth respondent: 	(The Sydney on Vaal Communal Property Association the CPA), in terms of the Communal Property Association Act, 1996.  

[8]	The applicants pleaded entitlement to use the road traversing the Than 	farm having done so since 2009, relying on the Deed of Transfer. 	They raised the following grounds:
8.1	The Deed of Transfer applicable to the Than farm expressly provides that all roads on Than farm are to remain free and uninterrupted;
8.2	The most direct road crossing Than farm marked “A-D” on the locality plan is a public road, either having been proclaimed as such or by immemorial usage (vesustas);
8.3	Section 5(3) (a) and (c) as supported by s 25 and read with secs 22(4)(b), 38A(2) and 23(1)(d) of the Mineral and Petroleum Resources Development Act, 2002 (as amended) (MPRDA) entitled them to enter upon the land (Than farm) in respect of which the mining rights have been granted, which would include accessing Drooge Veldt  by crossing the neighbouring land (Than farm); and 
8.4	The applicants claim that they are also entitled to a right of way by necessity (via necessitates) in that there is no other way of accessing the landlocked Drooge Veldt except by using the road “A-D”, alternatively “B-A-D” traversing the Than farm.

 [9]	The applicants submitted that they have concluded a Surface Use 	Agreement (“DJC6”) with the CPA for the surface use of Drooge 	Veldt. The agreement was signed on behalf of Lonrho Mining on 09 	May 2013 but no witnesses attested to the signature. A signature was 	appended on behalf of the CPA on the same date but no witnesses 	attached their signatures to it either. I am pointing this out because in the 	answering affidavit the following challenge was posed:
	“It will be indicated by the affidavit of the CPA that the surface use 	agreement is not valid, as it has not been approved by the executive 	committee of the CPA. I refer in this regard to the affidavit on behalf of 	the CPA attached hereto.”

[10]	As foreshadowed the applicants have conceded that there were several 	insoluble disputes of fact on the papers.  It is trite that the Plascon Evans 	principle applies under the circumstances. In an effort to persuade me to 	extend the interim relief granted on 16 September 2016 but at the same 	time not to determine the exact nature of their right to traverse the 	Than farm, which they maintain will be determined in the main 	proceedings they intend to launch, the applicants emphasised that the 	road was used out of necessity.  In Aventura Ltd v Jackson NO and 	Others 2007 (5) SA 497 (SCA) at 500A-B Nugent JA pronounced:
	“What is meant by ‘necessity’ is that the right of way must be the only 	reasonably sufficient means of gaining access to the landlocked 	property and not merely a convenient means of doing so (Trautman 	NO v Poole 	1951 (3) SA 200 (C) at 207D – 208A).” (own emphasis).

[11]	Mr Gilbert submitted that the shortest route to the nearest public road, 	which would cause the least inconvenience to the neighbouring Than 	farm, is that marked “A-D” on the locality plan premised on the 	expression “ter naaste lage en minste schade.” They refer to the 	inconvenience caused by taking longer to reach the public road if the 	Rooipoort road is used.  	

[12]	However Mr van Heerden, for the opposing respondents, contended 	that the very fact, even on the applicants’ version that access to Drooge 	Veldt is attainable through the Rooipoort road negates the applicant’s 	case that it is landlocked.    

[13]	The impression created by the applicants is that when their 	applications were considered and a decision made, first for prospecting 	and later for the mining permit, the road available to them to access  	Drooge Veldt was either not in issue or was overlooked. 

[14]	According to the applicants the efforts by Scarlet Sun to prevent them 	from accessing Drooge Veldt are aimed at coercing them to succumb to 	the pressure exerted by Scarlet Sun through their representative, Derek 	Corns, to acquire their (the applicants’) alluvial mining business. They 	further contended that the issues raised by the said respondents in their 	answering affidavit were ancillary to the fact that they have prima facie 	established a via necessitates right to access Drooge Veldt. 

[15]	Let me examine this submission. The letter by the applicants’ attorneys, 	David Levithan Attorneys, dated 02 September 2016 claims entitlement 	to access and egress the property via unspecified roads through the 	Mining Area. They invoke as a basis the mining right which they have 	been granted in terms of the Mineral and Petroleum Resources 	Development Act, 28 of 2002 (MPRDA). There is no reference made to 	any specific road in the letter. Counsel for the respondents argued that 	had the applicants attached the Environmental Management Plan (EMP) 	to the papers it would have been clear from that document the entry point 	that 	the applicants are attempting to make pertaining to the access road. 	The Environmental Authorisation deals with roads generally. It specifies 	the road for use by the applicants which would in all probabilities have 	been 	contained in that document which the 	applicants have failed to 	produce. It is therefore unclear whether at the stage of granting the permit 	the Minister and the officials of the Department of Minerals and Energy 	(DME) were alive to the alleged inaccessibility of the road or not. The 	only attachment that purportedly supports the entitlement to traversing 	the Than farm to reach Drooge Veldt is the Deed of Transfer T2079/89. 	Coincidentally this holds true also for the land held in trust for the fifth 	respondent (the CPA) who is also opposing this application.

[16]	To reiterate: The applicants have up to now not bothered to institute 	action mindful of 	the fact that there are several factual disputes not 	soluble on papers.  In my view, they are playing for time by rather opting 	for an extension of the interim relief. Although the applicants initially 	argued that the interim relief they obtained in 2012 was against different 	parties, despite the fact that there were some members of the CPA who 	had locked the gate denying them access to Drooge Veldt the substance 	and issues are substantially identical.  In my view action or approaching 	the Regional Manager was in the offing since the first interim relief in 	2012, and that is four years ago, but never pursued to its conclusion.

[17]	The applicants ought to have followed the consultation process route as outlined by Froneman J in Bengwenyama Minerals (Pty) Ltd & others v Genorah Resources (Pty) Ltd & others 2011 (4) SA 113 (CC) at 140 para 67.  It seems to me that some consultation may have taken place with other interested or affected parties but not with Scarlet Sun. The issue of access to the road was a critical aspect that needed to be brought to the attention of the Regional Manager accompanied by representations or objections. Interested and/or affected parties were invited pursuant to an advertisement placed in the local Diamond Field Advertiser (DFA) newspaper to register as interested parties but Scarlet Sun did not register.  However, this cannot be said to have satisfied s 27(5)(b) of the MPRDA, particularly because either the CPA or Scarlet Sun would in all probability have commented on the use of the road as an affected or interested party.
[18]	 In Joubert and Others v Maranda Mining Co (Pty) Ltd 2010 (1) SA 	198 	(SCA) at 202B - E (para 12) Mlambo JA pronounced:
	“Perhaps it is prudent briefly to consider the scheme of the Act 	relevant 	to the issue before us. It is apparent from s 27 (5)(b) that once an 	application for a mining permit is accepted by the regional manager, the 	latter must notify the applicant for the permit to submit an environmental 	management plan and to consult with the owner of the land or occupier 	or any other affected parties, and submit the results of this consultation to 	him within 30 days. This 	envisages consultation after the lodging of an 	application for and before the grant of a mining permit. Furthermore, in 	terms of s 5(4)(c), once the permit is granted no mining activities may be 	commenced by the permit holder unless it has notified and consulted with 	the owner or occupier of the land in question. In Meepo v Kotze and 	Others 2008 (1) SA 104 (NC) at 114D - E the view was expressed that the 	legislature provided for due consultations between a landowner and the 	holder of or applicant for a permit in order to alleviate possible serious 	inroads being made on the property rights of the landowner. Consultation 	is the 	means whereby a landowner is apprised of the impact that 	prospecting (or, I would add, mining) activities may have on his 	land. I am in respectful agreement in this regard with this view, 	even though that case was concerned with access in relation to a 	prospecting right.”

[19]	The Land Claims Commission had by letter addressed to the Vaalbos: 	Sydney on Vaal Restitution Community Trust dated 29 May 2009 	pertaining to the right of access to Vaalbos granted permission on the 	following conditions:
19.1	That they present that letter to the security personnel at the gate for access and to Scarlet Sun who were temporary caretakers of the farm with the CPA. That had to happen  by the latest on Saturday 30 May 2009 at 15:00;
19.2	That they provide the Commission and the security at the gate with he contact details of the person who will be dropping off security guards and furnish them with the registration details of their vehicle(s) by Monday 01 June 2009 before 10:00; and
	19.3	That the changeover of security guards be carried out before 18:00 		to avoid conflicts and extra hours being claimed by security guards.
That failure to comply with the above would render the permission    
invalid. 
	It is therefore incorrect to state that access to traverse the road was 	uninterrupted since 2009 when, on the contrary, permission was sought 	by the Trust and was granted as aforementioned. Scarlet Sun was 	formally recognised as the caretaker of the farm, albeit for an interim 	period.

[20]	Scarlet Sun was granted a mining permit valid from 16 July 2010 for 12 	years, ending on 15 July 2022. A mining permit holder is not exempt 	from complying with the relevant provisions of the Mine Health and 	Safety Act, 29 of 1996, and all other applicable laws of the country. This 	obligation cannot be fanciful. Which is what it would amount to if the 	applicants’ contention is sustained. Sec 5(2)(b) requires an employer to 	maintain a healthy and safe mine environment. It stipulates that:
	“(2)	As far as reasonably practicable, every employer must – 
	(b)	ensure that persons who are not employees, but who may be 	directly affected by the activities at the mine, are not exposed to any 	hazards to their health and safety.”
	It cannot be gainsaid that this obligation does apply to Scarlet Sun regard 	being had to the submissions that there are six contractors mining on the 	farms Than and Mozib using dumper trucks, front end loaders and 	excavators which cross over road B-A-D. There are therefore health and 	safety risks that must be managed.

[21]	In Bengwenyama Minerals (Pty)Ltd & others v Genorah Resources (Pty) Ltd & others 2011 (4) SA 113 (CC) Froneman J remarked further:
	“If the landowner or lawful occupier impedes holders of prospecting 	rights [I would also add mining rights] in the exercise of their rights, the 	holders must report this to the regional manager concerned.” 

[22]	Section 54(1) of the Mineral and Petroleum Resources Development Act 24 of 2008 stipulates:
	“(1)	The holder of a reconnaissance permission, prospecting right, mining right or mining permit must notify the relevant Regional Manager if that holder is prevented from commencing or conducting any reconnaissance, prospecting or mining operations because the owner or the lawful occupier of the land in question – 
(a)	refuses to allow such holder to enter the land;
(b)	places unreasonable demands in return for access to the land; or
(c)	cannot be found in order to apply for access.”

[23]	The applicants have not persuaded me why they have not approached the 	Regional Manager as required. They are dilatory in their endeavour to 	bring finality to this this matter. They were previously locked out by the 	CPA members in Case No 393/2012 whereupon they sought and 	obtained interim and final relief. The current significant difference 	between that application and the present one lies with the citation of 	Scarlet Sun as the 	party responsible for locking the access gate and not 	the members of the CPA. It is inexplicable why the applicants would 	always resort to seeking interim measures when a problem of this nature 	surfaces. They do not require a court order to institute an action neither 	are they prevented from seeking certainty and clarity from the Regional 	Manager as s 54 of the MPRDA contemplates.

[24]	I am not convinced that the applicants have established a prima facie right regard being had to the evidence that was placed before me. The balance of convenience favours the dismissal of the application. In any event they have an alternative remedy of either approaching the Regional Manager or institute action for the proper ventilation of all the issues. 

[25]	The Constitutional Court emphasised the importance of internal remedies 	by way of the pronouncement by Mokgoro J in Koyabe and Others v 	Minister for Home Affairs and Others (Lawyers for Human Rights as 	Amicus Curiae) 2010 (4) SA 327 (CC) (2009 (12) 	BCLR 1192; 
	“[35] Internal remedies are designed to provide immediate and cost 	effective relief, giving the executive the opportunity to utilise its own 	mechanisms, rectifying irregularities first, before aggrieved parties resort 	to litigation. Although courts play a vital role in providing litigants with 	access to justice, the importance of more readily available and cost 	effective internal remedies cannot be gainsaid.
	[36]	First, approaching a court before the higher administrative body is 	given the opportunity to exhaust its own existing mechanisms undermines 	the autonomy of the administrative process. It renders the judicial 	process premature, effectively usurping the executive role and function. 	The scope of administrative action extends over a wide range of 	circumstances, and the crafting of specialist administrative procedures 	suited to the particular administrative action in question enhances 	procedural fairness as enshrined in our Constitution. Courts have often 	emphasised that what constitutes a “fair” procedure will depend on the 	administrative action and circumstances of the particular case. Thus, the 	need to allow the executive agencies to utilise their own fair procedures 	is crucial in administrative action.”

[26]	It is further unclear whether the Land Use Planning Ordinance 15 of 1985 	(LUPO) has been complied with. Japhta J discussing the interplay 	between LUPO and MPRDA in Maccsand (Pty) Ltd v City of Cape 	Town and Others 2012 (4) SA 181 (CC) at 191B-C (para 18) stated:
	“[18]	Therefore in terms of LUPO, mining may only be undertaken on 	land if the zoning scheme permits it (or a departure is granted).  If not, 	rezoning of the land must be obtained before the commencement of 	mining operations.  The zoning that permits that land to be used for 	mining does not, however, license mining nor does it determine mining 	rights.  The role played by LUPO is limited to the control and regulation 	of the use of land.”
	This to me suggests that spatial planning and if needs be rezoning ought 	to have been undertaken to cater for the accessibility to the farm 	concerned. The responsibility is coordinated among the relevant 	departments.

[27]	The phrase “ter naaste lage en minste schade” is not inflexible. In view 	of the 	factual issues emanating from this case it is in my view advisable 	for this matter to be fully ventilated by way of action proceedings. The 	Environmental Plan of the applicants, which did not form part of the 	papers, ought to have addressed the issue of the road. If it does not, the 	Regional Manager ought to correct this shortcoming.

[28]	Regard being had to the oral and written submissions and all the 	supporting documentation, I therefore find that the applicants have not 	succeeded in meeting all the requirements for a temporary interdict. Not 	only did they fail to show that they did not have alternative remedies, 	apart from seeking an interdict, but also the prima facie right to traverse 	the Than farm is unclear. Their application stands to fail for the stated 	reasons. The Environmental Authorisation ought to have specified the 	road to be utilised by the applicants. If there was an omission or 	oversight, the Regional Manager and all other internal remedies should 	have been exhausted. The upshot of what has gone before is that Drooge 	Veldt is not landlocked.

	Costs
[29]	Scarlet Sun and The Sydney on Vaal Communal Property Association 	have successfully opposed this application. There is no reason why 	costs should not follow the result.  

	Order
[30]	The following order is made:

1.	The interim order granted on 16 September 2016 is discharged.
2.	The first applicant, Theta Mining Proprietary Limited, and the second applicant, Lonrho Mining SA Proprietory Limited, are ordered to pay the costs jointly and severally, the one paying the other to be absolved.

…………………………………..
MAMOSEBO J
NORTHERN CAPE DIVISION
For the applicants: 			Adv BM Gilbert		
Instructed by:			David Levithan Attorneys
					Duncan & Rothman			
										
For the respondents:		Adv CN van Heerden		
Instructed by:			Van De Waal Inc