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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO.: UM120/19 & UM165/19

In the matter between:

IKWEZI VANADIUM                                                                             Applicant

and

MONONONO COMMUNITY                                                       1st Respondent

MINISTER OF RURAL DEVELOPMENT                                   2nd Respondent

AND LAND REFORM

MINISTER OF MINERAL RESOURCES                                    3^rd Respondent

URGENT APPLICATION

 GURAJ

DATE OF HEARING                                   23 JULY 2020

DATE OF JUDGMENT                              04 SEPTEMBER 2020

FOR THE APPLICANT                              ADV I CURRIE

FOR 1^ST RESPONDENT                           ADV M MASILO

JUDGMENT

GURAJ.

Introduction.

[1]               This is an urgent application for an order in terms of Section 18 (3) of the Superior Courts Act, 10 of 2013. The applicant (lkwezi)prays that the consolidated court order of 27 February 2020 in case numbers UM120/2019 and UM165/2019 are declared to be operative and executable pending the finalisation of the first respondent's appeal, and pending the further appeal to any other court.

[2]                lkwezi obtained a prospective right for, inter alia, vanadium in 2012 over portions of the farms Haakdoornfontein, Varkfontein and Morewag, which is state owned land. The farms are not occupied but are used for the grazing of cattle by the surrounding communities. During June 2019, lkwezi began operations to commence a bulk sampling operation on a 7.5 hectare area on Haakdoornfontein

[3]                lkwezi brought an urgent ex parte application under case No UM120/19 and procured a Rule Nisi interdicting some members of the first respondent's community on 5 July 2019. lkwezi again on 2 September 2019 returned to court for an order extending the names of the respondents to include the fourth respondent, Themba Nzala and 29 Others, which was also granted.

[4]                On the return day of the Rule Nisi, the first respondent's community members appeared unrepresented before Court. The matter was postponed for the first respondent to seek legal representation as the issues involved were quite serious.

[5]              The first respondent's community members resolved to intervene as they were of the considered view that this interdict application was an intimidation by the applicant to their leadership and some members of the community over something which they did not do and were falsely accused or framed so as to procure unfettered access to their land without their informed consent. As a result, the first respondent's community members brought an urgent application for intervention in the case UM120/19, and also sought other ancillary orders. The intervention was opposed and the matter was postponed.

[6]              The first respondent's community also brought an urgent application for a declaratory order against lkwezi, the second and third respondents under case No UM165/2019, wherein they contended that in the absence of the jurisdictional factors as required by the Interim Protection of Informal Land Rights Act (IPILRA), the second respondent could not have exercised its discretion and validly granted the applicant rights to conduct bulk sampling and/or minor mining rights granted in terms of section 20 (2) of the Minerals and Petroleum Resources Development Act.

[7]               The application in UM165/2019 was set down for hearing on 3 October 2019. lkwezi applied for the postponement of this application to allow it to file answering papers and for an order that it be consolidated with case number UM120/2019. On 3 October 2019 the Court gave an interim order interdicting lkwezi from conducting "minor mining" (meaning its planned bulk sampling operations) pending the hearing of Part B of the application.

[8]                The matters (UM120/2019 & UM165/2019) were all heard together on 11 December 2019 and on 27 February 2020 the judgment and order was granted to the effect that:

8.1       Case UM120/2019: The Rule Nisi prohibiting the violent disruption of lkwezi's prospecting activities was  confirmed with costs except against the fourth respondents who had adduced evidence that they were not involved in the events.

8.2      Case UM120/2019: The interim interdict granted on 3 October 2019 was discharged. (The interdict endured only  until  the hearing of Part B, i.e. 11 December 2019. It was further extended on that day pending the delivery of judgment  in the applications. It was thus discharged on the day that the judgment was delivered.)

8.3     The first respondent's IPILRA application in case UM165/2019 was dismissed with costs.

[9]                 On 5 March 2020, the Mononono Community (respondent) brought an application for leave to appeal against the whole of the judgment and order, in case No UM165/2019 and UM120/2019.

[10]           On 26 March 2020, lkwezi brought the current application for immediate execution of the judgment and order of 27 February 2020 under section 18 which was set down for hearing on 30 April 2020. This date was selected because it was one week after the anticipated expiry of the initial 21 day lockdown period which commenced on 27 March 2020. The lockdown period was then extended. lkwezi attempted to have the matter heard on 30 April 2020 (the date specified in the notice of motion). This was not possible, however, due to difficulties faced by the respondent in opposing the application on this date.

[11]            The matter was duly removed, an agreement was reached by the parties to resolve the application for leave to appeal. Both parties duly filed heads of argument on 14 May 2020 and the application was to be decided on the papers.

[12]             On 24 June 2020, the Court granted the respondent leave to appeal to the Full Court of this Division. lkwezi alleges that it did not become aware of the decision to grant the application for leave to appeal until 2 July 2020. lkwezi then immediately took steps to have the section 18 application set down for hearing. This was done by agreement with the respondent's attorneys.

The requirements of section 18

[13]             Section 18 of the Act has replaced Rule 49 (11) of the Uniform Rules of Court. It reads:

" 18         Suspension of decision pending appeal

(1)         Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the

operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.

(2)         A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders. "

[14]              DE Van Loggerenberg and E Bertelsmann Erasmus: Superior Court Practice 2 ed vol 1 Service issue 2, correctly concludes that section 18 (3) 'is a novel provision and places a heavy onus on the applicant'. In Swart & Another v Cash Crusaders Southern Africa (Pty) Ltd[1], the court stated:

"[4]...  Both judgments  make it clear that s  18 of the Act has introduced  a new dimension to these types of proceedings by requiring first that the discretion may be exercised only if the conditions precedent of "exceptional circumstances" , and actual irreparable harm to one party, and no harm to the other, are proven. It is now incumbent upon the applicant seeking leave to execute pending an appeal, to prove on a balance of probabilities that it will suffer irreparable harm if leave to execute is not granted, and that the other party will not suffer irreparable harm if the court so order. Once these jurisdictional facts are established, the court may exercise its wide discretion to grant leave to execute, or not to grant leave. "

[15]           Navsa JA, in Ntlemeza v Helen Suzman Foundation[2] made the following remarks:

"[35]      Section 18 (1) entitles a court to order otherwise 'under exceptional circumstances '. Section 18 (3) provides a further controlling measure, namely, a party seeking  an order  in terms of s 18 (1) is required 'in addition', to prove on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.

The learned judge of appeal Navsa JA, at para 36 quoted and referred with approval to the two staged test in the judgment and the views expressed by Sutherland J,

"[36]      In Incubeta Holdings & Another v Ellis & Another 2014  (3) SA 189 (GJ) para 16, the court said the following about s 18:

'It seems to me that there is a new dimension  introduced  to the test by the provisions of s 18. The test is twofold. The requirements are:

•         First, whether or not "exceptional circumstances" exist; and

•           Second, proof on a balance of probabilities by the applicant of - the presence of irreparable harm to the applicant/victor, who wants to put into operation and execute the order; and on the absence of irreparable harm to the respondent/;loser, who seeks leave ,to appeal. "

[16] The learned Judge of appeal Navsa JA, at para 37 referred with approval to what would constitute exceptional circumstances, and stated that:

" [37]      As to what would constitute exceptional circumstances, the court, in lncubeta, looked for guidance to an earlier decision (on Admiralty law), namely, MV Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas, & Another 2002 (6) SA 150 (C), where it was recognized that it was not possible to attempt to lay down precise rules as to what circumstances are to be regarded as exceptional and that each case has to be decided on its own facts. However, at 156H-157C, the court said the following:

1.          What is ordinarily contemplated by the words "exceptional circumstances " is something out of the ordinary and of an unusual nature; something which is excepted in the sense that the general rule does not apply to it; something uncommon, rare or  different;  "besonder ",  "seldsaam ",  "uitsonderlik", or "in hoe mate ongewoon ".

2.          To be exceptional the circumstances concerned must rise out of, or be incidental to, the particular case.

3.        Whether or not exceptional circumstances exist is not a decision which depends upon the exercise of a judicial discretion; their existence or otherwise is a matter of fact which the Court must decide accordingly.

4.        Depending on the context in which it is used, the word "exceptional" has two shades of meaning: the primary meaning is unusual or different; the secondary meaning is markedly unusual or specially different.

5.        Where, in a statute, it is directed that a fixed rule shall be departed from only under exceptional circumstances, effect will, generally speaking, best be given to the intention of the Legislature by applying a strict rather than a liberal meaning to the phrase, and by carefully examining any circumstances relied on as allegedly being exceptional. "

[17]             Fourie AJA in University of Free State v Afriforum & Another[3], in dealing with the aspect of exceptional circumstances, at paragraph 12-13 state that:

"[12]                    The concept of 'exceptional circumstances ' introduced by s 18 (1), was considered by Mpati Pin Avnit v First Rand Bank Limited[2014] ZASCA 132, in the contextofs 17 (2)(/) of the Act which provides that in 'exceptional circumstances' the President of this Court may refer a decision on an application for leave to appeal to the court for reconsideration. Mpati P held that upon a proper construction of s 17(2)(I), the President will need to be satisfied that the circumstances are 'truly exceptional' before referring a matter for reconsideration.

[13] Whether or not 'exceptional circumstances ' for the purposes of s 18 (1) are present, must necessarily depend on the peculiar facts of  each case. In lncubeta Holdings at para 22 Sutherland J put it as follows:

" Necessarily, in my view, exceptionality must be fact-specific. The circumstances which are or may be "exceptional" must be derived from the actual predicaments in which the given litigants find themselves. '

[18]              Fourie AJA, at para 14 quoted and referred with approval to the remarks by Binns-Ward J, when he held that:

"[14]                     A question that arises in the context of an application under s 18, is whether the prospects of success in the pending appeal should play a role in the analysis. In Incubeta Holdings , Sutherland J was of the view that the prospects of success in the appeal played no role at all. In Liviero Wilge Joint Venture Satchwell J, Moshidi J concurring, was of the same view. However, in Justice Alliance Binns-Ward J (Fortuin and Boqwana JJ concurring), was of a different view, namely that the prospects of success in the appeal remain a relevant factor and therefore ' the less sanguine a court seized of an application in terms of s 18 (3) is about the prospects of the judgment at first instance being upheld on appeal, the less inclined it will be to grant the exceptional remedy of execution of that judgment pending the appeal. The same quite obviously applies in respect of a court dealing with an appeal against an order granted in terms of s 18 (3) '.

[15]        I am in agreement with the approach of Binns-Ward J  in fact, Justice Alliance serves as a prime example why the prospects of success in the appeal are relevant in deciding whether or not to grant the exceptional relief Binns-Ward J concluded that he prospects of success on appeal were so poor that they ought to have precluded a finding of a sufficient degree of exceptionality to justify an order in terms of s 18 of the Act. This conclusion was subsequently proven to be justified when this court upheld the main appeal in Justice Alliance. "

Exceptional circumstances

[19]          Counsel for lkwezi dealt with the question of exceptional circumstances in the current case as follows:

" 25.      The interdict application was originally brought because of intimidation, threats of violence and malicious damage to property by certain individuals opposed to lkwezi 's operations. These acts were patently unlawful and without any possible justification. Indeed, none of the deponents in the answering papers in the interdict application attempted to justify such conduct.

26.            Jkwezi thus was forced to seek and obtain the protection of an interdict to prevent these unlawful acts from continuing.

27.             Because of the suspension of that interdict pending the appeal it finds itself in the extraordinary position that it is unable to rely on the protection of the Courts to allow it to conduct its lawful operations, unless interim execution of the interdict is allowed. This constitutes exceptional circumstances. "

Irreparable harm

[20]             The following submissions were made on behalf of lkwezi in

the heads of argument:

"[32]      lkwezi is barred from exercising its rights at the farms due to threats of disruption. It is required to complete its bulk sampling operations before expiry of its right in March 2021, which is now some eight months away.

[33]       The applicant is also required to properly consider the viability of mining at the farms and make application for any mining rights that could possibly be obtained in respect of the farms before the expiry of its prospecting right in March 2021.

[34]      The impending guillotine created by the expiry of the right was precisely the reason why lkwezi initially approached the Court as a matter of urgency for an interdict in July 2019. The urgency has only increased since then.

[35]       The appeal is unlikely to be heard andfinalized before the end of 2020. Even if it is successful the appeal will be too late for lkwezi to complete the bulk sampling operation and its considerable financial investment in the prospect will have been wasted.

[36]     The appellant does not contradict the evidence of the harm to Jkwezi but dismisses it as unimportant. Such expenses are it says "in the nature of the beast that is mining" (AA), p104, para 53.1). This dismissive attitude fails to take into consideration the very real consequences of such financial losses. Jkwezi would not recover from the financial losses that it stands to face in the event that 8 years of work and expense conducted at the property comes to nothing, imperiling its survival (RA, p 140, para 16). In the present economy, such a waste of scarce resources should not be countenanced. "

Absence of harm to the appellant

[21]             Ikwezi is of the view that the respondent will  not  suffer irreparable harm if the application for execution of judgment is granted because lkwezi's prospecting operations have been taking place since 2012. The bulk sampling operations are confined to a 7.5 hectare area of the farms, which together comprises some 9 000 hectares. The portion of the property at which lkwezi intends to conduct bulk sampling will be fenced and access thereto will be limited to prevent harm. The bulk sampling operations must be completed before the expiry of the prospecting and thus will last a maximum of eight months.

[22]             Any excavations made during such operations will be rehabilitated and returned to their former state in accordance with lkwezi's environmental management plan for which lkwezi has made financial provision for in accordance with the relevant legislation. The grazing of cattle on the farms (which is the only activity currently taking place on the farms) cannot be severely affected by the small portion of the property at which lkwezi intends to conduct bulk sampling operations being fenced off and becoming unavailable for grazing purposes for such a limited period.

[23]           Members of the respondent do not occupy the alleged property on which bulk sampling is to take place. They have failed to prove that they have any property rights on the farm. These individuals' only possible interest in the property is limited to the grazing activities that take place there, which are not in fact affected by lkwezi's intended work on some 7.5 hectares. There is, as such, minimal, if any, prejudice to the appellant that is not irreparable.

Prospects of success on appeal

[24]           lkwezi pointed out that in relation to the interdict remedy, Mononono Community is not cited as one of the respondents there. There is therefore no plausible reason to object against an interdict preventing the perpetration of unlawful acts. It was therefore submitted on behalf of the applicant that the proposed appeal against the interdict is doomed for failure.

[25]           On the appeal against the judgment in the IPILRA application, the following submissions were made on behalf of lkwezi: As to the prospects of success in the appeal in respect of the IPILRA application (which is the probable reason that leave to appeal was granted), this is immaterial to the relief sought in this section 18 application. The relief sought in the IPILRA application is purely declaratory and thus concerned with future and not current rights and conduct. Even if the appellants are ultimately successful in reversing the dismissal of this application it would have no bearing on the current position, namely that lkwezi is lawfully permitted to prospect but is unable to do so because of the suspension of the interdict.

Analysis by Court

[26]              It is common cause that the people who allegedly unlawfully disrupted the activities of lkwezi at the site in question did  so because there was active excavation and removal of soil out of this land by lkwezi. Since currently there is no removal of soil or mining operations going on, there are no disruptions. At the hearing of this matter (Section 18 (3) application), lkwezi never complained to the court that the disruptions have started once again. Applicant fears that such unlawful acts will start as soon as it commences to do excavations and transporting of truckloads of soil away  from  the farm in question.

[27]             In relation to prospects of success of appeal, the Court a quo has already granted the respondent leave to appeal because there are prospects of success. There is therefore no need that I should revisit this aspect in this judgment.

[28]             lkwezi avers that because its permit expires in March 2021, and there is a potential that the appeal may not be heard this year, it will suffer irreparable harm. During argument in Court, I asked Counsel fro the applicant whether the relevant Minister would not consider extending the period of validity of the permit, or renew it if the application for execution fails in Court. All Counsel could say was that he was doubtful if the Minister would be amenable to renewing the license/permit because he/she had already done so in the past. The applicant has a duty to prove that the respondent will not suffer irreparable harm if the judgment is executed pending appeal.

[29]             It is interesting to note that lkwezi relegates the respondent's interest or right on that piece of land to grazing cattle only. It is surprising that nowhere in this application does lkwezi address the issue of soil samples which are transported out of the land. Those loads and loads of soil are gone for good. The interest of the respondent is on this very same soil which is being removed. The fear of the respondent is that if this Court allows lkwezi to resume operations, by the time the appeal is heard the horse will have bolted already. The respondent's fear is not without merit especially if we keep in mind the words of Vally J, in Mokgatlha and Others v South African Municipal Workers Union and Others[4]:

"[13]                    On a more general note, I hold that if a victorious party suffers irreparable harm because of a pending appeal, as has happened in this case with the applicants 6 and 7, then the very foundation of our social contract, the rule of law, will be seriously compromised. It bears the risk of people losing faith in the law and in the courts. Such a consequence is not to be treated lightly. "

[30]              It is my considered view that if lkwezi is allowed to resume operations pending appeal, the respondent will suffer irreparable harm should it be successful on appeal. There is yet another reason why the applicant must fail in its bid, the applicant has failed to show any reasons or circumstances which are "out of the ordinary, or unusual, or 'in hoe mate ongewoon’ to justify this Court's intervention in terms of Section 18 of the Superior Courts Act. In my view, the reasons which have been raised by lkwezi do not measure up the high test "exceptional circumstances". There is further no evidence that the relevant Minister will not consider renewing lkwezi's permit/license due to the delay caused by this case. lkwezi itself is not certain that there is no likelihood of its license/permit being renewed. lkwezi's perceived irreparable harm is mere speculation.

Order

[31]              In the result, the application is dismissed with costs.

SAMKELO GURA

JUDGE OF THE HIGH COURT

ATTORNEYS

For the Applicant

VERMAAK MARSHALL WELLBELOVED INC.

C/o Minchin & Kelly Inc. Kelgor House

14 Tillard Street MAHIKENG (018) 381 2910

Ref: MR M MARSHALL/ng/I001762

For 1^st Respondent

ME TLOU ATTORNEYS & ASSOCIATES.

43 Baden Powell Streets Golf View

MAHIKENG

(018) 011 0036/7/8/9

Ref: MR TLOU/MISSTLHABI/M0212/CIV

For 2^nd & 3^rd Respondents:               

STATE ATTORNEY

Office No. 1, First Floor

Mega City Complex MMABATHO

Tel: 018 384 0161 / 0269

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