LEGISLATION

Facts: Sand Hawks (appellant) engages in the exploration for, and the exploitation of, mineral resources in South Africa. Labonte (respondent) is in the same industry. Labonte lodged an application in terms of section 22 of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) for mining rights in respect of sand over various portions of several farms in the Limpopo region. The Regional Manager (RM) accepted the Labonte application in part. Sand Hawks submitted their applications for mining permits over the same properties, which were accepted. Following Sand Hawks’ accepted application by the Regional Manager, Labonte lodged another application at the advice of the Department to address the Regional Manager’s error. Labonte was eventually granted mining rights. More than a year later, Sand Hawks subsequently lodged an internal appeal in terms of section 96 of the MPRDA against this decision, claiming the Regional Manager was functus officio after his initial partial acceptance of Labonte's application. The Director General upheld Sand Hawk’s appeal. Labonte then sought to review the decision of the Director General in the High Court on four grounds, including the Director General’s failure to apply their mind to the issue of condonation as the Sand Hawks’ application was lodged almost 13 months after the DDG had granted Labonte its mining rights and five years after the Regional Manager had advised Labonte he would accept its application in full.

Appeal: The High Court found in favour of Labonte and held that the law regarding functus officio applies only to final decisions. The Regional Manager's decision was not final but a preliminary step, allowing for subsequent corrections. The High Court granted an order reviewing and setting aside a decision of the Director-General and the decision of the regional manager, who had granted Labonte mining rights over certain portions of the property. This appeal is against the judgment and order of the High Court.

Discussion: The reasons provided by the DG for not participating in the proceedings are not sufficient. In what was produced as the Rule 53 record, there is no record where the DG during the proceedings enquired into this delay of five years (in respect of the RM’s decision) and one year (in respect of the DDG’s decision to grant Labonte’s mining rights). The DG failed to apply the "unfairness and travesty of justice" notion which the legal division’s functionaries suggested should be the basis for his consideration of Sand Hawks’s late appeal. The DG did not consider Labonte’s appeal and its application for condonation. The DG did not participate in the proceedings from the onset. Nor did he file any affidavit. The DG's decision in relation to the internal appeal lodged by Sand Hawks should be declared unlawful and set aside in terms of section 6(2)(d) of PAJA as it was materially influenced by an error of law. Labonte’s application was compliant with section 22 at all material times. It was the RM, as he acknowledged, who made a mistake, meaning the fault lay squarely with the RM. The RM worked on correcting the mistake, albeit after accepting Sand Hawks’ application for prospecting rights over the same properties.

Findings: The subsequent acceptance of Sand Hawks’ application was with a caveat, as provided in terms of section 9(1)(b), that is subject to prior rights of the Labonte application. Applying the same "first come, first served" notion, and because Labonte’s application which was compliant with the MPRDA came first and should have been accepted but for the erroneous belief of the RM, the ineluctable conclusion must be that Labonte cannot be expected to commence the process afresh and lose its place in the queue. It would be unbusinesslike to conclude thus. The RM’s error in respect of one part of the application, which was indeed compliant with section 16, did not nullify the whole application. The application remained "alive" and could be corrected. Labonte kept its position until the RM corrected his error and added the property which was omitted due to his error. Labonte’s application thus remained an impediment to any subsequent application, such as that of Sand Hawks. The fact that the High Court found the RM’s decision not to be final and that he was not functus officio, does not detract from the fact that the RM’s decision is an administrative decision and action which is subject to review. The High Court was correct.

Order: The appeal is dismissed with costs.

MOCUMIE JA (MEYER JA, GOOSEN JA, KOEN AJA and SEEGOBIN AJA concurring)

Facts and issue: Appeal against an order granted by the learned Regional Magistrate in an action, dismissing the appellant’s claim and granting the respondent’s counterclaim. The appellant issued summons in the Regional Court for payment in respect of security services rendered by it to the respondent, pursuant to a written agreement. The appellant was not at any material time a registered security service provider in terms of the Private Security Industry Regulation Act 56 of 2001. Therefore, the respondent said, it was not obliged to give effect to the agreement.

Discussion: The learned Regional Magistrate thoroughly considered the aspect of ‘control’ of one company or close corporation over another, and, based on the principle that only a natural person may be a member of a close corporation, he concluded that Millennium could not exercise control over the appellant. Consequently, the magistrate concluded that the appellant was not entitled to provide security services for a fee without being registered in terms of the Act. The purpose of the Act can only be achieved if the person who actually renders the security service is registered, and any other interpretation does not do justice to the purpose of the Act. The enquiry is therefore not about who controls the appellant, but about whether the appellant was rendering a security service. Once it is established that the appellant rendered a security service for renumeration, which it admits it did, it follows then that it ought to have been registered.

Findings: The agreement was invalid by virtue of the fact that the appellant rendered security services for renumeration without being registered in terms of the Act. Section 38 (3) of the Act provides that any person who does not comply with section 20 is guilty of an offence. Therefore, the agreement is not only invalid, but also illegal. A contract that is invalid is void ab initio and can confer no right of action. The appellant is not entitled to claim performance in terms of an illegal contract. The appellant is not entitled to retain what it has received pursuant to the illegal contract.

Order: The appeal is dismissed with costs.

Facts: The respondents conducted a live broadcast in which a picture of the applicant and his cellphone number was shown. This was then published on their social media platforms requesting their followers to call the applicant. The first respondent was stated to have advised the applicant that he had 67,000 followers on Facebook and 33,000 on Tiktok. The applicant complains that the publication of his cellphone number breaches the Protection of Personal Information Act 4 of 2013 as well as the right to privacy entrenched in section 14 of the Constitution. The respondents in answer attempt to demonstrate that the applicant had undermined their business and that they were therefore justified in taking retaliatory steps against him. 

Application: The applicant (Mr Munetsi) has approached this court as a matter of urgency seeking interdictory relief, an apology and punitive costs in the light of the respondents’ publication on social media platforms of his personal information and material which is alleged to be defamatory of him.

Discussion: The only defamation that has been proved by the applicant was the second respondent’s remark that he was “evil”, and the respondents have already apologised for that and the court is of the view that this should suffice. Publishing someone else’s personal cell phone number on social media platforms with a large viewership and requesting that viewers call the person in question to promote the interests of the person who had published the cell phone number also involves a breach of the common-law right to privacy. Whether or not the applicant’s phone number may already have been available on some other platform does not detract from this.

Findings: The respondents have breached the Protection of Personal Information Act 4 of 2013 (POPIA) by publishing the applicant’s telephone number on their social media platforms (and Facebook, in particular). That breach was moreover aggravated by the first respondent requesting the viewers of that post in their video to “ask [the applicant] what it is that [the applicant] wanted from [the respondents]”, apparently resulting in a deluge of telephone calls. Section 11(1) of POPIA stipulates that personal information (as defined) may only be “processed” in certain specified circumstances, none of which is applicable here. The term “processing” is defined in section 1 of POPIA as including, in relation to personal information, “dissemination by means of transmission, distribution or making available in any other form”. By making the applicant’s cell phone number publicly available on social media, the respondents thus breached section 11 of POPIA.

Order: The respondents are directed to remove the live broadcast from all their social media platforms and also remove any video or message containing the applicant’s picture and cell phone number from such platforms, as well as to refrain from publishing the applicant’s personal information without his consent. The respondents are to pay the costs of the application on a party and party basis, with counsel’s costs being taxed on Scale A.

Facts and issue: Faced with the retrenchment of hundreds of employees, Northern Coal sought to expand its mining operations by extending its mining area to include the neighbouring farm. The Minister granted Northern Coal consent to extend its mining area to include the neighbouring farm (section 102 consent). Parallel to this process, the respondent (Jaments) applied for a prospecting right on the same neighbouring farm. This was granted on appeal. The Minister suspended the consent for section 102. The effect of the suspension decision is that Northern Coal may no longer lawfully mine on the farm. Northern Coal seeks an urgent review of the suspension decision.

Discussion: Section 102 of the Minerals and Petroleum Resources Development Act 28 of 2002 does not require a valid right over the new area or a consolidation of rights. However, the section expressly refers to an extension of a mining area. Northern Coal sought that, and the Minister granted that consent. Northern Coal’s primary submission that the section 102 consent granted a mining right is upheld. Consequently, the principle of first in the right, first in time applies, and Jaments's subsequent application ought not to have been validly received by the Department. The first-in-time principle expressed by the maxim qui prior est tempore potior est jure is based on equity. In addition, real rights are stronger than personal rights, and in a conflict between real rights, the maxim qui prior est tempore potior est jure applies. There is no reason why this principle of equity should not apply to a section 102 consent application when it applies to other types of mining right applications, particularly considering the nature of the right at play.

Findings: The court finds that in the event it erred in finding that a section 102 consent is a mining right, then the alternative argument by Northern Coal that it is akin to a mining right is correct. Neither the law nor the facts support the Minister's reliance on financial losses. Jaments has no right in law to apply, let alone be granted a prospecting right over a piece of land on which a section 102 consent application is pending. Factually, it cannot suffer any losses based on a non-existent right. In this way, the Minister had regard to irrelevant considerations. The Minister's suspension decision reviewable on this basis alone.

Order: The first respondent’s decision in terms of section 96(2)(a) of the MPRDA to suspend the operation of the consent granted to the applicant in terms of section 102 of the MPRDA is reviewed and set aside. The appellant’s application to suspend the operation of the Director-General’s decision to grant consent to Northern Coal pending the outcome of the appellant’s appeal is dismissed.

Facts and issue: An ex parte order was granted on an urgent basis in terms of which Samancor was interdicted and restrained from conducting any mining activities and mining-related activities from the property, pending the finalisation of the proceedings instituted by the applicant (Ntadile Mineral Resources) under Section 54(7) read with Section 54(4) of the Mineral and Petroleum Resources Development Act 28 of 2002 (the Act) together with ancillary relief. Samancor has anticipated the return date, and this judgment deals with the confirmation or discharge of the interim interdict granted.

Discussion: Ntadile Minerals claim that their rights are infringed on three grounds. That the production certificates do not reflect the correct amounts of ore mined; the dispatch summary does not accord with what ore have been mined; and ore is being concealed from Ntadile Minerals. Samancor answers to the effect that the production certificates and dispatch summaries should not be conflated, and some of the certificates attached to the founding affidavit was not the final certificates in the absence of a signature. Samancor attaches the final certificate with the signature, reflecting the same amount as the certificate attached by Ntadile Minerals. Samancor explains that the production certificate refers to the ore mined, whereas the dispatch certificate refers to the ore weighed by the weighbridge and dispatched from the mine. In relation to the storage of the ore on the nearby farm, Samancor provides a reasonable explanation that the ore is not safe to be stored at the Varkenvlei mine, it being a new mining operation.

Findings: Having regard to the answers given by Samancor to each of the allegations that Samancor is not disclosing the true amounts or ore, and that Samancor is concealing the ore that is mined, Ntadile Minerals has not made out a prima facie case for the relief sought. As such, Ntadile has failed to prove a prima facie right to the relief sought. The balance of convenience favours Samancor and dictates against confirmation of the rule nisi.

Order: The rule nisi is discharged with immediate effect.

Facts and issue: The applicant was granted import permits for each consignment. The removal permits each contained a condition that the seal on the containers was to be broken by an inspector. The applicant broke the seal without an inspector present. A State Veterinarian then issued notices of rejection for each consignment because the conditions of removal were not adhered to. The applicant seeks to review and set aside a decision of the Minister in which she upheld a decision to reject five consignments of frozen pork imported by the applicant.

Discussion: The applicant contended that the Minister’s decision was unreasonable, irrational, harsh and failed to consider relevant considerations. The applicant submitted that the Minister specifically failed to have regard to the fact that the measures proposed by it would have enabled the inspectors to determine whether the imported commodities were safe for consumption by the public and met the requirements of the import permits. The Minister did take these measures into account. She held that the measures would not completely mitigate against the possible risk of introduction of infectious agents that would compromise both human and animal health. The Minister did not consider irrelevant considerations and did not fail to consider relevant considerations. The applicant says that the Minister overemphasised the conditions of the removal permit. It is so that the Minister relied on the conditions. However, the conditions were on the permits, and it is justifiable to rely on the conditions. The applicant says that the Minister imposed a wholly disproportionate and punitive sanction when less drastic measures could have been adopted. The Minister did not impose the sanction. She upheld the decisions of the NEO and the Director not to overturn Dr Pillay’s decision to reject the consignments.

Findings: The applicant has failed to demonstrate that the Minister’s decision was unreasonable, irrational, harsh or failed to consider relevant considerations. Having elected not to challenge the validity of the removal permits, the applicant cannot challenge only the imposition of the condition. The decision was not procedurally unfair as contemplated in section 6(2)(c) of PAJA. There is no basis to find that the decision was taken in bad faith or for an ulterior motive.

Order: The application is dismissed.

Facts and issue: This appeal concerns the power of the second respondent, the Johannesburg Stock Exchange (the JSE), to direct listed entities to restate financial statements; and whether a panel of the Financial Services Tribunal (the Tribunal) to hear an application for the reconsideration of a decision in terms of section 230 of the Financial Sector Regulation Act 9 of 2017, was properly constituted.

Discussion: The High Court found that since Trustco did not assail Justice Harms’ decision to appoint the panel, the court could not find ‘that the constitution of the Panel by retired Judge Harms was procedurally unfair or that the constitution of the Panel was a decision of the Panel and is reviewable’. The High Court found, furthermore, that on a reasonable construction of ss 220, 224 and 225 of the FSR Act, it is not a legal requirement that a panel constituted in terms of s 224 should include a person with financial experience and expertise. The court observed that, even though the contended requirement of having financial expertise on the panel is not unreasonable, ‘a Panel consisting of lawyers is eminently suited to adjudicate a reconsideration in evaluating facts and evidence’. These sections do not contain any express or implied requirement for a panel constituted under s 220 to include a person with knowledge of accounting practices or international financial reporting standards. The interpretation contended for by Trustco simply does not find any support in the express and unequivocal language of these provisions. The argument that the JSE does not have the power to direct listed entities to restate financial statements is equally unsustainable.

Findings: The new challenge advanced during oral argument, namely that Judge Harms failed to exercise a discretion in terms of s 224 of the FSR Act when appointing the panel, is ‘a full-frontal attack’ on an administrative act, which could only be undone by virtue of judicial review in terms of PAJA. Trustco’s failure to adopt that course is fatal to its case.

Order: The appeal is dismissed with costs.

Facts and issue: This case relates to the impoundment and sale of stray cattle. The applicant’s essential complaint is that the respondents are responsible for the unlawful impoundment and sale of 15 head of cattle belonging to him in contravention of the provisions of s 25 of the Constitution and the Limpopo Pounds Act, 3 of 2002. The applicant seeks declaratory orders declaring that the impoundment and sale of his cattle was unlawful for want of compliance with the provisions of the Act and violated his rights in terms s 25 of the Constitution.

Discussion: The applicant was the owner of 15 head of cattle which were kept at his home, which were in the custody of his brother. The applicant’s brother let the cattle out to graze and could not find them later that afternoon. Capt. Ramashala was flagged down by boys who alerted him to cattle that were unknown in the area. He then caused the cattle to be kraaled at Mapateng crush pen where local stock owners were summoned to view them. When cattle were not identified, he summoned the Poundmaster, i.e., SPCA Mokopane, to collect the cattle and impound them so that they are safe. Sometime thereafter, Capt. Ramashala took the applicant’s brother to the SPCA to view the impounded cattle, and the latter confirmed that the cattle belonged to the applicant. The cattle were sold by the SPCA at a public auction. The SPCA admits that it impounded 15 cattle in the manner described by the applicant, but specifically denies that the applicant was the owner of those cattle, and that any representative of the applicant viewed the cattle at the pound. The constitutional breach relief is impermissible. The evidence put up by the SPCA itself indicates that the agreement which entitled it to act as Poundmaster for the Mogalakwena Local Municipality had expired before the applicant’s cattle were impounded and was not renewed until after the cattle had been sold. It must follow that, if the SPCA was not properly appointed Poundmaster for the Municipality where the cattle were located, it could not lawfully have impounded the cattle, as it had no authority to do so.

Findings: The applicant complains, correctly, that Capt. Ramashala should have known to contact the right Poundmaster to impound the cattle, and that his summoning of SPCA Mokopane led to the unlawful impoundment of the cattle. Capt Ramashala is attached to the Provincial Stock Theft unit and should have been aware of who the correct Poundmaster was. His summoning of SPCA Mokopane led to the impoundment of the cattle by a person who had no lawful authority to do so and was unlawful. The objective evidence and the undisputed facts show that the sale of the impounded cattle, at the instance of the SPCA, was unlawful in that it did not comply with the publication requirements of section 16(2) of the Limpopo Pounds Act 3 of 2002. It follows that a declaration of the unlawfulness of the sale must issue in the applicant’s favour for want of compliance by the SPCA with the provisions of section 16(2) of the Act.

Order: The applicant was the owner of 15 head of cattle impounded. The impoundment of the impounded cattle was unlawful. The SPCA’s sale of the impounded cattle was unlawful.

Facts and issue: The applicant approached the court for a declaratory order that the smelting operations situated on a farm do not constitute a “mine” as defined in section 102 of the Mine Health and Safety Act, 29 of 1996 and that the provisions of the MHSA are not applicable to the operations.

Discussion: Seeking a declarator in the terms of this application is akin to applying for this court to review the decision of the Respondents without in fact making such an application. The legislature has heeded the Constitutional imperative to enact legislation to ensure that everyone has the right to administrative action that is lawful, reasonable and procedurally fair by enactment of the Promotion of Administrative Justice Act 3 of 2000. In the event that the applicants are unhappy with any administrative action or decision, the manner in which they could have sought any declarator is by way of a review in terms of the provisions of PAJA within the timeframe stipulated therein. At the core of this application, and similar such applications is an attempt by owners of mining companies to avoid compliance with the safety regime in the MHSA. The strenuous attempts by the applicants to cast smelting operations as being an activity distinct from mining is contrived and unfortunate. The applicants’ submissions and evidence fail to persuade a finding in their favour.

Findings and order: The application is dismissed with costs.

Facts: Dr Haeck is a clinical psychologist and therapist practicing under the name of Haeck House Family Wellness Centre. Dr Haeck and Mr Wands, an attorney, incorporated a private company called the “Divorce Diplomats (Pty) Ltd” to provide a non-therapeutic service to couples contemplating divorce to avoid litigation and help them divorce amicably. Dr Haeck counselled Mr and Ms Little in her capacity as a psychotherapist and recommended the couple enters the Divorce Diplomat programme. Although the Littles reconciled after participating in the programme, they accused Dr Haeck of unprofessional conduct, alleging that she took an up-front payment for both the marriage counselling services and the Divorce Diplomats program, but refused to refund them the balance of the amount for hours not used or required. They alleged that she acted both as a marriage counsellor and divorce counsellor, and operated outside of the ethical rules of conduct of the Health Professions Council (HPCSA).

Application: A Preliminary Investigating Committee (PIC) investigated the complaint and concluded that Dr Haeck was “guilty of unprofessional conduct.” It resolved to refer the complaint to the Professional Conduct Committee (PCC) for an inquiry. Dr Haeck approached the High Court and it set aside the preliminary finding as well as the resolution referring the matter to the PCI for an inquiry. It also set aside the misconduct complaint which was the genesis of the investigation and the referral. Aggrieved by the decision, the HPCSA appeals to the full court. The issue turns on the scope of the right to appeal in section 20(1) and (2) of the Health Professions Act No 56 of 1974 read with Regulation 4 of the Act. The main question is whether an appeal lies to the High Court against a decision of the PIC to refer a charge of misconduct to the PCC for an inquiry under the section.

Discussion: Dr Haeck sourced the right of appeal to the court a quo from section 20 which provides that: “(1) Any person who is aggrieved by any decision of the council, a professional board or a disciplinary appeal committee, may appeal to the appropriate High Court against such decision. (2) Notice of appeal must be given within one month from the date on which such decision was given.” On the plain reading of the section, the right to appeal to the High Court is confined to decisions of: (a) the council, (b) a professional board or (c) a disciplinary appeal committee. The section does not provide for an appeal from a decision of the PIC. The point of departure for Dr Haeck’s counsel is that section 20 confers on Dr Haeck a broad right of appeal to “any decision” of the council, professional board or a disciplinary committee. She submitted that since the PIC is a structure of a Professional Board, its decision is by implication appealable. She contended that the referral to the PCC, without the option to pay a fine before the merits were fully ventilated, rendered the decision of the PIC final in this respect. The suggestion is that the reference to “any decision” in the section must be construed to mean a decision to refer a complaint to the PCC.

Findings: The submission disregards the decision maker whose decision is the subject of appeal. That would widen the scope of the appeal and contradicts the decision of the Supreme Court of Appeal in Emergency Medical Supplies and Training CC ta EMS v Health Professions Council [2013] ZASCA 87. There the court determined that an appeal under the section is one in the ordinary sense, and involves “a rehearing on the merits but limited to the evidence or information on which the decision under appeal was given, and in which the only determination is whether the decision was right or wrong.” Since an appeal under the section involves the rehearing of the merits, an appealable decision must mean a final decision on the issue determined by the designated structure in the Act. In the present case, the Registrar referred the complaint to the PIC under Regulation 4(c) to investigate the complaint to establish whether it has merit and to determine what steps to take. The contention that “any decision” includes an investigative decision cannot be supported. It would lead to an untenable result where all decisions, including interlocutory decisions to investigate a complaint are subject to appeal directly to the High Court even before the merits have been disposed of. No appeal can lie from the decision of the PIC because it is ultimately a decision to refer, it is not a final decision, and a referral decision is not appealable.

* See also from para [37] regarding the contention that there was a failure to grant Dr Haeck the right to audi alteram partem; and whether the PIC impermissibly reformulated and expanded the complaint.

Order: The appeal is upheld. The order of the court a quo is substituted with an order dismissing the appeal with costs. The respondent is ordered to pay the costs of the appeal.

SIWENDU J (WINDELL ADJP and UNTERHALTER J concurring)

Facts: In 2019, an anonymous tip-off was made by a former employee of Optivest through the Deloitte tip-off line. The tip-off was in the form of an email which was brought to the attention of the Registrar of the Council for Medical Schemes. The author of the email requested that this issue be forwarded to the correct department for investigation. It was alleged that the author had been working for Optivest and could not approach anyone at the company. Open Water was appointed to conduct an inspection in terms of section 44(4)(a) of the Medical Schemes Act 131 of 1998. Optivest initially co-operated with Open Water but then withdrew its co-operation and sought to challenge the Council for Medical Scheme’s authority to conduct an inspection into its affairs. It refused to hand over certain documentation which Open Water required to complete its investigation. Optivest instituted review proceedings seeking to review and set aside the decisions taken by the Registrar, alternatively, the Council.

Appeal: This appeal concerns the powers of the Council to investigate the alleged non-compliance with the provisions of the Act by a broker accredited by the Council in terms of section 65 of the Act, by way of an inspection in terms of section 44(4) of the Act, read with the relevant provisions of the Financial Sector Regulation Act 9 of 2017 (the FSR Act). The High Court held that it did have such power and dismissed an application by Optivest challenging the exercise of that power with costs.

Discussion: The Act does not expressly provide for an inspection into the affairs of brokers, but it does use the words “any person.” Optivest submitted that the Council can only investigate or inspect the affairs of medical schemes (or other persons related thereto) but not brokers, despite them having been accredited by it under the Act. The respondents contend for a wider construction of section 44(4)(a). They submit that the legislature, in including the words “any person”, as opposed to citing only a medical scheme or seeking to limit the list of persons which qualify as such in section 44(4), made a clear policy decision. The respondents submit that a broker must be certified in terms of section 65 of the Act and that regulation 28C empowers the Council to suspend or withdraw accreditation given to a broker. These powers, the respondents submit, give rise to an implied primary power or, at the very least, an ancillary power in section 44(4)(a) and (b) that an inspection can be commissioned into the affairs of a broker of a medical scheme to ensure compliance with the Act.

Findings: Section 135 of the FSR Act must be read together with sections 8 and 44(4)(a) of the Act. These sections encompass not only an express power to conduct an inspection, but the implied power to rely upon the relevant regulations, which provide some of the remedies which may be utilised to deal with a non-compliant broker. The interpretation, proffered by Optivest, which would exclude or limit the power to investigate brokers in the context of the Act and regulation 28, is untenable. It means that the Council would not be entitled to conduct an inspection in order to perform its functions of monitoring or investigating any non-compliance with the Act and regulations, or determining whether a broker has received payment from beneficiaries as a result of a misrepresentation or unlawful conduct under any applicable legislation. The Council, in terms of section 44(a), read with the relevant regulations and provisions of the FSR Act, has the power to inspect and investigate the conduct of brokers such as Optivest. The conduct of the Council and the Registrar was lawful and in accordance with the rule of law, was not procedurally unfair, or arbitrary, was rationally connected to the purpose sought to be achieved by the Act and did not offend against the principle of legality.

Order: The appeal is dismissed with costs, including the costs of two counsel.

WEINER JA (MOCUMIE ADP, COPPIN AJA and BLOEM AJA concurring)

GOOSEN JA from para [51] would have upheld the appeal.

Facts and issue: The applicant is the registered owner of a farm. The respondent is authorised to and carries out coal mining operations on a property adjacent to the farm. The only issue remaining in dispute was whether the applicant was entitled to an interdict prohibiting the respondent from continuing with its mining activities including underground activities absent compliance with section 5A(c) of the MPRDA.

Discussion: No notification was given to the applicant prior to the respondent carrying out underground mining operations in respect of the land in question. There has thus been no compliance with the provisions of section 5A(c) of the MPDRA. According to the respondent it has been carrying on underground mining operations for some time prior to the launch of this application. Can it be expected to stop all its operations until such time as it has notified the applicant? This may be highly disruptive and prejudicial to the respondent and to the rights of those it employs. In both applications for final and interim interdicts an applicant for relief has to show the absence of another satisfactory remedy. Section 54(7) read together with the other provisions of section 57 provides this alternative remedy.

Findings: The declaratory order sought by the applicant cannot be granted in motion proceedings where such liability is disputed. This much was also conceded by counsel for the applicant. There is no undisputed evidence to back up the claim that the disturbance in the ground water availability on the applicant’s farm is in any way linked to the underground mining activities of the respondent. This can only be established by the presentation of cogent expert evidence in due course. Utilisation of the dispute resolution procedures in section 57 would give the applicant an opportunity to do so.

Order: The application is dismissed.