THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
JUDGMENT

Case No:  296/08

In the matter between:

M L JOUBERT                                                                       FIRST APPELLANT
M L JOUBERT N.O.                                                          SECOND APPELLANT
(In her capacity as trustee of Sanwild Wildlife Trust)
A H GROBLER N.O.                                                              THIRD APPELLANT
(In his capacity as trustee of Sanwild Wildlife Trust)
R SAVORY N.O.                                                                FOURTH APPELLANT
(In her capacity as trustee of Sanwild Wildlife Trust)
THE MURRAY FOUNDATION CONSERVATION                 FIFTH APPELLANT
HOLDINGS (PTY) LTD
v

MARANDA MINING COMPANY (PTY) LTD                                  RESPONDENT

Neutral citation:
Joubert v Maranda Mining Company (296/2008) [2009]
ZASCA 68 (29 May 2009).
Coram:
Nugent, Van Heerden, Mlambo JJA, Kroon et Leach AJJA
Heard:
11 May 2009
Delivered:
29 May 2009
Summary:
Right of access to land in terms of Mineral and Petroleum Resources
Development Act 28 of 2002 – unreasonable refusal by land owner and
occupier to allow mining permit holder access to land – held that when
permit holder has complied with all requirements in terms of the Act it has
a right to enter the land to exercise its rights.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: High Court, Pretoria (Claassen J sitting as court of first
instance).

The following order is made:

‘The appeal is dismissed with costs including the costs occasioned by the
employment of two counsel.’

________________________________________________________________

JUDGMENT
________________________________________________________________

MLAMBO JA (Nugent, Van Heerden JJA, Kroon, Leach AJJA concurring)

[1] On 11 April 2008 the North Gauteng High Court (Claassen J) granted the
respondent final relief on an urgent basis, inter alia interdicting and restraining
the appellants from refusing the respondent access to a piece of land described
in the relevant title deed as the remaining portion of portion 7 of the farm
Leydsdorp Township 779, Registration Division LT, Northern Province (now
Limpopo), size 2604,0827 hectares (the land). This appeal is against the order
and judgment of the court a quo with the leave of that court.

[2] The matter revolves around a goldmine on the land that was originally
worked in the 1890s, after which all mining activities ceased. However, mineral
sampling reports conducted subsequently indicate that the land remains mineral-
rich. The title deed records that, subject to certain conditions, the mineral rights

on the land vested in the State. In any event, when the Mineral and Petroleum
Resources Development Act 28 of 2002 (the Act) came into effect on 1 May 2004
the State became the custodian of all minerals in the whole of the Republic of
South Africa.1 The portion on which the mineral rights are found cover 0,03 per
cent or 1.5 hectares of the land. For convenience I refer to this portion of the land
as the mineral rights area.

[3] The respondent acquired the mineral rights in February 2005 from
Dynamic Mineral Development (Pty) Ltd whose predecessor in title had acquired
them in 2002 from the Department of Minerals and Energy (DME) representing
the State. At the time the respondent acquired the mineral rights, Come Lucky
(Pty) Ltd (Come Lucky) was the owner of the land. The deed of transfer in terms
of which the DME alienated the mineral rights defined these as certain 20
unnumbered base mineral claims.

[4] Come Lucky did not participate in the proceedings in the court a quo even
though it was cited as the first respondent. It also does not feature in this appeal,
having sold the land in the interim to the fifth appellant who took transfer in
February 2008. The first to fourth appellants are the trustees of Sanwild Wildlife
Trust (Sanwild). Sanwild conducts a wildlife sanctuary as well as eco-tourism
operations on the land and appears to have occupied the land since about
September 2006. It has a 26 per cent shareholding in the fifth appellant.

[5] On acquisition of the mineral rights the respondent applied to the Minister
of Minerals and Energy (the Minister) in April 2005 for a prospecting right2 and a
mining permit.3 On the acceptance of the application for a mining permit by the
regional manager of the DME, the respondent lodged an environmental
management plan in July 2005. In June 2005 the respondent notified Come

1 In terms of s 3(1) which provides: ‘Mineral and petroleum resources are the common heritage of
all the people of South Africa and the State is the custodian thereof for the benefit of all South
Africans.’
2 Section 16(1).
3 Section 27(2).

Lucky, as owner of the land, and its attorneys that it had made the applications
and invited the latter to lodge objections, if any, against the grant thereof. This
notification mentioned that the respondent intended to opencast a section of the
mineral rights area and also referred to its obligation to compensate Come
Lucky. In this regard it offered a once-off payment of R 5 000 per hectare.

[6] Come Lucky lodged an objection4 against the applications alleging inter
alia that:

‘The proposed mining operations will undoubtedly have a deleterious impact on the eco-
tourist and environmentally orientated activities of our client and the nature of its
business. Without in any way limiting the effects of the proposed mining activities, the
deleterious impact and ecologically degrading result include, but are not limited to inter
alia,
1.
the disturbance of game and game breeding operations arising from the noise
and blasting associated with the mining operation;
2.
the cancellation of safaris as a result of the noise and disturbance of drilling and
mining operations; and
3.
the general degradation and pollution of the environment arising from the open
cast mining operations.’

The Minister, however, granted the respondent the mining permit on
21 September 2006 and approved the environmental management plan on
19 December 2006. These decisions were never challenged by Come Lucky.

[7] Having been granted the mining permit and with its environmental
management plan approved, the respondent informed Come Lucky in
March 2007 of these developments. The respondent also informed Come Lucky
that it intended to exploit its mining rights in terms of the permit and consequently
raised the issue of access to the land as well as compensation. This approach
elicited no favourable response, save that Come Lucky’s attorneys requested

4 Per letter from attorneys Andrew Miller & Associates dated 29 June 2005.

copies of the applications for prospecting and mining permits and ultimately
indicated that they had instructions to oppose any application that may be
brought in the high court. The respondent thereafter notified the regional
manager of DME that it was being denied access to the land. This prompted the
regional manager to write to Come Lucky recording the respondent’s complaint
and warning the former that steps could be taken against it in terms of the Act
regarding its refusal to allow the respondent access to the land. The letter (dated
11 July 2007) also invited Come Lucky to make representations in respect of the
respondent’s complaint and invited it to show cause why the respondent should
not be allowed access to the land. This also evoked no response from Come
Lucky, whereupon the respondent notified the latter that it intended to enter the
land with immediate effect to exercise its mining rights.

[8] In October and November 2007 the respondent attempted to gain access
to the land but was prevented from doing so by a representative of the
appellants. On the latter occasion the respondent was informed that it should
contact the first appellant who, on being so contacted, informed the respondent
that under no circumstances would it be granted access to the land.

[9] A few days later the respondent removed a lock at a gate some seven
kilometres from the mineral rights area and replaced it with another lock. This
was another attempt by it to gain access to the land. On the same day a
representative of Sanwild informed the respondent that Sanwild had been in
occupation of the land since September 2006. On being appraised of Sanwild’s
occupation, the respondent’s attorneys initiated a meeting with the appellants’
attorneys to discuss the respondent’s need for access to the mining rights area,
as well as the issue of compensation. It was agreed at the conclusion of that
meeting that the appellants’ attorneys would revert to the respondent’s attorneys
with an indication of the appellants’ attitude to the respondent’s request for
access. This did not materialise and the respondent launched its application in
the court a quo seeking inter alia the following relief:

(a)
Interdicting and restraining Come Lucky and the appellants (then first to
fifth respondents) from refusing the respondent (then applicant) access to
the land; and

(b)
authorising the respondent to enter onto the land together with its
employees and to bring onto the land any plant, machinery or equipment
and build, construct or lay down any surface or underground infrastructure
which may be required for purposes of mining on the property as defined
in the mining permit.

[10] The court found:

‘Dit is duidelik dat die applikant het ‘n duidelike reg. “A clear right” soos die geykte
uitdrukking bestaan, en sy permit se geldigheid is nog nie aangeveg nie . . .’

and further:

‘In al die omstandighede is ek tevrede dat die applikant ‘n reg uitgemaak het vir die
regshulp wat hy vra.’

[11] The crisp issue therefore in this appeal is whether the court a quo was
correct in finding that the respondent had established a clear right to access. The
case made out on appeal is that the respondent has not established this. Simply
put, the argument before us was that the respondent sought access to the entire
parcel of land from a gate envisaging a seven kilometre route to the mineral
rights area. In this regard it was submitted that a clear restriction, apparent from
the respondent’s environmental management plan, was that the respondent’s
access to the mineral rights area was to be on a route of no longer than 1.5 km. It
was submitted that access to the land over a seven kilometres route would be
tantamount to the commission of an offence within the contemplation of the Act.
This, I understood, was the appellants’ main argument. I propose to deal with it
before I consider the other submissions advanced.

[12] 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 & 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 right 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.

[13] Furthermore s 27(7)(a) provides:

‘(7)
The holder of a mining permit–
(a)
may enter the land to which such permit relates together with his or her
employees, and may bring onto that land any plant, machinery or equipment and
build, construct or lay down any surface or underground infrastructure which may
be required for purposes of mining;
. . .’

Clearly in terms of this section the holder of a mining permit has a right to enter
the land in respect of which the mining rights have been granted for purposes of
exploiting its rights. The right to enter the land solidifies, in my view, once the
mining permit holder has complied with the provisions regarding notification and

consultation with the owner of the land, or occupier and/or other parties affected
by the permit.

[14] In the present case there is no dispute that the respondent had complied
with all the requirements set out in s 27(1)-(5)5 before the grant of a mining
permit and in s 5(4)6 after the grant of the permit.

[15] The appellants’ submission that the respondent has not established a
clear right to access must be viewed in the context of the case made out in the
papers by the respondent (Director of Hospital Services v Mistry 1979 (1) SA
626(A) at 635H).7  Scrutiny of the notice of motion, as well as the founding
affidavit, reveals that the respondent did not seek access to the entire land and
neither did it seek access encompassing a seven kilometre route. What it sought

5 Section 27(1)-(5):  ‘(1) A mining permit may only be issued if –
(a)
the mineral in question can be mined optimally within a period of two years; and
(b)
the mining area in question does not exceed 1,5 hectares in extent.
(2)
Any person who wishes to apply to the Minister for a mining permit must lodge the
application –
(a)
at the office of the Regional Manager in whose region the land is situated;
(b)
in the prescribed manner; and
(c)
together with the prescribed non-refundable application fee.
(3)
The Regional Manager must accept an application for a mining permit if –
(a)
the requirements contemplated in subsection (2) are met;
(b)
no other person holds a prospecting right, mining right, mining permit or retention permit
for the same mineral and land.
(4)
If the application does not comply with the requirements of this section, the Regional
Manager must notify the applicant in writing of that fact within 14 days of the receipt of the
application and return the application to the applicant.
(5)
If the Regional Manager accepts the application, the Regional Manager must, within 14
days from the date of acceptance, notify the applicant in writing –
(a)
to submit an environmental management plan; and
(b)
to notify in writing and consult with the land owner and lawful occupier and any other
affected parties and submit the result of the said consultation within 30 days from the
date of the notice.’
6 Section 5(4):  ‘No person may prospect for or remove, mine, conduct technical co-operation
operations, reconnaissance operations, explore for and produce any mineral or petroleum or
commence with any work incidental thereto on any area without –
(a)
an approved environmental management programme or approved environmental
management plan, as the case may be:
(b)
a reconnaissance permission, prospecting right, permission to remove, mining right,
mining permit, retention permit, technical co-operation permit, reconnaissance permit,
exploration right or production right, as the case may be; and
(c)
Notifying and consulting with the land owner or lawful occupier of the land in question.’
7 ‘When, as in this case, the proceedings are launched by way of notice of motion, it is to the
founding affidavit to which a judge will look to determine what the complaint is.’

was access in principle to the mineral rights area. This much is also clear from
correspondence exchanged between the parties and their respective attorneys.
This is what the court a quo decided and this cannot be criticized on any basis.
Strictly speaking the appeal is susceptible to be dismissed on this basis alone.

[16] However, counsel for the appellants also submitted in the alternative that
the impasse created by the appellants’ blanket refusal to allow the respondent
access to the land, meant that the regional manager had to initiate the process
aimed at the expropriation of the land as envisaged in s 54(5). The implication of
this submission is that the jurisdiction of the high court and this court to resolve
that impasse is not countenanced by the Act. That there is no merit to this
submission is borne out by the fact that it was made without much conviction,
and rightly so. No provision in the Act could be pointed out in support of this line
of reasoning. Furthermore, it would be absurd for the Act to permit an
unreasonable refusal for access based on a clear objective to frustrate the
legitimate endeavours of a permit holder.

[17] Furthermore, it is clear that expropriation is an option that may be adopted
by the regional manager to advance the objects of the Act in s 2(d), (e), (f), (g)
and (h).8 Here the appellants simply, and in an unreasonable fashion, refused to
allow the respondent access to the land and as a result it is unclear on what
conceivable basis the regional manager could be expected to initiate an
expropriation process. No basis for expropriation based on this provision was

8 ‘The objects of this Act are to –
. . .
(d)
substantially and meaningfully expand opportunities for historically disadvantaged
persons, including women, to enter the mineral and petroleum industries and to benefit
from the exploitation of the nation’s mineral and petroleum resources;
(e)
promote economic growth and mineral and petroleum resources development in the
Republic;
(f)
promote employment and advance the social and economic welfare of all South Africans;
(g)
provide for security of tenure in respect of prospecting, exploration, mining and
production operations;
(h)
give effect to s 24 of the Constitution by ensuring that the nation’s mineral and petroleum
resources are developed in an orderly and ecologically sustainable manner while
promoting justifiable social and economic development; and
. . .’

advanced by the appellants’ counsel. The submission is in my view clearly
misconceived.

[18] Finally, whilst this is strictly speaking unnecessary but because the
appellants’ counsel invited us to do so, I consider the appellants’ argument that,
properly considered, the environmental management plan and its accompanying
documentation did not envisage the construction of a new road. This submission
is reliant on certain portions of a form completed by the respondent when it
submitted the environmental management plan for approval. In this regard the
appellants’ counsel submitted that by ticking the ‘no’ option in respect of the
question: ‘would it be necessary to construct roads to access the proposed
operations’ in portion C2.14 of the form, that must mean that no new roads were
to be constructed.

[19] However, one cannot consider just that one part of the form in isolation. It
is one of a number of questions relating to access roads. In this regard the
indication in C2.15 that the access road will not be longer than 1.5 km, in C2.16
that ‘no trees would be uprooted when constructing access roads’, as well as the
indication in C2.17 that ‘foreign material like crushed stone, limestone or any
material other than the naturally occurring top soil would be placed on the road
surface’ show clearly that the ‘no’ tick in C2.14 (ostensibly indicating that no new
roads would be constructed), is simply a mistake as pointed out by the
respondent’s counsel. I cannot also fathom a situation where the permit holder
can be regarded bound by a clearly mistaken tick on the form. I am of the view
that, when all the questions and answers are considered in that portion of the
form, it is clear that the construction of a new road was envisaged when the
environmental management plan was submitted.

[20] Furthermore, there is no indication on the papers that there are any
existing roads from any public road to the mineral rights area. This can only
mean that the Minister and officials of the DME, when granting the permit, and

approving the environmental management plan, were alive to that fact.
Therefore, when the permit was granted and the environmental management
plan approved, the respondent was also granted the right to construct a new road
to the mineral rights area. In the absence of any access road to the mineral rights
area, it remains a mystery how, in the appellants’ mind, the respondent is to
exploit its mining rights. In the final analysis it remains for us to clarify that the
relief granted by the court a quo does not authorise or permit the respondent to
contravene any of the provisions of the Act or commit an offence.

[21] The appeal must therefore fail. The following order is made:

‘The appeal is dismissed with costs including the costs occasioned by the
employment of two counsel.’

_____________
D MLAMBO
JUDGE OF APPEAL

APPEARANCES:

COUNSEL FOR APPELLANTS:   R J Raath SC; S A Visser
INSTRUCTED BY:
Stewart Maritz Basson; Pretoria
CORRESPONDENT:
Claude Reid Inc; Bloemfontein

COUNSEL FOR RESPONDENT: S J Grobler SC; L G F Putter
INSTRUCTED BY:

Vezi De Beer Inc; Pretoria
CORRESPONDENT:

Azar & Havenga Inc; Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
29 May 2009

Status:
Immediate

Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court
of Appeal.

M L JOUBERT & OTHERS v MARANDA MINING COMPANY (PTY) LTD

The Supreme Court of Appeal (SCA) today confirmed the decision of the South
Gauteng High Court which had ruled in favour of Maranda Mining Company
(PTY) LTD (Maranda).

The high court had granted Maranda an order, amongst others, interdicting and
restraining the appellants from refusing to allow Maranda access to a portion of a
farm in Leydsdorp, Limpopo Province in respect of which the latter had
purchased certain mineral rights. Maranda had subsequently been granted a
mining permit by the Minister of Minerals and Energy in accordance with the
Mineral and Petroleum Resources Development Act 28 of 2002. The Minister
had also approved an environmental management plan submitted by Maranda
regarding the intended mining activities on the affected portion of the farm.

The appellants are trustees of Sanwild Wildlife Trust who is the lawful occupier
and part owner of the farm and operates a wildlife sanctuary and an eco-tourism
enterprise on the farm. Sanwild The appellants had thwarted several attempts by
Maranda to gain access to the farm informing it that under no circumstances

would it be allowed access. The impasse persisted even after Maranda had
formally consulted the appellants as required by the Act.

The SCA rejected the appellant’s argument that Maranda had sought access in
contravention of its environmental management plan as well as that the only
solution of the impasse was expropriation of the farm in terms of the Act. The
SCA found that the unreasonable conduct of the appellants was not
countenanced by the Act and ruled that, having complied with all the
requirements of the Act, Maranda had acquired the right to enter the farm for
purposes of exploiting its mineral rights.