THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable

Case no: 1333/2021
In the matter between:

MODIKWA PLATINUM MINE,

AN UNINCORPORATED JOINT VENTURE
BETWEEN RUSTENBURG PLATINUM MINES
LIMITED AND ARM MINING CONSORTIUM LIMITED
APPELLANT

and

NKWE PLATINUM LIMITED
FIRST RESPONDENT

GENORAH RESOURCES (PTY) LIMITED                          SECOND RESPONDENT

THE REGIONAL MANAGER, LIMPOPO
REGION, DEPARTMENT OF MINERAL
RESOURCES AND ENERGY
THIRD RESPONDENT

THE DIRECTOR-GENERAL: MINERAL
REGULATION, DEPARTMENT OF
MINERAL RESOURCES AND ENERGY
FOURTH RESPONDENT

THE MINISTER OF MINERAL RESOURCES
AND ENERGY
FIFTH RESPONDENT

THE MINISTER OF AGRICULTURE, LAND

REFORM AND RURAL DEVELOPMENT
SIXTH RESPONDENT

Neutral citation: Modikwa Platinum Mine, an unincorporated joint venture between
Rustenburg Platinum Mines Limited and Arm Mining Consortium Limited v Nkwe
Platinum Limited and Others (1333/2021) [2023] ZASCA 08 (06 February 2023)

Coram:
PONNAN, MOLEMELA, CARELSE, and HUGHES JJA and CHETTY
AJA

Heard:
17 November 2022

Delivered:   06 February 2023

Summary:  Application – disputes of fact – respondent’s version cannot be rejected
on the papers – application correctly dismissed by court a quo.

___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: Limpopo Division of the High Court, Polokwane (Makgoba JP, sitting
as a court of first instance):
The appeal is dismissed with costs, including those of two counsel.
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Carelse JA (Ponnan, Molemela, and Hughes JJA and Chetty AJA concurring):
[1] The main issue in this appeal is whether the court a quo correctly dismissed an
application by the appellant, Modikwa Platinum Mine (Modikwa), an unincorporated
joint venture between Rustenburg Platinum Mines (Pty) Limited (RPM) and Arm
Mining Consortium Limited (ARM MC)1, against the first respondent, Nkwe Platinum
Limited (Nkwe).

[2] On 4 June 2021, Modikwa launched an urgent application in the Limpopo
Division of the High Court, Polokwane against Nkwe, and the second respondent,
Genorah Resources (Pty) Limited (Genorah), in which the following relief was sought:
‘1
. . .
that a Mandament van Spolie is granted ordering the First and Second Respondents
to restore possession to the Applicant of the spoliated area, spoliated by the First and Second
Respondents from the Applicant, on the Farm Maandagshoek 254 KT, as defined on the plan
marked “LM 3” annexed hereto, and the Applicant’s rights in respect of the spoliated area, to
the Applicant, free of any restriction or constraint, alternatively;

1 Modikwa is made up of the following parties: RPM and ARM MC. ARM MC is further made up of the
following parties: African Rainbow Minerals Platinum (Pty) Ltd, a majority black-owned company; the
Mampudima Community Company Incorporated (Mampudima), a company incorporated in terms of s
21 of the Companies Act 61 of 1973; and the Matimatjatji Community Company (Matimatjatji).
Mampudima comprises of several communities. Matimatjatji compromises of the Matimatjatji
community under the traditional leadership of Kgoshi Joseph Nkosi. Both the Mampudima and the
Matimatjatji communities reside on several farms, including Maandagshoek, where Modikwa has a
mining right. Each community has five elected directors with four members from both communities who
sit on the board of ARM MC and are also members of the Executive Committee of Modikwa. The
ownership in Modikwa is made up as follows: RPM 50%, ARM MC 41.5%, Mampudima 6% and
Matimatjatji with a 2.5% interest.

ejecting the First and Second Respondents and anyone occupying Maandagshoek
through or under them, from Maandagshoek 254 KT and ordering them to remove all property
which they may have, or have control over, on the Farm Maandagshoek 254 KT including,
without limiting the generality of the aforegoing, fencing, vehicles, plant and temporary
structures;
further, alternatively to prayers 2 and 3 above, an order directing First and Second
Respondents and/or their employees, agents and/or subcontractors to vacate Maandagshoek
254 KT and take down and remove from the Farm Maandagshoek 254 K[T] any property,
including, without limiting the generality of the aforegoing, any fencing, plant, equipment,
structures and vehicles belonging to them, or any contractor under their control from the Farm
Maandagshoek 254 KT; and
that the First and Second Respondent[s] to pay the costs of this application, jointly and
severally, the one paying the other to be absolved, including the costs of two counsel.’
The application was dismissed by Makgoba JP, who subsequently granted leave to
Modikwa to appeal to this Court.

[3] The State owns farms in Limpopo Province known as Maandagshoek and
Garatouw that in part share a common boundary. The State has granted Modikwa, a
platinum mining company, mining rights over Maandagshoek, which is valid until 2043.
Modikwa currently operates three mine shafts and employs 5 000 people. Nkwe and
Genorah are ‘joint holders’ of a mining right in undivided shares (74% held by Nkwe
and 26% by Genorah) in respect of several farms, including that of a farm known as
the Remaining Extent of the farm Garatouw 282 KT (Garatouw), which was issued by
the Minister of Mineral Resources and Energy (the fifth respondent). This right was
granted in 2014, but Nkwe only commenced with the physical development of its mine
at or about the beginning of 2021.

[4] By reason of the locality and available geological data, for Nkwe and Genorah
to exercise their mining right, they had built infrastructure on Maandagshoek. To this
end, Nkwe and Genorah sought and obtained the requisite permission from the
authorities to build the necessary infrastructure on Maandagshoek, which was to be
built a considerable distance away from the area where Modikwa was exercising its
mining rights.

[5] In the founding affidavit filed in support of the application, it was stated on behalf
of Modikwa:
‘3
SPOLIATION, ILLEGAL AND UNLAWFUL CONDUCT OF THE FIRST AND SECOND
RESPONDENTS
3.1
The First and Second Respondents have invaded and occupied Maandagshoek
254KT with equipment and fencing, having fenced off an area in extent of 89.6 hectares, and
having cleared a further 321 hectares to be fenced off (the “spoliated area”), a total of
approximately 411 hectares.
3.2
On Friday, 14 May 2021, through media reports (the relevant annexures are identified
and marked below) the Applicant first became aware that First and Second Respondents were
about to embark upon box cut mining development on Garatouw 282KT by 28 May 2021.
3.3
On Monday, 17 May 2021, Applicant saw for the first time that First and Second
Respondents erected extensive fencing and certain temporary structures on Maandagshoek
254KT. That is also when Applicant became aware that these Respondents intend to use the
spoliated area as a staging area for the purposes of firstly doing box operations and then, if
appropriate, sinking a mine decline shaft.
. . .
3.11  It has only very recently come to the Applicant’s attention that on 2 March 2021, the
South African Broadcasting Company (“SABC”) reported concerns raised by residents of the
“Maandagshoek Community” with reference to the Maandagshoek Village and the
surrounding area. The report makes reference to the “Maandagshoek Community” leaders
being disgruntled because the First Respondent has fenced off a portion of their ploughing
fields for purposes of establishing mining operations without consulting the “Maandagshoek
Community” . . .
. . .
3.15  Mr Fan states that the mine will uplift communities, however neither First Respondent
nor the Second Respondent appear to have obtained the consent of the landowner who is the
Government or the relevant Community structures or Communities who reside there, to carry
out any activity on the farm Maandagshoek 254KT. For this reason alone, such operations
would be unlawful. . .
. . .
3.18  It is apparent from the articles referred to above that the First and Second Respondents
intend on wrongfully using a portion of Maandagshoek 254KT as a staging area for the box
cut development on Garatouw 282KT. The box cut it appears will traverse both farms.’
At para 5.10 in its founding affidavit, Modikwa states that:

‘5.10  First and Second Respondents do not have a mining right, approved MWP, EA, SLP
or any of the other consents and authorizations required under the MPRDA to commence, or
carry out, mining or incidental activities on Maandagshoek 254KT.’

[6] In its answering affidavit, Nkwe responded to those allegations as follows:
‘10.1  The contents hereof are denied. Nkwe is carrying out lawful activities as described
supra.
10.2  The contents hereof constitute inadmissible hearsay evidence and if allowed,
demonstrates the lack of urgency or self-created urgency in the extreme and the crux of the
complaint relating to the box cut issue, which is a non-event as described supra.
10.3  Insofar as any of the remarks that I may have made during media briefings concur with
the factual information and evidence presented herein, it is admitted, otherwise it is media
reports and nothing more.
10.4  Contrary to any allegations relating to the lack of consent or consultation, respectively
of and with Government and relevant community structures, irrefutable evidence, proving
proper and due process and authorizations that are valid and existing are annexed.
10.5  None of the surface related activities constitute invasive mining activities such as
alluded to or inferred by Modikwa.
10.6  I am advised that the MPRDA, on a proper construction of inter alia Section 1 thereof
(the definitions part) distinguishes between invasive and non-invasive actions. Furthermore,
the Environmental Authorization is certainly not contradictory to the provisions of the MPRDA.
It will be argued, nonetheless, that the activities authorized in terms of the Environmental
Authorization do not constitute invasive mining. It is carried out on virgin land (thus the de-
vegetation, with the necessary permission) and far away from any of Modikwa’s invasive and
non-invasive activities and area where the shafts are situated, which extends to underground
workings at approximately 450m and more.
10.7  Nkwe’s activities and the related machinery and equipment mentioned are by its nature
used for and authorized activities in terms of the Environmental Authorization and with the
necessary consent by the landowner and occupiers, as evidenced supra.’

[7] Nkwe further alleged in its answering affidavit that:
‘3.3
Nkwe furthermore has the consent and written permission of the landowner of
Maandagshoek, the Sixth Respondent to carry out Nkwe’s activities on Maandagshoek. The
parties (the sixth Respondent and Nkwe) are in the process of concluding the formal land use
agreement which has been agreed in principle.

The written authority and permission of the landowner is annexed hereto, marked “GF2.3(a)”.
The consent from informal land rights holders of the relevant land is annexed hereto, marked
“GF2.3(b & c)”.
Nkwe also attached a written consent from the 185 occupants of Maandagshoek
agreeing to the infrastructure being built on a part of Maandagshoek. In this regard, it
was stated in the answering affidavit:
‘3.4
Nkwe has concluded and signed 185 compensation agreements with occupants of
Maandagshoek who either reside there or conduct farming operations on the said farm.
3.4.1  In support of the above, independent supporting affidavits of Kgoshi Ralph Kgoete,
Kgoshi Bethuel Mohlala and Kgoshi Emmanuel Mpuru are annexed hereto, marked “GF2.4(a-
b)” and “GF2.5”, who confirm the essence and substance of the contents of this affidavit).
3.4.2  These traditional leaders represent the Mamphahlane, Tswako Mohlala and Mpuru
communities which are the only relevant and affected communities in respect of the area
where Nkwe is carrying out activities on Maandagshoek. They confirm the relevant
permissions in terms of their community structures. The permissions are aligned with the
Environmental Authorization in that they relate to the fenced off and demarcated area of
Maandagshoek where Nkwe’s activities are carried out.
3.4.3  In support of the above, independent supporting affidavits of directors from the referred
section 21 company M. Ronicah, S. Brian, P. Mpuru and M. Thami, are annexed hereto,
marked “GF2.5(a-d)”, who confirm the essence and substance of the contents of this affidavit).
The supporting affidavit of Mr. Klaas Mpuru in his capacity of General Secretary of the Kone
Phuti tribal council is also attached hereto, marked “GF2.5(e)”.’

[8] Modikwa does not dispute the documents recording the consent of the 185
occupants referred to above. It, however, states in its reply that it is surprised that they
‘support the spoliation . . . and the unlawful activities of [Nkwe]’.

[9] As should be apparent from the relevant portions of the founding affidavit
quoted above, Modikwa placed a great deal of reliance on media reports, but that, as
the respondents correctly argued, was not admissible evidence. In any event, as
stated in National Director of Public Prosecutions v Zuma:2
‘[26]
Motion proceedings, unless concerned with interim relief, are all about the resolution
of legal issues based on common cause facts. Unless the circumstances are special they

2 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; [2009] 2 All SA 243 (SCA); 2009
(2) SA 277 (SCA) para 26.

cannot be used to resolve factual issues because they are not designed to determine
probabilities. It is well established under the Plascon-Evans rule that where in motion
proceedings disputes of fact arise on the affidavits, a final order can be granted only if the
facts averred in the applicant's (Mr Zuma's) affidavits, which have been admitted by the
respondent (the NDPP), together with the facts alleged by the latter, justify such order. It may
be different if the respondent's version consists of bald or uncreditworthy denials, raises
fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the
court is justified in rejecting them merely on the papers. The court below did not have regard
to these propositions and instead decided the case on probabilities without rejecting the
NDPP's version.’

[10] Here, it cannot be said that a court would be justified in rejecting the version
advanced in the answering affidavit, merely on the papers. It follows that the
application had to fail and the court a quo cannot be faulted for dismissing the
application.

[11] Insofar as costs are concerned: In its notice of motion, Modikwa sought relief
against Nkwe and Genorah. On appeal it was accepted on behalf of Modikwa that no
case whatsoever was made out against Genorah. Genorah was a party to the appeal.
It opposed the appeal. Costs must follow the result both in this Court and the one
below.

[12] In the result, the following order is made:
The appeal is dismissed with costs, including those of two counsel.

_________________
Z CARELSE
JUDGE OF APPEAL

Appearances

For appellant:

T Bruinders SC with K Dewey

Cliffe Dekker Hofmeyr, Sandton

Mayet & Associates, Bloemfontein

For first respondent:

J Roux SC with L J Pretorius

Boshoff Smuts Incorporated, Centurion
Van Wyk & Preller Attorneys, Bloemfontein

For second respondent:

J Oschman

Malan Scholes Attorneys, Johannesburg

Claude Reid Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
06 February 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and
does not form part of the judgments of the Supreme Court of Appeal
Modikwa Platinum Mine, an unincorporated joint venture between Rustenburg Platinum Mines
Limited and Arm Mining Consortium Limited v Nkwe Platinum Limited and Others (1333/2021)
[2023] ZASCA 08 (06 February 2023)
The Supreme Court of Appeal (SCA) dismissed with costs, including those of two counsel, an
appeal by the appellant, Modikwa Platinum Mine (Modikwa), an unincorporated joint venture
between Rustenburg Platinum Mines (Pty) Limited (RPM) and Arm Mining Consortium Limited
(ARM MC), against the judgment of the Limpopo Division of the High Court, Polokwane (the
court a quo).

The main issue in the appeal was whether the court a quo correctly dismissed an application
by Modikwa against the first respondent, Nkwe Platinum Limited (Nkwe), and the second
respondent, Genorah Resources (Pty) Limited (Genorah), in which, inter alia, the following
relief was sought: a mandament van spolie ordering Nkwe and Genorah to restore possession
to Modikwa of the spoliated area, being the Farm Maandagshoek 254 KT (Maandagshoek).

The background facts of the matter were as follows. The State-owned farms in Limpopo
Province known as Maandagshoek and Garatouw that in part share a common boundary. The
State had granted Modikwa, a platinum mining company, mining rights over Maandagshoek.
Nkwe and Genorah were ‘joint holders’ of a mining right in undivided shares in respect of
several farms, including that of a farm known as the Remaining Extent of the farm Garatouw
282 KT (Garatouw), which was issued by the Minister of Mineral Resources and Energy (the
fifth respondent). By reason of the locality and available geological data, for Nkwe and
Genorah to exercise their mining right, they had built infrastructure on Maandagshoek. To this
end, Nkwe and Genorah sought and obtained the requisite permission from the authorities to
build the necessary infrastructure on Maandagshoek, which was to be built a considerable
distance away from the area where Modikwa was exercising its mining rights.

The SCA found that since the matter was brought in motion proceedings and there were
clearly disputes of fact, the Plascon-Evans rule applied. In this regard, the SCA held that, in
this case, it could not be said that a court would be justified in rejecting the version advanced
in Nkwe’s answering affidavit merely on the papers. It followed that the application had to fail
and the court a quo could not be faulted for dismissing the application.

~~~~ends~~~~