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In the matter of Joubert & Others v Maranda Mining Company, the Supreme Court of Appeal ("SCA") was asked to consider judgement by the North Gauteng High Court of 11 April 2009 in which the appellants were interdicted and restrained from refusing Maranda Mining access to a mining right area in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 ("MPRDA").
The SCA was requested to consider whether the court a quo was correct in finding that the respondent had established a clear right to access the land to which its mining permit pertained. The appellants maintained that the respondent company had not established such a right. The main arguments put forward by the appellants were that:
(i) The respondent wished to obtain access to the mineral rights area through traversing the property of the appellant along a 7 kilometre route which was contrary to its approved environmental management plan ("EMP") which stated that the respondent's route of access was to be no longer than 1.5 kilometres. The SCA held that in this case there was no dispute that the respondent had complied with all the requirements set out in section 27(1)-(5) of the MPRDA prior to the granting of a mining permit, as well as with the requirements set out in section 5(4) of the MPRDA after the granting of the permit and that the appellants' submission had to be viewed in the context of the case made out in the founding papers of the respondent. The SCA found that the respondent merely sought access to the mineral rights area;
(ii) The impasse created by the appellants' blanket refusal to allow the respondent access to the land, meant that the Regional Manager had to initiate a process aimed at expropriation of the land as envisaged in section 54(5) of the MPRDA. The SCA found that there was no merit in this submission and that no provision of the MPRDA could be pointed out in support thereof. Furthermore, the SCA held that it was clear that expropriation was an option that may be adopted by the Regional Manager to advance the objects if the MPRDA. In this case, the appellants themselves unreasonably refused to allow the respondent access to the land and as a result it was unclear what the basis could be upon which the Regional Manager could be expected to initiate an expropriation process.
(iii) The EMP and its accompanying documentation did not envisage the construction of a new access road. This submission relied on the fact that a certain portion of a form completed by the respondent when in submitted the EMP for approval, had been completed incorrectly. The SCA held that a single part of an application form could not be viewed in isolation, especially since the application form contained many questions relating to the issue of access roads. The Court held that when all the questions and answers were considered, it was clear that the construction of a new road had clearly been envisaged when the EMP had been submitted for approval and that the appellant's contentions in this regard were therefore without merit.
The SCA dismissed the appeal with costs against the appellant and ordered it to bear the costs of the respondent (including the cost of two counsel).
This matter clearly reiterates that the holder of a mining permit is entitled to gain access to and enter the land over which mining rights have been granted in order for it to make use of its rights. As held by Judge Mlambo, the right of a mining permit holder "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…".
by Stéfanie Viljoen and Janse Rabie.
For the complete judgment, please select this link.
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| Joubert & Others v Maranda Mining Company (296/08) [2009] ZASCA 68 (29 May 2009) | Login/Create an account | Comments |
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