VAN DEN HEEVER v MINISTER OF MINERALS AND ENERGY & OTHERS (unreported,
Case No. 2090/2010, Northern Cape High Court, 19 December 2011)
Importance
Parties
Facts
The Van den Heever case does not deal with environmental issues
directly. However, the question before the court – had Transhex
Mynbou Beperk abandoned their rights to mine diamonds on certain
properties – could have implications for environmental liability. In this
case it was in the interests of Transhex for the court to find that they
had not in fact abandoned their rights, as this opened the way for
another actor to obtain mining permits. The court found that the
rights had not been abandoned because the approval of the Director:
Mineral Development had not been obtained. The court situated
abandonment within a contractual model, because the initial cause of
Transhex Mynbou’s rights was a mineral lease to the properties (even
though this was essentially abolished by the Minerals Act). I think this
aspect of the judgment is questionable, and that the prima facie
intention of the Managing Director in a letter of 2001, excluding the
contentious properties from the mining lease, is more persuasive. The
case nevertheless raises the question: How and when, legally, has
abandonment occurred? And what does this mean for the
environmental liabilities of the former mining rights holder? Section
43(1) of the MPRDA, which deals with closure obligations and
continuing environmental liability, does not specifically mention
“abandonment”. In terms of s 43(3)(a), however, the abandonment of
a mining right triggers the need to apply for a closure certificate. Van
den Heever is therefore authority for the proposition that such
abandonment cannot be effected unilaterally but must be approved
by the State, at least where a prior mineral lease with the State has
been in place.
First Applicant: Gert van den Heever
First Respondent: Minister of Minerals and Energy
Second Respondent: Director-General, Department of Minerals and
Energy
Third Respondent: Transhex Mynbou Beperk
Fourth Respondent: Transhex Operations (Pty) Ltd
Fifth Respondent: Richtersveld Municipality
This case relates to a dispute over a permit/right to mine diamonds on
two contiguous portions of land on the farm Richtersveld No. 11,
Namaqualand, Northern Cape. Van den Heever contended that the
third respondent, Transhex Mynbou, had abandoned its rights to mine
diamonds on the properties in January 2001. This should have cleared
the way for the Minister and DMR to accept Van den Heever’s
applications for mining permits to the same properties.
Under the Precious Stones Act 73 of 1964, the right to mine and
dispose of precious stones was vested in the State. The State was
entitled to lease its right to mine and dispose of precious stones, and
such a lease in respect of the farm Richtersveld existed between the
State and Transhex Mynbou. In terms of the mining lease, the third
respondent had the sole right to mine precious stones and could only
exercise mining activities on the leased portions to the satisfaction of
the (then) Minister of Minerals, Energy and Public Enterprise.
Relief Sought
Amendments to the mining lease were permissible by consent of the
parties.
The coming into effect of the Minerals Act 50 of 1991 changed this
situation, as it vested the right to mine in the holder of any right to
minerals (including precious stones), and not the State. In order to
mine, however, the holder of mineral rights had to obtain the
necessary authorisation from the State. Section 47(1)(a)(iii) of the
Minerals Act ensured the retention of the mining rights that Transhex
Mynbou had held under s 21 of the Precious Stones Act. Section
47(1)(f) further provided that the holder of a mining right could
abandon the right wholly or in part at any time, by written notice to
the Director: Mineral Development. The mineral right is deemed to
have lapsed from the date of the notification. In the case of mining
permits and rights granted under the Minerals Act, s 11 similarly
provided for abandonment of the authorization upon notification to
the Director: Mineral Development.
In 2001 the Managing Director of Transhex Mynbou wrote to the
Director: Mineral Development regarding a “verkleining” (reduction)
of the Richtersveld mining area controlled by Transhex Mynbou. This
letter noted that Transhex had already for some time been engaged in
negotiations with the Richtersveld Municipality regarding various
pieces of land which were to be made available for irrigation alongside
the Orange River. Agreement had been reached on “handing over”
(“oorhandig sal word”) 363,14 hectares of land that formed part of the
Richtersveld mining area. The MD accordingly requested the Director:
Mineral Development to remove the identified pieces of land from the
existing mining area and to register the changes in the Mining Titles
Office (“U word dus versoek om die 13 stukke grond, waarvan die
omvang in detail deur middle van koördinate op meegande plan
gedefineer word, uit die bestaande mynhuurgebied uit to sluit, en die
wysiging so by die Mynbriewekantoor in Pretoria to laat registreer”). It
appears that at the same time Transhex Mynbou Beperk
ceded/assigned/transferred its right to mine minerals on the said
properties to Transhex Operations (Pty) Limited, and that the Director:
Mineral Development allowed this transfer to be registered in the
Mining Titles Office [note: there appears to be an inaccuracy in the
judgment at para 1.2].
In April 2008 Van den Heever applied to the Regional Manager for
the Northern Cape region for two permits to mine diamonds on pieces
of land apparently relinquished through the afore-mentioned
abandonment. His applications were rejected on the basis that mining
authorizations to the land had already been issued to Transhex
Mynbou Beperk and Transhex Operations (Pty) Ltd. The applicant
lodged appeals against the decision to dismiss the applications in
November 2008, but both were dismissed in March 2010.
In 2009 Transhex Operations’ old order mining right was converted
into a right under the MPRDA.
An order: Declaring that Transhex Mynbou Beperk abandoned its right
to mine for minerals on the pieces of contested land; that the cession
between Transhex Mynbou Beperk and Transhex Operations (Pty) Ltd
was of no force and effect; reviewing and setting aside the decision to
Legal Issues
Judgment
Outcome
convert Transhex Operations’ old order rights; reviewing and setting
aside the Director-General’s rejection of the applicant’s appeals and
referring them back to the Regional Manager for consideration.
& Issue 1: Had Transhex Mynbou abandoned its right to mine diamonds
on the two pieces of land in question?
Judgment: The court agreed that this was the central issue in the case
(para 22). Having read the letter that the MD addressed to the
Director: Mineral Development, the judge noted that he failed to
observe the specific Afrikaans words for “abandon” in the letter
(“afstanddoen”). What emerged from the letter itself was rather a
request for amendment of the rights (para 23). Counsel for Transhex
Mynbou and Transhex Operations also argued that the request for
amendment of the rights could not be effected unilaterally, because
the notarial mining lease that bound Transhex to the State was a
bilateral agreement. The court agreed with this interpretation (para
24), and based on a purposive interpretation of s 47 of the Minerals
Act, found that the terms and conditions Transhex Mynbou Beperk
enjoyed after the Minerals Act remained the same as in the lease
agreement (i.e. the “bilateral” relationship between the parties was
preserved). The court also found that the letter could reasonably be
interpreted as a request to amend the terms of the mining lease (para
32). He could therefore not agree with Van den Heever’s contention
that the letter together with the sketch was sufficient to constitute
abandonment. For that to occur, there would have had to be some
approval from the Director: Mineral Development on whether the
sketch complied with the statutory requirements and was therefore
acceptable (paras 33, 37, 39). Based on the judge’s subsequent
comments regarding abandonment (see paras 34–36) he appears to
have situated abandonment within a contractual scheme and as an act
that could not be effected unilaterally.
The application was dismissed.