Mining companies to be cautious when contracting

Matlala and Others v Platinum Group Metals (RSA) (Pty) Ltd and Another: Mining companies to be cautious when contracting

In South Africa, the Courts have established that in order for an applicant to succeed with an application for a final interdict, the applicant must satisfy certain minimum requirements. These requirements are that the applicant must establish:

1. a clear right;
2. that an injury has been actually committed or that there is a reasonable apprehension of harm;
3. that there is no other satisfactory remedy available to the applicant.

In the case of Matlala and Others v Platinum Group Metals (RSA) (Pty) Ltd and Another, the Applicants, Matlala, Ngope and  Early Dawn Traditional Authority, brought an application against Platinum Group Metals (RSA) Pty Ltd and the Regional Manager Mineral and Energy Affairs (“Respondents”) seeking an interdict preventing Platinum Group Metals (RSA) Pty Ltd (hereinafter “Platinum”) from proceeding with the prospecting and mining activities on the Early Dawn Farm and compelling Platinum to negotiate and conclude a lease agreement with the Applicants, instead of the Early Dawn Community, as Platinum had done.

Platinum had been granted a prospecting right under section 17(1) of the Mineral and Petroleum Resources Development Act 28 of 2002, over the Farm Early Dawn and in order to access the property, Platinum concluded a lease agreement with the Early Dawn Community, for five years.

The application was opposed by Platinum on the following grounds:

1. That although Matlala (First Applicant) is the legitimate traditional leader of the Bakone Tribe, there was no evidence to support here claim of entitlement to exercise traditional jurisdiction or proprietary rights over the farm Early Dawn.
2. That Ngope (Second Applicant) and Early Dawn Traditional Authority (Third Applicant) do not have any traditional standing or authority and entitlement to bring these proceedings.
3. The Applicants have not established any clear right, whether under the law of property or the Traditional Leadership laws to justify an interdict sought against Platinum.

The question which the Court had to decide was whether Matlala had any traditional jurisdiction or proprietary rights over the Early Dawn Farm, and whether the Applicants had the authority to bring the interdict against Platinum.

As background, Matlala was the acting traditional leader of the Bakone Tribe, in the Matlala area, which includes the Early Dawn Farm. Matlala had also appointed Ngope as the head woman of the Early Dawn Farm and as the custodian of the mineral rights on the Farm.

In deciding the case, the Court referred to a pending civil case in which the members of the Early Dawn Community were disputing that Matlala had the necessary authority over them and over the Early Dawn Farm. In that case, the members of the Early Dawn Community sought to have Matlala interdicted from interfering with their affairs and were also disputing the appointment and the title of Ngope. Further, the members of the Early Dawn Community sought to interdict both Matlala and Ngope from performing any duties which came with their titles.

The Court held that based on the pending civil case, Matlala and Ngope could not establish a clear right until the civil case was decided in their favour.

The Court concluded that the Applicants could not be granted a final interdict and that the application ought to be dismissed with costs.

In light of the above case, mining companies are warned to ensure that they negotiate and contract with the right person when it comes to land issues, as a failure to ensure this may lead to prospecting and mining being delayed.