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New twist in illegal mining saga

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The respondents submit that they live on the farms in order to make a living owing to the current economic climate

“De Beers argues further that the order obtained by Ekapa Minerals, dated January 13, 2017, is limited to the areas situated on its farms where Ekapa Minerals conducts retreating of tailing resources in terms of the sale agreement.”

In opposing the application, the respondents record a number of defences including that they have express and/or tacit consent to mine on the immovable properties and that such consent has not been validly terminated; that they live on the farm and that if the interdict would be granted it would amount to eviction; that the Department of Mineral Resources (DMR) gave them permission to mine on 10 hectares of land on one of the farms and that they have a right to make a living; that Ekapa Minerals has no licence to mine; that the citation of the sixth respondent is impermissible and that the order sought is unenforceable; and that De Beers has failed to engage with them with the purpose of finding a solution.

Judge Pakati points out that the relief sought by De Beers only seeks to cover the Farm Kenilworth Estate 71, and the Farm Dorstfontein.

“From the maps it is clear that the order granted in favour of Ekapa Minerals resulted in the migration of the respondents into the remaining areas on the reserve and onto the Buffalo Camp which falls outside the court order obtained by Ekapa Minerals.”

She adds further that the respondents submit that they live on the farms in order to make a living owing to the current economic climate. “They claim that they would therefore be unable to fend for themselves and their families as they are unable to secure employment, if the interdict is granted.

“In their own version there are three informal settlements, namely, Kenilworth Camp, the Beefmaster Camp and the Samaria Camp also known as Boshof Road Camp.

“They state that several hundreds of people (approximately 3 000) live on Samaria Farm which falls on both Dorstfontein and Kenilworth farms, the very same farms that form part of the interdict which is a home for many of them.

“They state that even if the informal settlements were not part of the affected area it would be impossible for them not to trespass as the settlements are unfenced.”

In her ruling, Judge Pakati points out that it is common cause that the respondents do not have the required licence or permit to conduct mining activities on the farms as specified.

“The respondents cannot expect that their involvement in illegal activities would be condoned no matter how much I may feel for their unfortunate situation. It is the opportune time for the DMR to step in since it appears that it did not fulfil its promise.”

She pointed out further that tailings dumps do not occur naturally. “They are formed by the placement of processed and partly-processed materials, to be re-worked in future years when technology improves. The applicant’s (De Beers) ownership of the tailings dumps is not in dispute. The applicant has spent money and labour and time on these tailings dumps.”

She added further that as the registered owner of the properties, De Beers is entitled to the enjoyment and to exercise such right over its properties without having the respondents gaining access without its permission and conducting illegal mining.

“De Beers states that it suffers irreparable harm in that its entire operations on the farms are adversely affected. The breeding camps have become sterile and unusable as a result of the degradation of the agricultural land and the violation of the ecology. There is a possibility of closing down its business on the reserve due to the shortage of space for the game if the interdict is not granted.”

She added further that De Beers had attempted alternative remedies and had laid criminal charges against the wrongdoers with the SAPS, forwarded letters to the South African Diamond and Precious Metals Regulator and the Head of Department and Director, Northern Cape with no success.

“De Beers cited the sixth respondent without furnishing details of the parties because it was not in possession of the said details until the respondent attached Annexure “X” to the Answering Affidavit. Be that as it may, there is no guarantee that De Beers would succeed against more than 800 artisanal miners without experiencing delays and at the end of the day be prejudiced because the remedy would not serve the purpose. In my view, De Beers has no option but to seek the relief to protect its interests. The application has to succeed.”