Modikwa Platinum Mine, an unincorporated joint venture between Rustenburg Platinum Mines Limited and Arm Mining Consortium Limited v Nkwe Platinum Limited and Others

Modikwa Platinum Mine, holder of a mining right over the farm Maandagshoek 254 KT, launched an urgent application for a mandament van spolie against Nkwe Platinum Limited and Genorah Resources (Pty) Ltd. Modikwa alleged that Nkwe and Genorah unlawfully invaded and fenced off portions of Maandagshoek to use as a staging area for mining operations related to their adjacent mining right on the farm Garatouw 282 KT. Modikwa relied heavily on media reports and asserted that Nkwe lacked the necessary mining and environmental authorisations and landowner consent. Nkwe disputed these allegations, contending that its activities were lawful, non-invasive, authorised under an Environmental Authorisation, and carried out with written consent from the landowner (the State) and 185 affected occupants and community representatives. The Limpopo High Court dismissed the application, and Modikwa appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel.

The case reaffirms the application of the Plascon-Evans rule in motion proceedings and underscores that spoliation relief cannot be granted where material disputes of fact exist that cannot be resolved on affidavit. It is also significant in the mining context, highlighting the evidentiary burden on applicants seeking urgent relief against allegedly unlawful mining-related activities.