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 (the appellant), an unincorporated joint venture, held mining rights over the farm Maandagshoek 254 KT in Limpopo Province, valid until 2043, operating three mine shafts and employing 5,000 people. Nkwe Platinum Limited (first respondent) and Genorah Resources (Pty) Limited (second respondent) held joint mining rights over the neighbouring farm Garatouw 282 KT. In order to exercise their mining rights on Garatouw, Nkwe and Genorah built infrastructure on Maandagshoek, having obtained permission from the authorities and consent from the State landowner and 185 occupants of the affected area. Modikwa first became aware of Nkwe's activities in May 2021 through media reports and upon seeing fencing and temporary structures erected on Maandagshoek. Modikwa launched an urgent application seeking a mandament van spolie and ejectment orders, alleging that Nkwe and Genorah had unlawfully invaded and occupied approximately 411 hectares of Maandagshoek without proper consent or authorization.

• Whether Nkwe and Genorah unlawfully invaded and occupied Maandagshoek without proper consent and authorization
• Whether the respondents' version could be rejected on the papers in motion proceedings
• Whether a mandament van spolie should be granted in the circumstances
• Whether factual disputes raised in the answering affidavits could be resolved on the papers
• Whether the Plascon-Evans rule was properly applied by the court a quo

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

In motion proceedings, where disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such order. A court may depart from this rule only if the respondent's version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched, or so clearly untenable that the court is justified in rejecting it merely on the papers. Motion proceedings are designed to resolve legal issues based on common cause facts and cannot be used to resolve factual issues or determine probabilities unless the circumstances are special. Where the respondent's version is supported by documentary evidence and cannot be rejected as implausible or untenable on the papers, the application must fail.

The court noted that Modikwa placed great reliance on media reports, which were not admissible evidence. The court also observed that Modikwa did not dispute the documentary evidence of consent from 185 occupants, but merely expressed surprise that they supported what Modikwa characterized as spoliation and unlawful activities. The court's statement that Modikwa accepted on appeal that no case whatsoever was made out against Genorah serves as a cautionary note about joining parties without a proper basis for relief against them.

This case reinforces the well-established principles governing motion proceedings in South African law, particularly the Plascon-Evans rule regarding the resolution of factual disputes on the papers. It confirms that where disputes of fact arise in motion proceedings, a court cannot grant final relief unless the respondent's version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, or is palpably implausible or untenable. The judgment emphasizes that motion proceedings are not designed to determine probabilities and that courts cannot resolve factual disputes on the balance of probabilities in such proceedings. The case is also significant in the mining law context, demonstrating the importance of obtaining proper consent from both the State landowner and affected communities, and the need for applicants to present admissible evidence rather than relying on media reports. It illustrates the interaction between mining rights over adjacent properties and the procedural requirements for challenging allegedly unlawful mining activities.