Compregen (Pty) Ltd v Lezmin 2021 (Pty) Ltd and Others

The first respondent, Lezmin 2021 (Pty) Ltd, conducted open cast granite quarry mining on Portions 8 and 48 of the Farm Kraaibosch No. 195, George, Western Cape. The applicant, Compregen (Pty) Ltd, owned the properties upon which mining occurred, having taken transfer on 11 January 2023 with full knowledge of the mining activities. A consent use for mining was granted in 1981 for 0.8 hectares. The mining footprint later expanded to more than 20 hectares. Lezmin had obtained a renewal of its mining right on 9 November 2021 under the Mineral and Petroleum Resources Development Act, covering approximately 30 hectares for 30 years. The applicant alleged the extension beyond 0.8 hectares was unlawful because no land use application had been made under the Land Use Planning Ordinance (LUPO), SPLUMA, LUPA, and the George Municipality Land Use Planning By-Law. The applicant further alleged Lezmin had no lawful water use authorisation under the National Water Act. An internal municipal report compiled by an official, Ms Power, and email communications with water officials Erasmus and Ndlovu formed the evidentiary foundation of the applicant’s case. The applicant sought to interdict mining activities and expansion pending rezoning and water use authorisation.

• Whether the applicant’s founding affidavit impermissibly relied on hearsay evidence that should be struck out.
• Whether the applicant introduced impermissible new matter in its replying affidavit that should be struck out.
• Whether the applicant had the necessary locus standi to seek interdictory relief for alleged contraventions of the National Water Act.
• Whether the applicant was entitled to declaratory and interdictory relief declaring mining activities unlawful and prohibiting their continuation and expansion.

The application was dismissed with costs, including the costs of Senior Counsel on scale C.

1. A party relying on hearsay evidence in motion proceedings must clearly and timeously signal in its founding papers an intention to invoke section 3(1)(c) of the Hearsay Act, and must address the statutory factors to enable the other party to respond fully and the court to make an informed decision. An applicant must stand or fall by its founding affidavit. 2. For an own-interest litigant to obtain interdictory relief based on a breach of a statute enacted in the public interest generally (such as the National Water Act), the litigant must demonstrate actual or apprehended harm beyond that suffered by members of the public at large. Ownership of affected land, without more, does not confer standing.

The court observed that the applicant should have realised that a serious dispute of fact incapable of resolution on papers was bound to develop, and that action proceedings would have been the appropriate forum where witnesses such as Ms Power could have been subpoenaed. The court noted the Municipality had taken no action against the alleged unlawful land use for 38 years.

The case reinforces important procedural principles in South African civil litigation: (a) the strict requirements for relying on hearsay evidence in motion proceedings, requiring upfront compliance with section 3(1)(c) of the Hearsay Act; (b) the rule that an applicant must stand or fall by its founding affidavit and may not introduce new causes of action in reply; and (c) the principle that the National Water Act is public-interest legislation and a private litigant must prove actual or apprehended personal harm to have standing to enforce it by interdict, following Patz v Greene, Witzenberg Properties, and Giant Concerts.