RM Business Solutions (Pty) Ltd v Thungela Operations (Pty) Ltd

The applicant, RM Business Solutions (Pty) Ltd, applied for and was granted a mining permit on 20 July 2022 by the Department of Mineral Resources and Energy (DMRE) in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) to mine for coal on a portion of Portion 2 of the farm Kleinwater 301 JS in Emalahleni, Mpumalanga Province. The applicant paid R1,469,210.00 for the permit and commenced mining operations in August 2022. On 31 August 2022, the first respondent, Thungela Operations (Pty) Ltd, which also holds mining rights on Kleinwater farm, together with SAPS members, visited the site and informed the applicant it was mining illegally. The first respondent lodged a criminal case and threatened to seize equipment and eject the applicant from the farm. The first respondent's position was that while the applicant held a valid mining permit, it was mining outside the designated area specified in its permit and was instead mining within the first respondent's mining area. The applicant disputed this, claiming it was mining within the correct area as designated by its permit.

• Whether the applicant was mining within the correct area as designated by its mining permit
• Whether the applicant was mining within the first respondent's mining area
• Whether expert evidence presented on paper could resolve the factual dispute regarding the mining boundaries
• Whether an interdict should be granted preventing the respondents from ejecting the applicant from the mining site
• Whether the first respondent had exhausted internal remedies under the MPRDA before seeking relief

1. The matter is referred to trial for the hearing of oral evidence on the question whether or not the applicant is mining within the correct area as designated by its Mining Permit. 2. Each party shall, within 21 days of this order, make a discovery in accordance with Uniform Rule 35 of the Rules of this Court, and the provision of that Rule shall apply. 3. Each party may subpoena any person to give evidence at the hearing, whether or not such a person has consented to furnish a statement. 4. The costs of this application are reserved for determination by the Court hearing the oral evidence.

Where there is a genuine and irreconcilable dispute of fact in motion proceedings regarding whether a mining permit holder is mining within the correct area designated by its permit, and this dispute cannot be resolved on the papers through competing expert opinions, the matter must be referred to trial for oral evidence. A court in motion proceedings cannot resolve complex factual disputes where material facts are in dispute and the credibility and reliability of expert witnesses needs to be tested through cross-examination.

The court noted that it was not necessary to determine whether the first respondent had exhausted internal remedies under the MPRDA given the finding that a genuine dispute of fact existed requiring oral evidence. The court also observed concerns about the admissibility of the applicant's expert evidence (Nordin's undated letter without supporting affidavit) and questions about potential bias of the first respondent's expert witness (who was employed by the first respondent), but did not make final findings on these issues, leaving them for determination at trial.

This case illustrates the procedural principle in South African law that where there is a genuine dispute of fact that cannot be resolved on the papers in motion proceedings, the matter must be referred to trial for oral evidence. It demonstrates the limitations of motion proceedings in resolving complex factual disputes involving technical expert evidence, particularly in the context of mining boundary disputes under the MPRDA. The case highlights the importance of proper expert evidence in mining disputes and the strict requirements for admissibility of evidence in motion proceedings. It also touches on the interaction between competing mining rights holders on the same property and the need for clarity regarding designated mining areas.