[miningmx.com] — IF ANYTHING stood out from another day of legal arguments on Wednesday in the North Gauteng High Court hearing over the disputed 21.4% mineral right in Sishen mine, it is this: both the state and Imperial Crown Trading 289 (ICT) badly want to make Kumba Iron Ore pay for dragging them to court with “unclean hands’.
The concept of “unclean hands’, Google tells us non-legalistic types, is when the accused parties in a legal case claim the plaintiff is not entitled to the remedy it wants on account of the fact that the plaintiff was acting in bad faith all along.
The state is quite forthright about this. Its Senior Counsel Willie Vermeulen told Judge Raymond Zondo it would lay a charge of fraud against the iron ore miner.
Kumba, by its own admission, had submitted its application for ArcelorMittal SA’s 21.4% right in Sishen on April 30 2009; the last day when the right was valid. Such an application wouldn’t have succeeded because, according to the Mineral Resources and Petroleum Development Act (MPRDA) one couldn’t have applied for a right which had not yet expired.
So Kumba’s solution was to arrange with an official of the Department of Mineral Resources’ regional office in Kimberley to have its documents stamped May 1 2009.
“Sishen spares no one the allegations of fraud and corruption when it suits their purpose,’ said Vermeulen. “What is this (the date stamp) other than a resolution to mislead? It is not proper to make applications in this manner. You are not permitted to make false statements in your application.’
It is hard to imagine whether any penalty or embarrassment which may come Kumba’s way, should the state follow through on its threat, would cost the company more than the consequences it already had to bear for submitting this application a day early.
Had Kumba chosen to rather show up at the DMR’s offices at 08:00 on May 4 2009 (the first working day following April 30) it would’ve had a legitimate application and ruled out the possibility of ICT – according to Kumba’s own version of events – forging its application.
Kumba would’ve probably been granted the 21.4% mining right and be allowed to continue mining Sishen happily ever after.
Yet, it is not the state’s vengeance which Kumba should fear the most. ICT had everyone in court 2D’s attention when it questioned the status of Kumba’s 78.6% mining right over Sishen.
It was in Kumba’s responding papers to Amsa’s motion to be allowed as a co-applicant in the case, submitted to the court in June, that ICT’s Senior Counsel Cedric Puckrin came across the fact that Kumba had only lodged for the registration of its new order mining right in December 2009.
According to the MPRDA, one has to lodge for the registration of a right at the Minerals Deeds Office within 90 days of notification of being granted such a right. Kumba was granted the converted right and notified about it in May 2008; about 18 months prior to it lodging for the registration.
Why does ICT raise the matter?
Kumba wants the court to rule that it is the only entity entitled to apply for, and be granted, the 21.4% mining right primarily based on the fact that it already owns the remaining 78.6% right.
ICT disputes this. It says Kumba’s converted right had reverted back to an old order right when Kumba failed to lodge for registration on time. This old order right, therefore, expired on April 30 2009, together with the right owned by Amsa. Which means that, as of now, there may still be a 78.6% mining right in Sishen up for grabs.
Given that ICT has shown itself adept at pouncing opportunistically on the expired right of Amsa, one shouldn’t discount the fact that it already had lodged an application for the 78.6% right with the DMR, just in case Zondo concurs with its argument.
You’ve read it here first.
