Ex-Ongopolo boss loses out in mine access case

THE former Managing Director of the Ongopolo copper mining group, Andre Neethling, yesterday lost the High Court case through which he had tried to stop Ongopolo from gaining access to the Tschudi Mine close to Tsumeb through the farm that he had bought from the company when he was still in charge of it.

Acting Judge Dave Smuts on Monday heard legal arguments in an urgent case in which Neethling and his partners in a company that owns the farm Uris asked the High Court to order Ongopolo to restore to them possession of a small section of the farm that Ongopolo has been using to get access to the Tschudi Mine. Acting Judge Smuts dismissed Neethling and his partners’ application.Three Musketeers Properties, a company in which Neethling, his wife, and a Tsumeb medical doctor, Pieter Pretorius, and his wife, are co-shareholders, bought farm Uris from Ongopolo Mining in August 2002.They paid N$400 000 for the 3 536-hectare farm, where they subsequently built a lodge, !Uris Safari Lodge.Neethling was Ongopolo’s MD at the time of the deal.But, he said this week, the deal did not place him in a position where it could be said that he was facing a conflict of interest because of the dual role he played in that transaction.By late April, Neethling’s time at the helm at Ongopolo had come to an end, when the financially struggling copper mining group was taken over by a British-based company, Weatherly International plc.By September, the relationship between Neethling and Ongopolo hit a rocky patch, after Ongopolo’s new Chief Executive Officer, Rob Webster, wrote to Uris’s owners to inform them that Ongopolo intended to resume mining at the dormant Tschudi Mine.This mine is situated on Uris and an adjacent farm.An access tunnel to the mine lies on Uris.It was after Ongopolo had started moving onto a mine area around that entrance, that the relations with Neethling really soured.Lawyers’ letters flew back and forth between the farm owners and Ongopolo.With Ongopolo refusing to agree with Neethling’s views that the company could not simply start using the mine area without first reaching a further agreement with the farm owners for the use of part of their land, Neethling eventually started putting locks on an access gate to the area.Ongopolo in turn had the locks removed, and the dispute, having turned acrimonious, headed to the High Court.In his judgement yesterday, Acting Judge Smuts noted that in terms of the August 2002 sale agreement between Ongopolo and The Three Musketeers Properties, Ongopolo retained all its prospecting and mining rights over the farm.The farm owners in turn were entitled to compensation at a set rate from Ongopolo for any mining activities carried out at the farm, that agreement also stated.In the sort of case that The Three Musketeers Properties decided to pursue against Ongopolo, they would have to show that they were in peaceful and undisturbed possession of the property in question, and had been unlawfully deprived of that possession, Acting Judge Smuts noted.In this case, he stated, the farm owners had not been deprived of their access to the disputed piece of land.”They are merely deprived of the opportunity of blocking access and thus causing an obstruction to the mining area,” he commented.The evidence before court also did not show that Ongopolo, which still held a mining licence over the disputed area at the time of the Uris sale and when Neethling was still its managing director, had abandoned the mining area, he added.He arrived at this finding after taking note that the court had been informed that the Tschudi access tunnel on Uris would cost some N$50 million if it was to be remade today – not the sort of asset that a company would easily abandon.Having found that Ongopolo still had possession – or at least joint possession – of the mining area, Acting Judge Smuts concluded that the farm owners could not deny them access to the area.He dismissed The Three Musketeers Properties’ case with costs.Theo Frank SC argued the farm owners’ case on Monday.Raymond Heathcote represented Ongopolo.Acting Judge Smuts dismissed Neethling and his partners’ application.Three Musketeers Properties, a company in which Neethling, his wife, and a Tsumeb medical doctor, Pieter Pretorius, and his wife, are co-shareholders, bought farm Uris from Ongopolo Mining in August 2002.They paid N$400 000 for the 3 536-hectare farm, where they subsequently built a lodge, !Uris Safari Lodge.Neethling was Ongopolo’s MD at the time of the deal. But, he said this week, the deal did not place him in a position where it could be said that he was facing a conflict of interest because of the dual role he played in that transaction.By late April, Neethling’s time at the helm at Ongopolo had come to an end, when the financially struggling copper mining group was taken over by a British-based company, Weatherly International plc.By September, the relationship between Neethling and Ongopolo hit a rocky patch, after Ongopolo’s new Chief Executive Officer, Rob Webster, wrote to Uris’s owners to inform them that Ongopolo intended to resume mining at the dormant Tschudi Mine.This mine is situated on Uris and an adjacent farm.An access tunnel to the mine lies on Uris.It was after Ongopolo had started moving onto a mine area around that entrance, that the relations with Neethling really soured.Lawyers’ letters flew back and forth between the farm owners and Ongopolo.With Ongopolo refusing to agree with Neethling’s views that the company could not simply start using the mine area without first reaching a further agreement with the farm owners for the use of part of their land, Neethling eventually started putting locks on an access gate to the area.Ongopolo in turn had the locks removed, and the dispute, having turned acrimonious, headed to the High Court.In his judgement yesterday, Acting Judge Smuts noted that in terms of the August 2002 sale agreement between Ongopolo and The Three Musketeers Properties, Ongopolo retained all its prospecting and mining rights over the farm.The farm owners in turn were entitled to compensation at a set rate from Ongopolo for any mining activities carried out at the farm, that agreement also stated.In the sort of case that The Three Musketeers Properties decided to pursue against Ongopolo, they would have to show that they were in peaceful and undisturbed possession of the property in question, and had been unlawfully deprived of that possession, Acting Judge Smuts noted.In this case, he stated, the farm owners had not been deprived of their access to the disputed piece of land.”They are merely deprived of the opportunity of blocking access and thus causing an obstruction to the mining area,” he commented.The evidence before court also did not show that Ongopolo, which still held a mining licence over the disputed area at the time of the Uris sale and when Neethling was still its managing director, had abandoned the mining area, he added.He arrived at this finding after taking note that the court had been informed that the Tschudi access tunnel on Uris would cost some N$50 million if it was to be remade today – not the sort of asset that a company would easily abandon.Having found that Ongopolo still had possession – or at least joint possession – of the mining area, Acting Judge Smuts concluded that the farm owners could not deny them access to the area.He dismissed The Three Musketeers Properties’ case with costs.Theo Frank SC argued the farm owners’ case on Monday.Raymond Heathcote represented Ongopolo.