Extract from the supplementary founding affidavit by Robert Johann Botha, Head of Legal Sishen Iron Ore Company, August 23 2010 SUPPLEMENTARY FOUNDING AFFIDAVIT

Additional Ground of review (9 bis): ICT application contains misrepresentations

121 in addition to the ninth ground of review, the following indications appear from the record that the ICT application was not a valid application in that it fraudulently misrepresented various facts to the DMR in the knowledge that such facts were false These representations were made in the application lodged in order to induce the DMR officials concerned to grant ICT a prospecting right when in fact ICT had not complied with the statutory requirements laid down for the grant of a prospecting right.

122 All prospecting right applications must contain a certified copy or copies of the title deeds in respect of the land to which the application relates. This is so by virtue of the requirement that such an application must in terms of section 16(1)(b) of the MPRDA be made in the prescribed manner, read together with regulation 5(1)(l) and the required accompanying document D of Form B (at record page 6) which together lay down that such certified copies of the original title deeds are required.

123 The ICT application was lodged on the basis that the certified copy of the extracts of the title deed contained therein was a true copy of the original when in fact it was not. There was a deliberate misrepresentation in this regard because the copies of the deed which ICT submitted were in fact manipulated copies of the certified copy of the deed contained in the SIOC application.

124 I have already pointed out above under the second ground of review of the acceptance decision that the copy of (he relevant title deed T3280/2001 which was included in the ICT application is incomplete and is made up of extracts from the deed. It is clear from these extracts which form part of the ICT application (at record pages 16 - 27) that these pages have been copied from the copy of the title deed contained in the SIOC mining right application which was lodged with the DMR and can for that reason not be certified copies of the original as the regulations require. Included in the SIOC mining right application lodged with the DMR at its Kimberley office was a certified copy of the original title deed (as appears from pages 493 - 537 of the record). It is clear that the copies of the extracts of the title deed in the ICT application are photocopied manipulated copies of the certified copy of that deed which was in the SIOC application lodged in Kimberley. This is so by virtue of the following.

124.1 Title deed T3280/2001 is a title deed to land and as such is a document available to the public at the office of the Registrar of Deeds. ICT could therefore readily have obtained a certified copy of the deed from the Registrar. ICT would however not have been able to obtain a copy of the deed from the Registrar over the long weekend of 13 May 2009.

124.2 The copy of the title deed in SIOC's application was codified by Commissioner of Oaths l3ridget Engela (now Van der Biji) ("Engela") to be a true copy of the original.

124.3 Engela of the applicant and Mckenzie of the applicant's attorneys examined the copy of the record available at the State Attorney's offices but found that this was only a copy of the original record which McKenzie was informed is held at the DMR offices. Applicant's attorneys have since requested access to the original record as appears from a copy of their letter dated 15 July 2010 to the State Attorney, a copy of which is annexure SA8 hereto Such access has yet to be obtained. The confirmatory affidavit of McKenzie is annexure SA5 hereto. Engela, who certified the deed contained in the SIOC application, has accordingly not been able to examine the original record but has examined the copy of the record which has been furnished to the applicant and confirms that the copy of the title deed contained in the SIOC mining right application portion of the record (at pages 493 to 537 of the record) is indeed a copy of the original certified copy which she certified to be a true copy of the original and which bears her signature which she recognises. That this is a copy of the document lodged with the DMR is confirmed by the fact that the DMR rubber stamp which reads ORIGINAL" appears on the cover sheet to the document at page 492 of the record.

124.4 It is quite apparent from an examination of record that the extracts of the title deed contained in the ICT application have been fraudulently manipulated to obscure Engela's certification stamps by blanking them over with a piece of paper or card and then photocopying the pages. 1 his appears from a comparison of the COPY of the extracts from title deed contained in the ICT application compared with the full copy of the title deed contained in the Sl()C mining right application. In this regard I refer to each of pages 16 to 27 of the record (which contain the ICT copies) compared respectively with pages 493, 500 - 502, 507 - 509, 514 - 515,  517 and 519 - 520 of the record (which contain the SIOC copy of the title deed) On each of pages 16 to 27 of the record it is apparent that Engela's certification stamp and manuscript certification on 28 April 2009 and signature have been obscured by placing a blank card over these portions of the document before copying it.

124.5 The manipulation of these documents was very amateurish and left a trail of obvious signs as to the origins of the ICT copies of the extracts from the title deed. It is not necessary to refer to all those signs but I will address certain of the more obvious points of comparison which show conclusively that ICT relied on manipulated copies of the deed contained in the SIOC mining right application.

124.6 In particular I point out that on page 18 of the record the blanking out was only partially achieved so that the last portion of the date of Engela's manuscript certification, namely "April 2009" and her signature (immediately above that date) still appear on the ICT copy when compared with the SIOC copy at record page 501. The left bottom of page 18 contains remnants of the rubber stamps of both Engela and Jolindie Ferreira ("Ferreira"). Ferreira's stamp as a Commissioner of Oaths appeals on each page of the SIOC copy of the deed but is not signed.

124.7 Similarly, on page 19 of the record the blanking out was only partially achieved so that Engela's signature still appears on the ICT copy when compared with the SIOC copy at record page 502.

124.8 On pages 23 and 19 of the record it appears that the card used to blank out Engela's certification (see record pages 514 and 502 respectively) was held back to front so that the blank table on that card was mistakenly photocopied instead of the blank card.

124.9 On page 25 of the record in order to completely blank out the two certifications on the left of the SIOC copy of the deed (record page 517) it was necessary to blank out the lettering in the left margin ‘1' and part of the text down the left side of the document (see record page 25 which is the ICT copy).

124.10 On each page of the ICT extracts at pages 16 to 27 of the record there are lines visible (which are absent in the comparable SIOC copies) which indicate the edge of the card which appears to have been used to obscure the certification of Engela and the rubber stamp of Ferreira when photocopying the document. Many of the ICT pages reveal remnants of the rubber stamp of Ferreira.

124.11 Engela who is an admitted attorney has inspected the copy of the record produced by the State Attorney's office and confirms that the copy of the ICT application which she so inspected was an altered photocopy of extracts of the copy which she certified as a copy of the original (as appears at record pages 493 to 537). Engela's confirmatory affidavit as to the aforegoing is annexure SA3 hereto.

125 The inescapable conclusion is that after SIOC delivered its mining right application to the DMR on Thursday 30 April 2009 and over the long weekend between Thursday 30 April 2009 and the next working day which was Monday 4 May 2009 and before it finalised and lodged its application, ICT had unlawful access to SIOC's mining right application in order to effect such copying. ICT used at least part of the SIOC mining right application as a basis to prepare its own application and by so doing obtained an unlawful benefit to which it was not entitled by uttering forged documents.

126 Each of the plans included in the ICT application at pages 54 to 64 of the record is dated Saturday 2 May 2009, apparently by the software programme in which such plans were created. The fact that these plans were produced over the long weekend supports the contention that the existence of the SIOC mining right application for the undivided 21,4% share in the rights to iron ore had been "leaked" to ICT over that long weekend.

127 In short what the evidence disclosed above shows is that:

127.1 ICT was informed of the fact that on Thursday 30 April 2009 SIOC had delivered its mining right application to the office of the Regional Manager: Kimberley;

127 2 ICT then proceeded in great haste to assemble an application for a prospecting right:

127.3 In order to do so, ICT unlawfully obtained access to SIOC's application and copied portions of it, more particularly the certified copy of the relevant title deeds;

127.4 ICT sought to hide the fact that it had gained access to SIOC's application and that it had simply copied SIOC's certified copy of the title deeds by manipulating the copying process:

127.5 Despite that unlawful access and fraudulent manipulation of the copying of SIOC's certified title deeds, ICT was still unable to complete its application by 4 May 2009;

127.6 ICT therefore either delivered its application after 4 May 2009 and procured that it nevertheless be stamped as having been received on that dale or, having lodged a materially incomplete and defective application on that date then proceeded, illegitimately, to add to it. Either way, lCT's conduct remains grossly improper and indeed, unlawful.

128 Accordingly, the prospecting right grant decision falls to be set aside in terms of:

128.1 section G(2)(b) 01 PAJA, iii that a mandatory and material condition prescribed by the empowering provision was not complied with; and

128.2 section 6(2)(e)(iii) in that the decision was taken because of a failure to take into account the relevant consideration that a certified copy of the true title deed was not lodged, there being only copies of excerpts of the deed, and moreover that such copies as were lodged by ICT were manipulated copies improperly obtained from the SIOC mining right application.

Note: Transcribed from the PDF. Please check against the original here.

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