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[2017] ZAWCHC 7
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Shanduka Resources (Pty) Ltd v Western Cape Nickel Mining (Pty) Ltd and Others (A324/2016) [2017] ZAWCHC 7; [2017] 2 All SA 279 (WCC) (15 February 2017)
Republic of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No. A 324/2016
Before: The Hon. Mr Justice Desai
The
Hon. Mr Justice Binns-Ward
The
Hon. Ms Justice Mantame
Date
of appeal hearing: 30 January 2017
Date
of judgment: 15 February 2017
In
the matter between:
SHANDUKA
RESOURCES (PTY)
LTD
Appellant
and
WESTERN
CAPE NICKEL MINING (PTY)
LTD
First
Respondent
REGIONAL
MANAGER (WESTERN CAPE),
DEPARTMENT
OF MINERAL
RESOURCES
Second
Respondent
THE
MINISTER OF MINERAL
RESOURCES
Third
Respondent
THE
DEPUTY DIRECTOR-GENERAL:
DEPARTMENT
OF MINERAL
RESOURCES
Fourth
Respondent
HONDEKLOOF
NICKEL (PTY)
LTD
Fifth
Respondent
JUDGMENT
BINNS-WARD J (DESAI and MANTAME JJ concurring):
[1]
This appeal is from a judgment of Weinkove
AJ sitting as a single judge at first instance. It was brought
with the leave of
the learned acting judge.
[2]
The history is relatively complex, with a
small host of characters having been involved in various roles in the
three applications
that came up for hearing together in the court of
first instance. The description of the facts will be easier to
follow if
I refer to the personalities that were involved by their
names or positions, rather than by their respective roles as parties
cited
in the appeal. When convenient, the individually cited
functionaries of the Department of Mineral Resources (the minister,
the deputy director-general and the regional manager (Western Cape),
respectively) will be referred to collectively as ‘the
Department’ or ‘the government parties’.
[3]
The issue centrally in contention in the
litigation was how the competition between the appellant, Shanduka
Resources (Pty) Ltd
(Shanduka), and the first respondent, Western
Cape Nickel Mining (Pty) Ltd (WC Nickel), for recognition as the
first-in-time applicant
for prospecting rights in respect of nickel
ore and various other minerals over Portion 2 of the farm Nuwefontein
6, Van Rhynsdorp,
Western Cape should be determined. There was
some dispute as to whether WC Nickel had effectively lodged an
application,
but both companies had been advised by the regional
manager that their respective applications could not be accepted
because the
rights were already held by Hondekloof Nickel (Pty) Ltd
(the fifth respondent, hereinafter referred to simply as
‘Hondekloof’).
[4]
The regional manager was charged in terms
of s 16 of the Mineral and Petroleum Resources Development Act
28 of 2002 (the Act)
with deciding whether or not to accept the
applications. Acceptance of an application for prospecting
rights was the first
step towards getting it ultimately referred to
the minister, who would determine whether or not to grant it.
It was common
ground in argument that the regional manager’s
decisions in terms of s 16 of the Act constituted
‘administrative
action’ within the meaning of the term in
the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
[5]
On 9 September 2013,
Shanduka obtained an order before Henney J in
case no. 12625/2013 reviewing and setting aside
the refusal
by the regional manager
[1]
to receive its application for
the prospecting rights. The order further directed the regional
manager to accept and process
Shanduka’s application in terms
of s 16 of the Act. Section 9 of the Act requires the
regional manager to
deal with such applications in the order in which
they are received chronologically. The order obtained by
Shanduka
directed the regional manager to deal with the application
as if it had been lodged on 11 March 2013.
[6]
The regional manager
was the only respondent cited in case no. 12625/2013.
[2]
Despite service of the application by the sheriff on his office, the
regional manager neglected to oppose it. This
resulted in the
review relief sought in Part B of the notion of motion being granted
effectively by default. An order in
term of Part A of the
notice of motion, which had included a prayer for interim
interdictory relief pending the determination
of the judicial review,
had been granted earlier (on 20 August 2013) before
Salie-Samuels AJ; also in default of any
opposition.
[7]
On 17 December
2013, under case no. 20800/2013, the regional manager applied
for the rescission of the aforementioned
orders made under case
12625/2013 (‘the rescission application’). Apart
from explaining that the interdict and
review applications had not
been opposed because of a failure of the applicable administrative
protocols in his office, the regional
manager based his application
for rescission on the allegation that he was precluded in terms of
the Act from accepting Shanduka’s
application for prospecting
rights because the rights in question had already (that is, prior to
11 March 2013) been granted to
Hondekloof. The regional manager
also raised questions about the legal propriety of the terms of
certain provisions of the
order directing him to ‘accept’
Shanduka’s application, apparently regardless of whether or not
the application
was compliant with the requirements in terms of
s 16(2) of the Act.
[3]
[8]
Shanduka opposed the
rescission application and, in a counter-application, sought the
judicial review and setting aside of the decisions
in terms of which
the prospecting rights ostensibly vested in Hondekloof. Shanduka
contended that Hondekloof’s prospecting
rights had in fact
lapsed by effluxion of time on 14 February 2013, and that their
purported renewal in terms of a notarial
deed executed later in 2013
had been legally incompetent. For the purposes of its
counter-application, Shanduka joined the
minister,
[4]
the deputy-director-general
[5]
and Hondekloof as additional respondents in the proceedings.
Shanduka subsequently amended its notice of motion to claim
an order
dispensing it from having to avail of the internal remedy provided in
terms of s 96 of the Act and, in terms of s 9
of PAJA,
extending the period for the bringing of the review application.
[9]
Shanduka’s
counter-application elicited an application by WC Nickel –
which is related to Hondekloof
[6]
–
for leave to intervene
as a respondent in the main application in case no. 20800/2013,
and for certain substantive relief,
namely –
(i) a declaratory order that
it
was entitled to be recognised as the applicant first-in-time for a
new prospecting right over portion 2 of Nuwefontein 6 for nickel
ore
and certain other minerals and that the regional manager was obliged
to accept and process the application for the prospecting
rights that
it had attempted to lodge on 22 February 2013 in priority to the
application of any other party, including Shanduka;
alternatively
,
an order declaring that Hondekloof was the holder of a valid
prospecting right over the land;
(ii) an order rescinding the
aforementioned orders in favour of Shanduka granted in case
no. 12625/2013;
[7]
and
(iii) an order dismissing Shanduka’s
aforementioned counter-application in case no. 20800/2013.
WC Nickel’s application was referred to as
the ‘intervening application’. The notice of motion
in the
intervening application is undated and it does not appear on
the record when it was filed of record. It would seem from an
acknowledgement of receipt by one of the respondent parties that
service of the intervening application was effected in early
September 2014. The supporting affidavit was deposed to on
29 August 2014.
[10]
Despite the
questionable formulation of its prayer for leave to intervene and the
doubtful appropriateness of it seeking the substantive
relief
described above in the manner in which it did,
[8]
it was accepted at the hearing before the court a quo that
WC Nickel be admitted as a party in the proceedings and that
the
court could in the proceedings deal with the substantive relief that
it sought.
[9]
[11]
Before the aforementioned applications came
up for hearing before the court a quo, the Supreme Court of
Appeal (SCA) handed
down a judgment in an unrelated matter,
Minister
of Mineral Resources and Others v Mawetse (SA) Mining Corporation
(Pty) Ltd
[2015] ZASCA 82
,
[2015] 3 All
SA 408
(SCA),
2016 (1) SA 306.
The judgment was delivered on
28 May 2015. The SCA’s elucidation of the proper
construction of the relevant
provisions of the Act put it beyond
doubt that Hondekloof’s prospecting rights had indeed lapsed on
14 February 2013.
The judgment made the Department realise
that there was no merit in the view to which it had subscribed up to
that stage that the
prospecting rights continued to be held by
Hondekloof. The regional manager therefore decided to withdraw
the rescission
application and sought to reach an agreement in that
regard with Shanduka.
[12]
The Department explained its altered
position in an affidavit by its attorney,
jurat
17 November 2015, filed of record on 25 November 2015 (the
date on which the applications came up for hearing before
the court a
quo). The affidavit was omitted from the appeal record, but it
was placed before us as an attachment to the heads
of argument of
counsel who appeared on behalf of the government parties at the
hearing of the appeal. It was pointed out
in the affidavit that
the SCA’s judgment in
Mawetse
had made it evident to the Department that it was no longer able to
seek the rescission of the order made by Henney J or oppose
the
relief sought in Shanduka’s counter-application predicated on
the alleged legal non-existence of Hondekloof’s prospecting
rights.
[13]
The Department recorded that it had advised
Shanduka’s attorneys by letter dated 4 November 2015 that
having since located
Shanduka’s application for the prospecting
right, which had been misfiled in the regional manager’s office
after it
had been lodged, and determined that it was compliant with
the prescribed requirements in order to be accepted in terms of s 16
of the Act, it had proposed an agreement with Shanduka in terms of
which –
1.
The
Department would consent to the substantive relief sought in terms of
Shanduka’s aforementioned counter-application;
2.
Shanduka would consent
to the rescission of those paragraphs of the order made in case no.
12625/2013 that the Department regarded
as legally improper;
[10]
and their substitution by reformulated provisions directing the
regional manager to process Shanduka’s application in
accordance
with the prescripts of the relevant provisions of the Act.
The letter had made it clear that the Department’s
ability to accept and process Shanduka’s application would,
however,
be dependent on the court’s determination of the
intervening application by WC Nickel. The Department
confirmed
the position it held at that stage that it had not received
an application from WC Nickel for prospecting rights in respect
of portion 2 of Nuwefontein 6, and that therefore no application had
been lodged that enjoyed chronological precedence over Shanduka’s
application.
[14]
Shanduka’s attorneys appear not to
have responded to the aforementioned approach from the Department.
The judgment of
the court a quo records, however, that the government
parties ‘[withdrew]
their
participation in this matter and agree
[d]
to abide the decision of the Court
’.
Accordingly, by the time the matter was argued before the court a
quo, there was, to use the language of the government
parties’
counsel, no longer ‘any
lis
’
between Shanduka and the Department.
[15]
The matters that fell for determination by
the court a quo in the circumstances were those presented in terms of
WC Nickel’s
intervening application, described in
paragraph [9]
above. If they were
answered in WC Nickel’s favour, Shanduka’s
application had to fail; if they were answered
against it, Shanduka’s
counter-application should have been substantially upheld.
[16]
It is therefore appropriate, before turning
to the judgment of the court of first instance, first to consider the
facts pertinent
to the intervening application in some detail.
[17]
WC Nickel was
incorporated in 2013
[11]
for the purpose, amongst other matters, of undertaking the further
exploration and development of what was called ‘the Hondekloof
Nickel Project’. This transpired in terms of a joint
venture agreed upon between
Scorpion
Mineral Processing Coal Mining and Processing (Pty) Ltd (Scorpion)
and Hondekloof’s holding company, Lehumo Resources
Ltd
(Lehumo). WC Nickel was the vehicle through which the
joint venture’s business was to be conducted.
The joint
venture is reportedly governed by various ‘definitive
agreements’ concluded between the relevant parties.
Copies
of those agreements were not included in the papers for reasons of
commercial confidentiality. The establishment
of the joint
venture was documented in two memoranda of understanding.
Copies of the memoranda were put in as attachments
to the founding
affidavit in WC Nickel’s intervening application.
The documents are dated 28 January 2013, and
20 June 2013,
respectively.
[18]
As explained in WC
Nickel’s founding affidavit, the first memorandum of
understanding contemplated that all of the prospecting
rights held by
Hondekloof (those in respect of portion 2 of Nuwefontein 6 and also
in respect of a property called Matjeskloof
410 remainder –
which is in the Northern Cape), as well as the geological information
owned by Hondekloof as a consequence
of drilling conducted by it on
the aforementioned properties and on Nuwefontein Remainder and Klein
Matjesfontein 2, portions 2
and 3, would be transferred to the
contemplated operating company (WC Nickel). The first
memorandum of understanding
recorded that the shares in the operating
company would be held as to 74% by a holding company owned by
Scorpion and 26% by Hondekloof’s
(and thereby Lehumo’s)
subsidiary, Western Cape Nickel Investments (Pty) Ltd.
[12]
The signature of the first memorandum of understanding was followed
by certain due diligence investigations.
[19]
A consulting firm appointed by Scorpion to
assist in the due diligence process ascertained (correctly) that
Hondekloof’s prospecting
rights in respect of the Nuwefontein
property were due to expire on 14 February 2013. As the extant
rights had vested in
Hondekloof pursuant to a renewal, in 2010, of
the original grant in 2005, Hondekloof was precluded by the
provisions of s 18(4)
of the Act from further renewing the
rights. The consulting firm therefore advised that WC Nickel
should lodge a new application
for the prospecting right immediately
after the date of the expiry of Hondekloof’s rights.
[20]
The deponent to WC
Nickel’s founding affidavit, one Philpot, who is a director of
the consulting firm, averred that he prepared
such an application and
that his co-director - one Goldsmith (who made a confirmatory
affidavit) - attempted several times during
the period of
14-22 February 2012 to upload the application online using the
Department’s dedicated software program
(SAMRAD). (It is
common ground between Shanduka and WC Nickel that the program is
‘notoriously unstable and problematic’.
Shanduka
was also unable to upload its application when it endeavoured to do
so in March 2013.) The uploading of the application
(or at
least the lodging of the application in an electronic format that
could be uploaded) was essential for the purpose of achieving
compliance with the prescribed requirements in terms of s 16(1)
of the Act for the lodging of such applications.
[13]
[21]
Mr Goldsmith testified that he then
travelled from Johannesburg to Cape Town to try to upload the
application at the regional
manager’s office. This was
also unsuccessful because of problems with the SAMRAD program.
The official who was
assisting Goldsmith in his attempt to upload the
application contacted one Morné Koen, who was the information
systems manager
at the regional manager’s office for advice.
Mr Koen, who was on leave at the time, telephonically advised
that
Goldsmith should leave both a hard copy of the application, as
well as the compact disc on which a copy of it had been saved
electronically,
at Koen’s office and he would attend to
uploading the application when he returned to work in the following
week.
[22]
Upon his return to Johannesburg, Goldsmith
sent an email to Koen on the morning of 25 February 2013 under the
subject line ‘
Hondekllof
(sic)
prospecting right upload
’.
The email, which was copied to Philpot, went as follows:
Hi Morne
Many thanks for all your assistance last Friday (22
nd
Feb) and allowing me to leave the hardcopy prospecting right
application at your offices for upload. Can you please send
me
an acknowledgment when the application has been successfully
uploaded?
Many thanks
Alan
Goldsmith received an email from Koen on 5 March 2013,
under precisely the same subject line (spelling mistake included),
stating:
‘
The application has been captured.
’
[23]
Mr Goldsmith followed up with a
further email on 7 March 2013 as follows:
Hi Morne
I am assuming we will receive an acceptance letter
shortly for the Matjesfontein prospecting right application you
uploaded for
me. Is this a correct assumption?
Kind regards
Alan
Goldsmith wrote again to Koen by email on 20 March 2013:
Hi Morne
Can you please give me an update on the progress of the
prospecting right application which you uploaded for me on
Matjesfontein.
Has an acceptance letter been issued, and if so,
to where it was sent?
Many thanks
Alan
[24]
Messrs Goldsmith and Philpot initially
testified that the reference in the aforementioned emails to
‘
Matjesfontein
’
was erroneous, implying that the application being referred to was in
fact in respect of portion 2 of Nuwefontein 6.
Koen, on the
other hand, denies any knowledge of a hard copy of the application
having been left in his office and avers that the
application that he
uploaded electronically pertained to Klein Matjesfontein 2, portions
2 and 3 and Nuwefontein 6 remaining extent.
[25]
Copies of a ‘locality
plan’ showing the geographical position of the Klein
Matjesfontein prospecting right area within
the Western Cape Province
and a survey diagram describing the land concerned as ‘
Property
[indecipherable number]
Klein
Matjesfontein 2, portion 2, portion 3 and Nuwefontein 6 remaining
extent
’, were
put in as attachments to the Department’s answering papers in
the intervening application in support of Koen’s
evidence.
On their face, the attached documents purport to be part of an
‘
application
for a prospecting right
’
by Western Cape Nickel Mining (Pty) Ltd. The survey diagram
bears the initials of someone who purported to be a director
of
WC Nickel above the date ‘
2013/02/20
’.
It bears mention that the provision of a locality plan and survey
diagram of the prospecting area is prescribed as
part of any
application for prospecting rights under the Act.
[14]
[26]
In reply, Philpot said that an application
for prospecting rights in respect of Matjesfontein 2 had in fact also
been submitted.
He added that Goldsmith had, on reflection,
after considering the Department’s answering affidavit in the
intervening application,
concluded that he had not copied ‘
the
file source code for the Hondekloof prospecting right (despite having
offered to do so) onto a computer belonging to the DMR
(as instructed
to do so by Koen …) and only copied the source code for the
Kleinmatjiesfontein prospecting right …
’.
It was conceded that the references to Klein Matjesfontein in the
email correspondence with Koen had therefore not
been erroneous, as
originally alleged. Goldsmith also said in reply that Ms Tsolo
had informed him on 22 February 2013
that she could not accept the
application in respect of Nuwefontein 6 because of what she
considered to be Hondekloof’s extant
prospecting rights over
the property. He appears, however, to have persisted in his
claim to have nevertheless left a hard
copy of the application at the
Department’s offices.
[27]
Contemporaneously with the exchange of the
aforementioned exchange of emails between Goldsmith and Koen, there
were face to face
exchanges between one Whittaker, another member of
the consulting firm, and Ms Tsolo, who was acting as the regional
manager at
the time, about WC Nickel’s wish to acquire the
prospecting rights over portion 2 of Nuwefontein 6. Ms Tsolo
informed
Whittaker that the Department would not be able to accept
any applications for the prospecting rights because, in the
Department’s
view, they continued to be held by Hondekloof.
[28]
It was apparent that Ms Tsolo’s
viewpoint was predicated on the opinion (notwithstanding that the
renewal of Hondekloof’s
rights in 2010 had in point of fact
been expressly limited to 14 February 2013) that the renewal
granted in 2010 was for a
three-year period (the maximum permitted in
terms of s 18(4) of the Act) commencing only when the documents
enabling the registration
of the renewed rights in terms of the
Mining Titles Registration Act 16 of 1967 had been executed.
That Ms Tsolo’s
opinion reflected the understanding of the
Department of the applicable legislation at that time is borne out by
the position it
adopted in the appeal in
Mawetse
supra, which was argued in May 2015.
[29]
Mr Whittaker conveyed Ms Tsolo’s
view to Philpot. Philpot - anticipating the construction of the
Act subsequently
pronounced by the SCA in
Mawetse
- was not persuaded as to the correctness of the position adopted by
Ms Tsolo. A meeting was consequently arranged with
Ms Tsolo on 5 March 2013. WC Nickel’s
representatives came to the meeting armed with letters drafted by
Scorpion’s attorneys that were intended to be presented to
Ms Tsolo. The purpose of presenting the letters was
said
to be to protect WC Nickel’s right to be regarded as the
first-in-time applicant for the prospecting rights that had
been held
by Hondekloof and to confirm that Hondekloof accepted that its rights
had expired on 14 February 2013. Ms Tsolo
stuck to her guns at
the meeting and insisted that WC Nickel’s application could not
be accepted. She suggested that
Hondekloof should rather
expedite the submission of the necessary documents for registration
of its title to be executed and undertook
to facilitate the process.
[30]
In the circumstances, WC Nickel’s
representatives did not hand over the letter in terms of which
Hondekloof confirmed
that it no longer held the rights. The
letter (from Scorpion) that it did hand over (annexure ‘HGP 15’
to WC Nickel’s
founding affidavit) was addressed for
Ms Tsolo’s attention. It recorded that that
WC Nickel had
attempted
to
submit an application for the prospecting rights, but that the
Department had declined to accept it on the grounds that a
prospecting
right for the same minerals had been previously granted
and was pending notarial execution. The letter set out
WC Nickel’s
contention that the previously granted right
had expired on 14 February 2013, alternatively 1 March 2013 and
concluded with
the request ‘
In all
the circumstances, we therefore request that you formally accept the
lodgement by us of this application and furnish us with
a
date-stamped receipt for same, confirming the date of lodgement, and
thereafter deal with our application in accordance with
the
provisions of the
[Act]’.
[31]
A handwritten endorsement by Ms Tsolo on
the letter that was handed to her recorded her position as follows:
Explained that the application cannot be accepted
manually as there is a right that is granted but not yet issued.
[Signature]
5/3/2013
It
seems to me that Ms Tsolo’s handwritten endorsement constituted
an effective notification to WC Nickel within the
meaning of
s 16(3) of the Act that its application could not be accepted by
virtue of the provisions of s 16(2)(b) of
the Act.
[15]
Furthermore, it is hardly surprising in the circumstances that the
Department was unable to locate a copy of the application
in its
possession when the matter became litigious because, assuming that it
had been lodged, as alleged by Goldsmith, the Department
would have
been bound, in terms of s 16(3) of the Act as it read at the
time, to return it to WC Nickel when the regional
manager
declined to accept it.
[16]
(WC Nickel’s counsel accepted in their heads of argument
that the application had been rejected when Ms Tsolo
conveyed
her inability to accept it during February 2013.)
[32]
Mr Philpot averred that in the context
of the Department’s attitude as conveyed to them by Ms Tsolo,
the joint venture
parties were ‘
considerably
confused as to how to take the matter forward
’.
A further meeting was held with the regional manager and the
Department’s legal representative on 17 April
2013. The
Department adhered to the position previously expressed by Ms Tsolo.
[33]
WC Nickel was
placed in a dilemma. It appreciated that its choice lay between
challenging the decision to decline to
accept its application and
proceeding in accordance with the Department’s advice, that is
by allowing Hondekloof to submit
the documentation for the execution
of the registration of the prospecting rights in its name for a
further three years from the
date of registration.
[17]
WC Nickel’s assessment of the practicalities, more
particularly its view of the desirability of maintaining good
relations with the Department’s officials, led it to decide on
the latter course.
[34]
Hondekloof thereafter proceeded to
notarially register its renewed prospecting rights on 21 May
2013. The relevant deed
had been notarially executed on 2 May
2013. On 19 June 2013, the deputy director-general issued
what purported
to be an amended renewal letter to Hondekloof.
Its object appears to have been to deal with the termination date of
14 February
2013 given in the original notification of the renewal in
2010. The amended renewal purported to extend Hondekloof’s
prospecting rights ‘
for a period
of three years from the date of execution
’.
[35]
As mentioned, the joint venture parties
executed a second memorandum of understanding in June 2013. The
deponent to WC Nickel’s
founding affidavit stated that the
purpose of the second memorandum was to record ‘
certain
interim developments relating to Hondekloof’s prospecting
rights and the parties’ commercial arrangements
’.
WC Nickel, which had been incorporated by then, was a party to
the second memorandum. It purported to
record that Hondekloof
held the prospecting rights over portion 2 of Nuwefontein 6, renewed
on 2 May 2013 for a period of three
years expiring on 1 May 2016.
It also recorded the intention of the joint venture parties that
Hondekloof’s rights
would be ceded and transferred to WC Nickel
using the procedures provided in terms of s 11 of the Act.
[36]
Shanduka alleged that the substantive
relief sought by WC Nickel in the intervening application could
not be granted because
–
(i) it could not be found on the papers that the
application that had been lodged by Goldsmith at the regional
manager’s office
in February 2013 had been in respect of
portion 2 of Nuwefontein 6, rather than some other property; and
(ii) even if the application that had been lodged had in
fact pertained to Nuwefontein 6, the evidence showed that WC Nickel
had
subsequently abandoned it when it chose to accept that
Hondekloof’s allegedly renewed prospecting rights should be
registered
and to obtain cession thereof in terms of s 11 of the
Act.
[37]
In terms of paras. 1-3
of its order, the court a quo declared that Hondekloof’s
prospecting rights had expired on 14
February 2013 and reviewed and
set aside any decisions made by the regional manager or the deputy
director-general in favour of
Hondekloof after that date on the
mistaken assumption of the continued validity of such rights.
No-one has taken issue on
appeal with those provisions of the
order.
[18]
The court a quo also declared, in paragraph 4 of the order, that WC
Nickel was entitled to be recognised for the purposes
of ss 9
and 16 of the Act as the first-in-time applicant for the prospecting
rights over portion 2 of the farm Nuwefontein
6. In addition,
it rescinded (in terms of para. 5 of its order) the
abovementioned orders granted in favour of Shanduka
on 20 August and
9 September 2013 under case no. 12625/2013 (and, notwithstanding that
that application was not before it, even
purported to dismiss it).
[38]
Shanduka’s appeal is directed at
reversing the effect of the declaration that WC Nickel must be
recognised as the first-in-time
applicant for the prospecting rights
and the rescission of the aforementioned order made by Henney J.
The government
parties are willing to abide the court a quo’s
decision on that question, but they instructed counsel to appear at
the appeal
because of their concern about what they contend to have
been the inappropriate manner in which para. 4 of the order was
worded.
Paragraph 4 will of course fall away if the appeal by
Shanduka is upheld. The paragraph reads as follows:
4. Declaring that in terms of the provisions of Section
16 read with Section 9 of [the Act]:
4. [WC Nickel] is entitled to be recognised and dealt
with by the [regional manager] as the applicant first in time for a
new prospecting
right for nickel ore, copper ore, … in respect
of portion 2 of the farm, Nuwefontein, 6, Vanrhynsdorp (“the
new application”);
and
4.2. The Regional Manager is obliged to accept and
process the new application in priority to any other application by
any other
person for a prospecting right for the same minerals and
land.
[39]
The court a quo was
bound to decide the matters before it on the papers in accordance
with the rule in
Plascon-Evans
.
[19]
Accordingly, unless it were able to reject the evidence of the
respondents as obviously untenable or far-fetched in respect
of any
fact genuinely in dispute on the papers, it was bound to decide the
matter on the basis of the respondents’ version
of such facts.
[40]
In respect of the
declaration sought in the intervening application that WC Nickel
was entitled to be recognised and dealt
with as the first-in-time
applicant for the prospecting rights, WC Nickel was the applicant and
the government parties were respondents.
Whilst the government
parties’ evidence about whether a hard copy of an application
by WC Nickel had been received was
equivocal,
[20]
the evidence of Koen that the electronic copy of the application that
had been left by Goldsmith for him to upload pertained to
a different
property to portion 2 of Nuwefontein 6 was not only clear-cut, it was
also supported in a number of corroborative aspects
by other
evidence. Goldsmith’s emails referred to Matjesfontein,
not Nuwefontein 6, and the locality map and survey
diagram produced
by the government parties bore out Koen’s evidence that what he
had dealt with related to an application
submitted by WC Nickel
in February 2013 for the prospecting rights on Klein Matjesfontein 2,
not Nuwefontein 6.
As mentioned, Goldsmith appears to have
conceded in reply that he had left only the application in respect of
Klein Matjesfontein
for uploading.
[41]
Mr Koen’s
evidence plainly placed WC Nickel’s claim to have lodged
an application in electronic format (as
required by the
regulations
[21]
)
for the prospecting rights over portion 2 of Nuwefontein 6 in
dispute. The court a quo, however, rejected Koen’s
evidence and accepted that of Goldsmith. The only reasons given
for that decision were that Koen’s evidence concerning
the
non-receipt of the hard copy of the application had been a bare
denial and that he had contradicted himself in his evidence.
The nature of the contradiction was not identified. It may have
been a reference to the fact that Koen had testified that
he
appreciated that the application could not be accepted because he was
aware of the renewal of Hondekloof prospecting rights.
There
was no evidence, however, whether the purported renewal of
Hondekloof’s rights also pertained to Klein Matjesfontein.
It was therefore unclear whether Koen was speaking about the renewal
of Hondekloof’s Nuwefontein rights or its Klein Matjesfontein
rights (if any). If it was the former, then that would have
afforded grounds to believe that he had contradicted himself
because
the renewal of the Nuwefontein 6 rights would have been irrelevant in
determining whether or not to accept an application
for the Klein
Matjesfontein rights. In reply, WC Nickel appeared to
allege that Goldsmith had also brought with him
an application for
the Klein Matjesfontein rights, but it is evident from the
disbursements reflected on consulting firm’s
fee note that an
application fee of R500 was paid, which could pertain to only one
application. The receipt, which was put
in evidence, does not
give any particulars of the application to which the payment
related. Another relevant feature was
that the abovementioned
letter to Ms Tsolo, dated 2 March 2013, drafted by
Scorpion’s attorneys, was worded to
suggest that the
application lodged by Goldsmith in respect of Nuwefontein 6 on
22 February 2013 had not been accepted, which,
if correct, would
make Goldsmith’s claim to have left a hard copy of it for Koen
puzzling to say the least; for what
purpose would that have
served? The facts are far from clear on the papers.
[42]
The judge a quo failed
to address the effect of the documentary evidence described above,
which supported Koen’s evidence
that the electronic version of
the application that he uploaded pertained to Klein Matjesfontein,
not Nuwefontein 6. He also
does not appear to have been astute
to the fact that if the electronic version of the application left by
Goldsmith pertained to
Klein Matjesfontein, not Nuwefontein 6, as
maintained by Koen, the regional manager may have been obliged to
reject the application
as non-compliant with the requirements of s 16
of the Act because the regulations appear (notwithstanding the
contrary indication
given on the prescribed application form) to
require an application to be in electronic format.
[22]
The judge also made no mention in his judgment of Goldsmith’s
reconsideration of his initial evidence, or of the effect
of the
content of Scorpion’s letter to Ms Tsolo that was tabled
at the meeting on 5 March 2013.
[43]
On the view I take of
the matter, however, it is unnecessary to determine what it was that
Goldsmith left at the regional manager’s
office on 22 February
2013. I am prepared to assume in WC Nickel’s favour
(without so deciding) that Goldsmith
left a hardcopy and an
electronic copy of an application by WC Nickel for the right to
prospect for nickel and the other indicated
metals on portion 2 of
Nuwefontein 6.
[23]
My view is founded on the fact that it is evident on the uncontested
evidence that Ms Tsolo dealt with the matter on
the basis that
such an application had been lodged by WC Nickel. She
informed WC Nickel’s representatives at the
meeting on 5 March
2013 that the application
could
not be
accepted
.
She confirmed that intimation in writing by the handwritten
endorsement described above. She did not contend that
an
application had not been lodged.
[44]
The Act draws a
distinction between the
lodging
of an application - and its consequent
receipt
by the regional manager - and the
acceptance
thereof.
[24]
Once an application has been lodged, the regional manager must decide
whether or not to
accept
it. She is obliged to accept it if it complies with the
qualifying criteria stipulated in s 16(2)(a)-(c), and she may
not accept it if she finds that the application has not met all those
criteria. In either event she must notify the applicant
that
the application has been accepted, alternatively that she cannot
accept it. It is only an application that has been
‘accepted’
in the sense just explained that falls to be passed onto the Minister
for consideration after the applicant
has provided the information
referred to in s 16(4)(a) and (b), which the regional manager is
required to request from it
after accepting the application.
[45]
It is common ground
that Ms Tsolo advised WC Nickel that she was unable to
accept its application for prospecting rights
on portion 2 of
Nuwefontein 6 because the right was held by Hondekloof. It is
plain that Ms Tsolo’s action in so informing
WC Nickel of
the disqualification of its application was dispositive. It
occurred before Shanduka even attempted to
lodge its application,
and, having regard to the wording of s 16(2) of the Act at the
time,
[25]
the issue of an entitlement to first-in-time preference was not an
issue.
[46]
WC Nickel’s remedy in the
circumstances, if it wished to persist with its application for the
prospecting rights, was to challenge
the regional manager’s
decision to not accept the application. It could have done that
either by way of an internal
appeal in terms of s 96 of the Act,
or, if it could show exceptional circumstances justifying such a
course, it could have
applied directly to court for a judicial review
of the regional manager’s decision not to accept the
application. It
did neither. It chose instead to accept
that Hondekloof was possessed of the rights and supported the
registration of the
rights in Hondekloof’s name. It
subsequently engaged in a process directed at taking cession in terms
of s 11 of the
Act of what it was prepared to accept as being
Hondekloof’s prospecting rights.
[47]
The court a quo approached the consequences
of WC Nickel’s failure to persist with its application for
the prospecting
rights to be awarded directly to it by asking the
question whether WC Nickel could be said to have waived its
alleged right
to have its application for prospecting rights
accepted. The learned judge may have approached the matter in
that way as
a result of the characterisation of the issue in argument
by Shanduka’s counsel. Whatever the reason for his
approach,
the judge concluded that WC Nickel had not waived its
rights and that its application somehow remained open for acceptance
notwithstanding the decision that had been made not to accept it.
In my judgment, the characterisation of the question as
one of waiver
was misconceived, and the court a quo led itself into error by
failing to recognise that. The court a quo’s
approach
failed to address the dispositive effect of the regional manager’s
decision not to accept the application and the
consequences of that
decision in respect of WC Nickel’s rights under the Act.
WC Nickel did not waive any
rights; it failed to exercise them
by pursuing its remedies. Shanduka’s use of the wrong
label in its opposing papers
did not affect the incidence of the law
on the given facts.
[48]
If it had wished to
pursue its application in the face of the regional manager’s
decision not to accept it, WC Nickel would
have been obliged to
exercise its right of appeal in terms of s 96 of the Act within
30 days. Having failed to do so,
it could ordinarily not have
taken the regional manager’s decision not to accept its
application on judicial review.
Section 7(2) of PAJA and the
provisions of s 96(3) and (4) of the Act, required WC Nickel
to exhaust its internal remedies
under the Act
[26]
before taking any administrative decision under the Act on judicial
review.
[49]
The time frames
prescribed in terms of the Act are also there for good purpose.
On a proper construction of the legislation,
WC Nickel was not
entitled, in parity with the very reasons identified in the SCA’s
judgment in
Mawetse
(supra)
[27]
,
to sterilise the prospecting rights by inaction concerning its
alleged position as first-in-time applicant for them. The
time
lines provided in terms of the Act are directed at promoting
certainty and efficiency in respect of the exploration and
exploitation
of the country’s mineral resources. WC
Nickel’s failure to exercise its remedies within the prescribed
time periods
resulted - subject to its ability to obtain exceptional
relief in terms of ss 7(2)(c) and 9 of PAJA - in the forfeiture
of
its ability to pursue them.
[28]
Waiver was not the correct label to describe that effect. The
result, being the lapsing of WC Nickel’s right
to challenge the
regional manager’s decision to refuse to accept its
application, followed as a matter of law.
[50]
The legal effect of the declarator in
para. 4 of the order of the court a quo was to negate the
decision of the regional manager
not to accept WC Nickel’s
application. The effect was indistinguishable from that of an
order reviewing and setting
aside the decision. The relief that
was afforded in terms of the declarator and attendant mandatory
interdict was of the
character that would ordinarily have been sought
by way of an application in terms of s 6(1) of PAJA, with the
declarator
and interdict being sought as ancillary relief in terms of
s 8. It is unnecessary to make a finding that WC Nickel
was obliged to have applied formally in terms of PAJA for the review
and setting aside of the decision not to accept its application.
I leave that question open. Suffice it to say, however, that it
could not avoid the effect of the applicable provisions of
PAJA,
which exhaustively regulate litigious challenges to administrative
action in matters where no other specific statutory procedure
has
been provided, by formulating the relief that it sought in the form
of a declaratory order coupled with a mandatory order,
rather than a
judicial review. More specifically, it could not sidestep the
time bar provisions in s 7(1) of PAJA by
framing its application
in that way.
[51]
The SCA’s
judgment in
Opposition
to Urban Tolling Alliance and Others v The South African National
Roads Agency Ltd and Others
[2013]
ZASCA 148
;
[2013] 4 All SA 639
(SCA)
held
that the effect of s 7(1) of PAJA was that, absent an extension
of time in terms of s 9 of that Act, a court has
no authority to
entertain a PAJA-regulated review application brought outside the
180-day outer limit.
[29]
Thus, even in the absence of a challenge based on the delay rule, the
court a quo had no jurisdiction to entertain what is
effectively a
review challenge to administrative action when it is time barred in
terms of PAJA.
[52]
The intervening application was brought
well outside the 180-day limit in terms of s 7(1) of PAJA, and
there was no application
in terms of s 9 of that Act to extend
the period within which it might be entertained. The relief
sought by WC Nickel
was, moreover, not in the nature of a
permissible collateral challenge that is not subject to the time bar
in terms of PAJA.
The court a quo was consequently precluded by
law from entertaining WC Nickel’s application for what, in
substance,
was PAJA-regulated judicial review relief.
[53]
In view of the uncertainty on the evidence
about whether or not the application had been lodged, I should add
that the same principles
would be applicable to the same effect if
the court were to approach the matter on the assumption that the
administrative decision
in issue was one by the regional manager
declining to receive the application.
[54]
The court a quo was bound to have had
regard
mero motu
to the considerations concerning the WC Nickel’s failure
to exhaust its internal remedies or timeously seek review-related
relief; cf.
CUSA v Tao Ying Metal
Industries and Others
[2008] ZACC 15
;
2009 (2) SA 204
(CC),
2009 (1) BCLR 1
, at para. 68. There were thus two
self-standing bases in law on which the relief granted in terms of
para. 4 of
the order made in the court a quo should not have
been afforded to WC Nickel.
[55]
When confronted with the difficulties for
WC Nickel’s case that I have just described, its counsel
sought to argue that
the (unimpugned) orders by the court a quo
reviewing and setting aside the decision of the Department to
recognise and register
the extended renewal of Hondekloof’s
prospecting rights had resulted in the regional manager’s
decision, based on the
hypothesis of the existence of such rights in
Hondekloof, to refuse to accept WC Nickel’s application,
falling away.
The argument was predicated on counsel’s
understanding of the import of the
dicta
in
Oudekraal Estates (Pty) Ltd v City Of
Cape Town and Others
[2004] ZASCA 48
,
[2004] 3 All SA 1
(SCA),
2004 (6) SA 222
, at para. 31, and
Seale
v Van Rooyen NO and Others; Provincial Government, North West
Province v Van Rooyen NO and Others
[2008] ZASCA 28
, [
[2008] ZASCA 28
;
2008]
3 All SA 245
(SCA),
2008 (4) SA 43
,
at para. 13. For the reasons that follow I consider that
the argument was misconceived.
[56]
The relevant passage in
the judgment in
Oudekraal
actually extends
from para. 26. The court endorsed the analysis by
Professor Christopher Forsyth in his essay ‘“
The
Metaphysic of Nullity”: Invalidity, Conceptual Reasoning and
the Rule of Law
’
[30]
in respect of the debate about the appropriateness of the
differential characterisation of administrative decisions as either
‘void’ or ‘voidable’ on account of their
legal invalidity. Dealing with the status of a decision made
on
the assumption by a second actor of the validity of an antecedent
decision by a first actor, Forsyth opined that ‘[t]
he
crucial issue to be determined is whether that second actor has legal
power to act validly notwithstanding the invalidity of
the first
act
’.
Applying that approach to the question whether the City of Cape Town
was entitled, on the basis of its contention
that the proclamation of
the Oudekraal township had been invalid, to disregard an unlawfully
approved subdivision when called upon
by the landowner to consider an
application for the provision of services, the court held at para. 31
that ‘[t]
he
proper enquiry in each case - at least at first - is not whether the
initial act was valid but rather whether its substantive
validity was
a necessary precondition for the validity of consequent acts.
If the validity of consequent acts is dependent
on no more than the
factual existence of the initial act then the consequent act will
have legal effect for so long as the initial
act is not set aside by
a competent court
’.
The decision to proclaim the township – an act quite discrete
from the antecedent approval of the subdivision
- did not require the
Administrator to enquire into the legal validity of the antecedent
decisions concerning the approval of the
township, the acceptance of
the general plan by the surveyor-general and its registration by the
registrar of deeds. The
factual existence of those decisions
was sufficient foundation for the validity of the decision to make
the proclamation.
The proclamation fell to be regarded as valid
until and unless the subdivision approval were set aside. But
if the approval
of the subdivision were to be set aside as legally
invalid, the consequent decisions would fall with it because they
could only
have legal effect if the initial decision, which was their
legal foundation, survived unimpugned.
[57]
The passage in
Seale
relied upon by WC Nickel’s counsel did no more than
confirm that axiom. Cloete JA, writing for the court, stated
‘
I
think it is clear from
Oudekraal
,
and it must in my view follow, that if the first act is set aside, a
second act that depends for its validity on the first act
must be
invalid as the legal foundation for its performance was
non-existent
’.
[58]
The regional manager’s decision not
to accept WC Nickel’s application was squarely and
entirely founded in the
provisions of s 16 of the Act. They
were the legal foundation for the exercise of the decision-making
power. What triggered
the exercise by the regional manager of
her decision-making powers under that provision was the lodging by
WC Nickel of its
application. The exercise of the
decision-making power was not founded on any antecedent
administrative decision. The
regional manager’s
apprehension of the effect of a prior determination by the minister
of an application by a third party,
such as Hondekloof, could, and
indeed did, affect her determination whether to accept the
application or not. But such antecedent
decision was not the
legal foundation for the exercise by her of her statutory power.
The prior award of prospecting rights
to Hondekloof, was not a legal
sine qua non
for the exercise by the regional manager of her decision-making
powers in terms of s 16. The supposed possession of
the
prospecting rights by Hondekloof was merely a fact (amongst several
others) that the regional manager was required to take
into account
in how she exercised the power, not its legal foundation. By
contrast, the legal foundation of the administrator’s
decision
to proclaim the Oudekraal township was the prior approval of the
relevant subdivision; without a subdivisional approval,
there would
be no township to proclaim.
[59]
The refusal to accept the application on
the ground that Hondekloof was still possessed of the prospecting
rights was palpably wrong,
but nonetheless legally dispositive of
WC Nickel’s application. A subsequent determination
at the instance of
a third party, like Shanduka, that demonstrated
that the regional manager had misconceived the status of Hondekloof’s
rights
when she decided not to accept WC Nickel’s
application would not void her decision. It would merely
demonstrate
that in the legal exercise of her decision-making power,
the regional manager may have arrived at an incorrect result.
As
discussed, the Act provides, in s 96, an appeal remedy to
applicants who are aggrieved by incorrect decisions.
[60]
By timeously challenging the decision in an
appropriate manner, WC Nickel would have kept its application
alive provisionally.
When it failed to do so, the disposal of
its application became final and beyond challenge. Any
subsequent determination
of the validity or invalidity of an
administrative decision that had been informative of the regional
manager’s decision
not to accept its application would not have
the effect of resuscitating the application, or altering its
determination.
The second actor principle discussed in
Oudekraal
and
Seale
at the places cited by counsel has no bearing whatsoever in the given
circumstances.
[61]
In the result it is clear that the court a
quo erred in granting the relief set out in paragraph 4 of its order
and there was also
no proper basis for its decision to accede to
WC Nickel’s application to rescind the orders granted in
favour of Shanduka
in case no. 12625/2013. The appeal must
therefore be upheld. The government parties’ counsel
indicated,
fairly, I think, that no order should be made in respect
of their costs in the appeal.
[62]
In the event of its appeal succeeding,
Shanduka sought, amongst other relief, an order directing the
regional manager to comply
with the order made by Henney J in
case no. 12625/2013. That does not appear to be necessary, or
appropriate.
The regional manager withdrew his application for
the rescission of that order and in the order to be made on appeal
WC Nickel’s
application for its rescission will be
dismissed. The Department has indicated that it is willing to
proceed with the acceptance
of Shanduka’s application for
prospecting rights subject only to the removal of the obstacle
potentially posed by WC Nickel’s
intervening application.
The order to be made on appeal will remove that obstacle. The
order made by Henney J
remains of full force and effect, and
amenable to enforcement in the same manner as any other court order.
Making an order
to direct compliance with it would be a
supererogation.
[63]
The
following order is made:
1.
The
appeal is upheld.
2.
The
first respondent shall be liable for payment of the appellant’s
costs of suit in the appeal.
3.
The
second, third and fourth respondents shall bear their own costs in
the appeal.
4.
Paragraphs 4, 5, 6 and 8 of the order made
by the court a quo on 1 December 2015 are set aside and replaced with
the following:
i.
The
withdrawal by the applicant in the application in case no. 20800/2013
(the regional manager: Department of Mineral Resources
(Western
Cape)) for the rescission of the orders in case no. 12625/2013 made
on 20 August and 9 September 2013, respectively, is
noted.
ii.
The
regional manager: Department of Mineral Resources (Western Cape) is
ordered to pay the respondent’s (Shanduka Mineral
Resources
(Pty) Ltd) costs of suit in the rescission application.
iii.
The
application by the applicant in the intervening application in case
no. 20800/2013 (Western Cape Nickel Mining (Pty) Ltd)
for the
relief set out in paragraphs 2-5 of its notice of motion in the
intervening application is dismissed with costs.
____________________
A.G. BINNS-WARD
Judge of the High Court
I agree. It is so ordered.
_____________________
S. DESAI
Judge of the High Court
I agree.
_____________________
B.P. MANTAME
Judge of the High Court
APPEARANCES
Appellant’s
counsel:
L.J. Becker
Appellant’s attorneys:
Malan Scholes Inc
Johannesburg
Werksmans
Attorneys
Cape
Town
First respondent’s counsel:
H.M. Viljoen
C.T.
Vetter
First respondent’s attorneys:
Mervyn Taback Inc
Johannesburg
Dunster
Attorneys
Cape
Town
Second, third and fourth
respondents’ counsel:
I. Jamie SC
K.H.
Warner
Second, third and fourth
respondents’ counsel:
The State Attorney
Cape
Town
[1]
The
regional manager is the second respondent in this appeal.
[2]
It is very arguable that Hondekloof should have been joined as a
party to the application, but nothing turns on the point because
Hondekloof, having been joined in the subsequent proceedings
described later in this judgment, did not take the point and (so
we
were advised by counsel for WC Nickel on appeal, who had been
briefed for both WC Nickel and Hondekloof in the court a quo)
indicated that it abided the judgment of the court a quo.
Hondekloof also took no active part in the appeal proceedings.
Hondekloof appears to accept that its prospecting rights expired on
14 February 2013.
[3]
As at
11 March 2013, s 16(2) of the Act had provided:
The Regional Manager must
accept an application for a prospecting right if-
(a)
the requirements contemplated in subsection
(1) are met; and
(b)
no other person holds a prospecting right,
mining right, mining permit or retention permit for the same mineral
and land.
(The
provision was amended in terms of s. 12 (b) of Act 49 of 2008
with effect from 7 June 2013.)
[4]
The
minister is the third respondent in this appeal.
[5]
The
deputy director-general is the fourth respondent in this appeal.
[6]
Hondekloof’s
subsidiary, Western Cape Nickel Investments (Pty) Ltd, holds a 26%
shareholding in WC Nickel (the remaining
shares being owned by
Scorpion Mineral Processing Coal Mining and Processing (Pty) Ltd).
The deponent to the founding affidavit
in WC Nickel’s
intervention application stated that the interests of the two
companies were ‘aligned’.
[7]
See
para. [5]
above.
[8]
The
difficulties that the approach adopted by WC Nickel presented were
broached in paragraphs 8 and 9 of the answering affidavit
of
Mr. G.M. van Aswegen,
jurat
10 June 2015, delivered by Shanduka in response to the intervening
application, to which WC Nickel gave an extensive response
in
reply. I do not find it necessary for present purposes to go
into the detail.
[9]
An
order made by Van Staden AJ on 6 October 2014 admitted
WC Nickel as the fifth respondent in case no. 20800/13
and
directed that the relief sought in paras. 2-5 of the notice of
motion in the intervening application would ‘
stand
over for determination at the hearing of the main application
’.
[10]
See
para. [7]
above.
[11]
The
year in which the company was incorporated may be deduced from its
registration number.
[12]
See
note 6
above.
[13]
Section
16(1) of the Act read as follows at the time (before its amendment
with effect from 7 December 2014):
Any person who wishes to
apply to the Minister for a prospecting right must lodge the
application-
(a)
at the office of the Regional Manager in whose
region the land is situated;
(b)
in the prescribed manner; and
(c)
together with the prescribed non-refundable
application fee.
In
terms of reg. 2(1) of the
Mineral and Petroleum Resources
Development Regulations, ‘
An
application for any
permission, right or permit made in terms of the Act must be lodged
by submitting an appropriate compatible electronic
completed form
contained in Annexure I,
together
with the prescribed Annexures in compatible electronic format
with the Regional Manager in whose region the land is situated or to
the designated agency, as the case may be-
(a) by hand;
(b) registered post; or
(c)
electronically on the Department's official website address or the
relevant address specified in the appropriate form
’
.
(Underlining supplied for highlighting purposes.)
(The
‘
form contained in Annexure I
’ indicates,
according to its tenor, that only a hardcopy application will be
acceptable. There is therefore an apparent
internal
contradiction in the regulations. It is not necessary for the
purpose of this judgment to decide how the practical
difficulty
presented by the contradiction should be addressed.)
[14]
See
reg. 2(2) and reg. 5(1)(c) of the
Mineral and Petroleum Resources
Development Regulations.
[15
]
See
note 3
above.
[16]
Section
16(3)
read as follows at the time (prior to its substitution in
terms of
s. 12
(c) of Act 49 of 2008, with effect from 7 June 2013):
If the application does not
comply with the requirements of this section, the Regional Manager
must notify the applicant in writing
of that fact within 14 days of
receipt of the application and return the application to the
applicant.
[17]
Mr. Philpot
claimed that the Department’s position was arguably supported
by the terms of certain amendments to the
Act in terms of Act 49 of
2008, which introduced a definition of ‘
effective
date
’
to mean ‘
the
date on which the relevant permit is issued or the relevant right is
executed
’.
The amendment was brought into operation with effect from 7 June
2013.
The
facts in
Mawetse
supra, involved a renewal of rights that had been granted well
before the amending legislation came into operation.
[18]
Paragraphs 1 – 3 of the order made by the court a quo.
[19]
See
Plascon
-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A), at 634E-635C.
[20]
It
was limited to Koen’s averment that he had found no hard copy
in his office when he returned from his leave. That
was
arguably insufficient to create a real dispute of fact in the face
of Goldsmith’s positive averment that he had left
one there.
The papers as a whole make it evident that it was not unknown for
documents to go astray in the regional manager’s
office.
[21]
See
note 13
above.
[22]
See
note 13
above.
[23]
It is
at least arguable that lodging an application that does not comply
with ‘
the
prescribed manner
’
is effective. Subsections (2)(a) and (3) of s 16 suggest
that an application that has been lodged that does
not comply with
s 16(1)(b) would fall to be considered, but not accepted.
[24]
In
his heads of argument Shanduka’s counsel sought to draw a
distinction between the
lodging
of
an application in terms of s 16 of the Act and its
receipt
in terms of s 9. I am not persuaded that there is a valid
basis for such distinction. The lodging of an application
in
terms of s 16 results in its contemporaneous receipt. I
therefore agree with the submission by WC Nickel’s
counsel that receipt for the purposes of the Act is the corollary of
lodging. This is confirmed by the imposition, in terms
of
s 16, of an obligation on the regional manager to accept the
application that has been lodged if it complies with the
criteria in
s 16(2), and to notify an applicant within 14 days of receiving
it if the application cannot be accepted by
reason of its failure to
so comply. Accordingly, if a regional manager declines to
process an application that has been
lodged by reason of its failure
to comply with the criteria in s 16(2), she is refusing to
‘accept’ the application
within the meaning of the Act.
[25]
See
note 3
above.
[26]
Internal
remedies under the Act would not include negotiating a compromise
outcome with the regional manager; see e.g.
New
Adventure Shelf 122 (Pty) Ltd v Commissioner of the South African
Revenue Service
[2016] ZAWCHC 9
;
[2016] 2 All SA 179
(WCC), at para. 26.
[27]
At
para. 20.
[28]
Cf.
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining & Development
Company Ltd and Others
[2013] ZACC 48
,
2014 (3) BCLR 265
(CC),
2014 (5) SA 138
, at
paras.115-136.
[29]
At
para. 26. See also
City
of Cape Town v South African National Roads Agency Ltd and Others
[2015] ZAWCHC 135
,
2015 (6) SA 535
(WCC),
2016 (1) BCLR 49
,
[2016] 1
All SA 99
, at para. 16, and
New
Adventure Shelf 122 (Pty) Ltd v Commissioner of the South African
Revenue Service
supra, at para. 24.
[30]
Published in
The
Golden Metwand and the Crooked Cord: Essays on Public Law in Honour
of Sir William Wade QC
(Christopher Forsyth and Ivan Hare (eds), Clarendon Press.