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[2010] ZAGPPHC 535
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Myeleti Minerals (Pty) Ltd v Minister of Minerals and Energy and Others (20326/2007) [2010] ZAGPPHC 535 (6 April 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
CASE NO. 20326/2007
DATE: 6 April 2010
In the matter
between:
MYELETI MINERALS
(PTY)
LTD
.........................................................................................
APPLICANT
and
MINISTER
OF MINERALS &
ENERGY
.................................................................
..
1
ST
RESPONDENT
DIRECTOR-GENERAL
: DEPARTMENT OF
MINERALS &
ENERGY
.................................................................................................
2
nd
RESPONDENT
GENORAH RESOURCES
(PTY)
LTD
..........................................................................
3
rd
RESPONDENT
DEPUTY DIRECTOR
GENERAL - MINERAL REGULATION:
DEPARTMENT OF
MINERALS
& ENERGY
..............................................................
4
th
RESPONDENT
REGIONAL MANAGER
- LIMPOPO REGION:
DEPARTMENT OF
MINERALS
& ENERGY
..............................................................
5
th
RESPONDENT
JUDGMENT
FABRICIUS AJ
1.
In terms of an amended notice of motion the applicant herein seeks
relief essentially against the 5
th
respondent in the context of his decision to
“
award”
a
prospecting
right to 3
rd
respondent in place of itself. Only the 3
rd
respondent filed opposing affidavits, whilst the relevant rule 53
record of the rules of this Court is before me as well. It appears
that 5
th
respondent is deceased, and in the absence of any version of the 2
nd
and 4
th
respondent, I propose to decide this application on the objective
facts, and the version put before me by applicant. Applicant's
case
was put to me essentially as follows: the Minerals and Petroleum
Resources Development Act, No 28 of 2002, provides that applications
for prospecting rights must be processed in the chronological order
in which they have been received by the Regional Manager. Applicant
applied for a prospecting right over the farm Hoepakrantz 2019 KT
(“the farm’)
on
28 July 2005. The application was subsequently approved/granted on 17
July 2006. The effect of that grant was that the prospecting
right in
respect of the farm could not be granted to anyone else. Despite
this, and after the 3
rd
respondent applied on 6 February 2006 for a prospecting right over
the farm and certain adjoining properties, the prospecting right
in
respect of the farm was inexplicably granted to it. Although
respondents are under a duty to explain how and why this came about,
they have not, as said, filed any affidavits. Consequently, what on
the face of it is unlawful and unreasonable, must be regarded
conclusively to be so. It was contended that once the grant of the
prospecting right the applicant was made, it could not be reversed,
withdrawn or refused. Having regard to the mentioned chronology of
the relevant applications, the grant of the same right to the
3
rd
respondent could not be validly and legally made. It was thus null
and void and of no force and effect. In addition, the relevant
facts
are common-cause, and in any event 5
th
respondent admitted in the course of correspondence, that the
prospecting right ought not to have been granted to the 3
rd
respondent and that it occurred as a result of an error.
2. Before dealing
with applicant’s contentions and the law, it is convenient at
this stage to briefly refer to 3
rd
respondent’s
submissions:
2.1
The application was instituted outside the statutory period
prescribed by the provisions of Section 7(1) of the Promotion of
Administrative Justice Act, No 3 of 2000 (“
PAJA’y,
2.2
No decision
“
to
award”
the
relevant mineral prospecting rights had been made to applicant;
2.3 It would not be
just and equitable, in any event, to grant applicant any relief at
this late stage, as such relief would not
be just and equitable as
required by the provisions of Section 8 of PAJA;
2.4 The relief
sought was in any event also not competent in as much as 3
rd
respondent was granted a prospecting right over five farms, of which
Hoepekrantz was only one, and neither the applicant nor I
could
excise out of this decision a portion in respect of which it
allegedly had been awarded a prospecting right.
3. It is in my view
that there is merit in all of 3
rd
respondent’s
contentions. The application was not brought within the 180 day
period stipulated in PAJA, and in this context
it is significant to
note that applicant did not state when precisely the relevant
decision which is the subject matter of this
application came to its
notice. On its own version the 5
th
respondent purportedly
refused the right which had already been granted to it on 17 July
2006. On 27 October 2006 applicant was
given written notice that its
application had been unsuccessful. The original notice of motion is
dated May 2007. The delay is
to some extent sought to be explained by
the fact that applicant purported to file an appeal in terms of
Section 96 of the Act
with the Director-General, also outside the
prescribed period. Furthermore, such appeal was incompetent in as
much as the decision
to award a prospecting right lay with the
Minister on the one hand, and secondly, that if indeed a lawful
decision had been taken
by the Regional Manager, the appeal would lie
to the Director-General. No proper internal remedy, if one indeed
existed, was therefore
exercised, and in any event no proper
application for condonation was before Court. The regulations under
the Act (Government Notice
R527 of 23 April 2004) stipulated that any
appeal under Section 96 of the Act must be brought within 30 days of
the person having
become aware or should reasonably have been aware
of the particular administrative decision concerned.
4. Section 96(4)
makes Section 7 of PAJA applicable to any Court proceedings
contemplated in Section 96 of the Act. Even in the
absence of Section
96(4), Section 7 of PAJA would have applied in any event, and I am of
the view that the relevant 180 day period
has not been complied with,
and that there are insufficient grounds before me to justify a
variation of this period in the interest
of justice.
5.
On the objective facts of this application, the 5
th
respondent did no more, and could do no more than acting in terms of
Section 9 of the Act. He received applicant’s application
in
terms of Section 9 of the Act, thereafter acted in terms of Section
10 and 16, but what is abundantly clear objectively speaking,
is that
the Minister of Minerals and Energy did not consider the application,
nor grant it. [See: Section 16(5) read with Section
17(1) of the
Act]. Any
“
grant"
of
a prospecting right to applicant in this context had not become
effective in law, nor were any terms and conditions stipulated
that
were relevant to the granting of such right. [See: Section 17(6) of
the Act], Neither was any such right registered with the
Mining
Titles Office at all. [See: Section 19(2) of the Act]. In the
premises it is clear that no prospecting right in respect
of the
mentioned farm had been granted to applicant.
See:
Meepo v Kotzé
2008(1) SA 104 (N.C.) at para 46
- 48.
6. In terms of the
provisions of Section 8(1) of PAJA I must grant an order that is just
and equitable. It would not be just and
equitable if I now excise a
portion of the farm over which the 3
ra
respondent had been
granted prospecting rights. This is so having regard to financial
considerations and costs incurred by the
3
rd
applicant up
to date, the public interest and finality of administrative
decisions, and the effluxion of time that is so obvious
herein.
See:
Chairperson.
Standing Tender Committee v JFE Saoela
Electronics
(Pty) Ltd
2008(2)
SA 638 (SCA) at par 28.
It would not be just
and equitable in my view if I were to grant an order in favour of
applicant in this case on any of the bases
suggested. In as much as I
do have a discretion in this regard, I decline to exercise it in
favour of applicant, even if there
were sufficient facts before me to
support its claim herein.
7. For all of the
abovementioned reasons the application is dismissed with costs.
SIGNED AT PRETORIA
ON THIS THE 6
th
DAY OF APRIL 2010.
FABRICIUS
ACTING JUDGE
NORTH GAUTENG
HIGH COURT
PRETORIA