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[2011] ZAGPPHC 118
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BHP Billiton Energy Coal South Africa Limited v Minister of Mineral Resources and Other (67536/2010) [2011] ZAGPPHC 118; 2011 (2) SA 536 (GNP) (15 February 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
No.67536/2010
DATE:15/02/2011
BHP
BILLITON ENERGY COAL SOUTH AFRICA
LIMITED
........................................................................................................................
Applicant
and
MINISTER
OF MINERAL
RESOURCE
............................................................
First
Respondent
DIRECTOR-GENERAL OF THE DEPARTMENT OF
MINERAL
RESOURCES
.............................................................................
Second
Respondent
DEPUTY DIRECTOR-GENERAL OF THE DEPARTMENT
OF
MINERAL
RESOURCES
...........................................................................
Third
Respondent
REGIONAL MANAGER: MPUMALANGA REGION,
DEPARTMENT
OF MINERAL
RESOURCES
...............................................
Fourth
Respondent
FINISHING
TOUCH TRADING 163 (PTY)
LIMITED
.......................................
Fifth Respondent
JUDGMENT
Van
der Byl, AJ:-
Introduction
[1]
This is an application, lodged as a matter of urgency, by the
Applicant, BHP Billiton Coal South Africa Limited, for a temporary
interdict.
[2]
The interdict sought is one interdicting and restraining -
(a)
the Fifth Respondent, Finishing Touch Trading 163 (Pty) Ltd, from
submitting any application for a mining right for coal in
terms of
section 22 of the Mineral and Petroleum Resources Development Act,
2002 (Act 28 of 2002) ("the Ac?), in respect of
the properties
set out in Annexure "A" ("the properties") to the
Notice of Motion;
(b)
the First and Second Respondents, the Minister and Director-General
of Mineral Resources, from granting a mining right for coal
to any
third party, including the Fifth Respondent, in terms of the said
section 22 in respect of the properties;
(c)
the Fourth Respondent, the Regional Manager, Mpumalanga region of the
Department of Mineral Resources, from receiving or accepting
or
processing any applications for a mining right for coal in respect of
the properties from any third party, including the Fifth
Respondent,
in terms of the said section 22, pending the final determination of-
(a)
the appeal by the Applicant in terms of section 96 of the Act to the
Second Respondent against the decisions purportediy made
in terms of
section 17 of the Act to grant to the Fifth Respondent prospecting
rights for coal in respect of the
properties
set out in Annexure "B" to the Notice of Motion (being
properties overlapping the properties) and any subsequent
appeal to
the First Respondent in the event of the first-mentioned appeal being
refused; and
(b)
judicial review proceedings that may be brought by the Applicant
against any or all of the Respondents seeking the review and
setting
aside of any decision taken on appeal as aforesaid in the event of
the dismissal of the appeals as aforesaid or, in the
event of the
appeals not being resolved within a reasonable time of this order.
[3]
The First, Second, Third and Fourth Respondents elected not to oppose
the application, but the matter is vigorously opposed
by the Fifth
Respondent.
[4]
The Fifth Respondent, furthermore, launched a counter application (p.
215 of the record) seeking, similarly as a matter of urgency,
in
addition to the usual order of costs, an order -
(a)
consolidating this application and an application launched by the
Applicant against the First, Third and Fourth Respondents
under case
No. 2306/2006 (to which I will refer below) (prayer 2);
(b)
declaring that no prospecting rights were awarded to the Applicant on
3 October 2006 (prayer 3);
(c)
rescinding and setting aside the order granted under Case No.
2306/2006 on 3 October 2006 (prayer 4);
(d)
declaring that the Fifth Respondent is the legal holder of the
prospecting rights awarded to it on 19 September 2006 (prayer
5).
[5]
I, because of the extent of the application, reserved judgment on 8
December 2010, and the Fifth Respondent agreed not to exercise
any
rights in terms of the prospecting rights referred to in the relief
claimed or to apply for any mining right so referred to
until I have
handed down judgment in this matter. The Applicant similarly agreed
not to so exercise the prospecting rights granted
to it in terms of
the court order dated 3 October 2006.
Relevant
facts of the matter
[6]
It is an undisputed fact that the Applicant (at the time known as
Ingwe Collieries Limited) was, immediately before the commencement
of
the Act on 1 May 2004, the holder of an "unused old order right'
(as defined in item 1 of Schedule II to the Act) with
respect to the
properties, and was because of a pending application for a
prospecting permit on the date of commencement of the
Act, deemed, as
is provided in item 3 of that Schedule, to have applied for a
prospecting right in respect of the properties. The
Applicant on 28
October 2004 submitted the information required by the said item 3 in
order for its application for a prospecting
rights to be processed in
terms of section 16 of the Act.
[7]
On 12 September 2005 the Fourth Respondent advised the Applicant that
its application for a prospecting right had been refused
in terms of
section 17(2)(b) of the Act.
[8]
The Applicant, thereupon, under Case No. 35324/2005 on 10 November
2005 launched an application against the Minister and
Director-General
of Mineral Resources and the Regional Manager,
Mpumalanga region of the Department of Mineral Resources (who are, as
already indicated,
the First, Second and Fourth Respondents in this
matter) for, and obtained, an interim order (granted by Preller J)
interdicting
and restraining them from accepting any application for,
and granting, any rights in respect of coal in terms of section 14,
17
or 23 of the Act in respect of the properties, pending the final
determination of review proceedings to be launched by the Applicant
against the Respondents seeking the review and setting aside of the
aforesaid decision "on condition that such review proceedings
shall be initiated by no later than Wednesday, 25 January 2006".
[9]
It needs to be mentioned that before the granting of this interim
order the State Attorney on 9 November 2005 came on record
on behalf
of the three Respondents indicating that the Respondents do not
intend opposing the application and will abide by the
decision of the
Court.
[10]
On 25 January 2006 the review application envisaged at the time the
interim order was granted was lodged with, and issued by,
the
Registrar under Case No. 2306/2006 and served by the Applicant's
attorney on the State Attorney (who was, as already indicated,
the
attorney of record in the proceedings lodged under Case No.
35324/2005, and who, before service, telephonically confirmed to
the
Applicant's attorney that he was authorized to accept service of the
review proceedings on behalf of the First, Second and
Fourth
Respondents - see: Annexure RA2, record p. 249).
[11]
The three Respondents eventually, through the State Attorney, filed a
notice of intention to oppose the review application,
but they,
however, filed neither a record of the proceedings as provided in
Rule 53 nor any answering affidavits.
[12]
The review application was then set down by notice of set down served
on the State Attorney on 7 September 2006, for hearing
on 3 October
2006.
[13]
On 3 October 2006 this Court (Van der Merwe J) granted an order -
(a)
setting aside the refusal of the Applicant's prospecting right
application;
(b)
granting the Applicant a prospecting right in respect of the
properties.
[14]
Thereafter, almost three years later, during September 2010, it came
to the Applicant's notice that two prospecting rights
were on 19
September 2006 and 22 September 2006 granted by the Second Respondent
(as delegatee of the First Respondent) to the
Fifth Respondent over
the properties shown in brown on Annexu re FA12, record p. 115, which
largely overlap with the properties
{"the overlapping areas").
[15]
The Appiicant, thereupon, on 1 October 2010 lodged an appeal against
the grant of the two prospecting rights to the Fifth Respondent
in
terms of section 96 of the Act.
[16]
As the holder of a prospecting right has in terms of section 19(1
)(b) of the Act an exclusive right to apply for and be granted
a
mining right in respect of the area to which the prospecting right
relates, the Applicant unsuccessfully sought an undertaking
from the
Fifth Respondent not to apply for a mining right pending the
finalization of Applicant's appeal.
[17]
It also unsuccessfully sought, in its appeal and in letters addressed
to the the other Respondents, in terms of section 96(2)
of the Act
the suspension of the Second Respondent's decision pending the
determination of the appeal.
[18]
The Applicant, thereupon, launched this application as a matter of
urgency.
Fifth
Respondent's case
[19]
The Fifth Respondent's case on the main application as well as in the
counter-application is based on the one or the other
of two
contentions, namely -
(a)
that the review proceedings envisaged in the order granted on 10
November 2005 were not "initiated" on 25 January
2005 as
ordered in that order in consequence of which the interim interdict
granted in terms thereof had lapsed so that the First,
Second or
Fourth Respondent was on 19 September 2005 and
22
September 2005 not restrained from accepting, considering and
granting the Fifth Respondent's application for a prospecting permit
in respect of the overlapping areas;
(b)
that the Applicant was in any event not entitled to the order granted
on 3 October 2006 because of the provisions of section
96(3) of the
Act.
[20]
I deal seriatim with these issues.
The
question whether the interim order granted on 10 November 2005 has
lapsed
[21]
As is apparent from the order, the interim order granted under Case
No. 35324/2005 (by Preller J) was indeed subject to the
condition
that review proceedings should be "initiated" by no later
than Wednesday, 25 January 2006.
[22]
It is an accepted fact that if the review proceedings were not so
initiated the interim order would have lapsed and the First,
Second
or Fourth Respondent would after that date not have been interdicted
from granting any prospecting rights to any other person,
as had been
done on 19 September 2006 and 22 September 2006 when the prospecting
rights in question had in fact been granted to
the Fifth Respondent.
[23]
On the question whether the Applicant had under the circumstances
"initiated' the proceedings on or after 25 January 2006
two
issues call for consideration, namely -
(a)
firstly, whether the "issue" (or the lodging or filing with
the Registrar) of the review proceedings on 25 January
2006
constitutes the initiation of the proceedings as envisaged in the
court order dated 10 November 2005; and
(b)
secondly, whether, notwithstanding the requirement that service
should be effected by the sheriff, the hand delivery of the
papers by
the Applicant's attorney to the State Attorney on 25 January 2006
constitutes service as envisaged in Rule 4(1)(aA) of
the Uniform
Rules.
[24]
As to the first of these issues, it w as contended on behalf of the
Fifth Respondent that an application can only be initiated
when it is
properly served by the Sheriff as provided by the provisions of Rule
4.
I
have been referred to the decision in Tladi v Guardian National Ins
Co Ltd
1992 (1)
SA
76
(T) in which it was held that the requirement that, in the context
of section 14(3) of the Motor Vehicle Accidents Act, 1986, for
leave
to bring a claim for compensation after it had become prescribed in
terms of s 14(1) of the Act, "application is (to
be) made"
within the prescribed period requires of an applicant "not only
to issue his application and file it with the
Registrar but also to
serve it".
In
my opinion the circumstances of that case are distinguishable from
the circumstances in this matter in so far as the Applicant
was
required in terms of a court order to "initiate", as
opposed to the requirement in that matter in terms of a particular
legal provision to make application within a prescribed period,
proceedings not later than a particular date.
It
has been held in various cases, for differing reasons, that an action
commences when the summons is issued R v Bradshaw
1925 CPD 53
at 55;
Marine & Trade Ins Co Ltd v Reddinger
1966 (2) SA 407
(A) at
413D-E Labuschagne v Labuschagne; Labuschagne v Minister van Justisie
1967 (2) SA 575
(A) at 584A-D; Jute Express, MV v Owners of the Cargo
on Board the MV Jute Express
1992 (3) SA 9
(A) at 16F).
Applications
on the other hand may, depending on the kind of application, commence
in various ways. I can, however, on the analogy
of actions, see no
reason why an application can not be regarded as having commenced
when lodged or filed with (or issued by) the
Registrar. The lodging,
filing or issuing of an application by an applicant can in my opinion
by no means of no consequence. I
can see no reason why the issue of
an application or the lodging or filing of the application papers
with the Registrar should
not be regarded as the initiation of the
proceedings envisaged in the application.
The
service of an application is merely a further step, as in the case of
actions, to get the respondent involved in the litigation
{Marine and
Trade Insurance Co. v Reddinger 1966(2) SA 407 (A) at 413D-E). To
hold that application proceedings can only be regarded
to have been
commenced on service of the papers would not only create an
incomprehensible difference between the commencement of
actions and
the commencement of applications and would be decidedly harsh,
unjust, unreasonable and glaringly absurd, as an applicant
clearly
would ordinarily have no power over the service of his, her or its
application.
I
am accordingly satisfied that the Applicant indeed initiated the
review proceedings in question at the time it was issued by or
lodged
or filed with the Registrar being a first step in a process to
commence the proceedings.
This
being the position the First, Second, or Fourth Respondents were on
19 September 2006 interdicted from granting the prospecting
rights in
question to the Fifth Respondent in respect of the overlapping areas.
[25]
In the event of I am being wrong on my findings in respect of the
first question, the second question arises, namely, whether
the
service of the review application on the State Attorney constitutes
service in terms of Rule 4. In this regard it is the Applicant's
contention that such service has been effected in accordance with the
provisions of Rule' 4(1)(aA) which reads as follows:
"(aA)
Where the person to be served with any document initiating
application proceedings is already represented by an attorney
of
record, such document may be served upon such attorney by the party
initiating such proceedings.".
It
was the contention on behalf of the Fifth Respondent that Rule 4(1
)(aA) implies that proceedings are initiated by service of
the
document initiating the proceedings.
I
find myself unable to agree with this contention.
It
is apparent that this Rule applies to proceedings already instituted
(Herbstein and Van Winsen, The Civil Practice of the High
Courts of
South Africa, Volume 1, 5th edition, pp. 343 and 359) so that it in
effect applies to ancillary and interlocutory applications.
It
is the Applicant's contention that the interdict proceedings were
brought pending the initiation of the review proceedings not
later
than 25 January 2007 and that the interdict proceedings are indeed
interlocutory to the main application, being the review
proceedings.
In
my opinion it is obvious that the interdict proceedings were
instituted on a dispute relating to the refusal of prospecting rights
in respect of which the Applicant had the exclusive right to apply
and had as its aim to restrain the First, Second and Fourth
Respondents from granting any rights mining rights to any other
person pending the institution of review proceedings challenging
the
refusal to grant the Applicant such prospecting rights. As such those
proceedings were, so to speak, pendente lite or incidental
to the
review proceedings which were to be initiated not later than 25
January 2006 (see: South Cape Corporation (Pty) Ltd v Engineering
Management Services 1977(3) SA 534 (A) at 549G-H). It had at its aim
to protect the very interest which formed the subject of the
review
application until such time as the review application has been
pronounced upon.
I
am accordingly satisfied that the Applicant's attorney of record was
by virtue of Rule 4(1)(aA) entitled to serve the review proceedings
on the State Attorney who was on record in the interdict proceedings,
who eventually came on record in the review proceedings and
who,
incidentally, in effect confirmed that they were still on record and
agreed to accept serve on behalf of the Respondents.
[26]
In the circumstances I am satisfied that the First, Second and Fourth
Respondents acted contrary to and in contempt of the
interdict
granted on 10 November 2005 in having granted the prospecting rights
in question to the Fifth Respondent on 19 September
2006 and 22
September 2006.
[27]
This brings me to the counter application.
The
counter application
[28]
As already indicated, the Fifth Respondent seeks an order -
(a)
consolidating this application and an application launched by the
Applicant against the First, Third and Fourth Respondents
under case
No. 2306/2006 (prayer 2);
(b)
declaring that no prospecting rights were awarded to the Applicant on
3 October 2006 (prayer 3);
(c)
rescinding and setting aside the order granted under Case No.
2306/2006 on 3 October 2006 (prayer 4);
(d)
declaring that the Fifth Respondent is the legal holder of the
prospecting rights awarded to it on 19 September 2006 (and, I
accept,
on 22 September 2005) (prayer 5).
[29]
This application is based on the contention that the order granted on
3 October 2006 under Case No. 2306/2006 by Van der Merwe
J (as he
then was) was erroneously sought or granted in the absence of the
Fifth Respondent as a result, particularly, of the following,
namely
-
(a)
that the interim interdict granted under Case No. 35324/2005 on 10
November 2005 by Preller J had lapsed on 25 January 2006
because the
review proceedings were initiated on 26 January 2006;
(b)
that the prospecting rights were granted to the Fifth Respondent on
19 September 2006 (and 22 September 2006) prior to the granting
of
the order under Case No. 2306/2006 and that had the Court been aware
that the rights had so been granted it would not have granted
this
order;
(c)
that the learned Judge in granting the relief claimed by the
Applicant under Case No. 2306/2006 erred -
(i)
in not appreciating the fact that the institution of review
proceedings is expressly prohibited by section 96(3) of the Act
unless an applicant has exhausted the internal remedies provided in
that section or has, as provided in section 7(2)(c) of PAJA,
shown
exceptional circumstances on which the applicant can be exempted from
exhausting the available internal remedies; and
(ii)
in having disregarded the principles set out, inter alia, in the
decision in Gauteng Gambling Board v Sitverstar Dev Ltd
2005 (4) SA
67
(SCA) at 76C, para [29] that "remittal is almost always the
prudent and proper course".
[30]
The first two of these grounds constitute in effect the Fifth
Respondent's opposition to the relief claimed in the main application
on which I already held that the interim interdict granted had not
lapsed at the time the review proceedings were lodged and that
the
Second Respondent granted the prospecting rights in question on 19
September 2006 contrary and in contempt of the interdict
granted on
10 November 2005. It follows that prayer 5 of the counter application
can not be granted.
[31]
Prayers 3 and 4 of the counter application in effect challenge the
validity of the order granted on 3 October 2006 which may
or may not
call for a consolidation of this application and the application
launched under Case No. 2306 as claimed under prayer
2.
[32]
The validity of the order granted on 3 October 2006 is in my view
irrelevant for purposes the relief claimed by the Applicant
in this
application.
[33]
The Applicant's claim is, as is apparent from what I have already
indicated, that, because of the interim interdict granted
on 10
November 2005 , the State Respondents were on 19 and 22 September
2006 interdicted from from granting any prospecting rights
to any
person in respect of the property.
[34]
This is also the issue which is to be determined in the appeal lodged
under section 96 of the Act on 1 October 2010.
[35]
The order granted on 3 October 2010 may, however, be a complicating
factor in the consideration of the Applicant's appeal in
terms of
section 96 of the Act and I ought, notwithstanding the fact that that
order is in the context of this application not
relevant to the
relief claimed by the Applicant, in my view to consider the
application for the rescission of that order. There
is, to do so, no
need to make any ruling on the consolidation of this application and
the application launched under Case No. 2306/2006.
[36]
I am satisfied that the Fifth Respondent had a legitimate interest in
the relief claimed in that matter, that the orderwas
granted in its
absence and that it should have had the opportunity to at least
advance the two issues set out in paragraph [29](c)
above.
[37]
It was submitted on behalf of the Applicant that in the event of the
orders granted in Case No. 2306/2006 being rescinded the
review
proceedings will have to continue in the sense that the First, Second
and Fourth Respondents will be bound to file the record
of the
proceedings in terms of which the Applicant's application for the
prospecting right in question was refused, whereupon,
it will be
entitled to file a supplementary affidavit in which it may, inter
alia, file an application to be exempted from the
provisions of
section 96(3) of the Act and, if so advised, to amend the notice of
motion.
The
order
[38]
It was argued on behalf of the Fifth Respondent that the relief
sought will in effect be final relief if regard is had to the
duration of the prospecting rights granted to the Fifth Applicant and
the time in which the appeal in question is expected to be
brought to
finalization, in effect final relief.
[39]
I do not regard it necessary to make any finding on this submission.
[40]
In my opinion, considering all the requirements for interim relief,
the Applicant established a case, whether as a prima facie
or a real
right, on which the relief claimed ought to be granted.
[41]
I, however, fail to see any need or reason to interdict the Fifth
Respondent from submitting any application for a mining right
for
coal in terms of section 22 of the Act in respect of the properties.
The Applicant's prima facie rights will in my view sufficiently
protected by the interdict sought against the First, Second, Third
and Fourth Respondents.
[42]
As far as costs are concerned the parties are in agreement that the
question of costs should follow the result on the basis
of the
employment of two counsel.
[43]
The costs incurred in respect of the counter application, however,
poses a problem. I am satisfied that at the time the Applicant
launched the review application under Case No. 2306/2006 it was,
because of the State Respondents' unfortunate and, in my view,
inexcusable inactivity and their failure to file a record of the
proceedings or to file an affidavit in an attempt to be of some
assistance to the Court, not aware of the Fifth Respondent's
existence. The Applicant can therefore not be blamed for not having
cited the Fifth Respondent in those proceedings. On the other hand
the Fifth Respondent is an entire innocent party. I am accordingly
of
the view that no order as to costs should be made in respect of the
counter application.
[36]
For the reasons set out in this judgment, the following order is
made:-
1.
THAT, subject to paragraph 2 -
(a)
the First and Second Respondents be interdicted and restrained from
granting any application for a mining right for coal to
the Fifth
Respondent, Finishing Touch Trading 163 (Pty) Ltd, or any other
person in terms of section 23 of the Mineral and Petroleum
Resources
Development Act, 2002 (Act 28 of 2002) ("the Act), in respect of
the properties set out in Annexure "A"
("the
properties") to the Notice of Motion;
(b)
the Fourth Respondent be interdicted and restrained from processing
any applications for a mining right for coal in respect
of the
properties from the Fifth Respondent or any other person in terms of
section 22 of the Act.
2.
THAT the interdicts set out in paragraph 1 above shall serve as a
temporary
interdict pending the final determination of -
(a)
the appeal by the Applicant in terms of section 96 of the Act against
the decision made in terms of section 17 of the Act to
grant to the
Fifth Respondent prospecting rights for coal in respect of the
properties;
(b)
judicial review proceedings that may be brought by the Applicant
against any or all of the Respondents seeking the review and
setting
aside of any decision taken on appeal as aforesaid in the event of
the dismissal of the appeals as aforesaid or, in the
event of the
appeals not being resolved within a reasonable time of this court
order.
3.
THAT -
(a)
prayers 2, 3 and 5 of the counter application be dismissed;
(b)
the orders granted under Case No. 2306/2006 be rescinded and set
aside;
(c)
the Notice of Motion and founding affidavit filed on behalf of the
Applicant in Case No. 2306/2006 shall stand as a Notice of
Motion and
founding affidavit filed in terms of Rule 53;
(d)
the Fifth Respondent is joined as the Fourth Respondent in Case No.
2306/2006;
(e)
the Applicant be directed to serve a full copy of all the papers
filed of record in Case No. 2306/2006 upon the Fifth Respondent
within 10 days from the date of this order or such longer period as
the parties may determine by mutual agreement;
(f)
the First, Second, Third and Fourth Respondents be ordered to produce
the record of proceedings of the decision to refuse the
Applicant's
application for a prospecting right in respect of the properties set
out in Annexure A to the Notice of Motion in this
application within
15 days after service of this order or such longer period as the
parties may determine by mutual agreement upon
the State Attorney
together with such reasons as they desire to give and to notify the
Applicant's attorney that they have done
so;
(g)
the provisions and time periods of Rule 53 to apply to the further
conduct of Case No. 2306/2006 as from the date of this order
or such
or such longer period as the parties may determine by mutual
agreement;
(h)
no order is made as to the costs of the counter application.
4.
THAT the Fifth Respondent be ordered to pay the Applicant's costs of
this application, including the costs attendant upon the
employment
of two counsel.
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF THE APPLICANT: ADV G L GROBLER SC
…
.....................................................
ADV
J LGILDENHUYS
On
the instructions of: MERVYN TABACK INCORPORATED
…
................................
c/o
MACINTOSH CROSS & FARQUHARSON 2nd Floor
…
...............................
Nedbank Building Cnr Pretorius Street & Bank Lane
…
................................
PRETORIA
…
................................
Ref:
C Erasmus/adj/b348/2010
…
...............................
Tel : (012) 323 1406
ON
BEHALF OF THE FIFTH RESPONDENT: ADV C E PUCKRIN SC
…
......................................................................
ADV
A P J ELS
On
the instructions of: THOMAS & SWANEPOEL INCORPORATED
…
.................................
c/o
VAN DER MERWE & ASSOCIATES
…
................................
41
Ivy Street
…
................................
Clydesdale
…
................................
PRETORIA
…
................................
Ref
: P van der Merwe/PT0208
…
................................
Tel:
(012) 343 5432
DATE
OF HEARING: 8 December 2010
JUDGMENT
DELIVERED ON: 15 February 2011