Mfolozi Community Environmental Justice Organisation and Others v Tendele Coal Mining (Pty) Ltd and Others (3518/2023P) [2023] ZAKZPHC 72; [2023] 3 All SA 768 (KZP) (13 July 2023)

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[2023] ZAKZPHC 72
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Mfolozi Community Environmental Justice Organisation and Others v Tendele Coal Mining (Pty) Ltd and Others (3518/2023P) [2023] ZAKZPHC 72; [2023] 3 All SA 768 (KZP) (13 July 2023)

FLYNOTES:
LEGISLATION – MPRDA
–
Interim interdict
–
Seeking to restrain mining
activities pending Part B – Earlier judgment setting out
deficiencies in process –
Applicants not establishing prima
facie right that Tendele was prohibited by the judgment from
undertaking the foreshadowed
work – Section 96 of the MPRDA
affording alternative internal remedy for these complex factual
issues and polycentric
considerations – Applicant for relief
in Part A dismissed –
Mineral and Petroleum Resources
Development Act 28 of 2002
,
s 96.
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case no: 3518/2023P
In
the matter between:
MFOLOZI
COMMUNITY ENVIRONMENTAL
JUSTICE
ORGANISATION
FIRST
APPLICANT
THE
TRUSTEES FOR THE TIME
BEING
OF GLOBAL ENVIRONMENTAL TRUST
SECOND
APPLICANT
MINING
AFFECTED COMMUNITIES UNITED IN
ACTION
THIRD
APPLICANT
SOUTHERN
AFRICAN HUMAN RIGHTS
DEFENDERS
NETWORK
FOURTH
APPLICANT
ACTIONAID
SOUTH AFRICA
FIFTH
APPLICANT
and
TENDELE
COAL MINING (PTY) LTD
FIRST
RESPONDENT
THE
MINISTER OF MINERAL RESOURCES AND
ENERGY
SECOND
RESPONDENT
THE
MINISTER OF ENVIRONMENTAL AFFAIRS
THIRD
RESPONDENT
MEC
FOR TRANSPORT, COMMUNITY SAFETY AND
LIAISON,
KWAZULU-NATAL
FOURTH
RESPONDENT
MPUKUNYONI
TRADITIONAL COUNCIL/
MPUNKUNYONI
TRADITIONAL AUTHORITY
FIFTH
RESPONDENT
MPUKUNYONI
MINING FORUM
SIXTH
RESPONDENT
ASSOCIATION
OF MIINEWORKERS AND
CONSTRUCTION
UNION
SEVENTH
RESPONDENT
NATIONAL
UNION OF MINEWORKERS
EIGHTH
RESPONDENT
Coram:
Koen J
Heard:
9 June 2023
Delivered:
13 July 2023
ORDER
The following order is
granted:
The application for the
relief in part A of the Notice of Motion is dismissed.
JUDGMENT
Koen J
Introduction
[1]
The
applicants
[1]
seek an interim
interdict, in terms of Part A of the notice of motion, the relevant
part reading as follows:
‘
2.
The First Respondent is interdicted and restrained from undertaking
[or] commencing with
any mining and mining-related activities listed
in its notices dated 14 February 2023 and 15 February 2023, as
supplemented by
its letter of 24 February 2023, which related to the
First Respondent’s mining right described as “
Part
of Remainder or Reserve 3, No 158822, Hlabisa Magisterial District,
measuring 21 233 0525 hectares, 222km
2
KZN30/5/1/2/2/10041MR
”
and the related mining areas, pending the finalisation of Part B of
this Notice of Motion.
3.
Any Respondent opposing the application is ordered to pay the
Applicants’ costs, including
the costs of three Counsel.’
[2]
Part B of the notice of motion provides:
‘
5.
The First Respondent is interdicted and restrained from undertaking
any mining and mining related activities, including the activities

listed in its notices dated 14 February 2023 and 15 February 2023, as
supplemented by its letter of 24 February 2023, pertaining
to the
First Respondent’s mining right described as “
Part
of Remainder or Reserve 3, No 158822, Hlabisa Magisterial District,
measuring 21 233 0525 hectares, 222km
2
KZN30/5/1/2/2/10041MR
”
and the mining areas related thereto unless and until they have:
5.1
complied with the order of the North
Gauteng High Court under case number 82865/2018 by:
5.1.1
Completing an Environmental Impact
Assessment process as contemplated in Section 39(1) of the Mineral
and Petroleum Resources Development
Act 28 of 2002 (“MPRDA”);
5.1.2
Compiling and delivering a scoping report,
environmental impact assessment report and environmental management
program that adheres
to Regulations 49, 50 and 51 of the MPRDA
Regulations, Reg 527 of GG 26275 of 2004;
5.1.3
Obtaining consent, in terms of section 2 of
the Interim Protection of Informal Land Rights Act 31 of 1996
(“IPILRA”
),
specifically from the persons who may be deprived of their informal
rights to land by the execution of the First Respondent’s

mining and related activities.
5.2
Complied with or amended its Environmental
Management Programme (EMPr) and as far as it relates to the
activities as set out in
the 14 and 15 February 2023 Notices,
supplemented by Tendele’s letter of 24 February 2023.
5.3
Conducted public participation processes
compliant with the Public Participation Guidelines in terms of NEMA
and Chapter 6 of the
EIA Regulations, 2014 and any other legislative
requirements, with members of the First Applicant and all interested
and affected
persons who:
5.3.1
Shall or may be resettled or relocated in
the process of the First Respondent commencing its mining and/or
related activities;
5.3.2
Reside or use land within the area where
the intended haul road and temporary roads will be constructed or
altered in any way;
5.3.3
Reside or use land within the areas where
the intended fences will be erected;
5.3.4
Shall or may be relocated;
5.3.5
Reside or use land within the areas to
which persons or infrastructure may be relocated;
5.3.6
Reside or use land in the biodiversity
off-set areas;
5.3.7
Reside or use land in any other area to be
affected by the mining or mining related activities.
6. Any Respondent
opposing the application is ordered to pay the Applicants’
costs, including the cost of three counsel.
7. Further and/or
alternative relief.’
[3]
The application is opposed by the first
respondent Tendele Coal Mining (Pty) Ltd (Tendele), the fifth
respondent the Mpunkuyoni
Traditional Authority, the sixth respondent
the Mpunkuyoni Mining Forum, the seventh respondent the Association
of Mineworkers
and Construction Union, and the eighth respondent the
National Union of Mineworkers. The application is not opposed by the
Minister
of Mineral Resources and Energy (the Minister) who is the
second respondent, the Minister of Environmental Affairs, the third
respondent,
or the MEC for Transport, Community Safety and Liaison,
KwaZulu-Natal, the fourth respondent.
Background
[4]
The
mining right referred to in the notice of motion, which has been
issued to Tendele, relates to an area of the Somkhele Mine
(the mine)
to which Tendele wishes to extend its operations. The mine is an open
cast coal mine which Tendele has operated since
2006.
[2]
It is situated some 27 kilometres west of Mtubatuba in KwaZulu-Natal.
It has one of the largest resources of open pit mineable
anthracite
reserves in South Africa. Tendele has played a crucial role in
supplying local manufacturers with anthracite and facilitating
the
production of ferrochrome
[3]
and the manufacture of stainless steel.
[4]
It has been a major contributor to social and economic development in
the area. It alleges that prior to it being placed
on care and
maintenance in July 2022, some 20 000 people benefited from
employment and procurement opportunities at the mine,
[5]
and that since 2006 it has spent more than R1.2 billion establishing
infrastructure and purchasing equipment at the mine, and some
R6.5
billion developing the open mining pits.
[6]
It alleges that since it was placed on care and maintenance,
following gradual retrenchment of mine employees, the unemployment

rate in the Mtubatuba Local Municipality area has increased to
between 70 and 80 per cent, and is now possibly higher.
[5]
The mine is a single operation that
consists of mining pits divided into five areas, with separate mining
rights and environmental
management programmes (EMPr) applying to
each area. Tendele mined in two areas until 2022. These two areas
have now been depleted.
It accordingly intends extending its mining
operations to the Emalahleni, Ophondweni, and Mahujini areas
(commonly also referred
to as areas 4 and 5), the respective areas of
which are 2.5836; 5.5585 and 1.5168 square kilometers.
[6]
Tendele’s proposed expansion into
these areas is alleged to be necessary to enable it to continue
operations for approximately
another 10 years, to ensure its
survival. The mining method and infrastructure which Tendele will use
in the new areas will be
the same as it has previously used. Should
the mine intend to operate after this time, it would be obliged to
apply afresh for
a new mining right and environmental authorisation
for any further new areas.
[7]
Mining
activity impacts on the environment and has the potential for
adversely affecting persons living and working in the vicinity
of
such mining operations. Mining activities, and decisions permitting
such activities, implicate and create a tension between
and amongst a
number of constitutional rights and principles. At a bare minimum,
these include inter alia the principle of legality,
[7]
the right to an environment that is not harmful to health or
well-being,
[8]
the right of the
mining entity to freedom of trade and to earn an income, and the
right of the parties and the public generally
to earn an income,
[9]
just administrative action
[10]
and the right to have disputes resolved by the application of law
before a court.
[11]
Accordingly, the right to mine, and activities associated therewith,
have come to be regulated by various statutory provisions,
which
themselves have been subject to amendments over time, which seek to
strike a balance between these competing and other rights.
[8]
At
the risk of oversimplification, these statutory provisions require a
mining company, in the position of Tendele, to comply with
a myriad
of legislation, including, inter alia the
Mineral and Petroleum
Resources Development Act
28 of 2002 (MPRDA), and the requisite
regulations, the
National
Environmental Management Act 107 of 1998 (
NEMA),
and the requisite regulations, and the Interim Protection of Informal
Land Rights Act 31 of 1996 (IPILRA), and the requisite
regulations,
which prescribe various administrative procedures before an entity
can mine on a particular portion of land. Without
purporting to
provide a comprehensive list of the requirements,
[12]
the administrative procedures required to be complied with entail,
inter alia, the following:
(a)
An
application by Tendele, followed by a decision by the Director
General of the Department of Mineral Resources and Energy (the

department),
[13]
to award the
mining right to it;
(b)
The preparation by Tendele of an EMPr
relating to such mining, and a decision by the Regional Manager of
the department approving
the EMPr.
[9]
The
issue of a mining right in terms of s 22 of the MPRDA requires inter
alia an application in the prescribed manner, accompanied
by an
environmental impact assessment (EIA) and an EMPr. If the regional
manager accepts the application, he must within 14 days
notify the
applicant for the mining right to conduct an EIA, submit an EMPr for
approval under s 39, notify and consult interested
and affected
persons (I&APS) within 180 days, and make it known that an
application for a mining right had been accepted in
respect of the
land in question. He must also call on I&APs to submit their
comments for consideration within 30 days of notice.
In terms of the
MPRDA regulations an EIA requires the compilation of a scoping report
and an EIA report, and finally a scoping
report must be finalised in
regard to the proposed mining operation dealing with a number of
prescribed issues.
[14]
[10]
Tendele applied for, and on
31
May 2016, was awarded the mining right in respect of Part of
Remainder of Reserve 3 (Somkhele No 15822), which includes areas
4
and 5, by the director general of the department. In addition, the
EMPr applicable to this mining area was approved by the regional

manager of the department for the KZN region on 26 October 2016. The
decision of the director general to award the mining right
and the
decision of the regional manager of the department to approve the
EMPr shall hereinafter be referred to individually by
name, and
collectively as ‘the decisions’.
[11]
It
is not disputed that members of the first applicant who reside in the
area, would be affected by such mining, and have
locus
standi in iudicio
[15]
to object to the mining operations. Similarly, that the second
applicant, the third applicant, the fourth applicant, and fifth

applicant would have the right to approach a competent court alleging
that a right in the Bill of Rights has been infringed or
threatened,
has not been placed in dispute.
[16]
[12]
The
applicants, having become aware of the extent of the mining right, on
31 August 2017 lodged an appeal, as they were entitled
to do, with
the Minister, in terms of s 96(1)
(b)
of the MPRDA, read with
regulation 74
of the
Mineral and Petroleum
Resources Development Regulations.
>
[17]
[13]
Section 96
of the MPRDA provides:
‘
(1)
Any person whose rights or legitimate expectations have been
materially and adversely affected or who is aggrieved by any
administrative
decision in terms of this Act may appeal within 30
days becoming [sic] aware of such administrative decision in the
prescribed
manner to-
(a)
the Director-General, if
it is an administrative decision by a Regional Manager or any officer
to whom the power has been delegated
or a duty has been assigned by
or under this Act;
(b)
the Minister, if it is an
administrative decision that was taken by the Director-General or the
designated agency.
(2)
(a)
An appeal
in terms of subsection (1) does not suspend the administrative
decision, unless it is suspended by the Director-General
or the
Minister, as the case may be.
(b)
Any subsequent
application in terms of this Act must be suspended pending the
finalisation of the appeal referred to in paragraph
(a)
.
(3) No person may apply
to the court for the review of an administrative decision
contemplated in subsection (1) until that person
has exhausted his or
her remedies in terms of that subsection.
(4) Sections 6, 7 (1) and
8 of the Promotion of Administrative Justice Act, 2000 (Act 3 of
2000), apply to any court proceedings
contemplated in this section.’
[14]
The Minister dismissed the appeal on 15
June 2018.
[15]
The
applicants thereafter launched a review in the Gauteng Division of
the High Court, Pretoria, under case number 82865/18, reported
as
Mfolozi
Community Environmental Justice Organisation v Minister of Minerals
and Energy
(the review),
[18]
before the Honourable Madam Justice Bam, to set aside the director
general’s decision to grant the mining right to Tendele;
the
regional manager’s decision to approve the EMPr in respect of
the new areas; and the decision of the Minister to dismiss
their
appeal against the two aforesaid decisions. The review was opposed by
Tendele,
[19]
and the respondents opposing this application, but not by the
Minister,
[20]
the Minister of Environmental Affairs,
[21]
or the MEC for Transport, Community Safety and Liaison,
KwaZulu-Natal.
[22]
[16]
The
review was heard on 10 to 12 November 2021. During the argument
Tendele conceded that there were certain grounds of review that
it
could not defend
[23]
and it abandoned what it describes as 92% of the mining right,
persisting only with a mining right to conduct mining activities
in
the Emalahleni, Ophondweni, and Mahujini areas. It
accordingly
came to be accepted that the decision of the director general of 31
May 2016 granting the mining right to Tendele, the
decision of the
regional manager of 26 October 2016 approving the environmental
management program in terms of s 39 of the MPRDA,
and the decision of
the Minister of 15 June 2018 dismissing the internal appeal lodged by
the applicants, were unlawful and fell
to be declared invalid.
[24]
[17]
On 4 May 2022, Bam J, handed down her
judgment in the review. She recorded that it was:
‘
necessary
to affirm here and now that the central question of legality of the
Minister’s, the DG’s and the RM’s
decisions is no
longer the focal point of this judgement. That part of the case has
been conceded already. What remains is the
determination of the
extent to which the remainder of the grounds not conceded by Tendele
need to be determined as well as the
just and equitable remedy.’
[25]
[18]
The judgment recorded some of the
concessions made by Tendele. These related, inter alia, to there
being no evidence that the Minister
consulted with the Department of
Environmental Affairs, as was required by the now repealed s 40 read
with s 39 of the MPRDA, imperfections
in the public participation
process, and deficiencies in the scoping and the EIA process.
[19]
The judgment proceeded:
‘
Against
the concessions, as I shall show, Tendele implores the court to set
aside the decision of the Minister and remit the appeal
back to the
Minister for reconsideration together with any directives the court
may consider necessary. As to the numerous irregularities
in the
process leading up to the grant of the Mining Right, Tendele contends
that all those can be addressed in the course of the
wide appeal
before the Minister. Tendele submits that all the new material,
expert reports, as well as comments, inputs, and submissions
by MCEJO
[the first applicant] and other I&APs can be taken into account
in the appeal process. With regard to the failure
to make adequate
financial provision for each of the retained areas, as the law
requires, Tendele submits that, in any event, the
mining right holder
is required by law to assess annually, whether the financial
provision is adequate and top up where necessary.
Tendele suggests
that this deficiency too can be addressed be cured in the course of
the wide appeal.’
[26]
[20]
The learned judge continued:
‘
I
am of the view that it is critical for this court to determine three
grounds, namely: (i) the defective Scoping and EIA; (ii)
the ground
based on IPILRA; and (iii) defects in public participation. The
ground dealing with defective scoping and EIA is, in
my view,
integrally intertwined with the ground dealing with defects in public
participation. As such I dispose of the two grounds
immediately here
below.’
[27]
[21]
The learned judge then found that the
scoping report, the environmental impact assessment, and the public
participation processes
were defective, and that the necessary
consent as required by s 2 of IPILRA had not been obtained.
[22]
She
was very critical of Tendele’s shortcomings, describing Tendele
as ‘misguided in its view’;
[28]
that its attempt to justify the exclusion of groups required to be
consulted by the regulations as part of the public participation
was
‘nothing short of egregious’;
[29]
that its defective notices had unduly limited the public’s
participation; that Tendele ‘flouted the law with regard
to
public participation’,
[30]
and that its attitude during the scoping phase was ‘offensive’
and portrayed Tendele as ‘an “unbridled
horse” that
showed little or no regard for the law.’
[31]
[23]
As regards non-compliance with IPILRA, the
judgment found that it was a matter of interpretation, but that
Tendele’s interpretation
epitomises:
‘
the
“blinkered peering at an isolated provision in a statute”
that the court warns against in
Scribante
as opposed to reading the statute purposively, even where a word has
a readily discernible meaning;’ (footnote omitted)
[32]
That
‘
Tendele’s
interpretation waters down, if not renders nugatory, the protection
offered by IPILRA to shield the informal rights
holders. Such
interpretation cannot and should not be allowed;’
[33]
Concluding
that
‘
Tendele
did not obtain consent as envisaged in section 2 of IPILRA.’
[34]
[24]
Section 172(1) of the
Constitution provides
:
‘
(1)
When deciding a constitutional matter within its power, a court-
(a)
must declare that any law
or conduct that is inconsistent with the Constitution is invalid to
the extent of its inconsistency; and
(b)
may make any order that
is just and equitable, including-
(i)
an order limiting the retrospective effect of the declaration of
invalidity; and
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions, to allow the
competent authority to correct the
defect.’
[25]
Faced
with the inevitable consequence that the decisions and the Minister’s
dismissal of the appeal fell to be declared invalid
as required by s
172(1)
(a)
of the Constitution, it remained for Bam J to model a just and
equitable remedy to the extent that one might be called for. She

stressed the constitutional principle of separation of powers and
judicial deference,
[35]
and
then referred to the following quotation from
Khumalo
and Another v Member of the Executive Council for Education
KwaZulu-Natal
:
[36]
‘
Under
the Constitution, however, the requirement to consider the
consequences of declaring the decision unlawful is mediated by
a
court’s remedial powers to grant a “just and equitable”
order in terms of section 172(1)
(b)
of the Constitution. A court has greater powers under the
Constitution to regulate any possible unjust consequences by granting

an appropriate order. While a court must declare conduct that it
finds to be unconstitutional invalid,
it
need not set the conduct aside
.’
(emphasis added, footnote omitted)
[26]
The
judgment thereafter consists of a summary of the respective
submissions of the parties,
[37]
on what would constitute a just and equitable remedy.
[27]
The applicants’ submissions were
paraphrased as follows in the review:
‘
75.
The applicants submit that an appropriate remedy is one that will see
the matter being referred to the Regional Manager (RM)
so that
Tendele commences afresh its application for a mining right. The
applicants advanced a number of reasons why a referral
to the RM is
the only remedy that will suit the circumstances of this case, as
opposed to a referral to the Minister, as sought
by Tendele. In the
first place, the applicants say that in terms of section 96(2)(a) of
MPRDA, an appeal does not suspend the administrative
decision, unless
it is suspended by the Director-General or the Minister. The
applicants complain that this means the mine can
go ahead and mine in
the new areas (Emalahleni, Mahujini and Ophondweni) without resolving
the critical issues challenged in this
application. They say that
public participation requires what I may loosely refer to as “boots
on the ground”; it is
not a matter that can be handled during
an appeal before the Minister, in top down fashion. They point to the
27 extra (or rather
the floating studies), and submit that these
studies were procured, not in compliance with some requirement
because they are not
connected to the EMPr, but to influence the
decision that will ultimately be granted by this court. On the issue
of IPILRA the
applicants contended from the start that their consent
had not be obtained; that Tendele’s application went ahead and
was
ultimately granted, unlawfully. On this score, the applicants
contend that the Minister cannot fix something that is unlawful. On

this basis alone, it is simply not competent to refer the decision to
the Minister.
76. A further reason why
it is not competent to refer the matter to the Minister according to
the applicants is that Tendele says
it needs to commence mining by
June 2022 and it requires five months to prepare. The applicants
submit that the mine is simply
not going to meet this timeline as the
amendment of the EMPr, in consequence of the amendment of the Mining
Right, which on its
own triggers a listed activity, make take
considerably more than 180 days. The final reason deals with
Tendele’s failure
to make financial provision for each of the
areas it seeks to retain, instead of one.’
[28]
Tendele’s submissions were summarized
in the review judgment as follows:
‘
77.
Tendele submits that the Minister is the legitimate and statutorily
empowered decision-maker on appeals against the grant of
mining
rights. Tendele submits that the administration of this act affects a
wide range of interests and the decisions are complex
and
polycentric, involving the conflicting views of highly qualified
experts in a technical domain. Tendele says the Minister has
wide
powers on appeal and there would be no limitation in his ability to
call for public participation or even ordering Tendele
to carry out
specific remedial action. In the words of counsel for Tendele, its
client is intent on doing everything reasonably
possible to guard
against the process on appeal before the Minister being assailed.
78. Regarding Tendele’s
contribution to South Africa’s economy, Tendele, the mine has
one of the largest resources of
open-pit mineable anthracite reserves
in South Africa. Tendele currently sells the higher quality
anthracite to local ferrochrome
producers and is the principal
supplier of anthracide to the ferrochrome producers in South Africa.
The higher quality anthracide
is a critical component of reductant
mix used in smelters by ferrochrome producers. At present, Tendele
sells 600 000 tonnes of
anthracite per annum to local ferrochrome
producers. Tendele accordingly pleaded that an order that fails to
take into account
its commitment to its suppliers may bring about
devastating results not only to its financial resources but to
various entities
that also play a major role in South Africa’s
economy.
79. The Somkhele mine is
the only major employer in the Mtubatuba area. At present Tendele
employs about 1200 people, 87% of whom
reside in the impoverished
Mpukunyoni area surrounding Somkhele. As a result 120 households
benefit from employment and or procurement
agreements at Somkhele.
Assuming that each household supports 10 people, some 12 000 people
directly depend on the mine.
80. According to the
Mtubatuba Local Municipality’s Integrated Development Plan, the
Somkhele mine is one of the major employers
in the Mtubatuba
Municipality which has extremely high unemployment rates. Since
Tendele began mining it has contributed R2.2 billion
in direct
benefits to local community members. This includes R1.2 billion in
salaries; R61 million in community projects; over
R607 million on
procurement services; R9 million for the benefit for the youth in the
community as well as various training and
educational initiatives.
Tendele further pays hundreds of millions of rand in taxes to the
South African Government.’
[29]
Tendele
thus stressed the financial impact of a decision that the mining
could not continue would have on it and the community.
It contended
that the irregularities in the process leading up to the grant of the
mining right by the director general and the
approval of the EMPr by
the regional manager could be addressed during a wide appeal before
the Minister.
[38]
[30]
The
learned judge’s reasoning on the issue of just and equitable
relief was couched as follows:
[39]
I have
reflected on the parties’ cases
including
the reasons placed by the applicants
.
[40]
But this is a case that calls for pragmatism to guide the court. It
seems to me that an order that will see the matter referred
back to
the Minister for reconsideration of the appeal,
in
line with the findings of this judgement
,
will strike the correct balance of the various competing interests.
Such an order will “uphold, enhance and vindicate the

underlying values and rights entrenched in the Constitution”.’
(emphasis added, footnote omitted, new footnote added)
[31]
The order granted on 4 May 2022 reads as
follows:
‘
1.
The Director General’s decision of 31 May 2016, in awarding the
Mining Right to Tendele, and the Regional Manager’s
decision of
26 October 2016, in approving Tendele’s EMPr, are hereby
declared invalid. The decisions are not set aside.
2. The Minister’s
decision of 15 June 2018 in dismissing the appeal against the grant
of the Mining Right to Tendele and the
Approval of Tendele’s
EMPr is hereby declared invalid and is set aside.
3. The appeal is remitted
back to the Minister for reconsideration in accordance with the
findings of this judgement.
4. In reconsidering the
appeal, and in addition to the findings of this judgement, the
Minister is directed to consider:
(a)  any information
that the Applicants and Tendele wish to place before him for that
purpose.
(b) any information,
comments, and submissions from I&APs.
5. Tendele is directed to
notify interested and affected parties of their entitlement to
participate in the appeal process by publicising
the contents of this
widely.
6. Tendele is to ensure
that public participation process to be conducted pursuant to the
Minister’s determination of the
appeal process, complies with
the requirements of (a) Public Participation Guidelines in terms of
the National Environmental Act,
1998 and (b) Chapter 6 of the
Environmental Impact Assessment Regulations, 2014
as Published in
Government Gazette
No 38282 GNR 982 of 4 December 2014.
7. The First, Second,
Third and Fourth respondents are hereby ordered, jointly and
severally, the one paying the other absolved,
to pay the costs of the
applicants, including the costs occasioned by the employment of two
counsel, one Senior and one Junior.
7.1 The costs mentioned
in paragraph 7 include the costs of the
Rule 7
application plus the
costs of two counsel, one Senior and one Junior’
[32]
The judgment has not been taken on appeal.
The findings are accordingly binding on the parties.
[33]
Since the judgment was delivered, Tendele
alleges that it has made strident progress in addressing some of the
deficiencies raised
in the judgement. The mine is presently not
operational, but is on what is termed ‘care and maintenance,’
which is
said to leave it in a precarious financial position. It is
washing discard to produce low quality anthracite, which is providing

it with sufficient revenue to continue employing a few employees
(mainly on a temporary basis) to partially service the interest
on
its debt. The processing of the discard will continue for a maximum
of seven months from 1 April 2023, where after the mine
will have no
revenue and all 22 full time employees and all 58 temporary employees
and all 192 contractors will have lost their
jobs. It is also alleged
that funders require confirmation that Tendele is able to gain access
to the new mining areas.
[34]
Additional specialist studies were
foreshadowed and have also been undertaken. Tendele acknowledges that
these studies have not
yet been subjected to a public participation
process. It undertakes that it will provide all interested and
affected persons with
an opportunity to comment on the studies during
the EIA phase of the appeal process in
s 96
of the MPRDA, and
maintain that this is what the review judgment contemplates.
[35]
Tendele
has also given instructions for a scoping report. The draft scoping
report must be subjected to a public participation process
of at
least 30 days, as required by
regulation 40
of the
Environmental
Impact Assessment Regulations.
[41
]
This publication participation process must follow the requirements
of the Public Participation Guidelines. This process is apparently

currently underway. A revised draft scoping report is to be
circulated to interested and affected persons in May 2023 for their

comment. All comments received from interested and affected persons
in respect of the draft scoping report and the revised scoping
report
will have to be incorporated into a final scoping report. It is
anticipated that such report will be submitted to the Minister
for
consideration and approval in July 2023. If approved then Tendele
will proceed with the preparation of an EIA report, as part
of the
EIA phase of the appeal process in
s 96
of the MPRDA, and a revised
EMPr. The draft EIA report, the revised EMPr, and the specialist
studies will be provided to interested
and affected persons for their
comment in October/November 2023. It is anticipated that an EMPr will
be submitted to the Minister
for purposes of deciding the appeal
process in
s 96
of the MPRDA, in December 2023. The appeal is
therefore, on Tendele’s own version, not yet ready for hearing.
[36]
As ordered in paragraph 6 of the order of
Bam J, the Public Participation Guidelines in terms of NEMA and
chapter 6 of the
Environmental Impact Assessment Regulations will
need to be complied with in preparation for a hearing of the appeal.
[37]
During February 2023 Tendele issued three
letters, dated 14, 15 and 24 February 2023 (the letters), pursuant to
which it intends
resuming certain activities relating or ancillary to
the mining. On the argument now adopted by Tendele, it could have
issued these
letters immediately after the judgment by Bam J was
delivered, although it did not do so. Indeed, the applicants have
referred
to a document prepared for Tendele headed ‘Steps to be
taken in terms of Judge Bam’s order before we can start to
mine’,
which, they say, shows that Tendele had also held the
view that it could not proceed with mining until the appeal was
finalised.
Whether the order of Bam J allowed mining to continue is
however a matter of law, and is not determined by the parties’
respective
(and possibly erroneous) interpretation of the judgment.
It is the question of law that needs to be addressed.
[38]
In the letter of 15 February 2023 Tendele,
inter alia gave notice of its intention to commence ‘other
activities, fencing,
the building of a new access road, and the
widening of existing roads.’ In the letter of 24 February 2023
Tendele gave notice
inter alia of an increase in the scope of
activities it intended to commence, including the relocation of
people, clearance of
vegetation, building of temporary access roads,
relocation of the Ophondweni Community Hall, relocation of the
Emalahleni Community
Dam, open cast mining and stockpiling of
anthracite and waste material.
[39]
Although the mining right granted was in
respect of the three areas, Tendele has, in its answering affidavit,
confined the work
it wishes to undertake, contemplated in the
letters, to the Emalahleni and Ophondweni areas. It has undertaken
not to commence
any work in the Mahujini area until the appeal before
the Minister, provided for in the order of the North Gauteng High
Court,
referred to in paragraph 5.1 of part B of the notice of
motion, has been determined.
[40]
The applicants seek to stop the activities
threatened to be proceeded with, not limited in accordance with the
undertakings. They
seek to do so, based on the judgment of Bam J and
the alleged non-compliance with certain further statutory
requirements, notably
relating to non-compliance with the provisions
of IPILRA and the lack of consultation with interested parties.
Tendele denies these
contentions and argues that the order of Bam J
did not preclude mining from continuing.
[41]
Tendele
and the opposing respondents further contend that although clothed as
an interim interdict, the interdict sought would have
final effect
and would result in the closing of the mine which has significant
employment and revenue-generating capacity. They
accordingly contend
that the application should be adjudicated as such, and that the
applicants would have to establish a clear
right. The applicants do
not deny that the interdict they seek could result in the closure of
the mine.
[42]
As the
applicants claim an interim interdict the matter will be adjudicated
as such.
The requirements for
an interim interdict
[42]
It is trite law that the requirements for
an interim interdict are:
(a)
A
prima
facie
right on the part of the applicant.
[43]
(b)
A
well-grounded apprehension of irreparable harm if interim relief is
not granted, and final relief is ultimately granted.
[44]
(c)
The
applicant must have no other satisfactory remedy available.
[45]
(d)
The
balance
of convenience must favour the granting of interim relief.
[46]
The
four requirements are inter-related in the sense that the weaker the
applicants’
prima
facie
right, the greater the need for the applicant to demonstrate
prejudice, and the stronger the
prima
facie
right, the less the need to demonstrate prejudice. Further, the
weaker the applicants’ prospects of succeeding with the final

relief sought, the greater the need for the other requirements to
favour the applicants.
[47]
Even if all the requirements for an interim interdict are satisfied,
a court retains an overriding wide discretion to refuse to
grant an
interim interdict.
[48]
Public-interest factors can be taken into account in the exercise of
the court’s discretion. In cases like the present, Tendele

argued, that the discretion should be influenced by the public
interest in the survival of the mine and economic upliftment of
the
local community, which would be harmed if the relief sought by the
applicants was granted.
[49]
A prima facie right
[43]
A
court will grant an interim interdict upon a degree of proof less
exacting than that required for a final interdict. An applicant
for
an interim interdict must prove a right which, though
prima
facie
established, is open to some doubt. According to
Webster
v Mitchell
,
[50]
as qualified in
Gool
v Minister of Justice
,
[51]
the test is whether the applicant has furnished proof which, if
uncontradicted at the trial (or the final interdict in part B of
the
notice of motion), would entitle the applicants to final relief. The
proper approach is:
‘
to
take the facts as set out by the applicant, together with any facts
set out by the respondent which the applicant cannot dispute,
and to
consider whether, having regard to the inherent probabilities, the
applicant [should] on those facts obtain final relief
at the trial.
The facts set up in contradiction by the respondent should then be
considered.  If serious doubt is thrown
upon the case of the
applicant he could not succeed in obtaining temporary relief, for his
right, prima facie established, may
only be open to “some
doubt”. But if there is mere contradiction, or unconvincing
explanation, the matter should be
left to trial and the right be
protected in the meanwhile, subject of course to the respective
prejudice in the grant or refusal
of interim relief.’
[52]
[44]
The applicants say that on the facts it is
not so much a question of proof, as the right on which they rely
primarily is a question
of law involving legality; and that they have
established a
prima facie
right, if not a clear right, as the activities Tendele intends to
commence with are unlawful:
(a)
Because Bam J declared the decisions
resulting in the grant of Tendele’s Mining Right and EMPr to be
invalid, the Mining
Right and EMPr have ceased to exist;
(b)
that,
in any event, Bam J inter alia required Tendele to complete an EIA
and a scoping report, neither of which has occurred as
yet;
[53]
(c)
that until the order of Bam J has been
complied with, no mining may continue and the activities threatened
in the letters would
be in contravention of the judgment; and
(d)
Tendele
has failed to comply with certain statutory requirements before it
can start the proposed activities.
[54]
[45]
Tendele in turn maintains that the original
decisions granting the mining licence and approving the EMPr,
although declared invalid,
were ‘not set aside.’
Accordingly, that:
‘
The
effect of Bam’s decision is that the Mining Right and EMPr
continue to exist in fact and in law.’
[55]
[46]
The proper interpretation of the judgment
and order, specifically what was sought to be conveyed by the order
that the decisions
‘are not set aside’, and what issues
the judgment covered, accordingly are the primary issues in this
application.
[47]
In the event of any ambiguity in her
judgment Bam J would be best suited, pursuant to the provisions of
rule 42(1)
(b)
of the Uniform Rules of Court, to clarify whether she intended that
mining operations could continue in the interim pending the
appeal
being remitted to the Minister. An approach to Bam J would seem to be
the best course of action, in the interest of justice,
to remove any
ambiguity and resolve the primary issue in this application. It would
simply require a short application before Bam
J. I accordingly
invited the parties to consider that remedy. Regrettably, but perhaps
unsurprisingly, the applicants and Tendele
each advanced their
favoured interpretation of what the judgment meant and denied that
there was an ambiguity in the judgment.
That was unfortunate.
Interpreting the
judgment
[48]
Courts are called upon from time to time to
interpret the meaning and effect of judgments, other than their own,
as I am now required
to do with the judgment of Bam J. In doing so,
it is important to keep in mind that this court is not sitting as a
court of appeal
on the judgment to be interpreted, determining
whether it is right or wrong, or whether this court would have
granted a similar
or different order. Whether I might have granted a
different order, is irrelevant. I may not add to the judgment of Bam
J. I simply
have to determine what the judgment intended to convey as
the decision of the review court.
[49]
The proper approach to interpreting a
judgment requires that cognisance be taken of inter alia the
following:
(a)
Court
orders ‘are intended to provide effective relief and must be
capable of achieving their intended purpose’:
[56]
‘
The
starting point is to determine the manifest purpose of the order. In
interpreting a judgment or order, the court's intention
is to be
ascertained primarily from the language of the judgment or order in
accordance with the usual, well-known rules relating
to the
interpretation of documents. As in the case of a document, the
judgment or order and the court's reasons for giving it must
be read
as a whole in order to ascertain its intention.’
[57]
(b)
Findings
in a judgment, even if not expressly repeated or recorded in the
order granted, must be given effect to. Bam J indeed expressly

directed that the appeal was remitted back to the Minister for
reconsideration ‘in accordance with
the
findings
of this judgment.’
[58]
Further, she directed that in reconsidering the appeal, the Minister
had to consider the issues in paragraphs 4(a) and (b), ‘in

addition to
the
findings
of this judgment’ (emphasis added), and that Tendele had to
comply with the obligations in paragraphs 5 and 6 of her order.
(c)
A
judgment must be interpreted in its entirety and in the context in
which it was given with reference to the ‘relevant background

facts which culminated in it being made’.
[59]
The
order granted is merely the executive part of the judgment and should
not be interpreted in isolation, but in the context of
the judgment
as a whole.
[60]
(d)
Accordingly,
‘one should not stare blindly at the black-on-white words but
try to establish the meaning and implication of
what is being said.
It is in this process that the context and surrounding circumstances
are relevant.’
[61]
[50]
Bam
J made various findings in her judgment. Some of these have already
been alluded to earlier in this judgment.
[62]
Briefly restated:
(a)
She
found that ‘the wheels came off’ during the scoping phase
‘when the regional manager of DMR, KwaZulu-Natal
(RM), allowed
Tendele’s consultants, GCS, to dictate to him how Tendele
intended to carry out the exercise that would lead
to the Scoping
Report instead of insisting on compliance with the law’
[63]
describing
‘Tendele’s attempts to justify their exclusion of groups
[as] nothing short of egregious.’
[64]
(b)
In
respect of the scoping/EIA requirements she concluded that these
failed to meet the demands of legislation, describing the ‘[t]he

attitude displayed by Tendele during the scoping phase of its
application process [as] offensive. It portrays Tendele as an
“unbridled
horse” that showed little or no regard for the
law.’
[65]
(c)
Regarding
the lack of compliance with the provisions of IPILRA she
found
that: Tendele’s interpretation epitomises the ‘blinkered
peering at an isolated provision in a statute’
which the court
warned ‘against in
Scribante
,
as opposed to reading the statute purposively’; and that
‘Tendele’s ‘interpretation waters down, if not

renders nugatory, the protection offered by IPILRA to shield the
informal rights holders.’ Such interpretation she said,
‘cannot
be allowed’:
[66]
that there was ‘no evidence to support that the applicants were
lawfully deprived of their informal rights in terms of IPILRA’;
[67]
and ‘[i]n all, Tendele did not obtain consent as envisaged in
section 2 of IPILRA’ and the applicants ‘ground
therefore
succeeds.’
[68]
Discussion
[51]
The
judgment remitted the appeal to the Minister for reconsideration.
[69]
It required Tendele to ‘notify interested and affected parties
of their entitlement to participate in the appeal process’,
[70]
and required that Tendele:
‘
ensure
that public participation process to be conducted pursuant to the
Minister’s determination of the appeal process, complies
with
the requirements of (a) Public Participation Guidelines in terms of
the National Environmental Act, 1998 and (b) Chapter 6
of the
Environmental Impact Assessment Regulations, 2014
’.
[71]
No time limit was given
by when all that was to occur. If the interpretation of the order
contended for by Tendele is correct, then,
taken to its ultimate
conclusion, if any of the processes required for the appeal became
extended and were delayed, whether bona
fide or otherwise, the mining
could continue, potentially indefinitely, to a stage where the new
mining areas could become extensively
depleted. The appeal process
would then become largely an academic exercise, with mining having
continued with no valid mining
right and EMPr ever having been
properly authorised.
[52]
According to a timeline attached to the
applicants’ heads of argument marked ‘B’, using
allegations in Tendele’s
answering affidavit to demonstrate
that ‘Tendele is absolutely to blame for any predicament it may
find itself in,’
the applicants maintain, having regard to what
was required for notification and scoping (55 days), the EIA phase
(54 days) and
the Minister’s appeal decision (60 days), that
Tendele could have started with basic mining activities in January
2023, and
that this is the context in which Bam J’s order was
granted. Instead, the timeline now is that the notification and
scoping,
which was started on 1 July 2022, has taken 374 days, with
an EIA phase of 137 days, and the Minister’s decision on the
remitted
appeal taking 60 days, the process will not be completed
until the first quarter of 2024.
[53]
As
indicated earlier, it seems that Tendele itself initially
contemplated that the various requirements directed by the court
order
would have to be complied with before it could proceed with
mining.
[72]
But as also
pointed out the issue involves a question of law, not conduct.
[54]
The decisions by the director general and
the regional manager that were declared invalid are administrative
decisions. The law
regarding potentially invalid administrative
conduct can briefly be summarized as follows.
[55]
Under
the
Oudekraal
Estates v City of Cape Town
[73]
rule, Tendele’s mining right and EMPr must be treated as valid
and binding unless and until they are reviewed and set aside
by a
competent court. The SCA in
Oudekraal
held:
‘
our
law has always recognised that even an unlawful administrative act is
capable of producing legally valid consequences for so
long as the
unlawful act is not set aside.’
[74]
The
Oudekraal
rule has since been repeatedly confirmed by the Constitutional
Court.
[75]
In
Department
of Transport v
Tasima
,
the Constitutional Court recognised that ‘until a court is
appropriately approached and an allegedly unlawful exercise of
public
power is adjudicated upon, it has binding effect merely because of
its factual existence.’
[76]
[56]
In
MEC
for Health, Eastern Cape v Kirland Investments
,
the Constitutional Court held, with reference to the
Oudekraal
rule,
that an ‘
invalid
administrative action may not simply be ignored, but may be valid and
effectual, and may continue to have legal consequences,
until set
aside by proper process’
[77]
and
further, ‘that official conduct that is vulnerable to challenge
may have legal consequences and may not be ignored
until
properly set aside
.’
[78]
(emphasis
added)
[57]
In
Merafong v
AshantiGold
, the Constitutional Court
recognised that:
‘
The
import of
Oudekraal
and
Kirland
was that government cannot simply ignore an apparently binding ruling
or decision on the basis that it is invalid. The validity
of the
decision has to be tested in appropriate proceedings. And the sole
power to pronounce that the decision is defective, and
therefore
invalid, lies with the courts. Government itself has no authority to
invalidate or ignore the decision. It remains legally
effective
until
properly set aside
.’
[79]
(emphasis
added, footnote omitted)
[58]
More
recently the Constitutional Court in
Magnificent
Mile v Celliers NO
held:
‘
The
Oudekraal
rule
averts the chaos by saying an unlawful administrative act exists in
fact and may give rise to legal consequences
for
as long as it has not been set aside
.
The operative words are that it exists “in fact”.
This does not seek to confer legal validity to the unlawful

administrative act. Rather, it prevents self-help and guarantees
orderly governance and administration.’
[80]
(emphasis added, footnote omitted)
[59]
Thus, administrative conduct that has been
found to be invalid, as Bam J found in respect of the decisions, may
nevertheless be
ordered to continue to apply. Giving effect to
administrative conduct that has been declared invalid produces what
has been described
as an anomalous result. The Constitutional Court
has observed that:
‘
The
apparent anomaly that an unlawful act can produce legally effective
consequences is not one that admits easy and consistently
logical
solutions. But then the law often is a pragmatic blend of logic and
experience. The apparent rigour of declaring conduct
in conflict with
the Constitution and PAJA unlawful is ameliorated in both the
Constitution and PAJA by providing for a just and
equitable remedy in
its wake.’
[81]
(footnote omitted)
[60]
The question then more specifically becomes
whether a court which has found administrative conduct invalid,
nevertheless intended,
as a just and equitable remedy, that the
administrative conduct should continue to exist and that effect be
given thereto. Whether
that is the intended result depends on the
terms of the judgment.
[61]
The
general principle is that when a court declares an administrative
decision invalid, the decision is a nullity, and has no effect
in
law;
[82]
it is as though that administrative decision never existed.
[62]
Bam J issued a declarator that the director
general’s decision of 31 May 2016, in awarding the mining right
to Tendele, and
the regional managers decision of 26 October 2016, in
approving Tendele’s EMPr, were invalid. If the order of Bam J
ended
simply with the declaration of invalidity, without any further
qualification, then the finding of invalidity of the decisions would

have the legal consequence that they would be regarded as a nullity
from the outset, no mining activities could commence, and there
would
also be no decisions in respect of which a further appeal could lie
to the Minister.
[63]
Although the words ‘set aside’
are often used in conjunction with a declaration of invalidity, they
need not necessarily
follow a declaration of invalidity. If following
the declaration of invalidity the decisions were expressly said to be
set aside,
the result, in the absence of any other indications, would
be the same as if there was simply a declaration of invalidity
unqualified.
It would be as if the decisions have expressly been
declared to be set aside.
[64]
Having issued the order of invalidity Bam J
would have been aware of the legal effect of her order of invalidity,
and that she has
the power, if appropriate and to the extent
required, to prevent the consequences of nullity being visited on the
decisions, by
making any order that is just and equitable in terms of
s 172(1)
(b)
of the Constitution. Section 172(1)
(b)
is a provision, it has been held, which:
‘
clothes
our courts with remedial powers so extensive that they ought to be
able to craft an appropriate or just remedy even for
exceptional,
complex or apparently irresoluble situations.  And the operative
words in this section are “an order that
is just and
equitable”.  This means that whatever considerations of
justice and equity point to as the appropriate solution
for a
particular problem, may justifiably be used to remedy that problem.
If justice and equity would best be served or advanced
by that
remedy, then it ought to prevail as a constitutionally sanctioned
order contemplated in section 172(1)
(b)
.’
[83]
[65]
That is what Bam J did. Her order did not
end simply with a declaration of invalidity. She was asked to and did
consider what would
be a just and equitable remedy. She did not set
aside the decisions she had found to be invalid; on the contrary, she
expressly
declared that the decisions were ‘not set aside.’
[66]
In
the portion of her judgment dealing with a just and equitable
remedy
[84]
Bam J recorded
that the applicants had argued that the appropriate remedy was one
that Tendele commence its application for
a mining licence afresh.
The applicants had argued that this would be the only remedy that
would suit the circumstances of the
case, as opposed to a remittal of
the appeal to the Minister, as was sought by Tendele, and that as
such an appeal would not suspend
the administrative decision
resulting in the grant of the mining licence, unless the mining right
was suspended by the Director
General or Minister, it would mean that
the mine could go ahead and mine in the new areas.
[67]
If Bam J wished her order to have the
effect that mining could not continue, she simply could have set the
decisions aside. She
chose not to do so.
[68]
Bam
J specifically set her mind against an order which would result in
Tendele having to commence its application for the mining
right
afresh, by providing that the process effectively would continue from
the appeal stage. By doing so she reflected on ‘the
reasons
placed by the applicants’
[85]
which would include the submission advanced before her alluded to in
paragraph 66 above. The order she granted carries a strong
inference
that she was not wanting the mining to stop, all the more so also, by
expressly directing that the decisions ‘are
not set aside.’
[86]
[69]
The
applicants have argued that the normal consequences of nullity
ab
initio
would follow on the declaration of invalidity, unless, as provided in
s 172(1)
(b)
(i),
the order of invalidity was suspended, and that as Bam J had not
suspended the operation of her order of invalidity, the mining
right
and EMPr were therefore in any event a nullity. Such a strict
interpretation, requiring that an order suspending the invalidity
was
required, would in my view ignore the wording of s 172(1)
(b)
which empowers a court granting a just and equitable remedy to do so
in the form of ‘any order.’ Any such order could

‘include’ an order providing for the suspension a
declaration of invalidity, but a court is not confined to the
specific
orders provided in s 172(1)
(b)
(i)
and (ii) in modelling a just and equitable remedy. A court has a wide
discretion in terms of s 172(1)
(b)
to make ‘any order’ to ensure a just and equitable remedy
if it does not wish administrative conduct which has been
declared
invalid to be a nullity. Froneman J in
Bengwenyane
Minerals v Genorah Resources
[87]
held that the manner of conveying such an intention should not be
‘straight-jacketed.’ The issue is whether in providing

that the decisions were not set aside, but also not suspending the
declarations of invalidity (which she could have done), Bam
J
intended that the mining right and EMPr would continue to exist.
[70]
The applicants argued, as a further
alternative, that although Bam J had not expressly said so, by
stating that ‘[t]he decisions
are not set aside’ she
intended an order limiting the retroactive effect of her order of
invalidity of the decisions, as
the decisions would otherwise be a
nullity following on the declaration of invalidity. This it was
argued, was to preserve the
invalid decisions for the purposes of the
appeal she was remitting to the Minister, and only for that purpose,
as the remittal
of the appeal would otherwise not be logically
competent - there cannot be an appeal in respect of decisions by the
director general
and regional manager if those decisions did not, at
least, continue to exist in fact.
[71]
That argument was not dealt with in the
judgment of Bam J. It might fit in with the scheme of the judgment,
but the question then
becomes, if the decisions were preserved
prospectively as a jurisdictional fact for the purposes of the
appeal, why should the
prospectivity be preserved for that limited
procedural purpose only, and the words, ‘not set aside’,
according to their
general meaning, not be construed as permitting
the administrative decisions to continue as a fact, hence also
preserving the mining
right. That would permit mining to continue,
and not preclude the work Tendele wishes to undertake as foreshadowed
in the letters.
[72]
On the other hand, although Bam J ordered
that ‘[t]he decisions are not set aside’, the brief
reasoning in the judgment
does not include any further unequivocal
statement that her intention was, notwithstanding the various glaring
deficiencies she
had found in the grant of the mining right and the
approval of the EMPr processes, that mining should continue. She
could easily
have said that much, which would have clarified the
position without any doubt. Alternatively, the order of invalidity
could simply
have been suspended, on appropriate terms and until an
appropriate time, particularly as that is a just and equitable remedy
expressly
provided in s 172(1)
(b)
of the Constitution to ameliorate the effects of a declaration of
invalidity. The fact that she had not done so, is however also
not
conclusive.
[73]
In the final analysis, the words ‘The
decisions are not set aside’ cannot be ignored. Section
172(1)
(b)
of the Constitution does not require a setting aside of an
administrative act following a declaration of invalidity. Nullity of

the administrative act would normally follow
ex
lege
from a declaration of invalidity.
To then, in addition, expressly set aside the administrative act
might be unnecessary, or superfluous.
But it has come to be
recognised that the nullity of the administrative decision need not
follow in every instance where there
has been a declaration of
invalidity. As the learned authors, Professors Hoexter and Penfold
explain:
‘
Though
setting aside
with retrospective effect is the default remedy on review and thus
the logical starting point, it is nevertheless a discretionary
remedy
that may be withheld in certain circumstances. As explained in
Oudekraal
,
legality may on occasion be overridden by competing considerations
such as certainty, finality and practicality. This proposition
has
been illustrated most vividly in cases concerning public procurement,
some of which are discussed in what follows.
While
the
Constitutional Court has declined to “articulate a general
formulation” for the exercise of its discretion
,
factors that the courts have taken into account in deciding not to
set aside an award (or other decision) include the undesirability
of
disrupting an important public service; the effect of setting aside
would have on the public purse; questions of fault and fairness;
and
considerations of
practicality
and pragmatism
,
such as the nature and extent of the work remaining to be completed.
Further relevant factors mentioned by the courts and highlighted
by
Freund and Price include the seriousness of the illegality, delay,
and the failure to pursue alternative remedies.’
[88]
(emphasis added)
[74]
Tendele argues that it was not necessary
for Bam J to have suspended the declaration of invalidity in order to
avoid the consequences
of nullity being visited upon the decisions
she had declared to be unlawful, but that she could, and did, achieve
the same result
by simply directing that the decisions were not set
aside. It relied in this regard on the decision of the Constitutional
Court
in
Bengwenyama Minerals v Genorah
Resources
where the court held that
where a decision is declared unlawful but the court declines to set
it aside, the practical effect is
final, and not merely a temporary
suspension of invalidity.  Froneman J held that:
‘
There
is much merit in counsel‘s reminder that invalid administrative
conduct must be declared unlawful, but it seems to me
that it would
be unnecessarily inflexible and difficult to explain further
discretionary relief as a form of suspension of the
invalidity of
administrative action, in all cases.
If
the administrative action is declared unlawful, but all its
consequences are not set aside, the practical effect of the order

will be final, not merely a temporary suspension of invalidity
.
In my view
it
is not necessary to place the just and equitable relief that may be
granted under PAJA into this kind of conceptual straitjacket
in order for that relief to be constitutionally acceptable.’
[89]
(emphasis added)
[75]
Tendele
accordingly argues that there is nothing mysterious or unusual about
an order simply providing that the administrative act
is ‘not
set aside’, without any further qualification, such as
suspending the invalidity thereof. It contends that
not setting a
decision aside has the effect of permanently suspending the
declaration of invalidity. It referred to the Constitutional
Court
having granted relief in similar terms in
Minister
of Defence and Military Veterans v Motau
[90]
where, having found that the termination of services of board members
of Armscor was unlawful due to the failure to follow the
procedure
set out in
s 71(1)
and (2) of the
Companies Act 71 of 2008
, and that
as a result, the Minister to that extent had acted unlawfully and
that this had to be pointed out to the Minister,
[91]
the exceptional circumstances of the case before it, which included
that the term of the board members had in any event expired
and that
the Minister had been prompted to terminate their services due to
their continuous failings, that she had good cause to
terminate their
services. For those reasons it was held that it would not be just and
equitable to confirm the relief granted by
the high court which set
aside the termination of their services because of the unlawful
manner in which their services were terminated.
[92]
The Constitutional Court accordingly set aside the decision of the
high court and replaced it with the following orders:
‘
(a)
It is declared that the Minister acted unlawfully insofar as she
terminated the services of General Motau and Ms Mokoena on
the
Armscor Board without following the procedure set out in
section
71(1)
and (2) of the
Companies Act.
(b
)
The Minister’s decision to terminate the services of General
Motau and Ms Mokoena on the Armscor Board
is
not set aside
.’
[93]
(emphasis added)
[76]
Tendele argued that the high court did the
same thing in
Allpay Consolidated
Investment v CEO of the South African Social Security Agency
when it granted an order that:
‘
80.1
The tender process is declared illegal and invalid.
80.2
The award of the tender to the third respondent is not set
aside.’
[94]
As much as that was the
order granted in the high court, the Constitutional Court granted an
order in different terms, expressly
providing for the suspension of
the order of invalidity.
[77]
By analogy with these two decisions Tendele
argues that this is what Bam J did: the administrative decisions were
declared invalid
(in terms of
s 17
2(1)
(a)
);
but it was then expressly provided that despite their invalidity,
they would not be set aside. Tendele submits that applying
the
principles to be discerned from the aforesaid cases, Bam J
declared the administrative decisions unlawful and invalid
(as she
was bound to do in terms of s 172(1)
(a)
of the Constitution), but that she then exercised her just and
equitable remedial discretion in terms of s 172(1)
(b)
of the Constitution and expressly ordered that notwithstanding the
invalidity, ‘the decisions are not set aside,’ thereby

keeping the mining right and EMPr which would otherwise have been
void
ab initio
alive, notwithstanding their illegality. It submits that Bam J
considered and rejected the applicants’ argument that the
just
and equitable remedy of declining to set-aside the mining right and
EMPr would impermissibly allow Tendele to continue to
mine in terms
of the unlawful right, and that the learned judge granted a
pragmatic
order, declaring invalid, but not setting aside
the mining right and the EMPr precisely because she upheld Tendele’s
submissions
for a just and equitable remedy which recognised that
notwithstanding the unlawfulness, there were overwhelming practical
considerations
in favour of keeping the mining right and EMPr alive.
It argues that the interdicts that the applicants seek are therefore
premised
on a misreading of the review judgment; that Bam J was
persuaded that it would not be just and equitable to extinguish
Tendele’s
entitlements under the mining right and EMPr, as this
would lead to the closure of an operational mine; and that this is
the basis
upon which Bam J declined to set aside Tendele’s
mining right and the EMPr. They accordingly remained extant and give

rise to legal consequences.
[78]
The words ‘not set aside,’ in
their ordinary sense would convey that the effect of nullity of
administrative conduct
following a declaration of invalidity, is
permanently suspended. But the words, ‘The decisions are not
set aside’,
must always be assessed in the context in which
they are used. Each case must decided on its own facts.
[79]
In
Motau
the
declaration of unlawfulness due to non-compliance with the provisions
of the provisions of the
Companies Act, was
not visited with any
suspensive effect or nullity. On the contrary. The decision to
dismiss the two board members was considered
to be justified on other
grounds and their dismissal was declared not to be set aside based on
those reasons, rather than their
dismissal being set aside
in
toto
, as the high court did, due to
invalidity for not following the relevant provisions of the
Companies
Act. The
declaration of unlawfulness due to the relevant provisions
of the
Companies Act not having
been followed, was not affected by
the order not to set aside the termination of the board members’
services, and the declaration
of unlawfulness remained.
[80]
Similarly, in
All
Pay
it is significant that the
Constitutional Court was not, like the high court, in the factual
context of that case, content with
simply not setting aside the
relevant decisions. It provided expressly for the suspension of the
decisions.
[81]
As much as the Constitutional Court has
held that the just and equitable relief need not be placed in a
‘conceptual straightjacket’,
for example necessarily
employing the language of
s 172(1)
(b)
(i)
or (ii), it is equally significant that the Constitutional Court
concluded that where an administrative act is declared unlawful,
but
‘all its consequences are not set aside,’ then ‘the
effect is that the order will be final, not merely a
temporary
suspension of invalidity.’ Therefore, where an invalid
administrative act is, in totality, not set aside, all the

consequences of the invalid administrative act are not set aside, and
the effect of that order would be that it is final, and would
not
amount to a temporary suspension of those consequences.
[82]
But might that mean that Tendele could
continue mining indefinitely notwithstanding the declaration of
invalidity of the decisions,
and the omissions which should have been
complied with for a valid mining right to be granted? This raises the
question whether
there are any peculiar facts or indications in the
judgment of Bam J which should lead me to conclude that a result,
other than
the ‘permanent suspension’ of the declarations
of invalidity of the decisions, was intended by Bam J.
[83]
It had been submitted before Bam J by the
applicants that if the decisions were not set aside, Tendele would be
able to continue
mining. She was therefore alive to that consequence.
That notwithstanding, she nevertheless declined to set the invalid
decisions
aside, thus strongly pointing to an intention that the
normal result that would follow where administrative conduct is not
set
aside, would apply, namely that the decisions would continue in
fact. Tendele has pointed out correctly that if the applicants’

interpretation of Bam J’s judgment was correct, there
would have been no, or little purpose in declining to set aside
the
mining right and EMPr - Bam J could instead simply have declared the
decisions invalid and set them aside. That would have
produced the
result that the applicants now pursue by way of interdict: that no
mining could take place until a new mining right
had been applied for
and granted.
[84]
The process which had resulted in the grant
of the mining right and the approval of the EMPr was found by Bam J,
to be deficient.
Indeed, the relevant legal principles were in many
instances seemingly flouted. Tendele’s conduct was criticized
in strong
language: ‘egregious’, etc. The public
participation process was also deficient. Plainly Bam J, because
of the
public interest in the continuation of the mining operation,
wanted the entire process to be regularised, if possible, by an
abbreviated
process, by providing for the rights transgressed in many
instances when the decisions were obtained, being revisited properly
during the appeal process, which she was remitting to the Minister.
But in the interim she was seeking, in her words, to strike
‘the
correct balance of the various competing interests.’
[85]
The applicants further also argued that the
judgment of Bam J precludes the commencement of mining activities
unless and until Bam
J’s directives in paragraphs 5 and 6 of
her order had been fully complied with and completed. These
paragraphs of the order
require Tendele to notify interested and
affected parties of their entitlement to participate in the appeal
process and to ensure
that the public participation processes
complied with guidelines and regulations. They govern the conduct of
the appeal process.
It was however not provided expressly in the
order that these requirements had to be completed before any
activities could commence
in terms of the mining right and EMPr.
Whether any mining activities could be continued in the interim
pending the determination
of the appeal, is a question of law –
the proper interpretation of the judgment – and it is not
dependent on whether
the processes resulting in the decisions were
flawed. Bam J had found that they were but issued what she considered
to be a just
and equitable order, notwithstanding the shortcomings
having resulted in a finding of invalidity. That is what causes the
anomaly.
[86]
Seemingly on what was placed before Bam J,
it was contemplated that the remitted appeal process could be
completed by January 2023.
The reality however is that it still is
not completed. If mining could have been continued from May 2022 to
January 2023 while
the directions in the judgment would be
implemented, then the position would probably be not much different
to mining activities,
as contemplated in the letters, proceeding from
now until a corresponding future date early in 2024, after the elapse
of a similar
period of time.
[87]
As this issue arose mainly from the
attachment to the applicants’ heads of argument, I extended an
invitation to the parties
after argument had been heard, to file
additional argument on the following questions:
‘
If
the judgment of Bam J contemplated that the time-line for the
remitted appeal process (paragraph 3 of the court order) would
be
that in annexure B to the applicants’ heads of argument,
commencing from 4 May 2022 and being completed by January 2023:
(a)
Do the respondents agree that the appeal
process could have been completed by January 2023, alternatively by
the time when the present
application was launched?
(b)
If not, by what date, according to the
respondents could the appeal process have been completed?
(c)
What is the effect, if any, on the order of
Bam J if the appeal process was not completed by the dates in sub
paragraphs (a) and
(b) above?’
I am grateful to counsel
for the supplementary heads of argument that were filed.
[88]
Briefly, in the supplementary heads of
argument, Tendele contends that the order granted by Bam J
purposefully did not specify a
time frame in paragraphs 4, 5 and 6 of
her order for the completion of the appeal process, because the
direction to the Minister
was to reconsider the appeal ‘in
accordance with the findings of this judgment’, which included
also a consideration
as to whether the consent required in terms of
IPILRA had been obtained. It points out that IPILRA does not
prescribe any time
frame. Tendele accordingly disputes that the
appeal process could have been completed by January 2023,
alternatively by the time
the present application was launched on 6
March 2023.  The fifth to eighth respondents similarly dispute
that there was an
agreed time frame to complete the appeal by January
2023, or that Bam J’s order contemplated a time frame within
which to
complete the appeal process. Otherwise, they associated
themselves with the submissions by Tendele. The applicants submit
that
they do not contend that the appeal process should have been
completed by January 2023, but that it ‘could have been
completed
by the first quarter of 2023 if not earlier as initially
anticipated by Tendele . . .’ but in any event before mining
activities
commenced. They state the purpose of annexure B as
illustrating that Tendele is absolutely to blame for any predicament
it may
find itself in. They point out that Tendele is still in
Scoping, the first phase of the EIA process, now 14 months after Bam
J’s
judgment, and that the EIA report will be pushed out to
February 2024 with a decision by the Minister anticipated only at the
end
of April or beginning of May 2024. That they contend, is as
opposed to the time frame had the mining right been set aside and the

process had to start from scratch, which would have resulted in the
final EIA report in December 2022 and a decision being received
from
the DMRE in April 2023. They point out that Tendele’s current
EIA schedule will take some 571 days to complete. They
further accuse
Tendele of continuing to rely on a schedule that it knows to be
unattainable, that its conduct is inconsistent with
the assurances
given to Bam J that Tendele was ‘intent on doing everything
reasonably possible to guard against the process
on appeal before the
Minister being assailed’, that Tendele ‘has bungled its
EIA process again’, and that it
has not explained the delays.
The applicants conclude that there can be no just and equitable
remedy if Tendele is permitted to
start mining without having first
complied with Bam J’s judgment and order.
[89]
The question arising from the aforesaid
competing timelines, assuming in favour of the applicants as it is
disputed, that the process
had become drawn out and/or unduly
delayed, is what effect, if any, that would have on the order of Bam
J. Bam J’s order
did not specify a deadline for the completion
of the appeal process. She presumably, in the context of her
judgment, as no judgment
is granted in vacua, would have contemplated
that the remitted appeal would be finalised within some reasonable
time frame. Carrying
on mining operations, as a just and equitable
remedy, could not commence and continue in perpetuity with no appeal
being prosecuted.
[90]
On what has been placed before me I am
unable to conclude that the delays have necessarily been
unreasonable. But it also does not
seem necessary to make that
finding. The work contemplated in the letters has not commenced. It
will be the first mining work to
commence in respect of the areas to
which the mining right relates. If Bam J intended to allow mining to
continue in the interim
pending a reasonable period being allowed for
the appeal to be finalised, then such work as contemplated in the
letters, and being
of a limited nature and confined to the mining
areas in accordance with undertakings provided by Tendele in the
various proceedings,
which might now occur, will be little dissimilar
to any work that could have commenced immediately after the judgment
was delivered
and pending the appeal being prosecuted forthwith
without delay. I am accordingly also not persuaded that it has been
established
that possible harm which could be occasioned now would
fall outside the parameters which Bam J would have taken into account
in
fashioning her just and equitable remedy. If it does, then this is
something which should be determined by any such ambiguity in
the
judgment being clarified by Bam J. Going beyond what I have concluded
above would go beyond simply interpreting the judgment
of Bam J.
[91]
Bam J would also have been aware that
although the mining rights extend to new areas of the mine, the same
type of operation as
conducted by the mine since 2006 would occur.
The mining modus would therefore not be dissimilar to what has
occurred before.
[92]
I am not persuaded that the applicants have
as a matter of law established a
prima
facie
right that Tendele was prohibited
by the judgment from undertaking the work foreshadowed in the three
letters, before the Minister
would reconsider the appeal.
Alleged
non-compliance with other statutory requirements.
[93]
The applicants also argued that separate
and independent from the judgment of Bam J, they have a
prima
facie
right to interdict the
continuation of mining in the affected areas, as Tendele has failed
to satisfy a number of statutory requirements
which are required to
be complied with before commencing any mining or related activity. In
the main these complaints relate to
the requirements of IPILRA and
the requirement to consult with interested parties.
[94]
The
applicants submit that on Tendele’s own version it had not
complied with IPILRA, referring also to the findings made by
Bam J,
specifically that she found that there was no evidence to support
that the applicants were lawfully deprived of their informal
rights
in terms of IPILRA, as ‘[i]n all, Tendele did not obtain
consent as envisaged in
section 2
of IPILRA’.
[95]
They also stressed that invitations to participate in IPILRA meetings
were only delivered to homesteads identified to be
within the ZOI,
that is within a 1000 meter radius of the mining pits, and that this
excluded a large part of the affected local
community as defined in,
amongst others,
Sustaining
the Wild Coast NPC v Minister of Mineral Resources and Energy
,
[96]
and thus fell foul of the MPRDA definition. The applicants were also
critical, in respect of those members of the community who
might have
consented, whether their consent could be informed consent, unless
the studies were all available, and details had been
made available,
so the affected members of the community would know what they were
consenting to. There were also criticisms that
the meetings for
compensation did not mention compensation for the loss of water use
and some other benefits.
[95]
In my view these requirements do not stand
separate from the judgment of Bam J. The issue of compliance
with the provisions
of IPILRA, important as they are, and the
deficiencies in the consultation process, formed part of and were
encompassed in the
judgment of Bam J. These were decided separately
from the other deficiencies in the mining right process which were
conceded to
have rendered the decisions invalid. Bam J held that:
‘
Tendele
did not obtain the consent as envisaged in
section 2
of IPILRA. This
ground therefore succeeds.’
[97]
[96]
In
regard to the public participation process and scoping Bam J
concluded ‘that Tendele had flouted the law with regard to

public participation . . .’
[98]
Her order specifically contains directions, to apply to the remitted
appeal, ‘to ensure that the public participation process
to be
conducted pursuant to the Minister’s determination of the
appeal process’ would comply with the requirements
of the
Public Participation Guidelines in terms of the NEMA and chapter 6 of
the
Environmental Impact Assessment Regulations.
[97
]
As regards IPILRA and compensation, no
individual community member can be compelled to relocate, without
such member having consented,
and such consent will undoubtedly be
informed by the compensation offered. Tendele alleges that the
majority of possibly affected
families have consented. If a
particular individual occupier has not consented, then he/she cannot
be removed. The position of
each much be decided on their own
preferences, choices and the merits. As I understand the judgment of
Bam J, this requirement
was also to be resolved during the appeal
process.
[98]
I am unable to conclude, even at a
prima
facie
level, that these requirements
stand separate and distinct from the subject matter of Bam J’s
judgment. They must fall together
with the conclusion I have reached
earlier regarding the interpretation of the judgment.
An alternative
satisfactory remedy – applying for the decisions to be
suspended
[99]
In the light of the conclusion to which I
have come that a prima facie right was not established, the other
requirements for an
interdict assume subsidiary importance. I however
deal briefly with the issue whether the applicants have an
alternative satisfactory
remedy.
[100]
An
applicant for an interim interdict must demonstrate that it has no
other satisfactory remedy.
[99]
The Constitutional Court held in
Eskom
v
Vaal
River Development Association
that:
‘
an
applicant for an interim interdict must show that there is no other
satisfactory
remedy
. . . the common law requirement is expansive in its reach in the
sense that it brings within its sweep any other
satisfactory
remedy. The limit is whether the remedy is satisfactory; a question
the answer to which depends on the circumstances of each case.”
[100]
(emphasis in the original)
[101]
Tendele argues that a party who wishes to
suspend mining under a mining right and EMPr which are subject to an
appeal before the
Minister, has a remedy under
s 96(2)
(a)
of the MPRDA. That subsection provides that an appeal to the Minister
against the granting of a mining right or approval of an
EMPr:
‘
does
not suspend the administrative decision,
unless
it is suspended by
the Director-General
or
the Minister
,
as the case may be.’ (emphasis added)
[102]
The applicants have however submitted that
there are a number of difficulties with that proposition: firstly,
that there is no procedure
expressly provided for in the MPRDA that
an interested party in the position of any of the applicants may
apply to the Minister
for a suspension of the decisions; secondly,
that the right to suspend appears to be one which only the Minister
himself may invoke;
thirdly, that even if such a right to apply for a
suspension on the part of an aggrieved party can be read into or
inferred in
s 96(2)
(a)
,
the obligation to exhaust remedies before applying to court is
confined to ‘review of an administrative decision’,
as
occurred before Bam J, and not to an application for an interdict, as
is before this court.
[103]
Regardless
of
s 96(2)
(a)
not expressly referring to an application for suspension, Tendele
states in its answering affidavit that applications to suspend
mining
rights are frequently brought within the powers conferred by the
subsection, and are determined by the Minister, while an
appeal is
pending before him.
[101]
The
correctness of this allegation was not disputed by the applicants in
reply. In practice this is not a remedy which is dependent
only on
the Minister, of his own volition and unilaterally, deciding whether
to suspend a mining right or not. In practice applications
are
brought to the Minister by persons affected by the grant of mining
right, and these are dealt with by the Miniister. Applying
to the
Minister to suspend a mining right is accordingly an alternative
remedy available to an aggrieved party.
[104]
Further, it is an appropriate remedy as any
decision relating to the continuation of mining is in principle
policy-laden and involves
a polycentric evaluation requiring a
consideration and weighing up of many considerations which the
Minister, advised by technocrats
in his department, is probably best
equipped to answer.
[105]
And finally, whether an alternative remedy
should first be pursued is not simply dependent on whether that is
required by
s 96?
Section 96(3)
does require an internal appeal in
terms of
s 96(1)
to be pursued as a remedy before a court may be
approached on review, but the requirement that there must be no
alternative satisfactory
remedy available to an applicant for an
interdict, applies to a different remedy, and in any event is a
common law requirement
for an interdict, which stands free of the
provisions of
s 96.
[106]
That the applicants have this alternative
remedy was raised by Tendele squarely in its answering affidavit. The
applicants did not
offer any explanation in reply why they have not
done so.
[107]
In their heads of argument, the applicants
however argued that, because Tendele’s mining right and EMPr
have been declared
invalid,
s 96(2)
(a)
of the MPRDA finds no application. Tendele’s argument is
however predicated on the mining right and EMPr contention remaining

in existence in fact. If the effect of Bam J’s judgment
is, as I have found, that Tendele remained possessed, as a fact,
of
an extant Mining Right and EMPr, which is the subject of an appeal to
the Minister in terms of
s 96
, then
s 96(2)
(a)
applies and affords an alternative remedy.
[108]
In their heads of argument, the applicants
further suggested that any appeal to the Minister, even if it may be
an alternative remedy,
is not a satisfactory alternative remedy. They
had attempted to exhaust their remedies to the Minister by writing a
letter asking
him to cancel or suspend Tendele’s mining right.
[109]
The letter to which the applicants refer
however, did not constitute an application for suspension in terms of
s 96(2)
(a)
,
but was a request to the Minister on 1 June 2022, shortly after Bam
J’s judgment was handed down, in terms of
s 47(1)
(d)
of the MPRDA based on Tendele having allegedly advanced inaccurate
and misleading information in support of its mining right
application.
Because it had allegedly done so, it was said that it
acted unlawfully, and the Minister was requested to suspend the
mining right
in terms of
s 47(1)
(d)
of the MPRDA.
[110]
Section 47(1)
(d)
of the MPRDA provides for a suspension, but it caters for an entirely
different situation to that provided for in terms of
s 96(2)
(a)
.
Section 47(1)
(d)
relates to the Minister suspending a mining right on the basis of
past misconduct by a mining right applicant.
Section 96(2)
(a)
provides for prospective consequences of allowing a mining right
which is subject to appeal, to be suspended pending the determination

of the appeal.
[111]
The basis upon which the Minister was asked
to exercise his
s 47
powers were the findings by Bam J, rather than
any prospective conduct or harm that would be suffered by any person
if Tendele
was permitted to commence mining in terms of its mining
right in the respects foreshadowed in the letters, pending the
determination
of the appeal. The considerations are entirely
different.
[112]
The letter sent in June 2022 in terms of
s
47
of the MPRDA therefore cannot be considered as invoking, and less
so, exhausting the remedy in
s 96(2)
(a)
.
The latter would require a different application, in which the
Minister would be sought to be persuaded that mining should not
take
place pending his determination of the appeal.
[113]
In argument, the applicants also submitted
that the Minister had not reacted to the letter that was sent in
terms of
s 47
, accordingly, that the response would have been no
different in respect of an application in terms of
s 96
, hence that
even if the remedy of a suspension of the mining right might be
available in terms of
s 96
, the fact that the Minister did not
respond to the application in terms of
s 47
, would hardly render the
availability of an application in terms of
s 96
, a satisfactory
remedy.
Section 96
might afford a remedy, but, according to the
applicants, not a satisfactory remedy.
[114]
The fact that the application in terms of
s
47
might have met with no response from the Minister does not mean
that an appropriate application in terms of
s 96
would have met with
a similar response, and would hence not constitute a satisfactory
alternative remedy which should have been
exhausted. If the Minister
was dilatory in considering the application for suspension of the
mining right and EMPr pursuant to
s 96
, then he should be compelled
to do so.
[115]
I agree with the submission by Tendele that
the omission to pursue the alternative internal remedy is an obstacle
to the grant of
interdictory relief. This is particularly so as the
decision whether to suspend the mining right is a polycentric one,
best determined
by a statutorily ordained administrator, who can
benefit from the advice and input of experts in the relevant
department, who deal
with the considerations involved on a policy
basis.
[116]
The Minister, supported by the departmental
officials advising him, have the necessary technical expertise and
information to make
the polycentric policy decisions that are
implicated in such applications. The Constitutional Court in
Koyabe
v Minister of Home Affairs
remarked:
’
[35]
Internal remedies are designed to provide immediate and
cost-effective relief, giving the executive the opportunity to
utilise
its own mechanisms, rectifying irregularities first, before
aggrieved parties resort to litigation. Although courts play a vital

role in providing litigants with access to justice, the importance of
more readily available and cost-effective internal remedies
cannot be
gainsaid.
[36] First, approaching a
court before the higher administrative body is given the opportunity
to exhaust its own existing mechanisms
undermines the autonomy of the
administrative process. It renders the judicial process premature,
effectively usurping the executive
role and function. The scope of
administrative action extends over a wide range of circumstances, and
the crafting of specialist
administrative procedures suited to the
particular administrative action in question enhances procedural
fairness as enshrined
in our Constitution. Courts have often
emphasised that what constitutes a “fair” procedure will
depend on the nature
of the administrative action and circumstances
of the particular case. Thus, the need to allow executive agencies to
utilise their
own fair procedures is crucial in administrative
action.
. . .
[37]
Internal administrative remedies may require specialised knowledge
which may be of a technical and/or practical nature. The
same holds
true for fact-intensive cases where administrators have easier access
to the relevant facts and information.’
[102]
(footnotes omitted)
[117]
In
Dengetenge
v Southern Sphere Mining
,
the Constitutional Court, in the context of the duty to exhaust the s
96(3) right of appeal before bringing a review, emphasised
the
importance of exhausting the internal remedies provided by s 96
of the MPRDA before approaching a court.
[103]
As further held by the Constitutional Court in
Gavric
v Refugee Status Determination Officer, Cape Town
,
the importance of internal remedies in resolving complex factual
issues is pronounced when these issues are such that they often
arise
and would benefit from the structured involvement of a decision-maker
with expertise in the field, it held.
[104]
‘
Providing
for internal remedies is eminently sensible given the complex and
specialised legal and factual issues that may arise;
the number of
cases concerned; the need to ensure that applicants for asylum are
given a proper hearing and ventilation of their
case; and the drastic
and catastrophic consequences that may result if an applicant is
wrongly refused asylum.’
[118]
In
Eskom v
Vaal River Development Association
,
the Constitutional Court recognised that there are circumstances
where:
‘
either
because of a combination of factors that include the complexity of
the legal question, its novelty, little or no assistance
from the
litigants’ argument, the speed with which the outcome is
required and lack of sufficient time for the judge to consider
the
matter as best they can – the judge may not be in a position to
reach a definitive decision on a legal question.’
[105]
[119]
In
Johannesburg
Municipal Pension Fund v City of Johannesburg
,
the court held that:
‘
Impressive
and erudite arguments were addressed to me on all these grounds. I
cannot do justice to all the considerations referred
to. All the
issues referred to involve “difficult questions of law”
and none of them can be described as “ordinary”.
Nor is
it desirable to rule at this interim stage that there is no prospect
of success on any of these bases of review. The issues
are simply too
involved (“a serious question to be tried”) and of such
gravity that they cannot be, and should not
be, disposed of in these
interim proceedings.’
[106]
[120]
Tendele rightly points out that if the
applicants had applied to the Minister for a suspension in terms of s
96(2)
(a)
of the MPRDA, the position would be fundamentally different:
(a)
The applicants would have provided the Minister with all the relevant
facts in support of their
contention that Tendele’s mining
right should be suspended pending the Minister’s determination
of the appeal; Tendele
would have had the opportunity of responding;
the Minister would then have considered the competing contentions;
and he would have
decided whether, on balance, the mining right and
EMPr should be suspended pending his determination of the applicant’s
appeal;
(b)
If the Minister decided to suspend the mining right, there would have
been no need for this application
and the matter, being of a
polycentric nature, would more appropriately have been decided by the
Minister; and if the Minister
dismissed the application, the
applicants would have the remedy of approaching a court for
appropriate relief, probably in the
form of a review coupled with
interim relief.
(c)
In a review the Minister would have been cited as a respondent, and
he would be required to place
his reasons for declining a suspension
before the court meaning that the court would have the benefit of the
Minister’s reasons
for his decision as well as his answering
affidavit explaining why, in his judgment, the suspension should not
have been granted.
Instead, the applicants simply ask this court to
take a first instance decision as to whether an extant mining right
should be
suspended pending the determination of an appeal to the
Minister. In doing so they have removed the dispute from the
statutory
process, in terms of which Parliament has entrusted the
Minister to make this decision at first instance; and deprived this
court
of the benefit of the Minister’s first instance decision,
reasons, and answering affidavit.
[121]
Decisions of the kind that s 96(2)
(a)
of the MPRDA allocates to the Minister must be treated with
appropriate judicial deference. Deference
‘
in
these circumstances has been recommended as:
“ …
a
judicial willingness to appreciate the legitimate and
constitutionally-ordained province of administrative agencies; to
admit
the expertise of those agencies in policy-laden or polycentric
issues; to accord their interpretation of fact and law due respect;

and to be sensitive in general to the interests legitimately pursued
by administrative bodies and the practical and financial constraints

under which they operate. This type of deference is perfectly
consistent with a concern for individual rights and a refusal to

tolerate corruption and maladministration. It ought to be shaped not
by an unwillingness to scrutinize administrative action, but
by a
careful weighing up of the need for – and the consequences of –
judicial intervention. Above all, it ought to
be shaped by a
conscious determination not to usurp the functions of administrative
agencies; not to cross over from review to
appeal.
”’
[107]
[122]
In
Minister of
Environmental Affairs and Tourism v
Phambili
Fisheries
, the SCA said the following:
‘
Judicial
deference is particularly appropriate where the subject matter of an
administrative action is very technical or of a kind
in which a court
has no particular proficiency. We cannot even pretend to have the
skills and access to knowledge that is available
to the Chief
Director. It is not our task to better his allocations, unless we
should conclude that his decision cannot be sustained
on rational
grounds.’
[108]
[123]
The
Constitutional Court confirmed this principle on appeal:
[109]
‘
In
treating the decisions of administrative agencies with the
appropriate respect, a court is recognising the proper role of the

executive within the Constitution.  In doing so a court should
be careful not to attribute to itself superior wisdom in relation
to
matters entrusted to other branches of government. A court should
thus give due weight to findings of fact and policy decisions
made by
those with special expertise and experience in the field. The extent
to which a court should give weight to these considerations
will
depend upon the character of the decision itself, as well as on the
identity of the decision-maker. A decision that requires
an
equilibrium to be struck between a range of competing interests or
considerations and which is to be taken by a person or institution

with specific expertise in that area must be shown respect by the
courts. Often a power will identify a goal to be achieved, but
will
not dictate which route should be followed to achieve that goal.
In such circumstances a court should pay due respect
to the route
selected by the decision-maker.’
[124]
Section 96 of the MPRDA affords the
applicants a satisfactory alternative internal remedy that is better
suited to resolving the
complex factual issues and polycentric
considerations that arise in this matter.
Irreparable harm
[125]
Very little needs to be said under this
heading.
[126]
The
Constitutional Court in
National
Treasury v Opposition to Urban Tolling Alliance
held that the
prima
facie
right an applicant must establish is a right to which, if not
protected by an interdict, irreparable harm would ensue.
[110]
An interim interdict may accordingly only seek to guard against the
prospective, as opposed to retrospective, violation of rights.
[111]
[127]
There is no doubt that if the work
foreshadowed in the letters proceeded and this was not allowed in the
judgment of Bam J that
the affected owners could suffer harm, and
probably irreparable harm.
Balance of convenience
[128]
As regards the balance of convenience, the
issue in this application is one of legality. The balance of
convenience would have little,
if any, significance. To the extent
that this requirement might have relevance, the impact of mining not
continue will also affect
Tendele. It would probably be fair to say,
that on the disputed facts on the balance of convenience, the scales
are probably held
equally. Other considerations are however decisive
of the application for the interdict.
Conclusion
[129]
The applicants have not satisfied the
requirements of a
prima facie
right and no satisfactory alternative remedy.
Costs
[130]
The respondents have been successful.
Tendele does not seek costs against the applicants. Nor does the
fifth to eighth respondents
seek costs against the applicants.
[131]
No costs orders are accordingly made.
Order
[132]
The following order is granted:
The application for the
relief claimed in part A of the Notice of Motion is dismissed.
KOEN J
APPEARANCES
For
the applicants:
A
de Vos SC
M
Mazibuko
E
Broster
Instructed
by:
All
Rise Attorneys (K Youens)
c/o
Hay and Scott Attorneys
Pietermaritzburg
(Ref:
R Brent)
For
the first respondent:
P
Lazarus S.C.
N
Ferreira
M
Salukazana
D
Sive
Instructed
by:
Malan
Scholes Attorneys
(L Bolz)
c/o
Shepstone & Wylie Attorneys
Pietermaritzburg
(Ref:
JTM/mm)
For
the fifth to eighth respondents:
Instructed
by:
DMS
Attorneys
c/o
Shepstone & Wylie Attorneys
Pietermaritzburg
(Ref:
M Mthembu)
[1]
The
first applicant is the Mfolozi Community Environmental Justice
Organisation. The second applicant is the trustees for the
time of
the Global Environmental Trust. The third applicant is the Mining
Affected Communities United in Action. The fourth applicant
is the
Southern Africa Human Rights Defenders Network. The fifth applicant
is Actionaid South Africa,
[2]
The
correctness of this factual allegation is not denied by the
applicants. Tendele currently holds three mining rights, the first

in connection with an area known as Area 1 which was granted in May
2007 and the applicable Environmental Management Plan approved
in
June 2007, the second in connection with Areas 2 and 3 originally
granted in February 2011 and amended to include additional
regions
in March 2013, and then the present mining right featuring in this
application covering Areas 4 and 5. Although Tendele
holds different
licences for the various areas, the mine is conducted as one
operation by one management.
[3]
The
mine was the principal supplier of anthracite to ferrochrome
producers in South Africa. Ferrochrome is a critical component
in
the production of stainless steel and the inability of the Mine to
supply anthracite has consequences for the South African

construction, transportation, energy, and manufacturing industries
where stainless steel is used.
[4]
The
correctness of this factual allegation is not denied by the
applicants.
[5]
The
applicants do however claim, but without substantiation, that the
employment figures are inflated. It stands to reason however
that a
reduction in production will increase unemployment.
[6]
The
correctness of these factual allegations is not denied by the
applicants.
[7]
Section
1
(c)
of the Constitution provides:.
‘
The
Republic of South Africa is one, sovereign, democratic state founded
on the following values:
. . .
(c)
Supremacy of the Constitution and the rule of law
. . . ’
Section 2 of the
Constitution provides: ‘This Constitution is the supreme law
of the Republic; law or conduct inconsistent
with it is invalid, and
the obligations imposed by it must be fulfilled.’
[8]
Section
24 of the Constitution provides:
‘
Everyone
has the right-
(a)
to an environment that is not harmful to their
health or well-being; and
(b)
to have the environment protected, for the
benefit of present and future generations, through reasonable
legislative and other
measures that-
(i)
prevent pollution and ecological degradation;
(ii)
promote conservation; and
(iii)
secure ecologically sustainable development and use of natural
resources while promoting
justifiable economic and social
development.’
[9]
Section
22 of the Constitution provides: ‘Every citizen has the right
to choose their trade, occupation or profession freely.
The practice
of a trade, occupation or profession may be regulated by law.’
[10]
Section
33 of the Constitution provides:
‘
(1)
Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2) Everyone whose
rights have been adversely affected by administrative action has the
right to be given written reasons.
(3) National legislation
must be enacted to give effect to these rights, and must-
(a)
provide for
the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal;
(b)
impose a
duty on the state to give effect to the rights in subsections (1)
and (2); and
(c)
promote an
efficient administration.'
[11]
Section
34 of the Constitution provides: ‘Everyone has the right to
have any dispute that can be resolved by the application
of law
decided in a fair public hearing before a court or, where
appropriate, another independent and impartial tribunal or forum.’
[12]
The
details of the procedures to be complied with and whether they were
complied with arose in Bam J’s review judgment in
the Gauteng
Division of the High Court under case no. 82865/18 dated 4 May 2022,
and reported as
Mfolozi
Community Environmental Justice Organisation and others v Minister
of Minerals and Energy and others
[2022] ZAGPPHC 305 (the review). Although the applicants allege that
some of these requirements have still not been complied
with, as a
ground for granting the interdict requested, in the view I take of
the matter, they need not be dealt with in this
judgment.
[13]
The
Minister of Mineral Resources and Energy, representing the
Department of Mineral Resources and Energy, was cited as the second

respondent.
[14]
See
generally the review reported as
Mfolozi
Community Environmental Justice Organisation and others v Minister
of Minerals and Energy and others
[2022] ZAGPPHC 305 para 8.
[15]
The
extent of its representation was however disputed. But nothing turns
on this.
[16]
Section
38 of the Constitution provides:
‘
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are-
(a)
anyone
acting in their own interest;
(b)
anyone
acting on behalf of another person who cannot act in their own name;
(c)
anyone
acting as a member of, or in the interest of, a group or class of
persons;
(d)
anyone
acting in the public interest; and
(e)
an
association acting in the interest of its members.’
[17]
Mineral
and Petroleum Resources Development Regulations GN
R527 in
GG
26275 of 23 April 2004.
[18]
Mfolozi
Community Environmental Justice Organisation and others v Minister
of Minerals and Energy and others
[2022] ZAGPPHC 305.
[19]
Cited
as the fourth respondent in the review.
[20]
The
first respondent in the review.
[21]
The
third respondent in this application, and cited as the fifth
respondent in the review.
[22]
Being
the fourth respondents in this application and they were not a party
in the review.
[23]
The
review fn 18 paras 15 and 16.
[24]
The
review fn 18 para 16.
[25]
The
review fn 18 para 17.
[26]
The
review fn 18 para 21.
[27]
The
review fn 18 para 24.
[28]
The
review fn 18 para 32.
[29]
The
review fn 18 para 33.
[30]
The
review fn 18 para 36.
[31]
The
review fn 18 para 37.
[32]
The
review fn 18 para 56.
[33]
The
review fn 18 para 56.
[34]
The
review fn 18 para 70.
[35]
The
review fn 18 para 71.
[36]
Khumalo
and another v Member of the Executive Council for Education:
KwaZulu-Natal
[2013] ZACC 49
;
2014 (5) SA 579
(CC);
2014 (3) BCLR 333
(CC) para 53
onward.
[37]
The
review fn 18 para 75ff, particularly para 81.
[38]
The
review fn 18 para 21.
[39]
The
review fn 18 para 81.
[40]
That
presumably refers to the argument of the applicants quoted in
paragraph 75 of the judgment, referred to in paragraph 27 above,

that a referral to the Minister rather than the mining right being
set aside and the process starting afresh, would result in
the
mining continuing.
[41]
Environmental
Impact Assessment Regulations, 2014
GNR 982 in
GG
38282 of 4 December 2014.
[42]
The
applicants suggest that another mining company might be able to do
“
a
better job
”
than Tendele at mining the coal.
[43]
Eskom
Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd and
others
[2022]
ZACC 44
;
2023 (5) BCLR 527
(CC) para 253. As Tendele contends that
the relief claimed in the interim interdict will be final in effect,
it submitted that
the applicants must satisfy the test for final
relief by establishing a clear right on the basis of
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A). However, for the purpose of argument, it addressed
the less stringent requirements for an interim interdict.
[44]
Eskom
Holdings SOC Ltd v Vaal River Development Association
para
291.
[45]
Eskom
Holdings SOC Ltd v Vaal River Development Association
para
218.
[46]
Economic
Freedom Fighters v Gordhan and others; Public Protector and another
v Gordhan and others
[2020] ZACC 10
;
2020 (6) SA 325
(CC);
2020 (8) BCLR 916
(CC) para
48.
[47]
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton and another
1973
(3) SA 685
(A) at 691F;
Radio
Islam v Chairperson, Council of the Independent Broadcasting
Authority, and another
1999
(3) SA 897
(W) at 903G.
[48]
Hix
Networking Technologies v System Publishers (Pty) Ltd and another
[1996] ZASCA 107
;
1997
(1) SA 391
(A)
at
399A.
[49]
Cipla
Medpro (Pty) Ltd v Aventis Pharma SA and related appeal
[2012]
ZASCA 108
;
2013 (4) SA 579
(SCA) para 52.
[50]
Webster
v Mitchell
1948 (1) SA 1186
(W) at 1189.
[51]
Gool
v Minister of Justice and another
1955 (2) SA 682
(C) at 688.
[52]
Webster
v Mitchell
,
words in square brackets inserted by
Gool
v Minister of Justice
(note that
Gool
v Minister of Justice
merely quoted the headnote of
Webster
v Mitchell
).
[53]
The
scoping report and EIA would need to be circulated to interested and
affected parties, which would only occur during May/June
2023 with
the EIA process to be finalised in December 2023.
[54]
The
applicants also complain that no consent has been sought in the
Mahujini community as required in terms of
s 2
of IPILRA, that the
biodiversity off-set plan remains in draft and has not been
finalized, and that Tendele has not developed
a resettlement plan.
Tendele has undertaken not to undertake any work in the Mahujini
area until the appeal remitted to the Minister
has been determined.
[55]
The
appeal process, which was preserved by the review judgment remitting
it to the Minister, would not, in terms of the provisions
of
s
96(2)
(a)
of the MPRDA, suspend the operation of the original decisions, if as
a fact, they continued to exist.
[56]
S.O.S
Support Public Broadcasting Coalition and others v South African
Broadcasting Corporation (SOC) Limited and others
[2018]
ZACC 37
;
2019 (1) SA 370
(CC);
2018 (12) BCLR 1553
(CC) para 52.
[57]
Finishing
Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and
others
[2012]
ZASCA 49
;
2013 (2) SA 204
(SCA) para 13, as subsequently confirmed
by the Constitutional Court in
Eke
v Parsons
[2015]
ZACC 30
;
2016 (3) SA 37
(CC);
2015 (11) BCLR 1319
(CC) para 29.
[58]
The
review fn 18 para 3 of the order.
[59]
HLB
International (South Africa) (Pty) Ltd v MWRK Accountants and
Consultants (Pty) Ltd
[2022] ZASCA 52
;
2022 (5) SA 373
(SCA) para 27, citing
KPMG
Chartered Accountants (SA) v Securefin Ltd and another
[2009] ZASCA 7
;
2009 (4) SA 399
(SCA);
[2009] 2 All SA 523
(SCA)
para 39 (stating that ‘context is everything’). In
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[2013] ZASCA 176
;
2014 (2) SA 494
(SCA);
[2014] 1 All SA 517
(SCA)
para 12 where it was said that the ‘former distinction between
permissible background and surrounding circumstances,
never very
clear has fallen away [interpretation of a document is now]
“essentially one unitary exercise”. Accordingly,
it is
no longer helpful to refer to the earlier approach.’
[60]
HLB
International v MWRK Accountants and Consultants
fn 67 para 28, citing
Elan
Boulevard (Pty) Ltd v Fnyn Investments (Pty) Ltd and others
[2018] ZASCA 165
;
2019 (3) SA 441
(SCA) para 16, and
Firestone
South Africa (Pty) Ltd v Genticuro AG
1977 (4) SA 298
(A) at 409D-H (per Trollip JA) ‘The basic
principles applicable to construing documents also apply to the
construction
of a court's judgment or order: the court's intention
is to be ascertained primarily from the language of the judgment or
order
as construed according to the usual, well-known rules. Thus,
as in the case of a document, the judgment or order and the court's

reasons for giving it must be read as a whole in order to ascertain
its intention. If, on such a reading, the meaning of the
judgment or
order is clear and unambiguous, no extrinsic fact or evidence is
admissible to contradict, vary, qualify, or supplement
it. Indeed,
it was common cause that in such a case not even the court that gave
the judgment or order can be asked to state
what is subjective
intention was in giving it. Of course, different considerations
apply when, not the construction, but the
correction of a judgment
or order is sought by way of an appeal against it or otherwise - see
infra. But if any uncertainty in
meaning does emerge, the extrinsic
circumstances surrounding or leading up to the court's granting the
judgment or order may
be investigated and regarded in order to
clarify it’ (references omitted).
[61]
HLB
International v MWRK Accountants and Consultants
fn 67 para 28, citing a loose translation of the
dictum
of Olivier JA in
Plaaslike
Oorgangsraad, Bronkhorstspruit v Senekal
2001 (3) SA 9
(SCA) para 11 at 18J-19A, by Ponnan AJ in
Elan
Boulevard v Fnyn Investments
fn
68 para 16, see also fn 6.
[62]
See
paras 21 – 25, 29 – 30 and 32 of this judgment.
[63]
The
review fn 18 para 14.
[64]
The
review fn 18 para 33.
[65]
The
review fn 18 para 37.
[66]
The
review fn 18 para 56 (paraphrased)
.
[67]
The
review fn 18 para 66.
[68]
The
review fn 18 para 70 (paraphrased).
[69]
The
review fn 18 para 3 of the order.
[70]
The
review fn 18 para 5 of the order.
[71]
The
review fn 18 para 6 of the order
[72]
The
issue being one of legality, not much turns on this aspect: if the
review court order permitted mining to continue pending
the decision
on the remitted appeal, then the work contemplated in the letters
may continue, even if Tendele might originally
have held a different
view. The primary enquiry is what the legal effect of the court
order was.
[73]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and others
[2004] ZASCA 48
;
2004 (6) SA 222
(SCA);
[2004] 3 All SA 1
(SCA) para
26.
[74]
Oudekraal
Estates v City of Cape Town
fn
80 para 26.
The
minority judgment of Jafta J in
Department
of Transport and others v Tasima (Pty) Ltd
[2016] ZACC 39
;
2017 (1) BCLR 1
(CC);
2017 (2) SA 622
(CC) para 89
in the Constitutional Court referred to the following statement in
Oudekraal
Estates v City of Cape Town
fn
80 para
29 by Howie P and Nugent JA:
‘
In
our view the apparent anomaly – which has been described as
giving rise to ‘terminological and conceptual problems
of
excruciating complexity’ – is convincingly
explained in a recent illuminating analysis of the problem by

Christopher Forsyth.  Central to that analysis is the
distinction between what exists in law and what exists in fact.

Forsyth points out that while a void administrative act is not
an act in law, it is, and remains, an act in fact, and its
mere
factual existence may provide the foundation for the legal validity
of later decisions or acts.  In other words “...an

invalid administrative act may, notwithstanding its non-existence
[in law], serve as the basis for another perfectly valid decision.

Its factual existence, rather than its invalidity, is the
cause of the subsequent act, but that act is valid since the
legal
existence of the first act is not a precondition for the second.’
[75]
See
for example
Magnificent
Mile Trading 30 (Pty) Litd v Celliers NO and others
[2019] ZACC 36
;
2020 (4) SA 375
(CC);
2020 (1) BCLR 41
(CC) para 45.
[76]
in
Department
of Transport and others v Tasima (Pty) Ltd
fn
81 para 147 (in the majority scribed by Khampepe J).
[77]
MEC
for Health, Eastern Cape and another v Kirland Investments (Pty) Ltd
t/a Eye & Lazer Institute
[2014] ZACC 6
;
2014 (3) SA 481
(CC);
2014 (5) BCLR 547
(CC) para
101.
[78]
MEC
for Health, Eastern Cape v Kirland Investments
n
84 para 103.
[79]
Merafong
City Local Municipality v AngloGold Ashanti Ltd
[2016] ZACC 35
;
2017 (2) SA 211
(CC);
2017 (2) BCLR 182
(CC) para
41.
[80]
Magnificent
Mile Trading 30 (Pty) Litd v Celliers NO and others
[2019] ZACC 36
;
2020 (4) SA 375
(CC);
2020 (1) BCLR 41
(CC)
para
51.
[81]
Bengwenyama
Minerals (Pty) Ltd and others v Genorah Resources (Pty) Ltd and
others
[2010] ZACC 26
;
2011 (4) SA 113
(CC);
2011 (3) BCLR 229
(CC) para
85.
[82]
Kruger
v President of the Republic of South Africa
[2008] ZACC 17
;
2009 (1) SA 417
(CC);
2009 (3) BCLR 268
(CC) para
52.
[83]
Electoral
Commission v Mhlope and others
[2016] ZACC 15
;
2016 (5) SA 1
(CC);
2016 (8) BCLR 987
(CC) para 132.
[84]
The
review fn 18 para 75.
[85]
The
review fn 18 para 81.
[86]
The
review fn 18 para 1 of the order.
[87]
Bengwenyama
Minerals (Pty) Ltd and others v Genorah Resources (Pty) Ltd and
others
[2010] ZACC 26
;
2011 (4) SA 113
(CC);
2011 (3) BCLR 229
(CC) para
82.
[88]
C
Hoexter and G Penfold
Administrative
Law in South Africa
3
ed (2021) at 773 – 774.
[89]
Bengwenyama
Minerals (Pty) Ltd and others v Genorah Resources (Pty) Ltd and
others
[2010] ZACC 26
;
2011 (4) SA 113
(CC);
2011 (3) BCLR 229
(CC) para
82.
[90]
Minister
of Defence and Military Veterans v Motau and others
[2014] ZACC 18; 2014 (5) SA 69 (CC); 2014 (8) BCLR 930 (CC).
[91]
Minister
of Defence and Military Veterans v Motau
para 84.
[92]
Minister
of Defence and Military Veterans v Motau
para 86.
[93]
Minister
of Defence and Military Veterans v Motau
para 94.
[94]
Allpay
Consolidated Investment Holdings (Pty) Ltd and others v Chief
Executive Officer of the South African Social Security Agency
and
others
[2012] ZAGPPHC 185 para 80. The Constitutional Court ultimately
upheld Matojane J's approach, though it added additional just
and
equitable relief to deal with subsequent developments in
Allpay
Consolidated Investment Holdings (Pty) Ltd and others v Chief
Executive Officer of the South African Social Security Agency
and
others
[2013] ZACC 42
;
2014 (1) SA 604
(CC);
2014 (1) BCLR 1
(CC) and
Allpay
Consolidated Investment Holdings (Pty) Ltd and others v Chief
Executive Officer of the South African Social Security Agency
and
others (No 2)
[2014] ZACC 12; 2014 (4) SA 179 (CC); 2014 (6) BCLR 641 (CC).
[95]
The
review fn 18 para 70.
[96]
Sustaining
the Wild Coast NPC and others v Minister of Mineral Resources and
Energy and others
[2022] ZAECMKHC 55;
2022 (6) SA 589
(ECMk) para 93.
[97]
The
review fn 18 para 70.
[98]
The
review fn 18 para 36.
[99]
Maledu
and others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and
another
[2018]
ZACC 41
;
2019 (2) SA 1
(CC);
2019 (1) BCLR 53
(CC) para 8.
[100]
Eskom
Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd and
others
[2022]
ZACC 44
;
2023 (5) BCLR 527
(CC) para 218.
[101]
The
correctness of this factual allegation was not denied by the
applicants.
[102]
Koyabe
and others v Minister for Home Affairs and others (Lawyers for Human
Rights as Amicus Curiae)
[2009]
ZACC 23
;
2010 (4) SA 327
(CC);
2009 (12) BCLR 1192
(CC) paras 35 –
38.
[103]
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd and others
[2013]
ZACC 48
;
2014 (5) SA 138
(CC);
2014 (3) BCLR 265
(CC) para 115 to
136.
[104]
Gavric
v Refugee Status Determination Officer, Cape Town and others (People
against Suppression, Suffering, Oppression and Poverty
as amicus
curiae)
[2018] ZACC 38
;
2019 (1) SA 21
(CC);
2019 (1) BCLR 1
(CC) para 49.
[105]
Eskom
Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd and
others
[2022]
ZACC 44
;
2023 (5) BCLR 527
(CC) para 251.
[106]
Johannesburg
Municipal Pension Fund v City of Johannesburg
2005 (6) SA 273
(W) para 9.
[107]
Logbro
Properties CC v Bedderson NO and others
[2002]
ZASCA 135
;
2003 (2) SA 460
(SCA);
[2003] 1 All SA 424
(SCA) para 21,
where the SCA cited C Hoexter ‘The future of judicial review
in South African Administrative Law’
(2000) 117(3)
SALJ
484 at 501 – 502.
[108]
Minister
of Environmental Affairs and Tourism and others v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and
Tourism and others
v Bato Star Fishing (Pty) Ltd
[2003] ZASCA 46
;
2003 (6) SA 407
(SCA);
[2003] 2 All SA 616
(SCA)
para 53.
[109]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) para
48.
[110]
National
Treasury and others v Opposition to Urban Tolling Alliance and
others
(Road
Freight Association as applicant for leave to intervene)
[2012] ZACC 18
;
2012 (6) SA 223
(CC);
2012 (11) BCLR 1148
(CC) para
50.
[111]
National
Council of Societies for the Prevention of Cruelty to Animals v
Openshaw
[2008]
ZASCA 78
;
2008 (5) SA 339
(SCA);
[2008] 4 All SA 225
(SCA).