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[2010] ZASCA 50
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Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd (Formerly Tropical Paradise 427 (Pty) Ltd and Others (71/09) [2010] ZASCA 50; [2010] 3 All SA 577 (SCA) (31 March 2010)
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Case number: 71/09
In the matter between:
BENGWENYAMA MINERALS (PTY) LTD FIRST APPELLANT
BENGWENYAMA-YE-MASWAZI
TRIBAL COUNCIL SECOND APPELLANT
THE TRUSTEES FOR THE TIME
BEING OF THE BENGWENYAMA-
YE-MASWAZI TRUST THIRD TO FOURTEENTH
APPELLANTS
and
GENORAH RESOURCES (PTY) LTD
(formerly TROPICAL PARADISE 427
(PTY) LTD) FIRST RESPONDENT
THE MINISTER OF MINERALS AND
ENERGY SECOND RESPONDENT
THE DIRECTOR GENERAL OF THE
DEPARTMENT OF MINERALS AND
ENERGY THIRD RESPONDENT
THE REGIONAL MANAGER,
LIMPOPO REGION, POLOKWANE
OF THE DEPARTMENT OF MINERALS
AND ENERGY FOURTH RESPONDENT
THE DEPUTY DIRECTOR-GENERAL
OF THE DEPARTMENT OF MINERALS
AND ENERGY FIFTH RESPONDENT
BENGWENYAMA-YE-MASWAZI
ROYAL COUNCIL INTERVENING PARTY
Neutral citation:
Bengwenyama
Minerals v Genorah Resources
(71/09)
[2010] ZASCA 50
(31 March 2010)
CORAM: MPATI P, HEHER, MALAN, SHONGWE and
TSHIQI JJA
HEARD:
16 FEBRUARY 2010
DELIVERED: â¦
31
MARCH 2010
SUMMARY: Review â Application for a prospecting right
submitted by company on its own behalf in terms of s 16 of Act
28 of
2002 not constituting community application envisaged in s 104.
Where condonation not obtained for late appeal in terms of s 96,
party seeking review of decision of functionary taken to have
abandoned internal remedy. Review thus subject to 180-day period
provided
in s 7(1) of
Promotion of Administrative Justice Act 3
of 2000
.
ORDER
On appeal from: North Gauteng High Court, Pretoria,
(Hartzenberg J sitting as court of first instance).
The appeal is dismissed and the first appellant is
ordered to pay the respondents' costs.
JUDGMENT
MPATI P (Malan, Shongwe and Tshiqi JJA concurring):
[1] This appeal is against the refusal by the North
Gauteng High Court (Hartzenberg J) to review and set aside the grant
of a prospecting
right to the first respondent in terms of s 17
of the Mineral and Petroleum Resources Development Act ('the Act').
1
The Act makes provision for the State, as the custodian of the
nation's mineral and petroleum resources, to grant, issue or refuse,
inter alia, prospecting rights, mining rights and mining permits to
persons or entities who apply for them (s 2(a)). Section
9
empowers a Regional Manager,
2
who receives applications for these rights, to deal with them in
order of receipt if received on different dates (s 9(1)(b)).
For
convenience I shall refer to the first respondent as 'Genorah', the
second respondent as 'the Minister', the third respondent
as 'the
Director-General', the fourth respondent as 'the Regional Managerâ
and the fifth respondent as 'the Deputy Director-General'.
[2] On 8 February 2006 Genorah lodged an application for
a prospecting right in respect of five farms, two of which are known
as Eerstegeluk
322 KT ('Eerstegeluk') and Nooitverwacht 324 KT
('Nooitverwacht'), situated in the magisterial District of
Sekhukhuneland in Limpopo
Province. By letter dated 20 February 2006
the Regional Manager accepted Genorah's application, acknowledging
that it complied with
the provisions of s 16(2) of the Act,
3
and calling upon Genorah to submit copies of its environmental
management plan
4
not later than 21 April 2006. Genorah submitted its environmental
management plan ('EMP') on 21 April 2006.
[3] On 14 July 2006 the first appellant also lodged its
application for a prospecting right which related only to the farms
Eerstegeluk
and Nooitverwacht. The Regional Manager notified his
acceptance of the application by letter dated 24 July 2006, addressed
to the
first appellant. The first appellant was also called upon to
submit its EMP by not later than 26 September 2006. On 28 August 2006
the Deputy Director-General, by virtue of the authority delegated to
him by the Minister, approved Genorah's application and granted
the
prospecting right in respect of all the farms, including Eerstegeluk
and Nooitverwacht. On 8 September 2006 the Regional Manager
notified
Genorah, in writing, of the grant and also informed it that the
prospecting right had to be notarially executed within 60
days from
the date of the written notification. The notarial execution took
place on 12 September 2006. It is recorded under the
definition
section of the document evidencing the execution of the prospecting
right ('the prospecting agreement'), that '"Effective
date"
means 12 September in the year 2006 (being the date on which the
Environmental Management Plan is approved in terms of
s 39(4) of
the Act)'.
5
[4] By letter dated 6 December 2006 the Regional Manager
wrote to the first appellant notifying it that its application had
been refused.
The reasons for the refusal were recorded as follows:
'Prospecting right has been
granted to other entities that applied before your application for
the same minerals on the same properties.'
However, the first appellant's legal representatives
addressed a letter to the Minister dated 13 February 2007, requesting
her to
suspend or cancel Genorah's prospecting right in terms of
s 47of the Act.
6
Paragraph 12 of the letter reads:
'. . .
12.2 Our client in the
circumstances calls upon the Honourable Minister either to cancel or
suspend Genorah's prospecting right in
respect of Eerstegeluk en
Nooitverwacht since â
12.2.1 Genorah . . . submitted
inaccurate, incorrect and misleading information in support of its
application when purporting to comply
with s 16(4) of the Act;
12.2.2 The provisions of s 16(4)
of the Act were not, in fact, complied with; and
12.2.3 The provisions of
s 17(1)(a) of the Act were not, in fact, complied with.'
7
[5] On the same date the first appellant's legal
representatives also addressed a letter to the Director-General,
purportedly appealing
on behalf of the first appellant, in terms of
s 96 of the Act,
8
against the decision of the Deputy Director-General to grant the
prospecting right to Genorah. The main grounds of appeal were alleged
non-compliance with the provisions of ss 16(4) and 17(1)(a). The
alleged non-compliance with the provisions of s 16(4)
was said
to be Genorah's failure to consult with the owners or occupants of
the farms Eerstegeluk and Nooitverwacht, viz the Bengwenyama
community, as represented by the second appellant. As to the alleged
non-compliance with the provisions of s 17(1)(a), it was
averred
that the grant of the prospecting right to Genorah was subject, inter
alia, to a requirement that Genorah furnish a guarantee
for the
rehabilitation or management of negative environmental impacts on the
land concerned prior to the approval of its EMP and
the grant of the
prospecting right. It was alleged that the required guarantee was
only submitted on 'approximately' 15 September
2006, while the
prospecting right was granted on 28 August 2006. It was thus
contended that this was in conflict with the provisions
of
s 17(1)(a), which require the Minister to be satisfied that the
applicant has access to financial resources prior to the
approval of
any prospecting right.
[6] On 9 March 2007 the first appellant's legal
representatives addressed further letters to the Minister and the
Director-General,
supplementing the grounds upon which the first
appellant relied in the letters dated 13 February 2007 for its
request to have the
decision of Deputy Director-General to grant the
prospecting right to Genorah cancelled or suspended. The additional
ground was a
claim, proffered for the first time, that the first
appellant's application for a prospecting right in respect of the
farms Eerstegeluk
and Nooitverwacht was, in fact, one in terms of
s 104 of the Act,
9
that is, it was a community application lodged by the
Bengwenyama-ye-Maswazi community ('Bengwenyama community'). It was
accordingly
alleged that the Bengwenyama community had a preferent
claim and that the community would, but for the failure by the
Department
of Minerals and Energy ('Department') to comply with the
provisions of s 104, 'in all likelihood have been granted the
prospecting
right that in fact went to Genorah'. It was further
alleged that the Bengwenyama community 'had an interest in the award
of the permit
and was entitled to make representations to, and be
heard by, [the Department] . . . under section 3(2)(b) of the
Promotion of Administrative
Justice Act 3 of 2000 (PAJA) prior to the
grant of that permit'.
[7] It appears that a director of the first appellant,
Mr Michael Craig Nahon, subsequently had a telephone conversation
with a Mr
Alberts, an official in the Department, which was followed
by a letter dated 14 June 2007, addressed to Mr Nahon. The first two
paragraphs
of the letter read as follows:
'The recent telephone
conversations between your Mr Nahon and Mr Alberts of this Department
have reference.
You are hereby advised that
since this matter is now
sub-judice
,
the Minister will not be in a position to decide on your appeal in
this matter. The fact that a right has already been granted to
Genorah also poses legal challenge in deciding on the appeal, and it
is therefore the view of this Department that this matter should
be
decided by means of a review.
. . . .'
In the appellants' founding affidavit, deposed to by Mr
Zet Timothy Maphanga, a director of the first appellant, it is
averred that
the letter indicates 'that no relief against the Genorah
prospecting right is going to be granted by the second to fourth
respondents,
whether in terms of sections 47 or 96 of the Act, or at
all.'
[8] The appellants accordingly instituted motion
proceedings, in terms of rule 53 of the Uniform Rules of Court,
seeking an order
:
'1. Reviewing and setting aside
the decision to award and the award of a prospecting right to the
first respondent . . . in respect
of, inter alia, the farms
Nooitverwacht 324 KT and Eerstegeluk 322 KT . . . .
2. Directing the second
respondent,
alternatively
the third respondent,
further
alternatively
the fifth respondent,
to award a prospecting right to the first applicant in respect of,
inter alia, the farms Nooitverwacht 324 KT
and Eerstegeluk 322 KT . .
. on such terms and conditions as may reasonably be imposed upon the
first applicant in terms of the provisions
of section 17 of the Act,
as read with section 104 thereof.
3.
Alternatively
to prayer 2 above,
directing the second respondent,
alternatively
the third respondent,
further
alternatively
the fifth respondent,
to adjudicate the application for a prospecting right made by the
first applicant on 14 July 2006, as an application
in terms of
section 104 of the Act.'
10
The court a quo dismissed the application with costs.
This appeal is with its leave.
[9] The issues raised and argued in this court were all
comprehensively dealt with by the court a quo. In listing them, I do
so not
necessarily in the sequence in which they were argued before
us. The first issue was whether the grant of the prospecting right to
Genorah was ultra vires
.
Section
103(1) of the Act empowers the Minister to delegate in writing 'any
power conferred on him or her by or under this Act, .
. . and may
assign any duty so imposed upon him or her to the Director-General,
the Regional Manager or any officer'. It is common
cause that on 12
May 2004 the Minister delegated the authority she holds, under
s 17(1), to grant or refuse a prospecting right,
to the Deputy
Director-General. No further delegation was authorised without the
Minister's consent.
11
When he granted the prospecting right to Genorah on 28 August 2006
the Deputy Director-General granted a Power of Attorney in terms
of
which the Regional Manager was given authority 'to sign the
prospecting right contemplated in section 17(1) of the . . . Act,
in
favour of Genorah . . . according to the approval signed by me
today'.
[10] As I have mentioned above, the prospecting right
granted to Genorah by the Deputy Director-General was executed on 12
September
2006. The prospecting agreement was signed by the Regional
Manager pursuant to the Power of Attorney granted by the Deputy
Director-General.
It contains the terms upon which the right was
granted, such as, inter alia, the commencement date of the right, its
duration, the
properties in respect of which the right was to apply
and payment of prospecting fees and royalties. Because the Power of
Attorney
did not stipulate the terms upon which the right was
granted, it was submitted, on behalf of the appellants, that the
terms and conditions
contained in the prospecting agreement must have
been decided, at his discretion, by the Regional Manager. That being
so, the date
upon which the prospecting right was actually granted
was the date of execution of the right (12 September 2006). It
follows, so
the argument continued, that the prospecting right was
granted by the Regional Manager, who had no authority to do so. The
grant
of the right was thus a nullity.
[11] The second issue relates to an allegation, in the
founding and replying papers, that the Department failed to give
adequate notice
of Genorahâs application for a prospecting right as
required by s 10(1) of the Act,
12
read with regulation 3 of the Regulations
13
promulgated in terms of s 107(1) of the Act.
14
It was alleged, on behalf of the appellants, that there was no proof
of compliance with the Department's chosen manner of giving
notice of
an application to interested and affected persons, which was by
sending the notice per facsimile to the Sekhukhune Magistrate's
Office for display on a notice board there. A related issue was an
alleged failure by the Department to give a hearing to the
appellants,
as an alleged community applicant and occupiers of the
two farms in issue. Counsel for the appellants argued that the
hearing referred
to was in addition to the consultation an applicant
for a prospecting right is required to conduct with the land owner or
lawful
occupier of the land concerned, in terms of s 16(4)(b) of
the Act.
15
The hearing, so it was contended, is well recognised at common law
and under s 3(2)(b)(ii) of PAJA, in that procedurally fair
administrative action requires, at a minimum, that affected parties
be heard.
[12] The third issue concerns an alleged failure by
Genorah to consult with the community, as owners or occupiers of the
farms Eerstegeluk
and Nooitverwacht, in accordance with the
provisions of s 16(4). Whilst Genorah submitted to the Deputy
Director-General a document
indicating that consultation with the
Bengwenyama community of Nooitverwacht, through its leader, Kgoshi
Nkosi, took place, it was
contended on behalf of the appellants, that
such consultation had neither been appropriate nor meaningful. As to
the farm Eerstegeluk,
it was submitted that although the community
with which Genorah consulted had informed the latter that the
Bengwenyama community
occupied Eerstegeluk, Genorah failed to consult
the latter community.
[13] The fourth issue was that the Department allegedly
failed to approve Genorah's EMP within 120 days from its lodgement as
was
required in terms of s 39(4) of the Act. As has been
mentioned above, Genorah lodged its EMP on 21 April 2006 and it was
approved
either on the day that the prospecting right was notarially
executed, or on 13 November 2006.
16
It was accordingly contended on behalf of the appellants, that the
EMP having been approved more than 180 days from its lodgement,
Genorah's prospecting right could not lawfully be brought into
effect.
[14] Apart from the fact that I find it unnecessary to
express any opinion on the correctness or otherwise of the
appellants' submissions
on this issue, I fail to see the basis upon
which the alleged late approval of the EMP could affect the validity
of the grant, or
coming into effect, of the prospecting right, whilst
the decision to approve the EMP has not been set aside.
17
The same applies to a related issue that financial provision for the
rehabilitation or management of negative environmental impacts
had
allegedly not been provided before the approval of the EMP, as
contemplated in s 41(1) of the Act.
18
So also to a further submission that the approval of the EMP was
ultra vires, because the person who approved it was an acting
Regional
Manager who allegedly had no power to approve it.
[15] The fifth issue relates to the alleged failure by
the Department to respect, protect and promote the Bengwenyama
community's
property rights entrenched in s 25 of the
Constitution, and the alleged failure to give effect to s 104 of
the Act, which,
according to counsel for the appellants, gives
legislative effect to those rights. I think the real question here is
whether or not
the first appellant's application for a prospecting
right was a community application. The last issue I wish to mention
was whether
the appellants had brought themselves within the
provisions of s 7 of PAJA, in particular, whether their review
application
was launched 'without unreasonable delay and not later
than 180 days after the first appellant became aware of the grant of
the prospecting
right to the first respondent (s 7(1)(b)), and
whether any internal remedies had been concluded prior to the
institution of
the review proceedings (s 7(1)(b) and (2)).
[16] The court a quo found against the appellants on all
these issues, except the last. In the view I take in this matter, it
is unnecessary
to consider all of them. It would be convenient,
however, to deal briefly with the question whether the first
appellant's application
constituted a community application.
[17] The prescribed form used by the first appellant
when applying for a prospecting right was one used in an application
'in terms
of section 16 of the [Act]'. The first appellant is
reflected on the form as the only applicant. There is no mention
whatsoever of
s 104, or its provisions, or the Bengwenyama
community, in the first application, nor in the subsequent
application submitted
on 14 July 2006.
19
Relying on
Shaikh v Standard Bank of South
Africa Ltd & another
20
counsel for the appellants argued that nothing turns on the question
whether an application expressly referred to the provision under
which it is made, and that the pertinent question is whether the
application was, as a matter of fact, an application made in terms
of, and in compliance with, s 104. Counsel was unable, however,
to point to any portion of the contents of the application that
should have directed the recipient's attention to the provisions of
s 104.
[18] Moreover, on 24 July 2006 the Department notified
the first appellant, in writing, of the acceptance of its
application. The
subject matter of the latter is recorded thus:
'NOTICE OF ACCEPTANCE OF AN
APPLICATION FOR A PROSPECTING RIGHT IN TERMS OF SECTION 16 OF [THE
ACT]: EERSTEGELUK 322 KT AND NOOITVERWACHT
324 KT.'
The second paragraph of the letter reads:
'I wish to inform you that your
application complies with the provisions of Section 16(2) of the Act,
as I have accepted it for further
processing . . . '
And further:
'Your application will
consequently be processed in accordance with the provisions of
Section 9 of the Act.'
21
No objection was raised to the clear reference, in the
letter, to the application being one in terms of s 16.
22
In addition, mention of the application being a community application
was made for the first time in the second letter (of 9 March
2006)
addressed to the second and third respondents respectively, asking
for the first respondent's prospecting right to be cancelled
or
suspended. This, in my view, clearly indicates that the first
appellant's application was, until then, never considered by the
first appellant itself as a community application. Indeed, counsel
for the appellants contended that the application underwent 'a
metamorphosis'. However, that 'metamorphosis' never came to the
attention of the Deputy Director-General before the date upon which
he granted the prospecting right to Genorah. The appellants rely on a
letter dated 10 May 2006 addressed to 'the Director' of the
Department and assert that it is clear from its contents that the
first appellant's application fell within the ambit of s 104
of
the Act. The letter covered the first appellant's first application
which was rejected. In any event, the letter merely spelled
out the
relationship between the first appellant and the Bengwenyama
community and the fact that the community owned the surface
rights
over the land in issue. Nowhere does it state that the application
was in fact a community application. Another letter dated
6 October
2006 purporting to set out the shareholding in the first appellant
was written after the prospecting right had been granted
to Genorah.
It follows that the court a quo correctly found against the
appellants on this issue.
[19] I proceed to consider the question whether the
review application was out of time, and whether internal remedies, if
any, were
exhausted. In the appellants' founding affidavit the
deponent states that 'according to his recollection' the Department's
letter
23
by which the first appellant was advised of the refusal of its
application 'was only received during or after December 2006'. The
case was, however, conducted on the basis that the first appellant
received the letter during December 2006. According to the provisions
of PAJA, where any internal remedies exist, they must, except in
exceptional circumstances, first be exhausted before review
proceedings
may be instituted.
24
It is not in dispute that by addressing the letters of 13 February
2007 to the Minister and Director-General respectively, the first
appellant was seeking to pursue an internal appeal. The question is
whether any appeal procedure was available to it under the Act.
[20] I agree with the court a quo that s 47 of the
Act
25
does not provide for an internal process which is 'available to
affected third parties to have administrative decisions reviewed'.
I
agree too that the section is an empowering provision in terms of
which the Minister can take action if the holder of a prospecting
right exercises his or her right in contravention of the provisions
of the Act. But the court a quo also held that because the Deputy
Director-General, when granting Genorah's application for a
prospecting right, exercised a power delegated to him by the
Minister,
his decision was the decision of the Minister.
Consequently, so the court held, s 96
26
'does not provide for any internal procedure to remedy decisions and
conduct of the Minister'. The court thus concluded that the
only
remedy available to the appellants was an application for a review of
the decision, but held that the application was 'well
out of time
. . . [that is, it was brought well after the 180 days
provided for in s 7(1)(b) of PAJA], assuming
that [the
appellants] only became aware of the decision on 31 December 2006',
and that the review application fell to be dismissed
on that ground
alone.
[21] The court a quo assumed, however, for purposes of
considering whether the appeal to the Director-General was out of
time, that
s 96 provided for an internal remedy and that the
internal remedy was available to the 'appellants'. Bearing in mind
that '[o]ur
system of administrative justice seeks to encourage
internal remedies to resolve disputes that arise out of
administrative action',
27
that assumption was correctly made. In the present matter the
Minister delegated her powers to grant or refuse an application for
a
prospecting right to the Deputy Director-General. A delegatee or
subdelegatee who acts in his or her own right is responsible for
his
or her exercise of the power.
28
In my view, a full delegation of powers was made to the Deputy
Director-General. In deciding whether or not to grant the prospecting
right to Genorah he exercised his own discretion. As delegatee he
acted in his own right and did not represent the delegator. This
is
therefore not a case of an appeal being lodged against the Minister's
own decision or a question of the delegator sitting on his
own
judgment on appeal.
29
[22] Regulation 74(1) provides that any person who
appeals against an administrative decision in terms of s 96 must
do so within
30 days after he or she has become aware, or should
reasonably have become aware, of the administrative decision
concerned. The first
appellant's letter of appeal, in terms of s 96,
dated 13 February 2007, was lodged more than 30 days from, the
latest, 31 December
2006. But the court a quo held that the 30-day
period 'is not an absolute maximum period within which an appeal has
to be lodged',
and that non-compliance 'will not necessarily lead
thereto that such an appeal is a nullity'. The court accordingly held
that the
appeal in this case was not fatally defective even though it
was not brought within the 30-day period.
[23] It is true that non-compliance with the 30-day
period provided for in the Regulations will not necessarily lead to
an appeal
being a nullity, but that will be so only if the
non-compliance has been condoned.
30
Although in its letter of appeal to the Director-General the first
appellant sought condonation for the late lodging of their appeal,
there is no evidence on the papers that condonation was granted. In
fact, the evidence points to the opposite. The letter written
by Mr
Alberts dated 14 June 2007
31
and addressed to Mr Nahon, advised the addressee that the matter â
the subject of the appeal â was
sub judice
;
that therefore the Minister would not decide the appeal and that the
view of the Department (including the Director-General) was
that the
matter be decided by means of a review. It has not been explained on
the papers what was meant by the matter being
sub
judice
, but clearly no proceedings concerning
the subject matter of the appeal had, by that date, been instituted
out of any court. It seems
to me that the writer of the letter, and
any other official of the Department involved, were more concerned
about the 'legal challenge'
posed by the fact that the prospecting
right had already been granted to Genorah and the legal consequences
that would follow were
the grant of the right to be reversed. In my
view, the Director-General, as the official to whom the appeal was
addressed, was obliged
to consider the condonation application and,
if granted, the appeal. The letter written by Mr Alberts can by no
means be interpreted
to mean that the first appellant's condonation
application was granted and the appeal dismissed, or that condonation
was refused.
These issues were simply not dealt with.
[24] The result was that no condonation was granted to
the first appellant and the attempt to appeal under s 96 was of
no effect.
Because the first appellant did not pursue its condonation
request, its rights under s 7 of PAJA must be assessed on the
basis
that it had abandoned the internal remedy of appeal that it had
initiated. As far as it was concerned no remedy any longer existed
which it was obliged to exhaust. This raises another question, which
is whether the first appellant, having abandoned its internal
remedy,
could still have the decision to grant Genorah's prospecting rights
reviewed under PAJA. I shall assume, without deciding,
that it could,
although the provisions of s 96(3) appear to bar a review 'until
that person has exhausted his or her [internal]
remedies'.
32
Section 7(1)(b) therefore applied to it. Section 7(1)(c) possessed no
significance because there was no obligation in existence from
which
it could be exempted.
[25] On the preceding analysis the period of 180 days
laid down in s 7(1) began to run, at the latest, when the first
appellant
became aware of the decision to refuse its prospecting. The
review proceedings were not instituted before 22 August 2007 when the
application was filed with the Registrar of the High Court, ie more
than 180 days it was informed of the refusal of the prospecting
application. The onus rested on the appellants to bring themselves
within the terms of s 7(1). It failed to do so.
[26] No formal application was made before the court a
quo for the extension of the 180-day period within which the review
proceedings
should have been instituted.
33
Counsel informed us, however, that an application was moved from the
bar before the court below. It appears that the application
was
unsuccessful. We were urged from the bar (by counsel for the
appellants) that this court should extend the 180-day period since
all the facts or information necessary to explain the delay in
instituting review proceedings timeously were before us. As was said
in
Gqwetha v Transkei Development Corporation
Ltd & others,
34
whether there has been undue delay entails a factual enquiry upon
which a value judgment is called for in the light of all the relevant
circumstances, including an explanation that is offered for the
delay.
35
It was argued, on behalf of the appellants, that their belief that
they were entitled, in terms of s 96 of the Act, to appeal
the
decision to grant the prospecting right to the first respondent was
reasonable. They pursued the appeal remedy within a reasonable
time
and once they were informed that their appeal would not be considered
they launched the review proceedings expeditiously.
[27] Assuming that the appellants' explanation for the
delay was reasonable and that the decision to grant the prospecting
right was
invalid, it does not follow that the decision will be set
aside. This is because in appropriate circumstances a court will
decline,
in the exercise of its discretion, to set aside an invalid
administrative act.
36
In terms of s 9(2) of PAJA a court may grant an application for
the extension of the 180-day period 'where the interests of
justice
so require'. In the present matter Genorah raised, in its answering
affidavit, the fact that the review application was out
of time and
that condonation for the delay had to be sought. Except for stating,
in the replying affidavit, that they had at all
times acted in good
faith and as expeditiously as possible, the appellants did not, as
has been mentioned above, apply for an extension
of the 180-day
period. They therefore failed to place any facts before the court a
quo to assist it properly to consider whether
the interests of
justice require that the period be extended. Nor was any argument
advanced in this court in this regard.
[28] Finally, the court a quo considered that even if
there was 'some or other fatal defect' in the procedure leading up to
the making
of the challenged decision, the present is one of those
cases where a court, in its discretion, ought to decline to set aside
an
invalid administrative act. The court set out its reasons for that
view as follows:
'49.1 The applicants' main and
emotive argument was that it represents the community and that the
individual members of the community
stand to benefit from a grant of
the rights to it. I am far from convinced that the position of
individual members will be much different
whether the exploitation of
the minerals is done by Genorah as supported by Mr Mphalele or by the
first applicant as supported by
Mr Maphanga and Mr Mhlungu.
Individual members are prejudiced by this litigation, in that the
actual mining and development are delayed.
49.2 The applicants rely on
section 104 of the Act. The application of the first applicant was an
ordinary section 16 application
until 9 March 2007 when somebody
alerted Mr Shapiro to the provisions of section 104. That was long
after the rights in question
had already been granted to Genorah.
This whole application negates the rights of applicants for the
rights whose applications were
submitted and accepted between the
application of Genorah and that of the first applicant.
49.3 Rights have been granted to
Genorah over five farms and a large area. If the grant in respect of
the two farms or one of them
is set aside it will no doubt affect the
manner of mining and may affect the viability of a project.
49.4 In my view there is a
public interest element therein that there must be finality in this
particular case.'
[29] I can find no fault with this reasoning and no
argument was advanced as to why this court should interfere with the
exercise
of its discretion by the court a quo. The appeal must
accordingly fail. In view of this conclusion, it becomes unnecessary
to consider
the remaining issues listed above.
[30] There remains the issue of costs. At the first
hearing of this matter the court a quo ordered that the intervening
party be provisionally
joined as a party in the proceedings. The
intervening party wished to counter the first appellant's assertions,
as supported by the
second and third appellants, that its application
was in fact a community application. In its judgment the court a quo
held that
in the light of its finding â without having had to
resolve a dispute as to the authority and standing of the intervening
party
â that the application of the first appellant was not a
community application 'the whole question of intervention has become
academic'.
It made no costs order either for, or against, the
intervening party. Despite the finding that the intervention had
become academic,
the intervening party took part in the appeal.
Although the submissions on behalf of the intervening party were by
no means unhelpful,
I am not inclined to award any costs in its
favour.
[31] Relying on the decisions of the Constitutional
Court in
Affordable Medicines Trust v Minister
of Health
37
and
Biowatch Trust v Registrar, Genetic
Resources & others
38
counsel for the appellants reminded of the well-established rule that
unsuccessful litigants who have sought, in good faith, to vindicate
constitutional rights, should not have costs awarded against them.
The finding that the first appellant's application for a prospecting
right was not a community application is, in my view, of importance
in considering the issue of costs. I am unable to hold that the
litigation was undertaken to assert constitutional rights, at least
as regards the first appellant. It was undertaken to assert a
commercial interest, but with the assistance of the second and third
appellants. I am not persuaded that the rule just referred to
should
be applied to the benefit of the first appellant. Counsel for the
respondents sought no costs order against the second and
third
appellants.
[32] In the result the appeal is dismissed and the first
appellant is ordered to pay the respondents' costs.
_______________
L Mpati
Judge Of Appeal
HEHER JA:
[33] I agree that the
appeal should fail.
[34] A community
application for a preferent right to prospect or mine
(s 104
of the
Mineral and Petroleum Resources Development Act 28 of 2002
) requires
that an application be lodged with the Minister. The specific
considerations set out in ss (2)(a) to (d) must be addressed
in the
application. The Minister must expressly or by necessary implication
be made aware that the applicant relies on the terms
of the section,
whether or not another application has been lodged for a prospecting
or mining right in terms of
secs 16
or
22
respectively. The first
appellantâs application satisfied none of these requirements. That
is because it was conceived as a
s 16
application. Recourse to
s 104
was clearly an afterthought, and too late to influence the process.
[35] I
agree with Mpati P that the appeal against the refusal to grant a
prospecting right to the first appellant was an appeal to
the
Minister against the decision of a functionary and not one against a
decision of the Minister himself, for the reasons enunciated
in the
main judgment. All the grounds relied on in the review (save,
perhaps, the
s 104
question) were matters that could properly have
been dealt with in an appeal under
s 96(1).
But
s 96(3)
has made what
is usually a matter for the courtâs discretion a peremptory bar to
the bringing of review proceedings. (The constitutionality
of the bar
was not challenged in the appeal before us.) The first appellant did
not obtain condonation in terms of
regulation 74(4)
for the late
noting of his
s 96(1)
appeal. Consequently he could not and did not
pursue the appeal and, thereby, exhaust his remedies in terms of that
subsection. Review
proceedings in which he raised any ground which
could have been answered by such an appeal were thus closed to him.
[36] In
any event, having failed to pursue a condonation application, the
first appellantâs appeal was writ in water. He must be
taken to
have abandoned it. Any review instituted under the
Promotion of
Administrative Justice Act 3 of 2000
was subject to the time limit of
180 days in
s 7(1)
, which fell to be calculated from the date on
which the first appellant was notified of the rejection of its
application for prospecting
rights. That period expired before the
review proceedings were launched. The court did not extend the period
(under
s 9(1)(b)
or exempt the first appellant from its obligation to
exhaust the internal remedy (under
s 7(1)(c)).
39
anc" HREF="#sdfootnote39sym">
39
[37] I concur in the
order proposed by Mpati P.
________________
J A Heher
Judge of Appeal
Counsel for Appellants: G J
Marcus SC; I Goodman
Instructed by: Routledge
Modise Eversheds
c/o Jacobson & Levy Inc
PRETORIA
Correspondents: Lovius Block
BLOEMFONTEIN
Counsel for 1
st
Respondent: B E Leech
Instructed by: Werksmans Inc
c/o Weavind & Weavind
PRETORIA
Correspondents: Matsepes
BLOEMFONTEIN
Counsel for 2
nd
â 5
th
Respondent: M P van der Merwe
Instructed by: The State
Attorney
PRETORIA
Correspondents: The State
Attorney
BLOEMFONTEIN
Counsel for Intervening Party: M
R Madlanga SC; F R Memani
Instructed by: Makaula Zilwa
Inc
c/o Ledwaba Mazwai Attorneys
PRETORIA
Correspondents: Nonxuba Inc
BLOEMFONTEIN
1
28 of 2002.
2
A regional manager is defined in the Act as 'the
officer designated by the Director-General [of the Department of
Mineral and Energy]
in terms of section 8 as a regional manager
for a specified area'. Section 8 provides that the Director-General
'must . .
. designate an officer in the service of the Department as
regional manager for each region contemplated in s 7 who must
perform
the functions delegated or assigned to him or her in terms
of this Act or any other law'.
3
Section 16 reads:
'(1) Any person who wishes to apply to
the Minister for a prospecting right must lodge the application-
(
a
) at
the office of the Regional Manager in whose region the land is
situated;
(
b
) in
the prescribed manner; and
(
c
) together
with the prescribed non-refundable application fee.
(2) The Regional Manager must accept an application for a
prospecting right if-
(
a
) the
requirements contemplated in subsection (1) are met; and
(
b
) no
other person holds a prospecting right, mining right, mining permit
or retention permit for the same mineral and land.
(3) . . ..
(4) If the Regional Manager accepts
the application, the Regional Manager must, within 14 days from the
date of acceptance, notify
the applicant in writing-
(
a
) to
submit an environmental management plan; and
(
b
) to
notify in writing and consult with the land owner or lawful occupier
and any other affected party and submit the result of
the
consultation within 30 days from the date of the notice.
(5) Upon receipt of the information
referred to in subsection (4)(a) and (b), the Regional Manager must
forward the application
to the Minister for consideration.
(6) . . ..'
4
An environmental management plan is a plan to
manage and rehabilitate the environmental impact as a result of
prospecting, etc.
5
Section 17(5) of the Act reads:
'(5) The granting of a prospecting
right . . . becomes effective on the date on which the
environmental management programme is
approved in terms of section
39.'
6
Section 47(1) provides that the Minister may
cancel or suspend a prospecting right if the holder
(a)
is conducting any prospecting
operation in contravention of the Act;
(b)
breaches any material term or conditions of such right;
(c)
is contravening the approved environmental management programme, or
(d)
has submitted inaccurate, incorrect of misleading information in
connection with any matter required to be submitted under the
Act.
7
See fn 3 for the provisions of s 16(4). Section 17(1)(a)
provides that the Minister 'must grant a prospecting right if the
applicant has access to financial resources and has the technical
ability to conduct the proposed prospecting operation optimally
in
accordance with the prospecting work programme'. There are other
requirements under s 17(1) for the granting of the right,
which
are not strictly relevant for present purposes.
8
The section provides:
'96 Internal appeal process and
access to courts
(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 in the prescribed manner to-
(a)
the
Director-General, if it is an administrative decision by a Regional
Manager or an officer; or
(b)
the
Minister, if it is an administrative decision by the
Director-General or the designated agency.
(2) 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.
(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.'
9
The relevant parts of the section reads:
'(1) Any community who wishes to
obtain the preferent right to prospect or mine in respect of any
mineral and land which is registered
or to be registered in the name
of the community concerned, must lodge such application to the
Minister.
(2) The Minister must grant such
preferent right if the community can prove that-
(a)
the
right shall be used to contribute towards the development and the
social upliftment of the community concerned;
(b)
the
community submits a development plan, indicating the manner in which
such right is going to be exercised;
(c)
the
envisaged benefits of the prospecting or mining project will accrue
to the community in question; and
(d)
the
community has access to technical and financial resources to
exercise such right.'
10
In the appellants' Notice of Appeal paragraph 2
of the order sought in the notice of motion is amended in that the
word 'preferent'
is inserted before the words 'prospecting right'.
11
Section 103(3) provides that the Minister 'may,
in delegating any power or assigning any duty under subsection (1),
authorise the
further delegation of such power and the further
assignment of such duty by a delegatee or assignee'.
12
The subsection reads:
'Within 14 days after accepting an
application lodged in terms of section 16, 22 or 27, the Regional
Manager must in the prescribed
manner-
(a)
make
known that an application for a prospecting right, mining right or
mining permit has been received in respect of the land
in question;
and
(b)
call
upon interested and affected persons to submit their comments
regarding the application within 30 days from the date of the
notice.'
13
Regulation 3(3) is in the following terms:
'In addition to the notice referred to
in sub-regulation (1), the Regional Manager or designated agency, as
the case may be, must
also make known the application by at least
one of the following methods-
(a) Publication in the applicable
Provincial Gazette;
(b) Notice in the Magistrate's Court
in the Magisterial District applicable to the land in question; or
(c) Advertisement in a local or
national newspaper circulating where the land or offshore area to
which the application relates,
is situated.'
14
See Government Gazette 26275, dated 23 April
2004.
15
Above n 3.
16
It appears from an official stamp on the EMP
document that the EMP was approved by the Regional Manager, Limpopo
Province, on 13
November 2006.
17
Compare
Oudekraal Estates (Pty) Ltd v City of
Cape Town & others
2004 (6) SA 222
(SCA) para 31.
18
The sub-section reads:
'An applicant for a prospecting right,
mining right or mining permit must, before the Minister approves the
environmental management
plan or environmental management programme
in terms of section 39(4), make the prescribed financial provision
for the rehabilitation
or management of negative environmental
impacts.'
19
The first appellant submitted its first
application on or about 10 May 2006. That application was received
by the Department on
14 July 2006, but was rejected. The first
appellant was advised of the rejection by letter dated 20 July 2006.
20
2008 (2) SA 622
(SCA) paras 16-19.
21
Section 9 is r
eferred to in para 1 above.
22
Above n 3.
23
Although the deponent states that the letter 'is
undated' it was signed by the respondent on 6 December 2006.
24
Section 7(2) of PAJA provides as follows:
'7(2)
(a)
Subject to paragraph
(c)
,
no court or tribunal shall review an administrative action in terms
of this Act unless any internal remedy provided for in any
other law
has first been exhausted.
(b)
Subject to paragraph
(c)
,
a court or tribunal must, if it is not satisfied that any internal
remedy referred to in paragraph
(a)
has been exhausted, direct that the person concerned must first
exhaust such remedy before instituting proceedings in a court or
tribunal for judicial review in terms of this Act.
(c)
A court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from the
obligation to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice.'
25
Above N 6.
26
Above n 8.
27
Walele v City of Cape Town & others
[2008] ZACC 11
;
2008 (6) SA 129
(CC) para 142.
28
See Lawrence Baxter
Administrative
Law
(1984) on p 442.
29
See
Thompson,
Trading as Maharaj & Sons v Chief Constable, Durban
1965 (2) SA 296
(D & CLD) at 302E-H;
Bartlett
v Munisipaliteit van Kimberley
1966
(2) SA 95
(G.W.P.A) at 101D-F.
30
Regulation 74(4) reads:
'The Director-General or the Minister,
as the case may be, may in his or her discretion and on such terms
and conditions as he or
she may decide, condone the late noting of
an appeal.'
31
The relevant part is quoted in para 7 above.
32
See s 96(3) above n 8.
33
Section 9(1) and (2) of PAJA are in the following
terms:
(1) The period of-
(a)
.
. . ;
(b)
90
days or 180 days referred to in sections 5 and 7 may be extended for
a fixed period,
by agreement between the parties or,
failing such agreement, by a court or tribunal on application by the
person or administrator
concerned.
(2) The court or tribunal may grant an
application in terms of subsection (1) where the interests of
justice so require.'
34
2006 (2) SA 603
(SCA).
35
Para 24. See too
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkomitee, & 'n
ander
1986 (2) SA 57
(A) at 86D-F.
36
Chairperson, Standing Tender Committee &
others v JFE Sapela Electronics (Pty) Ltd & others
2008
(2) SA 638
(SCA) para 28 and the cases there cited.
37
[2005] ZACC 3
;
2006 (3) SA 247
(CC).
38
2009 (6) SA 232
(CC).
39
I leave open the question of whether an exemption under s 7(1)(c)
would also have surmounted the bar created by s 96(3) of the
Minerals Act.