About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2011
>>
[2011] ZASCA 49
|
|
Norgold Investments (Pty) Ltd v The Minister of Minerals and Energy of the Republic of South Africa and Others (278/10) [2011] ZASCA 49; [2011] 3 All SA 610 (SCA) (30 March 2011)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 278/10
NORGOLD
INVESTMENTS (PTY) LTD
............................................................................
Appellant
and
THE
MINISTER OF MINERALS AND ENERGY OF
THE
REPUBLIC OF SOUTH AFRICA
.......................................................................
First
Respondent
THE
DIRECTOR GENERAL, MINERAL
REGULATION,
DEPARTMENT OF MINERALS
AND
ENERGY
.......................................................................................................
Second
Respondent
THE
ACTING REGIONAL MANAGER, LIMPOPO
REGION,
DEPARTMENT OF MINERALS AND
ENERGY
...................................................................................................................
Third
Respondent
THE
REGIONAL MANAGER, MPUMALANGA
REGION,
DEPARTMENT OF MINERALS AND
ENERGY
.................................................................................................................
Fourth
Respondent
RHODIUM
REEFS LIMITED
.........................................................................................
Fifth
Respondent
THE
DEPUTY DIRECTOR GENERAL: MINERAL
REGULATION
....................................................................................................
Sixth
Respondent
______________________________________________________________
Neutral citation:
Norgold v
The Minister of Minerals and Energy of the Republic of South Africa
(278/10)
[2011] ZASCA 49
(30 March 2011)
CORAM:
Navsa, Brand, Ponnan, Snyders JJA and Plasket AJA
HEARD:
15 March 2011
DELIVERED:
30 March 2011
SUMMARY: Conversion of
prospecting right in terms of
Mineral and Petroleum Resources
Development Act 28 of 2002
─ application lodged at wrong
Regional Office ─ reached ultimate decision-maker ─ not
fatal ─ served statutory
purpose ─ renewal of prior
permit in terms of the Minerals Act 50 of 1991 not formally done
within prescribed period ─
held not to preclude subsequent
conversion ─ implementation of decision by subordinate not
impinging on its validity.
______________________________________________________________
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North Gauteng
High Court (Pretoria) (Phatudi J sitting as court of first instance).
The appeal is dismissed and the
appellant is ordered to pay the costs of all the respondents,
including, where applicable, the costs
of two counsel.
______________________________________________________________
JUDGMENT
______________________________________________________________
NAVSA JA (Brand, Ponnan, Snyders JJA
and Plasket AJA concurring)
[1] This appeal,
directed against a decision of the North Gauteng High Court (Phatudi
J), is the culmination of a battle for prospecting
rights over
Portion 1 and the Remainder of De Goedeverwachting 332KT, situated in
the Magisterial District of Sekhukhune in the
province of Limpopo
(the property). The high court had dismissed an application by the
appellant, Norgold Investments (Pty) Limited
(Norgold), for an order
reviewing and setting aside a decision of the fourth respondent, the
Regional Manager, Mpumalanga, Department
of Minerals and Energy,
alternatively, the sixth respondent, the Deputy Director General,
Mineral Regulation of the same department,
to convert ‘an old
order prospecting right’
1
of the fifth
respondent, Rhodium Reefs Limited (Rhodium), over the property, to
one in terms of item 6 of Schedule 2 of the Mineral
and Petroleum
Resources Development Act 28 of 2002 (the Act).
2
Norgold had also
sought an order directing the third respondent, the Regional Manager,
Limpopo (of the Department of Minerals and
Energy) to accept its
application for a prospecting right over the property in terms of s
16(1) of the Act. It also failed in that
quest. Phatudi J ordered
that Norgold pay the costs of all the respondents, including the
costs of two counsel. The present appeal
is before us with the leave
of the court below.
[2] The application in the court below
grew like Topsy, from a narrow focus to one that was dispersed and
opportunistic. Norgold
is a company that engages, inter alia, in
exploration for and exploitation of mineral resources in South
Africa. The initial foundation
for the application in the court
below, as appears from the founding affidavit of Mr Stephen
Ward, a director of Norgold,
was that the application by Rhodium in
April 2005, for a conversion of its existing prospecting permit,
purportedly in terms of
item 6 of Schedule 2 of the Act (item 6), was
lodged in Mpumalanga, whereas the appropriate region was Limpopo,
where the property
is located.
[3] Norgold submitted that the
provisions of the Act, which prescribe the regions in which
applications should be lodged, either
in terms of s 16 or item 6,
are peremptory and that Rhodium’s failure to comply was fatal.
Additionally, Norgold contended
that the Regional Manager, Mpumalanga
lacked statutory authority to grant prospecting rights. According to
Norgold, its application
for prospecting rights over the property, in
terms of s 16 of the Act, lodged on 3 April 2007 with the
Regional Manager, Limpopo
in whose region the property was located,
met all the prescribed requirements. Consequently,
it
was
entitled to be granted the prospecting rights and not Rhodium.
[4] It is necessary at this stage to
have regard to the provisions, both of s 16(1) and item 6.
Section 16(1) of the Act provides:
‘
(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.’ (My emphasis.)
[5] Item 6 reads as follows:
‘
(1)
Subject to subitems (2) and (8), any old order prospecting right in
force immediately before this Act took effect continues
in force for
a period of two years from the date on which this Act took effect
subject to the terms and conditions under which
it was granted or
issued or was deemed to have been granted or issued.
(2) A holder of an old
order prospecting right
must lodge
the right for conversion within the period referred to
in subitem (1) at the office of the Regional Manager in whose region
the
land in question is situated together with─
(a)
the
prescribed particulars of the holder;
(b)
a
sketch plan or diagram depicting the prospecting area for which the
conversion is required, which area may not be larger than
the area
for which he or she holds the old order prospecting right;
(c)
the
name of the mineral or group of minerals for which he or she holds
the old order prospecting right;
(d)
an
affidavit verifying that the holder is conducting or has conducted
prospecting operations immediately before this Act took effect
on the
area of that land to which the conversion relates and setting out the
periods during which such prospecting operations were
conducted and
the results thereof;
(e)
a
statement setting out the period for which the prospecting right is
required, substantiated by a prospecting work programme;
(f)
information as to whether or not the old order
prospecting right is encumbered by any mortgage bond or other right
registered at
the Deeds Office or Mining Titles Office;
(g)
a
statement setting out the terms and conditions which apply to the old
order prospecting right;
(h)
the
original title deed in respect of the land to which the old order
prospecting right relates, or a certified copy thereof;
(i)
the
original old order right or a certified copy thereof; and
(j)
all
prospecting information and the results thereof to which the right
relates.
(3) The Minister
must
convert the old order prospecting right into
a prospecting right if the holder of the old order prospecting right─
(a)
complies with the requirement of subitem (2);
(b)
has
conducted prospecting operations in respect of the right in question;
(c)
indicates that he or she will continue to conduct such
prospecting operations upon the conversion of such right;
(d)
has
an approved environmental management programme; and
(e)
has
paid the prescribed conversion fee.’ (My emphasis.)
[6] It is common cause that the first
respondent, the Minister of Minerals and Energy (the Minister),
acting in terms of s 7 of
the Act, determined by way of GN R 564,
GG
26319, 30 April 2004 the regions in terms of which the Act would be
administered. Furthermore, it is uncontested that the region
in which
the property is located falls within Limpopo and not Mpumalanga.
[7] The basis upon which Norgold’s
application was not accepted in Limpopo by the Regional Manager,
Mpumalanga was because
the prospecting rights for precious metals and
base minerals had already been granted to Rhodium.
[8] I turn to describe how Norgold’s
case broadened. In a supplementary affidavit, filed a few months
after the application
had been lodged and after receipt of the record
of proceedings pursuant to Uniform rule 53, Norgold, noting that no
documentation
appeared therein, contended additionally that the
decisions sought to be impugned appeared to have been made
arbitrarily and without
good cause. A supplementary record was later
filed, containing all the documents upon which the ultimate decision
to grant prospecting
rights was based, putting paid to that part of
Norgold’s case.
[9] Furthermore, Mr Ward, in his
supplementary affidavit, referred to a telefax he had received from
the Department of Minerals
and Energy, in which appeared a list of
delegations in terms of s 62 of the Minerals Act 50 of 1991 (the
Minerals Act) that bears
upon the Mpumalanga region. From the list of
delegations it appears that the Director of Mineral Development in
Limpopo had delegated
the administration of the property to his
Mpumalanga counterpart. It was contended on behalf of Norgold that
the delegation was
irrelevant and of no force and effect in relation
to Rhodium’s application for a conversion in terms of item 6.
It was submitted
that if indeed the Regional Manager for Mpumalanga
had relied on the delegation, that, in itself would have rendered the
acceptance
of the application for the conversion
ultra vires
and the subsequent decision to grant prospecting rights null and
void. It was contended that the delegation had not survived the
appeal of the Minerals Act.
[10] Norgold also submitted that since
the decision to convert Rhodium’s old order rights had been
taken by the sixth respondent,
the Deputy Director General Mineral
Regulation, and not by the appropriate decision-maker, the Minister,
the decision by the former
falls to be set aside.
[11] The case continued expanding. The
facts set out in the next two paragraphs emerged mainly from the
answering affidavit opposed
to on behalf of the Minister and her
officials and were seized upon by Norgold to found an entirely new
case in its replying and
subsequent affidavits.
[12] Rhodium held mineral rights over
the property, due initially to a notarial cession of mineral rights
dated 18 December 1989.
Subsequently it held a prospecting permit
issued on 2 June 2000 in terms of s 6 of the Minerals Act. That
permit was valid until
1 June 2001. In terms of s 6 of the Minerals
Act a prospecting permit is issued for a period of 12 months or such
longer period
as may be determined. Section 6(4) of that Act provided
further that the holder of a prospecting permit may, ‘from time
to
time, at least one month prior to the expiration of the period for
which such permit has been issued or renewed, on written application
to the Director: Mineral Development concerned and on payment of the
prescribed application fee, obtain a renewal of such permit
for a
period of 12 months or such longer period as the Director: Mineral
Development may determine if [the Director] is satisfied
with the
manner in which such holder rehabilitates surface disturbances caused
by . . . prospecting operations on the land concerned’.
[13] The last application for renewal
by Rhodium, in terms of s 6 of the Minerals Act, was made on 9 April
2003, well before the
expiry date of the permit it then held, which
was 1 June 2003. Rhodium had thus applied within the period specified
in s 6(4) of
the Minerals Act, referred to in the preceding
paragraph, and complied with all the conditions for renewal. Put
differently, Rhodium
was entitled to have the permit renewed.
Departmental officials delayed in processing the application. In
April 2004 a permit for
prospecting on the property was endorsed in
favour of Rhodium for the year ending June 2005. Thus, for the period
June 2003 up
to April 2004 Rhodium continued prospecting without a
permit having been formally issued. As stated above, Rhodium’s
application
for conversion, lodged in April 2005 was approved on 14
January 2006
[14] Having been apprised of these
facts Norgold sought to take advantage and establish an entirely new
case in its replying affidavit.
It contended that the purported
conversion in terms of the new statutory regime was of no force and
effect because the last valid
permit had lapsed, notwithstanding the
Department’s irregular attempt to belatedly breathe life into
it, and there could
consequently be no valid conversion in terms of
item 6.
[15] Not yet
content, Norgold continued to broaden its case against Rhodium even
further. In its replying affidavit, Norgold noted
that for a
conversion to take place in terms of item 6, an applicant had to show
that it had in fact prospected on the property
immediately before the
Act took effect. It submitted that Rhodium was unable to demonstrate
that it had done so when the Act came
into operation. Put simply,
Norgold’s case in this regard was that a necessary
jurisdictional fact for conversion was absent
and on that basis alone
the conversion was liable to be set aside.
3
[16] Norgold did not stop there. It
also contended for the first time in its replying affidavit that the
property on which Rhodium
was entitled to prospect under the old
order rights, differed from the property which is the subject of the
prospecting right granted
in terms of the Act. That point was
correctly not persisted in before us.
[17] In response to the ever-expanding
case that it was required to meet Rhodium served a notice on Norgold,
in terms of Uniform
rule 6(11) read with 6(15), in which it indicated
its intention to seek an order to strike out the new allegations in
the latter’s
replying affidavit. Norgold in turn, filed an
application for an order that its founding affidavit be supplemented
by a further
affidavit by Mr Ward. In what appears to be typical of
an emerging new, but still limited, category of careless litigants,
the
following is stated by Mr Ward:
‘
Were
the fifth respondent to succeed in its application to strike out what
it contends are “new” allegations, the applicant
would be
entitled to withdraw its application, tender costs and then bring a
new application, this time including the “new”
allegations sought to be struck out. That can hardly be a sensible
approach to litigation.’
[18] The attitude of offending
litigants appears to be that their cases are better served by playing
the victim. In the affidavit
sought to be admitted by Norgold the new
case made out in the replying affidavit is repeated with added
details. Furthermore, a
new twist was added. It was contended that
Norgold’s application could only be rejected if its application
had been in respect
of the same minerals and on the same land in
respect of which Rhodium had applied. It was submitted that Norgold
had applied for
prospecting rights for platinum group metals, nickel,
copper, gold, vanadium and chrome whereas Rhodium in its conversion
application
had chosen to apply for prospecting rights for platinum
group metals, nickel and copper. This last submission was without
doubt
rightly not persisted in before us. The idea of two prospecting
parties on the same property competing over what parts of ore they
might each have a right to ultimately mine for, is ludicrous.
[19] At one stage, the high court made
an order following on which the Minister and her officials filed a
supplementary record,
which in turn led to Norgold filing a further
affidavit, contemplated by the court order, repeating the foundations
of its case,
including what was set out initially and the new points
subsequently taken. This led to further responses (contemplated in
the
court order) by the Minister and his officials and by Rhodium.
[20] At the outset before us, counsel
for Norgold was constrained to concede that litigation ought not to
be conducted in the manner
described above.
[21] Having dealt with how the
litigation unfolded, it is necessary to have regard to further
necessary details to complete the
background against which this
appeal has to be decided.
[22] In its answering affidavit,
Rhodium set out its prospecting history on the property. Prior to our
new constitutional era, the
property fell within the self-governing
territory of Lebowa. Rhodium’s operations on the property
formed part of a larger
prospecting project known as the Kennedy’s
Vale project, extending over a number of farms, primarily in the
Mpumalanga province.
The Kennedy’s Vale project appears to have
commenced in the early 1980’s. The development of a shaft
system on the
farm Kennedy’s Vale commenced in 1988. Later, it
slowed down and was mothballed in October 1990 when the platinum
price fell
and it was deemed uneconomical. The planning had included
parts of the property and another farm. In 1991 Impala Platinum
Holdings
(Implats) acquired a 38 per cent interest in Barplats,
Rhodium’s holding company. This was later increased to an 83
per cent
holding. In 2000, Rhodium applied for prospecting permits in
respect of all the farms comprising the Kennedy’s Vale project.
At that time, the property was within the Limpopo province. The
boundary between Limpopo and Mpumalanga ran along the Steelpoort
River, which constitutes the south-eastern boundary of the property
and Boschkloof, which was another farm that formed part of
the
Kennedy’s Vale project. Boschkloof and the property were
situated in Limpopo whereas the remainder of the project farms
fell
within Mpumalanga.
[23] The applications for prospecting
permits for Boschkloof and the property were lodged in the Northern
region. The prospecting
permit for the property was issued to Rhodium
by the Director: Mineral Development of the Northern region in
Polokwane on 2 June
2000. Rhodium applied for prospecting permits for
the other farms which were part of the Kennedy’s Vale project
in Mpumalanga
and they were all issued in that province.
[24] Because it straddled two
provinces the administration of the project proved problematic, both
from the perspective of Rhodium
and the Department of Minerals and
Energy. Following on discussions in 2000, involving the relevant
high-ranking officials of the
Department, the powers of the Director
of the Limpopo Province were delegated to his/her counterpart in
Mpumalanga, in terms of
the then prevailing Minerals Act, which
allowed a delegation of this kind. Accordingly Rhodium was advised by
the Department to
lodge its applications for renewal in Mpumalanga.
Rhodium complied. It was thus a case of administrative convenience
that saw that
practice developing and that led to the application for
conversion being lodged in Mpumalanga, when the new statutory regime,
which
does not allow a delegation of powers between regional
managers, came into operation.
[25] Conceding that the application
was lodged at the wrong office, Rhodium’s case is that since it
is the Minister or her
delegatee who adjudicates applications for
conversions in terms of item 6, the region in which the application
is lodged is not
crucial. The designated office is for administrative
convenience and serves a practical purpose, as the local office is
the one
most closely linked with the prospecting area and can be
assumed to know the background and history and can be of assistance
to
the ultimate decision maker, the Minister, should the need arise.
[26] It is to be noted that with the
revision of municipal boundaries in 2005 the entire project area now
falls within the Limpopo
Province and the Department has directed
that when Rhodium is ready to proceed from prospecting to mining it
should lodge its application
for mining rights in Limpopo.
[27] Rhodium supplied the following
relevant information in its answering affidavit: It conducted
prospecting on various parts of
the project area in terms of the
prospecting permits and renewals. A three-dimensional seismic study
which was an extremely expensive
item of expenditure was conducted in
respect of the project area. 116 holes were drilled totalling 78 300
metres with a further
8 014 metres drilled from 455 deflections.
The information gathered and the assessments made enabled Rhodium to
decide which
parts of the project area were viable and which not. The
geological data was valuable and of such a kind that it was
classified
in terms of the South African Code for the Reporting of
Exploration Results, Mineral Resources and Mineral Reserves as
inferred,
indicated and measured minerals respectively. In respect of
the property the resources were reported on all three bases.
[28] In 2004 Rhodium’s ownership
changed when Eastern Platinum obtained the majority shareholding.
Importantly, that transaction
was premised on the validity of the
aforesaid prospecting rights, including those on the property and on
the strength of prospecting
data gleaned during prospecting
operations.
[29] In its answering affidavit
Rhodium stated unequivocally that after the application for
conversion had been granted in 2006
further prospecting was conducted
in various parts of the project area. During 2006 and early 2007 a
drilling program was undertaken,
comprising 38 315 metres of diamond
core drilling over the northern part of the project area. That
program cost in excess of R30 million
computed as follows: R27
million to drilling, R1,6 million to the assay of drilling samples,
R2,3 million to professional geological
services, R2,6 million to
seismic re-interpretation and R500 000 to topographic mapping.
Approximately 9 000 metres were drilled
on the property. The point is
made that the 3D modelling treated the Kennedy’s Vale project
area as one entity. No individual
farm or area was treated as such in
the modelling. Documentation concerning ore reserves and resources
was submitted to the Toronto
Stock Exchange. The documentation
includes all quantified resources for all the project farms and
updated prior records as a result
of prospecting work done during the
last 18 months.
[30] Mr Jacinto Ferreira Dos Santos
Rocha, the Deputy Director-General, Mineral Regulation is the sixth
respondent. In his answering
affidavit he is adamant that
he
made the decision to convert Rhodium’s old order right in terms
of item 6. In doing so he acted in terms of a delegation
of powers to
him by the Minister in terms of s 103 of the Act. He provided proof
of the written delegation.
[31] That then is the background
against which the application was decided in the court below. It is
necessary to record that Rhodium
had challenged Norgold’s
locus
standi
on the basis that at the time that the former applied to
convert its old order right the latter had no interest in whether it
was
awarded as it had not yet itself applied for a prospecting
permit. In oral argument before us this point was rightly abandoned.
[32] The court below delivered a
sparse judgment of 13 pages, the first two of which contained the
order sought by Norgold. Phatudi
J began with the primary substantive
point raised by Norgold, namely, the effect of the application for
conversion being lodged
at the wrong office. He found that the
delegation by the Regional Manager, Limpopo of his powers, to the
Mpumalanga Regional Manager,
was ‘good for administration
purposes that ensure good control and management of the prospecting
projects’ and held
that the Regional Manager, Mpumalanga ‘had
jurisdiction to convert Rhodium’s prospecting right’.
[33] The learned judge turned to the
next question: whether a permit can be renewed after it had expired?
He answered it as follows
in para 18:
‘
Renewal
simply means to make “new” of a thing that existed. A
motor vehicle disc licence normally displayed on the front
windshield
may expire without being noticed by the owner or driver thereof. Such
a licence may be renewed days or months after
expiry date on the same
terms and conditions upon fulfilment of the requirements for
renewal.’
[34] The learned judge went on to find
that even though the word ‘must’ is used in prescribing
the office at which an
application for conversion in terms of item 6
should be lodged, it was ‘merely directory and not peremptory’.
The court
below went on to find that the Regional Manager, Limpopo,
correctly applied the provisions of s 16 of the Act in refusing
Norgold’s
application for a prospecting permit.
[35] Having decided the merits the
court below nevertheless went on to deal with the
locus standi
point, which had been raised
in limine
, and held that Norgold
lacked
locus standi
as it had no protectable interest at the
time the application for conversion had been made by Rhodium.
[36] Phatudi J found it unnecessary to
deal with Rhodium’s application to strike out the new matter in
Norgold’s replying
and further affidavits and ‘the
hearsay that flow with it’. Ultimately, the court below
dismissed Norgold’s application
in the terms set out at the
commencement of this judgment.
Conclusions
[37] Before us the appeal was
restricted to three main issues which will be dealt with in turn
hereafter.
[38] The first question to be
addressed is whether Rhodium’s failure to lodge its application
for conversion at the regional
office in Limpopo rendered the
conversion in terms of item 6 ineffective? It is necessary to have
regard to the provisions of item
6 set out above and to consider the
purpose they serve.
[39] Item 6(2) sets out the
information and documentation that must accompany an application for
conversion. It is a checklist for
the ultimate designated
decision-maker. Item 6(3) obliges the Minister to convert the old
order permit if certain prescribed requirements
are met and if the
further conditions set out in item 6(3) are fulfilled. There can be
no doubt that the regional office serves
as a post-box for receipt of
the application and the accompanying information. There is no
discretion required to be exercised
by the Regional Manager. His or
her task is to send it onwards to the ultimate decision-maker. Item
6(2), insofar as it prescribes
an office for receipt of the
application is for the Department’s administrative convenience,
its ultimate purpose being to
see to it that the application reaches
the designated decision-maker.
[40] In my view the significance of
the role of the Regional managers is exaggerated by Norgold in its
heads of argument. Regional
managers can, of course, be of assistance
in verifying if the preconditions have been met, but they are not the
ultimate decision-maker,
nor do they exercise a discretion in that
regard. Ironically, because of the history of administration of the
project area, the
wrong office in this case, the Mpumalanga regional
office, was best placed to be of assistance.
[41] Section 103(1) of the Act
provides for delegation and assignment in the following terms:
‘
The
Minister may, subject to such conditions as he or she may impose, in
writing delegate any power conferred on him or her by or
under this
Act, except a power to make regulations or deal with any appeal in
terms of section 96, and may assign any duty so imposed
upon him or
her to the Director-General, the Regional Manager or any officer.’
[42] The sixth
respondent, Mr Dos Santos Rocha, is an officer as defined in the
Act.
4
He has provided
proof of the written delegation of powers by the Minister. The
application for conversion reached him and he made
the decision
sought to be impugned.
[43] In
Unlawful
Occupiers, School Site v City of Johannesburg
5
this court said the
following:
‘
[I]t
is clear from the authorities that even where the formalities
required by statute are peremptory it is not every deviation
from the
literal prescription that is fatal. Even in that event, the question
remains whether, in spite of the defects, the object
of the statutory
provision has been achieved (see eg
Nkisimane
and Others v Santam Insuarnce Co Ltd
1978
(2) SA 430
(A) at 433H-434B;
Weenen
Transitional Local Council v Van Dyk
2002
(4) SA 653
(SCA) in para 13).’
See also
Moela
v Shoniwe
2005
(4) SA 357
(SCA) para 8.
[44] Even if one were to assume in
favour of the appellant that item 6, insofar as it prescribes the
regional office at which the
application for conversion is to be
lodged, is peremptory, the object of the Act was clearly achieved.
The correct decision-maker
received the application for conversion
and made the decision. The first point must therefore be decided
against the appellant.
[45] I turn to the next question,
namely, whether the untimely formal renewal of the prior permit
precluded its conversion in terms
of item 6. The motor car licence
disc analogy by the court below was inapposite and unhelpful. All the
indications are that Rhodium
met the conditions for renewal
prescribed by s 6(4) of the Minerals Act. It had applied within the
prescribed time and was entitled
to a renewal. The laxity of
departmental officials should not be laid at its door. More
fundamentally, the decision to renew the
permit was not taken on
review. The decision to convert in terms of item 6 is currently being
challenged.
[46] The decision
to renew existed as a fact and it had legal consequences that cannot
be overlooked. It cannot be suggested that
the preconditions for
renewal were not substantively met. For years after the permit had
been renewed, Rhodium and others regulated
their conduct and expended
much money, effort and resources based on its validity. Even assuming
that the decision to renew the
permit was irregular, which is
doubtful, Norgold’s remedy was to have that decision set aside.
In
Oudekraal
Estates (Pty) Ltd v City of Cape Town
6
the following is
said:
‘
The
proper functioning of a modern State would be considerably
compromised if all administrative acts could be given effect to or
ignored depending upon the view the subject takes of the act in
question. No doubt it is for this reason that 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’.
See also
Chairperson,
Standing Tender Committee & others v JFE Sapela Electronics (Pty)
Ltd & others
.
7
[47] In
Camps
Bay Ratepayers’ Association & another v Harrison and the
Municipality of the City of Cape Town
8
the Constitutional
Court, referring to the
Oudekraal
decision
in this court with approval, said the following (para 62):
‘
[A]dministrative
decisions are often built on the supposition that previous decisions
were validly taken and unless that previous
decision is challenged
and set aside by a competent court, its substantive validity is
accepted as a fact. Whether or not it was
indeed valid is of no
consequence. Applied to the present facts this means that the
approval of the February 2005 plans must be
accepted as a fact. If
the footprint issue was part of that approval, that decision must
likewise be accepted as a fact unless
and until it is validly
challenged and set aside.’
[48] In
Harnaker
v Minister of the Interior
9
Corbett J, in
dealing with the effect of delay in setting aside administrative
decisions, said the following:
‘
In
such a case the grounds of review might, for example be that the body
had exceeded its powers. If this ground were substantiated,
the
review would establish that the proceedings and any act following
therefrom were null and void. The application of the delay
rule in
such a case would prevent the aggrieved party from establishing such
nullity. In a sense delay would therefore “validate”
a
nullity.’
[49] The
Promotion
of Administrative Justice Act 3 of 2000
prescribes a time limit for
bringing applications for judicial review of administrative action.
10
This is in line
with the common law delay rule. In
Associated
Institutions Pension Fund & others v Van Zyl & others
11
Brand JA said the
following:
‘
The
raison
d’être
of
the rule is said to be twofold. First, the failure to bring a review
within a reasonable time may cause prejudice to the respondent.
Secondly, there is a public interest element in the finality of
administrative decisions and the exercise of administrative functions
(see eg
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A) at 41).’
[50] As stated above, there appears to
be no substantive basis for challenging the renewal. Significantly,
more than six years after
the renewal in terms of the repealed
Minerals Act and after many developments and actions in consequence,
an application for review
of that decision has still not been
brought. In my view for all the reasons aforesaid the second point
must also be decided against
Norgold.
[51] I turn to the question whether
there is any substance to Norgold’s submission that Rhodium had
not proved that it had
conducted prospecting operations on the
property and was thereby precluded from having its permit converted.
Allied to this is
the submission on behalf of Norgold that the person
making the decision to convert the permit had been misled in this
regard by
Rhodium ─ that it had in fact been prospecting at the
time that the Act came into operation or when the application for
conversion
was made. Before us, it was submitted on behalf of
Norgold, that there was at the very least a dispute of fact that
ought to be
referred to oral evidence.
[52] As pointed out above, the
answering affidavit was explicit and detailed in its description of
prospecting operations, both
in respect of the Kennedy’s Vale
project as a whole and the property, designed to show its historical
involvement on the
property and its entitlement to conduct
prospecting operations. The new case sought to be fashioned by
Norgold in its replying
affidavit was based on an unsubstantiated
denial that Rhodium had indeed prospected on the farm. Norgold
suggested that the documentation
proved exploration by Rhodium’s
holding or associate companies and not by Rhodium itself. Norgold
contended that prospecting
in relation to Kennedy’s Vale
project ought to be considered distinctly from prospecting on the
property. In its replying
affidavit, Norgold quibbled with the
statistics provided by Rhodium in respect of the number of holes that
were drilled in furtherance
of prospecting activity. It does not deny
that a substantial amount of drilling had been done. Much of
Norgold’s case in
respect of Rhodium’s failure to conduct
prospecting rights on the property is conjecture.
[53] The supplementary affidavits
subsequently filed by Norgold were much in the same vein. Reliance
was also placed on unsworn
statements and hearsay evidence, the
particulars of which it is not necessary to explore any further.
[54] It is trite
that all the necessary allegations upon which an applicant’s
case is based must appear in his or her founding
affidavit. A court
will not usually allow an applicant to make out a completely
different claim in his or her replying affidavit.
A court does have a
discretion to allow new matter in a replying affidavit and a
distinction is usually drawn between a case in
which new material is
first brought to light by the applicant who knew of it at the time
when his or her founding affidavit was
prepared and a case in which
facts alleged in a respondent’s answering affidavit revealed
the existence or possible existence
of a further ground for relief.
In the latter case, a court would more readily incline to allow new
matter in a replying affidavit
but would then allow a fourth set of
affidavits to be filed.
12
In the present
case, however, Norgold had already filed a supplementary founding
affidavit before Rhodium’s answering affidavit,
wherein
reference was made to its prospecting operations as part of its
description of its historical involvement on the property
and with
the Kennedy’s Vale project. It had the record on which the
decision to convert had been based and provided no explanation
at all
for why it had not raised this issue in its first supplementary
affidavit.
[55] The new case sought to be
introduced by Norgold in its replying and further affidavits is
opportunistic and not based on any
admissible evidence. As stated
above, it is conjecture and mainly based on vague assumptions and
hearsay evidence. The application
to strike out those offending parts
of the replying affidavit which fall within this category ought to
have been dealt with by
the court below in favour of Rhodium. In any
event, Rhodium’s assertions about its prospecting activities
are unequivocal
and substantiated and there is nothing to suggest
that its statements in this regard lack credibility or that there is
a genuine
dispute of fact on this aspect. As stated above, the court
below, in my view, ought to have struck out the offending parts of
Norgold’s
replying affidavit leaving Rhodium’s
allegations about its prospecting activities completely unchallenged.
For the purposes
of this appeal those allegations are disregarded. It
follows that this third question should also be decided in Rhodium’s
favour.
[56] Considering the conclusions set
out above, it is clear that the Regional Manager, Limpopo Province,
was correct to reject Norgold’s
application for a prospecting
permit. The Regional Manager is obliged to accept an application for
a prospecting permit in terms
of s 16(2) of the Act only if the
requirements of s 16(1) are met and if ‘no other person holds a
prospecting right, mining
right, mining permit or retention permit
for the same mineral and land’. Thus the application to review
a ‘decision’
by him is liable to be dismissed.
[57] Once it is accepted that the
sixth respondent in fact made the decision and did so on the basis of
a proper delegation of powers
it follows that the Regional Manager,
Mpumalanga fell out of the picture and served no other purpose than
receiving the application
and sending it on for final decision. The
application to review the decision by him must also accordingly fail.
[58] It was submitted on behalf of
Norgold that since the Regional Manager, Mpumalanga signed the
notarial prospecting right, he
should be regarded as the person who
granted the conversion in terms of item 6 and not the sixth
respondent. In
Nelson Mandela Metropolitan Municipality &
others v Greyvenhouw CC & others
2004 (2) SA 81
(SECLD) para
50 the following is stated by Plasket AJ:
‘
Non-discretionary
decisions ─ such as giving effect to a discretionary decision ─
would not defeat the purpose of the
rule.
Baxter
states
the position thus:
“
Powers
which involve little or no discretion ─ so-called “purely
mechanical” powers ─ are usually delegable.
Since there
is no choice involved nothing is lost if the power is exercised by a
subordinate. The same may be said where the person
designated by the
legislation directs his personal attention to those elements of the
power which involve discretion and then,
having made a decision,
leaves its implementation to someone else.” ‘
[59] What is set out in the dictum in
the preceding paragraph is precisely what occurred in the present
case. The sixth respondent
took the decision to convert and left it
to the Regional Manager, Mpumalanga to implement. In any event, it is
not the document
of implementation that was challenged but it is the
decision to convert the old order prospecting, which is the subject
of the
present litigation.
[60] One final aspect requires brief
attention. A more comprehensive judgment by the court below might
well have dissuaded the present
appeal, which it is clear is entirely
without merit.
[61] In light of the above, the
following order is made:
The appeal is dismissed and the
appellant is ordered to pay the costs of all the respondents,
including, where applicable, the costs
of two counsel.
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: C D A Loxton SC
O
Mooki
Instructed
by
Werksmans
Inc c/o Brazington Shepperson & McConnell Hatfield
Symington
& De Kok Bloemfontein
For
1
st
– 4
th
& 6
th
Respondents:
M S M Brassey SC
Instructed
by
The
State Attorney Pretoria
The State Attorney Bloemfontein
For 5
th
Respondent: G L
Grobler SC
L Bekker
Instructed
by
Tabacks
Attorneys c/o Edelstein Bosman Pretoria
McIntyre & Van der Post
Bloemfontein
1
Issued
on 1 June 2001 in terms of s 6 of the repealed Minerals Act 50 of
1991. The permit entitled Rhodium to prospect for precious
metals
and base minerals found in mineralogical association with those
precious metals.
2
This
Act came into operation on 1 May 2004.
3
Item
6(2)(a), which appears in para 5 above, requires an applicant for
conversion to supply an affidavit verifying that he or
she is
conducting or has conducted prospecting operations immediately
before the Act took effect. Item 6(3)(b) obliges the Minister
to
convert the old order prospecting rights if certain conditions are
met, including the requirement that an applicant ‘has
conducted prospecting operations’ in respect of the right in
question.
4
Officer
is defined in s 1 of the Act as follows:
‘
“
officer”
means any officer of the Department appointed under the Public
Service Act, 1994 (Proclamation No. 103 of 1994).’
5
Unlawful
Occupiers, School Site v City of Johannesburg
2005
(4) SA 199
(SCA) para 22.
6
Oudekraal
Estates (Pty) Ltd v City of Cape Town
2004
(6) SA 222
(SCA) para 26.
7
Chairperson,
Standing Tender Committee & others v JFE Sapela Electronics
(Pty) Ltd & others
2008 (2) SA 638
(SCA) para 28.
8
Camps
Bay Ratepayers’ Association & another v Harrison and the
Municipality of the City of Cape Town
2011
(2) BCLR 121
(CC).
9
Harnaker
v Minister of the Interior
1965 (1) SA 372
(C) at 381B-C.
10
Section
7(1) provides that proceedings for judicial review must be
instituted without unreasonable delay and not later than 180
days
after the date on which any proceedings instituted in terms of
internal remedies have been concluded or, where no such remedies
exist, the date on which the person concerned was informed of the
administrative action, became aware of it and the reasons for
it or
might reasonably have been expected to have become aware of the
action and the reasons.
11
Associated
Institutions Pension Fund & others v Van Zyl & others
2005 (2) SA 302
(SCA) para 46.
12
See
D E van Loggerenberg, P B J Farlam
Erasmus
Superior Court
Practice
(2009) B1-45 to B1-46 and the authorities there cited.