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[2011] ZASCA 109
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SA Soutwerke (Pty) Ltd v Saamwerk Soutwerke (Pty) Ltd and Others (491/10) [2011] ZASCA 109; [2011] 4 All SA 168 (SCA) (1 June 2011)
Links to summary
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 491/10
In
the matter between:
S A SOUTWERKE (PTY) LTD
.........................................................................
Appellant
v
SAAMWERK SOUTWERKE (PTY) LTD
............................................
First
Respondent
MINISTER OF MINERALS AND ENERGY
...................................
Second
Respondent
DIRECTOR-GENERAL: MINERALS AND
ENERGY
........................
Third
Respondent
REGIONAL MANAGER: MINERALS AND
ENERGY
NORTHERN CAPE
........................................................................
Fourth
Respondent
Neutral citation:
SA
Soutwerke v Saamwerk Soutwerke
(491/2010)
[2011] ZASCA 109
(1
June 2011).
Coram:
Brand, Heher, Ponnan,
Cachalia and Theron JJA
Heard:
13 May 2011
Delivered: 1 June 2011
Summary: A person who relies on an
illegally issued permit to occupy land has no right to be consulted
by an applicant for a mining
right as contemplated by
s 22(4)
of
the
Mineral and Petroleum Resources Development Act 28 of 2002
.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
Northern Cape
High Court, Kimberley (Lacock J sitting as court of first instance).
The following order is made:
1 The appeal is dismissed with costs;
2 The registrar of this court is
directed to deliver copies of this judgment to The National
Commissioner of the South African Police
Service, the National
Director of Public Prosecutions and the Minister responsible for the
Department of Minerals and Energy.
________________________________________________________________
JUDGMENT
________________________________________________________________
CACHALIA JA
(Brand, Heher,
Ponnan and Theron JJA concurring):
[1] This appeal concerns a dispute
between two companies over the right to mine salt in the Northern
Cape. It is appropriate to
set out the facts in some detail so that
the legal issues that arose both in the high court and in this court
are properly understood.
[2] On 13 July 2005
Saamwerk Soutwerke (Pty) Ltd applied to the Department of Minerals
and Energy (the DME) for a right to mine
salt on a property known as
Vrysoutpan in the Gordonia District of the Northern Cape.
1
The property is
state-owned. The application was made in terms of s 22 of the Mineral
and Petroleum Resources Development Act 28
of 2002 (the Act) and
delivered to the Regional Manager, Mr Mdaweni in line with
s 22(1)(a).
2
On 5 September
2005 Mdaweni by letter accepted the application, as he was obliged to
do, because no other person was on record
as holding a right or
permit to mine salt on the property.
3
Mdaweni’s
letter stated that in terms of s 22(4)
4
,
Saamwerk had to submit a scoping report by 4 October 2005, conduct an
environmental impact assessment and submit an environmental
management plan by 3 November 2005, notify in writing and consult
with the landowner or lawful occupier and any other affected
party,
and submit the result of such consultation to him by 4 October 2005.
One of the issues in this appeal relates to whether
Saamwerk had
complied with its obligation to consult.
[3] On 7 December
2005 Saamwerk lodged its environmental management programme, as s
39(1) requires.
5
This was after
Mdaweni’s deadline, but well within the 180 days that the
section specifies. Section 39(4) says that the Minister
must approve
the plan within 120 days of its lodgement if it meets certain
requirements.
6
The date of
approval is important because s 25(3) declares that it is only then
that the mining right becomes effective.
[4] On 27 September 2006 the DME
informed Saamwerk by letter that its application had been approved
provisionally in terms of s
23(1) and that the Regional Manager would
approve the environmental plan by 22 November 2006. The ‘proposed
mining right’
was made conditional on Saamwerk’s
submission of a revised social and labour plan, which took place on 5
December 2006.
[5] Saamwerk thus believed that it had
fulfilled all its obligations and all that remained was the
Minister’s approval of
the environmental plan before it could
commence mining. At the same time another company, SA Soutwerke (Pty)
Ltd (SA Salt) –
the appellant – also asserted a right to
mine on the property. Because of these conflicting claims the DME
prevaricated over
the approval of Saamwerk’s environmental
plan. Saamwerk thus became embroiled in a dispute with the DME over
its failure
to approve the plan and with SA Salt over its competing
claim.
[6] SA Salt had been mining salt on
the property since 1981. The history of how it began its mining
operations there is not relevant
to the current dispute. What is
germane is that it applied for a mining right under the subsequently
repealed Minerals Act 50 of
1991 (the Minerals Act) on 13 November
2000. On 21 May 2001 the DME consented to the application and on 19
August 2001 the Director-General
authorised the Regional Manager to
conclude a written agreement with SA Salt. That was done on 17
December 2001 when SA Salt’s
managing director, Mr André
Blaauw, signed the agreement on its behalf. After some delay the
permit was ultimately
issued on 28 April 2004.
[7] The DME sent the permit to SA
Salt’s attorneys under a covering letter by registered post on
the same day. They received
it on 25 May 2004. SA Salt thus conducted
its mining operations under this permit, which had the number MP
169/2003 and an expiry
date of 27 April 2005. So, when Saamwerk
applied for a mining permit on 13 July 2005 and Mdaweni accepted it
on the DME’s
behalf on 5 September 2005, SA Salt’s permit
number MP 169/2003 had expired. This permit was therefore not a
barrier to Saamwerk’s
obtaining a mining right.
[8] However, on 16
August 2006, SA Salt wrote to Mdaweni asserting that it was the
holder of another permit – permit number
MP 169/2004 –
which gave it an ‘old order mining right’. This meant, if
the assertion was correct, that SA Salt
was entitled exclusively to
continue mining on the property for a period of five years after the
Act had commenced its operation
on 1 May 2004 – as s 7(1) of
the Act’s transitional arrangements in Schedule
II
envisages. On this
basis SA Salt objected to the DME’s acceptance of
Saamwerk’s application for a mining right.
[9] The DME had supposedly issued this
permit to SA Salt under the Minerals Act on 28 April 2004 – on
the very same day it
had issued MP 169/2003. However, unlike MP
169/2003, which had an expiry date, MP 169/2004 did not have one.
This was irregular
because s 9(1), read with s 9(3) of the Minerals
Act, required mining authorisations to be issued for a determined
period. Be that
as it may, MP 169/2004 not only duplicated MP
169/2003 – except for its omission of an expiry date –
but purported
to authorise SA Salt to mine on the very same property
(and for the same period) over which Saamwerk’s application had
been
accepted.
[10] On 30 August 2006 Saamwerk asked
SA Salt to terminate its mining operations and vacate the property as
it intended to commence
its mining operations there on 1 September.
SA Salt did not budge. Instead, on 1 September 2006 its
attorneys wrote to the
Regional Manager again asserting that ‘it
is the lawful holder of a valid mining permit number MP 169/2004’
and threatened
to approach the high court should the DME not suspend
Saamwerk’s mining right. SA Salt also ignored a demand from the
Department
of Public Works on 4 September 2006 to vacate the
property in favour of Saamwerk.
[11] After Saamwerk became aware of SA
Salt’s competing claim to mine on the property, it took up the
matter with the DME.
The DME informed it that SA Salt’s
permit MP 169/2004 had lapsed a year after its issue – on
27 April 2005
– because SA Salt had not applied to convert
it as an old order right. Saamwerk’s attorneys then wrote to SA
Salt on
20 October 2006 demanding that it vacate the property within
a week. Again, it would not and continued to assert its right to mine
on the property. On 28 November 2006 Saamwerk addressed a letter to
the DME to complain about the delay in resolving the dispute.
[12] On 6 December 2006 Mdaweni
convened a meeting with SA Salt to discuss the conflicting
authorisation to Saamwerk. He informed
SA Salt that the DME had no
record of having issued MP 169/2004. This contradicted the DME’s
earlier statement to Saamwerk
that this permit had expired. Of
greater concern, Mdaweni now made the startling claim that there were
serious question marks over
the permit’s validity because it
appeared to have been forged. The only permit that the DME had on
record, he told SA Salt’s
representatives, was MP 169/2003,
which had an expiry date of 27 April 2005. However, he thought, and
told SA Salt’s
representatives, that it was valid for a period
of five years as an old order right. It is difficult to understand
how he came
to this erroneous view because that permit was valid for
one year only and was therefore not capable of being converted under
s 7(1)
of the Act. Even if it was, SA Salt had not applied for
the right to be converted. Nevertheless, Mdaweni adopted the stance
that
DME had approved Saamwerk’s application in error as MP
169/2003 to mine on the property already existed.
[13] Thereafter Saamwerk continued to
pressurize the DME to bring finality to the matter. On 26 January
2007 the DME gave Saamwerk
an undertaking that it would investigate
the validity of MP 169/2004. It said it would do so by sending an
inspector to the property,
and also take immediate steps to evict SA
Salt from the property if it transpired that the permit was invalid.
Strangely, the DME
said nothing about Mdaweni’s view concerning
the validity of MP 169/2003, which would obviate the need to
investigate the
validity of MP 169/2004. On 7 February 2007
Saamwerk’s attorneys again wrote to the DME for confirmation
that an inspector
had been sent to the property, but received no
response. The Minister had also not approved the environmental plan
as promised.
[14] In the meantime the DME arranged
a meeting with SA Salt on 13 March 2007 and requested it to produce
the original MP 169/2004.
Mr John Block, one of SA Salt’s
directors, produced the permit at the meeting. Mdaweni and Mr Byron
Guthrie from
DME’s head office in Pretoria inspected the permit
and concluded that it was valid, which was contrary to the view
Mdaweni
had earlier held. In the absence of an expiry date on the
permit, Block and Mdaweni agreed that it permitted SA Salt to mine
for
five years; but that SA Salt would have to apply for the
permit to be converted as an old order right within five years of
the
Act’s commencement. This effectively meant that once SA Salt
lodged its conversion application, Saamwerk would not
be able to mine
on the property.
[15] Against this background Saamwerk
commenced proceedings in the Northern Cape High Court on 22 March
2007 to compel the Minister
to approve the environmental plan and
also to have MP 169/2004 declared invalid. The very next day Block
and Mr Bester, SA Salt’s
financial manager, lodged an
application with the DME to convert what SA Salt now regarded as an
old order right under MP 169/2004
to a right to continue mining under
the Act. On 7 April 2007 the DME granted the conversion application,
which confirmed SA Salt’s
belief that it could continue mining
until 30 April 2009; that is for five years after the Act had
commenced.
[16] A month later SA Salt filed its
answering affidavits. And it relied mainly on the permit that Mdaweni
and Guthrie had authenticated,
that is MP 169/2004, to resist the
relief Saamwerk sought. Mdaweni filed an affidavit on behalf of the
DME supporting SA Salt’s
stance. He stated that the DME had
approved Saamwerk’s application through a bona fide error, the
error being that SA Salt’s
permit MP 169/2004 had not been
recorded on its computer system. The DME was thus not aware of this
permit when it accepted Saamwerk’s
application on 5 September
2005. SA Salt also opposed Saamwerk’s relief on another ground;
that it had not met all its obligations
under the Act, including
having failed to consult with SA Salt as an ‘occupier’ of
the property.
[17] However, the only dispute that
was ventilated in the high court was whether any valid permit had
been issued to SA Salt to
mine on the property and, if so, what the
duration of the permit was, and also whether it was valid at the time
that the DME had
accepted Saamwerk’s application. As there were
disputes on the papers over these issues the court, at the request of
the
parties, referred them to oral evidence.
[18] The hearing lasted five days in
October 2009. Several DME officials testified. They were not only
unable to provide a satisfactory
explanation concerning the origin of
MP 169/2004, but they also gave contradictory evidence on this
aspect. In addition, Saamwerk
called a handwriting expert who
testified that the impugned permit had been falsified. His evidence
was not disputed.
[19] Because of the nature of the oral
testimony and the documentary evidence that was placed before the
court, the DME and SA Salt
were driven to concede that MP 169/2004
was invalid; that the only valid permit issued to SA Salt was MP
169/2003, which had
expired on 27 April 2005; and that SA Salt
had no valid authorisation to mine on the property on 5 September
2005, when the
DME accepted Saamwerk’s application. It is
particularly curious – and troubling – that SA Salt
adduced no evidence
by any of its officials to explain how it came to
possess MP 169/2004. At the very least, one would have expected
Block, who, on
SA Salt’s behalf, had produced the permit at the
meeting with the DME on 13 March 2007, to have explained from where
he had
got it. So it is hardly surprising that the high court later
found the permit to be a forgery, and that someone in SA Salt’s
service was aware of this.
[20] At the
conclusion of oral evidence the matter was postponed to 10 December
2009 for argument. However on 29 October 2009,
SA Salt launched a
counter-application. This time it sought to review and set aside the
Minister’s approval of Saamwerk’s
application on 27
September 2006. Its cause of action was based on a single ground –
that the then acting Regional Manager
of the DME, Mr Mfetoane, did
not have the authority, in terms of s 9(2) of the Minerals Act to
issue MP 169/2003, which was valid
only for a year because the
Minister had authorised the issue of a permit for a five-year period;
or a two-year period at least.
The permit Mfetoane issued to SA Salt
was therefore null and void. The consequence of the nullity, so it
was submitted, was that
its application for a mining permit in
November 2000 remained pending. This meant that the DME had no
authority to grant a right
to Saamwerk without first properly
processing SA Salt’s pending application in terms of s 9(1)(b)
of the Act.
7
SA Salt thus sought
a declaratory order to this effect. Saamwerk opposed the application
and the DME elected to abide by the decision
of the court.
[21] In a closely
reasoned judgment, Lacock J dismissed the counter-application with
costs. First, he found that as SA Salt had
not instituted review
proceedings to set aside MP 169/2003, it remained valid, whether or
not its issue was
ultra
vires.
8
And further, he
rejected SA Salt’s contention that the relief it sought arose
from a collateral challenge to the Regional
Manager’s purported
unlawful administrative act on the ground that it was not being
coerced to comply with any act.
9
Second, the learned
judge found that even if he were to exercise a discretion regarding
SA Salt’s claim to declaratory relief,
he would have found
against it. In this regard, the factors that weighed with him were
that the SA Salt already had the benefit
of having mined illegally
for more than five years; that it took no steps itself to investigate
the source of the impugned permit
and that it is improbable that no
one at SA Salt was aware that it had been falsified. In my view the
judge’s reasoning cannot
be faulted. He was therefore correct
to have dismissed the counter-application.
[22] In the main application the court
declared Saamwerk the holder of the mining right over the property
and also that the Minister
was deemed to have approved Saamwerk’s
environmental plan. It also declared MP 169/2004 invalid. The
DME and SA Salt
were ordered jointly and severally to pay Saamwerk’s
costs.
[23] SA Salt was dissatisfied with
this outcome and applied to the high court for leave to appeal
against the orders granted in
the main application and in the
counter-application, but it did not challenge the declaration that MP
169/2004 was invalid or the
costs order that was granted against it
in the main application.
[24] In its application for leave to
appeal SA Salt advanced a new ground of review to attack the decision
to approve Saamwerk’s
application for a mining authorisation –
one that the high court was not asked to consider either in the main
application
or the counter-application. This was that the mining
right could not have been granted to Saamwerk since it had failed to
consult
with SA Salt as an ‘occupier’ of the property.
Although, as I mentioned earlier, SA Salt had raised this defence in
the main application, counsel for SA Salt chose not to pursue it at
the time. The high court dismissed the new ground and refused
leave
to appeal, but this court granted the necessary leave. The DME has no
interest in this appeal.
[25] In refusing SA Salt’s
application for leave to appeal, the high court considered that there
was a factual dispute on
the papers (in the main application) as to
whether Saamwerk had consulted with SA Salt. But, said the judge, SA
Salt chose not
to make an issue of it through a referral for oral
evidence with the other issues that were referred. This meant, so the
court
reasoned, that Saamwerk was denied the opportunity to adduce
further evidence to support its case on this point. It would
therefore
be unfair, so it said, to allow SA Salt to resuscitate this
issue.
[26] I do not share
the learned judge’s view that there was a dispute of fact on
this issue. SA Salt raised the defence that
it had not been consulted
in its answering affidavit. In reply Saamwerk did not adduce facts to
gainsay SA Salt’s assertion.
The reason it did not do so, it
stated pertinently, was because this issue was immaterial
(‘ontersaaklik’) to the relief
it was seeking, which was
a
mandamus
10
to compel the DME
to execute the decision it had already taken to award a mining right
to it; it also had no bearing on the dispute
regarding the validity
of MP 169/2004, which constituted the basis of SA Salt’s
defence in the main application.
[27] So the question remains; was the
high court entitled to have refused to review and set aside the
Minister’s approval
of Saamwerk’s application without
considering whether it had complied with the consultation requirement
in the Act? The answer
to this question, in my view, depends upon the
legal basis relied on by SA Salt for its occupation of the property.
As SA Salt’s
occupation was premised on the validity of MP
169/2004, which the high court correctly found was not valid, the
further question
that arises is whether SA Salt had a right to be
consulted even though the permit was invalid. To answer this question
it is necessary
to examine the relevant provisions of the Act
briefly.
[28] Section 22
sets out the procedure for the application for a mining right. Any
person who wishes to apply for a mining right
must lodge the
application with the Regional Manager concerned.
11
The Regional
Manager must accept it if no other person holds a mining right or
mining permit for the same mineral and land.
12
If the application
is accepted, the Regional Manager must, within 14 days of that date
by written notice, inform the applicant to
conduct an environmental
impact assessment and submit an environmental management programme
for approval in terms of s 39,
13
and to notify and
consult with ‘interested and affected parties’ within 180
days from the date of the notice.
14
[29] The purpose of
the notification and subsequent consultation is to enable the
applicant to assess the impact that its mining
operations may have on
such parties. This will place the applicant in a position to prepare
an environmental management programme
that takes their concerns into
account. The Regional Manager must also, within 14 days of accepting
the application, call upon
these parties to submit their comments
regarding the application within 30 days of the date of the notice.
The rationale for soliciting
comments is to allow the Regional Mining
and Development Committee to consider objections and to advise the
Minister thereon.
15
[30] The Act does
not define who an interested or affected party is. But it seems clear
that an ‘interested’ party is
one with a lawful interest
in land on which a mining right is sought, such as the landowner or
lawful occupier. From the notification
that the DME sent to Saamwerk
on 5 September 2005, which I referred to earlier, this is how the DME
understood the reference to
interested parties.
16
[31] ‘Affected
parties’ appears to refer to persons whose socio-economic
conditions might be directly affected by the
mining operation. These
would, for example, include persons who earn a livelihood in the
immediate environment where mining operations
are to be conducted.
This is why the applicant for a mining permit must prepare an
environmental management programme referred
to above that deals with,
among other things, this issue.
17
SA Salt is clearly
not an ‘affected party’ as contemplated in the section
and had no right to be consulted on this basis;
although there is a
suggestion in its written argument that its eight employees, and
their families, who reside on the property,
are. Whether that is so
would necessarily depend on the facts attaching to the circumstances
of each employee, which was not canvassed
in the papers. In any
event, to the extent that the employees derive their interest purely
through their employer, SA Salt, they
can certainly have no stronger
interest than SA Salt itself possesses.
[32] I have
mentioned that in its answering affidavit in the main application
SA Salt asserted that Saamwerk had a duty to
consult with it as
an ‘occupier’. Its right to occupy the property was
firmly anchored in its belief that MP 169/2004
was valid. On a proper
reading of its answering affidavit, this was the basis upon which it
claimed a right to occupy the property.
It thus asserted that it was
a lawful occupier of the property.
18
[33] But this claim
contains the seeds of its own destruction; because if the permit was
valid Saamwerk’s application to mine
would have been rejected.
And no question of Saamwerk’s obligation to consult could
arise. The permit, as we now know, was
declared invalid; and with
that declaration, any suggestion that SA Salt remained a lawful
occupier, and thus had a right to be
consulted, disappeared.
[34] To demonstrate how disingenuous
SA Salt’s claimed right to be consulted is, one only has to ask
what would have happened
if Saamwerk had attempted to consult SA
Salt? The answer is obvious. SA Salt would have firmly rebuffed the
attempt on the ground
that it had a valid permit, and therefore, a
prior right to mine on the property, just as it did in resisting
Saamwerk’s
attempts to evict it from the property. So the
reason that Saamwerk did not take issue with SA Salt over this
question in its replying
affidavit in the main application was
because SA Salt’s very claim to have a valid permit was
inconsistent with its
assertion that it also had a right to be
consulted by Saamwerk – and that Saamwerk had a corresponding
duty to do so. SA
Salt’s belated attempt to raise this issue,
which had no proper basis in the main application and was not pursued
in those
proceedings, or in the counter-application, was therefore
doomed to fail.
[35] Counsel for SA Salt contended
that even if the counter-application was dismissed there were a
number of other reasons why the
high court, in the main application,
was not entitled to grant any declaratory order other than that
MP 169/ 2004 be declared
invalid. I need not deal with this
contention; because once the counter-application was dismissed,
correctly in my view, SA Salt
had no standing to impugn the
order that the high court granted in the main application. In the
result the appeal must fail.
[36] I have dealt with the
consultation issue in some detail because SA Salt made it its
principal ground of appeal, and argued
the matter on this basis. The
counter-application could, however, have been dismissed on a much
simpler basis – SA Salt’s
failure to exhaust internal
remedies before launching review proceedings. The high court does not
appear to have considered this,
perhaps because it too had a firm
view on the merits of the case against SA Salt.
[37] The facts show
that the decision to grant Saamwerk a mining right, which SA Salt
sought to have set aside, was communicated
to Saamwerk by letter on
27 September 2005. The Deputy Director-General, Mr J F Rocha, signed
the letter; but the Director-General
probably made the decision under
the Minister’s delegated authority. However, it is immaterial
whether Rocha or the Director-General
made the decision. It is beyond
dispute that the Minister did not. This means that SA Salt was
obliged to appeal to the Minister,
as s 96(3) of the Act envisages,
before launching review proceedings.
19
It did not do so
and it was therefore was not competent to have approached the high
court for any relief.
[38] One matter remains. This dispute
commenced in 2005 with the DME’s decision to accept Saamwerk’s
application for
a mining right. Saamwerk apparently complied with
whatever obligations the law and the DME expected of it. In the
meantime, SA
Salt, which had been mining on the property since 1981,
produced a mining permit authorising it to mine on the property. The
DME
had no record of this permit. Then, SA Salt and the DME
suspiciously came to an agreement that the permit was valid, when it
obviously
was not. So Saamwerk was compelled to litigate against both
SA Salt and the DME to vindicate its right.
[39] In the court proceedings that
followed, the high court found, as I have mentioned, that the permit
had been forged, and that
SA Salt must have been aware of this.
It beggars belief that the officials of the DME, who dealt with this
matter, purported
to validate the permit even though it visibly was
not valid, and the DME had no record of it. The result was that
Saamwerk, despite
continuing throughout to pay its rental to the
Department of Public Works, was denied its right to mine on the
property. Instead
SA Salt continued to mine for at least five years
without a valid permit.
[40] During the hearing before us, we
were informed by Saamwerk’s legal representatives that they had
lodged a complaint with
the South African Police Service
approximately two years ago to investigate the forgery, but had since
heard nothing. Equally disturbing
is that there is more than a hint
of ineptitude – if not venality – among one or more of
the officials of the DME who
dealt with this matter. Yet no one has
been held accountable. I shall accordingly request the registrar of
this court to deliver
a copy of this judgment, as well as the
judgments of the high court, to the National Commissioner of the
South African Police Service,
the National Director of Public
Prosecutions, and the Minister who is responsible for Department of
Minerals and Energy.
[41] I make the following order:
1 The appeal is dismissed with costs;
2 The registrar of this court is
directed to deliver copies of this judgment to The National
Commissioner of the South African Police
Service, the National
Director of Public Prosecutions and the Minister responsible for the
Department of Minerals and Energy.
_________________
A CACHALIA
JUDGE OF APPEAL
APPEARANCES
For Appellant: W H G van der Linde SC
(with him E F van Huyssteen)
Instructed by:
Wessels & Smith Inc, Upington
McIntyre & Van Der Post,
Bloemfontein
For 1
st
Respondent: J J
Gauntlett SC (with him J C Tredoux)
Instructed by:
Haarhoffs Inc, Kimberley
Peyper Sesele Attorneys, Bloemfontein
1
The
property is fully described as Portion 146 of Portion 58
(Vrysoutpan) and Portion 59 (Vrysoutpan) van die plaas Kalahari-Wes
No 251, District of Gordonia, Northern Cape Province.
2
Section
22: ‘(1) Any person who wishes to apply to the Minister for a
mining right must lodge the application-
(a)
at
the office of the Regional Manager in whose region the land is
situated.’
3
Section
22: ‘(2) The Regional Manager must accept an application for a
mining 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.’
4
Section
22: ‘(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
conduct an environmental impact assessment and submit an
environmental management programme for approval in terms of section
39, and
(b)
to
notify and consult with interested and affected parties within 180
days from the date of the notice.’
5
Section
39: ‘(1) Every person who has applied for a mining right in
terms of section 22 must conduct an environmental impact
assessment
and submit an environmental management programme within 180 days of
the date on which he or she is notified by the
Regional Manager to
do so.’
6
These
are set out in s 39(3). It provides as follows:
‘
(3)
An applicant who prepares an environmental management programme or
an environmental management plan must-
(a)
establish baseline information
concerning the affected environment to determine protection,
remedial measures and environmental
management objectives;
(b)
investigate, assess and evaluate the impact of
his or her proposed prospecting or mining operations on-
(i)
the environment;
(ii) the
socio-economic conditions of any person who might be directly
affected by the prospecting or mining operation; and
(iii)
any national estate referred to in section 3(2) of the National
Heritage Resources Act, 1999 (
Act
25 of 1999
), with the exception of the national estate
contemplated in section 3(2)
(i)
(vi)
and (vii) of that Act;
(c)
develop an environmental awareness
plan describing the manner in which the applicant intends to inform
his or her employees of
any environmental risks which may result
from their work and the manner in which the risks must be dealt with
in order to avoid
pollution or the degradation of the environment;
and
(d)
describe the manner in which he or she intends
to-
(i)
modify, remedy, control or stop any action, activity or process
which causes pollution or environmental degradation;
(ii) contain or remedy
the cause of pollution or degradation and migration of pollutants;
and
(iii)
comply with any prescribed waste standard or management standards or
practices.’
7
Section
9: ‘(1) If a Regional Manager receives more than one
application for a prospecting right, a mining right or a mining
permit, as the case may be, in respect of the same mineral and land,
applications received on-
(a)
. . .
(b)
different
dates must be dealt with in order of receipt.’
8
Oudekraal
Estates (Pty) (Ltd) v City of Cape Town
2004 (6) SA 222
SCA at
para 26.
9
Ibid
para 32.
10
Now
incorporated under
s 6(2)(g)
of the
Promotion of Administrative
Justice Act 3 of 2000
. It provides:
‘
A
court or tribunal has the power to judicially review an
administrative action if –
(a) . . .
. . .
(g)
the action concerned consists of a failure to take a decision.’
11
Section
22(1).
12
">
12
Section
22(2)(b).
13
">
13
Section
22(4)(a).
14
">
14
Section
22(4)(b).
15
Section
10(2).
16
">
16
See
para 2 above.
17
Section
39(3)(b)(ii).
18
">
18
Cf
Bengwenyama Minerals (Pty) Ltd & others v Genorah Resources
(Pty) Ltd & others
2011 (3) BCLR (CC) paras 62-67.
19
Bengwenyama
Minerals (Pty) Ltd & others v Genorah Resources (Pty) Ltd &
others
2011 (3) BCLR (CC) paras 43-52.