Rustenburg Platinum Mines Limited and Another v Minister of Mineral Resources and Others (7883/2007; 56189/2010) [2017] ZAGPPHC 29 (1 February 2017)

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[2017] ZAGPPHC 29
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Rustenburg Platinum Mines Limited and Another v Minister of Mineral Resources and Others (7883/2007; 56189/2010) [2017] ZAGPPHC 29 (1 February 2017)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
7883/2007
56189/2010
1/2/2017
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
RUSTENBURG
PLATINUM MINES
LIMITED
1
st
Applicant
ARM
MINING CONSORTIUM
LIMITED
2
nd
Applicant
and
MINISTER
OF MINERAL
RESOURCES
1
st
Respondent
DIRECTOR-GENERAL,
DEPARTMENT OF
2
nd
Respondent
MINERAL
RESOURCES
DEPUTY
DIRECTOR-GENERAL: MINERAL REGULATION,
3
rd
Respondent
DEPARTMENT
OF MINERAL RESOURCES
REGIONAL
MANAGER, LIMPOPO REGION, DEPARTMENT
4
th
Respondent
OF
MINERAL RESOURCES
GENORAH
RESOURCES (PTY)
LTD
5
th
Respondent
NKWE
PLATINUM (SOUTH AFRICA) (PTY)
LTD
6
th
Respondent
INTERNATIONAL
GOLDFIELDS
LTD
7
th
Respondent
MORUTHANE
BEN SEKHUKHUNE
N.O.
8
th
Respondent
BAUBA
A HLABIRWA MINING INVESTMENTS (PTY) LTD
9
th
Respondent
MYELETI
MINING (PTY)
LTD
10
th
Respondent
THE
TRADITIONAL COUNCIL OF THE BENGWENYAMA-YA
11
th
Respondent
MASWATI
COMMUNITY
ROKA
PHASA PHOKWANE TRADITIONAL COUNCIL
12
th
Respondent
MIRACLE
UPON MIRACLE INVESTMENTS (PTY) LTD
13
th
Respondent
NKWE
PLATINUM
LTD
14
th
Respondent
JUDGMENT
AC
BASSON. J
Introduction
[1]
The application before this court is interlocutory to two review
applications in which the applicants seek to review rights
granted by
any of the 1•t to 4th respondents (most notably the third
respondent - the Deputy Director-General: Mineral Regulation,

Department of Mineral Resources the - "DOG") under the
Minerals and Petroleum Resources Development Act ("MPRDA")
[1]
over certain properties referred to in this application as the
Modikwa Deeps Properties
[2]
to a
number of parties (the 5th to 14th respondents). The two review
applications are referred to in this judgment as the "Genorah"

and "Bauba" review applications. The Genorah review
application was launched in 2007 (case number: 7883/2007) and the

Bauba review application in 2010 (case number: 55189/2010). The
review record in the Genorah review application (albeit incomplete

according to the applicants) has been provided. No record has yet
been provided in the Bauba review application.
[2]
At the commencement of the proceedings a draft order was handed up by
the applicants. The order proposed by the applicants in
the draft
reads as follows:
"1. The applications
under case numbers 7883/2007 and 55189/2010 are consolidated.
2. The 2nd respondent is
joined as the 5th respondent in the application under case number
55189/2010.
3. The 5
th
to
14
th
respondents are joined in as the 5th to 14th
respondents in case number 7883/2007.
4. The applicants are
granted leave to amend the notice of motion, in the application under
case number 7883/2007.
5. The 2
nd
,
5
th
to 14
th
respondents are granted leave to
oppose the relief sought in the amended notice of motion.
6. The applicants are
directed to deliver a complete copy of the papers in the consolidated
application to any of the 2"d,
5th to 14th respondents who filed
a notice to oppose the relief sought in the amended notice of motion.
7. The time periods
provided for in rule 53 of the rules of court commence to run from
the date of delivery of the papers contemplated
in 5 above.
8. The issue whether the
first applicant has exhausted its internal remedy of appeal is
determined separately from the remaining
issues in the consolidated
applications.
9. The first applicant
has exhausted its internal remedy of appeal in the consolidated
applications under case numbers 7883/2007
and 55189/2010.
10. The 1th to 4th
respondents are directed to file a rule 53 record in the application
under 55189/2010.
11. The 1
st
to
4
th
respondents are interdicted from accepting or granting
any applications for prospecting rights, mining rights or any other
rights,
permits or permissions under the MPRDA in respect of any
minerals in, on or under the properties - De Korn 252 KT, remaining
extent
of the farm Garatouw 282 KT, Hoepakrantz 291 KT,
Grootvygenboom 284 KT, Genokakop 285 KT, Houtbosch 323 KT, in the
Magisterial
District Sekhukhune, pending the final determination of
the consolidated review applications.
12. The 5
th
and 14
th
respondents are interdicted from exercising any
rights flowing from the mining right granted to them, in respect of
the properties
- remaining extent of the farm Garatouw 282 KT,
Hoepakrantz 291 KT and De Korn 252 KT, in the Magisterial District
Sekhukhune,
pending the final determination of the consolidated
review applications.
13. The 5
th
,
6
th
, 7
th
, 8
th
, 9
th
and
14
th
respondents are ordered to pay the applicants' costs
jointly and severally."
The
applicants
[3]
The 1st applicant is Rustenburg Platinum Mines Limited ("RPM").
RPM is a subsidiary of Anglo American Platinum Limited
(previously
known as Anglo Platinum Limited). RPM is the 1
st
applicant
in the application issued under case number 7883/2007 (the "main
application") and the interlocutory application
before this
Court issued under case number 56189/2010 ("the interlocutory
application"). The Genorah review application
was instituted in
2007 in respect of certain decisions taken in August 2006 and
thereafter by the DOG. It appears from the papers
that since the
review application was launched it has not progressed much beyond
where it stood in 2007. As will be pointed out
hereunder, almost a
decade after the Genorah review application was instituted the
applicants set down this interlocutory application
in terms of which
they seek various interlocutory relief including an interim interdict
against the Genorah respondents pending
the finalisation of the
review application.
[4]
The 2
nd
applicant is ARM Mining Consortium Limited
("ARM"). RPM and ARM (referred to as "the applicants"
except where
the context demands otherwise) have entered into an
agreement in terms of which ARM will be the main applicant in the
main and
the interlocutory applications. RPM did not file substantive
written submissions nor did it advance any oral argument at the
hearing
of this matter and aligned itself with the written and oral
submissions advanced on behalf of RPM.
[5]
In 2002 RPM and ARM entered into a joint venture to own and operate
the Modikwa Platinum mine where platinum group minerals
are mined.
The mine is situated in the Limpopo Province. The applicants intend
through the joint venture to expand mining at the
Modikwa mine over
the remaining Modikwa properties.
The
State respondents
[6]
The first four respondents are the Minister of Mineral Resources (the
1
st
respondent), the Director-General, Department of
Mineral Resources (the 2
nd
respondent), the Deputy
Director-General: Mineral Regulation, Department of Mineral Resources
(the 3
rd
respondent - "the DDG") and the
Regional Manager, Limpopo Region, Department of Mineral Resources
(the 4th respondent).
The 1
st
to 4
th
respondents are referred to in this judgment as "the State
respondents". The state respondents do not oppose the relief

sought in the notice of motion.
The
Genorah respondents
[7]
This (interlocutory) application is opposed by the 5
th
respondent (Genorah Resources (Pty) Ltd), the 6
th
respondent (Nkwe Platinum (South Africa) (Pty) Ltd), the 7
th
respondent (International Goldfields Ltd) and the 14
th
respondent (Nkwe Platinum Ltd). These respondents are referred to as
the so-called "Genorah respondents". The Genorah

respondents do not opposed the procedural relief sought in the draft
order handed up to the Court but do oppose the relief sought
in
prayers 9, 11, 12 and 13 of the draft order. Genorah also seeks an
order that the applicants pay its costs.
The
Bauba respondents
[8]
The 8
th
respondent (Moruthane Ben Sekhukhune N.O) and the
9
th
respondent (Bauba A Hlabirwa Mining Investments (Pty)
Ltd) respondents are jointly referred to as "the Bauba
respondents".
The Bauba respondents also oppose the procedural
relief sought by the applicants.
The
remaining respondents
[9]
The 10th respondent (Myeleti Mining (Pty) Ltd) did not file any heads
of argument and does not appear to be before court. No
relief is
sought against the 11th respondent Traditional Council of the
Bengwenyama-Ya-Maswati Community), the 1ih respondent (Roka
Phasha
Phokwane Traditional Council) and 13th respondent (Miracle upon
Miracle Investments (Pty) Ltd. These respondents are referred
to as
"the remaining respondents". They are cited because they
are the holders of certain prospecting rights over the
Modikwa
properties granted to them by the 3rd respondent (the DOG) under the
MPRDA.
[10]
It appears from the papers that the applicants no longer pursue the
relief in respect of the 3
rd
decision (see hereunder) as far as it relates to the granting of a
prospecting right to Genorah over Eerstegeluk and Nooitverwacht
in
light of the fact that the Constitutional Court had set aside the
granting of a prospecting right to Genorah over those properties

referred in
Bengwenyama
Minerals (Pty) Ltd and others v Genorah Resources (Pty) Ltd and
others.
[3]
The ih
decision in so far as it relates to the granting of a preferment
prospecting right to the 11
th
,
12
th
and 13
th
respondents is also no longer pursued.
Nature
of the relief sought
[11]
As already pointed out, the relief sought in terms of prayers 1 to 7
and 10 of the draft order is largely procedural and is
aimed at
ensuring that the two reviews are ready to be argued. The applicants
submitted that the consolidation application should
be granted and
that it makes sense that one reviewing Judge hear both review
applications. It was further submitted that it also
makes sense that
certain parties be joined to the pending review applications. The
Genorah respondents share this view. The Bauba
respondents, however,
also oppose the procedural relief sought.
[12]
Prayer 8 seeks to separate the issue of whether RPM has exhausted its
internal remedy of appeal from the remaining issues in
the (to be
consolidated) two review applications. It was further submitted on
behalf of the applicants that not only should this
issue be
separated, but that this Court should also decide the issue. The
Genorah respondents do not seem to oppose the separation
of this
issue but, as will be pointed out herein below, submitted that this
issue cannot be entertained by this court as all the
facts which
would place this Court in a position to decide the issue have not
been placed before the Court. The Bauba respondents
are also opposed
to a separation of the issue.
[13]
Prayer 9 follows on prayer 8. In prayer 9 the applicants seek an
order that RPM has in fact exhausted its internal remedies
of appeal
in respect of the various appeals that have been instituted against
various decisions taken by some of the State respondents
over the
years and that they should therefore be allowed to proceed with the
two review applications without having to await the
outcome of the
internal appeals.
[14]
The relief now sought in prayer 9 is a departure from the relief
initially sought on behalf of the applicants. Initially RPM
sought an
order to the effect that it be exempted from first exhausting its
internal appeal remedies before proceeding with the
review
applications. At the commencement of this hearing the Court was
informed that the applicants no longer persist with this
prayer and
that it now pursues an argument with reference to the provisions of
PAJA that, in light of the fact that the State respondents
have, for
a period of 10 years taken no steps to decide any of the appeals,
such failure to take a decision within a reasonable
time effectively
amounts to a dismissal of the appeals. The applicants submitted that
this issue has to be decided now in light
of the fact that the
Constitutional Court in
Bengwenyama
[4]
held
that a court cannot entertain a review application until such time
that the internal remedies have be exhausted against decisions
by
delegates of the Minister:
"'[49] In
Koyabe
and Others v Minister for Home Affairs and Others (lawyers for Human
Rights as Amicus Curiae)
this court emphasised the importance of
internal remedies:
'[55] Internal remedies
are designed to provide immediate and cost­ effective relief,
giving the executive the opportunity to
utilise its own mechanisms,
rectifying irregularities first, before aggrieved parties resort to
litigation. Although courts play
a vital role in providing litigants
with access to justice, the importance of more readily available and
cost-effective internal
remedies cannot be gainsaid.
[56] First, approaching a
court before the higher administrative body is given the opportunity
to exhaust its own existing mechanisms
undermines the autonomy of the
administrative process. It renders the judicial process premature,
effectively usurping the executive
role and function. The scope of
administrative action extends over a wide range of circumstances, and
the crafting of specialist
administrative procedures suited to the
particular administrative action in question enhances procedural
fairness as enshrined
in our Constitution. Courts have often
emphasised that what constitutes a fair procedure will depend on the
nature of the administrative
action and circumstances of the
particular case. Thus, the need to allow executive agencies to
utilise their own fair procedures
is crucial in administrative
action.'
[50] Allowing an internal
appeal under s 96 of the Act in the circumstances of this case will
enhance the autonomy of the administrative
process, and provide the
possibility of immediate and cost-effective relief prior to aggrieved
parties resorting to litigation.
An internal appeal process will also
allow the minister to develop guidelines for the proper application
of the Act in future decisions.
[51] The reasoning in the
Global Pact Trading
and
Mofschaap Diamonds
cases in the
Free State High Court relied on the analytical distinction between
two forms of delegation made by Professor Wiechers
in his work,
Administrative Law,
namely that between deconcentration and
decentralisation. In particular, reliance was placed on the statement
that in cases of deconcentration
the delegatee acts in the name of
the delegator and that in those cases the farmer's decision is
regarded in law as that of the
latter. That is of course correct as
far as it goes, but it does not answer the question when and in what
manner the minister as
delegator may make the final decision in her
own name. If it is the essence of delegation that final control
remains with the delegator
there appears to be no reason in principle
why final control cannot be exercised by way of internal appeal. In
such a case the
conceptual difficulty of an appeal against the
minister's own decision also disappears".
[15]
Genorah did, however, take exception to the manner in which this
application was moved and submitted that the relevant facts
are not
before court and in particular the fact by when the decision ought to
have been taken and by when a decision became a non-decision
for
purposes of a final decision under PAJA so that the 180 days can
start running for purposes of PAJA. The Genorah respondents
indicated
that they do not have the full set of documents in their possession
and that whilst they do not in principle oppose the
separation of the
issue regarding the exhaustion of the internal remedies, this issue
could only be decided once the full record
had been filed.
[16]
In prayer 11 the applicants seek an order interdicting the State
respondents from accepting or grating any applications for
various
rights under the MPRDA in respect of certain properties identified in
the draft order. The relief sought in this prayer
does not affect the
Genorah respondents but appears to affect the Bauba respondents
although it was submitted on behalf of the
applicants that the relief
sought also does not affect the Bauba respondents in light of the
fact that the Bauba respondents can
continue with their prospecting
activities.
[17]
The relief sought in prayer 12 affects the Genorah respondents but
not the Bauba respondents as the latter are not performing
any mining
activities. The applicants are seeking to interdict the Genorah
respondents and Nkwe Platinum Ltd from exercising mining
rights in
respect of certain properties specified in the prayer pending the
final determination of the (to be) consolidated review
applications.
Brief
summarv of the background facts relevant to the review applications
[18]
When the MPRDA became effective on 1 May 2004, RPM became the holder
of an unused old order right as contemplated in Item 8
read with Item
1 of Schedule II to the MRPDA in respect of platinum group metals on
the Modikwa Deep properties. (I will return
to this issue herein
below where I refer to the fact that the Bauba respondents are
disputing whether RPM is indeed the holder
of certain unused old
order rights over certain Modikwa Deep properties.)
[19]
In March 2004 RPM applied for a prospecting right over the Modikwe
properties under the Minerals Act.
[5]
[20]
On 19 October 2004 RPM informed the Regional Manager of its intention
to convert its old order right into a prospecting right
under section
16 over the Modikwa Deep properties and submitted the necessary
documentation under Item 3 of Schedule II of the
MPRDA for purposes
of an application for a new prospecting right in terms of section 16
of the MPRDA.
[21]
On 24 August 2006 the DOG refused RMP's application for a prospecting
right (''the original decision"). The reason given
for the
refusal was that "the granting of the [prospecting] right will
result in the concentration of mineral resources in
question under
the control of the applicant and will also result in an exclusionary
act".
[22]
On 5 October 2006 RPM lodged an appeal in terms of section 96 of the
MPRDA against the DDG's decision to refuse RPM's application.
Nearly
10 year later, the State respondents have not taken a decision in
respect of this appeal and RPM has taken no steps to compel
any
outcome in respect of this appeal.
[23]
During the period August 2006 until July 2012, the DOG has granted
various rights (including prospecting and/or mining rights)
in
respect of platinum group metals over some of the Modikwa Deep
properties to (i) Genorah; (ii) Bauba, Absolute Holdings Limited
and
Mr Moruthane Ben Thulare ("Thulare") who has since passed
away and is now represented by the 8
th
respondent (Mr Sekhukhune N.O.) on behalf of the Bapedi Nation; (iii)
Myeleti Minerals (Pty) Ltd. Fabricus, J found in
Myeleti
Minerals (Pty) Ltd v Minister of Minerals and Energy and Others
[6]
that
the granting of the prospecting right to Genorah over Hoepakrantz was
unlawful; (iv) Bengwenyama Minerals (Pty) Ltd; and (v)
Roka Pasha.
[24]
During the period August 2006 until July 2012 a total of 10 decisions
were taken by the state respondents in respect of the
Modikwa
properties in terms of which various rights were granted to the
Genorah and Bauba respondents (and some of the other respondents).

The applicants have also launched various appeals against these
decisions all of which are still pending. The last two appeals

(against the 9
th
and 10
th
decisions were
launched on 10 August 2012. (I will return to the issue of the
appeals herein below.)
[25]
In respect of the Genorah respondents, the DOG granted them a
prospecting right in August 2006 (the 3
rd
decision) and in
January 2012, the DOG granted them a mining right over some of the
Modikwa Deep properties (the 5
th
decision). In 2007 RPM
launched the Genorah review application in respect of certain
decisions taken by the DOG in August 2006
and thereafter (under case
number 7883/2007).
[26]
A prospecting right was granted to Bauba in 2010 (the 4
th
decision). In July 2012 the DG consented to the cession of a
prospecting right from Sekhukune to Bauba under section 11 of MPRDA

(the 9
th
decision) and in 2012 the prospecting right held
by Bauba was renewed under section 18(3) of the MPRDA (the 10th
decision). The
Bauba review application was launched in 2010.
[27]
The gist of the two review applications is that the State respondents
should not have accepted applications for prospecting
rights, granted
prospecting and/or mining rights, renewed prospecting rights or
consented to a cession of prospecting rights to
any of the 5th to
1oth, 12th or 14th respondents, whilst RPM was the holder of the
unused old order rights and in circumstances
when it had applied to
convert those rights and lastly in circumstances when it had appealed
against the refusal to convert those
rights to a prospecting right
over the Modikwa properties. In February 2015, the applicants
withdrew their review application in
as far as it concerned the 11th
and 13th respondents.
Counter-
application
[28]
In 2014 Bauba filed a counter-application in the Bauba review for the
dismissal of the review. Counsel on behalf of Bauba indicated
that
Bauba intends to set down the application for hearing. Two grounds
are raised in this application for the dismissal: Firstly,
the fact
that no case is made out in the Bauba review application and secondly
on the basis of the delay in the prosecution of
the review
application. More in particular, the point is made that the applicant
has failed to prosecute the review application
despite the fact that
it had been issued more than 3 years ago.
The
two interlocutory application
[29]
In November 2011 the applicants launched an interlocutory application
("the first interlocutory application") on
a semi-urgent
basis in which similar relief to the relief sought in this
application was sought. On 16 November 2011 soon after
the
application was launched, RPM and the Minister entered into
settlement negotiations. A further discussion took place on 21

November 2011. On 21 November 2011 - as a result of these discussions
- RPM withdrew the (first) interlocutory application without

prejudice to the rights of RPM.
[30]
Three years later in November 2014 the applicants launched a second
(and similar) interlocutory application in which various

interlocutory relief is sought as well as two interim interdicts.
This application was set down for May 2016. This interlocutory

application was therefore launched 10 years after the refusal of
RPM's application (to convert their unused old order right into
a
prospecting right) and four years after Genorah had been granted a
mining right. More in particular, the applicants are only
now seeking
to interdict Genorah from exercising its mining right pending the
final determination of RPM's review application.
Similarly, some 6
years after Bauba was (first) granted a prospecting right the
applicants approached this Court for an interim
interdict to prevent
the state respondents from granting,
inter alia,
mining rights
pending the final determination of RPM's review application.
Interim
interdicts: Prayers 11 and 12 of the draft order
[31]
The applicants seek two interim interdicts: In terms of prayer 11 of
the draft order the applicants seek an order interdicting
the State
respondents from granting any applications for various rights under
the MPRDA most notably mining rights pending the
final determination
of the review applications. The order sought in this prayer affects
the Bauba respondents but not the Genorah
respondents.
[32]
In terms of prayer 12 of the draft order the applicants seek an order
interdicting the 5
th
and 14
th
respondents ("the
Genorah respondents") from exercising the mining right granted
to them in respect of certain of the
Modikwa Deep properties pending
the final determination of the review applications.
[33]
It was submitted on behalf of both the Genorah and the Bauba
respondents that, as a result of an inordinate delay by the
applicants
in approaching the court for interim relief pending the
outcome of the final determination of the review applications, this
Court
should dismiss both applications.
[34]
This submission is not without merit: RPM waited almost a decade
after Genorah was granted a prospecting right (in August 2006)
and
four years after Genorah was granted a mining right (in January 2012)
before approaching this Court for an interim order interdicting
the
Genorah respondents from exercising their mining rights pending the
outcome of the review application. Since Genorah has been
granted a
prospecting right, the applicants stood by and did nothing to prevent
the State respondents from grating Genorah a mining
right. Over the
course of a decade Genorah exercised the prospecting and mining
rights granted to them under the MPRDA and incurred
substantial legal
and financial obligations.
[35]
Although RPM did launch an interlocutory application in November 2011
on a semi-urgent basis, it was subsequently unconditionally
withdrawn
after settlement negotiations with the Minister. There is nothing on
the papers to suggest that, at the time when the
application was
withdrawn, an undertaking was given to RPM by the State respondents
that no mining rights would be granted to Genorah.
It is, in my view,
inconceivable that RPM could not have been aware of the real
possibility that, at the time when the first interlocutory

application was unconditionally withdrawn, Genorah, as a logical next
step, would be granted a mining right and that the granting
of a
mining right would be a crucial game changer. In fact, little more
than a month after the first interlocutory application
was withdrawn,
Genorah was granted a mining right.
[36]
This is important in light of the fact that, once a mining right has
been granted, the holder of such a right is obliged to
commence with
their mining operations as the failure to do so could mean that they
forfeit their right. RPM must have been aware
of this fact and must
have considered in February 2012 that Genorah would start mining.
Notwithstanding this crucial event, the
applicants waited another
three years before resurrecting the first interlocutory application.
During this entire period, RPM stood
by whilst Genorah engaged in
mining activities whilst doing nothing to interdict Genorah from
engaging in its mining activities
as it is obliged to do: In terms of
section 19(2)(b) and (c) of the MPRDA, Genorah had a statutory
obligation to conduct prospecting
operations. Since Genorah had been
granted a mining right in February 2012 in terms of section 23 of the
MPRDA, it has complied
with its statutory obligations to commence and
actively conduct mining operations as required by section 25(2)(b)
and (c) of the
MPRDA. In fact, when the mining right was granted to
Genorah early in 2012, the applicants also did not approach the court
in order
to prevent Genorah from exercising this right. What the
applicants wanted to interdict in November 2011 came about in January
2012
(the 8
th
decision).
[37]
What compounds the significance of the delay in approaching this
Court, is the fact that on 5 March 2012 during a meeting between
RPM,
the Minister and officials of the Department, the Minister informed
RPM that Genorah and Nkwe had been granted prospecting
rights and as
a result they had a legitimate expectation to be granted a mining
right. At that time the Minister also informed
the applicants that it
is unlikely that she would overturn the decision to grant Genorah and
Nkwe a mining right. She also informed
RPM that if they were
dissatisfied with her decision, the Department will see them in
court. Fully aware of the fact that the Minister
would not reconsider
her position, RPM then lodged an appeal on 15 March 2012 (against the
8
th
decision).
[38]
In July 2012 the DOG took the 9
th
and 10
th
decisions affecting the Bauba respondents and in August 2012 RPM
lodged an appeal against these two decisions. Only a year later
did
RPM hold meetings with the DOG (on 25 July 2013, 15 November 2013 and
17 December 2013) and only a year later in November 2011
did the
applicants launch the second interlocutory application.
[39]
Between January 2012 (after Genorah was granted a mining right) and
November 2014 - a period of 2 % years - apart from some
attempts to
settle the matter, nothing was done.
[40]
The fact that the RPM had lodged appeals from time to time against
the various decisions does not excuse the inordinate delay.
In this
regard section 96 of MPRDA expressly states that an appeal does not
suspend an administrative decision taken under that
Act. There was
therefore no impediment to the applicants to pursue the appeal
process and simultaneously seek the interdictory
relief that they are
only now doing. Also, the fact that the applicants were engaged in
settlement negotiations in the intervening
period, is of no
assistance to the applicants in explaining the inordinate delay
especially in light of the fact that, as far back
as 5 March 2012,
the Minister informed RPM that "she would consider the appeal in
due course, but that it was unlikely that
she would overturn the
decision to grant Nkwe and Genera a mining right over the three farms
concerned". The Minister also
remarked that "the Department
would have to see [the applicants] in court".
[41]
From the papers it appears that Genorah has incurred expenses
exceeding R1.2 billion in respect of,
inter alia,
feasibility
studies, engineering studies, environmental guarantees, prospecting
costs and exploration costs. Furthermore, as a mining
house itself,
RPM must be fully aware of what is required of Genorah after the
mining right had been granted and the financial
exposure associated
thereto. Genorah has further secured international partners who have
committed to supply funding in excess
of RS billion required to
embark upon the mining project and has also concluded an agreement
with Eskom to undertake the construction
of an electrical substation
on the project. In addition, and importantly, Genorah has committed
to a number of social and labour
plans within the local community
which has the effect of Genorah employing approximately 1 420 people
over the years and with as
much as 8 520 jobs created within the
local and regional community over time.
[42]
In RPM's replying affidavit the point is however made that the
Genorah respondents have “knowingly incurred the expenses
which
they now complain of”. This may be so but it does not excuse
the inordinate delay in setting down the application for
interdictory
relief particularly in light of RPM's own view that the first
interlocutory application was urgent in November 2011
only to later
withdraw that application unconditionally. By doing so, the
applicants have lulled the Genorah respondents into a
false sense of
security that the applicants would not be pursuing any interdictory
relief against them. Moreover, as already pointed
out, RMP must have
been aware of the fact that, once a mining right has been granted,
there rests a statutory obligation on the
holder of such a right to
carry out prospecting operations and mining operations under the
MPRDA failing which such a right will
be forfeited.
[43]
Our courts have been consistent in their view that an application for
an interdict
pendente
lite
is,
from its very nature, a special remedy. In this regard the court in
Juta
Co
Ltd v
Legal And Financial Publishing
Co
(pty)
Ltd,
[7]
in the
context of a delay of merely four months held as follows:
"Relief
pendente
lite
is a special remedy: it grants relief between the time of
the order and the final determination of the dispute between the
parties
in order to avoid undue prejudice while proceedings are
pending. In view of the long delay that has not been satisfactorily
explained
and the other points referred to, I am not prepared to
allow the replying affidavits to be filed, and the application must
accordingly
be refused.
This decision also has a
bearing on the issue as to whether the Court should, in the
circumstances, allow the applicant to proceed
with the application
for an interdict
pendente
lite.
If
one bears in mind the long delays for which no explanation has been
given, that as far back as December the applicant had numerous
clear
cases of copying in its possession, according to the letter written
by the applicant, and that up to now no action has been
instituted,
it seems that the applicant has erred in selecting this method,
namely, an application for an interdict
pendente
lite,
but
even if it was the appropriate procedure at the time the applicant
has, by reason of the facts stated above, forfeited its rights
to
this temporary relief. Had it issued summons at the time when the
notice of motion proceedings were instituted, the trial could
already
have taken place."
[8]
[44]
In the context of review applications the courts have followed a
similar approach where applicants did not diligently pursue
a review
to the extent that it could be argued the applicant had acquiesced to
the result. See in this regard:
Botha
v White:
[9]
"[31] The doctrine
of acquiescence is competent to halt cases where its application is
necessary to attain just and equitable
results. The test for inferred
acquiescence is the impression created by the plaintiff or applicant
on the defendant or respondent.
It can be proved by some act, conduct
or circumstances on the part of the plaintiff or applicant, for
example, by the applicant's
delay in taking action, so that the
respondent is lulled into a false sense of security. Then, in such
circumstances, the enforcement
of a right would cause real inequity
and the applicant's conduct would amount to unconscionable conduct.
(See
North Vaal Mineral
Co
Ltd v Lovasz
1961 (3) SA 604
(T) at 6088 - H.)"
[45]
Where an applicant is challenging administrative action, our courts
have been more pronounced in their view that such a challenge
should
be brought timeously and that the challenge should be diligently
pursued to finality. The rationale for this view has been
set out by
the court in
Gqwetha
v Transkei Development Corporation Ltd and others
[10]
as
follows:
"[22] It is
important for the efficient functioning of public bodies (I include
the first respondent) that a challenge to the
validity of their
decisions by proceedings for judicial review should be initiated
without undue delay. The rationale for that
longstanding rule -
reiterated most recently by Brand JA in
Associated Institutions
Pension Fund and Others v Van Zyl and Others
2005 (2) SA 302
(SCA) at 321 - is twofold: First, the failure to bring a review
within a reasonable time may cause prejudice to the respondent.

Secondly, and in my view more importantly, there is a public interest
element in the finality of administrative decisions and the
exercise
of administrative functions. As pointed out by Miller JA in
Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A) at 41E - F (my translation):
'It is desirable and
important that finality should be arrived at within a reasonable time
in relation to judicial and administrative
decisions or acts. It can
be contrary to the administration of justice and the public interest
to allow such decisions or acts
to be set aside after an unreasonably
long period of time has elapsed -
interest reipublicae ut sit
finis litium.
. . . Considerations of this kind undoubtedly
constitute part of the underlying reasons for the existence of this
rule.'
[23] Underlying that
latter aspect of the rationale is the inherent potential for
prejudice, both to the efficient functioning of
the public body and
to those who rely upon its decisions, if the validity of its
decisions remains uncertain. It is for that reason
in particular that
proof of actual prejudice to the respondent is not a precondition for
refusing to entertain review proceedings
by reason of undue delay,
although the extent to which prejudice has been shown is a relevant
consideration that might even be
decisive where the delay has been
relatively slight
(Wolgroeiers Afslaers,
above, at 42C).
See
also in this regard: Prest C.B
Law
and Practice of lnterdicts
[11]
where
the author confirms this principle as follows:
"The courts have
exercised their discretion where delay has manifested itself, not
only in the launching of interdict proceedings,
but also interdict
proceedings have been launched, are not pursued or pursued in a tardy
manner."
[46]
In light of the inordinate delay in bringing the application for
interim relief,
I am of the view that the application falls to
be dismissed.
[47]
Apart from the fact that the inordinate delay weighs heavily against
the granting of the relief sought, I am also of the view
that no case
for an interim interdict has been made out by the applicants.
Requirements
for an
interim
interdict
[48]
The requirements for a final interdict are: (i) a clear right; (ii)
an injury actually committed or reasonably apprehended;
and (iii) the
absence of similar protection by any other ordinary remedy.
[12]
Where an applicant seeks an interim interdict, the following
requirements must be satisfied: (i) a
prima
facie
right;
(ii) a well­grounded apprehension of irreparable harm to the
applicants if the interim relief is not granted and the
applicants
ultimately succeed in establishing their right; (iii) the balance of
convenience favours the granting of interim relief;
(iv) the absence
of similar protection by any other ordinary remedy
[13]
Prima
facie
right
[49]
In considering whether a
prima facie
right has been
established, the court will consider the following:
"From the Appellate
Division cases to which I have referred I consider that the law which
I must apply is that the right to
be set up by an applicant for a
temporary interdict need not be shown by a balance of probabilities.
If it is
'prima facie
established though open to some doubt'
that is enough. I do not think it necessary to decide whether the
test of a 'reasonable prospect
of success' applied by MALAN, J., is a
proper paraphrase of the words of INNES, J.A.
If the phrase used were
'prima
facie
case'
what the Court would have to consider would be whether the applicant
had furnished proof which, if uncontradicted and believed
at the
trial, would establish his right. In the grant of a temporary
interdict, apart from prejudice involved, the first question
for the
Court in my view is whether, if interim protection is given, the
applicant could ever obtain the rights he seeks to protect.
Prima
facie
that
has to be shown. The use of the phrase
'prima
facie
established
though open to some doubt' indicates I think that more is required
than merely to look at the allegations of the applicant,
but
something short of a weighing up of the probabilities of conflicting
versions is required. The proper manner of approach I
consider is to
take the facts as set out by the applicant, together with any facts
set out by the respondent which the applicant
cannot dispute, and to
consider whether, having regard to the inherent probabilities, the
applicant could on those facts obtain
final relief at a trial. The
facts set up in contradiction by the respondent should then be
considered. If serious doubt is thrown
on the case of the applicant
he could not succeed in obtaining temporary relief, for his right,
prima
facie
established,
may only be open to 'some doubt'. But if there is mere contradiction,
or unconvincing explanation, the matter should
be left to trial and
the right be protected in the meanwhile, subject of course to the
respective prejudice in the grant or refusal
of interim relief.
Although the grant of a temporary interdict interferes with a right
which is apparently possessed by the respondent,
the position of the
respondent is protected because, although the applicant sets up a
case which
prima
facie
establishes
that the respondent has not the right apparently exercised by him,
the test whether or not temporary relief is to be
granted is the harm
which will be done. And in a proper case it might well be that no
relief would be granted to the applicant
except on conditions which
would compensate the respondent for interference with his right,
should the applicant fail to show at
the trial that he was entitled
to interfere.
[14]
[50]
In respect of the Genorah respondents, the applicants are seeking to
prevent them from exercising a mining right that they
had acquired
pursuant to an administrative decision taken by the state
respondents. Should the
status quo
be preserved pending the
outcome of the review application? Pertinent to answering this
question is the question whether the applicants
have sufficiently
strong prospects of success in the review to set aside the mining
right that was granted to Genorah. See in this
regard:
Johannesburg
Municipal Pension Fund and Others v City Of Johannesburg And Others
2005 (6) SA 273
(W) where the court held as follows in respect of
a
prima facie
right:
"[8] ... There are
different formulations of the approach to be taken in granting
interim relief....ln
Mariam v Minister of the Interior and Another
1959 (1) SA 213
(T) Roper AJ (as he then was) accepted the
traditional approach as set out in
Webster v Mitchell
1948
(1)
SA 1186
(W) (but see
Gool v Minister of Justice and Another
1955
(2) SA 682
(C) at 688) and said, while dealing with the construction
of the word 'hold' as used in specific legislation, that he did not
have
to make a final decision on the meaning of the word:
'I have merely to
consider whether the applicant has made out a case sufficiently
strong to apply the rule in the case of
Webster v Mitchell;
therefore when I express a view in regard to the interpretation
in part of the statute, I am expressing a
prima facie
view; it
would be impossible to express anything else. In view of the fact
that this
case
will come to trial at some time, when the Court
which tries the case will have to make a final decision as to the
meaning of the
phrase as set out by the Legislature, if I were to
purport to give a final decision as to the meaning of any part of the
Act, Iwould
be taking upon myself to pre-judge the trial, and
Icertainly have no intention of doing so. It is sufficient to say
that I have
expressed my view upon the legal argument put before me .
. . namely, that
prima facie
there is substance in the
argument.'
... Heher J in
Ferreira
v Levin NO and
Others;
Vryenhoek and Others v Powell NO and
Others
1995 (2) SA 813
0/V)
(1995 (4) BCLR 437)
at 8241 - 8250
(SA) said that:
'[T]he phrase "a
prima facie
case though open to some doubt" as an element
of the justification for the grant of an interdict requires a
preliminary assessment
of the merits of the applicant's case.... The
test enunciated in
American Cyanamid Company v Ethicon Ltd
[1975)
1 All ER 504
(HL) should be recognised as of equal validity with the
"prima facie
case though open to some doubt" test
when deciding whether interim relief should be granted in
constitutional cases.'
The
approach in
Cyanamid
is that the applicant for interim relief
should show that 'the claim is not frivolous or vexatious; in other
words that there is
a serious question to be tried'. Heher J's
conclusion is the following (at 8321 - 8338):
'1. A
prima facie
right though open to some doubt exists when there is a prospect
of success in the claim for the principal relief albeit that such

prospect may be assessed as weak by the Judge hearing the interim
application.
2. Provided there is a
prospect of success, there is no further threshold which must be
crossed before proceeding to a consideration
of the other elements of
an interim interdict.
3. The strength of one
element may make up for the frailty of another.
4. The process of
measuring each element requires a holistic approach to the affidavits
in the case, examining and balancing the
facts and coming to such
conclusion as one may as to the probabilities where disputes exist."
[51]
In essence the applicants' case is that, because the DOG refused
RPM's application to convert its old order right into a prospecting

right and instead decided to accept Genorah's application for a
prospecting right in circumstances where the state respondents
were
required by law to accept and convert the right, the applicants have
a
prima facie
right to interim relief.
[52]
As far as the granting of the mining right to Genorah is concerned
there are, in my view, no prospects of success in reviewing
the
decision to grant the mining right: The granting of a mining right is
dependent on no more than the fact that a prospecting
right was
granted to Genorah. See in this regard sections 22(1) of the MPRDA
read with Regulation 10 of the MPRDA Regulations.
It is not required
by these provisions that there must be a valid prospecting right as a
necessary precondition to the application
for a mining right.
[53]
Furthermore, RPM will have to rely on the provisions of the Promotion
of Administrative Justice Act
[15]
("PAJA") in bringing the review. As a point of departure
the applicants are obliged in terms of section 7(1) of PAJA
to
institute their review proceedings within 180 days of having become
aware of the decision they seek to have set aside. In the
case of
Genorah the operative date would be the grant of the mining right to
Genorah. Thereafter the applicants are required to
prosecute the
review diligently and without delay.
[54]
I have already referred to the inordinate delays that preceded the
launching of this interlocutory application. These delays
are equally
relevant in respect of the prosecution of the review applications.
[55]
Apart from the delay, I am therefore not persuaded that the
applicants have not, at the very least, established a
prima facie
right for the granting of an interdict against Genorah. (I will
return to the prospects of success in reviewing the first decision

hereinbelow.)
[56]
In respect of Bauba, the same considerations apply. More particular
it was submitted on behalf of the Bauba respondents that
RPM has not
demonstrated that it has unused old order rights in respect of the
Bauba properties and that the high water mark of
RPM's case is the
contention that it had applied for a prospecting permit under the old
Act and that such permit was not granted.
Accordingly, it is
submitting that, in terms of the transitional provisions and in
particular Item 3 of Schedule II to the MPRDA,
it is deemed to be an
application for a prospecting right in terms of section 16 of the
MPRDA. Apart from the fact that the Bauba
respondents place in
dispute RPM's entitlement to the claimed unused old order rights (a
point also raised in the interlocutory
dismissal application yet to
be decided), it was further submitted on behalf of the Bauba
respondents that -at best for RPM (if
RPM held such rights) - they
only had the exclusive right to apply for a prospecting right in
terms of the MPRDA within one year
from1 May 2004 in terms of Item
8(2) of Schedule II and until such a process was concluded, the Bauba
respondents were not entitled
to be awarded a prospecting right. On
behalf of the Bauba respondents it was further submitted that even if
RPM could demonstrate
its unused old order rights, those rights are
not in respect of all minerals on the Bauba properties.
[57]
More importantly are the submissions in respect of the reasonable
prospects of overturning the decision to refuse RPM a prospecting

right. In this regard it is important to bear in mind the historical
and legislative context within which the decision was made
to refuse
the conversion of the unused old order right and the granting of a
prospecting right to Bauba: The Constitutional Court
in
Agri
SA v
Minister
For Minerals and Energy
[16]
contextualised
the purpose of the MPDRA and especially with reference to unused old
order rights, as follows:
"[1] South Africa is
not only a beauty to behold but also a geographically sizeable
country and very rich in minerals. Regrettably,
the architecture of
the apartheid system placed about 87% of the land and the mineral
resources that lie in its belly in the hands
of 13% of the
population. Consequently, white South Africans wield real economic
power while the overwhelming majority of black
South Africans are
still identified with unemployment and abject poverty. For they were
unable to benefit directly from the exploitation
of our mineral
resources by reason of their landlessness, exclusion and poverty. To
address this gross economic inequality, legislative
measures were
taken to facilitate equitable access to opportunities in the mining
industry.
[2] That legislative
intervention was in the form of the Mineral and Petroleum Resources
Development Act (MPRDA). Its commencement
had the effect of freezing
the ability to sell, lease or cede unused old order rights until they
were converted into prospecting
or mining rights with the written
consent of the Minister for Minerals and Energy (Minister). It also
had the deliberate and immediate
effect of abolishing the entitlement
to sterilise mineral rights, otherwise known as the entitlement not
to sell or exploit minerals.
This ought to come as no surprise in a
country with a progressive Constitution, a high unemployment rate and
a yawning gap between
the rich and the poor which could be addressed
partly through the optimal exploitation of its rich mineral and
petroleum resources,
to boost economic growth.
[3] The inability of
mineral rights holders to sterilise those rights, sell, lease or cede
them whenever they wanted to, as before,
and the extinction, after
the prescribed periods, of the hitherto permanent and exclusive
rights to determine who would exploit
the minerals, caused grave
dissatisfaction, particularly among major landowners like the
applicant's members. They believed that
the commencement of the MPRDA
had the immediate effect of expropriating mineral rights. Hence this
application."
…
.
"[24] At the
epicentre of this application is the question whether Sebenza's
mineral rights, enjoyed during the subsistence
of the Minerals Act,
were expropriated when the MPRDA took effect. Relevant provisions of
the MPRDA
[25] On behalf of all the
people of South Africa, the state is now the custodian of the mineral
and petroleum resources of this
country which is their common
heritage. One of the objects of the MPRDA is to give effect to this
principle by granting various
kinds of rights to successful
applicants. Prospecting, mining, exploration or production rights
granted in this manner are regarded
as limited real rights. Detailed
provision is made for the grant, content and duration of the rights.
If these rights are not appropriately
exercised, they may be
suspended or cancelled. Whenever the common law is inconsistent with
the MPRDA, the latter prevails.
[26] According to its
long title, the MPRDA was enacted to facilitate equitable access to
and sustainable development of the nation's
mineral and petroleum
resources. This objective finds support from the Preamble which sets
out a list of commitments which lie
at the heart of the MPRDA. They
are, among others, the eradication of all forms of discriminatory
practices in the mining sector.
Also included is the undertaking to
take measures to address the effects of the skewed distribution of
economic benefits which
took place during the apartheid era and the
creation of a mining regime that is internationally competitive and
efficient."
[52]
Holders of unused old order rights who could not apply for the right
to prospect or mine within the window period created by
the MPRDA
transitional provisions, or whose applications were unsuccessful,
lost all their mineral rights permanently. In that
event their loss
was not merely confined to the extinction of the right to sterilise,
the monopoly and the suspension of the right
to sell or lease the
mineral rights, but was also a total and permanent loss. Even if the
mineral rights had been bought, as in
the case of Sebenza, the
possibility to recoup the purchase price or a portion of it was
totally lost.
[66]
What the MPRDA in effect did was to put an end to the: (i) ability to
sterilise or not to exploit minerals; (ii) previously
unfettered
entitlement to sell, lease or cede the mineral right at any time; and
(iii) mineral right or unused old order right
for which a prospecting
or mining right could not be acquired in terms of the transitional
provisions. All this was however done
within the context of
Parliament, through the MPRDA, having painstakingly done everything
reasonably possible to help the holders
comply with the requirements
so as to preserve their rights. And once the requirements were met,
the rights could be disposed of
or enjoyed under a much more secure
tenure than ever before."
[58]
See also
Bengwenyama
Minerals (Pfy) Ltd and others v Genorah Resources (Pfy) Ltd and
others
[17]
where
the court also referred to what he primary object of the MPRDA is:
"[3] Equality,
together with dignity and freedom lie at the heart of the
Constitution. Equality includes the full and equal
enjoyment of all
rights and freedoms. To promote the achievement of substantive
equality the Constitution provides for legislative
and other measures
to be made to protect and advance persons disadvantaged by unfair
discrimination. The Constitution also furnishes
the foundation for
measures to redress inequalities in respect of access to the natural
resources of the country. The Mineral and
Petroleum Resources
Development Act (Act) was enacted amongst other things to give effect
to those constitutional norms. It contains
provisions that have a
material impact on each of the levels referred to, namely that of
individual ownership of land, community
ownership of land, and the
empowerment of previously disadvantaged people to gain access to this
country's bounteous mineral resources."
[59]
On behalf of Bauba it was submitted that ARM and PRM do not intend
mining now. What they intend to do is to mine at a later
stage and
for this purpose they have to sterilize the rights. It was further
submitted that it should be borne in mind that in
the present case,
the Bauba community was dispossessed of their land as well as their
mineral rights. The land was, however later
restored and placed in
trust. With reference to section 104 of the MPRDA it was submitted
that the Bauba community therefore has
a preference to be granted a
prospecting right over the Bauba properties in light of what is
contained in section 4 of the MPRDA
and the objects in section 2
where it is confirmed that the object of the MPRDA is to -
"(c) promote
equitable access to the nation's mineral and petroleum resources to
all the people of South Africa;
(d) substantially and
meaningfully expand opportunities for historically disadvantaged
persons, including women and communities,
to enter into and actively
participate in the mineral and petroleum industries and to benefit
from the exploitation of the nation's
mineral and petroleum
resources;
(e)
(f) promote employment
and advance the social and economic welfare of all South Africans;"
[60]
According to the Bauba respondents there is therefore no basis upon
which the decision of the Minister should be upset particularly
if
regard is had to the imperative contained in section 104 of MPRDA:
The Minister "must grant" the preferent right to
the
community if the conditions are complied with:
"(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."
[61]
I am in light of the aforegoing not persuaded that the applicants
have demonstrated a basis to interfere with the over concentration

consideration especially in light of the fact that the State has an
obligation to ensure that mineral resources are distributed
equitably
for the benefit of the disadvantaged. The state must therefore ensure
that the mineral rights should not be sterilized.
See in this regard:
Minister
of Mineral Resources and Others v Sishen Iron Ore
CO (Pty)
Ltd And Another.
[18]
"[44] A few
observations arise from the reading of s 2. The first is that
transformation of the mining and petroleum industries
could not be
achieved without abolishing private ownership of mineral rights and
vesting the resources in the nation as a whole,
and giving the state
a free hand in allocating rights to exploit those resources. If this
were not done, any attempts to transform
the industry would have
failed. By placing the mineral wealth of the country in the hands of
the state, parliament acted in accordance
with an internationally
accepted practice.
[45] The promotion of
equitable access by all South Africans to mineral resources, the
expansion of opportunities for historically
disadvantaged persons
to
enter the mining and petroleum industries, and the advancement of
the social and economic welfare of all South Africans are
cornerstones
of that transformation. The state is obligated to
advance the realisation of these goals. It is therefore vitally
important to
heed the provisions of s 4 when interpreting the MPRDA."
[62]
I am therefore in agreement with the submission that there are no
prospects of success in overturning the original decision
to refuse
RPM a prospecting right and granting a prospecting right to the Bauba
respondents.
Irreparable
harm
[63]
Irreparable harm is defined as the loss of property in circumstances
where its recovery is impossible or improbable.
56
[64]
On behalf of the applicants it was submitted that they would suffer
irreparable harm if the relief sought is not granted.
[65]
On behalf of Genorah it was submitted that even if the applicants
cannot now benefit from their unused old order rights which
have not
been converted into a prospecting right, this does not constitute
irreparable harm: All that it means is that their possible
rights -
if there are successful in the review application - are deferred
until the review court pronounces in their favour.
[66]
The Bauba respondents submitted that RPM's failure to diligently
proceed with the Bauba application has prejudiced Bauba, including

the Bapedi community particularly in that the Bauba respondents have
by virtue of the prospecting right granted to it (and its
subsequent
renewal) spent an amount of approximately R32,806,486.00 on
exploration and legal costs of the Southern, Northern and
Central
Clusters. Had the Bauba application been diligently pursued and
without delay, the matter would have been resolved by now.

Furthermore, if the interdict is now granted, the Bauba respondents
will suffer irreparable harm in that the state respondents
will be
prevented from considering or granting a renewal application for
Bauba's prospecting right. Absent a renewal, Bauba will
be obliged to
conduct the pre-feasibility study, economic study and submit a mine
plan. However, even if such a plan is submitted,
the applicants seek
to interdict the State respondents from granting a mining right.
[67]
I am in light of the aforegoing not persuaded that the applicants
have succeeded in establishing the requirement of irreparable
harm
for purposes of obtaining the relief sought
vis
a
vis
the
Genorah and Bauba respondents. If the order is granted it will result
in irremediable harm to the Bauba respondents who will
lose their
prospecting rights which will result in a significant loss not only
of the funds expended but in investor confidence.
Balance
of convenience
[68]
In respect of the balance of convenience the court will weigh up the
balance of convenience against the relevant strengths
and weaknesses
of the applicants' case.
[19]
See
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton:
[20]
"The foregoing
considerations are not individually decisive, but are interrelated;
for example, the stronger the applicant's
prospects of success the
less his need to rely on prejudice to himself. Conversely, the more
the element of 'some doubt', the greater
the need for the other
factors to favour him. The Court considers the affidavits as a whole,
and the interrelation of the foregoing
considerations, according to
the facts and probabilities;"
"Facts are
conveniently called primary when they are used as the basis for
inference as to the existence or non-existence of
further facts,
which may be called, in relation to primary facts, inferred or
secondary facts."
[21]
[69]
More in particular, a court is required to weigh the prejudice to the
applicants if the interim interdict is refused against
the prejudice
to the Genorah and/or the Bauba respondents if it is granted.
[70]
I am not persuaded that as far as the Genorah and Bauba respondents
are concerned that the applicants have established that
the balance
of convenience favours them. Both respondents have incurred
significant costs in pursuing their rights as they are
statutorily
obliged to do. Genorah in particular has made significant investments
in respect of the employment of labour and the
creation of job
opportunities in the community. These are considerations that cannot
be ignored. The fact that these significant
investments have been
made over the course of a number of years whilst the applicants stood
by, can also not be ignored.
[71]
In light of the above and in light of the delays caused by RPM and
the dilatory steps which have been taken to prevent the
finalisation
of this matter the orders sought in the draft order in prayers 11 and
12 are refused.
[72]
I will now briefly turn to the remaining orders sought by the
applicants.
Consolidation
application: Prayer 1of the draft order
[73]
The applicants seek an order that the Genorah and Bauba review
applications be consolidated. This application is opposed by
the
Bauba respondents but not by the Genorah respondents. As already
pointed out, the Genorah respondents are in agreement with
the
submission that it makes sense that one Judge hears both reviews.
[74]
A court has a wide discretion to permit the consolidation of actions
under Rule 11 of the Uniform Rules.
[22]
A court has a similar discretion in respect of review applications by
virtue of Rule 6(14) of the Rules.
[75]
In exercising its discretion in this regard the court will be
inclined to grant a consolidation - (i) on grounds of convenience

which includes the convenience of the court and the parties; (ii) to
avoid a multiplicity of actions and where there is a danger
of having
the same questions tried twice with possibly different results; (iii)
to save costs. In
New
Zealand Insurance
Co
Ltd v
Stone
and
Others
[23]
the
court explains what should be considered by a court:
"In such an
application for consolidation the Court, it would seem, has a
discretion whether or not to order consolidation,
but in exercising
that discretion the Court will not order a consolidation of trials
unless satisfied that such a course is favoured
by the balance of
convenience and that there is no possibility of prejudice being
suffered by any party. By prejudice in this context
it seems to me is
meant substantial prejudice sufficient to cause the Court to refuse a
consolidation of actions, even though the
balance of convenience
would favour it. The authorities also appear to establish that the
onus
is upon the party applying to Court for a consolidation
to satisfy the Court upon these points".
[75]
In considering the balance of convenience the court will be more
likely to grant a consolidation if the prejudice that will
be
suffered by the applicant would be greater if the consolidation is
not granted than the prejudice suffered by a respondent if
the
consolidation is granted.
[24]
[77]
On behalf of the applicants it was submitted that it is convenient to
consolidate the Genorah and Bauba reviews for the following
reasons:
(i) The Genorah review
relates to the 1
st
, 2
nd
, 3
rd
and 8
th
decisions and will also relate to the 6
th
and 7
th
decisions after the amendment of the notice of motion although the
applicants no longer pursue relief relating to the 6
th
and
7
th
decisions the properties that are the subject matter
of the Genorah review decisions are De Korn 252 KT, Garatouw 282 and
Hoepakrantz
291 KT.
(ii) The Bauba review
relates to the 4
th
, 5
th
, 9
th
and
10
th
decisions. The properties that are the subject of the
Bauba review are De Korn 252 KT, Garatouw 282 KT, Zwemkloof 238 KT,
Grootvygenboom
284 KT, Genokakop 285 KT and Houtbosch 323 KT,
Nooitverwacht 324 KT.
(iii) The applicants and
State respondents in both reviews are the same.
(iv) Both reviews arise
from the fact that RPM was the holder of the old order rights, which
it had applied to be converted into
a new order right under the MPRDA
but which was refused by the State respondents.
(v) In both reviews, a
court must decide whether the decision refusing to convert RPM's old
order rights should be set aside on
review and whether the subsequent
granting of MPRDA rights to some of the respondents (most notably the
Genorah and Bauba respondents)
should be set aside on review.
[78]
I am, despite the objections on behalf of the Bauba respondents
satisfied that the issues in the Genorah review (with particular

reference to the grounds of review raised in both applications) are
sufficiently similar to warrant this Court to exercises a discretion

in favour of a consolidation. I am not persuaded that the Bauba
respondents will suffer prejudice if the consolidation is allowed.

More in particular, any decision taken by a review court in the
Genorah application regarding the refusal by the State respondents
to
convert RPM's old order right and the subsequent granting of a
mineral right to the Genorah respondents may have a profound
impact
on the outcome of the Bauba review application. The question whether
the refusal to convert RPM's old order right should
be reviewed and
set aside will feature prominently in both reviews and should
therefore conveniently be decided by the same Judge
to avoid having
the same question tried twice with possibly different results.
[79]
In the event the order is granted consolidating the applications
under case numbers 7883/2007 and 56189/2010.
Joinder
application: Prayer 2 and 3 of the draft order
[80]
Rule 10(3) (which is made applicable to applications by virtue of
Rule 6(14) of the Rules) permits the joinder of respondents
if the
questions between them and the applicants depend upon the
determination of substantially the same question of law or fact

which, if such defendants were sued separately, would arise in each
separate application. Furthermore, where there is a reasonable
risk
of overlapping factual issues, courts would be more inclined to
exercise their discretion to join parties under Rule 10(3)
because it
is convenient and because it avoids the risk of conflicting decisions
on the same factual issues.
[25]
[81]
On behalf of the applicants it was submitted that the DG should be
joined in the Bauba review in light of the fact that he
has a direct
and substantial interest in that application (prayer 2 of the draft
order).
[82]
In respect of the proposed order in prayer 3, it was submitted that
the 6
th
to 14
th
respondents should be joined in the Genorah review because they are
necessary parties in the Genorah review because they have a
direct
and substantial interest in the issues in the Genorah review and
their rights may be affected by a judgment in the Genorah
review.
According to the applicants they must be joined and convenience or
discretion do not arise in the question whether they
should be
joined.
[26]
It was also
submitted that the questions between the respondents and RPM include
the question whether in the face of RPM's application
to convert its
old order rights to an MPRDA right and in the face of an appeal
against the refusal to grant the application, the
state respondents
should have granted MPRDA rights to the 5
th
to 14
th
respondents.
[83]
I have already referred to the fact that the State respondents do not
oppose the relief sought in prayer 2 of the draft order
and in light
of the submissions on behalf of the applicants I can see no reason
why the DG should not be joined as a respondent
as the DG has a
substantial interest in that application.
[84]
As far as the joinder of the 5
th
to 14
th
respondents in the Genorah review application is concerned, I can
equally see no reason why the order should not be granted. Firstly,

the Genorah applicants do not oppose the application and secondly,
having regard to the papers, these respondents are directly

interested in the Genorah review and their rights may be affected by
a judgment in the Genorah review.
Leave
to amend/oppose: Prayers 4 and 5 of the draft order
[85]
In prayer 4 of the draft order the applicants seek to amend the
notice of motion in the Genorah review. The Genorah respondents
do
not object to the amendment sought provided that the amended notice
of motion must reflect the current position and that the
amendment
should also take into account the relief sought in this draft order.
[86]
Presently the order in paragraph 5 seeks to introduce the relief
related to the 7
th
decision subject to a decision by the Constitutional Court in a
matter concerned with the rights of the 11th respondent under MPRDA.

I have already referred to the decision of the Constitutional court
in
Bengwenyama
[27]
where
the Constitutional Court set aside the decision to award prospecting
rights to Genorah. The relief sought against the 11
th
respondent has accordingly been withdrawn and the relief sought in
prayer 5 has now fallen away.
[87]
The order in prayer 6 of the amended notice of motion seeks to
introduce the relief related to the 8
th
decision and the
order in prayer 7 seeks to introduce the relief related to the 10
th
decision.
[88]
It was submitted on behalf of the applicants that the order sought in
prayers 6 and 7 will lead to a proper ventilation of
the issues on
review. It was further submitted that it is in the interests of
justice to allow the relief related to the 8
th
and 10
th
decisions to be included in the notice of motion because it relates
to the same properties that are the subject of the other decisions

that are under review.
[89]
It was further submitted that should leave to amend the notice of
motion be granted, the 5
th
to 14
th
respondents
who will be cited in the amended notice and who are joined in the
Genorah review, should be given leave to oppose.
[90]
Courts have a discretion to permit amendments to pleadings (including
notices of motion) - (i) where that can be done without
prejudice to
the other party; or (ii) where it results in prejudice, the prejudice
can be cured by an order for costs or by some
or other suitable order
such as a postponement;
[28]
or
(iii) if that leads to a proper ventilation of the dispute between
the parties;
[29]
and/or (iv)
if that advances good order and administration of justice in the
matter.
[30]
[91]
I have considered the application and I can see no reason why the
order sought in prayer 4 should not be granted with the proviso
that
the applicants amend the notice of motions with due regard to the
orders granted in this application and the recent events.
Granting
the amendment will lead to a proper ventilation of the disputes
between the parties in the Genorah review application.
[92]
Although it is strictly not necessary to grant the relief sought in
prayer 5 of the proposed draft order as the respondents
who have been
joined have the right to oppose any relief sought against them as a
consequence of the orders joining them, I have
nonetheless included
this prayer as part of my order.
Delivery
of papers: Prayers 6 and 7
[93]
In prayer 6 of the proposed draft order the applicants seek an order
that the applicant be directed to deliver a complete copy
of the
papers in the consolidated application to any of the 2
nd
,
5
th
to 14
th
respondents who oppose the relief
sought in the amended notice of motion.
[94]
I can see no reason why this order should not be granted. I can also
see no reason why the order in terms of prayer 7 of the
draft order
providing that the time periods provided for in rule 53 of the rules
of court commence to run from the date of delivery
of the papers
contemplated in prayer 6, should not be granted.
Separation:
Prayers 8 and 9 of the draft order
[95]
The applicants seek an order separating the question whether they
have exhausted their appeal remedies under the MPRDA from
the
remaining issue in the consolidated review applications (prayer 8)
and that this Court decide this question. The Genorah respondents
do
not oppose the separation of the issue but submitted that this Court
cannot decide the issue in light of the fact that not all
the facts
which are necessary for this Court to decide the issue, are before
the Court.
[96]
Rule 33(4) of the rules of Court is aimed at facilitating the
convenience and expeditious disposal of a question of law or
fact
separately from any other question pending before the court.
[97]
The question before this Court is one which can, and in my view
should, conveniently be decided separately as the outcome of
such a
decision may well be dispositive of the pending review applications.
In this regard I have considered requirements of convenience
which
includes facility, ease, expedience, appropriateness and fairness to
all the parties including to the court. I have also
considered
whether it would be advantageous or disadvantageous to the parties
and the proper conduct of the proceedings to separate
the issue
concerned. Despite protestations on behalf of the Genorah and Bauba
respondents, I am of the view that sufficient facts
are before the
Court to decide the question whether or not the applicants have
exhausted their internal appeal remedies under the
MPRDA. I will
revert to this issue herein below.
[98]
In terms of section 7 of PAJA, a party may not bring an
administrative review before a party has exhausted its internal
remedies
under the MPRDA. Section 96(3) of MPRDA likewise provides
that a person may not launch a review prior to exhausting the
internal
remedies provided for by MPRDA. The rationale for this
principle is set out by the Constitutional Court in
Koyabe
and others v Minister for Home Affairs and others (Lawyers for Human
Rights as Amicus
Curiae):
[31]
"[36] First,
approaching a court before the higher administrative body is given
the opportunity to exhaust its own existing
mechanisms undermines the
autonomy of the administrative process. It renders the judicial
process premature, effectively usurping
the executive role and
function. The scope of administrative action extends over a wide
range of circumstances, and the crafting
of specialist administrative
procedures suited to the particular administrative action in question
enhances procedural fairness
as enshrined in our Constitution. Courts
have often emphasised that what constitutes a 'fair' procedure will
depend on the nature
of the administrative action and circumstances
of the particular case. Thus, the need to allow executive agencies to
utilise their
own fair procedures is crucial in administrative
action. In
Bato
Star, O'Regan J held that -
'a Court should be
careful not to attribute to itself superior wisdom in relation to
matters entrusted to other branches of government.
A Court should
thus give due weight to findings of fact and policy decisions made by
those with special expertise and experience
in the field. The extent
to which a Court should give weight to these considerations will
depend upon the character of the decision
itself, as well as on the
identity of the decision-maker. A decision that requires an
equilibrium to be struck between a range
of competing interests or
considerations and which is to be taken by a person or institution
with specific expertise in that area
must be shown respect by the
Courts. Often a power will identify a goal to be achieved, but will
not dictate which route should
be followed to achieve that goal. In
such circumstances a Court should pay due respect to the route
selected by the decision-maker.'
Once an administrative
task is completed, it is then for the court to perform its review
responsibility, to ensure that the administrative
action or decision
has been performed or taken in compliance with the relevant
constitutional and other legal standards."
[99]
In the founding affidavit the applicants initially sought an order
separating the issue of whether RPM must be "exempted"
from
first exhausting its internal appeal remedies before approaching this
Court with a review of the decisions against which various
appeals
have been lodged. The applicants now seem to have abandoned the
application for an exemption in favour of an application
that this
Court grants an order that RPM has in fact exhausted their internal
appeal remedies (prayer 9 of the draft order). This
new approach is
not canvassed in the papers and was in fact raised for the first time
at the commencement of the hearing and in
a further set of heads of
argument handed to the Court. It appears that the applicants have now
reconsidered their legal position
and that they have decided to
abandon their application to be exempted from exhausting their
internal appeal remedies in favour
of an order that RPM has in fact
exhausted its internal appeal remedies.
[100]
Should it be decided that RPM has in fact exhausted their internal
remedies, the two reviews may be set down for hearing on
their
merits. However, should the Court decide that RPM has not exhausted
their internal remedies, then the merits of the two reviews
cannot be
decided and the review applications must await the outcome of the
appeals.
[101]
On behalf of the applicants it was submitted that the applicants have
in fact exhausted their internal remedies for the following
reasons:
In terms of section 96(1) of the MPRDA a party has a right of appeal
to either the Minister or the DG (as the case may
be) in
circumstances where a person's rights or legitimate expectations have
materially or adversely been affected. In terms of
section 96(3) of
the MPRDA a person may not apply to a court for the review of such an
administrative decision (as contemplated
by section 96(1) of the
MPRDA) until that person has exhausted the internal remedies provided
for by the MPRDA. In terms of section
96(4) of the MPRDA it is
contemplated that sections 6, 7(1), 7(2) and 8 of PAJA will apply to
any review of an administrative action
under section 96 of the
MPRDA.
[32]
In terms of section
6 of PAJA such a review should be brought within a reasonable time.
[102]
Section 6 of PAJA requires that administrative decisions must be
taken within a reasonable time and with reference to the
decision in
MEC for
Health, Eastern Cape and another v Kirland Investments (Pty) Ltd tla
Eye and Lazer lnstitute,
[33]
it was
submitted that the failure to determine appeals within a reasonable
time amounts to a decision to dismiss the appeal because

administrative decision is defined to include the "failure to
take a decision". Because the State respondents have failed
to
take decisions in any one of the 10 appeals lodged between 2006 and
2012 it meant, so it was submitted, that the applicants
have
exhausted their internal remedies.
[103]
What is before the Court is the fact (and it is not in dispute) that
over a period commencing in 2006 up until 2012 various
appeals have
been lodged and still no decision has been taken in respect of any of
these appeals. What is also before the Court
is the fact that as far
back as 12 March 2012, the Minister has indicated to the applicants
that she would not reverse her decision
in terms of which a mining
right was granted to the Genorah Respondents
[104]
On the facts before the Court I have no hesitation to find that there
was an unreasonable delay in taking a decision in respect
of the
various appeals. The applicants are not asking this Court to
substitute the decision of the functionaries and usurp the
functions
of the administrative authority and I do not intend to do so.
However, I am of the view that in light of the extraordinary
delay in
taking a decision in each of the decisions sufficient exceptional
circumstances exist warranting this Court to conclude
that the
applicants have exhausted their internal remedies and that
consequently they should be able to pursue their review applications

should they wish to do so. There rests a duty on an administrative
official to take decisions within a reasonable time: An authority

cannot refuse or fail to make a decision. See in general in this
regard:
Mashilane
Community
and another v Mnister for Agriculture and Land Affairs and
others:
[34]
"[23] The judicial
review of an administrative action comprising a failure to take a
decision is not novel. De Ville, in
Judicial Review of
Administrative Action in South Africa,
commenting on section
6(2)(g), reminds us that at common law where there is a duty on an
administrative authority to perform some
or other action, the
authority cannot refuse or fail to do so. A refusal or failure to act
affords the person affected, the opportunity
to bring an application
for a mandanus to force the authority to act. Our courts recognise
that where power is granted to a public
authority to take a decision,
such authority is obliged to do so and should a decision fail to
emanate within the prescribed period
or within a reasonable period,
its actions would constitute unlawful administrative action and be
subject to review. PAJA at section
6(2)(g) therefore enunciates the
common law duty of an administrator to take a decision within a
reasonable time.
[24] Currie and Klaaren
in
The Promotion of Administrative Justice Act Benchbook
recognise
that failure to take action or to take a decision is at common law in
itself a ground for review.
"This position is
formalised and considerably clarified in the Act, where s 6(2)(g) and
6(3) together create a statutory ground
for unreasonable delay. The
standards for this ground of review are laid out in s 6(3) in terms
of two grounds for review: unreasonable
delay in expiry of a period
for taking a decision, provided for in s 6(3)(a) and s 6(3)(b)
respectively. The unreasonable delay
ground of review is applicable
where an administrator has a duty to take a decision, but there is no
law prescribing the period
in which the decision must be taken. If
the administrator has failed to take the decision, this ground of
review may be asserted.
The effect of s 3(a) is to read a requirement
of reasonableness into empowering provisions that do not explicitly
provide a time
period for the taking of a decision...".
[25] Hoexter and Lister,
in commenting on the statutory ground of unreasonable delay created
and formalized at section 6(2)(g) and
6(3) together, aptly state:
"The ground of
unreasonable delay is a statutory addition that will be welcomed by
anyone who has experienced the frustration
of waiting for a
government department to act. Because it has been made explicit and
thus more accessible, the ground is likely
to be used far more often
than its common law ancestors".
Costs
[105]
In respect of costs I am of the view that no reason exists why the
applicants should not pay the respondents costs especially
in view of
the dismissal of the two applications for
interim relief.
Order
[105]
In the event the following order is made:
"1. The applications
under case numbers 7883/2007 and 55189/2010 are consolidated.
2. The 2
nd
respondent is joined as the 5
th
respondent in the
application under case number 55189/2010.
3. The 6
th
to
14
th
respondents are joined in as the 6
th
to
14
th
respondents in case number 7883/2007.
4. The applicants are
granted leave to amend the notice of motion in the application under
case number 7883/2007.
5. The 2
nd
,
6
th
to 14
th
respondents are granted leave to
oppose the relief sought in the amended notice of motion.
6. The applicants are
directed to deliver a complete copy of the papers in the consolidated
application to any of the 2
nd
, 6
th
to 14
th
respondents who file a notice to oppose the relief sought in the
amended notice of motion.
7. The time periods
provided for in rule 53 of the rules of court commence to run from
the date of delivery of the papers contemplated
in 6 above.
8. The issue whether the
first applicant has exhausted its internal remedy of appeal is
determined separately from the remaining
issues in the consolidated
applications.
9. The first applicant
has exhausted its internal remedy of appeal in the consolidated
applications under case numbers 7883/2007
and 56189/2010.
10. The 1
st
to
4
th
respondents are directed to file a rule 53 record in
the application under 56189/2010.
11. The application to
interdict the 1
st
to 4
th
respondents from
accepting or granting any applications for prospecting rights, mining
rights or any other rights permits or permissions
under the MPRDA in
respect of any minerals in, on or under the properties - De Korn 252
KT, remaining extent of the farm Garatouw
282 KT, Hoepakrantz 291 KT,
Grootvygenboom 284 KT, Genokakop 285 KT, Houtbosch 323 KT, in the
Magisterial District Sekhukhune,
pending the final determination of
the consolidated review applications, is dismissed.
12. The application to
interdict the 5th and 14th respondents from exercising any rights
flowing from the mining right granted to
them, in respect of the
properties - remaining extent of the farm Garatouw 282 KT,
Hoepakrantz 291 KT and De Korn 252 KT, in the
Magisterial District
Sekhukhune, pending the final determination of the consolidated
review applications, is dismissed.
13. The applicants
jointly and severally are ordered to pay the costs of the 5
th
,
6
th
, 7
th
, 8
th
and 14
th
respondents.
_____________________
AC
BASSON
JUDGE
OF THE HIGH COURT
Appearances:
For
the 1
st
and 2
nd
applicants: Advocate T J
Bruinders SC with Advocate M D Stubbs and Advocate M R Musandiwa
For
the 5
th
, 6
th
, 7
th
and 12
th
respondents (the Genorah respondents) : Advocte B Leech SC with
Advocate J Babamia
Instructed
by : Werksmans Attorneys
For
the 8
th
and 9
th
respondents (the Bauba
respondents): Advocate A Botha with Advocte A Saldulker
Instructed
by: Tinus Slabber & Associates cio Friedland Hart Solomon &
Nicolson
[1]
Act 28 of 2002.
[2]
These properties are identified in the papers as the remaining
extent of the farm Garatouw 282 KT, the farm Hoepakrantz 291 KT,

portions 1 and 2 of the farm Nooitverwacht 324 KT, portion 1 and the
remaining extent of the farm Eerste Geluk 322 KT, the farm
De Korn
252 KT, the farm Zwemkloof 238 KT, the farm Grootvygenboom 284 KT,
the farm Genokakop 285 KT, the farm Houtbosch 323
KT; Magisterial
District of Sekhukhune.
[3]
2011 (4) SA 113 (CC).
[4]
Supra
[5]
Act 50 of 1991.
[6]
Case no. 20326/2007 of 61/4/2010.
[7]
1969 (4) SA 443 (C).
[8]
At 445 B-E
[9]
2004 (3) SA 184 (T)
[10]
2006 (2) SA 603
(SCA).
[11]
p 239
[12]
Setlogelo v Setlogelo
1914 AD 221
at 227.
[13]
Olympic Passenger Service (Pty) Ltd v Ramlagan
1957 (2) SA 382(0)
at
383C-F and Eriksen Motors (Welkom) Ltd v Protea Motors Warrenton and
another
1973 (3) SA 685
(A) at 691D.
[14]
Webster v Mitchell
1948 (1) SA 1186
(W) at 1189.
[15]
Act 3 of 2000.
[16]
2013 (4) SA 1 (CC) 1.
[17]
Supra
[18]
2014 (2) SA 603 (CC)
[19]
Olympic Passenger Services (Ply) Ltd v Ramlagan
1957 (2) SA 382
(N)
especially at 383C - G.
[20]
1973 (3) SA 685
(A) at 691F.
[21]
See Swissborough Diamond Mines (Ply) Ltd v Government of the RSA
1999 (2) SA 279
(T) at 3240-F quoting Willcox and Others v
Commissioner for Inland Revenue
1960 (4) SA 599
(A) at 602A.
[22]
IPF Nominees (Ply) Ltd v Nedcor Bank Ltd
2002 (5) SA 101
(W) at 118.
[23]
1963 (3) SA 63
(C) at 69A - C.
[24]
See Mpotsha v Road Accident Fund 2000 (4) SA 696 (C)
[25]
Dendy v University of Witwatersrand
[2005] ZAGPHC 39
;
2005 (5) SA 357
(W) at 387A - B.
[26]
Amalgamated Engineering Union v Minister of Labour
1949 (3) SA 637
(AD) at 659.
[27]
Supra
[28]
Imperial Bank Ltd v Barnard and Others NNO
2013 (5) SA 612
(SCA) at
[8].
[29]
Trans-Drakensberg Bank Ltd (Under Judicial Management) v Combined
Engineering (Pty) Ltd
1967 (3) SA 632
(D) at 638A.
[30]
Bankorp Ltd v Anderson-Morshead
1997 (1) SA 251
(W) at 2530.
[31]
2010 (4) SA 327 (CC).
[32]
In this regard the Constitutional Court in Dengetenge Holdings (Ply)
Ltd Vv Southern Sphere Mining and Development Co Ltd and
Others
2014
(5) SA 138
(CC) held as follows: "[66] Section 96(4) provides
that ss 6, 7(1) and 8 of PAJA apply to any court proceedings
contemplated
in s 96. Section 96(4) does not expressly say that s
7(2) also applies to any court proceedings contemplated in s 96.
However,
s 7(1)(a), to which s 96(4) refers, includes the words
'subject to subsection 2(c)' and, therefore, incorporates by
reference
the provisions of s 7(2)(c). Counsel for both Rhodium and
Southern Sphere were agreed that s 7(2)(c) applies to s 96 because

of the reference to s 7(1) and the further reference to s 7(2)(c) in
s 7(1). I agree with their submission.
[33]
2014 (3) SA 481
(CC) at [93].
[34]
2005 JDR 0402 (LCC).