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[2016] ZAGPPHC 496
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Hentig v Minister of Mineral Resources S.A. and Others (55943/2014) [2016] ZAGPPHC 496 (27 May 2016)
IN THE HIGH COURT
OF SOUTH
AFRICA GAUTENG DIVISION, PRETORIA
CASENO:
55943/2014
DATE: 27 MAY 2016
In the matter
between:
C
S HENTIQ 1009 (PTY) LTD
Applicant
and
MINISTER
OF MINERAL RESOURCES OF THE First Respondent
REPUBLIC
OF SOUTH AFRICA
DIRECTOR GENERAL
OF THE Second
Respondent
DEPARTMENT
MINERAL RESOURCES
REGIONAL
MANAGER MPUMALANGA
REGION
DEPARTMENT OF MINERAL Third
Respondent
RESOURCES
BOHLABA
MINE (PTY)
LIMITED
Fourth
Respondent
JUDGEMENT
MOTHLE
J
INTRODUCTION
1.
This
is an application for review, launched by C S Hentiq 1009 (Pty) Ltd
(" Hentiq" ),
against the Minister of Mineral
Resources
(" the Minister'' ),
Director General of the
Department of Mineral Resources
(" the
DG"), the
Regional Manager Mpumalanga Region of the Department of Mineral
Resources
(" the
Regional Manager'' )
and
Bohlaba Mine (Pty) Ltd
(" Bohlaba Mine").
2.
This review application is brought in terms of the provisions
of
The Promotion of Administrative Justice Act, 3 of 2000
("
PAJA" ).
Hentiq seeks as relief the following:
2.1
A review and setting aside on the merits, the decision by the
Regional Manager to decline the applications for prospecting rights;
2.2
Declare that Hentiq had exhausted internal appeal remedies
before launching this application;
alternatively
2.3
That in the event this Court finds that the internal
remedies have not been exhausted, grant Hentiq exemption from
exhausting
such internal remedies;
2.4
Order the Regional Manager to grant Hentiq such prospecting
rights as it has applied for by entering this in the register as
required
by the relevant legislation; and
2.5
A cost order against the Respondents who oppose this
application.
3.
No relief is sought against Bohlaba Mine.
4.
The State Attorney is acting on behalf of the Minister, the DG
and the Regional Manager
("collectively referred to in this
judgment
as
the Respondents'').
The Respondents oppose
this application, firstly on the grounds that Hentiq had not
exhausted its internal remedies in terms of
the applicable
legislation and in the alternative that Hentiq should not be granted
exemption from exhausting such internal remedies.
BACKG ROU N D
5.
Towards the end of 2012 specifically on 8 November 2012,
Hentiq applied to the office of the Regional Manager for prospecting
right
(" the first prospecting right application''),
for
manganese, iron and gold ore on the farms Veghund R/E 440, Berghoek
751, Boschhoek 442, Frischewaagt 437 (Portion 2 and
3) Grenspad433
and Diepgesit 434, all located in the Mpumalanga Province.
6.
Later that month on 29 November 2012, Hentiq submitted to the
same office, another application
(" the second prospecting
right application'')
for manganese, iron and gold ore on
the farms Kalk-kloof 706 and Grootkop 617 also in the Mpumalanga
Province.
7.
What followed is a chronology of events which are germane to
this application. The time frames and processes which were followed
in dealing with the two applications for prospecting rights are
central to the issues between the parties. I will therefore refer
to
them as they appeared in the heads of argument of Hentiq, as follows:
"
C.
On 13 March 2013 the 3rd Respondent
(the Regional Manager)
rejected the applications in
a
rejection
letter
but only referred to manganese (and not iron ore and gold ore as
well).
D.
On 3 April 2013 the Applicant filed an appeal with
the 2nd Respondent against the decision of the "sic"
2nd Respondent.
(The latter should read "3rd Respondent")
E.
On 4 April 2013 the d Respondent's
office
acknowledged receipt of the appeal.
F.
On 29 May 2013 the Applicants requested feedback from
the Respondents relating to the appeal.
G.
On 31 July
2013 the 3rd Respondent issued
a
second rejection letter
relating to the application for
prospecting rights.
(This letter only referred to four of the six
farms on which
application were
made).
H. On 21
August 2013 and 9 and 20 September 2013 the Applicant attempted to
follow up with the 2nd Respondent relating to the confusion
of the
181 and
2nd rejection letters. No proper answer was
ever received.
I.
On 21 August 2013 (for the sake of meticulousness and
to protect its interest), the Applicant filed
a
second appeal
against the second rejection letter.
J.
On 15 October 2013 the Applicant wrote
a
formal
letter to request finalisation of the appeals. An application
to compel was brought under case number 58843/2013, after
which the 3rd Respondent complied by replying
to the
appeals, giving reasons for his
administrative decision
and despatching the reasons to the
Applicant.
K.
On 6 November 2013 the Second Respondent provided the
Applicant with the 3rd
Respondent's reasons for its
decision, and requested the Applicant to write
a
detailed
response thereto.
L.
On 26 November 2013 the Applicant responded to the 3rd
Respondent's reasons for rejecting the
applications.
M.
The 2nd Respondent then failed to make
a
ruling
within the 30-day period
as
prescribed by Regulation
7
4(9)
of the MPRDA
's
regulations.
N.
On
17 February 2014 the Applicant issued
a
final
letter
of demand to the 2nd Respondent to conclude
the
appeals, and received
a
reply stating that the
appeals
have been outsourced due to capacity
constraints.
0.
The
Applicant brought
a
second High Court application to compel
the Respondents to finalise the appeals.
A Court order
was issued by the Court on 28 May 2014, ordering that the Z1d
Respondents take
a
decision and
give r
easons.
P. The Court
order was served on the Respondents on
12 June 2014.
Q.
On 8 August
2014 the 2nd Respondent issued a
letter, which letter withdrew
the 3rd Respondent's
decisions and referred them back to the
3rd Respondent
for reconsideration (without
a
basis
for
such)."
8.
At the hearing of this application, counsel for the
Respondents drew the Court's attention to a letter dated 11 May 2015
which was
sent to Hentiq, dealing with the first application for
prospecting rights. I will refer to the first two paragraphs of that
letter
which reads as follows:
" 1.
Kindly be informed that your application for
a
prospecting
right was reassessed and
a
decision
has been
take by the Regional Manager to accept your application in respect of
the farm Grootkop 617 JT for manganese ore in terms
of Section 16 of
the Mineral and Petroleum Resources Development Act, 2002 (Act 28 of
2002).
2.
Further be informed that the farm Kalk-kloof 706 JT has been excluded
from your application as there is an existing prospecting
right held
by another party for the same minerals as contemplated in terms of
Section 16(2)(b) of the Act."
THE LAW
9.
The consideration of the applications for a prospecting right
is dealt with in terms of the provisions of
Section 16 of the
Mineral and Petroleum Resources Development Act, 2002 (Act 28 of 2002
or MPRDA).
In particular in respect of the issues raised in this
application, the regulations promulgated in terms of the MPRDA as
they appear
in the Government Gazette of 23 April 2004 are also
applicable.
10.
As already stated, this review application is launched in
terms of PAJA.
INTERNAL
REMEDIES
11.
Hentiq makes the allegation that in strict compliance with the
statutory requirements, the consideration of the appeals should have
taken 72 days. However, the total process actually took 489 days
before this application was launched.
12.
In support of this allegation, Hentiq makes the following
contentions:
12.1 The Regional
Manager should have accepted or rejected the first application for
prospecting right on or about 22 November 2012
(being 14 days of
submission as provided for in section 16 (3) of the MPRDA),but did so
only on 13 March 2013 (4 months late);
12.2 The Regional
Manager should have accepted or rejected the second application for
prospecting right on or about 13 December
2012, but did so only on 31
July 2013 (7 months late);
12.3 The Regional
Manager should have provided its reply to the appeals and its reasons
for the rejection of the applications on
or about 2 May 2013
(Regulation 74(5)), but did so only on 30October 2013 (6 months
late). A High Court application had to be brought
against the
Regional Manager and the DG before they submitted reasons for the
rejection of the applications;
12.4 The DG
should have taken a decision to finalise the appeals after receipt of
Hentiq's comments on or about 15 January 2014
(Regulation 74(9)), but
did so only on 8 August 2014 (7 months late);
12.5 A second
High Court application had to be brought to compel the DG to finalise
the appeals. On 28 May 2014, the Court ordered
the DG to comply with
its order within 30 days (i.e. by 9 July 2014, but only did so on 8
August 2014 (1 month late in compliance
with the Court order).
12.6 The DG did
not comply with the Court order as it did not take any of the steps
set out in the order. The DG also did not give
reasons for his
decision, as ordered in the Court order.
13.
The
Respondents in their answer to Hentiq's contention,
refers
the Court to a number of decisions
[1]
wherein the Courts
have
emphasised the need for parties to exhaust internal
remedies
before they resort to the Courts for appropriate relief. The
Respondents, however,
do
not
deal
adequately
with
the
delays
as
made out in the case by Hentiq. The explanation provided is
that the delay occurred due to heavy work-load of
numerous
applications, notwithstanding the assertion that some of the
work-load has been out-sourced.
14.
It is against this background chronology of events that Hentiq
pleads for exemption for their failure to appeal to the Minister,
in
compliance with the need to exhaust internal remedies.
15.
Section
7 of PAJA provides that in launching a review application, a party
must ensure that it has to exhaust the internal remedies
before
approaching Court for relief. The provisions of this section are
peremptory. However, the section does empower the Court,
in
exceptional circumstances, to grant exemption from non-compliance
with the need to exhaust internal remedies.
16.
The MPRDA also provides for internal procedures that need to be
complied with in exhausting internal remedies. Section 96 of the
Act
provides that a party aggrieved by any administrativedecision may
appeal within 30 days of becoming aware of such decision.
The section
further provides that in the case of a decision by the Regional
Manager, this is appealable to the Director General
and in the case
of a decision by the Director General; such is applicable to the
Minister.
17.
The
time frames within which appeals must be launched or may be
considered are stated in detail in
Chapter 3, Regulation 74
of
the MPRD Regulations, promulgated in terms of section
107
(1) (c) of the Act, as published in Government Notice R527 in
Government Gazette of 23 April 2004 as amended.
18.
In
terms of Regulation 74, the prescribed duration for consideration of
each stage of an appeal is 21 days. In addition, section
6 of the
MRPDA provides that subject to the PAJA,
"any
administrative
process conducted
or
decision
taken
in
terms
of
this Act must be conducted or taken,
as
the case may be, within
a
reasonable time and in accordance
with the principles
of lawfulness, reasonableness and
procedural fairness."
EVALUATION OF
EVIDENCE
19.
It is trite that a party not satisfied with an administrative
decision, has to exhaust internal remedies where these are provided
for interms of the law. It is only in exceptional circumstances that
exemption for non-compliance with this principle may be granted
in
appropriate cases and on application to the Court.
20.
It is common cause that Hentiq did not challenge the decision
of the DG in referring the matter back to the Regional Manager, by
launching an appeal to the Minister. This is the Respondents'
contention. There are, however, two difficulties with this
contention.
In the first instance, in considering the appeal from the
Regional Manager, the DG did not confirm or reject the decision of
the
Manager but rather referred the matter back to the Regional
Manager.
21.
The Act is silent on instances such as this, where the
decision of the DG does not bring finality to the application. The
question
which arises in this instance is whether the DG's conduct in
referring the appeal back to the Regional Manager, is an
"administrative decision"
as contemplated in section
96 (b) of the Act and thus appealable to the Minister. It seems to me
that in considering the tenor of
the Act, the authority to issue a
prospecting and other right, vests in the Minister. Section 8 of the
Act provides that the Regional
Manager, in receiving and considering
the applications for various mineral rights, exercises delegated or
assigned functions. The
decision to accept or reject an application
concerning these rights ultimately lies with the Minister. For that
reason, the DG's
decision to refer the appeal to the Regional Manager
is a decision appealable to the Minister. Hentiq should have lodged
an appeal
with the Minister. It will therefore not be correct to
grant exemption to Hentiq from appealing the DG's decision to the
Minister
22.
In the second instance, both the Regional Manager and the DG
took considerable time in dealing with the applications and appeals,
well beyond the time frames specifically provided for in Regulations
74, and generally, the 180 days provided for in PAJA.
23.
The explanation provided by the Respondents is that due to the
volume of applications involved, the Respondents could not
give
timeous consideration to all the applications that were launched.
This Court is unable to understand why the Minister should
promulgate Regulations providing for time frames which are not
possible to comply with. Either the time frames have to be revisited
or sufficient capacity be made available, to enable compliance with
the legal requirements in terms of the Act and Regulations.
CONCLUSION
AND
FINDING.
24.
This
application has come before Court in 2016. That is almost 4 years
after Hentiq had launched its first and second applications
for
prospecting rights. Between the time when the applications were
launched in November 2012 and the last letter written to
Hentiq
dated 11 May 2015, a period of 3 years had lapsed while the
applications for prospecting rights are being considered.
There have
been two Court interventions which seem to have had no effect. The
delay is unreasonable, when one considers the provisions
of section
6 of the MPRDA. This conduct is unsatisfactory and should, in my
view, attract a cost order against the Respondents.
25.
This Court thus finds that the decision by the DG to refer the
appeals back to the Regional Manager for reconsideration, added to
this unnecessary and inordinate delay. This decision, in so far as it
affects the consideration of the rejected portions of the
applications, should be reviewed and set aside.
26.
This Court accepts that prior to the hearing of this
application and through the letter of 11 May 2015; the Regional
Manager had
already taken a decision on one the applications. The
Regional Manager has granted some of the prospecting rights applied
for by
Hentiq. Where any prospecting right application has been
rejected,
alternatively
prospecting right licence in certain
farms has been rejected; the DG should then reconsider the appeals
already submitted in respect
of the outstanding prospecting right
application and decide, providing written reasons for his decision.
This decision of the DG
on these appeals must be made within 21 days
of the date of this order. Upon receipt of the DG's decision, Hentiq
may appeal such
decision to the Minister.
27.
Having regard to the conspectus of the evidence before this
Court, I am of the view therefore that this application should
partially
succeed and that the decision of the DG referring the
appeals back to the Regional Manager insofar as the prospecting
rights have
not been granted, should be reviewed and set aside.
Hentiq failed to appeal the DG's decision or non decision to the
Minister
and there is thus no justification to grant an exemption.
28.
The Respondents should be mulcted with costs for the
inordinate and unreasonable delay in dealing with the applications
for prospecting
rights.
29.
In the premises I make the following Order:
1. The
application partially succeeds;
2. The
application for exemption for non-compliance with the need to
exhaust internal remedies is refused;
3. The decision
by the Director General referring the appeals from the Regional
Manager, back to the Regional Manager, in so far
as it concerns the
applications for prospecting rights which have been rejected or not
yet considered, is hereby reviewed and
set aside;
4. The Director
General is ordered to consider the appeals launched by Hentiq against
the decision of the Regional Manager concerning
the rejected
applications for prospecting rights;
5. The Director
General should consider and decide on these appeals within 21 days
from the date of this order, giving reasons in
writing for his
decision.
6. After 21 days
Hentiq may further appeal the Director General's decision (or
non-decision) to the Minister for his consideration
and final
decision, before resorting to Court.
7. The
Respondents are ordered to pay the Applicant the costs of this
application.
SP MOTHLE
Judge of the
High Court of South
Africa Gauteng
Division
Pretoria.
For
the Applicant: Adv. L Keijser
Instructed
by: Vorster Thirion Adlam Inc.
Applicants
Attorneys
PRETORIA.
For the
Respondents: Adv. L Gumbi
Instructed by:
The State Attorney
PRETORIA.
[1]
. Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd
2011
(4) SA 113
(CC),;
Van
den Heever v Minister of Minerals and Energy and Others (1252/2010
[2012] (4 May 2012 and Dengetenge Holdings (Pty) Ltd v
Southern
Sphere Mining and Development Company Ltd and Others
2014 (5) SA 138
(CC).