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[2016] ZAGPPHC 1255
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Magnificent Mile Trading 30 (Pty) Ltd v Minister of Mineral Resources and Others (49701/2013) [2016] ZAGPPHC 1255 (9 December 2016)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG HIGH COURT, PRETORIA)
(1)
REPORTABLE:
YES
/ NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/ NO
(3)
REVISED.
Case Number: 49701/2013
9/12/2016
In
the matter between:
MAGNIFICENT
MILE TRADING 30 (PTY) LTD
APPLICANT
And
MINISTER
OF MINERAL RESOURCES
1
ST
RESPONDENT
DIRECTOR-GENERAL,
DEPARTMENT
OF MINERAL RESOURCES
2
ND
RESPONDENT
DEPUTY
DIRECTOR-GENERAL: MINERAL REGULATION,
DEPARTMENT
OF MINERAL RESOURCES
3
RD
RESPONDENT
ANNEKE
DENISE LE ROUX NO
4
TH
RESPONDENT
JOSEPHINE
TERBLANCHE GOUWS
5
TH
RESPONDENT
REASONS
FOR JUDGMENT
Fabricius
J,
1.
On
29 August 2016, I heard this application in the Opposed Motion Court.
Applicants brought a review application on 13 August 2013,
and
amended the relevant Notice of Motion on 25 August 2015. The
Answering Affidavit Is dated 22 October 2015, and it
also
contains
a counter-application. In terms of the Amended Notice of Motion,
Applicants seek certain relief In terms of the
Promotion of
Administrative Justice Act 3 of 2000
r·PAJA
7
and seeks review of a number of decisions taken by mainly the First
to Third Respondents In terms of the
Mineral
and
Petroleum Resources Development Act 28 of 2002 (“The Mineral
Act”).
Before I return to the facts as set out by
Respondent's Counsel In Heads of Argument on behalf of the Fifth
Respondent (who is the
only active Respondent in this application), I
deem it appropriate to refer to a comment made by Fifth Respondent in
the Answering
Affidavit where she described the actions of the First
to Third Respondents as a "veritable comedy of errors".
Whatever
could go wrong with the applications that I will refer to
that were made in terms of the
Mineral Act
did go wrong.
2.
The Applicants and the Fifth
Respondent are in dispute about various decisions taken by the First
to Third Respondents concerning
applications for prospecting rights
in terms of the
Act
No Opposing affidavits
were
filed
by the Respondents of the Department of Mineral Resources. It is
convenient to refer to Fifth Respondent's Counsel, Mr P.
Lauw SC's
setting out of "distinguishable phases" prior to referring
to the different applications that were made, and
that served before
the Department. Phase 1 was a period prior to the advent of the
Mineral Act
during which the common law together with the
relevant instruments of legislation, regulated mineral rights. Phase
1 came to an
end on 1 May 2004. Phase 2 commenced on 1 May 2004 and
lasted one year until 30 April 2005. This was the "window
period"
within which holders of old mineral rights could apply
for rights in terms of the
Mineral Act
On the day
before phase 2 came to an end, i.e. 29 April 2005, Mr Gouws who was
an unused old-order right-holder, made application
for a prospecting
right. Phase.3 ran from 1 May 2005 onwards. This was the era of the
Mineral Act
This application process was triggered by his
application for a prospecting right on 29 April 200 5, and it
continued (and will
continue), so it was argued, until that
application has been decided one way or the other. This is the
consequence of
Item
8 (3) of Schedule II to the
Mineral Act
3.
The different applications:
Both
Gouws and Applicants made applications in terms of the
Mineral
Act
relating to the Middelburg property. The "Gouws
prospecting right application" means an application made by
Gouws on 29
April 2005 as the holder of unused old-order rights for a
prospecting rights in respect of the Middelburg property. The
"Magnificent
Mile Prospecting Rights Application", means
the application Applicants brought in terms of
Section 17 of
the Mineral Act
for prospecting rights over the Middelburg
property on 3 May 2005. The "Magnificent Mile Prospecting Rights
Grant" means
the grant by the official Respondents on 16 January
2006 of prospecting rights to Magnificent Mlle over the Middelburg
property.
The a Magnificent Mile Mining Rights Application•
means an application the Applicants made on 22 January 2010 to
convert its
purported prospecting right relating to the Middelburg
property into a mineral right. The "refusar means the refusal of
Applicants'
mining right application. The "Gouws Prospecting
Rights Grant" means the decision of the Respondents on 9 June
2010,
to grant prospecting rights in respect of the Middelburg
property, one half of which had been registered In the name of Mrs
Gouws
In terms of the Mineral and Petroleum Titles Registration
Office.
The
relevant dates of importance are the following:
3.1
The Gouws Prospecting Rights Application
on 29 April 2005;
3.2
The end of the one year transitional
period, 20 April 2005;
3.3
The Magnificent Mlle Prospecting Rights
Application, 3 May 2005;
3.4
Mr Gouws' death,
7
November 2005.
4.
Relevant facts:
It is not disputed that Mr Gouws
was the owner of the mineral rights underlying the Middelburg
property during Phase 1, and that
they were not exploited during that
phase. They thus became unused old-order rights when the new regime
commenced. The categories
of old order rights that were not used
prior to the advent of the
Mineral Act
are set out in
Table
3 Schedule II
Category 1 thereof pertains to the mineral rights
under the common law for which no prospecting permit or mining
authorisation was
issued in terms of the
Minerals Act
which
is exactly the case with Mr Gouws' rights.
It ls also not disputed that Mr
Gouws made an application on 29 April 2005, for a prospecting right
relating to the Middelburg property.
Certain events occurred during
Phase 3:
4.1
Mr Gouws timeously submitted his application and the Respondents'
duly accepted it. However, for
reasons that remain "opaque"
(as put by Fifth Respondent's Senior Counsel), the Respondents'
processed this application,
not in respect of the Middelburg
property, but in respect of a piece of land that Mr Gouws had nothing
to do with i.e. a Wakkerstroom
property. In due course the
Respondents then approved Gouws' Prospecting Right Application, once
again not in respect of the piece
of land for which he had applied
(the Middelburg property), but in respect of this Wakkerstroom
property. The Respondents later
rectified this decision and granted
prospecting rights pursuant to the Gouws Prospecting Right
Application in respect of the Middelburg
property. What was
registered in terms of the MPRTO was not the whole of the right that
Mr Gouws applied for and was granted, but
only one half thereof.
5.
The second set of events, as Fifth
Respondent's Counsel classified them, concerned Applicants'
application for prospecting rights
and later mining rights with the
Middelburg property. Applicants knew that there was coal below the
surface of the Middelburg property.
In the Answering Affidavit it was
explained that Gouws had requested his son-In-law, Mr Barkhuizen, to
find a mining company to
a partner his application for a prospecting
right. Barkhuizen approached Pretorius who represented Applicant and
provided him with
geological information concerning this property. Mr
Gouws however decided not to enter into an agreement with Applicants,
but entered
into an agreement with Benicon, for the purposes of his
application. It was then said that Applicants were thus preconized of
Mr
Gouws' intentions to bring an application for the conversion of
his old-order right into a prospecting right. This notwithstanding,
Applicants submitted the Magnificent Mile Prospecting Right
Application on 3 May 2005, a bare two days after Phase 3 commenced.
There
are two subsidiary issues concerning the Magnificent Mile Prospecting
Rights Application, namely:
5.1
Did
Applicants have the right at all to lodge the application, given its
knowledge of the Gouws-application?
5.2
Did the express terms of
Schedule
II
allow Magnificent Mlle to lodge
an application?
6.
On
31 May 2005, the Regional Manager of the Mpumalanga Region of the
Department accepted the Magnificent Mile Prospecting Rights
Application, and on 16 January 2006, a prospecting right was granted
to Magnificent Mile in respect of the Middelburg property.
Magnificent Mlle thereafter applied for the conversion of the
prospecting right to as mining right. During that period, the
Respondents
recognized the competing interest between Gouws and
Applicants and refused to grant the right to mine the Mlddelburg
property to
Applicants.
7.
The third set of events concerned
the fact that Mr Gouws died on
7
November 2005 . At that point
he had made his Prospecting Right Application in respect of the
Middelburg property, the Respondents
had accepted this but, in
respect of the Wakkerstroom property, on 20 May 2005. On 31 May 2005,
the Respondents also purported
to accept Applicants' Prospecting
Rights Application of 3 May 2005. Ms le Roux was appointed as Mr
Gouws' executrix. Mrs Gouws
was Mr Gouws' sole heir. Mr Gouws' estate
was solvent and Mrs Gouws inherited the totality thereof. At the time
of his death, he
was married out of community of property to his
wife.
8.
The
relief sought:
Applicants
essentially seek orders which can be divided into three groups:
8.1
The
first Is an order in terms of the provisions of
Section
7 (2) (c) of PAJA
to exempt
Applicants from the obligation to exhaust internal remedies. Fifth
Respondent does not oppose this relief and was also
of the view that
it would be in the interests of justice for the disputes between
herself, Applicants and the Respondents to be
brought to a close as
soon as possible.
8.2
Secondly,
Applicants seek the judicial review of the acts of the Respondents
relating to the Gouws Prospecting Right Application.
Although
Applicants recognize that Mr Gouws had the exclusive right to submit
his application, it is Applicants' case that all
his rights
terminated when he died and none of them devolved onto his universal
heir, Mrs Gouws, and no prospecting or other right
could have been
granted in respect of the Gouws Prospecting Right Application after
his death. Mrs Gouws maintains the opposite
view, namely that upon
his death, Mr Gouws' rights devolved through his executrix onto Mrs
Gouws. According to Mr P. Louw SC, this
was a pivotal issue herein.
8.3
Applicants'
third prong of attack Is that they seek an order reviewing and
setting
aside,
the
decision of the Respondents not to grant a mining right to Applicant.
The Magnificent Mile Mining Rights Application flows from
the
Magnificent Mlle Prospecting Rights Application. Fifth Respondent's
response to this claim is that Applicant does not yet have
the right
to make any application including its prospecting rights application,
under 1he
Mineral Act
during
Phase 3, because the Gouws Prospecting Right Application has not yet
been finally determined.
9.
Fifth
Respondent however also claims specific declarity relief in her
counter- application in order to ensure that her rights under
the
Gouws Prospecting Right Application are properly secured and
protected. In this context, the following was said In the Fifth
Respondent's Answering Affidavit: “Mr Gouws made the said
application and the errors of the Department meant that up to today
his application has not been adjudicated upon with the consequences
that up to now Applicant made no application in respect of
the
Middelburg property and the Department Is now obliged to make a
decision In respect of Mr Gouws' original application".
That was
essentially the relief sought in the counter application which was
framed in the fashion of a declaratory order. The prayers
sought in
this counter-application read as follows:
9.1
"Magnificent Mile Trading 30 (Pty)
Ltd never had the right or competency to apply for any right under
the Mineral and Petroleum
Resources development Act, 28 of 2002 in
respect of the property described as Portion 9 of the Farm
Oriefontein 338, Registration
Division J. 5. Mpumalanga, District
Mlddelburg;
9.2
The application for a prospecting right
by the said Magnificent Mlle Trading 30 (Pty) Ltd in respect of the
said property is void
ab initio, and so are all steps taken in
consequence thereof:
9.3
The application for a prospecting right
by Nicholaas Petrus Gouws in respect of the said property was valid,
and:
9.3.1
Has been duly granted, alternatively;
9.3.2
Is still pending, awaiting consideration
by the director-General of the Department of Mineral Resources or the
correct official
in the said Department".
10 .
In
Applicants· Replying Affidavit, to the counter-application the
following was put:
10.1 Although
the relief sought purports to be in the form of a declarator, rather
than a review application,
it was clear from the Answering Affidavit
that Mrs Gouws considered the counter application "as a review
of the Department's
illegal act of accepting the Magnificent Mile
application and purporting to grant it";
10.2 It was not
competent for an Applicant to avoid the provisions of
PAJA
when
the relief sought can be brought under this
Act,
by referring
to it as a "constitutional legality review", which was
presumed to be a reference to the provisions of
Section 172 of the
Constitution of the Republic of South Africa, 1996;
10..3 Had the counter-application
been brought in terms of
PAJA,
as it should have been,
the 180 day period provision in
Section 7 (1) of PAJA,
and the
provisions of Section
7
(2), which provide that a Court may
not review the administrative action, unless the Applicant in the
review application exhausted
its internal remedies, would have been
applicable;
10.4 Even if the
counter-application could have been brought in terms of Section 172
of the Constitution or the
common law, It was also r levant to
consider whether Mrs Gouws had exhausted her internal remedies and
whether the review application
was brought within a reasonable time.
11.
It
was therefore stated that since Fifth Respondent:
11.1
Did not bring the counter application
within a reasonable time or 180 days, as contemplated In
Section
7 (1) of PAJA;
11.2
Did not exhaust her Internal remedies
before bringing the counter application;
11.3 Did not
apply to this Court to extend the 180 day period in terms of
Section
9 of PAJA;
11.4 Did not
apply to be exempted from the requirement to exhaust her internal
remedies in terms of
Section
7 (2) (c)
of
PAJA,
the counter-application should for those reasons alone
be dismissed with costs.
12.
In
the Heads of Argument of Fifth Respondent, it was said that Mrs Gouws
was compelled to bring the counter-application which was
best styled
a collateral application or judicial review I. e. an application that
does not resort under
PAJA,
but under the
constitutional principle of legality. The conduct of the Respondents
was irrational and thus constitutionally Invalid,
having regard to
their actions or Inactions. It was submitted that It was new settled
law that a c91lateral challenge to the validity
of administrative
action could be brought where a public authority seeks to coerce a
subject into compliance with an unlawful administrative
act. In this
context reference was made to
V & A Waterfront Properties
(Ply} Ltd v Helicopter and Marine Services (Pty)
ltd
2006
(1) SA 252
SCA par. 10,
as well as
Oudekraal Estates (Pty)
Ltd v City of Cape Town
2004 (6) SA 222
(SCA) at par. 26.
It was said that the question was whether an Applicant in
collateral proceedings seeks the correct remedy in the correct
proceedings.
A collateral review was not possible where two subjects
are in a private dispute and one subject relies upon an
administrative
act that was performed by an administrator who is not
party to the litigation. In those circumstances Courts have held that
the
wrong remedy is sought In the wrong proceedings. Fifth
Respondent's Counsel however submitted that If the administrative
order
seeks to enforce an administrative act, it was open to the
Respondent or Defendant to raise as a defence that the act was legal.
The Respondents In the present instance are parties to the litigation
and by the inaction they effectively make common cause with
Applicant, and thus in this manner seek to enforce the invalid
administrative act by not properly dealing with the Gouws Prospecting
Right Application by either granting it or rejecting it. Accordingly
it was submitted that the counter application was the appropriate
relief.
13.
Events after the hearing:
On
19 September 2016, I caused an email to be sent to the parties'
Attorneys which read as follows:
13.1
"I
have re-studied the relevant parts of the record and Counsel' s
submissions during the hearing on 29 August 2016. Even if
Fifth
Respondent's amended Draft Order is granted, there remains the
problem summarized In par. St and 52 of Applicant's Supplementary
Affidavit. (p. 253 of the application)
13.2
Par. 2.2 and 2.3 of Applicant's Draft
Order remain too vague in the light of the history of this matter and
would not address the
problems referred to In the Supplementary
Affidavit. How would an order referring to “all steps taken in
consequence there
or be enforced vis-a-vis the (absent) First to
Third Respondents, and others?
13.3
It
seems to me that despite the lapse of time "the comedy of
errors" should be solved by an Internal appeal.
One appropriate method would be to
Issue a rule nisi, compelling the Department to take all necessary
steps within a number of days
to deal with this error-ridden
situation.
13.4
It
would not seem to be correct,
assuming
that I could in law grant Fifth
Respondent's Draft Order, then simply also dismiss the claim in
convention, as many errors of fact
and law would remain.
13.5
I
am of the view that both Counsel did not sufficiently consider this
point.
13.6
An
appropriate internal appeal, with enforceable dates, would be one way
to a solution. There may be other practical ones.
13.7
At the moment the Fifth Respondent's
Draft Order does not sufficiently address the history of the matter.
It must be common cause
that Applicant would be entitled to certain
of the prayers.
13.8
Counsel
are requested therefore to consider the above and let me have an
appropriate Draft Order by agreement, leaving only
par.
2.1 and 2.3 of Fifth Respondent's
Draft for my consideration, and the question of costs.
13.9
Counsel
are at liberty to suggest any other practical approach, but it must
of such a nature that the wrong or unlawful decisions
referred to In
Applicant's Amended Notice of Motion are not left hanging in the
air'.
14.
In
response thereto I received a joint explanatory note from Counsel as
well as copies of Applicants' suggested Draft Orders and
a copy of
First respondent's proposed Draft Order. The explanatory note from
Counsel read as follows:
14.1
"Having regard to the essential
dispute between the parties (see paragraph 4 below), they have been
unable to agree to a Draft
Order. Accordingly, the parties jointly
approach the Honourable Judge by way of this note.
14.2
It appears that the First to Third
Respondents made a number of errors ln regard to the decisions made,
which decisions are set
out In the Applicants' Amended Notice of
Motion. As such the parties are in agreement that those declsions
stand to be set aside.
I
14.3
The essential dispute between the
parties however is that the Fifth Respondent contends that the
Applicant never had the right to
apply for the prospecting right over
the subject property and as such the state officials could never have
granted the prospecting
right over the subject property under
circumstances where the late Mr Gouws' application had not been dealt
with In terms of the
Act, read with the transitional provisions.
Furthermore, the Fifth Respondent contends that the late Mr Gouws'
application for
a prospecting right does not simply lapse upon his
death. The Fifth Respondent contends that the exclusivity principle
applies
and as such the state officials were obliged to deal with Mr
Gouws' application, and upon the granting thereof the prospecting
right could be ceded from the estate Into the name of the Fifth
Respondent, provided that she qualified in accordance with the
provisions of the MPRDA.
14.4
The Applicant contends that, even If the
honourable Judge should find that the deceased's prospecting right
application did not
lapse upon his death (a finding with which the
Applicant does not agree) the Fifth Respondent's proposed Draft Order
in respect
of the counter· application attached to this letter
as Annexure B does not provide a legally tenable solution for the
problem
faced by the Fifth Respondent, because-
14.4.1
It is not possible to grant a
prospecting right to a person who does not exist and that, for that
reason, the relief proposed in
paragraphs 6 and
7
of the Draft Order is not competent;
14.4.2
After the application for a prospecting
right was lodged by the deceased the only right he retained was a
right to lawful administrative
action and, because of the very nature
of such a right, such a right is not an asset of tan deceased estate,
and the Fifth Respondent
did not, therefore, inherit that right;
14.4.3
The proposed Draft Order of the Fifth
Respondent envisages, in paragraph_7.6 thereof, that the prospecting
right be granted to the
deceased and then ceded to the Fifth
Respondent. The Applicant contends that It is impossible for a
deceased person to cede a prospecting
right (or any other right) to
another person.
14.5 Having
regard to the essential dispute, and having regard to the issues
which stand to be determined by the
Honourable Court {as set out In
the Honourable Judge's e-mail communication dated 19 September 2016),
the parties have drafted
their respective Draft Orders.
14.6
Firstly, copies of the Applicant's Draft
Orders are attached hereto as Annexures A1 and A2. The contents of
the Draft Orders are
self-evident.
14.7
Secondly, a copy of the Fifth
Respondent's Draft Order is attached hereto as Annexure
B.
As it appears from the Draft Order,
it provides for
inter-alia
for
the setting aside of the decisions made by the state officials (it is
common cause that those decisions are error-ridden and
should be set
aside), and on the assumption that the Honourable Judge determines In
favour of the Fifth Respondent, that the remaining
Issues be dealt
with by
way
of
a
rule nisi.·
To put the memorandum into the
proper context, I annex the Draft Orders referred to therein, to this
judgment, falling which the
reader of the explanatory note would
obviously not know what was being suggested.
15.
On
4 November 2016, I made an order which I annex hereto, as Annexure D.
As is evident, paragraphs 1, 2, 3, 4, 5, 6,
7
and 8.1 of the
Applicants' Amended Notice of Motion were granted. The Fifth
Respondent's claim in reconvention was dismissed.
16.
It
is my view that the particular prayers of the Applicant's Amended
Notice of Motion that were granted, really follow, almost as
a matter
of course from the history of this matter and the facts that were
common cause. There Is no reason why the "comedy
of errors·
should remain and the actions that were taken by the relevant
Respondents In the present context were made wholly
irrationally, and
incompetently. The parties hereto were in fact in agreement, after
reconsideration that I requested, that the
"errors in regard
17.
Fifth
Respondent's claim in reconvention:
I
dismissed this claim. At the time I did so I was of the view that the
counter application in these proceedings was not competent,
for the
reasons set out in the Applicants' Replying Affidavit. I have
referred to these in par. 10 above. The relevant dispute
herein is
between two private parties. It is clear that the decisions made by
the relevant Respondents were "administrative
action" as
defined in
PAJA,
and as such reviewable. In that case,
the provisions of
Section 9 of PAJA
applied. It was not for
the Fifth Respondent to Idly stand by. wait for the passage of years
and then launch a counter-application
under the mantle of
-constitutional legality challenge". It Is true that the prayers
of the counter-application are couched
in the form of a declarator,
but having regard to the nature of the beast, it is clear that what
Is essentially sought was a review
of the decisions referred to In
that Notice of Motion. In argument it was put to me that a collateral
challenge to the validity
of administrative action could be brought
where a public authority seeks to coerce a subject Into compliance
with an unlawful administrative
act. In the present instance, It is
not correct to say that the administrative organ seeks to enforce an
administrative act, and
that it was therefore open to the Respondents
to raise as a defence that the act is illegal. Fifth Respondent's
Counsel sought
to turn the matter around by submitting that the
Respondents herein, by their inaction, effectively make common cause
with Applicant
and in that manner seek to enforce the invalid
administrative act.
18.
It
has been held in a number of cases that it is jurisprudentially
incorrect to regard
PAJA
and the legality principle as
parallel bases for review, both equally available to Courts in cases
where public conduct could qualify
as administrative action, and thus
to treat the two bodies of law as free alternatives that one may
pick-and- choose at will. This
so-called "free- alternative
trend", conflicts with clear precedent giving expression to an
established principle of
constitutional adjudication. This means that
PAJA
should apply where It Is applicable, and general
norms such as legality may only be resorted to once it has been
determined that
PAJA
does not apply.
See:
Comair v
Minister of Public Enterprises
2016
(1) SA 16
GP at par. 21,
where
the relevant authorities are referred to.
In
the present Instance there is nothing before me to show that the
Fifth Respondent was in any manner prevented to challenge the
relevant administrative act, and could only do so when it was
"coerced" by Applicants' application to review the
Irrational
acts of the particular Defendant. It is therefore my
opinion that Fifth Respondent has misconstrued the relevant
principles relating
to collateral challenges and when they can
appropriately be brought There Is no application before me In
accordance with the provisions
of Section 9 of PAJA. .I cannot think
of any Justifiable reason why Fifth Respondent could not have taken
the appropriate action
in terms of the relevant provisions of PAJA.
For that reason the "constitutional collateral-challenge"
by way of the
counter-application was dismissed.
19.
Another
delay in these unfortunate proceedings was caused by the fact that
the Court file disappeared and I note from a document
from the
Registrar's Office that it was uplifted by a person whose particulars
given turned out to be either false or non- existing.
JUDGE
H.J FABRICIUS
JUDGE
OF THE GAUTENG HIGH COURT, PRETORIA
Annexure A1
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 49701/13
In
the matter between:
MAGNIFICENT
MILE TRADING 30 (PTY) LTD
Applicant
and
MINISTER
OF MINERAL RESOURCES
First Respondent
DIRECTOR-GENERAL:
DEPARTMENT OF
MINERAL
RESOURCES
Second Respondent
DEPUTY
DIRECTOR-GENERAL
DEPARTMENT
OFMINERAL RESOURCES
Third Respondent
ANNEKE
DENISE LE ROUX N.O.
Fourth
Respondent
JOSEPHINE
TERBLANCHE GOUWS
Fifth Respondent
DRAFT
ORDER
BEFORE HIS LORDSHIP MR JUSTICE
FABRICIUS
On
this the ... ..... day of September 2016, having heard counsel and
having read the documents filed of record, the following order
is
made:
1.
That the relief
sought in paragraphs 1, 2, 3, 4, 5, 6, 7 and 8.1 of the applicant's
amended notice of motion be granted
2.
That the Minister
(or the person to whom the Minister's power under
section 24F(1A)
of
the
National Environmental Management Act, 107 of 1998
is delegated)
is ordered, after an application for the approval of an environmental
authorisation is submitted by Magnificent Mile
as contemplated in
section 22(1)
of the MPRDA (as amended), to consider and make a
decision with regard to the issue of an environmental authorisation
in respect
of the mining operations to be conducted by Magnificent
Mile in accordance with its mining work programme which forms part of
the
mining right granted to it in terms of this court order;
[1]
3.
That the fifth respondent's claim in
reconvention be dismissed:
4.
(Cost order left for the judge's
consideration)
BY
ORDER OF COURT
REGISTRAR
Annexure A2
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
Case
No: 49701/13
In the matter between:
MAGNIFICENT
MILE TRADING 30 (PTY) LTD
Applicant
and
MINISTER
OF MINERAL RESOURCES
First Respondent
DIRECTOR-GENERAL:
DEPARTMENT OF
MINERAL
RESOURCES
Second Respondent
DEPUTY
DIRECTOR-GENERAL
DEPARTMENT
OFMINERAL RESOURCES
Third Respondent
ANNEKE
DENISE LE ROUX N.O.
Fourth
Respondent
JOSEPHINE
TERBLANCHE GOUWS
Fifth Respondent
DRAFT
ORDER
BEFORE HIS LORDSHIP MR JUSTICE
FABRICIUS
On
this the ........ day of September 2016, having heard counsel and
having read the documents filed of record, the following order
is
made:
1.
That
the relief sought in paragraphs 1, 2, 3, 5 and 6, of the applicant's
amended notice of motion be granted;
2.
That
the relief sought in paragraphs 4, 7, 8 and 9 of the applicant's
amended notice of motion be dismissed
3.
That
it is declared that the applicant did not at any stage have the right
or competency to apply for any right under the
Mineral and Petroleum
Resources Development Act, 28 of 2002
in respect of the property
described as Portion 9 of the farm Driefontein, Registration Division
JS Mpumalanga, District Middelburg
("the Property”);
[2]
4.
***
[3]
5.
(Cost order left for the judge's consideration)
BY ORDER OF COURT
REGISTRAR
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: 49701/13
In
the matter between:
MAGNIFICENT
MILE TRADING 30 (PTY) LTD
Applicant
and
MINISTER
OF MINERAL RESOURCES
First Respondent
DIRECTOR-GENERAL:
DEPARTMENT OF
MINERAL
RESOURCES
Second Respondent
DEPUTY
DIRECTOR-GENERAL
DEPARTMENT
OFMINERAL RESOURCES
Third Respondent
ANNEKE
DENISE LE ROUX N.O.
Fourth
Respondent
JOSEPHINE
TERBLANCHE GOUWS
Fifth Respondent
DRAFT
ORDER
BEFORE HIS LORDSHIP MR JUSTICE
FABRICIUS
On
this the ........ day of September 2016, having heard counsel and
having read the documents filed of record, the following orders
are
made:
IN RESPECT OF THE MAIN
APPLICATION
1.
It
is declared that the Applicant had no right or competency to apply
for any right under the Mineral and Petroleum Resources Development
Act, 28 of 2002 (°the MPRDA") in respect of the property
described as Portion 9 of the Farm Driefontein 338, Registration
Division J.S. Mpumalanga, district Middelburg ("the Property")
after the application for a prospecting right over the
Property was
lodged by the late Nicholaas Petrus Gouws (“Mr Gouws”) on
29 April 2005.
2.
It is declared that the Applicant's applications for a prospecting
right and
for a mining right were void ab initio.
3.
The
following decisions are reviewed and set aside:
3.1.
The
decision of the Third Respondent dated 13 December 2005 to grant a
prospecting right in favour of the late Nicolaas Petrus Gouws
{the
deceased") in respect of coal on Portion 9 of Driefontein 338 JS
situated in Wakkerstroom;
3.2.
the decisionof the Third Respondent
dated 9 November 2010 to grant a prospecting right in favour of the
deceased in respect of one
half share of minerals on Portion 9 of
Driefontein 338 JS situated in Witbank;
3.3.
the decision of the Third Respondent
dated 19 September 2011 to amend the power of attorney dated 9
November 2010 to rectify the
magisterial district referred to herein
to read "Middelburg";
3.4.
the execution and registration in the
Mineral and Petroleum Titles Registration Office of the prospecting
right executed on 14 December
2010 in favour of the Fourth Respondent
for one half share of the minerals on Portion 9 of the farm
Driefontein 338 JS situated
in Middelburg;
3.5.
the execution and registration in the
Mineral and Petroleum Titles Registration Office of the prospecting
right executed on 5 October
2011 in favour of the Fourth Respondent
for coal in respect of one half share of the minerals on Portion 9 of
the farm Driefontein
338 JS situated in Middelburg;
3.6.
the decision of the First Respondent to
grant a prospecting right for coal in respect of Portion 9 of the
farm Driefontein 338 JS
situated in Wrtbank to Mr Gouws on a date
prior to 9 July 2013
3.7.
the decision of the Third Respondent
dated 17 July 2013 to grant consent. in terms of section 11 of the
MPRDA for the cession of
a· prospecting right in respect of
Portion 9 of the farm Driefontein 338 JS from Mr Gouws to the Fifth
Respondent
4.
The Applicant is ordered to pay the
costs of the main application.
5.
A
rule
nisi
returnable
on
2016
is issued calling upon the First to Third Respondents to show cause
why the First to Third Respondents should not be ordered
to pay,
jointly and severally, together with the Applicant, the Fifth
Respondent's costs incurred in the main application, including
the
costs of two counsel.
IN
RESPECT OF THE COUNTER-APPLICATION
6.
It
is declared that the application for a prospecting right dated 29
April 2005 lodged by the late Nicolaas Petrus Gouws was and
remains
valid;
7.
A rule nisi
returnable
on
2016
is issued calling upon the First Respondent (or a duly delegated
official) to show cause why the following order should not
be
granted:
7.1.
the First Respondent (or a duly
delegated official) is ordered, compelled and directed to consider,
in compliance with the provisions
of the MPRDA and the regulations
thereto, the application lodged on 29 April 2005 by the late Nicolaas
Petrus Gouws in terms of
which the deceased applied for prospective
right for coal in respect of Portion 9 of the farm Driefontein388 JS,
situated in the
Magisterial District of Middelburg;
7.2.
. the First Respondent shall consider
the application as set out in paragraph 7.1 above within 14 days
after the granting of this
order;
7.3.
in the event that the First Respondent
is of the view that the aforesaid application is not in compliance
with the aforesaid provisions,
then the First Respondent must notify
the Fifth Respondent of such non compliance, if any, which
notice must be given within
10 days after the date referred to in
paragraph 7.2 above;
7.4.
the First Respondent
will give the Fifth Respondent an opportunity to furnish information
and/or appropriate documents to rectify
the non compliance, if
any, which information and/or documents, if any, will be delivered by
the Fifth Respondent to the First
Respondent within 30days
thereafter, or within such period as agreed between the First
Respondent and the Fifth Respondent;
7.5.
the First Respondent
will make a final decision in regard to the aforesaid application
within 10 days after receiving the information
and/or documents
referred to in paragraph 7.4 above;
7.6.
if the First Respondent grants the
application for the prospecting right as aforesaid, the First
Respondent is ordered, directed
and compelled to consider the Fifth
Respondents MPRDA section 11 application and if the First Respondent
is satisfied that the
application is in accordance with the
provisions of the in MPRDA, the First Respondent is ordered to
execute and register the prospecting
right in the name of the Fifth
Respondent in the Mineral and Petroleum Titles Registration Office;
7.7.
the First to Third Respondents should is
ordered to pay, jointly and severally, together with the Applicant,
the Fifth Respondent's
costs in the counter-application, including
the costs of two counsel.
8.
The
Applicant is ordered to pay the Fifth Respondent's costs in the
counter application, which costs include the costs of two
counsel.
BY
ORDER OF COURT
REGISTRAR
Annexure A1
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: 49701/13
In
the matter between:
MAGNIFICENT
MILE TRADING 30 (PTY) LTD
Applicant
and
MINISTER
OF MINERAL RESOURCES
First Respondent
DIRECTOR-GENERAL:
DEPARTMENT OF
MINERAL
RESOURCES
Second Respondent
DEPUTY
DIRECTOR-GENERAL
DEPARTMENT
OFMINERAL RESOURCES
Third Respondent
ANNEKE
DENISE LE ROUX N.O.
Fourth
Respondent
JOSEPHINE
TERBLANCHE GOUWS
Fifth Respondent
DRAFT
ORDER
BEFORE
HIS LORDSHIP MR JUSTICE FABRlClUS
On
this the 4
th
of November 2016, having heard Counsel and
having read the documents filed of record. the following order is
made:
1.
That
the relief sought in paragraphs 1, 2. 3,
4,
5, 6, 7 and 8.1 of the Applicant’s
Amended Notice of Motion e granted
2.
That
the Minister- (or the pers9n to whom the Minister’s power under
Section 24F(1A)
of the
National Environmental Management Act 107 of
1998
is delegated) is ordered, after an application for the approval
of an environmental .authorisation Is submitted by Magnificent Mile
contemplated in
Section 22(1)
of the MPRDA (as amended) to consider
and make a decision With regard to the issue of an environmental
authorisation in respect
of the mining operations to be conducted b .
Magnificent Mile In accordance with Its mining work programme which
forms part of
the mining right granted to it in terms of the Court
order;
3.
That the Fifth Respondent's claim ln
reconvention be dismissed:
4.
Costs are reserved.
BY
ORDER OF COURT
REGISTRAR
Case No: 49701/13
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
PRETORIA
28 JUNE 2017
BEFORE
THE HONOURABLE MR JUSTICE FABRICIUS
In
the matter between:
MAGNIFICENT
MILE TRADING 30 (PTY) LTD
Applicant
and
MINISTER
OF MINERAL RESOURCES
First Respondent
DIRECTOR-GENERAL:
DEPARTMENT OF
MINERAL
RESOURCES
Second Respondent
DEPUTY
DIRECTOR-GENERAL
DEPARTMENT
OFMINERAL RESOURCES
Third Respondent
ANNEKE
DENISE LE ROUX N.O.
Fourth
Respondent
JOSEPHINE
TERBLANCHE GOUWS
Fifth Respondent
COSTS ORDER:
HAVING HEARD Counsel(s) for the
party(ies) and having read the documents flied of record
IT
IS ORDERED:
1.
The
First, Second and Third Respondents are ordered to pay the costs of
the application, jointly and severally, the one paying,
the others to
be absolved.
2.
The
Fifth Respondent is ordered to pay the costs of the
counter-application.
[1]
For the reason why this order should be made Instead of paragraph
8.2 of the applicant's amended notice of motion, see paragraph
75 of
the applicant's heads of argument.
[2]
This is the order In paragraph 2.1 of the First Draft Order proposed
by the fifth respondent and which Judge FabricIus suggested
should
remain for his consideration.
[3]
The applicant does not have any proposals with regard to the relief
that may be granted after all the decisions made by the State
Respondents have been set aside{as ls proposed In paragraph 1
hereof) because It contends that It Is not legally possible to
grant
a prospecting right to a deceased person or for a deceased person to
cede a right to anyone as Is proposed by the firth
respondent In Its
proposed draft order.