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[2014] ZAGPPHC 278
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Kasimira Trading 82 (Pty) Ltd v Minister of Mineral Resources and Others (33535/13) [2014] ZAGPPHC 278 (15 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
33535/13
DATE:
15 MAY 2014
In the matter
between:
KASIMIRA
TRADING 82 (PTY)
LTD
...........................................................................................
Applicant
and
MINISTER
OF MINERAL
RESOURCES
...........................................................................
First
Respondent
DEPUTY DIRECTOR-
GENERAL
DEPARTMENT
OF MINERAL
RESOURCES
..............................................................
Second
Respondent
REGIONAL MANAGER:
DEPARTMENT OF
MINERAL
RESOURCES
.....................................................................................................
Third
Respondent
CARPE
DIEM EXPLORATIONS (PTY)
LTD
.................................................................
Fourth
Respondent
JUDGMENT
Ismail J:
[1] This application
was brought before me by way of semi-urgency. In terms of part A of
the notice of motion the applicant seeks
an order in the following
terms:
1. That the matter
be heard on a semi urgent basis and that non- compliance of the
uniform rules is condoned;
2. That pending the
determination of the review proceedings set out in part B , the
fourth respondent is:
2.1 interdicted and
restrained from continuing with its prospecting activities on the
property known as Wolfberg farm187 in the
district of springbok in
the Northern Cape (Wolfberg);
2.2 is to vacate
Wolfberg and to ensure that all the personnel and equipment is
removed.
3. Costs is awarded
against those respondents that oppose the relief sought in part A;
4 Further and/ or
alternative relief.
[2] Part B of the
notice of motion deals with the review application in terms of Rule
53 where the applicant seeks an order in the
following terms:
1. The applicant is
exempt from its obligations to exhaust internal remedies , most
notably the internal appeal process provided
for in section 96 of the
Mineral and Petroleum Resources Development Act.
2.
Review
the first respondent’s administrative action consisting of her
failure to take a decision on an internal appeal lodged
with her by
the applicant on 14 December 2012 in terms of
section 96
of the
Mineral and Petroleum Resources Development Act of 2002
against an
impugned decision of the Acting Regional Manager.
3.
Declaring
the first respondent’s aforesaid administrative action to be
unlawful.
4.
The impugned decision of the acting regional manager, embodied in a
letter dated 9 October 2012, is reviewed and set aside.
5.
Declaring
that the fourth respondent has no valid prospecting right in relation
to Wolfberg.
6. That the fourth
respondent is ejected from Wolfberg together with its personnel; and
equipment.
7.
Directing
that those respondents that oppose the relief sought in part b pay
the costs of the Review
8. Further and/or
alternative relief.
[3] The first,
second and third respondents in this matter served a notice wherein
they indicated that they would not oppose the
application and that
they would abide by the decision of the court.
[4] Only the fourth
respondent opposed the application. During the course of this
judgment the fourth respondent would be referred
to as such or as
‘Carpe Diem’.
[5] I gave an
interim order in this matter on the 7 February 2014 in respect of
Part A of the notice of motion. The order granted
was to the
following effect:
1 That pending the
final determination of the review proceedings set out in part B, the
fourth respondent is:
1.1 interdicted and
restrained from continuing with all prospecting and/or mining
activities on the property owned by the applicant
known as the farm
Wolfberg 187 in the district of Springbok in the Northern Cape
(Wolfberg)
1.2 to immediately
vacate Wolfberg and to ensure that all its personnel and equipment is
removed.
Background
[6] The applicant is
a private company incorporated and registered under the Company laws
of the Republic of South Africa. Its principal
place of business is
situated on the farm Wolfberg No 187 which is situated in the
district of Springbok in the Northern Cape (Wolfberg).
[7]
The applicant purchased the farm Wolfberg from the Nick Kotze Family
Trust. It discovered that a third party, namely the fourth
respondent, was prospecting for diamonds at Wolfberg. The seller of
the farm informed the applicant that the fourth respondent
was
prospecting on the land illegally in that it had an old prospecting
licence issued to it in 2002 which was not converted in
terms of the
new Act and therefore lapsed. The applicant through their attorneys
wrote to the fourth respondent’s attorneys
seeking proof of its
prospecting rights to the farm and documentation indicating that that
it was entitled to prospect on the premises.
To this end a meeting
has held between the deponent to the applicant’s founding
affidavit and a representative of the fourth
respondent at the
Masonic Hotel. The purpose of the meeting was to explore possible
ways of getting the fourth respondent of the
land. One of the
suggestions was for the applicant to purchase Mr Cloete’s
shares in the fourth respondent. This idea to
purchase the shares of
Mr Cloete did not materialize.
[8]
The applicant’s attorneys, BVZ Attorneys, on the 4 May 2012
sent a letter to the Department of Mineral Resources wherein
the
following was stated:
“
Our client
bought the above property from Mr Nick Kotze and the property was
registered in the name of Kasimira.
Carpe Diem
exploration (Pty) ltd has a prospective right on t6hre portion of the
farm. We are aware that the right could expire
should Carpe Diem
exploration not positively perform the following :
1. Negotiations with
me as the owner of the farm
2. Illegal people on
the prospective premises
3. Illegal mining on
our part of the property,
4. Put up security
for rehabilitation of the prospecting premises.
None of the above
have been met by Carpe Diem Exploration.
This situation is
not acceptable to our client.
We urgently await
your feedback on this situation before or on the 31 May 2012, after
which our client will bring an application
to the High Court to set
aside the prospecting right of Carpe Diem “.
[9] The purpose of
the letter was intended to question whether the fourth respondent
ever had a ‘valid’ prospective
right to Wolfberg and
whether that right might have lapsed, since the fourth respondent
failed to comply with the four items listed
in the letter referred to
above.
[10]
The fourth respondent in its answering affidavit raised several
points against the interdict being issued. The points raised
by the
fourth respondent are - firstly that the applicant lacked
locus
standi
to
bring this application, secondly, that this court did not have the
jurisdiction to adjudicate the issue, thirdly that the applicant
failed to join the Director General (DG) in these proceedings. In
addition thereto the fourth respondent also raised the aspect
that
the applicant has alternative remedies available to it and therefore
the interdict should fall and be dismissed with costs
including the
costs of two counsel.
[11] I will deal in
turn with each and every point raised by the fourth respondent
hereunder.
[12]
The issue of
locus
standi
being
that the property, Wolfberg, apart from the mere allegation in the
founding affidavit that it was sold by the trust to Kasimira,
no
proof of the actual sale thereof was provided either in the form of
the title deed or agreement of sale thereof. The fourth
respondent’s
argument being that there was an agreement for prospective rights to
the property. A contract existed between
the National Mineral
Regulation (NMR) and Carpe Diem. The fourth respondent was permitted
to prospect on the farm in terms of the
old prospecting rights.
Whereas the owner of the farm was not a party to such an agreement.
[13] The fourth
respondent’s submission being that the applicant had no nexus
to the contract between the two parties to the
prospecting contract.
Regarding Part B of the application, whereby a review is sought to
set aside the conversion of the old prospecting
rights to the new
rights, in terms of MPDA. It was submitted that the applicant could
not object by virtue of the fact that the
fourth respondent sought
conversion in terms of the new Act prior to the applicant acquiring
the property. The conversion of the
old rights took place during 2011
and the applicant only acquired the property in 2012.
[14] The issue of
jurisdiction raised by the fourth respondent is premised on the fact
that the farm is situated in the Northern
Cape, and that the
prospecting rights related to a farm, which is situated outside the
jurisdiction of this Court. The fourth respondent
suggested that this
application should have been launched in the Kimberley High Court as
this Court did not have jurisdiction over
this matter.
The applicant, on
the other hand, submitted that the application sought in Part B of
the application concerned an administrative
law review as the
application is directed at the Minister of Mineral Resources [first
respondent] who is based within this court’s
jurisdiction.
Furthermore, the
internal appeal was directed to the Minister in Pretoria, who failed
to deal with it. Accordingly the applicant
claimed for an order in
terms of section 7 (2)( c) of PAJA, that it be exempt from exhausting
the internal remedy. In any event
the first respondent has elected to
abide the court’s decision and has not opposed the review
proceedings.
[15]
Counsel for the applicant referred to the matter of
Dengentenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd
[2013]
ZACC 48
at para
[74]
and [75] where Zondi J stated:
“
Yet
later on Mr Rocha also said in his affidavit that
‘
The
state concedes that the rights which the state purported to award
[Abrina] and [Dengetenge] could have been as a result of an
administrative oversight.... Upon reflection, the prospecting rights
ought not to have been granted to [Abrina] and [Dengetenge]”
[75]. The effect
of Mr Rocha’s affidavit was that, although the Minister had
taken the view that Dengetenge could not lawfully
have been granted
the prospecting rights that it was granted, it was better that the
Court decide all these competing claims and
requested that the Court
decide them. The Minister would have been aware that in terms of
section 96(3) she could insist that Southern
Sphere exhaust internal
remedies before the Court could hear the review application but she
chose the option of
and efficient for
the entire matter to be resolved by means of appropriate orders
granted by [the Court].” .....
Mr
Hopkins submitted that
in
casu
the
Minister elected not to oppose the matter and it also agreed to abide
the court’s decision.
[16]
The applicant submitted that this Court had jurisdiction for two
reasons, firstly in terms of section 8 of PAJA a review court
is
vested with power to grant any order it deems just and equitable and
secondly convenience dictated that a litigant cannot be
expected to
seek part of the relief they seek in one court and other part of
their relief in another court- the
causae
contenentia
doctrine.
In this regard they referred to Cillier Loots & Nel-
Herbstein and Van
Winsen The Civil Practice of the High Court
(5ed)
at 76 and to the cases cited at footnote 263.
[17] Regarding the
issue of the failure to join the Director General [DG] in this matter
it was submitted that the failure to join
him/her was fatal in that
the decision to grant the conversion of the prospecting rights was
done by the acting regional director
who acquired his powers through
the Director General. The failure to join the DG in these proceedings
is fatal and on that ground
alone the application should fail.
It was argued that
the DG had a direct and substantial interest in this matter,
particularly in the light of the allegations that
the decision to
convert the prospecting right was untoward as suggested by the
applicant. Furthermore, that the right to convert
the old prospecting
rights had lapsed.
The
applicant submitted that the internal appeal in terms of section
96(1) of the MPRDA was made to the Minister of Mineral Resources.
In
terms of section 96(1) (a) the appeal is only made to the Director-
General if the impugned decision was taken by the regional
Manager.
However, in terms of section 96(1 )(b) the appeal must be made to the
Minister if the impugned decision was either taken
by the
Director-General or a designated agency. The applicant relied upon
the decision of
Bengwenyama
Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and
Others
2012
(3) BCLR 229
(CC) where it was held that an internal appeal of a
decision taken by the DDG in relation to prospecting rights is to the
Minister.
[18] The fourth
respondent also raised the point that the applicant did not satisfy
the four basic principles relating to an interim
interdict, more
particularly the applicant failed to show that it did not have any
alternative remedy available to it apart from
launching this matter.
[19]
Regarding the issue of an interim interdict, as stated in para [5]
supra,
the
court granted an interim interdict. The reason for granting the order
was that the applicant persuasively submitted that the
court should
interdict illegal conduct irrespective of whether the applicant in
the review had suffered harm or not. The applicant
relied upon the
matter of
Roodepoort
Municipality v Eastern Properties (Pty) Ltd
1933
AD 87.
The applicant submitted that the fourth respondent who had a
prospecting licence was mining on the property. It was not entitled
to mine, however the fourth respondent claimed that it could do so.
Thereafter it made a sudden turn in its version when it said
‘
Carpe
Diem ontken dat dit myn vir diamante op Wolfberg
The
fourth respondent thereafter alleged in its papers that
“
Carpe
Diem het nog nooit beweer dat dit a mynreg het’’
More significantly
Carpe Diem was also utilizing water at Wolfberg for its activities in
the absence of a water usage permit. The
deponent to its papers, Mr
Cloete, stated that it had appointed somebody to locate its water
licence when it was asked to produce
such a licence. The implication
of that comment was that it had a water licence. The Department of
Water Affairs investigated whether
Carpe Diem had a such a licence
and its investigation revealed that it did not possess a licence to
utilize water on the farm Wolfberg
for its activities.
Attached to the
papers were photographs of several water tanks on the property. This
clearly revealed that the fourth respondent
was less than candid with
the court regarding the situation of water usage and whether or not
it had a licence to use water on
Wolfberg, which it clearly did not
have.
[20]
In motion proceedings the court is bound to follow the principle set
out in
Plascon
Evans Paints v Van Riebeeck Paints
1984(3)
SA 623 at 634E- 635B.
“
Secondly,
the affidavit reveal certain disputes of fact. The appellant
nevertheless
sought a final
interdict......in such a case the general rule was stated by Van Wyk
J
(with
whom De Villiers JP and Rosenow J concurred) in
Stellenbosch
Farmer’s Winery Ltd v Stellenvale Winery (Pty) Ltd
1957
(4) SA 234
( C) at 235E-G, to be:
“
where
there is a dispute as to the facts a final interdict should only be
granted in notice proceedings If the facts as stated by
the
respondents together with the admitted facts in the applicant’s
affidavits justify such an order... .Where it is clear
that the
facts, though not formally admitted, cannot be denied, they must be
regarded as admitted.”
Further on at 635
B-C the court added:
“
Moreover,
there may be exceptions to this general rule, as, for example, where
the allegations or denials of the respondent are
so far- fetched or
clearly untenable that the Court is justified in rejecting them
merely on the papers...”
The allegations of
the deponent to the fourth respondents affidavit in this regard
relating to the water usage and the question
of diamond mining on the
premises in my view falls into this category.
[21 ] Mr Hopkins
submitted that the court could not sit by passively and allow a party
to flagrantly transgress the law.
Where a party acts
in such a manner an interdict should be granted without in the
absence of the four requirements usually needed
for an interdict. The
fourth respondent on its own admission was mining for diamonds when
it did not have a licence to mine and
secondly it was using water for
its activities in breach of a water usage licence. Significantly it
is noteworthy to mention that
the deponent to the fourth respondents
affidavit was not candid with the court regarding the question of
water usage.
[22]
It was also submitted on behalf of the applicant that its prospects
of success in respect of the review proceedings were strong
and that
the requirement of apprehension of harm and the balance of
convenience were factors are not necessary when the prospects
of
success are very strong- see
Olympic
Passenger Services (Pty) Ltd v Ramlagan
1957
(2) SA 383
(D).
[23] The fourth
respondent suggested that the applicant had recourse to laying a
charge with the South African Police Services and
the Mineral
Resources Board (MRB) if it was not complying with its prospecting
rights and was contravening any law. The police
could have
investigated a criminal offense or the MRB could have suspended the
fourth respondent from, operating pending the enquiry.
[24] The applicant
suggested that the fourth respondent was dissipating the diamonds on
the property which it was not entitled to
do. The applicant averred
that the fourth respondent merely had prospecting rights on the farm
and that it could not mine on the
property. This allegation was
denied by the fourth respondent.
[25] It was
submitted on behalf of Carpe Diem that in view of the applicant
having other causes available to it which it could have
pursued the
interdict should not be granted as the balance of convenience
favoured the fourth respondent and not the applicant.
Should the
interdict be granted the fourth respondent would have to lay off
workers, transport its machinery from the farm and
if the enquiry
proves to be without substance it would once again have to move its
machinery back to the farm at substantial costs
to it.
[26] The fourth
respondent submitted that even prior to the applicant purchasing the
farm it was aware that the fourth respondent
had prospective rights
to the farm. At the meeting at the Masonic Hotel (referred to in para
[7] supra) the applicant negotiated
to purchase the shares in the
fourth respondent. It was averred on behalf of the fourth respondent
that the applicant sought to
have the licence of the fourth
respondent set aside by means of this review so that it could apply
for its own prospecting rights
licence. The applicant’s
motivation for bringing this application had nothing to do with
administrative actions which should
be set aside in terms of PAJA but
rather its own self interest to prospect the property for diamonds.
Furthermore, the applicant
failed to comply with the internal
procedure set out in terms of the act by appealing the decision to
convert the licence. Instead
it seeks an interdict preventing the
fourth respondent from prospecting on the farm pending the
finalization of the review proceedings.
[27] The fourth
respondent submitted that the failure of the applicant to follow the
internal appeal procedure was significant in
that the applicant did
not comply with the time periods set out to appeal which was 10 days
and that it also failed to make out
a case for condonation.
[28] The review
proceedings were lodged by way of urgency during August 2013, this
was in excess of the 180 days stipulated in terms
of section 7 of
PAJA. The applicant was accordingly out of time and it failed to make
out a case for condonation.
[29] In terms of the
old order, the permit was issued to the fourth respondent during
October 2002 and would expire on the 21 October
2005. The permit was
valid for a period of three years. The fourth respondent applied for
a conversion of the old order permit
on the 30 September 2005.
The Deputy Director
General gave his approval for the conversion during August 2011. The
applicant had been on the property from
October 1995 until August
2011 when the permit was converted. That is a period of 9 years from
2002. This means that they were
prospecting on the farm for six years
from the time the initial period expired and the new permit was
granted. The applicant submitted
that the fourth respondent did not
comply with the conditions of registration. The new act made it a
punishable offence not to
register a permit which was converted
within 90 days and in addition stipulated that in the absence of
registration within that
period a party may not prospect in terms of
the MRDPA.
[30] Mr Hopkins
submitted that the DDG was firstly wrong in allowing Carpe Diem
conversion of the old order rights to new order
prospecting rights on
25 August 2011. By doing so the DDG gave them greater rights than
they originally had in terms of the old
permits. Furthermore, they
had been prospecting from 2006 until today which is a period of 8
years on the property when the initial
period was for a lesser
duration..
[31] Carpe Diem was
granted an old order prospecting permit on 8 October 2002 which was
valid until 1 October 2005. The terms of
its old order permit thus
gave it the right to prospect for approximately thirty six (36)
months.
[32] The fourth
respondent prospected until the MPRDA took effect on 1 May 2004. It
had enjoyed 19 months of the 36 months that
it was granted on the old
permit. It therefore still had 17 months remaining in terms of the
old permit to prospect at Wolfberg.
[33] Carpe Diem
timeously applied under the interim arrangements to the MPRDA to have
its old order prospecting rights converted
into new order prospecting
right.
[34] In terms of
item 6(1) old order prospecting rights remained valid for 2 years
from the date on which the MPRDA took effect.
Its old order
prospecting right was therefore valid until April 2006.
[35]
Counsel for the applicant submitted that according to the matter of
De Beer
Consolidated Mines Limited v Regional Manager, Mineral Regulation
Free State Region: Department of Minerals and Energy and
Others (case
no1590/2007)
a
judgment of Cillie and Ebrahim JJ at page 44 thereof where the
following was said:
" I conclude
therefore that the duration of the applicant's old order prospecting
permit is two years, calculated from the
date of commencement of the
MRPDA that is the 1 May 2004 and accordingly the said permit would
have expired on the 30 June 2006.
[36] Carpe Diems old
order prospecting rights would have expired on 30 April 2006 and it
was given over and above that two year
period the balance of the
‘unused’ time of 17 months (referred to in para [31]
supra).
Its rights to
prospect at Wolfberg would have expired on 1 December 2009.
[37]
On 25 August 2011 the DDG granted the conversion and Carpe Diem was
granted a right to prospect in the new order only for a
period of 1
year. When the conversion was granted Carpe Diem had been prospecting
at Wolfberg for approximately 9 years (from 2
October 2002 until 25
August 2011).
[38] Mr Hopkins
argued that the DDG should have known that he could not grant the
fourth respondent, Carpe diem, a further one year
to prospect
because:
(i) Carpe Diem had
had already been prospecting for 9 years and section 17 (6) of MPRDA
stipulates that prospecting rights in the
new order is only valid for
5 years and for this reason it was impermissible for him to give it
additional time over and above
the 9 year it had already been
prospecting;
(ii) Its old order
rights had already lapsed on 30 April 2006 or at the latest on 1
December 2009 and accordingly there was no live
older order to
convert as at 25 August 2011; and
(iii) By granting
carpe Diem another year on top of the 9 years that it already enjoyed
he was effectively allowing them to prospect
for 10 years which is
contrary to the terms of the old order permit (which gave them 3
years) and contrary to the permissible prospecting
period in the
MPRDA (which permits them 5 years)
[39] On behalf of
the applicant it was submitted that the DDG erred by granting Carpe
Diem the conversion on 25 August 2011 and
that his actions were ultra
vires and that the unlawful administrative action must be set aside.
[40] Even if the DDG
was correct in allowing the conversion, the failure to register the
permit by Cape Diem, prevented it from
prospecting on the farm in
terms of the new Act.
Mr van Heerden on
the other hand argued that the failure to register the new permit
merely meant that the old order permit to prospect
still applied and
that the new order permit would only come into existence upon
registration. Applicant’s counsel argued
that if Mr van Heerden
was correct the old order permit would apply indefinitely or as
professor Dale remarked in perpetuity.
[41]
Mr Hopkins submitted that Carpe Diem had to be of Wolfberg by 2009,
however the Minister approved the conversion in 2011, that
is two
years a later and he was therefore wrong as he gave them greater
rights then they were entitled to. He relied upon the decision
of
Agri South Africa
and Another v Afriforum and Others
[
2013] ZACC 9
see paras [29 and [30] thereof.
At para [29] of the
judgment the Chief justice stated:
[29] The lifespan of
an old order prospecting right was two years, calculated from the
coming into operation of the MPRDA. A holder
was expected to lodge
the right for conversion within the two year period. If the
requirements were met, the Minister would have
no choice but to
convert the old order prospecting rigfhts into a prospecting right in
terms of the MPRDA.
[30]
Any old order mining right that was in force when the MPRDA took
effect continued to be enjoyed by the holder for a period
of five
years from the date of commencement of the MPRDA.
It
was convertible into a new order mining right during the transitional
period, subject to compliance with certain requirements.
Item 6 and 7
of Schedule II to the MPRDA therefore conditionally guaranteed
holders of old order prospecting rights the continued
enjoyment of
the
equivalent
of their mineral rights”
(mv
underlining)
[42] Section 6 of
Schedule II relating to the Transitional Arrangements deals with the
issue of old order prospecting rights. The
section reads as follows:
“
(1)
subject to sub item (2) and (8), an old order prospecting right in
force immediately before this Act took effect continues in
force for
a period of two years from the date on which the Act took effect
subject to the terms and conditions under which it was
granted or
issued or was deemed to have been granted or issued.
(2) A holder of
an old order prospecting right must lodge the right for conversion
within he period referred to in subitem (1) at
the office of the
Regional Manager in whose region the land I question is situated
together with-
(a) the
prescribed particulars of the holder;
(b) a sketch plan
or diagram depicting the prospecting area for which thi conversion is
required, which area may not be larger than
the area for whicl he or
she holds the old order prospecting right;
(c) the name of
the mineral or group of minerals for which he or she holds the ole
order prospecting right;
(d) an affidavit
verifying that the holder is conducting or has conducte<
prospecting operations immediately before the Act took
effect on the
area of that land to which the conversion relates and setting out the
periods durini which such prospecting operations
were conducted and
the results thereof;
(e) a statement
setting out a period for which the prospecting right is required,
substantiated by a prospecting work programme
;
(f) information
whether or not the old order prospecting right is encumbered by any
mortgage bond or other right registered at the
Deeds office or mining
title Office;
(g) a statement
setting out the terms and conditions which apply to the old order
prospecting right;
(h) the original
title deed in respect of the land to which the old order prospecting
right relates, or a certified copy thereof;
(i) The original
order right or certified copy thereof; and
(i) all
prospecting information and the results thereof to which the right
relates.
(3) The Minister
must convert the old order prospecting right into prospecting right
if the holder of the old order prospecting
right-
(a) complies with
the requirements of subitem (2);
(b) has conducted
prospecting operations in respect of the right in question;
(c) indicates
that he or she will continue to conduct such prospecting operations
upon the conversion of such right;
(d) has an
approved environmental management programme; and
(e) has paid the
prescribed conversion fee.
(4) No terms and
conditions applicable to old order prospecting rights remain in force
if they are contrary to any provisions of
the Constitution or this
Act.
(5) The holder
must lodge the right converted under subitem (3) within 90 days from
the date he or she received notice of conversion
at the Mineral and
Petroleum Titles Registration Office for registration and
simultaneously at the Deeds Office or the Mineral
and Petroleum
titles Registration Office for deregistration of the old order
prospecting right,
(6) If a mortgage
bond has been registered in terms of the Deeds registries Act, 1937
(Act 47 of 1937), or the Mining Titles Act,
1967 (Act 16 of 1967),
over the old order prospecting right, the prospecting right into
which it was converted must be registered
in terms of this Act
subject to such mortgage bond, and the relevant registrar must make
such endorsements on every relevant document
and such entries in his
or her registers as may be necessary in order to give effect to this
subitem, without payment or transfer
duty, stamp duty registration
fees or charges.
(7) Upon the
conversion of the old order prospecting right and registration of the
prospecting right into which it was converted,
the old order
prospecting right ceases to exist
(8) If the holder
fails to lodge the old order prospecting right for conversion before
the expiry of the period referred to in subitem
(1), the old order
prospecting right ceases to exist. .
[43] In the
circumstances of the factual matrix of this matter I am of the
considered view that the decision taken by the Deputy
Director
General during August 2011 to grant the fourth respondent a further
period was unlawful. By then the fourth respondent
had already been
prospecting on the farm in excess of 9 years. The decision taken
should therefore be set aside.
[44] Accordingly the
review proceedings sought in part B of the Notice of Motion should
succeed.
[45] In the
circumstances I make the following order:
(1) The order given
on the 7 February 2014 is confirmed;
(2) The impugned
decision of the acting Regional Manager is hereby set aside;
(3) The fourth
respondent has no valid prospecting rights to the farm, Wolfberg
The first
respondent’s administrative action consisting of her failure
to take a decision on an internal appeal lodged with
her, by the
applicant on 14 December 2012, in terms of
section 96
of the
Mineral
and Petroleum Resources Development Act of 2002
against an impugned
decision of the Acting Regional Manager is hereby reviewed.
(5)Fourth respondent
is ordered to pay the costs of the application.
Ismail,
J
APPEARANCES
:
For
the Applicant:
Adv
K Hopkins instructed by Rudolph Botha
Attorneys Centurion,
Pretoria
For
the fourth respondent:
Adv
C N van Heerden instructed by Bouwer &
Co, c/o Geldenhuys
Malatji, Groenkloof,
Pretoria.
Date
of hearing:
7
February 2014.
Judgment
delivered
:
14 May 2014