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[2010] ZAFSHC 60
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Sonnenberg v Minister of Minerals and Energy and Others (3244/2009) [2010] ZAFSHC 60 (24 June 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No.: 3244/2009
In the appeal of:
JUAN
PIETER SONNENBER
G
Applicant
and
THE
MINISTER OF MINERALS AND
ENERGY
1
st
Respondent
THE DIRECTOR,
MANAGER, DEPARTMENT OF
MINERALS
AND ENERGY
2
nd
Respondent
THE REGIONAL
MANAGER, MINERAL
REGULATION: FREE
STATE REGION:
DEPARTMENT
OF MINERALS AND ENERGY
3
rd
Respondent
MZWANDILE
SHWABABA
4th
Respondent
CORAM:
CILLIé, J
et
MOCUMIE,
J
JUDGEMENT:
CILLIé, J
HEARD
ON:
10 MAY 2010
_______________________________________________________
DELIVERED
ON:
24 JUNE 2010
INTRODUCTION
[1] The applicant is the
owner of the Remainder of the Farm Diamant 631 situated in the
magisterial district of Boshof, Free State
Province. Per Notarial
Deed dated the 9
th
of February 2009 a prospecting right in terms of section 16 of the
Mineral and Petroleum Resources Development Act, 28 of 2002
(MPRDA)
was granted to the fourth respondent over the said property. Who of
the first, second or third respondent exactly it was
that granted
that right to the fourth respondent falls for decision in a point
in
limine
taken by Mr Grobler on behalf of the fourth respondent. I will
herein later deal therewith. The applicant on various grounds
seeks
the revision and setting aside by this court of the prospecting right
granted to the fourth respondent. The first respondent
(The Minister
of Minerals and Energy), the second respondent (The Director General:
Department of Minerals and Energy) and the
third respondent (The
Regional Manager, Mineral Regulation: Free State Region) abides the
court’s decision and did not file
opposing affidavits. The
fourth respondent resists the application.
IN LIMINE
[2] The fourth respondent
raises
in
limine
that the applicant failed to exhaust its remedies in terms of MPRDA
more particularly section 96 thereof. That section reads as
follows:
“
96. Internal appeal process and
access to courts, - (1) Any person whose rights or legitimate
expectations have been materially
and adversely affected or who is
aggrieved by any administrative decision in terms of this Act may
appeal in the prescribed manner
to –
the Director-General, if it is an
administrative decision by a Regional Manager or an officer, or
the Minister, if it is an
administrative decision by the Director-General or the designated
agency.
An appeal in terms of subsection (1)
does not suspend the administrative decision, unless it is suspended
by the Director-General
or the Minister, as the case may be.
No person may apply to the court for
the review of an administrative decision contemplated in subsection
(1) until that person
has exhausted his or her remedies in terms of
that subsection.
Sections 6, 7 (1) and 8 of the
Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000),
apply to any court proceedings
contemplated in this section.”
[3] Read with section 7
of the Promotion of Administrative Justice Act, no 3 of 2000 (PAJA)
the applicant was obliged to appeal
to either the Minister or the
Director General, so the argument ran. This necessitates
consideration for whose administrative
decision it was that brought
about the granting of the prospecting right. Mr Grobler submits that
the decision was that of one
T K Moloto, the regional manager, Free
State, at the time (third respondent) and therefore it falls to be
dealt with on appeal
by the second respondent. This argument is not
novel. It has been dealt with in three as yet unreported judgments
of this court.
In the first of these being
MOFSCHAAP
DIAMONDS (PTY) LTD v MINISTER OF MINERALS AND ENERGY AND OTHERS
,
case number 3117/2006, Free State, 14 June 2007 Kruger J and Van der
Merwe J after dealing with the principles of delegation of
powers
concluded as follows:
[13] It is clear therefore that the
first respondent has both the power to revoke the delegation to the
third respondent in question
and to exercise the power delegated
herself and the power to exercise control over the exercise of the
delegated power. In our
view the delegation to the third respondent
in question took place in a scheme of deconcentration of public
power. It follows
that when the third respondent refused to grant a
prospecting right to the applicant, the third respondent acted on
behalf of the
first respondent, that the first respondent acted
through the third respondent and that the decision to refuse must be
regarded
as the decision of the first respondent. On this basis no
appeal in terms of section 96 of the Act is available to the
applicant.”
[4] It is clear from the
reading of this judgment that in that matter exactly the same
delegation to the same third respondent was
at stake as in the
present matter. This judgment was followed in this court in
GLOBAL
PACT TRADING 207 (PTY) LTD v MINISTER OF MINERALS AND ENERGY AND
OTHERS
,
case number 3118/06, 14 June 2007 and in
DE
BEERS CONSOLIDATED MINES v REGIONAL MANAGER MINERAL REGULATION, FREE
STATE AND OTHERS
,
case number 1590/2007, Free State, 15 May 2008. In both of these
matters the same delegation was also under consideration. Mr
Grobler
invited the court to reconsider the correctness of these three
judgments. He submitted that the Act authorises both the
delegation
of the administrative power and the internal remedy of an appeal.
This argument however begs the question: The question
is not what
was delegated but as whose decision
in
jure
it
was to be regarded. I remain unconvinced that the mentioned three
judgments are incorrect. The point
in
limine
can
therefore not be upheld.
[5] For the sake of
completeness it is necessary to mention that the fourth respondent in
his answering affidavit raised a further
point that is in the nature
of a point
in
limine
.
This is that the application is out of time. Section 7 of PAJA
obliges an applicant to institute judicial proceedings within
180
days after the date of which he was informed of the administrative
action which he wishes to be reviewed. Mr Grobler in argument
however correctly conceded that the applicant is well within the time
limit. It is therefore not necessary to deal with this.
MERITS
[6] Mr Van Niekerk on
behalf of the applicant relied on four irregularities in the process
when the prospecting right was applied
for, considered and granted
which allegedly contaminated the whole process to such an extent that
the granting of the right by
the first respondent should be set
aside. The irregularities relied on are:
6.1 Non-compliance with
section 16(4)(b) of MPRDA;
6.2 Non-compliance with
section 10 of MPRDA;
6.3 Lack of a proper
signature on the Notarial Deed granting the prospecting right; and
6.4 The deletion in the
Notarial Deed of the terms and conditions on which the prospecting
right was granted, thus rendering the
ambit of the right confusing
and uncertain.
[7]
NON-COMPLIANCE
WITH SECTION 16(4)(b)
7.1 Section 16(4)(b)
provides as follows as to the procedure to be followed by an
applicant when applying for a prospecting right:
“
6.4 If the regional manager
accepts the application the regional manager must within 14 days from
the day of acceptance notify the
applicant in writing
(a) ....
(b) to notify in writing and consult
with the land owner or lawful occupier and any other affected party
and submit the result
of the consultation within 30 days from the
date of notice.”
7.2 The purpose of this
is clear. The land owner must be informed of the fact that
application for a prospecting right over his
property has been made
in order to respond thereto.
7.3 To make this decision
the land owner should at least be given sufficient details of the
proposed prospecting activities including
the extent, nature and
locality thereof.
7.4 In the present matter
a letter in the following terms allegedly addressed by the fourth
respondent to the applicant is the notification
relied on. It reads
as follows:
“
IS: TOESTEMMING OM OP PLAAS
DIAMANT TE DELF
Hiermee doen ek aansoek om op u plaas
diamant te delf. Hoop dat die aansoek u goedgunstige oorweging sal
geniet. Indien u enige
navrae of reëlings het is u welkom om my
te kontak by die volgende selfoonnommer: 082 3036807.
Vriendelike groete.
Nzwandile Shwababa”
7.5 Assuming for the
moment that this letter was received by the applicant, a fact which
is strenuously denied by him, the notification
in any event falls
significantly short of what is required by section 16(4)(b). See
MEEPO
v KOTZE AND OTHERS
2008 (1) SA 104
(NC).
7.6 Nothing in this
letter serves to alert the reader thereof that an application for any
kind of right has been submitted to the
relevant authorities and no
particulars of the proposed prospecting or mining activities are
provided.
7.7 The fourth respondent
followed this up with a letter to the third respondent in the
following terms:
“
I hereby notify the Department
that the owner of the farm has not responded to a registered mail
send to him on 19 June 2008, copies
of correspondence are attached.
Hoping and trusting that my letter reaches your favourable
consideration. Yours truely.
M Shwababa.”
It is therefore clear
that no consultation as envisaged in the Act took place.
7.8 If the notification
letter does not comply with the said section the decision to approve
the application and the granting thereof
was based on incorrect
factual information and therefore incompetent in terms of section
17(2) (4) (a) of the MPRDA. This section
specifically provides that:
“
The Minister must refuse to
grant a prospecting right if the application does not meet all the
requirements referred to in the Act.”
7.9 The granting of the
prospecting right must therefore on this ground alone be reviewed and
set aside as the applicant seeks in
his notice of motion.
[8] Mr Van Niekerk, on
behalf of the applicant, however submitted in the alternative that
the granting of the prospecting right
falls to be set aside on the
further grounds set out in paragraph 3 supra. He made out a strong
argument that there was non-compliance
with the requirements of
section 10 of the MPRDA as well. (Paragraph 6.2 supra).There may also
be validity in the other two grounds
of review relied upon by Mr Van
Niekerk as set out in paragraph 6.3 and 6.4 supra. However, I do not
find it necessary to deal
with any of that as these grounds of review
during argument by counsel for both parties became somewhat
overshadowed and obscured
by what I shall term the real ground for
review as dealt with above. Anything which is said in regard to the
alternative grounds
of review would therefore be in the nature of
obiter dicta. I therefore decline the invitation on behalf of the
applicant to deal
with those submissions as well.
[9] It is necessary to
mention that the fourth respondent as applicant in an application
numbered 4072/2009 applied for an order
compelling the appellant (the
respondent in that application) to grant him unfettered access to the
farm Diamant in order to exercise
the granted prospecting right. In
response the applicant counter applied for an order that pending the
outcome of the present
application the fourth respondent be forbidden
to act in terms of the prospecting right. The counter application
was granted by
Jordaan
J
. Mr
Van Niekerk submits that the costs of that application should go
against the fourth respondent as the fourth respondent should
have
realised that he omitted to “consult” with the applicant
as his attitude was that it was not required of him.
I see no reason
why the costs of that application (4072/2009) should not follow the
outcome of the present application.
[10] Mr Van Niekerk asked
for an order of costs against first, second and third respondents
jointly and severely occasioned by the
present application. He
submitted that it was not sufficient for the first, second and third
respondents to merely obey the court’s
decision but that they
should have conceded the relief sought by the applicant. I do not
agree with that. The first, second and
third respondents’
attitude was not the cause that this matter developed into a fully
contested application. All of that
was brought about by the fourth
respondent’s opposition to the sought relief. However, at
least the costs of an unopposed
application were caused by the
irregular issue of the prospecting right.
[11] In the result, the
following order is made:
Paragraphs 1, 2 and 3
of the Notice of Motion are granted.
The fourth respondent
is ordered to pay the costs of this application as well as the costs
occasioned by application number 4072/2009.
The first, second and
third respondents are ordered to pay the costs of this application
jointly and severally with the fourth
respondent but on the basis of
an unopposed application only.
_____________
C. B. CILLIé
I concur.
_______________
B. C. MOCUMIE
On behalf of the
applicant: Adv. J G van Niekerk SC
Instructed by:
Lovius Block
BLOEMFONTEIN
On behalf of the
respondents: Adv. Grobler
Instructed by:
Kramer, Weihmann &
Joubert
BLOEMFONTEIN