Doe Run Exploration SA (Pty) Ltd and Others v Minister of Minerals and Energy and Others (499/07) [2008] ZANCHC 3 (8 February 2008)

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[2008] ZANCHC 3
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Doe Run Exploration SA (Pty) Ltd and Others v Minister of Minerals and Energy and Others (499/07) [2008] ZANCHC 3 (8 February 2008)

Reportable: Yes / No
Circulate to Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division)
Case
no: 499/07
Date
heard: 2007/12/13
Date
delivered: 2008/02/08
In
the matter of
:
DOE RUN EXPLORATION SA (PTY) LTD FIRST
APPLICANT
HENDRIK CHRISTIAAN BRITS SECOND APPLICANT
HENDRIK
CHRISTIAAN BRITS N.O. THIRD APPLICANT
JOHANNES
JACOBUS BRITS N.O. FOURTH APPLICANT
HELENA BRITS N.O. FIFTH APPLICANT
versus
MINISTER
OF MINERAL & ENERGY FIRST RESPONDENT
THE
REGIONAL MANAGER: MINERALS & ENERGY:
NORTHERN CAPE SECOND
RESPONDENT
THE
DEPUTY DIRECTOR GENERAL:
MINERAL REGULATION THIRD RESPONDENT
SAMBER
TRADING 103 (PTY) LTD FOURTH RESPONDENT
Coram:
MAJIEDT
J
et
OLIVIER
J
JUDGEMENT
MAJIEDT J:
INTRODUCTION
AND RELIEF SOUGHT
This is a review
application which relates to prospecting rights on four different
properties, but which was brought in one application
for the sake of
convenience. I intend adopting in this judgment the
modus
operandi
employed
by both counsel, namely Mr Van Heerden (assisted by Ms Smit) for the
Applicants and Ms Nkosi-Thomas for the Respondents,
namely to
adjudicate the application by separate reference to the various
properties.
In their Amended
Notice of Motion (amended further during argument and not opposed by
the Respondents), the Applicants seek the
following relief (my
translation):
“
PART A:
That
the First and Second Applicants be exempted from compliance with
the requirements set forth in s7(2)(a) of Act 3 of 2000
and s96(3)
of Act 28 of 2002.
That
the decision of the Deputy Director-General, Mineral Regulation, to
grant a prospecting right for copper, lead and zinc,
dated 14
December 2006, Protocol No 1483/2006 with Registration Number
95/2007, to Samber Trading 103 (Pty) Ltd with regard to
the farm
Glencard 525, district Hay, Northern Cape Province (“
Glencard
”),
be reviewed and set aside and that the said prospecting right be
declared invalid.
That
the First, Second and Third Respondents be ordered to process and
to finalise the application of the First Applicant dated
15
December 2005 for a prospecting right, in terms of s17 of the
Mineral and Petroleum Resources Development Act, 28 of 2002
(“
the
Act
”)
for copper, lead, zinc and silver with regard to Glencard, within
30 days of the issuing of an order.
That
the First, Second and Third Respondents be ordered to pay the costs
of the First and Second Applicants with regard to pars
1.1, 1.2 and
1.3 of the application, jointly and severally, including the costs
of two counsel.
PART B:
That
the First, Second, Third, Fourth and Fifth Applicants be exempted
from compliance with the requirements set forth in s7(2)(a)
of Act
3 of 2000 and s96(3) of Act 28 of 2002.
That
the decision of the Deputy Director-General, Mineral Regulation,
dated 14 December 2006, Protocol 1483/2006 with Registration
Number
95/2007, to grant a prospecting right for copper, lead and zinc to
Samber Trading 103 (Pty) Ltd, with regard to the remainder
and
portion 1 of the farm Bushy Park No 556, District Hay, Northern
Cape Province (“
Bushy
Park
”)
be reviewed and set aside and that the said prospecting right be
declared invalid.
That the decision of the First, Second and
Third Respondents to refuse the application of the First Applicant
for a prospecting
right in terms of s17 of the Act for copper,
lead, zinc and silver with regard to Bushy Park, be reviewed and
set aside.
That the First, Second and Third Respondents be
ordered to grant the application of the First Applicant dated 15
December 2005,
for a prospecting right in terms of s17 of the Act
for copper, lead, zinc and silver with regard to Bushy Park, within
30 days
of the issuing of an order.
That the First, Second and Third Respondents be
ordered to pay the costs of the First, Second, Third, Fourth and
Fifth Applicants
with regard to pars 2.1, 2.2., 2.3 and 2.4 of the
application, jointly and severally, including the costs of two
counsel.
PART C:
That
the First Applicant be exempted from compliance with the
requirements set forth in s7(2)(a) of Act 3 of 2000 and s96(3) of
Act 28 of 2002.
That
the First, Second and Third Respondents be ordered to process and
finalise the application of the Applicant dated 15 December
2005
for a prospecting right in terms of s17 of the Act for copper,
lead, zinc and silver with regard to the remainder as well
as
portions 1 and 2 of Farm No 44, District Hay, Northern Cape
Province, within 30 days of issuing of the order.
That
the First, Second and Third Respondents be ordered to pay the costs
of the First Applicant with regard to pars 3.1 and 3.2
of the
application, jointly and severally, including the costs of two
counsel.
PART D:
4.1 That the First Applicant
be exempted from compliance with the requirements set forth in
s7(2)(a) of Act 3 of 2000 and s96(3) of
Act 28 of 2002.
4.2 That
the application (namely, that the decision of the Deputy
Director-General, Mineral Regulation to grant a prospecting right
to
a Third party with regard to portion 1 of the farm Rockwood No 555
and portion 2 Annex Vreemdelingsrust No 563, District Hay,
Northern
Cape Province, be reviewed and set aside), be postponed
sine
die
and that
costs be reserved.
4.3 That
the First, Second and Third Respondents be ordered to process and
finalise the application of the First Applicant dated 15
December
2005 for a prospecting right in terms of s17 of the Act for copper,
lead, zinc and silver with regard to portion 1 of the
farm Rockwood
No 555 and portion 2 Annex, Vreemdelingsrust No 563, District Hay,
Northern Cape Province, within 30 days of the issuing
of an order.
4.4 That
the First, Second and Third Respondents be ordered to pay the costs
of the First Applicant with regard to pars 4.1 and 4.3
of the
application jointly and severally, including the costs of two
counsel."
In this judgment
the different properties relating to the relief sought in the
Amended Notice of Motion will be referred to as follows:
Part A of the
Amended Notice of Motion – “Glencard”
Part B thereof – “Bushy Park”
Part C thereof – “Farm 44”
Part D thereof – “Rockwood”.
DESCRIPTION OF
THE PARTIES
The First
Applicant, a registered South African mining exploration company, is
a subsidiary of the Doe Run Resources Corporation
of the USA. I
shall refer to the First Applicant herein simply as
“Doe
Run
”.
The Second
Applicant is the owner and occupier of the Glencard Farm and he also
farms on Bushy Park, which in turn is owned by a
Trust, the trustees
whereof are Third, Fourth and Fifth Applicants and who have been
cited in the said capacity.
The First
Respondent represents the State as custodian of the country’s
mineral and petroleum resources and is vested in that
capacity with
the power to grant, issue, refuse, control, administer and manage
various permits relating, for the present purposes,
to mining (s3(2)
of the Act).
The Second and
Third Respondents are officials of the Department of Mineral and
Energy. As their titles describe, the Second Respondent
manages
the Department’s operations in the Northern Cape Province and the
Third Respondent heads the mineral regulation section
of the
Department’s Head Office.
The Fifth
Respondent is a registered South African company with a direct and
material interest in the matter, since a prospecting
permit had been
issued to it in respect of the Glencard and Bushy Park properties.
BACKGROUND FACTS
The facts are
mostly common cause between the parties and I summarise same
accordingly:
9.1 Doe Run has
conducted extensive operations in South Africa since approximately
1995. These operations entailed prospecting activities
on
approximately fifteen farms in the Griqua Town area to determine
whether there are viable deposits of copper, lead, zinc and silver.

These operations were conducted under,
inter
alia,
prospecting
permits PP 59/2000 and PP 56/2000 on the same farms which
form the subject matter of this review application
(i.e. Parts A-D of
the Amended Notice of Motion set forth above). An amount of more
than R50 million is said to have been spent
on such prospecting
activities. A feasibility study was compiled and handed in to the
Department of Mineral and Energy, in which
4.5 million ton ore was
identified plus a further reserve of approximately 6 million ton in
respect of the abovementioned minerals.
Doe Run applied
for a prospecting right in terms of the provisions of the Act in
respect of 16 farms, but this was declined on
14 September 2005.
On 15 December 2005 Doe Run again applied for prospecting rights
with regard to copper, lead, zinc and silver
in respect of the 16
farms on which it had been prospecting as aforementioned.
On 12 October
2006 Doe Run was informed by the Second Respondent that its
application had been granted in respect of 9 of the
farms. Nothing
was mentioned about the other 7 farms applied for and enquiries
were directed to the Department in this regard
on 1 November 2006
and 3 November 2006. Subsequently a meeting was also held on 20
November 2006 by Doe Run’s representatives
with the Department in
Kimberley.
The present application was
launched on 10 May 2007 and it was served on all the Respondents on
15 May 2007.
The First,
Second and Third Respondents oppose the relief sought, save in
respect of Part C of the Amended Notice of Motion,
supra
.
THE ISSUES
As can be seen
from the terms of the Amended Notice of Motion,
supra
,
the Applicants seek the review and setting aside of decisions in
respect of Glencard and Bushy Park as well as a
mandamus
in
respect of each of these properties in Parts A and B of the Amended
Notice of Motion. With regard to Part C, the Applicants simply
ask
for a
mandamus
in
respect of Farm 44 (the relief sought herein has been conceded by
the Respondents). In respect of Part D, relating to the farms
Rockwood and Vreemdelingsrust, the Applicants ask that their
application for review be postponed
sine
die
and
they proceed only with relief sought in respect of a
mandamus
with
regard to these two properties. Furthermore, in all four parts of
the Amended Notice of Motion, the Applicants seek an order
for an
exemption from the requirements contained in s7(2)(a) of Act 3 of
2000 and s96(3) of Act 28 of 2002 as well as costs orders,
including
the costs of two counsel.
For ease of
reference I refer in this judgment to the First, Second and Third
Respondents as “
the
Respondents”
.
They have raised a number of points
in
limine
.
The Fourth Respondent does not oppose the relief sought and has not
filed any papers in this application.
The points in
limine
are
the following:
That the
Applicants have failed to institute their review application within
the 180 day period required in s7(1) of the Promotion
of
Administrative Justice Act, 3 of 2000 (“
PAJA”
).
That the Applicants have failed to
exhaust the internal remedies set forth in s96 of the Act.
That the Applicants should have
joined Rockwood (Pty) Ltd which has a prospecting right in respect
of the farms Rockwood and Vreemdelingsrust,
referred to in Part D of
the Amended Notice of Motion and therefore has a direct and material
interest in the proceedings.
During the
hearing we called upon the parties to address the third point
in
limine,
namely
the non-joinder of Rockwood (Pty) Ltd, first because we had taken
the view that this may necessitate a postponement of the
matter,
should we form the view that Rockwood (Pty) Ltd should indeed have
been joined by the Applicants. I propose adopting the
same approach
and will make a finding on this aspect first.
NON-JOINDER
OF ROCKWOOD (PTY) LTD
It has been
argued on behalf of the Respondents that Rockwood (Pty) Ltd has a
direct and substantial interest in this review application,
by
virtue of it having been awarded a prospecting right in respect of
the relevant properties (Rockwood 555 and Vreemdelingsrust
563).
On 8 February
2006 the Second Respondent advised Rockwood (Pty) Ltd in writing
that its application for a prospecting right in respect
of the
remainder and portion 1 of Farm 555 (Rockwood) and portion 2 of the
Farm Annex Vreemdelingsrust 563 had been awarded for
unspecified
minerals. It is important to note that this grant was conditional
and that it was recorded as follows by the Second
Respondent in the
aforementioned notice of grant:
“
Please
note that the right has been granted on the condition that you
fulfil
the following requirements prior to execution:
In terms of s17(4) of the Act you are required
to provide BEE shareholding of not less that 51%;
Specify the mineral applied for.”
In the concluding paragraph of the
said communication to Rockwood (Pty) Ltd, the Second Respondent
recorded as follows:
“……
in
terms of s19(2)
(b)
of the Act, prospecting activities must commence within 120 days from
the date in which the prospecting right comes into effect,
a failure
of which the Minister may cancel such right in terms of s47 of the
MPRDA”.
On behalf of the
Applicants, Mr Van Heerden submitted that, due to the fact that the
prospecting right was not executed in a notarial
deed between the
parties, no right had in fact been conferred on Rockwood (Pty) Ltd.
It is common cause that no execution had
taken place in the form of
a notarial deed between Rockwood (Pty) Ltd and the Minister or her
representatives.
The Respondents
have attached to their papers as annexures, firstly a power of
attorney in favour of Rockwood (Pty) Ltd in respect
of the relevant
properties signed by the Third Respondent and dated 7 December 2005.
This power of attorney authorises the Second
Respondent to sign a
prospecting right contemplated in terms of s17(1) of the Act in
favour of Rockwood (Pty) Ltd in respect of
the relevant properties.
Pursuant to this power of attorney, the letter of grant referred to
in the preceding paragraph was issued
by the Second Respondent to
Rockwood (Pty) Ltd on 8 February 2006. A further annexure attached
by the Respondents to their answering
affidavit is an unsigned
notarial deed for a prospecting right. This document was clearly
intended to be the notarial deed in
execution of the prospecting
right granted to Rockwood (Pty) Ltd. It is, as I have stated,
however, unsigned. Although the document
is unsigned, the following
terms thereof are of some significance:
In the
definitions part of the deed, “
minerals”
is
stated to be “
as
defined in the Act and specifically in relation to this means Zinc
and associated base minerals”
.
The commencement date of the
prospecting right and the duration thereof was not specified in the
deed.
Mr Van Heerden
has argued that since Rockwood (Pty) Ltd has no existing prospecting
right, it does not have a direct and substantial
interest in the
matter. This submission was made, notwithstanding the fact that
both in the Supplementary Affidavit on behalf
of the Applicants
(filed after production of the record by the Respondents as required
in Rule 53(1)(b)) and in the Replying Affidavit,
the Applicants had
stated their intention to join Rockwood (Pty) Ltd as a party to the
proceedings. Mr Van Heerden’s explanation
in this regard was that
upon proper perusal of the documentation so discovered, it became
apparent to the Applicants that Rockwood
(Pty) Ltd had in fact not
obtained a right, due to the fact that the notarial deed for the
prospecting right had not been signed
by the parties and that
joinder was therefore not necessary in the circumstances.
Mr Van Heerden
relied strongly on the decision of this Court in the matter of
Sechaba
v Kotze and others
[2007] 4 All SA 811
(NC).
In that matter Lacock J and Olivier J were called upon to consider,
inter
alia,
when exactly the prospecting right had been granted to the Applicant
in that matter as contemplated in the Act. The submission
was made
in that case on behalf of the Applicant and the Third and Fourth
Respondents (the Minister and the Department) that the
prospecting
right had been conferred on the Applicants when the Deputy
Director-General for Mineral Regulation had approved and
signed the
recommendation for the grant of the right. It was also submitted by
the said parties that the signing by the Regional
Manager of the
Northern Cape of a notarial deed for a prospecting right thereafter,
merely amounted to an administrative formality
whereby the grant of
the right by the Deputy Director-General was confirmed and
formalised. The learned Judges expressly rejected
this contention
and held that the Deputy Director-General had merely approved a
recommendation to grant a prospecting right to
the Applicant at a
future date for a period of two years, subject to terms and
conditions which still had to be determined. The
learned Judges
held further that the Applicant had in fact not acquired any rights
as a holder of prospecting right at the time
of approval of the
aforementioned recommendations by the Deputy Director-General and
before any terms or conditions in respect
of the prospecting right
as well as the period of its validity had been determined. At par
46.3 (830 b-c), the learned Judges
held as follows:
“
The right can only be granted once the terms
and conditions had been determined and communicated to an applicant
for his acceptance.
…………… This was done in this matter when
the notarial deed referred to above was executed by the Regional
Manager and the
representative of (the Applicant)”.”
Ms Nkosi-Thomas
had not argued before us that the
Sechaba
v Kotze
matter was wrongly decided, and correctly so. I am of the view that
the learned Judges were correct in their finding for the reasons
mentioned in that judgment. In the present matter, the power of
attorney issued by the Third Respondent in favour of Rockwood
(Pty)
Ltd and referred to hereinabove, dated 7 December 2005, was
accompanied by a recommendation signed by the said Third Respondent.
That recommendation was worded as follows:
“
a) Granting a prospecting right to Rockwood
(Pty) Ltd for base minerals only in accordance with s17(1) of the Act
for a period of
two years subject to terms and conditions as may be
determined.
b) Granting permission to
Rockwood (Pty) Ltd to remove and dispose of s20(2) of the Act for
such holder’s own account.
c) Signing
the attached power of attorney, authorising the Regional Manager,
Northern Cape Region, to sign a prospecting right contemplated
in
terms of s17(1) of the Act in favour of Rockwood (Pty) Ltd.”
From the
aforegoing it will be observed that the facts of this case are
similar to those in the
Sechaba
v Kotze
matter with regard to this particular aspect under discussion. Here
too, the recommendation (and the subsequent power of attorney)
was
to the effect that a prospecting right was to be granted for a
period of two years
subject
to terms and conditions to be determined.
In
my view it cannot be said that this conferred a right to prospect on
Rockwood (Pty) Ltd. Such right, as was correctly held in
Sechaba
v Kotze
,
supra
,
was to be conferred at the time when the conditions and terms as
well as the period of validity were formally determined by way
of a
notarially executed deed between the Minister (or her
representatives) and Rockwood (Pty) Ltd. Since this has never
occurred,
no right has in fact come into existence.
Mr Van Heerden
has also drawn our attention to another matter which creates some
difficulty for the Respondents in respect of this
non-joinder
argument. In the recommendation approved by the Third Respondent,
referred to above, the prospecting right granted
was for base
minerals. In the unsigned notarial deed relating to this power of
attorney, however, the minerals were described
as “
zinc
and associated base minerals
”.
The notice to Rockwood (Pty) Ltd by the Second Respondent, dated 8
February 2006, however, refers to “
unspecified
minerals”
.
It will be recalled that this particular communication set out
certain conditions which still had to be met, one of which was
that
the mineral applied for had to be specified. Mr Van Heerden is
correct in pointing out firstly that the present Act does
not
contain anything like “
base
minerals
”
in its definitions clause, nor did it appear in the 1991 Minerals
Act. The description of “
base
minerals
”
did appear in the 1967 Act which was of course repealed by the 1991
Minerals Act. The second point that he correctly raised
was that
the nature of the minerals with regard to these two properties
(Rockwood and Vreemdelingsrust) and the right awarded to
Rockwood
(Pty) Ltd, changed continuously as is clear from the aforementioned
exposition of the facts. Furthermore, Mr Van Heerden
is correct
when he submits that the two year period mentioned in the
recommendation and in the power of attorney, may well have
lapsed by
now.
In summary
therefore, following on the decision in
Sechaba
v Kotze
,
supra
,
where this point was pertinently decided by this Court, I hold that
no right had been conferred in Rockwood (Pty) Ltd and that
consequently, it has no direct and substantial interest in this
review application at this stage, which would have required it
to
have been joined in these proceedings. It must be borne in mind
that at this juncture, the Applicants merely seek a postponement
of
the review part of their application in respect of Rockwood and
Vreemdelingsrust (Part D of the Amended Notice of Motion) and
only
ask for relief with regard to the
mandamus
part
thereof. Consequently I am of the view that the point
in
limine
regarding the non-joinder of Rockwood (Pty) Ltd has no merit and it
ought to be dismissed.
SECOND POINT IN
LIMINE: SECTION 7(1) OF PAJA
Sections 7(1) and 7(2) of PAJA
reads as follows:
“
(1)
Any
proceedings for judicial review in terms of section 6 (1) must be
instituted without unreasonable delay and not later than 180
days
after the date-
(a) subject to subsection (2)(c), on which any
proceedings instituted in terms of internal remedies as contemplated
in subsection
(2)(a) have been concluded; or
(b) where no such remedies exist, on which the
person concerned was informed of the administrative action, became
aware of the action
and the reasons for it or might reasonably have
been expected to have become aware of the action and the reasons.
(2)(a) Subject to paragraph
(c), no court or tribunal shall review an administrative action in
terms of this Act unless any internal
remedy provided for in any
other law has first been exhausted.
(b) Subject
to paragraph (c), a court or tribunal must, if it is not satisfied
that any internal remedy referred to in paragraph (a)
has been
exhausted, direct that the person concerned must first exhaust such
remedy before instituting proceedings in a court or
tribunal for
judicial review in terms of this Act.
(c) A
court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from the
obligation to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice.”
Section 17(3) of
the Act provides that in the event that the Minister refuses to
grant a prospecting right, the Minister must, within
30 days of the
decision, in writing notify the Applicant of the decision with
accompanying reasons. The Respondents have not been
able to show,
either on their papers, or in their written and oral argument, where
such a decision had been communicated in writing
by the Minister to
the Applicants in respect of the properties. It will be recalled
that the Applicants had been advised of the
successful outcome of
their applications in respect of nine of the sixteen properties
applied for. Certain correspondence then
followed to enquire about
the other seven properties not mentioned by the Department. It
seems to me that the Respondents’ case
is that the 180-day period
referred to in s7(1) of PAJA is to be reckoned from the date of the
communication in respect of the
nine properties. This contention
cannot be correct. In the subsequent communications, it was
expressly enquired on behalf of
the Applicants whether the corollary
of the said communication is to be understood to mean that the
Applicants have been unsuccessful
with regard to the applications in
respect of the other seven properties. A meeting was also held on
15 November 2006 with the
Department to obtain clarity in this
regard. Thereafter the Applicants received a letter from the
Department, dated 21 November
2006, in terms whereof the Department
gave notice of the excluded areas in respect of the prospecting
right application. In a
further letter dated 7 December 2006 the
Applicants’ attorneys specifically enquired whether the
aforementioned letter of 21
November 2006 is to be regarded as a
notice of refusal of the Applicants’ application in respect of
those properties which the
Department has not made mention of in its
earlier letter. No response was forthcoming in respect of this
letter. Consequently,
if the period of 180 days is to be determined
from the date of this letter, namely 7 December 2006 (as I believe
it should), a
period of 159 days had expired when these review
proceedings before us had been instituted. Even if the period is to
be determined
from the date of the meeting, being 15 November 2006,
the application still falls within the 180 day period set forth in
s7(1)
of PAJA. It therefore follows that there is no merit
whatsoever in this point
in
limine
and
it ought to be dismissed.
THIRD POINT IN
LIMINE: FAILURE TO EXHAUST INTERNAL REMEDIES
Ms Nkosi-Thomas
has not pursued this point
in
limine
at
all during oral argument. This approach is well founded. I am of
the view that there is absolutely no merit in this particular
point
in
limine
either.
Mr Van Heerden has relied strongly on two as yet unreported
decisions of the Free State Division, but given the view
that we
have taken on this particular matter and in view of the fact that
the Respondents appeared to have by implication abandoned
this
point, correctly so, I do not deem it necessary to deal with these
judgments at all. In any event I am of the view that there
are more
than sufficient grounds for exemption under s7 of PAJA from the 180
day requirement. Consequently this third point
ln
limine
is
also dismissed.
Having disposed
of the points
in
limine,
I
now turn to a discussion of the merits of the review application and
the contentions advanced by the Applicants. For the sake
of
convenience I deal with Parts C and D of the Amended Notice of
Motion first and thereafter with Parts A and B thereof.
PART C OF THE
AMENDED NOTICE OF MOTION: FARM 44
It will be
recalled that the Respondents have conceded the relief sought in
this part of the Amended Notice of Motion. According
to the First
Applicant it had first become aware of the fact that the Third
Respondent had approved its application in respect
of Farm 44
on 14 September 2006 already, once the record of the decision had
been produced in terms of Rule 53. Prior
to this the existence
of this decision had never been communicated to the First Applicant.
It is of some moment, furthermore,
to have regard to the fact that
the said record of the decision was only produced by the Respondents
under threat of a contempt
application to this Court. Eventually
the said record was made available on 16 August 2007. It was only
on this aforementioned
date that the First Applicant became aware
that it had been successful in its application in respect of
Farm 44. All that
remains to be considered is the matter of
costs. Ms Nkosi-Thomas has, without much vigour it must be said,
submitted that the
Applicants are entitled to their costs only up
until the stage when the concession in respect of Farm 44 was made
by the Respondents
in the answering affidavit. I am of the view Mr
Van Heerden is correct in his submission that this would be
inequitable and unfair
towards the Applicants, given the fact that
they had to approach this Court to seek the necessary relief. I am
of the view that,
in the exercise of our discretion, costs should be
awarded to the Applicants, including the costs subsequent to the
filing of the
answering affidavits of the Respondents. In the
premises the Applicants are entitled to the relief sought in Part C
of the Amended
Notice of Motion.
PART D OF THE
AMENDED NOTICE OF MOTION: ROCKWOOD
The Applicants
merely ask for the postponement
sine
die
of
the relief in which they had sought the review and setting aside of
a decision by the Respondents. Since, as I have already found
in
this judgment, no right has been conferred on Rockwood (Pty) Ltd as
yet, or to any other party for that matter, the Applicants
have
adopted the approach of seeking a postponement
sine
die
for
this relief. The Respondents do not oppose this, nor has Ms
Nkosi-Thomas during argument indicated that she is opposed to this
course of action being adopted. I have, however, taken a slightly
different view of the matter. It seems to me that, in the event
that we dispose of this matter finally as is the case here, we
should not make any order for postponement of that part of the

application. In the event that a decision is made by the
Respondents and if that decision does not favour the Applicants,
nothing
precludes them from taking such new decision on review. In
my view, therefore, we should make no order on the review portion of
Part D of the Amended Notice of Motion.
The First
Applicant had submitted an application with the Respondents, which
application was dated 15 December 2005 for a prospecting
right in
terms of s17 of the Act for copper, lead, zinc and silver with
regard to Rockwood and Vreemdelingsrust. This application
has not
been processed, nor has the outcome thereof been conveyed to the
Applicants. In the premises I am of the view that the
Applicants’
prayer for a
mandamus
in
this regard should be granted. The Respondents do not appear to
oppose this relief, nor has any submissions been made by Ms
Nkosi-Thomas in this regard. The Applicants are therefore entitled
to the
mandamus
and
a costs order in Part D of the Amended Notice of Motion.
PART A AND B OF THE
AMENDED NOTICE OF MOTION: GLENCARD AND BUSHY PARK
These two
properties can conveniently be discussed together, since the facts
and the law applicable to the review application in
respect of
these two properties are similar. The First Applicant had applied
on 15 December 2005 for prospecting rights in terms
of s17 of the
Act in respect of copper, lead, zinc and silver, in respect of
Glencard and Bushy Park. As I have indicated earlier
in this
judgment, extensive prospecting work had been done in respect of
these minerals on the said farms prior to this application
being
made. On 12 October 2006 the Second Respondent informed the
First Applicant that a number of its applications had been
granted,
but that Glencard was excluded. Certain enquiries followed and
thereafter it became apparent that the Second Respondent
had
approved the application of the Fourth Respondent (hereinafter
referred to as “
Samber
”)
already on 24 October 2006. Pursuant to this, on 14 December 2006,
Samber and the Third Respondent concluded a notarial deed
in respect
of a prospecting right which was registered under No 95/2007. This
right was granted in terms of a power of attorney
dated 15 August
2006 and it was granted for silver, lead and zinc with regard to
Glencard.
The applications
of the First Applicant and Samber were made on the same date, namely
15 December 2005.
The facts set our hereinabove
relating to Glencard apply equally with regard to the Bushy Park
property. In respect of the latter,
Samber was also the successful
applicant, having concluded a notarial deed in relation to its
prospecting right on 14 December
2006.
First Applicant
has attacked the decision on various grounds. I now deal with these
seriatim
.
The first review
ground advanced by the Applicants in respect of Glencard and Bushy
Park, is that, in reliance upon s16(4) of the
Act, Samber had failed
to notify the Second Applicant, as owner and occupier of Glencard,
of Samber’s application for a prospecting
right and to consult
with Second Applicant in that regard. In respect of Bushy Park, it
is contended that Samber had similarly
failed to notify and consult
the Second Applicant as occupier and the Third, Fourth and Fifth
Applicants as owners (in their capacities
as trustees) of Bushy
Park. This failure, so the Applicants contend, is in contravention
of s6(2)(b) of PAJA.
Section 16(4) of the Act provides
as follows:
“
(4) If the Regional Manager
accepts the application, the Regional Manager must, within 14 days
from the date of acceptance, notify
the applicant in writing-
(a) to submit an environmental management plan;
and
(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 the
notice.”
In terms of
s16(5) of the Act, the Regional Manager (i.e. the Second Respondent
in the present matter) must, upon receipt of the information
referred
to in subsection 4(a) and (b), forward the application to the
Minister for consideration.
Samber was
advised by the Department that there are existing applications with
regard to Glencard on 15 December 2005. I have no
doubt that this
could only have referred to the First Applicant’s application in
respect of Glencard. The First Applicant was
undoubtedly therefore
an affected party within the meaning of s16(4) of the Act, quoted
above. Notice and consultation in terms
of the said provisions by
Samber with the First Applicant in respect of the Glencard
application was therefore imperative. The
position is the same in
respect of the Bushy Park property with regard to notice and
consultation with the Applicants by Samber.
The Respondents
rely on an averment by the Second Respondent that there had been
consultations with interested and affected parties.
No proof thereof
was submitted in the papers before us. In the submission prepared
by the Second Respondent to the Third Respondent
for approval in
respect of both Bushy Park and Glencard, the Second Respondent
reported to the Third Respondent that “
Notification
and consultation with interested and affected parties have taken
place. No objection has been raised in respect of
the application
”.
This is a bald statement, not supported, as I have stated, by any
evidence on the papers before us. The main answering affidavit
on
behalf of the Respondents, deposed to by a person acting in the
position of the Third Respondent, merely made reference to the
fact
that in the aforementioned submission prepared by the Second
Respondent, the latter had reported that notification and
consultation
with interested and affected parties had indeed taken
place. In the supporting affidavit on behalf of the Respondents,
the Second
Respondent merely confirmed in general terms, the
averments contained in the main answering affidavit which relate to
him. This
is clearly inadequate as regards proof of compliance with
the provisions of s16(4) read with s16(5) of the Act.
To conclude, I
find that there has not been any compliance with the provisions
contained in s16(4) and s16(5) of the Act and that
therefore there
had not been compliance with s6(2)(b) of PAJA which reads as
follows:
“
a mandatory and material
procedure or condition prescribed by an empowering provision was not
complied with;”
See in this regard:
De Beers
Consolidated Mines Ltd v Mondira Pula Diamonds CC and others,
unreported
judgment, Northern Cape Division (Lacock J
et
Olivier
J), case no 496/04, delivered on 13 May 2005, at page 23 (par 43).
In her written
heads of argument on behalf of the Respondents, Ms Nkosi-Thomas had
advanced the submission that strict compliance
with the provisions
contained in s16(4) and s16(5) is not required. She submitted that
substantial compliance therewith would
suffice in the circumstances.
For this submission she relied,
inter
alia
,
on the following:
Cora Hoexter,
Administrative
Law in South Africa
,
at 261 par D.
Stadsraad
van Vanderbijlpark v Administrateur, Transvaal and others 1982(3)
SA 166
(T)
at 191-193;
Maharaj
v Rampersad 1964(4) SA 638 (A)
at 646 C-E;
Weenen
Transitional Local Council v Van Dyk 2002(4) SA 653 (SCA)
;
African
Christian Democratic Party v Electoral Commission and others
2006(3) SA 305 (CC)
at par 25.
The
aforementioned authorities are either distinguishable on the facts
and/or the law or do not support the contention advanced
by Ms
Nkosi-Thomas at all. During argument, wisely so, Ms Nkosi-Thomas
abandoned these submissions. The cases of
Stadsraad
van Vanderbijlpark v Administrateur, Transvaal and others
and
Maharaj
v Rampersad
,
dealt with the distinction between peremptory and discretionary
statutory provisions. In the said cases the respective courts
found
that, based on the facts in those matters, the statutory provisions
not complied with were merely directory in nature and
that
substantial compliance therewith was consequently sufficient. In
the present instance, in my view, the provisions of s16(4)
and
s16(5) are peremptory and the use of the word “
must
”
is significant. Notification and consultation with affected parties
and the owner and occupiers of land is in my view peremptory
and
strict compliance therewith is required, for reasons which speak for
themselves. Interested and affected parties, land owners
and
occupiers of land, in respect of which a right has been issued to
prospect for minerals, quite clearly need to be made aware
of an
application and consultations need to follow so as to protect the
rights of such interested/affected parties/landowners/occupiers.

During argument, Ms Nkosi-Thomas, correctly so, conceded that this
must
be the case.
The
Weenen
Transitional Local Council v Van Dyk
and
African
Christian Democratic Party v Electoral Commission and others
cases,
referred to during argument, are not in point at all and merely
contain
obiter
dictae
with respect to the differentiation between mandatory and directory
provisions and strict or substantial compliance. The last
mentioned
case also deals with the purposive approach with regard to
compliance with statutory provisions.
There is a further, compelling
reason why strict compliance with the said provisions is required.
Section 105 of the Act provides
as follows:
“
105 Landowner or lawful
occupier of land cannot be traced
(1) If the applicant for a
right, permit or permission, who must notify and consult with the
landowner of [sic] lawful occupier of
the land to which the
application relates in terms of the relevant provisions of this Act,
notify the Regional Manager that, the
landowner or lawful occupier of
the land concerned-
a) cannot be readily traced; or
(b) is deceased and no successor entitled can be
readily traced.
(2) Notwithstanding any other
law, the Regional Manager, on application in writing from such
applicant and on payment of the prescribed
application fee, may-
(a) grant consent to such a person to install a
notice on a visible place on the land and enter the land to which the
application
relates to; and
(b) subject
such a person to such other terms and conditions as the Regional
Manager may determine.
This section can
hardly be described as an epitome of exemplary draftsmanship, but
some sense can be made of it through careful and
imaginative reading
(cf Joubert, LAWSA, 2
nd
Edition, Vol 18 at par 118, footnote 10 ([p171]). None of
the steps envisaged in s105 had been taken by Samber if their
case is
that the landowner/s or lawful occupier/s could not be traced. Some
argument was directed along these lines by Ms Nkosi-Thomas
on this
aspect, namely that none of the Applicants resided on either Glencard
or Bushy Park. During the course of her argument,
however, when the
provisions of s105 were drawn to her attention, she promptly threw in
the towel.
In the premises, this is a further
reason why the argument of substantial compliance cannot be upheld.
Lastly, I must
deal with the submission on behalf of the Respondents, made by Ms
Nkosi-Thomas, that if we were to find there had
not been compliance,
an inquiry must follow whether the Applicants had suffered any
prejudice flowing from the said non-compliance.
In this regard she
relied on
Manong
and Associates v Director General, Department of Public Works
[2004]
1 All SA 673
(C)
at
685 a-b. This case is also distinguishable on the facts and the
law. It concerned a review application in which the applicant
had
challenged the appointment of the third respondent as a consultant
engineer to the first respondent. Davis J dismissed the
application,
inter
alia
by
reason of the fact that the applicant was unable to show how he had
been prejudiced by the appointment of the third respondent
or which
of his rights had been adversely affected by such appointment. In
my view prejudice does not feature at all in a consideration
on
review of a decision concerning the allocation of rights under the
Act, where s16(4) and s16(5), which I have already found
to be
peremptory in nature, have not been complied with. Consequently
this contention can also not be upheld.
In the premises therefore the
review ought to succeed on this first ground alone. This disposes
of the matter, but I deem it necessary
for the sake of completeness
to consider one further ground of review advanced by the Applicants.
That is the fifth ground for
review advanced in the Applicants’
papers namely non-compliance with s9(1)(a) of the Act.
Section 9(1)(a) reads as follows:
“
9 Order of processing of
applications
(1) If a Regional Manager receives more than one
application for a prospecting right, a mining right or a mining
permit, as the case
may be, in respect of the same mineral and land,
applications received on-
(a) the same day must be regarded as having been
received at the same time and must be dealt with in accordance with
subsection (2).”
Section 9(2) provides that:
“
When the Minister considers
applications received on the same date he or she must give preference
to applications from historically
disadvantaged persons. “
It is common
cause that the applications of Samber and the Applicants were both
submitted to the Department on 15 December 2005.
The applications
which related to the same minerals, namely, lead, zinc and silver,
had to be dealt with simultaneously, evaluated
together and the best
one had to be selected bearing in mind the provisions of s9(2)
above. The Respondents have conceded that
this was not done.
During argument and in the papers, an
ex
post facto
evaluation
was sought to be undertaken by the Respondents and a bald averment
was made that in any event, Samber’s application
was better than
that of the Applicants and would have been the preferred one. Such
an approach is untenable in law. There was
a duty on the Second
Respondent to advise the Applicants of Samber’s application so
that the Applicants could lodge an objection
should they wish to do
so (s10(2) of the Act). Consequently the non-compliance with
s9(1)(a) is also fatal to the Respondents’
case.
It is not
necessary to deal with the further grounds of review advanced by the
Applicants. It would suffice to state at this juncture
that the
delegation argument proffered by the Applicants in respect of the
delegation by the First Respondent to the Third Respondent
(which
was challenged) and that of the Third Respondent to the Second
Respondent (based on the decision of
Sechaba
v Kotze,
supra
)
has considerable merit in my
prima
facie
view
of the matter.
The review
application in respect of Parts A and B of the Amended Notice of
Motion must consequently succeed and the
mandamus
part
thereof should also in my view be granted. In the case of Part A,
Glencard, the Applicants merely seek an order that their
application
should be processed within 30 days of an order herein. In respect
of Bushy Park, however, the Applicants seek an order
in paragraph
2.4 of their Amended Notice of Motion that the Respondents be
ordered to grant their application. Ms Nkosi-Thomas
has not opposed
this form of relief, should we hold for the Applicants in respect of
their contentions. I am of the view that
the Applicants are
entitled to this order, given the fact that they have applied
already on 15 December 2005 for prospecting rights
in respect of
copper, lead, zinc and silver in respect of Bushy Park and given the
fact that that application had been refused.
CONCLUSION
In summary:
The Respondents’ contention that
Rockwood (Pty) Ltd should have been joined as a party to these
proceedings is rejected.
The various
points
in
limine
raised
by the Respondents are dismissed.
The Applicants are entitled to the
relief sought in the Amended Notice of Motion, save and except the
relief in Part D which relates
to the review of the decision in
respect of the Rockwood property.
It is necessary
that I comment on a disturbing aspect of this case.
A lamentable
trend has developed in cases of this nature, i.e. concerning the
issuing of rights under the Act, that very lengthy
delays are
experienced by applicants to have their applications finalised by
the Department. The present case is no exception.
These lengthy
delays cannot be in the interests of the economy, where much needed
investment is delayed and sometimes even lost.
In the present
matter a US company has already invested millions of Rands and
stands ready to invest more, provided it can
have finality on its
applications. The extraordinary delays, alluded to in this
judgment, are adverse to such foreign investment.
Of further concern in this matter is
that the Respondents had failed to discover the records of the
various decisions, as they were
called upon to do in terms of
Rule 53(1). It took a contempt of court application to have
same discovered.
I would hope that this Court has
seen the last of this disturbing trend in the present matter.
The following order is issued:
The decision
of the Deputy Director-General, Mineral Regulation, to grant a
prospecting right for copper, lead and zinc, dated 14
December 2006,
Protocol No 1483/2006 with Registration Number 95/2007, to Samber
Trading 103 (Pty) Ltd with regard to the farm
Glencard 525, district
Hay, Northern Cape Province (“
Glencard
”),
is hereby set aside and the said prospecting right is hereby
declared invalid.
The First,
Second and Third Respondents are ordered to process and to finalise
the application of the First Applicant dated 15 December
2005 for a
prospecting right, in terms of s17 of the Mineral and Petroleum
Resources Development Act, 28 of 2002 (“
the
Act
”)
for copper, lead, zinc and silver with regard to Glencard, within 30
days of the issuing of this order.
The First,
Second and Third Respondents are ordered to pay the costs of the
First and Second Applicants with regard to pars 1.1,
1.2 and 1.3 of
the application, jointly and severally, including the costs of two
counsel.
The decision
of the Deputy Director-General, Mineral Regulation, dated 14
December 2006, Protocol 1483/2006 with Registration Number
95/2007,
to grant a prospecting right for copper, lead and zinc to Samber
Trading 103 (Pty) Ltd, with regard to the remainder and
portion 1 of
the farm Bushy Park No 556, District Hay, Northern Cape Province
(“
Bushy
Park
”)
is hereby set aside and the said prospecting right is hereby
declared invalid.
The decision
of the First, Second and Third Respondents to refuse the application
of the First Applicant for a prospecting right
in terms of s17 of
the Act for copper, lead, zinc and silver with regard to Bushy Park,
is hereby set aside.
The First,
Second and Third Respondents are ordered to grant the application of
the First Applicant dated 15 December 2005, for
a prospecting right
in terms of s17 of the Act for copper, lead, zinc and silver with
regard to Bushy Park, within 30 days of the
issuing of this order.
The First,
Second and Third Respondents are ordered to pay the costs of the
First, Second, Third, Fourth and Fifth Applicants with
regard to
pars 2.1, 2.2., 2.3 and 2.4 of the application, jointly and
severally, including the costs of two counsel.
The First,
Second and Third Respondents are ordered to complete the
finalisation of the application of the Applicant dated 15 December
2005 which has already been granted, for a prospecting right in
terms of s17 of the Act for copper, lead, zinc and silver with
regard to the remainder as well as portions 1 and 2 of Farm No 44,
District Hay, Northern Cape Province, within 30 days of issuing
of
this order.
The First,
Second and Third Respondents are ordered to pay the costs of the
First Applicant with regard to pars 3.1 and 3.2 of
the application,
jointly and severally, including the costs of two counsel.
The First,
Second and Third Respondents are ordered to process and finalise the
application of the First Applicant dated 15 December
2005 for a
prospecting right in terms of s17 of the Act for copper, lead, zinc
and silver with regard to portion 1 of the farm
Rockwood No 555 and
portion 2 Annex, Vreemdelingsrust No 563, District Hay, Northern
Cape Province, within 30 days of the issuing
of this order.
The First,
Second and Third Respondents are ordered to pay the costs of the
First Applicant with regard to pars 4.1 and 4.3 of the
application
jointly and severally, including the costs of two counsel.
_________________
SA MAJIEDT
JUDGE
I
CONCUR.
________________
CJ
OLIVIER
JUDGE
ADVOCATE
FOR THE APPLICANTS : ADV CN VAN HEERDEN & ADV N SMIT
ADVOCATE
FOR 1
st
,
2
nd
and 3
rd
RESPONDENTS : L NKOSI-THOMAS
ATTORNEY FOR
THE APPLICANTS : VAN DE WALL ATTORNEYS
ATTORNEY
FOR THE RESPONDENTS : STATE ATTORNEY
DATE OF
HEARING : 13 DECEMBER 2007
DATE
OF JUDGEMENT :
8
FEBRUARY 2008