THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 58/2023
71/2023
351/2023

In the matter between:
MINISTER OF MINERAL RESOURCES
AND ENERGY FIRST APPELLANT
SHELL EXPLORATION AND PRODUCTION
SOUTH AFRICA B.V. SECOND APPELLANT
IMPACT AFRICA LIMITED THIRD APPELLANT
BG INTERNATIONAL LIMITED FOURTH APPELLANT
and
SUSTAINING THE WILD COAST NPC FIRST RESPONDENT
MASHONA WETU DLAMINI SECOND RESPONDENT
DWESA-CWEBE COMMUNAL PROPERTY
ASSOCIATION THIRD RESPONDENT
NTSHINDISO NONGCAVU FOURTH RESPONDENT
SAZISE MAXWELL PEKAYO FIFTH RESPONDENT
CAMERON THORPE SIXTH RESPONDENT
ALL RISE ATTORNEYS FOR CLIMATE
AND THE ENVIRONMENT NPC SEVENTH RESPONDENT

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NATURAL JUSTICE EIGHTH RESPONDENT
GREENPEACE ENVIRONMENTAL
ORGANISATION NPC NINTH RESPONDENT

Neutral citation: Minister of Mineral Resources and Energy and Others v
Sustaining the Wild Coast NPC and Others (Case no 58 /2023;
71/2023; 351/2023) [2024] ZASCA 84 (3 June 2024)
Coram: PONNAN, MOCUMIE and MATOJANE JJA and SMITH and SEEGOBIN
AJJA
Heard: 17 May 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website,
and release to SAFLII. The date for hand down is deemed to be 3 June 2024 at 11h00.
Summary: Review – failure by court to consider question of just and equitable relief
under s 172 of the Constitution when setting aside grant a nd renewals of exploration
right – court on appeal – empowered to do so – suspending order setting aside
decisions.

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___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: Eastern Cape Division of the High Court, Makhanda (Mbenenge JP,
Nhlangulela DJP and Norman J, sitting as court of first instance):
a Save to the extent set out hereunder, the appeal is dismissed with costs,
including those of two counsel to be paid jointly and severally by the appellants.
b The order of the court below is amended by the addition of the following:
‘5. Paragraphs 1, 2 and 3 hereof are suspended pending determination of the
application submitted on 21 July 2023 pursuant to s 81 of the Mineral and Petroleum
Resources Development Act 28 of 2002 for the renewal of exploration right 12/3/252.’
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Ponnan JA ( Mocumie and Matojane JJA and Smith and Seegobin AJJA
concurring):
[1] This appeal has its genesis in the grant, on 29 April 2014, of an exploration right
by the first appellant, the Minister of Mineral Resources and Ener gy (the Minister), to
the third appellant, Impact Africa Limited (Impact), to be exercised by the second
appellant, Shell Exploration and Production South Africa B.V. and the fourth appellant,
BG International Limited (BG) (the second and fourth appellants are collectively
referred to as Shell). On 17 May 2017, Impact applied for a renewal of the exploration
right, which was granted on 20 December 2017. On 13 March 2020, Impact applied
for a second renewal of the exploration right, which was granted on 30 July 2021.

[2] When Impact and Shell sought to exercise the exploration right by conducting
seismic surveys off the Wild Coast of South Africa, the first to seventh respondents
approached the Eastern Cape Division of the High Court, Makhanda for urgent
interdictory relief on 2 December 2021. Relief was sought in two parts. Part A served

interdictory relief on 2 December 2021. Relief was sought in two parts. Part A served
before Bloem J, who, on 28 December 2021, interdicted Impact and Shell from

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undertaking seismic survey operations under the exploration right, pending the
finalisation of Part B. The eighth respondent, Natural Justice and the ninth respondent,
Greenpeace Environmental Organisation NPC, thereafter sought and obtained leave
to join as the eighth and ninth applicants in the proceedings.

[3] Part B was heard on 30 and 31 May 2022 by a specially constituted co urt of
three judges consisting of Mbenenge JP, Nhlangulela DJP and Norman J (the high
court). In a written judgment delivered on 1 September 2022 the high court held:
‘1. The decision taken by the first respondent on 29 April 2014 granting exploration righ t
12/3/252 to the fourth respondent for the exploration of oil and gas in the Transkei and Algoa
exploration areas is reviewed and set aside.
2. The decision taken by the first respondent on 20 December 2021 to grant a renewal of
the exploration right is reviewed and set aside.
3. The decision taken by the first respondent on 26 August 2021 to grant a further renewal
of the exploration right is reviewed and set aside.
4. The first, fourth and fifth respondents shall pay [the] costs of this application, join tly
and severally, the one paying the other to be absolved, such costs to include, in the case of
the first to seventh applicants, the costs of three counsel and, in the case of the eighth and
ninth applicants, the costs of two counsel.’

[4] In arriving a t that conclusion, the high court declined the invitation by the
respondents to declare that Shell and Impact were not entitled to commence any
exploration activity without first seeking and obtaining an environmental authorisation
in terms of the National Environmental Management Act 107 of 1998 (NEMA). The
high court took the view that the success of the review would render the relief sought
under NEMA, which had been raised in the alternative to the main relief , redundant.
With the leave of the high cour t, the Minister, Shell and Impact appeal, as the first to

With the leave of the high cour t, the Minister, Shell and Impact appeal, as the first to
third appellants respectively, against the judgment and order of the high court and the
respondents challenge by way of a cross appeal the refusal of the high court to
consider and determine the rel ief sought under NEMA. At the bar, it came to be
accepted that the cross appeal was, in truth, in the nature of a conditional cross appeal,
and that the need to enter into it would only arise were we to uphold the main appeal.

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[5] The judgment of the high court has been reported sub nom Sustaining the Wild
Coast NPC and Others v Minister of Mineral Resources and Energy and Others 2022
(6) SA 589 (ECMk), it is accordingly not necessary for the facts or litigation history,
which has been set out therein, to be repeated here.

[6] Before turning to the substantive merits of the appeal, it is necessary to
consider two preliminary issues raised by the appellants before the high court and
persisted in on appeal. It is contended that: (i) the review application should have been
dismissed on the ground that the respondents unreasonably delayed in launching their
challenge, thus falling foul of the 180 -day time limit under s 7(1) of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA); and, (ii) the appellants failed to exhaust
their internal remedies, namely an appeal in terms of s 96 of the Mineral and Petroleum
Resources Development Act 28 of 2002 (the MPRDA) against the grant of the
exploration right and the renewals, prior to bringing their review application.

As to (i):
[7] The respondents maintain that they became aware of the grant of the
exploration right in late October and early November 2021. The review application was
initiated, by way of an amendment to the notice of motio n in January 2022, after the
grant of the interim interdict by Bloem J, well within the 180-day limit, according to the
respondents.

[8] Shell asserts that it does not matter when the individual persons or communities
became aware of the impugned decisions and their reasons, because, so the assertion
proceeds, the decisions affected the public at large and (relying on the OUTA
decision)1 the clock started ticking when the public at large might reasonably have
been expected to have become aware of the decisions and the reasons for them,
regardless of when the concerned individuals had themselves become aware. Shell
maintains that this occurred on 20 May 2020, when an Environmental Compliance

maintains that this occurred on 20 May 2020, when an Environmental Compliance
Notice was sent to interested and affected persons [IA&Ps], and to the general public,
allegedly alerting them to the grant of the exploration right.

1 Opposition to Urban Tolling Alliance v South African National Roads Agency Ltd [2013] ZASCA 148;
[2013] 4 All SA 639 (SCA) para 27.

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[9] Impact adopts a similar approach to Shell, claiming that the applicable test is
when the public at large could reasonably be expected to have become aware of the
decisions and their reasons. Impact maintains that this occurred in 2013, when it
notified the public of its application for an exploration right. The Minister adopts the
same stance as Impact, stating that the public at large would reasonably have been
expected to have become aware of the grant of the exploration right around 29 April
2014, some seven years before the institution of the review.

[10] The appellants accordingly contend that the high court erred in applying the test
under s 3 of PAJA (which relates to administrative action affecting a person) as
opposed to s 4 (which relates to administrative action affecting the public). As a result,
so the contention proceeds, the high court focused on the fact of when the individual
applicants actually obtained knowledge of the decisions sought to be reviewed rather
than the question of when the public at large might reasonably be expected to have
knowledge of the administrative action. But, even if it is assumed in the appellants’
favour that the high court should have applied s 4, instead of s 3, of PAJA, it makes
no difference. There is no evidence that the Minister (or his delegate) gave the public
notice of the decisions prior to October 2021.

[11] Under s 3(2) (b) of PAJA, an administrator is required to afford all persons
whose rights are materially and adversely affected by administrative action:
‘(i) adequate notice of the nature and purpose of the proposed administrative action;
(ii) a reasonable opportunity to make representations;
(iii) a clear statement of the administrative action;
(iv) adequate notice of any right of review or internal appeal, where applicable; and
(v) adequate notice of the right to request reasons in terms of section 5.’

[12] No evidence has been adduced that the Minister or his delegates gave the

[12] No evidence has been adduced that the Minister or his delegates gave the
public notice that the exploration right had initially been granted or later renewed. The
Minister does not point to any notice or publication. It is simply asserted that the public
would have become aware of the grant of the exploration right around April 2014. Nor,
does Impact specify how the public became aware of the relevant decisions prior to
October 2021. Impact contends that the general public would have ‘become aware of
the exploration right in 2013, when there was public notification of the exploration right

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application by means of: notices in four newspapers on 22 March 2013; emails to
stakeholders on 22 March 2013 . . .; emails to all IA&Ps on 17 and 24 May 2013
notifying of the draft EMPr’s [environmental management programme’s] availability for
review and comment; and three public meetings in Port Elizabeth, East London and
Port St Johns on 3, 4 and 5 June 2013’.

[13] However, t hese processes gave notice of Impact’s application for an
exploration right, not of the grant of the exploration right or the renewals thereof. In
any event, the grant of Impact’s exploration right occurred on 29 April 2014, after the
above notices were given and meetings held. Both the Minister and Impact attempt to
skirt around this problem by focusing on the applicabilit y of ss 3 and 4 of PAJA.
However, the argument misses the point. The point is that the Minister should have
given clear notice of his decision to grant the exploration right and its renewals and
informed all affected persons (being individuals and the public) of their right to appeal
the decisions or request reasons. The Minister failed to do so. In the absence of a
clear announcement of the decisions, the public could not reasonably have known of
their existence. It was only after 29 October 2021, when SLR Consulting (at the
instance of Shell) gave notice of Shell’s intention to commence with the seismic survey
and the issue was picked up in the media, that the public at large might reasonably
have become aware of the decisions. It could thus never be that the general public
could reasonably be expected to have knowledge that a right had been granted merely
because the general public had knowledge that a right had been applied for.

[14] There is thus no basis for the appellants to claim that the public might
reasonably have been expected to become aware of the decisions prior to late October
2021. As such, the 180-day time period only began running in October 2021 and there
was no delay in launching the review proceedings.

was no delay in launching the review proceedings.

As to (ii):
[15] According to the respondents, they did not pursue an internal appeal for four
reasons: First, t hey only found out about the grant and the renewals in November
2021, almost seven years after the exploration right was granted. Second, the initial
approach to the Court was for urgent interdictory relief, in circumstances where the
commencement of the seis mic survey was imminent and would likely have been

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concluded prior to the resolution of any appeal thereby rendering nugatory any internal
appeal process. Third, there existed a reasonable apprehension of bias against them
on the part of the Minister, whic h was based on the Minister’s opposition to part A of
their application despite no relief being sought against him, as well as his application
for leave to appeal the judgment and order granted under part A. The apprehension
was fortified by several public statements made by the Minister, criticising public
interest groups for challenging the seismic surveys and maintaining his refusal to
review the exploration right. The Minister was quoted as saying: ‘We consider the
objections to these developments as ap artheid and colonialism of a special type,
masqueraded as a great interest for environmental protection. ’ The Minister did not
engage at all with the reasons advanced by the first to seventh respondents for not
pursuing an internal appeal.

[16] It is suggested that the respondents cannot rely on the conduct and public
statements of the Minister after the litigation commenced to justify their failure to
exhaust internal remedies prior to applying for the review and the setting aside of the
Minister’s decisions. What this ignores, however, is that the grounds giving rise to the
perception of bias all arose before the notice of motion was amended to include the
review of the Minister’s decisions. The obligation to exhaust internal remedies, and the
realisation that this would be fruitless, was not an issue at the time of the launch of the
application and the hearing of part A. This perception of bias only arose after part A of
the application had been finalised, when the review relief was introduced by way of
the amendment to the notice of motion.

[17] It is not in dispute that neither the public nor the IA&Ps was given notice of the
decisions or informed of their right to appeal or to ask for reasons. The failure to do

decisions or informed of their right to appeal or to ask for reasons. The failure to do
so, which is unexplained on the papers, is subversive of the procedural entitlements
of the appellants. What is more, after learning of the existence of the exploration right,
the Minister and the Petroleum Agency of South Africa (PASA) was approached on
behalf of Natural Justice and Greenpeace Africa with a request for copies of the
exploration right and the other impugned decisions as well as reasons for those
decisions and for an extension of the period within which to bring an appeal. The
request was ignored. Thus, details of the impugned decisions came to be seen for the
first time when the rule 53 record in the review was furnished. In the circumstances,

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the high court can hardly be faulted for its finding that: ‘[t]his is a classic case of an
internal remedy that would not have been objecti vely implemented and which would
have rendered nugatory the values of administrative justice enshrined in the
Constitution and upheld by PAJA’.

[18] Moreover, the test for interference with the exercise of a discretion of this nature
has not been satisfied. The high court had a wide discretion to exempt the respondents
from the relevant internal remedy provisions. This was a permissible option available
to it in terms of s 7(2) (c) of PAJA.2 When it did so, it exercised a true discretion. The
test for interference with such a discretion on appeal is that this Court would have to
be satisfied that the discretion was not exercised judicially or was influenced by wrong
principles or wrong facts.3 The appellants have not come close to satisfying this test.

[19] Turning to the merits: The right to procedurally fair administrative action is
entrenched in s 33 of the Bill of Rights. The grant of an exploration right constitutes
administrative action.4 When administrative action materially and adversely affects the
rights of any person, their right to procedural fairness is triggered. It can hardly be in
dispute that Impact was required to meaningfully consult with the communities and
individuals that would be affected by the seismic blasting. The duty to do so deriv es
from: (i) the obligations imposed upon it, as an applicant for an exploration right, by
the MPRDA; and, (ii) the self -standing duty under PAJA to consult with the
communities as holders of existing customary rights (particularly customary fishing
rights) that would be adversely affected by the seismic blasting.

[20] Section 3 of PAJA sets out the requirements for procedural fairness. These
include that persons, whose rights are impacted, must be given adequate notice of the
nature and purpose of the proposed administrative action and a reasonable

nature and purpose of the proposed administrative action and a reasonable
opportunity to make representations.5 In the context of exploration and mining, PAJA

2 S 7(2)(c) of PAJA provides: ‘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’.
3 Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and
Another [2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) paras 83 and 88.
4 Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others [2010] ZACC
26; 2011 (4) SA 113 (CC); 2011 (3) BCLR 229 (CC) (Bengwenyama).
5 S 3(2)(b)(i) and (ii) of PAJA.

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must be read together with the MPRDA. When an application for an exploration right
is made, the MPRDA imposes obligations on an applicant to consult with any affected
party.6

[21] The general princi ples that are applicable to consultation of communities in
relation to applications under the MPRDA were set out by the Constitutional Court in
Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and
Others (Bengwenyama). Two bear empha sis: First, interested and affected persons
must be informed in sufficient detail of the proposed mining activities and what those
will entail, so that they can properly assess its impact. The provision of the necessary
information will allow such persons to make an informed decision in relation to the
representations that they will submit to the decision -maker.7 Second, a meaningful
consultation process is integral to ensuring procedural fairness. The Constitutional
Court stated that ‘any administrative process conducted or decision taken in terms of
the [MPRDA] must be taken in accordance with the principles of lawfulness,
reasonableness and procedural fairness. The prescripts of the [MPRDA] in this regard
are subject to the provisions of PAJA ’.8 Although Bengwenyama dealt with
consultation in relation to prospecting right applications, the reasoning applies with
equal force to the applications encountered here.

[22] The adequacy of the consultation process adopted in this case has been
subjected to wide-ranging criticism by the respondents, including that:
(i) the language use d is technical and inaccessible – by way of example, the work
programme is described as includin g the following steps: ‘Phase 1: Airborne
geophysics acquisition (gravity and magnetics) to define existing structural trends,
identify additional features and to address depth to basement/magnetic source. Phase
2: 2D and 3D seismic surveys followed by processing and interpretation . . .’; and,

6 These are derived from s 79(4) of the MPRDA, which deals with applications for exploration rights. At
the time that the exploration right was granted, this section provided that:
‘(4) If the designated agency accepts the application, the designated agency must, within 14 days of
the receipt of the application, notify the applicant in writing –
(a) to notify and consult with any affected party; and
(b) to submit an environmental m anagement programme in terms of section 39 within a period of 120
days from the date of the notice.’
7 Bengwenyama paras 66–67.
8 Bengwenyama para 61.

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(ii) the geographic location that will be affected is described in vague and overbroad
terms as the ‘Transkei/Algoa area off the Eastern Cape Coast of South Africa’ and ‘the
proposed Exploration area (45 838km2) extends from the coast out to a maximum
water depth of approximately 4000m’, making it impossible for communities to know if
the notice was applicable to them.

[23] However, by far the most trenchant criticism – one from which there appears to
be no escape f or the appellants – is that the notices that were published in the four
newspapers were inaccessible to many members of the respondent communities.
Three of the newspapers are in the English language and one in Afrikaans. Few people
in the respondent commu nities (particularly the Amadiba community) read English,
and virtually nobody speaks Afrikaans. The majority of residents along the Wild Coast
speak isiXhosa or isiMpondo. If Impact wanted to meaningfully engage with them, it
should have prepared notices in their language. In addition, there is no newspaper
circulating in Amadiba or in the communities of Dwesa -Cwebe. Newspapers are not
delivered to these communities. Newspaper advertisements would simply not reach
them, even if in a language of their choice.

[24] As is the case with many communities along the Wild Coast, the people of
Amadiba mostly get their news from the radio. They mainly listen to Ukhozi FM and
Umhlobo Wenene. The res pondents say that had there been notice or discussion of
Shell’s proposed seismic blasting on the radio, they would certainly have commented.
The adverts in the four newspapers were intended to notify the public about t he
proposed project and provide details of the consultation process and information as to
how members of the public could provide input in respect of the forthcoming survey.
In the circumstances, the choice of print media was plainly ill -advised. This was
exacerbated by the choice of English and Afrikaans language newspapers. The

exacerbated by the choice of English and Afrikaans language newspapers. The
process, which was more illusory than real, was thus manifestly inadequate.

[25] It follows, and this is the logical corollary to the inadequacy of the consultation
process, that when assessing (and ultimately granting) Impact’s application for an
exploration right, a number of relev ant factors were not considered, including but not
limited to: the detrimental impact that the surveying activities would have on the
spiritual and cultural practices of the affected communities; the livelihood of the

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members of the communities along the Wild Coast, inasmuch as the sea is the primary
– and in many cases the only – source of n utrition and income for them; and, the
requirements of the National Environmental Management: Integrated Coastal
Management Act 24 of 2008 (ICMA), which creates specifi c measures for the
protection of the coastal zone.

[26] It is thus clear that there was a failure to take relevant considerations into
account and as such the decision is reviewable under s 6(2) (e)(iii) of PAJA.9 Once a
ground of review under PAJA has been established, s 172(1) (a) of the Constitution
requires the decision to be declared unlawful, but that is not the end of the matter. The
consequence of a declaration of unlawfulness is that it must then be dealt with u nder
s 172(1)(b) of the Constitution.10 Not only did the high court fail to consider the question
of just and equitable relief under section 172 of the Constitution, but it went so far as
to hold that: ‘[a]uthorising new oil and gas exploration, with its go al of finding
exploitable oil and/or gas reserves and consequently leading to production, is not
consistent with South Africa complying with its international climate change
commitments.’ On any reckoning such a far -reaching finding, which has a sterilisin g
effect and for which there can be no warrant, cannot be endorsed.

[27] In exercising powers under s 172(1) (b), courts have the widest possible
remedial discretion.11 The appellants submit that our courts have been cognisant of
ensuring that innocent parties are not unduly prejudiced,12 and that it is thus necessary
for this Court to revisit the aspect o f remedy. The Constitutional Court in Electoral
Commission v Mhlope & others,13 emphasised the need for courts to be pragmatic in
crafting just and equitable remedies in the exercise of its wide remedial powers. A just

9 In terms of s 6(2)(e)(iii) of PAJA, a court or tribunal has the power to judicially review an administrative
action if the action was taken because irrelevant considerations were taken into account or relevant
considerations were not considered.
10 Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South
African Social Security Agency and Others [2013] ZACC 42; 2014 (1) SA 604 (CC); 2014 (1) BCLR 1
(CC) para 25.
11 Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v
Speaker of the National Assembly and Others [2016] ZACC 11; 2016 (5) BCLR 618 (CC); 2016 (3) SA
580 (CC) para 132.
12 Millennium Waste Management (Pty) Ltd v Chairperson of the Tender Board: Limpopo Province and
Others [2007] ZASCA 165; [2007] SCA 165 (RSA); [2008] 2 All SA 145; 2008 (2) SA 481; 2008 (5)
BCLR 508; 2008 (2) SA 481 (SCA) para 23.
13 Electoral Commission v Mhlope & others [2016] ZACC 15; 2016 (8) BCLR 987 (CC); 2016 (5) SA 1
(CC) para 132.

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and equitable remedy must be: proportionate (the Constitutional Court has found that
it is disproportionate to set aside an entire project as a consequence of an imperfect
process);14 fair and just in the context of the particular dispute; 15 ample and flexible
and should place substance above form.16

[28] Seeing as the high court ered in not weighing up the relevant factors, this Court
is empowered to do so. There has been an almost eight -year delay between the
granting of the exploration right and the review and, acting in reliance on the validity
of the decisions, there has been significant financial expenditure in the region of R1.1
billion, dating back to 2012 when Impact applied for its technical co -operation permit
(which preceded the exploration right). Two renewals of the exploration right have
been granted, accordingly there will be only one more opportunity to renew the
exploration right. A moratorium has since been placed on exploration rights over the
entire South African coast, 17 thus Shell and Impact may never get the opportunity to
exercise the right.

[29] The appellants also argue that the high court failed to consider the adverse
consequences for the public in whose interests the decision -maker purportedly acts.
Shell and Impact provided evidence of the economic and social benefits that will fail
to materialise without the exploration being undertaken. Sight cannot also be lost of
the public interest in the finality of administrative decision -making and the degree or
materiality of the irregularity or that the long delay and lack of legal certainty may well
have a chilling effect on foreign investment. The appellants contend that a ll of these
can be mitigated by the possibility of di recting that measures be implemented,
including that a further public participation process be undertaken. In the
circumstances, so the contention goes, considerations of justice, equity and the

14 Mazibuko and Others v City of Johannesburg and Others [2009] ZACC 28; 2010 (3) BCLR 239 (CC);
2010 (4) SA 1 (CC) para 134.
15 Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and
Another [2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC) para 96.
16 Ibid para 97.
17 See GN 657 in GG 41743 of 28 June 2918; GN 1664 of GG 42915 of 20 December 2019. See further
GN 71 in GG 37294 of 3 February 2014; and GN 932 in GG 35866 of 16 November 2012.

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principles of fi nality and certainty, dictate that the harsh ness of the exploration right
being set aside, can and should be ameliorated.18

[30] In Joubert Galpin Searle Inc , Plasket J thought it necessary ‘to temper the
setting aside . . . in a way that minimises the negative effects’. He accordingly decided
to ‘suspend the order reviewing and setting aside . . . so that something remains in
place, imperfect as it may be’.19 There is much to commend that approach in a matter
such as this, particularly in the light of what follows. Shortly before the hearing of the
appeal, we raised the following with the parties:
‘Inasmuch as each of the first and second renewal of the exploration right, which issued on 20
December 2017 and 26 August 2021 respectively, was not to exceed two years, the parties
will be required at the hearing of the matter to address whether the decision sought in the
appeal will have any practical effect or result within the meaning of s 16(2)(a)(i) of the Superior
Courts Act 10 of 2013.’

[31] We were informed, in response, that prior to the end of the second renewal
period of the exploration right and, pursuant to exercising their exclusive right to do so
in accordance with s 82(1)(b) of the MPRDA, Impact and BG timeously submitted an
application to PASA on 21 July 2023, to enter into a third renewal period as permitted
by s 81(4) of the MPRDA. In terms of s 81(5) of the MPRDA, an exploration right in
respect of which an application for renewal has been lodged shall, notwithstanding its
expiry date, remain in force until such time as the application has been granted or
refused. Thus, despite the current expiration date of 26 August 2023 , the exploration
right remains in force until the third renewal application has been granted or refused .
It would thus be entirely within the power of this Court to direct that as part and parcel
of a proper consideration of the third renewal application, a further public participation

of a proper consideration of the third renewal application, a further public participation
process be conducted to cure the identified defects in the process already undertaken,
especially as the parties who claim to have an interest in the matter have now been
identified and the matters warranting consideration have been fully canvassed in a 19-
volume record consisting of some 4000 pages. Consequently, save for suspendi ng

18 See: Khumalo and Another v Member of the Executive Council for Education: KwaZulu -Natal [2013]
ZACC 49; 2014 (3) BCLR 333 (CC); (2014) 35 ILJ 613 (CC); 2014 (5) SA 579 (CC) at para 53. And
more specifically in relation to the MPRDA and/or NEMA;
19 Joubert Galpin Searle Inc and Others v Road Accident Fund [2014] ZAECPEHC 19; [2014] 2 All SA
604 (ECP) 2014 (4) SA 148 (ECP) paras 105 and 106.

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the orders setting aside the granting of exploration right 12/3/252 and each of the two
renewals dated 20 December 2017 and 26 August 2021 respectively, the appeal is
otherwise dismissed.

[32] In the result:
a. Save to the extent set out hereunder, the appeal is dismissed with costs, including
those of two counsel to be paid jointly and severally by the appellants.
b. The order of the court below is amended by the addition of the following:
‘5. Paragraphs 1, 2 and 3 hereof are suspend ed pending determination of the
application submitted on 21 July 2023 pursuant to s 81 of the Mineral and Petroleum
Resources Development Act 28 of 2002 for the renewal of exploration right 12/3/252.’



________________
V M PONNAN
JUDGE OF APPEAL

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Appearances

For the first appellant: A Beyleveld SC and AC Barnett
Instructed by: The State Attorney, Gqeberha
The State Attorney, Bloemfontein

For the second appellant: A Friedman
Instructed by: Shepstone & Wylie, Durban
McIntyre van der Post, Bloemfontein

For the third appellant: C Loxton SC, A Nacerodien and P Schoeman
Instructed by: Cliffe Dekker Hofmeyr Inc., Cape Town
Honey Attorneys, Bloemfontein

For the first to seventh respondents: E Webber and N Stein
Instructed by: Richard Spoor Inc., Cape Town
Matsepes Inc., Bloemfontein

For the eighth & ninth respondents: N Ferreira and L Moela
Instructed by: Cullinan and Associates Inc., Cape Town
CWA Attorneys, Bloemfontein.