THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 458/2024
In the matter between:

DE BEERS CONSOLIDATED MINES (PTY) LTD APPELLANT

and

REGIONAL MANAGER, LIMPOPO: THE
DEPARTMENT OF MINERAL RESOURCES
AND ENERGY FIRST RESPONDENT
THE DIRECTOR-GENERAL: THE
DEPARTMENT OF MINERAL RESOURCES
AND ENERGY SECOND RESPONDENT
THE MINISTER OF MINERAL RESOURCES
AND ENERGY THIRD RESPONDENT

Neutral citation: De Beers Consolidated Mines (Pty) Ltd v Regional Manager,
Limpopo: The Department of Mineral Resources and Energy and
Others (458/2024) [2025] ZASCA 128 (10 September 2025)
Coram: SCHIPPERS, MOKGOHLOA and UNTERHALTER JJA and
HENNEY and KUBUSHI AJJA
Heard: 3 September 2025
Delivered: 10 September 2025
Summary: Review – internal remedy – s 7(2) of the Promotion of
Administrative Justice Act 3 of 2000 – the competence of a court to refuse exemption
from the obligation to exhaust internal remedies and engage its review jurisdiction.

2


ORDER

On appeal from: Gauteng Division of the High Court , Pretoria (Khumalo J, sitting
as a court of first instance):
1 The appeal is upheld with costs, including the costs of two counsel.
2 Paragraphs 1 and 2 of the high court’s order are set aside and replaced with the
following:
‘The appellant is directed to exhaust the internal remedies provided by s 96 of
the Mineral and Petroleum Resources Development Act 28 of 2002 and the
matter is accordingly referred back to the third respondent, who is directed to
consider and decide the applicant’s internal appeal within 30 days of the grant
of this order and to communicate his decision to the applicant within 10 days
of it being taken.’


JUDGMENT

Unterhalter JA (Schippers and Mokgohloa JJA and Henney and Kubushi AJJA
concurring):

[1] The appellant, De Beers Consolidated Mines (Pty) Ltd (DBCM), under a
mining license granted to it by the Department of Minerals and Energy (the
Department) operated an open-cast diamond mine, namely the Oaks Mine in Limpopo
(the Mine) , from 1998 to 2008. In November 2009, DBCM submitted a closure
application for the Mine, as was required of it by the Mineral and Petroleum
Resources Development Act 28 of 2002 (the Act). Over a decade , correspondence
was exchanged between the Department and DBCM concerning the closure pla n for
the Mine. In essence, the Department requi red the closure plan to include the
obligation to backfill the pit, whereas DBCM resisted this requirement, in part, on the

3

basis that it formed no part of the Environmental Management Programme that had
been approved by the Department.

[2] On 6 June 2020, the Department wrote to DBCM and adopted the position that
DBCM’s closure application would ‘remain pending until the revised Closure Plan
indicating how the pit will be backfilled is submitted to this Department’. In July
2020, DBCM lodged an internal appeal in terms of s 96 of the Act against the decision
of the Regional Manager, Limpopo Region, of the Department (the Regional
Manager), the first respondent in this appeal . The decision appealed against was
framed in the following way: ‘[th e] refusal to grant the application for a closure
certificate lodged by DBCM on 3 November 2009 . . . unless the unlawful condition
of backfilling the pit is met by DBCM . . .’ (the Regional Manager’s decision). In its
appeal, DBCM sought, among others, order s setting aside the Regional Manager’s
decision and the granting of DBCM’s closure application.

[3] Before its internal appeal was decided, DBCM brought a review in the high
court. The relief it sought included the following: that DBCM be exempted from the
obligation to exhaust any internal remedy, as provided for in s 7(2)(c) of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA); a declarator that DBCM
is not under any legal obligation to backfill the open pit at the Mine; setting aside the
Regional Manager’s decision; and directing the Minister of Mineral Resources and
Energy (the Minister and third respondent in this appeal) to grant the closure
application and issue a closure certificate.

[4] The review came before the high court. Khumalo J declined the exemption
sought by DBCM, and proceeded to make the following order:
‘1. The Applicant is ordered to exhaust the internal remedies, and the matter is sent back to the
3rd Respondent who is directed to consider and decide Applicant’s internal appeal within 30 days of

the grant of this order, having regard to this Court’s judgement and to communicate his decision to
DBCM within 10 days of it being taken;

4

2. The decision on the Appeal is to be taken in line with the legislative framework applicable
in respect of the Closure Applications as it presently exists (that is per s 43 of the amended MPRDA).
3. The Applicant to pay the costs of the Application including the costs of two Counsel.’

[5] One of the grounds of review advanced by DBCM was that the R egional
Manager’s decision was vitiated by a material mistake of law. That mistake was the
Regional Manager’s misunderstanding that DBCM’s closure application was
regulated by the current provisions of the Act, and hence that the amendments to s 43
of the Act were of retrospective effect. I shall refer to this ground of review as the
error of law. The error of law was also raised in DBCM’s internal appeal.

[6] The high court reasoned that the failure by DBCM to exhaust its internal
remedy was ‘a structural impediment to the determination of the substantive questions
posed by the review’ because no decision had yet been rendered that was subject to
review. Hence, the high court refused DBCM’s application to be exempted from the
obligation to exhaust its internal remedy, as provided for in s 7(2) (c) of PAJA, and
considered it ‘prudent’ for the matter to be remitted to the Minister. The high court,
however, also decided that the amended s 43 of the Act regulated DBCM’s closure
application. By so doing, the high court also decided the error of law raised in the
review. In consequence, the high court framed its order on the basis that the Minister’s
decision on appeal must be taken ‘in line with the legislative framework in respect of
the Closure Applications as it presently exists (that is per s 43 of the amended
MPRDA)’. I shall refer to this portion of the order as the ‘directory order’.

[7] DBCM sought leave to appeal. This application was dismissed by the high
court. L eave was granted by this Court on a narrow point, framed as follows , in
relevant part:
‘. . .
3. The leave to appeal is limited to the following issues:

relevant part:
‘. . .
3. The leave to appeal is limited to the following issues:
(1) The direction in paragraph 1 & 2 of the order dated 04 September 2023 that the 3 rd
respondent when considering and deciding the applicant’s appeal, is to have regard to the

5

court’s Judgement and specifically s 43 of the amended Mineral and Petroleum Resources
Development Act 28 of 2002 as it presently exist.’

[8] DBCM’s notice of appeal makes it plain that it does not appeal the order of the
high court requiring DBCM to exhaust its internal remedy , and have the matter
remitted to the Minister. The portion of the order that it does appeal is the directory
order. The Regional Manager, the Director General of the Department (the second
respondent) and the Minister oppose the appeal.

[9] The issue that arises is this: was it competent for the high court to decline
DBCM’s exemption application, and also decide one of the substantive grounds of
review (the error of law), as a result of which it issued the directory order?

[10] Section 7(2) of PAJA reads as follows:
‘7 Procedure for judicial review
(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.’

[11] It is plain that these provisions do not permit a court to exercise its power to
review administrative action, unless any internal remedy provided in any other law
has first been exhausted. That bar is subject to the grant by a court of an exemption
from the obligation to exhaust any internal remedy. If the court grants the exemption,
the bar is lifted, and the court may then entertain the review. As the matter was

6

succinctly put by the Constitutional Court in Dengetenge,1 ‘. . . the duty to exhaust
internal remedies defers the exercise of the court’s review jurisdiction for as long as
the duty is not discharged’.

[12] The high court failed to observe what s 7(2) of PAJA requires. The high court
decided the error of law ground of review and made the directory order. By so doing,
the high court engaged its review jurisdiction. It was not competent to do so because,
once the high court declined the exemption, the bar upon its review jurisdiction in
s 7(2)(a) of PAJA remained. The power of the courts to review administrative action
under PAJA is an important constitutional competence. The exercise of that
competence is regulated by PAJA. Courts are required to exercise their jurisdiction
within the limits of what the law permits. That is what the rule of law under the
Constitution demands. Courts have a constitutional duty to determine the limit of their
powers. DBCM’s review was brought in terms of PAJA, and entertained by the high
court as such. Once that is so, the high court could not engage the substantive merits
of DBCM’s review, much less decide the error of law ground, and give the directory
order consequent upon such decision. Section 7(2)(a) precluded the high court from
doing so.

[13] Section 7(2) of PAJA is thus binary in its application. Either the obligation to
exhaust an internal remedy is excused by the court, or it is not. If it is not, then a
litigant must exhaust its internal remedy, and until it does so , the court may not
exercise its review jurisdiction. What a court may not do is to direct a party first to
exhaust an internal remedy, but nevertheless venture upon the merits of the review.

[14] The high court’s order requires the Minister to follow its directory order. It ties
the hands of the Minister in coming to a decision on the internal appeal, rather than
permitting the Minister to come to his own decision on the important question of the

permitting the Minister to come to his own decision on the important question of the

1 Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Limited and Others [2013]
ZACC 48; 2014 (3) BCLR 265 (CC); 2014 (5) SA 138 (CC) at para 116.

7

legal regime of application to the closure application. And it has the entailment that
should the review be pursued by DBCM, after the Minister has decided the internal
appeal, the error of law ground would have become res judicata. These unfortunate
consequences are precisely what adherence to s 7(2) of PAJA avoids.

[15] For these reasons the appeal must succeed. Since DBCM has not appealed the
high court’s remittal of the matter to the Minister that part of the high court’s order
remains. The directory component of the order must be excised.

[16] As to costs, these follow the result in the ordinary way. The respondents did
not oppose the award of costs, including the costs of two counsel, should they not
prevail.

[17] In the result the following order is made:
1 The appeal is upheld with costs, including the costs of two counsel.
2 Paragraphs 1 and 2 of the high court’s order are set aside and replaced with the
following:
‘The appellant is directed to exhaust the internal remedies provided by s 96 of
the Mineral and Petroleum Resources Development Act 28 of 2002 and the
matter is accordingly referred back to the third respondent, who is directed to
consider and decide the applicant’s internal appeal within 30 days of the grant
of this order and to communicate his decision to the applicant within 10 days
of it being taken.’


______________________
D N UNTERHALTER
JUDGE OF APPEAL

8

Appearances

For the appellant: C D A Loxton SC (with him A Milovanovic -Bitter
and P J Daniell)
Instructed by: Bowman Gilfillan Inc., Johannesburg
McIntyre van der Post Attorneys, Bloemfontein

For the respondents: C Gumbi (with him S Kunene)
Instructed by: The State Attorney, Pretoria
The State Attorney, Bloemfontein.