IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DELETE WHICHEVER IS NOT ~ICABLE CAS E NO : 2024-044452
( 1) REPORT ABLE: 'tB'tNO
(2) • OF INTEREST TO OTHER JUDGES: YES/NO
(3) REV ISED :
... J./.1./..i.~ .
DATE
In the matter between:
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Rio Tinto Mining and Exploration
Proprietary Limited
and
Buchuberg Resources Proprietary Limited
Regional Manager: Mineral Regulation,
Western Cape Province
Deputy Director General: Mineral and Petroleum
Regulation
Order:
Applicant
First Respondent
Second Respondent
T hird Re spondent
1 . The application is dismissed.
2. The Applicant is ordered to pay the costs of the First Respondent, including the
costs of two counsel where so employed.
JUOGMENT
TOLMAY J
2
1. The applicant Rio Tinto Mining and Exploration Proprietary Limited
("RTME") applies for an interim interdict to prohibit the first respondent Buchuberg
Resources Proprietary Limited ("Buchuberg") from conducting prospecting in
terms of two prospecting rights granted to Buchuberg in November 2023 by the
third respondent ("Deputy Director-General") in terms of the Minerals and
Petroleum Resources Development Act1 (MPRDA) .RTME says that it became
aware of the decisions to grant prospecting rights ("the Grant Decisions")in
February 2024.RTME has up to date hereof not brought any challenge to the Grant
Decisions. But has indicated that it intends doing so in the future. It seeks interim
relief pending the determination of a review application ("the Review Application")
it brought in 2022 against the decisions taken by the second respondent ("the
Regional Manager") in 2021 to accept Buchuberg's application for prospecting
1 28 of 2002.
3
rights that was submitted by Buchuberg in January and February 2021 ("the
Acceptance Decisions").
2. The following issues need to be determined:
2.1. Whether RTME has established the requirements for an interim interdict.
2.2. Whether the legality, validity and effectiveness of the Prospecting Right
Decisions should be suspended on an interim basis pending the final
determination of the Review Application, under section 8(1)(e) of the
Promotion of Administrative Justice Act (PAJA).
2.3. Whether RTME should be exempt from the duty to exhaust any internal
remedies.
3. RTME first launched an urgent application seeking materially the same relief as in
this application on 28 March 2024 ('the first urgent application") but withdrew it on
18 April 2024 after receiving Buchuberg's answering affidavit. RTME then launched
another urgent application on 22 April 2024, (the second urgent application). This
application was struck from the roll due to lack of urgency. On 18 June 2024, RTME
set down this application for an interim interdict on the opposed motion roll for
hearing.
4. The background facts are that on 27 August 2020, Buchuberg applied for two
prospecting rights on contiguous areas on the West Coast of the Western Cape .
Buchuberg submitted prospecting right application WC30 /5/1/1/2/10338PR
4
("application 10338PR") and application WC30/1 /1/2/10339PR ("application
10339PR").
5. On 28 August 2020, RTME submitted its own application for a prospecting right to
prospect for the same minerals as Buchuberg on 56 properties, including 32
properties that were the subject of Buchuberg's applications (the overlapping
properties"). This application is referred to as application 10340PR.
6. On 1 and 8 September 2020, the Reg ional Ma nager accepted Buchuberg's
applications 10338PR and 10339PR (the initial applications) respectively. On 21
September 2020, the Regional Manager partially accepted RTME's application
10340PR , the acceptance excluded prospecting rights on the overlapping
properties.
7. Because Buchuberg's initial applications were submitted before RTME 's, application
they had to be dealt with ahead of RTM 's applications in terms of s 9 of the MPRDA.
Once Buchuberg's applications were accepted, RTME 's own application for a
prospecting right in respect of the overlapping properties could not be accepted by
the Regional Manager, in terms of s16(2)(c) of the MPRDA. The Regional Manager
therefore issued a letter to RTME in September 2020 indicating that he had
accepted application 10340PR only in respect of the properties that were not the
subject of Buchuberg's initial applications.
8. Section 9 of the MPRDA reads as follows:
"Order of processing of applications:
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( 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);
(b) different days must be dealt with in order of receipt.
[Para. (b) substituted bys. 6 (a) of Act 49 of 2008 (wef 7 June 2013).]
(2) When the Minister considers applications received on the same day he or she
must give preference to applications from historically disadvantaged persons.
[Sub-s. (2) substituted bys. 6 (b) of Act 49 of 2008 (wef 7 June 2013).]"
9. On 22 January 2021, Buchuberg lodged applications WC30/5/1/1/2/10352PR
("application 10352PR") and WC30/5/5/1/1/2/10353PR ("application 10353PR"),
which were identical to the initial applications. On 3 February 2021, Buchuberg
withdrew the initial applications. Application 10352PR was accepted by the Regional
Manager on 10 February 2021 and application 10353PR was accepted by the
Regional Manager on 3 March 2021.
10. RTME accepts that its application was correctly rejected by the Regional Manager
at the time it was submitted, on 8 April 2021. It is however of the view that once the
initial applications were withdrawn, its application 10340PR was revived. And seeing
that it was next in line, the prospecting rights on the overlapping properties should
have been granted to RTME.
6
11. RTME submitted an appeal to the Director-General in terms of s96 of the MPRDA
against the Regional Manager's decisions to accept Buchuberg's applications
10352PR and 10353PR . On 20 January 2022 the Director-General dismissed
RTME's appeal ("the Appeal Decision").
12. On 20 December 2022, RTME launched the Review Application to review and set
aside the Director-General's Appeal Decision and the Acceptance Decisions.
Buchuberg opposes the Review Application. This application is still pending.
13. Buchuberg's applications were evaluated by the DMRE and in November 2023, the
Deputy Director-General issued the decision granting the prospecting rights. The
prospecting rights were notarially executed on 25 January 2024 and registered in the
Mineral and Petroleum Titles Registration Office on 27 February 2024 and 15 March
2024. Buchuberg informed RTME that it had been granted prospecting rights on 20
February 2024.
14. At this point the Grant Decisions have not been challenged. RTME has now taken
steps to include such a challenge in the review application. An amended notice of
motion was delivered in the Review Application, which included relief in respect of
the Grant Decisions. Buchuberg objected to the amendment as it did not comply with
Rule 28 of the Uniform Rules of Court.
7
15. RTME withdrew the amendment and gave notice of an amendment in terms of Rule
28 of the Uniform Rules of Court. Buchuberg again objected on the basis that the
decision-maker of the Grant Decisions, the Deputy Director-General, was not a party
in the Review Application and no relief could be sought in respect of the Grant
Decisions, and on the basis that there were no allegations in the founding papers in
the Review Application in support of the relief sought in respect of the Grant
Decisions. RTME then allowed the proposed amendment to lapse.
16. In August 2024, RTME brought an application to join the Deputy Director-General as
a respondent in the Review Application, which it says was enrolled for hearing in
March 2025. It says that once the Deputy Director-General has been joined as a
respondent, it will seek to amend its notice of motion and deliver a supplementary
founding affidavit in the Review Application. No information regarding the joinder
application's outcome was provided to this Court.
17. There is no dispute that in this matter, the Regional Manager's decisions to accept
Buchuberg's initial applications were correct at the time they were taken. RTME 's
complaint is that rather than rejecting their application, the Regional Manager ought
to have held it in abeyance - until Buchuberg's application was refused or, if
granted, until it expired.
8
18. At this stage this Court is only seized with an application for an interim interdict. The
legal requirements for an interim interdict are well established. It must be
demonstrated that -
18.1 a prima facie right exists to final relief in due course. The applicant must
establish a prima facie right, which means demonstrating the existence of a
right in terms of substantive law. This right does not need to be clear or
definitive at this stage but must be sufficient to justify the interim relief
sought;
18.2 a reasonable apprehension of irreparable harm if the interim interdict is not
granted This harm must be such that it cannot be adequately remedied by
other means , such as damages , and must be objectively assessed;
18.3 that the balance of convenience favours the grant of an interim interdict. The
court must weigh the prejudice that the applicant will suffer if the interim
interdict is not granted against the prejudice the respondent will suffer if it is
granted. The stronger the applicant's prospects of success, the less the
need for the balance of convenience to favour them, and vice versa and;
18.4 that there are no reasonable alternative remedies available.
19. These requirements are interrelated and must be considered holistically by the court.
The court retains a discretion in granting or refusing an interim interdict, and this
discretion must be exercised judicially based on the facts of each case.
9
20. As far as the requirement for a prima facie right is concerned RTME submits that it
has prospects of success in the Review Application. The crux of RTM E's argument
is that s9 of the MPRDA envisages a queuing system and for purposes of the
argument relies on Aquila Steel (South Africa) (Pty) Ltd V Minister of Mineral
Resources and Others2. This was a Review Application under PAJA seeking to set
aside prospecting rights that was granted in terms of the M PRDA. The Co nstitutional
Court explained that:
"Section 9 requires that, if received on the same day, competing applications from
historically disadvantaged persons must enjoy preference; but, if received on
different days, competing applications must be dealt with in the order in which they
are received.' Section 9 indeed provides for a queuing system which may indeed
imply that one cannot withdraw an application and replace it with a new application
and by so doing jump the queue. "3
21. It was argued on behalf of Buchuberg that even if RTME obtains the final relief it
currently seeks in the Review App lication, this will not have the effect of prohibiting
Buchuberg from conducting prospecting. This is because the Review Application
challenges only the lawfulness of the Acceptance Decisions and these decisions
have been superseded by the Grant Decisions.
22. RTME counters this argument by submitting that the setting aside of the Grant
Decisions must follow if it is successful in setting aside the Acceptance Decisions.
2 2019 (3) SA 621 (CC) (15 February 2019).
3 Id. at para 77.
10
In so doing it relies on Oudekraal Estates (Pty) Ltd v City of C ape Town and Others4
the argument is that the judicial invalidation of an administrative decision has the
automatic effect of invalidating every subsequent administrative decision that has
been mad e as a consequence of the administrative decision that the court has
declared unlawful.
23. What Oud ekraal made clear is that in appropriate circumstances a consequential
act may be declared invalid, once an earlier act is declared invalid. The principle is
not that the consequential act must be automatically set aside. In review
proceedings the court has a wide discretion to grant an appropriate remedy where
an impugned decision is found to be unlawful and such a remedy must be fair to all
effected by it while vindicating the right that was violated.51n Bengwen yam a the
Con stitutional Court explained:
'The apparent anomaly that an unlawful act can produce legally effective consequences is
not one that admits easy and consistently logical solutions. But then the law often is a
pragmatic blend of logic and experience. The apparent rigour of declaring conduct in
conflict with the Constitution and PAJA unlawful is ameliorated in both the C onstitution and
PAJA by providing/or a just and equitable remedy in ils wake. I do not think that it is wise
to al/empt to lay down inflexible rules in determ ining a just and equitable rem edy following
upon a declaration of unlawful administrative action. The rule of law mu st never be
4 2004 (6) SA 222 (SCA) (28 May 2004).See also Seale v Van Rooyen no and Others; Provincial Go vernmen t, North
W est Province v Van Rooyen NO and Others 2008 (4) SA 43 (SCA) (27 March 2008).
5 Steenkamp N O v Provincial Tender Board of the Eastern Ca pe 2007(3) SA 121 (CC) par29; BENG W ENYA M A
MIN ERALS (PTY) LTD AND OTHERS v GENORAH RESOURCES (PTY) LTD AND OT H ERS 2011 (4) SA 113
(CC).(Bengwenyama) .
I I
relinquished, but the circumstances of each case must be examined in order to determine
wh ether factual certainty requires som e am elioration of legality and, if so, to what extent.
The approach taken will depend on the ki.nd of challenge presented - direct or collateral;
the interests involved, and the extent or materiality of the breach of the constitutional right
to just administrative action in each particular case. '6
24. The above illustrates that a court has a wide discretion whether to grant or withhold
a remedy even if a ground of review has been established. 7 One can then
conclude that the court hearing the Review Application will consider all the relevant
circumstances of this case before determining an appropriate remedy, if any, even
if it is established that the impugned decision was unlawful. The prospect of
success is thus not as clear as was proposed by RTME. and whether the interim
interdict should be granted will require a balancing and weighing up of all the
requirements of an interim interdict. There is a further aspect that impacts on the
prospects of success and that is that RTME did not exhaust the internal remedies
available to it under the MPRDA. This aspect is discussed later in the judgment
when the issue of internal remedies is considered.
6 Id. Par.SS.
7 NATIONAL ENERGY REGULATOR OF SOUTH AFRICA AND ANOTHER v PG GROUP (PTY) LTD AND OTH ER S 2020 (1)
SA 450 (CC) par.89.
12
25. Whether RTME will suffer irreparable harm if the interdict is not granted is now
considered. The applicable test is objective and must be determined on the facts
before the court.
26. RTME is not the owner of the overlapping properties and even if any physical harm
occurs, Buchuberg will be liable for that damage. Buchuberg was obliged to provide
an environmental management plan in terms of the MPRDA and the National
Environmental Management Act 8(''the NEMA"). These acts collectively require an
applicant for a prospecting right to obtain an environmental authorisation for its
prospecting activities. It is also required to undertake an environmental assessment
of the likely impact of prospecting and to put in place remed ial measures to mitigate
any such impacts. An applicant is also obliged to put in place financial provision
sufficient to remedy such impact.
27. Buchuberg has concluded land access agreements with the relevant owners of the
properties. Section 54 of the MPRDA makes provision for the payment of
compensation to a landowner for any loss or damage caused by prospecting, even
without such an agreement. Consequently, there is no merit in the argument that
RTME will suffer physical harm if the interdict is not granted.
28. Another argument raised by RTME is that Buchuberg will analyse and obtain
valuable information in respect of the mineral resources on the prospecting area that
8 107 of 1998.
13
should be proprietary to RTME if it succeeds in obtaining its own prospecting right
.However, if the review application succeeds ,RTME will be granted prospecting
rights and will have exclusive mining rights and any information obtained by
Buchuberg will be of no use to it.
29. Finally, RTME says that Buchuberg, in its prospecting, will remove material that
contains the "best data", preventing RTME from accessing this data. In its
answering affidavit, Buchuberg says that its drilling is limited in scale and scope.
RTME does not provide a substantive response to this in its replying affidavit.
30. The enquiry into balance of convenience follows .There is a relationship between
the prima facie right that must be established and the balance of convenience. It
is an established principle that the weaker an applicant's prospects of success is,
the greater the need for the balance of convenience is to favour it. RTME says that
it will suffer irreparable harm if the interim interdict is not granted. This argument
has already been dealt with and it was shown that there simply is no merit in it.
31. There is no merit in the argument that Buchuberg will suffer no prejudice if the
interdict is granted. Buchuberg has already spent approximately RS.4 m illion on
prospecting. This money can only be recouped if and when the mining ultimately
starts mining. The granting of interim relief will delay the process.
32. There is also a public interest element at play. The general principle underlying the
MPRDA is to ensure the greatest possible access to the national mineral
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resources. Once a prospecting right is granted, the public interest supports the
exploitation of the resources. The granting of interim relief will postpone the
benefits that prospecting and ultimately mining will bring to both the local
communities and the public in general. This must be weighed against the interests
of RTME which is at this stage purely commercial in nature It is obvious that the
public interest should be preferred. The balance of convenience accordingly does
not favour RTME.
33. RTME faces another obstacle as in respect of the Grant Decisions, RTME has not
exhausted internal remedies. Section 7(2) of PAJA requires the exhaustion of any
internal remedy, unless exceptional circumstances exist. No case is made out on
the papers that exceptional circumstances exist.
34. RTME should have submitted an appeal to the Director-General in terms of s96 of
the MPRDA . In terms of s96(2)(a) of the MPRDA , RTME could have requested
the Director-General to suspend the Grant Decisions pending the determination of
the appeal. Such a suspension would have provided the relief sought in this
application.
35. RTME raised several reasons why it was not obliged to exhaust the internal
remedy provided for in s96 of the MPRDA. First, RTME says the remedy of a
suspension request is not adequate because the MPRDA does not expressly make
15
provision for the determination of requests for suspensions on an urgent basis. No
specific time periods are set out in the MPRDA for the request for suspension and
there is nothing to indicate that it could not have been brought on an urgent basis.
36. Second, RTME makes the cynical observation that it should not be required to
exercise the internal remedy because it should not be required 'to place its faith in
the off-chance that the Director-General will agree to suspend the Prospecting
Right Decisions and do so urgently.' This argument cannot be supported as it
would require the court to disregard legislation and the important role
administrators play. Such an approach would place the principle of separation of
powers in jeopardy. The Director-General's powers and duties are set out in the
MPRDA and he is obliged to act within the confines of the statutory framework. If
he fails to comp ly with his obligations RTME will be entitled to approach the court
for appropriate relief.
37. Third, in the heads of argument RTME argued that it could not submit an appeal
to the Director-General because it does not seek to challenge the merits of the
Grant Decisions. This argument does not have any merit. The fact that RTME
sought to include the Grant Decisions in the review by way of amendment points
to a contradictory position. In any event, the fact that an appeal may not be
meritorious can never justify non-compliance with legislation. In any event s96
makes specific provision for the suspension of the Grant Decision which could
16
have addressed the dispute pending the determination of the Review App lication.
RTME therefore had an alternative remedy and should have availed itself of it.
38. When one considers the requirements for an interim interdict holistically it is
apparent that RTME did not succeed in making out a case for such relief. The facts
underlying this case justifies an exercise of the Court's discretion in favour of
Buchuberg.
39. In prayer 4 of the notice of motion, RTME prays for an order "10 the extent that the
court deems it necessa,y to do so for the purposes of granting" the interim interdict. In
the heads of argument RTME clarified that the suspensory relief is aligned with the
primary relief sought. This prayer can only be granted if it was found that RTME
satisfied the requirements for an interdict and the suspension of the G rant
D ecisions is necessary. Due to the conclusion reached in relation to the interdictory
relief this Court does not have to consider this aspect.
The following order is made:
1. The application is dismissed.
2. The applicant is ordered to pay the costs of the respondent, including costs for two
counsel if employed on scale C .
RTOLMAY
JUDGE OF THE HIGH COUR T
GAU TENG DIVISION, PRE TORIA
17
Appearances
Counsel for Applicant: Adv MD Stubbs instructed by Webber Wentzel
Counsel for First Respondent: Adv M Wesley SC & Adv P Maharaj-Pillay instructed by
Malan Scholes Inc
Date heard: 6 February 2025
Date of Judgment: 01 September 2025