IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: ¥1:S/NO
(2) OF INTEREST TO OTHER JUDGES: ¥ES/NO
(3) REVISED
DATE: 17 June 2026
SIGNATURE:.
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Case No. 2026-089786
In the matter between:
LUNGILE MLOTSHWA
And
THE MINISTER OF MINERAL AND PETROLEUM
RESOURCES
THE DIRECTOR-GENERAL: DEPARTMENT OF
PETROLEUM AND MINERAL RESOURCES
THE REGIONAL MANAGER: MINERAL REGULATION
(NORTHERN CAPE), DEPARTMEN T OF MINERAL AND
PETROLEUM RESOURCES
OCHRE SHIMMER TRADE AND INVEST 78 (PTY) LTD
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
AFRIMAT IRON ORE (PROPRIETARY) LTD
In re:
AFRIMAT IRON ORE (PROPRIETARY) LTD
And
MINISTER OF MINERAL AND PETROLEUM
RESOURCES
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Fifth Respondent
APPLICANT
FIRST RESPONDENT
DIRECTOR -GENERAL: DEPARTMENT OF PETROLEUM SECOND RESPONDENT
AND MINERAL RESOURCES
REGIONAL MANAGER: MINERAL REGULATION
(NORTHERN CAPE), DEPARTMENT OF MINERAL AND
PETROLEUM RESOURCES
THIRD RESPONDENT
OCHRE SHIMMER TRADE AND INVEST 78 (PTY) LTD FOURTH RESPONDENT
LUNGILE MLOTSHWA FIFTH RESPONDENT
Coram:
Heard on:
Delive red:
Millar J
12 June 2026
17 June 2026 - This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded
to the CaseLines system of the GD and by release to SAFLII. The
date and time for hand-down is deemed to be 09H00 on 17 June
2026.
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JUDGMENT - LEAVE TO APPEAL
MILLAR J
[1] _ On 12 June 2026, I heard the application for leave to appeal against a judgment
and order handed down on 18 May 2026. The judgment and order handed down,
besides granting the present applicant, Ms Mlotshwa, leave to intervene in the
proceedings, also reviewed and set aside a failure to decide on the transfer of a
mining right. Consequential relief was granted which included ordering a consent
and subsequent cession of the mining right in favour of the applicant in the main
application (Afrimat) who are the fifth respondent in this application. The
background to the matter is set out in the main judgment and is not repeated
here.
[2] The application for leave to appeal is predicated upon two broad grounds. The
first is that, properly construed a reference to "an interest" in a mining right
referred to in section 11 (1) of the Minerals and Petroleum Resources
Development Act1 (MPRD) ought to be interpreted in the widest possible sense
as opposed to the interpretation afforded by this Court. The second is that this
court created new law. I intend to deal with each in turn.
[3]. Firstly, it was argued that whether or not the applicant was a shareholder or not
of a company that held a mining right, the legislation in section 11 (1)
contemplated an interest as being direct, if the mining right had been registered
in her name, in whole or in part or for example, if she was a member of a
community which was the holder of a mining right.
[4] It was further argued that the reference in the second part of section 11 (1) to a
"controlling interest" in a company (which was the holder of a mining right) was
1 28 of 2002.
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neither here nor there and was separate and distinct from the interest referred to
in the first part of section 11 (1 ). The section read clearly means that whoever
holds an interest in a mining right and wishes to cede or transfer it, must obtain
the consent of the Minister. This is not contentious. However, the way the section
is framed, makes it clear that whoever holds the mining right is the person who
must obtain the consent so for example, if more than one person has a share in
a mining right in their own name, each of them would have to obtain consent from
the Minister. The position is materially different with companies because the
company as a legal person is the holder of the interest (and the right in the present
case). This is why the section refers to a "controlling interest".
[5] It was argued for Afrimat that since the decision of this court was consonant with
the law as set out in the cases of Mogale Al/oys2 and Vantage3, that there was
simply no prospect that another court would come to a different conclusion.
[6] Secondly, it was also argued for Ms Mlotshwa that this court had made new law
by negating the requirements of the Promotion of Administrative Justice Act4
(PAJA) by exercising a discretion to substitute its own decision for that of the
Minister without referring the matter back. In this regard, Ms Mlotshwa referred
to paragraph [47] in the judgment of Trencon Construction (Pty) Ltd v Industrial
Development Corporation of South Africa (Ltd) and Another. 5
[7] • The argument advanced on behalf of Afrimat regarding the exercise of this court's
discretion and rebutting the argument for Ms Mlotshwa, is compelling. It was
framed as follows:
"19. That leaves the ground attacking the exercise of the court's discretion.
The exercise of this Court's discretion to order the D-G, alternatively the
Minister, to give consent was an exercise of a true discretion, by an urgent
2 Mogale Alloys (Pty) Ltd v Nuco Chrome Bophuthatswana (Pty) Ltd and Others 2011 (6) SA 96 (GSJ).
3 Vantage Goldfields SA (Pty) Ltd and Another v Arqomanzi (Pty) Ltd and Others 2023 JDR 2275 (SCA).
4 3 of 2000.
5 2015 (5) SA 245 (CC).
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court, which had to respond as best it could to the peculiar circumstances
of the case.
20. That was a true discretion, and it is not easily disturbed. It lies within the
range of permissible decisions that was observed by the Constitutional
Court in Public Protector v South African Reserve Bank 2019 6 SA 253
(CC) at 144:
"A true discretion exists where the lower court has a number of
equally permissible options available to it. An appeal court will not
lightly interfere with the exercise of a true discretion. Ordinarily, it
would be inappropriate for an appeal court to interfere in the
exercise of a true discretion. unless it is satisfied that the discretion
was not exercised judicially. the discretion was influenced by wrong
principles, or a misdirection on the facts, or the decision reached
could not reasonably have been made by a court properly directing
itself to all the relevant facts and principles". (Emphasis added)".
[8] The test for the granting of leave to appeal pertinent to the present matter is set
out in section 17(1) 6 of the Act as follows:
"(1) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that
(a) (i) the appeal would have a reasonable prospect of success or
(ii) there is some other compelling reason why the appeal should
be heard, including conflicting judgments on the matter
under consideration"
6 10 of 2013. See also Fusion Properties 233 CC v Stellenbosch Municipality 2021 JDR 0094 (SCA) at
para [18].
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[9]. I have considered the grounds upon which the application has been brought and
the reasons given by me in the judgment for the order granted. I have also
considered the submissions made by counsel for the granting of leave to appeal
on the part of Ms Mlotshwa and those opposing the granting of leave to· appeal
on behalf of Afrimat together with the submissions made in each of the respective
heads of argument.
[1 0] I am not persuaded that another court would come to a different conclusion or
that there is any other compelling reason for the granting of leave to appeal. The
application is to be refused. The costs will follow the result.
[11] In the circumstances, I make the following order:
[1 1.1] The application for leave to appeal is refused.
[11 .2] The applicant, Ms Mlotshwa, is ordered to pay the costs of the fifth
respondent (Afrirnat) on the scale as between party and party which
costs are to include the costs consequent upon the engagement of 2
counsel where so employed, one of whom is a senior counsel, both on
scale C.
HEARD ON:
JUDGMENT DELIVERED ON:
A MILLAR
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
12 JUNE 2026
17 JUNE 2026
COUNSEL FOR MS MLOTSHWA:
INSTRUCTED BY:
REFERENCE:
COUNSEL FOR AFRIMAT:
INSTRUCTED BY:
REFERENCE:
ADV. D MPOFU SC
ADV. T MODISE
MABUZA ATTORNEYS
MR. E MABUZA/ MS. I MNDEBELE
ADV. L SISILANA SC
ADV. L CROW
DENEYS
MR. A VOS/MR. F LE ROUX
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