Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others (CCT 39/10) [2010] ZACC 26; 2011 (4) SA 113 (CC) ; 2011 (3) BCLR 229 (CC) (30 November 2010)

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[2010] ZACC 26
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Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others (CCT 39/10) [2010] ZACC 26; 2011 (4) SA 113 (CC) ; 2011 (3) BCLR 229 (CC) (30 November 2010)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 39/10
[2010] ZACC 26
In the matter between:
BENGWENYAMA MINERALS (PTY) LTD
….........................................
First
Applicant
BENGWENYAMA-YE-MASWAZI TRIBAL COUNCIL
…................
Second
Applicant
TRUSTEES FOR THE TIME BEING OF THE
BENGWENYAMA-YE-MASWATI TRUST
….................
Third to Thirteenth Applicants
and
GENORAH RESOURCES (PTY) LTD
…................................................
First
Respondent
MINISTER FOR MINERAL RESOURCES
…....................................
Second Respondent
DIRECTOR GENERAL OF THE DEPARTMENT
OF MINERAL RESOURCES
….............................................................
Third
Respondent
REGIONAL MANAGER OF THE DEPARTMENT OF
MINERAL RESOURCES, LIMPOPO REGION
…..............................
Fourth
Respondent
DEPUTY DIRECTOR GENERAL OF THE
DEPARTMENT OF MINERAL RESOURCES
…..................................
Fifth
Respondent
together with
BENGWENYAMA-YE-MASWATI ROYAL COUNCIL
…..................
Intervening Party
Heard on : 7 September 2010
Decided on : 30 November 2010
JUDGMENT
FRONEMAN J:
Introduction
This
case turns on the lawfulness of the grant to a company of a
prospecting right on the land of another. This deceptively
simple
statement of the ultimate legal issue at stake, though true, hides
more than it reveals. First, it explains little of
the invasive
nature of a prospecting right on the ordinary use and enjoyment of
the property by its owners. Second, it says
nothing about the
profoundly unequal impact our legal history of control of and
access to the richness and diversity of this
country’s
mineral resources has had on the allocation and distribution of
wealth and economic power. Lastly, it does
little to illuminate the
effect of past racial discrimination on the ownership of land.
The
applicants seek to set aside the grant of a prospecting right on
their land to the first respondent by the state. On one
level it is
simply a dispute between an owner of land and a person who has been
awarded a prospecting right over that land.
The owner of the land
is, however, no ordinary owner. It is a community that was
previously deprived of formal title to their
land by racially
discriminatory laws. Add to this the fact that the entity to which
the prospecting right has been granted
qualifies for treatment as a
historically disadvantaged person, and it becomes apparent that the
issues are more complex than
the first sentence of this judgment
conveys.
Equality,
together with dignity and freedom, lie at the heart of the
Constitution.
1
Equality includes the full and equal enjoyment of all rights and
freedoms.
2
To promote the achievement of substantive equality the Constitution
provides for legislative and other measures to be made
to protect
and advance persons disadvantaged by unfair discrimination. The
Constitution also furnishes the foundation for measures
to redress
inequalities in respect of access to the natural resources of the
country.
3
The Mineral and Petroleum Resources Development Act
4
(Act) was enacted amongst other things to give effect to those
constitutional norms. It contains provisions that have a material

impact on each of the levels referred to, namely
that of individual ownership of land, community ownership of
land and the empowerment of previously disadvantaged people to gain

access to this country’s bounteous mineral resources.
Against
this background, I will first set out the facts and the issues
arising for determination. I will then refer to the legal
framework
within which the issues should be assessed, before discussing and
evaluating the issues within that framework. The
conclusion and the
remedies flowing from this will finally be dealt with. The parties’
contentions and submissions will
be set out in my evaluation and
discussion of the issues and will thus not be dealt with
separately. In the end the issue to
be decided narrows down to a
question of administrative fairness.
Parties
The
first applicant is Bengwenyama Minerals (Pty) Ltd (Bengwenyama
Minerals). The second applicant is the Bengwenyama-Ye-Maswazi

Tribal Council and the third to thirteenth applicants are the
Trustees of the Bengwenyama-Ye-Maswati Trust. The Council and
the
Trustees I shall refer to as the Community.
The
first respondent is Genorah Resources (Pty) Ltd (Genorah),
previously known as Tropical Paradise 427 (Pty) Ltd. The second

respondent is the Minister for Mineral Resources (Minister). The
Department of Mineral Resources was previously known as the

Department of Minerals and Energy (Department). The third
respondent is the Director General of the Department (Director

General), the fourth respondent is the Regional Manager of the
Department, Limpopo Region (Regional Manager) and the fifth

respondent is the Deputy Director General of the Department (Deputy
Director General). These officials represent, at different
levels,
the Department. The Bengwenyama-Ye-Maswati Royal Council, an
intervening party, was admitted as the sixth respondent
in the
North Gauteng High Court, Pretoria (High Court) but plays no
material role in these proceedings.
Facts
Genorah
was awarded prospecting rights over five properties in September
2006, including two properties, Eerstegeluk and Nooitverwacht,
on
which members of the Community reside. The Community has enjoyed
uninterrupted occupation of Nooitverwacht for more than
a century.
It was dispossessed of Eerstegeluk in 1945, but has successfully
lodged a land claim for its formal restoration
to the Community.
Despite some earlier skirmishes, it is now accepted that the
Community holds both properties (the farms)
as owner for the
purposes of the application of the Act.
5
The farms are situated in the Limpopo province.
It
became apparent, quite early on, that the Community had an interest
in acquiring prospecting rights on the farms. On 2 December
2004 it
lodged objections in writing to the Department against the granting
of applications for prospecting on the farms (and
another property)
on the ground that the Community wanted to be accommodated
meaningfully in the projects. When no acknowledgement
of receipt of
this letter was received, the Community addressed a further letter
to the Department dated 19 January 2005 in
which it noted that no
acknowledgement of receipt had been forthcoming, but in which it
thanked the Department for the advice
it had received. No
prospecting rights over the farms were granted in respect of these
applications.
Genorah’s
interest in obtaining prospecting rights over the Community’s
farms surfaced in early 2006. A representative
of Genorah visited
the traditional leader of the Community, Kgoshi Nkosi, on 3
February 2006 and informed him that Genorah
wished to speak to him
about certain prospecting applications. There is a dispute on the
papers about what exactly transpired
at this meeting, but it is
common cause that the representative left a prescribed consultation
form. The form simply provides
blocks to be ticked “yes”
or “no” to indicate whether there are any objections to
the prospecting applications.
If the answer is “yes”, a
further five lines are provided to detail the “full
particulars” of the objection.
The form was never signed by
anyone on behalf of the Community.
On
13 March 2006 the Kgoshi replied to Genorah in the following terms:
“
Subject:
Your Notice and Consultation application for a prospecting right on
Nooitverwagt 324 KT to Bengwenyama.
Response: Your letter that
notifies us or rather consults us about your interest in our land
had been received. As your letter
requires us to enable you to
comply with relevant provisions of the Act, as well as
completion/filling of the form attached,
we would like to advise
that Bengwenyama-ya-Maswati would do that, once we know each other.
For now, we don’t know each
other well. The form that you
request us to complete, seems to be more binding, as it does not
fall within the definition of
our standard letter that we give to
Companies that applies for similar rights.
Bengwenyama-ya-Maswati has an
interest in the Property you applied for. We submitted an
application for prospecting on three farms
including Nooitverwacht
324 KT.
The good luck wished to
ourselves and other companies in an attempt of getting similar
rights are also wished to your Company.”
To this
old-worldly and courteous response Genorah did not reply.
No
consultation took place with the Community in respect of
Eerstegeluk at all. Genorah approached another tribal authority
in
this regard and was informed that the members of the Community also
occupied this property.
Genorah
had submitted its application for prospecting rights over five
properties, including the farms, to the Department on
6 February
2006. It supplemented its application on 17 February 2006 by
referring to consultation with the Community in the
following
terms:
“
Nooitverwacht
324 KT: Tropical Paradise introduced themselves to the Tribal
Authority and Kgoshi Nkosi on the 3
rd
of February 2006 but have not received a response to date.”
On
20 February 2006 the Department informed Genorah that its
application had been accepted for further processing and that it

was required to: submit an environmental management plan; consult
with the landowner or lawful occupier of the land, as well
as with
other interested and affected parties; and to report the results of
the consultation to the Regional Manager.
6
The environmental management plan was submitted by Genorah on 21
April 2006 but despite the letter addressed to it by the Kgoshi,

dated 13 March 2006, Genorah made no further attempt to engage or
consult with the Community. Under the requirements for the

environmental management plan, consultation in that regard also had
to take place with affected persons, but none took place
with the
Community.
The
Community pursued its own application for prospecting rights
through Bengwenyama Minerals. On 10 May 2006, Bengwenyama Minerals

addressed a letter to the Department titled “Application for
Prospecting Permit.” The letter recorded that Bengwenyama

Minerals was the applicant, provided details of the type of
minerals involved, of its relationship with the Community and of

its shareholding, financing and technical support. It ended the
letter by expressing hope for the receipt of “an informative

reply.” On 9 June 2006 the initial investment agreement
between Bengwenyama Minerals, the Community and other interested

parties was concluded. Bengwenyama Minerals then submitted an
application for prospecting rights on the prescribed form.
7
The Department did not accept this application because of
deficiencies relating to the production of a title deed and because

a prospecting right had already been granted to another party in
respect of a third property applied for.
On
14 July 2006 Bengwenyama Minerals submitted another application for
prospecting rights in respect of the farms and this application
was
accepted as proper by the Department on 24 July 2006. In its letter
of acceptance of this application the Department informed

Bengwenyama Minerals that the application complied with section
16(2) of the Act, that it had to consult with interested and

affected parties and that it had to file an environmental
management plan to comply with section 16(4) of the Act. The letter

also stated that other entities, including Genorah, had applied for
prospecting rights on the farms.
In
their papers the Community and Bengwenyama Minerals asserted that
the Department was at all times aware of its interest in
acquiring
prospecting rights on the farms. The Department expressed concern
that the initial investment agreement did not adequately
safeguard
the Community’s interests in the vehicle used to acquire
these rights, namely Bengwenyama Minerals. As a result,
a final
investment agreement was concluded in terms of which it was
guaranteed that the Community’s shareholding in Bengwenyama

Minerals would be guaranteed at a certain minimum level. These
facts, relating to the Department’s knowledge of the
Community’s interest in pursuing its own application for
prospecting rights and the Department’s assistance in
addressing problems relating thereto, were not contradicted by the
Department at any stage.
On
15 September 2006 the final investment agreement was concluded. On
the next day, the Kgoshi of the Community wrote a letter
to the
Department stating his concurrence and approval of Bengwenyama
Minerals acting as a “black empowered enterprise”
on
behalf of the Community. Approximately two weeks later the
Department informed Bengwenyama Minerals that it needed to furnish

a guarantee of R20 000 to cover the costs of the potential
environmental impact caused by the operations, by 20 November

2006. On 6 October 2006 the Kgoshi wrote a letter regarding the
Community’s application to prospect over the farms, in
which
he stated that Genorah (as well as other companies) had failed to
meet or consult with the Community or him as the Kgoshi
of the
Community in regard to prospecting rights on the farms. He
expressed surprise that during the process of the Community’s

application they were informed of other applications and recorded
their objection to them. On 10 October 2006 the requisite
financial
guarantee for environmental rehabilitation was provided by
Bengwenyama Minerals to the Department.
What
is surprising and perplexing is that during these continuing
exchanges between the Community and Bengwenyama Minerals on
the one
hand and the Department on the other the Department made no mention
of the fact that prospecting rights on the farms
had already been
awarded to Genorah. What is even more perplexing is that the
prospecting rights were granted over the Community’s
land
without any notice to the Community. The internal evaluation
process of the merits of Genorah’s application within
the
Department took place during August 2006. On 8 September 2006 the
Department informed Genorah that the prospecting rights
on five
properties, including the farms, had been awarded to it. On 12
September 2006 notarial execution of the award of the
prospecting
rights was effected. However, only on 6 December 2006 did the
Department inform Bengwenyama Minerals that its application
for
prospecting rights on the farms had been refused because the
prospecting rights had been granted to other entities that
had
applied earlier.
The
financial guarantee required of Genorah for environmental
rehabilitation was only provided to the Department by Genorah
on 15
September 2006. This was after Genorah had been informed, on 8
September 2006, that its application for prospecting rights
had
been approved and also after the notarial execution of this award
was effected on 12 September 2006. In a similar, peculiar
vein,
Genorah’s environmental management plan was approved two
months after the approval of its application for prospecting

rights, namely on 13 November 2006. The approval was done by an
acting Regional Manager of the Department, a different person
to
the one who approved Genorah’s prospecting application.
Bengwenyama
Minerals and the Community requested a record of Genorah’s
application with the Department in December 2006.
This record was
provided on 17 January 2007. The attorneys acting for Bengwenyama
Minerals and the Community lodged an appeal
against the grant of
the prospecting rights to Genorah, on 13 February 2007. The grounds
of objection in this original notice
of appeal were based on the
alleged non-compliance with sections 16(4) and 17(1)(a) of the Act.
On 9 March 2007 additional
grounds of appeal were added in a letter
written to the Department by Bengwenyama Minerals’ attorneys.
These were that:
(a) the Community had a preferent community claim
to prospecting rights in terms of section 104 of the Act;
8
(b) given its interest in the matter, the Community was entitled to
a hearing before the Department prior to the allocation
of the
award to Genorah; (c) the allocation of the award was procedurally
unfair and (d) the award may have violated the Community’s

fundamental right to property under section 25 of the Constitution.
The Department responded to the purported appeal on 14
June 2007,
almost four months after the initial appeal was lodged.
Prior
to receipt of the Department’s response, the Community and
Bengwenyama Minerals launched interdict proceedings on
22 March
2007 against Genorah, to prevent it from exercising its prospecting
rights in respect of the farms pending the final
determination of
their challenge to the grant of the prospecting rights.
In
its response to the appeal, dated 14 June 2007, the Department
stated that since the matter had become
sub judice
, the
Minister was not in a position to decide the appeal and that the
matter should be decided by means of a review.
On
22 August 2007 the Community and Bengwenyama Minerals launched
review proceedings in the High Court, seeking to set aside
the
granting of prospecting rights to Genorah in respect of the farms.
Prior to the determination of the review proceedings
Genorah was
interdicted from prospecting or in any way exercising its
prospecting rights in respect of the farms pending the
final
determination of the challenge to the validity of the prospecting
rights. Hartzenberg J dismissed the main review application
in a
judgment handed down on 18 November 2008 on the grounds that no
internal appeal was available and that the review was
thus brought
out of time; that no review grounds had been established; and that
even if some of them had been established,
he would nevertheless
have exercised his discretion against granting relief. He granted
leave to appeal to the Supreme Court
of Appeal.
The
Supreme Court of Appeal dismissed the appeal. It considered that an
internal appeal did exist, but that it had been abandoned.
It
accordingly found that the review application was brought out of
time, albeit because of a different reason. The Supreme
Court of
Appeal did not deal with the review grounds at all, but agreed with
the High Court that discretionary relief should
be refused even if
the review had merit.
The
Community and Bengwenyama Minerals approached this Court for leave
to appeal and this Court set the matter down for hearing
and issued
directions for certain issues to be addressed at the hearing.
9
As the matter developed at the hearing, these issues were subsumed
by the broader issues set out below.
Issues
The
issues that crystallised in this Court are:
Whether
leave to appeal should be granted;
Whether
the Act provides for internal remedies in the present matter;
If
internal remedies do exist under the Act, whether the review was
brought in time;
In
respect of the review grounds:
Whether there was proper consultation by Genorah with
Bengwenyama Minerals and the Community in terms of the Act;
Whether the decision-maker was obliged to afford Bengwenyama
Minerals and the Community a hearing before awarding
the
prospecting rights to Genorah;
Whether proper consideration was given to the environmental
requirements of the Act prior to the granting of prospecting

rights to Genorah;
What relief should be granted if the review is successful.
Before
moving on to a discussion and evaluation of these issues it is
necessary to have a look at the legal framework within
which the
issues must be decided.
Legal
framework
In
the introductory paragraphs of this judgment reference was made to
provisions in the Constitution that provide the general
10
as well as the more specific
11
foundations for legislative and other measures to ensure equitable
access to the natural resources of the country. There is
no denying
that past mining legislation and the general history of racial
discrimination in this country prevented black people
12
from acquiring access to mineral resources.
13
Dispossession of land aggravated the situation.
14
The Act seeks to redress these past wrongs.
Amongst
the objects of the Act
15
are:
The
promotion of equitable access to the nation’s mineral and
petroleum resources for the country’s people;
The
substantial and meaningful expansion of opportunities for
historically disadvantaged men and women to enter the mineral
and
petroleum industries and to benefit from the exploitation of these
natural resources; and
To
ensure that holders of mining and production rights contribute
towards the socio-economic development of the areas in which
they
are operating.
When
interpreting a provision of the Act any reasonable interpretation
which is consistent with the objects of the Act must
be preferred
to one that is inconsistent with the objects of the Act, and to the
extent that the common law is inconsistent
with the Act, the Act
prevails.
16
In
broad terms the Act seeks to attain its transformation and
empowerment aims by making the state the custodian of the country’s

mineral and petroleum resources and by placing control of the
exploitation of these resources under the control of the state,

acting through the Minister.
17
Various provisions in the Act then seek to give specific effect to
the object of expanding opportunities in the industry to

historically disadvantaged persons.
18
Of particular relevance to this matter are the provisions giving
preference in the consideration of applications for prospecting

rights to historically disadvantaged persons
19
and to communities who wish to prospect on communal land.
20
A
person who wishes to apply for a prospecting right under the Act
must lodge the application in the prescribed manner at the
office
of the Regional Manager in whose region the land is situated.
21
The Regional Manager must accept the application for consideration
if the formal requirements for its lodging have been complied
with
and no other person holds the prospecting right already.
22
Within 14 days after acceptance the Regional Manager must make
known that an application has been received and must call upon

interested parties to submit comments within 30 days of the
notice.
23
If objections are received they must be forwarded for consideration
to the Regional Mining Development and Environmental Committee
for
advice thereon to the Minister.
24
The
Regional Manager must within 14 days after acceptance of the
application also notify the applicant in writing to submit
an
environmental management plan to the Department
25
and to notify and consult with the landowner or lawful occupier and
any other affected party. The result of the consultation
must be
submitted to the Department within 30 days from the date of the
notice.
26
Upon receipt of the environmental management plan and consultation
outcome the Regional Manager must forward the application
to the
Minister for consideration.
27
Another
one of the objects of the Act is to give effect to the
environmental rights in the Constitution
28
by ensuring that mineral and petroleum resources are developed in
an orderly and ecologically sustainable manner while promoting

justifiable social and economic development.
29
Apart from the obligation to lodge an environmental management plan
in terms of the Act, an applicant for a prospecting right
must
provide the Minister with the prescribed financial provision for
the rehabilitation or management of negative environmental

impacts.
30
The environmental management plan must be submitted to the Regional
Manager within 60 days from the date of notification of
acceptance
of the application.
31
Amongst other requirements the plan must investigate, assess and
evaluate the impact of the proposed prospecting operation
on the
environment and the socio-economic conditions of any person who
might be directly affected by the prospecting operation.
32
It must contain a record of the public participation undertaken and
the results thereof.
33
The Minister must approve the plan within 120 days of its lodgement
if it complies with the necessary requirements.
34
The
Minister must grant a prospecting right if the provisions of
section 17(1) are met. The subsection reads:
“
(1)
Subject to subsection (4), the Minister must grant a prospecting
right if—
(a) the applicant has access to
financial resources and has the technical ability to conduct the
proposed prospecting operation
optimally in accordance with the
prospecting work programme;
(b) the estimated expenditure
is compatible with the proposed prospecting operation and duration
of the prospecting work programme;
(c) the prospecting will not
result in unacceptable pollution, ecological degradation or damage
to the environment;
(d) the applicant has the
ability to comply with the relevant provisions of the Mine Health
and Safety Act, 1996 (Act No. 29 of
1996); and
(e) the applicant is not in
contravention of any relevant provision of this Act.”
The
granting of a prospecting right in terms of this subsection becomes
effective on the date on which the environmental management

programme is approved in terms of section 39.
35
The Minister may delegate the power to grant prospecting rights in
terms of the Act, and did delegate it in this matter to
the Deputy
Director General.
An
internal appeal process under the Act provides that any person
whose rights or legitimate expectations are materially or
adversely
affected or who is aggrieved by any administrative decision in
terms of the Act may lodge an appeal in the prescribed
manner.
36
A
prospecting right is a limited real right in respect of the mineral
and the land to which it relates.
37
Holders of prospecting rights may enter the land with their
employees; they may bring any plant, machinery or equipment

required for the purpose of prospecting on to the land; and they
may build, construct or lay down any surface or underground
infrastructure necessary for that purpose. They may prospect for
the mineral on or under the land; may remove and dispose of
it
during the course of prospecting; may use water on the land subject
only to the provisions of the National Water Act;
38
and may carry out any other activity incidental to prospecting
which does not contravene the provisions of the Act.
39
These activities may not be done without notifying and consulting
with the landowner or lawful occupier of the land.
40
If the landowner or lawful occupier impedes holders of prospecting
rights in the exercise of their rights, the holders must
report
this to the Regional Manager concerned.
41
Owners or lawful occupiers of land on which prospecting will be
conducted must similarly notify the Regional Manager of any
loss
suffered or likely to be suffered as a result of the prospecting
operation.
42
In both instances a process is then initiated which may, depending
on the circumstances, result in payment of compensation
to the
landowner or lawful occupier or a prohibition on the commencement
or continuation of prospecting activities.
43
A
determination of the issues in this case will to a certain extent
depend on, or at least be influenced by, an assessment of
what the
nature and extent of the opposing rights and interests of the
involved parties are.
Section
3 of the Act provides that the mineral and petroleum resources of
this country are the “common heritage of all
the people of
South Africa” and that the allocation of rights to these
resources is done by the Minister acting as the
state custodian of
the resources.
44
There may well be differences between the old order and the new as
far as the nature of ownership of land holding mineral and

petroleum resources is concerned, and the processes whereby
prospecting rights are acquired, but many of the underlying

practical consequences remain the same, or are similar, under the
new order:
Nothing
prevents owners of land from acquiring prospecting rights on their
own land if they wish to do so;
Where
third parties seek prospecting rights they must engage with the
owner of land before acquiring the right;
Prospecting
rights may only be exercised under state authority or permission;
The
exercise of prospecting rights is highly invasive of the use by
owners of their land, even if only restricted to surface
use of
the land.
The
implications of these similarities may have to be considered when
the rights and interests of Bengwenyama Minerals, the
Community,
Genorah and the Department and its officials are considered and
assessed in relation to the issues that arise for
decision in this
matter.
Should leave to appeal be granted?
The matter clearly involves constitutional issues of some
importance. The objects of the Act include the promotion of
equitable
access to mineral resources for historically
disadvantaged people.
45
Both Genorah and the Community assert rights in relation to it.
Another object of the Act is to give effect to the environmental

right of everyone
46
by ensuring that the nation’s mineral and petroleum resources
are developed in an orderly and sustainable manner. Compliance
with
environmental requirements is in issue in the case. The right to
administrative action must be determined against this
background.
47
It involves a claim by a community to prospecting rights in respect
of the land it owns and occupies. The constitutional issue
raised
is eminently arguable. It is thus in the interests of justice to
hear the matter.
48
Leave to appeal should be granted.
Delegation and internal remedies
The High Court held that no internal appeal lay against the award
of the prospecting right to Genorah by the Deputy Director
General
in terms of the authority delegated to him by the Minister. The
Supreme Court of Appeal came to the opposite conclusion,
but found
that Bengwenyama Minerals and the Community had abandoned the
internal appeal. The result was, however, the same
on either
approach: Bengwenyama Minerals and the Community should have
instituted review proceedings within 180-days of learning
in
December 2006 that prospecting rights had been granted to Genorah.
In
this Court counsel for Genorah submitted that the Act made no
provision for an internal appeal in the particular circumstances
of
this case. He submitted that the power to grant prospecting rights
in terms of the Act is that of the Minister. The Minister
could and
did delegate that power to the Deputy Director General. Although
the Deputy Director General made the actual decision,
the decision
nevertheless remained that of the Minister. Section 96 of the Act
makes no provision for an appeal to the Minister
against her own
decision. Counsel relied upon the decisions of
Global Pact
Trading 207 (Pty) Ltd v The Minister of Minerals and Energy
49
and
Mofschaap Diamonds (Pty) Ltd v The Minister for Minerals and
Energy and Others
50
in support of this submission.
In
my view the argument cannot be sustained. In modern government it
is a practical necessity that functions assigned by the

Constitution and legislation often need to be performed by
administrative officials.
51
These functions may be performed under assignment or delegation.
52
What usually distinguishes delegation in its many forms from
assignment is that the delegator retains final control over the

decision taken by the delegatee in her name. As Kriegler J put it
in
Executive Council, Western Cape Legislature, and Others v
President of the Republic of South Africa
and Others
delegation “postulates revocable transmission of subsidiary
authority.”
53
What kind of control is retained by the delegator depends on the
purpose of the delegation and the specific terms regulating
the
delegation in the applicable legislation. Here I can find no
indication in the delegation provisions of the Act or in their

contextual purpose that would preclude an internal appeal in the
particular circumstances of this case.
Section
103 of the Act deals with delegation and assignment. It reads:
“
(1)
The Minister may, subject to such conditions as he or she may
impose, in writing delegate any power conferred on him or her
by or
under this Act, except a power to make regulations or deal with any
appeal in terms of section 96, and may assign any duty
so imposed
upon him or her to the Director-General, the Regional Manager or any
officer.
(2) The Minister may, in
delegating any power or assigning any duty under subsection (1),
authorise the further delegation of
such power and the further
assignment of such duty by a delegatee or assignee.
(3) The Director-General, the
Regional Manager or any other officer to whom a power has been
delegated or to whom a duty has been
assigned by or under this Act,
may in writing delegate any such power or assign any such duty to
any other officer.
(4) The Minister,
Director-General, Regional Manager or officer may at any time—
(a) withdraw a delegation or
assignment made in terms of subsection (1), (2) or (3), as the case
may be; and
(b) withdraw or amend any
decision made by a person exercising a power or performing a duty
delegated or assigned in terms of
subsection (1), (2) or (3), as the
case may be.
(5) The Minister,
Director-General, Regional Manager or officer is not divested of any
power or exempted from any duty delegated
or assigned by him or
her.”
Section
96 of the Act deals with internal appeals:
“
(1)
Any person whose rights or legitimate expectations have been
materially and adversely affected or who is aggrieved by any

administrative decision in terms of this Act may appeal in the
prescribed manner to—
(a) the Director-General, if it
is an administrative decision by a Regional Manager or an officer;
or
(b) the Minister, if it is an
administrative decision by the Director-General or the designated
agency.
(2) An appeal in terms of
subsection (1) does not suspend the administrative decision, unless
it is suspended by the Director-General
or the Minister, as the case
may be.
(3) No person may apply to the
court for the review of an administrative decision contemplated in
subsection (1) until that person
has exhausted his or her remedies
in terms of that subsection.
(4) Sections
6, 7(1)
and 8
of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of
2000), apply to any court proceedings
contemplated in this section.”
The
terms of section 103(4)(b) allow the Minister to “withdraw or
amend any decision made by a person exercising a power
or
performing a duty delegated or assigned”
54
by him or her. It does not prescribe the manner in which this must
be done and certainly does not exclude that it may be done
by way
of internal appeal.
In
Koyabe and Others v Minister for Home Affairs and Others
(Lawyers for Human Rights as Amicus Curiae)
55
this Court emphasised the importance of internal remedies:
“
Internal
remedies are designed to provide immediate and cost-effective
relief, giving the executive the opportunity to utilise
its own
mechanisms, rectifying irregularities first, before aggrieved
parties resort to litigation. Although courts play a vital
role in
providing litigants with access to justice, the importance of more
readily available and cost-effective internal remedies
cannot be
gainsaid.
First, approaching a court
before the higher administrative body is given the opportunity to
exhaust its own existing mechanisms
undermines the autonomy of the
administrative process. It renders the judicial process premature,
effectively usurping the executive
role and function. The scope of
administrative action extends over a wide range of circumstances,
and the crafting of specialist
administrative procedures suited to
the particular administrative action in question enhances procedural
fairness as enshrined
in our Constitution. Courts have often
emphasised that what constitutes a ‘fair’ procedure will
depend on the nature
of the administrative action and circumstances
of the particular case. Thus, the need to allow executive agencies
to utilise
their own fair procedures is crucial in administrative
action.”
56
(Footnotes omitted.)
Allowing
an internal appeal under section 96 of the Act in the circumstances
of this case will enhance the autonomy of the administrative

process and provide the possibility of immediate and cost-effective
relief prior to aggrieved parties resorting to litigation.
An
internal appeal process will also allow the Minister to develop
guidelines for the proper application of the Act in future

decisions.
The
reasoning in the
Global Pact Trading
and
Mofschaap
Diamonds
57
cases
in the Free State High Court relied on the analytical distinction
between two forms of delegation made by Professor Wiechers
in his
work,
Administrative Law
,
58
namely that between deconcentration and decentralisation.
59
In particular, reliance was placed on the statement that in cases
of deconcentration the delegatee acts in the name of the
delegator
and that in those cases the former’s decision is regarded in
law as that of the latter.
60
That is of course correct as far as it goes, but it does not answer
the question when and in what manner the Minister as delegator
may
make the final decision in her own name.
61
If it is the essence of delegation that final control remains with
the delegator there appears to be no reason in principle
why final
control cannot be exercised by way of internal appeal. In such a
case the conceptual difficulty of an appeal against
the Minister’s
own decision also disappears.
62
There
is, however, a further substantive reason why reliance on
analytical and conceptual distinctions made in relation to
pre-constitutional administrative law should be approached with
caution.
63
The starting point for an analysis of delegation as a legal concept
today must be the demands of the Constitution. The problems

relating to delegation of powers are not uniform. In some instances
the question will arise whether delegation of power by
a
legislature is valid having regard to the constitutional separation
of powers.
64
In other cases it might involve questions of whether the correct
organ of state has been cited. The present matter does not
involve
a consideration of any of those issues. The Act makes it clear to
whom powers may be delegated and those provisions
are not attacked
as constitutionally suspect. The correct parties are before court.
The issue here involves the constitutional
provisions relating to
public administration. It is in the context of the fundamental
constitutional value requiring a democratic
system of government to
ensure accountability, responsiveness and openness,
65
and the basic values and principles governing public
administration
66
that the issue of delegation and internal appeals and remedies
should be assessed.
67
Those values and principles are enhanced by an internal appeal
process. It is in that context that I accordingly find that
an
internal appeal in terms of section 96 existed in this case.
The
applicants also approached the Minister in terms of section 47 of
the Act on the basis of the same facts and contentions
raised in
the section 96 internal appeal. Counsel for Bengwenyama Minerals
and the Community submitted that section 47 of the
Act provided a
further internal remedy for his clients. I do not agree. That
section deals with the power of the Minister to
cancel or suspend a
prospecting right granted to the holder of that right in relation
to conduct that occurs after the prospecting
right had already been
granted.
It
was argued that section 47(1)(d), which provides for sanction where
inaccurate, incorrect or misleading information in connection
with
matters required to be submitted under the Act had been given, also
caters for information contained in the application
for the
prospecting right. In my view this would be a strained
interpretation, out of kilter with the rest of the provisions
of
the section. This is so because the information the sub-section
refers to sits more comfortably with the information the
holder of
the right needs to provide under section 21 of the Act than with
the information provided in the application for
the right. Section
96 read with section 103 cater adequately for possible defects in
the application process for prospecting
rights.
I
accordingly conclude that an internal appeal in terms of section 96
of the Act was available to the applicants in respect
of the
decision to grant prospecting rights to Genorah over the farms.
Delay
Bengwenyama
Minerals and the Community only became aware of the decision to
award prospecting rights over the farms on 6 December
2006. They
asked for a record of the application from the Department in
December 2006 and the record was provided on 17 January
2007. On 13
February 2007 they lodged an internal appeal in terms of section 96
of the Act. They added additional grounds of
appeal on 9 March
2007. While waiting for a response they launched proceedings to
interdict Genorah from proceeding with prospecting
operations on
the farms on 22 March 2007. The response from the Department only
came four months later in a letter that informed
them that the
Minister was not in a position to decide the appeal and that the
matter should be decided by way of review proceedings.
They
launched the review proceedings on 22 August 2007.
Ignoring
for the moment the legal arguments around the issue, it can hardly
be said that these time lines on their own indicate
any deliberate
delay in taking steps to correct what Bengwenyama Minerals and the
Community considered to be an unlawful award
of prospecting rights
on the farms to Genorah. The only truly culpable delay was that of
the Department who took more than
four months to respond to the
internal appeal.
A
number of different submissions were made in support of the delay
findings in the High Court and Supreme Court of Appeal.
It was
submitted that: (a) the internal appeal was late and that no
condonation had been granted for it being lodged late;
(b) the
refusal to consider the appeal should have been taken on review and
not the decision to award the prospecting rights;
and (c) the
conduct of Bengwenyama Minerals and the Community after receipt of
the letter from the Department on 14 June 2007
indicated that they
had abandoned their right of appeal.
68
I do not consider it necessary to deal with each of these arguments
in any detail. Suffice it to say that in my view the contents
of
the letter refute each of these arguments. It reads as follows:
“
You
are hereby advised that since this matter is now
sub
judice,
the
Minister will not be in a position to decide on your appeal in this
matter. The fact that a right has already been granted
to Genorah
also poses a legal challenge in deciding on the appeal, and it is
therefore the view of this Department that this
matter should be
decided by means of a review.”
There is
no indication that the application was not considered for want of an
application for condonation, nor is there any indication
that
anything other than a review of the original decision would bring
the Department to change that decision to award prospecting
rights
to Genorah. In effect the Department advised Bengwenyama Minerals
and the Community to seek a review and not to prosecute
their
appeal.
Section
7(1)(a)
of the
Promotion of Administrative Justice Act
69
(PAJA
) provides that judicial review proceedings must be instituted
without unreasonable delay and not later than 180-days after the

date on which internal remedies “have been
concluded
”
70
(emphasis added). In my view the clear import of the Department’s
letter of 14 June 2007 was that the internal appeal
had been
“concluded” in the sense required by the section.
Consequently the 180-day period began to run from the
date of the
Department’s letter of 14 June 2007. The review was thus
brought in time. The conduct of Bengwenyama Minerals
and the
Community in pursuing review proceedings two months later is in my
respectful view more consistent with an acceptance
that the
internal appeal process had been concluded, rather than with the
abandonment of the process itself. I may add that
in these
circumstances of apparent confusion about the availability of an
internal appeal I would have considered that there
was no
unreasonable delay in bringing the proceedings even if no internal
appeal existed in terms of section 96 of the Act.
71
In
the result I find that there was no delay in bringing the review
application.
Fair
administrative action
In
terms of the Act any administrative process conducted or decision
taken in terms of the Act must be taken in accordance with
the
principles of lawfulness, reasonableness and procedural fairness.
72
The prescripts of the Act in this regard are subject to the
provisions of PAJA. In
Zondi v MEC for Traditional and Local
Government Affairs and Others
73
Ngcobo J stated:
“
PAJA
was enacted pursuant to the provisions of s 33, which requires the
enactment of national legislation to give effect to the
right to
administrative action.  PAJA therefore governs the exercise of
administrative action in general. All decision-makers
who are
entrusted with the authority to make administrative decisions by any
statute are therefore required to do so in a manner
that is
consistent with PAJA.  The effect of this is that statutes that
authorise administrative action must now be read
together with PAJA
unless, upon a proper construction, the provisions of the statutes
in question are inconsistent with PAJA.”
74
(Footnotes omitted.)
With that
in mind I turn to the consultation and hearing requirements of the
Act.
Consultation
The
Act requires consultation in regard to prospecting rights at
different levels. Within fourteen days of accepting a prospecting

right application the Regional Manager must make known that an
application has been received and must call upon interested
and
affected persons to submit their comments within 30 days from the
date of the notice.
75
If a person objects to the granting of the right the objection must
be referred to the Regional Mining Development and Environmental

Committee to consider the objections and advise the Minister on
them.
76
Also within fourteen days of acceptance of the application, the
Regional Manager must notify the applicant in writing that
the
landowner or lawful occupier must be notified and consulted.
77
The result of the consultation must be submitted within 30 days
from the date of the notice.
78
Before the holder of a prospecting right actually starts
prospecting the landowner or lawful occupier must again be notified

and consulted.
79
These
different notice and consultation requirements are indicative of a
serious concern for the rights and interests of landowners
and
lawful occupiers in the process of granting prospecting rights.
80
It is not difficult to see why: the granting and execution of a
prospecting right represents a grave and considerable invasion
of
the use and enjoyment of the land on which the prospecting is to
happen. This is so irrespective of whether one regards
a
landowner’s right as ownership of its surface and what is
beneath it “in all the fullness that the common law
allows”,
81
or as use only of its surface, if what lies below does not belong
to the landowner but somehow resides in the custody of the
state.
The
purpose of the notification and subsequent consultation must thus
be related to the impact that the granting of a prospecting
right
will have on the landowner or lawful occupier. The Community is the
landowner of the farms at stake in this application
and therefore I
will restrict further discussion to the position of landowners.
One
of the purposes of consultation with the landowner must surely be
to see whether some accommodation is possible between
the applicant
for a prospecting right and the landowner insofar as the
interference with the landowner’s rights to use
the property
is concerned. Under the common law a prospecting right could only
be acquired by concluding a prospecting contract
with the
landowner, something which presupposed negotiation and reaching
agreement on the terms of the prospecting contract.
The Act’s
equivalent is consultation, the purpose of which should be to
ascertain whether an accommodation of sorts can
be reached in
respect of the impact on the landowner’s right to use his
land. Of course the Act does not impose agreement
on these issues
as a requirement for granting the prospecting right, but that does
not mean that consultation under the Act’s
provisions does
not require engaging in good faith to attempt to reach
accommodation in that regard.
82
Failure to reach agreement at this early consultation stage might
result in the holder of the prospecting right having to pay

compensation to the landowner at a later stage.
83
The common law did not provide for this kind of compensation,
presumably because the opportunity to provide recompense for
use
impairment of the land existed in negotiation of the terms of the
prospecting contract.
Another
more general purpose of the consultation is to provide landowners
or occupiers with the necessary information on everything
that is
to be done so that they can make an informed decision in relation
to the representations to be made, whether to use
the internal
procedures if the application goes against them and whether to take
the administrative action concerned on review.
The consultation
process and its result is an integral part of the fairness process
because the decision cannot be fair if
the administrator did not
have full regard to precisely what happened during the consultation
process in order to determine
whether the consultation was
sufficient to render the grant of the application procedurally
fair.
The
consultation process required by section 16(4)(b) of the Act thus
requires that the applicant must: (a) inform the landowner
in
writing that his application for prospecting rights on the owner’s
land has been accepted for consideration by the
Regional Manager
concerned; (b) inform the landowner in sufficient detail of what
the prospecting operation will entail on
the land, in order for the
landowner to assess what impact the prospecting will have on the
landowner’s use of the land;
(c) consult with the landowner
with a view to reach an agreement to the satisfaction of both
parties in regard to the impact
of the proposed prospecting
operation; and (d) submit the result of the consultation process to
the Regional Manager within
30 days of receiving notification to
consult.
Genorah
did not comply with these requirements for consultation in terms of
the Act. Essentially its purported compliance with
the consultation
requirements of the Act consisted of notifying the Kgoshi of the
Community of its application before lodging
it with the Regional
Manager and leaving a prescribed form for him to indicate, by
ticking a box on the form, whether he on
behalf of the Community
supported its application or not. The form was never signed by the
Kgoshi. Genorah did nothing further,
despite being notified of the
requirements under section 16(4) of the Act by the Department and
despite receiving a letter
from the Kgoshi on 13 March 2006
inviting Genorah to get to know each other better. There was never
any consultation in relation
to Eerstegeluk. The review must thus
succeed on this ground.
The
right to a hearing
Administrative
action which “materially and adversely affects the rights or
legitimate expectations of any person must
be procedurally fair.”
84
Any administrative decision taken in terms of the Act must be taken
in accordance with the principles of procedural fairness.
85
Procedural fairness generally requires adequate notice of the
nature and purpose of any proposed administrative action and
a
reasonable opportunity for the affected person to make
representations in respect of the proposed action.
86
Section
10 of the Act provides for notice to interested and affected
parties to enable them to comment and raise objections
to an
application for prospecting rights. The Minister must consider
these objections and make a decision on them on the advice
of
departmental institutions. There was much debate in argument about
whether the method of giving notice to the public in
terms of
regulation 3
87
under the Act was complied with. I prefer to deal with this issue
under the broader principle of procedural fairness.
Earlier
in this judgment reference was made to the fact that the Act
contains no provision that prevents landowners from acquiring

prospecting rights on their own land and that the exercise of
prospecting rights is highly invasive of the use by owners of
their
land even if only in relation to surface use.
88
Landowners are entitled to adequate notice of the nature and
purpose of any contemplated administrative action under the Act

that will in this manner materially and adversely affect the
surface use of their land and the Community was entitled to a

reasonable opportunity to make representations in relation to the
Genorah application.
Section
25 of the Constitution also recognises the public interest in
reforms to bring about equitable access to all South Africa’s

natural resources, not only land,
89
and requires the state to foster conditions which enable citizens
to gain access to land on an equitable basis.
90
A community whose tenure of land is legally insecure as a result of
past racially discriminatory laws or practices is entitled,
to the
extent provided by an Act of Parliament, either to tenure which is
legally secure or to comparable redress.
91
The Act gives recognition to these constitutional imperatives. It
recognises communities with rights or interests in community
land
in terms of agreement, custom or law.
92
Section 104 of the Act makes provision for a community to obtain a
preferent right to prospect on community land for an initial
period
not exceeding five years that can be renewed for further periods
not exceeding five years.
It
seems to me that these provisions of the Act create a special
category of right for these communities, in addition to their

rights as owners of the land, namely to apply for a preferent right
to prospect on their land. It is only where a prospecting
right has
already been granted on communal land that the preferent right may
not be granted.
93
It therefore appears to me that any application for a prospecting
right under section 16 of the Act that might have the effect
of
disentitling a community of its right to apply for a preferent
prospecting right under section 104 of the Act, materially
and
adversely affects that right of a community. Before a prospecting
right in terms of section 16 may be granted under those

circumstances, the community concerned should be informed by the
Department of the application and its consequences and it
should be
given an opportunity to make representations in regard thereto. In
an appropriate case that would include an opportunity
to bring a
community application under section 104 prior to a decision being
made on the section 16 application.
This
is such a case. The Department was at all times aware that the
Community wished to acquire prospecting rights on its own
farms. It
gave advice to the Community over a long period of time in this
regard, to the extent of requiring better protection
for the
Community in the investment agreement. It continued dealing with
the Community and Bengwenyama Minerals in relation
to their
application brought on prescribed section 16 forms without
informing them of the fact that approval of that application
would
end their hopes of a preferent prospecting right. There is no
explanation from the Department for this strange behaviour.
The
Department had an obligation, founded upon section 3 of PAJA, to
directly inform the Community and Bengwenyama Minerals
of Genorah’s
application and its potentially adverse consequences for their own
preferent rights under section 104 of
the Act. This obligation
entailed, in the circumstances of this case, that the Community and
Bengwenyama Minerals should have
been given an opportunity to make
an application in terms of section 104 of the Act for a preferent
prospecting right, before
Genorah’s section 16 application
was decided. None of this was done. The review must succeed on this
ground as well.
The
environmental issue
It
is one of the objects of the Act to give effect to the
environmental rights protected in section 24 of the Constitution by

ensuring that the nation’s mineral and petroleum resources
are developed in an orderly and ecologically sustainable manner

while promoting justifiable social and economic development. In
terms of section 17(1)(c) of the Act the Minister must grant
a
prospecting right if, amongst other requirements, the prospecting
will not result in unacceptable pollution, ecological degradation

or damage to the environment. An applicant for a prospecting right
must submit a prescribed environmental management plan in
terms of
section 39(2) of the Act. Section 41(1) of the Act requires that
the prescribed financial provision for the rehabilitation
or
management of negative environmental impacts must be provided to
the Minister by an applicant for prospecting rights.
There
is no evidence on affidavit by the Deputy Director General who
granted the prospecting rights to Genorah that he or she
considered
and was satisfied that the environmental requirement in section
17(1)(c) read with section 39(2) was fulfilled.
It would in any
event have been difficult to do so because Genorah’s
environmental plan was only approved by a different
(acting)
Regional Manager on 13 November 2006, some two months after the
prospecting rights were granted. The financial guarantee
was also
only provided after the granting of the prospecting rights, namely
on 15 September 2006.
On
Genorah’s behalf counsel argued that environmental
satisfaction was not a prerequisite or jurisdictional fact for the

granting of a prospecting right because section 17(5) provides that
the granting of a prospecting right in terms of section
17(1) only
“becomes effective on the date on which the environmental
management programme is approved in terms of section
39.” The
argument is misconceived, firstly because an applicant who applies
for the granting of a prospecting right needs
to submit an
environmental management
plan
(not a programme), and
secondly because the section explicitly states that the granting of
the prospecting right only becomes
“effective” on
approval of the programme. It obviously relates to the
implementation of the prospecting operation,
not its approval.
Approval of the prospecting operation is dependent on an assessment
that the operation will not result in
unacceptable pollution,
ecological degradation or damage to the environment.
This
ground of review must succeed on the basis that there is nothing on
record to show that the requirement set out in section
17(1)(c) of
the Act was fulfilled.
Public
accountability and fairness
I
think it is necessary and apposite to make some general remarks on
the treatment of Bengwenyama Minerals and the Community
by the
Department. They were not properly assisted in what was obviously
an effort to acquire prospecting rights on their own
property.
Genorah was allowed to lodge financial guarantees late; they were
not. They were not told of the grant of the prospecting
rights to
Genorah, which effectively put paid to their own application. Their
internal appeal was responded to only after four
months had
elapsed.
The
Community was entitled to adequate notice of the nature and purpose
of the administrative action that was proposed in relation
to the
Genorah application.
94
It was entitled to a reasonable opportunity to make representations
in relation to the Genorah application.
95
Once the administrative decision was taken the Community was
entitled to a clear statement of the administrative action.
96
It was entitled to adequate notice of any right to a review or
internal appeal.
97
It was entitled to adequate notice of the right to request reasons
in terms of section 5 of PAJA.
98
It was entitled to reasons.
99
None of this was done or complied with by the Department and,
finally, the Community’s appeal was ignored for four months

before it was told to bring a review application in court. This is
not the way government officials should treat the citizens
they are
required to serve.
A
discretionary remedy?
Both
the High Court and the majority judgment in the Supreme Court of
Appeal stated that even if Bengwenyama Minerals and the
Community
were to succeed on the merits they would have refused relief in the
exercise of their discretion to do so. Genorah
supported this
approach with reliance on a number of recent cases decided in the
Supreme Court of Appeal, namely
Oudekraal Estates (Pty) Ltd v
City of Cape Town and Others
,
100
Chairperson, Standing Tender Committee and Others v JFE Sapela
Electronics (Pty) Ltd and Others
101
and
Millennium Waste Management (Pty) Ltd v Chairperson, Tender
Board: Limpopo Province and Others.
102
The Community, on the other hand, submitted that this approach was
based on incorrect legal principles. The starting point,
the
Community urged, was section 172(1) of the Constitution
103
which declares that a court must declare any law or conduct that is
inconsistent with the Constitution invalid. A court has
no
discretion to refuse to do that, it was submitted. A court does,
however, have a discretion under section 172(1)(b) of the

Constitution to suspend a declaration of invalidity where it is
just and equitable to do so. In an administrative law context
the
decision not to set aside an invalid administrative act amounts to
a decision to suspend the declaration of invalidity,
so the
argument went.
In
terms of the provisions of section 8 of PAJA
104
a court may grant any order that is just and equitable. PAJA seeks
to give expression to the right to just administrative action
in
terms of section 33 of the Constitution and its provisions must, of
course, also be read in accordance with the Constitution
where it
is reasonably possible to do so.
105
There is much merit in counsel’s reminder that invalid
administrative conduct must be declared unlawful, but it seems
to
me that it would be unnecessarily inflexible and difficult to
explain further discretionary relief as a form of suspension
of the
invalidity of administrative action, in all cases. If the
administrative action is declared unlawful, but all its

consequences are not set aside, the practical effect of the order
will be final, not merely a temporary suspension of invalidity.
In
my view it is not necessary to place the just and equitable relief
that may be granted under PAJA into this kind of conceptual

straitjacket in order for that relief to be constitutionally
acceptable.
In
Steenkamp NO v Provincial Tender Board, Eastern Cape
106
Moseneke DCJ stated:
“
It
goes without saying that every improper performance of an
administrative function would implicate the Constitution and entitle

the aggrieved party to appropriate relief.
In
each case the remedy must fit the injury. The remedy must be fair to
those affected by it and yet vindicate effectively the
right
violated. It must be just and equitable in the light of the facts,
the implicated constitutional principles, if any, and
the
controlling law. . . . The purpose of a public-law remedy is to
pre-empt or correct or reverse an improper administrative
function.
In some instances the remedy takes the form of an order to make or
not to make a particular decision or an order declaring
rights or an
injunction to furnish reasons for an adverse decision. Ultimately
the purpose of a public remedy is to afford the
prejudiced party
administrative justice, to advance efficient and effective public
administration compelled by constitutional
precepts and at a broader
level, to entrench the rule of law.
Examples of public remedies
suited to vindicate breaches of administrative justice are to be
found in s 8 of the PAJA. It is indeed
so that s 8 confers on a
court in proceedings for judicial review a generous jurisdiction to
make orders that are ‘just
and equitable’.”
107
(Footnotes omitted.)
This
‘generous jurisdiction’ in terms of section 8 of PAJA
provides for a wide range of just and equitable remedies,
including
declaratory orders, orders setting aside the administrative action,
orders directing the administrator to act in an
appropriate manner
and orders prohibiting him or her from acting in a particular
manner.
It
would be conducive to clarity, when making the choice of a just and
equitable remedy in terms of PAJA, to emphasise the fundamental

constitutional importance of the principle of legality, which
requires invalid administrative action to be declared unlawful.

This would make it clear that the discretionary choice of a further
just and equitable remedy follows upon that fundamental
finding.
The discretionary choice may not precede the finding of invalidity.
The discipline of this approach will enable courts
to consider
whether relief which does not give full effect to the finding of
invalidity, is justified in the particular circumstances
of the
case before it. Normally this would arise in the context of third
parties having altered their position on the basis
that the
administrative action was valid and would suffer prejudice if the
administrative action is set aside, but even then
the ‘desirability
of certainty’ needs to be justified against the fundamental
importance of the principle of legality.
108
The
apparent anomaly that an unlawful act can produce legally effective
consequences
109
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

Constitution and PAJA by providing for a just and equitable remedy
in its wake. I do not think that it is wise to attempt to lay
down
inflexible rules in determining a just and equitable remedy
following upon a declaration of unlawful administrative action.
The
rule of law must never be relinquished, but the circumstances of
each case must be examined in order to determine whether
factual
certainty requires some amelioration of legality and, if so, to
what extent. The approach taken will depend on the
kind of
challenge presented – direct or collateral;
110
the interests involved
111
and the extent or materiality of the breach of the constitutional
right to just administrative action in each particular case.
The
High Court, after finding that the review was brought out of time
and that there were no reviewable irregularities, nevertheless
went
ahead and stated that this was a case where a court in its
discretion ought to decline to set aside the invalid administrative

act. The majority judgment in the Supreme Court of Appeal adopted
this reasoning. The reasons offered were fourfold, namely
that: (a)
it would make little difference to the members of the Community
whether Genorah or Bengwenyama Minerals exploited
the prospecting
rights; (b) reliance on section 104 of the Act was misplaced; (c)
if the grant in respect of the two Community
farms was set aside,
it would probably affect the viability of the remainder of the
project; and (d) the public interest required
finality.
The
first and third considerations are not justified by any evidence on
record. This judgment makes it clear that a community
application
in terms of section 104 of the Act is relevant to a determination
of the issues in the case. That disposes of the
second
consideration. The last consideration, that of finality, must yield
to the principle of legality and the fact that Genorah
was aware
from a very early stage of the Community’s interest in the
granting of a prospecting right. When it went ahead
in the
execution of the prospecting right, despite this knowledge, it was
interdicted from doing so. Any further prejudice
it suffered, it
suffered knowingly.
Costs
Bengwenyama
Minerals and the Community have been successful in vindicating
their rights in this Court and the state respondents
should pay
their costs in this Court and in the High Court and the Supreme
Court of Appeal.
112
There is no reason why the state and Genorah, who made common cause
in relation to almost all the issues in the case, should
not share
the costs burden jointly and severally. This will be reflected in
the order we make.
Order
The
following order is made:
(a) Leave
to appeal is granted.
(b) The
appeal is upheld.
(c) The orders made in the North Gauteng High Court, Pretoria and
the Supreme Court of Appeal are set aside.
(d) The decision to grant a prospecting right to the first
respondent in respect of the farms Nooitverwacht 324 KT and
Eerstegeluk
327 KT in the Limpopo Province is set aside.
(e) The first to fifth respondents are ordered to pay the
applicants’ costs in the High Court, the Supreme Court of
Appeal
and in this Court, jointly and severally, including the costs
of two counsel.
Ngcobo
CJ, Moseneke DCJ, Brand AJ, Cameron J, Mogoeng J, Nkabinde J,
Skweyiya J and Yacoob J concur in the judgment of Froneman
J.
For the Applicants: Advocate G Marcus SC and Advocate I Goodman
instructed by Eversheds.
For the First Respondent: Advocate BE Leech instructed by Werksmans
Inc.
For the Second to Fifth Respondents: Advocate MP van der Merwe
instructed by the State Attorney, Pretoria.
1
Section
1(a) of the Constitution.
2
Section
9(2) of the Constitution. See also
Minister of Finance and
Another v Van Heerden
[2004] ZACC 3
;
2004 (6) SA 121
(CC);
2004
(11) BCLR 1125
(CC) at para 28 and
Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) at para 88.
3
Sections
24, 25(4)-(7) and 27(1)(b) of the Constitution.
4
28
of 2002.
5
Owner
in the Act:
“
in relation to—
land—
(i) means the person in whose name the land is
registered; or
(ii) if it is land owned by the State, means the State
together with the occupant thereof.”
6
In
terms of section 16(4) of the Act.
7
In
terms of section 16 of the Act.
8
Section
104 of the Act below n 20.
9
Directions
dated 31 May 2010 directed the parties to include submissions on the
following issues:
“
(a) When does the 180 day
period in terms of
section 7(1)
of the
Promotion of Administrative
Justice Act, 3 of 2000
commence where: (i) an internal appeal has
been refused; (ii) an internal appeal has been wrongfully terminated
by the appeal
body; (iii) an internal appeal has been abandoned by
the appealing party?
What is the legal effect of the failure to file an
environmental management plan before an application for prospecting
rights
is considered?
Should the application of the first applicant for the
grant of prospecting rights have been considered as a community
application
under
section 104
of the
Mineral and Petroleum
Resources Development Act, 28 of 2002
?
Is it legally permissible to treat the application of
the first respondent for prospecting rights as severable in respect
of
each property over which prospecting rights have been granted?
Is there a proper legal basis for refusing relief in
the exercise of a judicial discretion where grounds for review have
been
established, and, if so, does such a basis exist here?”
10
Above
n 2.
11
Above
n 3. See also Joubert
et al
(ed)
The Law of South Africa
(2ed) vol 18 (
LAWSA
) at para 16-7 and Van der Walt
Constitutional Property Law
(Juta, Cape Town 2005) 370.
12
Used
here in the generic sense of all people who were not classified as
white persons.
13
LAWSA
above n 11 at para 16.
14
See
Tongoane and Others v Minister for Agriculture and Land Affairs
and Others
[2010] ZACC 10
;
2010 (6) SA 214
;
2010 (8) BCLR 741
(CC) at paras 10-29.
15
Section
2 of the Act states that the objects of this Act are to—
“
(a) recognise the
internationally accepted right of the State to exercise sovereignty
over all the mineral and petroleum resources
within the Republic;
(b) give effect to the principle of the State’s
custodianship of the nation’s mineral and petroleum resources;
(c) promote equitable access to the nation’s
mineral and petroleum resources to all the people of South Africa;
(d) substantially and meaningfully expand opportunities
for historically disadvantaged persons, including women, to enter
the
mineral and petroleum industries and to benefit from the
exploitation of the nation’s mineral and petroleum resources;
(e) promote economic growth and mineral and petroleum
resources development in the Republic;
(f) promote employment and advance the social and
economic welfare of all South Africans;
(g) provide for security of tenure in respect of
prospecting, exploration, mining and production operations;
(h) give effect to section 24 of the Constitution by
ensuring that the nation’s mineral and petroleum resources are
developed
in an orderly and ecologically sustainable manner while
promoting justifiable social and economic development; and
(i) ensure that holders of mining and production rights
contribute towards the socio-economic development of the areas in
which
they are operating.”
16
Section
4 of the Act.
17
Section
3(1) of the Act states that “[m]ineral and petroleum resources
are the common heritage of all the people of South
Africa and the
State is the custodian thereof for the benefit of all South
Africans.”
18
Section
100 of the Act deals with the transformation of the minerals
industry. It states that:
“
(1) The Minister must, within
five years from the date on which this Act took effect—
. . . .
(b) develop a code of good practice for the minerals
industry in the Republic.
(2) (a) To ensure the attainment of Government’s
objectives of redressing historical, social and economic
inequalities as
stated in the Constitution, the Minister must within
six months from the date on which this Act takes effect develop a
broad
based socio-economic empowerment Charter that will set the
framework-targets and timetable for effecting the entry of
historically
disadvantaged South Africans into the mining industry,
and allow such South Africans to benefit from the exploitation of
mining
and mineral resources.”
19
Section
9 of the Act deals with the order of processing applications. It
states that:
“
(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 dates must be dealt with in order of
receipt.
(2) When the Minister considers applications received
on the same date he or she must give preference to
applications
from historically disadvantaged persons
.” (Emphasis
added.)
The
Act defines historically disadvantaged persons as follows:
“
(a) any person, category of
persons or community, disadvantaged by unfair discrimination before
the Constitution took effect;
(b) any association, a majority of whose members are
persons contemplated in paragraph (a);
(c) any juristic person other than an association, in
which persons contemplated in paragraph (a) own and control a
majority
of the issued capital or members’ interest and are
able to control a majority of the members’ votes.”
20
Section
104 of the Act provides for a preferent prospecting or mining right
in respect of communities. It states that:
“
(1) Any community who wishes
to obtain the preferent right to prospect or mine in respect of any
mineral and land which is registered
or to be registered in the name
of the community concerned, must lodge such application to the
Minister.
(2) The Minister must grant such preferent right if the
community can prove that—
(a) the right shall be used to contribute towards the
development and the social upliftment of the community concerned;
(b) the community submits a development plan,
indicating the manner in which such right is going to be exercised;
(c) the envisaged benefits of the prospecting or mining
project will accrue to the community in question; and
(d) the community has access to technical and financial
resources to exercise such right.
(3) The preferent right, granted in terms of this
section is—
(a) valid for a period not exceeding five years and can
be renewed for further periods not exceeding five years; and
(b) subject to prescribed terms and conditions.
(4) The preferent right referred to in subsection (1),
shall not be granted in respect of areas, where a prospecting right,
mining
right, mining permit, retention permit, production right,
exploration right, technical operation permit or reconnaissance
permit
has already been granted.”
21
Section
16(1) of the Act.
22
Section
16(2) of the Act.
23
Section
10(1) of the Act.
24
Section
10(2) of the Act.
25
Section
39(2) of the Act states that: “Any person who applies for a
reconnaissance permission prospecting right or mining
permit must
submit an environmental management plan as prescribed.”
26
Section
16(4) of the Act states that:
“
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.”
27
Section
16(5) of the Act.
28
Section
24 of the Constitution states that:
“
(1) Everyone has the right—
(a) to an environment that is not harmful to their
health or well-being; and
(b) to have the environment protected, for the benefit
of present and future generations, through reasonable legislative
and other
measures that—
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and
use of natural resources while promoting justifiable economic and
social
development.”
29
See
section 2(h) of the Act above n 15.
30
Section
41(1) of the Act.
31
Regulation
52(1)
of the
Mineral and Petroleum Resources Development
Regulations, GN
R527 GG 26275, 23 April 2004 (Regulations).
32
Section
39(3)(b)(i) and (ii) of the Act.
33
Regulation
52(2)(g).
34
Section
39(4) states that:
“
(a) Subject to paragraph (b),
the Minister must, within 120 days from the lodgement of the
environmental management programme
or the environmental management
plan, approve the same, if—
(i) it complies with the requirements of subsection
(3);
(ii) the applicant has complied with
section
41(1); and
(iii) the applicant has the capacity, or has provided
for the capacity, to rehabilitate and manage negative impacts on the
environment.”
35
Section
17(5) of the Act.
36
Section
96 of the Act.
37
Section
5(1) of the Act.
38
36
of 1998.
39
Section
5(3) of the Act.
40
Section
5(4)(c) of the Act.
41
Section
54(1) of the Act.
42
Section
54(7) of the Act.
43
Section
54(2)-(7) of the Act.
44
Section
3(2) states that:
“
As the custodian of the
nation’s mineral and petroleum resources, the State, acting
through the Minister, may—
(a) grant, issue, refuse, control, administer and
manage any reconnaissance permission, prospecting right, permission
to remove,
mining right, mining permit, retention permit, technical
co-operation permit, reconnaissance permit, exploration right and
production
right”.
45
See
also section 25(4)-(6) of the Constitution.
46
Section
24 of the Constitution.
47
Section
33 of the Constitution. See also section 6 of the Act which states:
“
(1) Subject to the Promotion
of Administrative Justice Act, 2000 (Act No. 3 of 2000), any
administrative process conducted or
decision taken in terms of this
Act must be conducted or taken, as the case may be, within a
reasonable time and in accordance
with the principles of lawfulness,
reasonableness and procedural fairness.
(2) Any decision contemplated in subsection (1) must be
in writing and accompanied by written reasons for such decision.”
48
See
Radio Pretoria v Chairperson, Independent Communications
Authority of South Africa, and Another
[2004] ZACC 24
;
2005 (4)
SA 319
(CC);
2005 (3) BCLR 231
(CC) at para 22;
De Reuck v
Director of Public Prosecutions, Witwatersrand Local Division, and
Others
[2003] ZACC 19
;
2004 (1) SA 406
(CC);
2003 (12) BCLR 1333
(CC) at para 3;
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at para 14 and
Islamic
Unity Convention v Independent Broadcasting Authority and Others
[2002] ZACC 3
;
2002 (4) SA 294
(CC);
2002 (5) BCLR 433
(CC) at para
15.
49
Orange
Free State Provincial Division, Case No 3118/06, unreported, 14 June
2007.
50
Orange
Free State Provincial Division, Case No 3117/06, unreported, 14 June
2007.
51
Janse
van Rensburg NO and Another v Minister of Trade and Industry and
Another NNO
[2000] ZACC 18
;
2001 (1) SA 29
(CC);
2000 (11) BCLR
1235
(CC) at para 24. See also
Affordable Medicines Trust and
Others v Minister of Health and Others
[2005] ZACC 3
;
2006 (3)
SA 247
(CC);
2005 (6) BCLR 529
(CC) at para 32 and
Executive
Council, Western Cape Legislature, and Others v President of the
Republic of South Africa and Others
[1995] ZACC 8
;
1995 (4) SA
877
(CC);
1995 (10) BCLR 1289
(CC) at para 51.
52
Hoexter
Administrative Law in South Africa
(Juta, Cape Town 2007) at
233; De Ville
Judicial Review of Administrative Action in South
Africa
(LexisNexis Butterworths, Durban 2003) at 146.
53
Above
n 51 at para 173.
54
Section
103(4)(a) and (b) need not be read conjunctively.
55
[2009]
ZACC 23
;
2010 (4) SA 327
(CC);
2009 (12) BCLR 1192
(CC).
56
Id
at paras 35-6.
57
Global
Pact Trading
above n 49 and
Mofschaap Diamonds
above n
50.
58
Wiechers
Administrative Law
(Butterworths, Durban 1985).
59
See
especially
Global Pact Trading
above n 49 at paras 6-9 and
Mofschaap Diamonds
above n 50 at paras 11-4.
60
Global
Pact Trading
id at para 8 and
Mosfschaap Diamonds
id at
para 13.
61
Professor
Wiechers acknowledges this himself. See Wiechers above n 58 at 52
where he states:
“
In his capacity as
administrative superior, the
delegans
may exercise various forms of control over the delegate. He may
require that the delegate report to him and, if the delegate
does
not carry out his task as he should, the delegans may relieve him of
the task. If the matter has not been finally dealt
with, the
delegans may always still intervene and finalize it himself
.
In such a case the
delegans
is by no means
functus
officio
and he may
always intervene in his capacity as administrative superior and
carry the matter through to a satisfactory conclusion.
However, it
is clear that if the delegate has already finalized the matter, the
delegans
will have to be content with that, since, in accordance with the
principles governing administrative deconcentration, the delegate

will have acted on behalf of the
delegans
in full. In such a
case the
delegans
may decide to revoke the delegation or to act against the delegate
in some other way, but he cannot undo the effect of the completed

delegated function.” (Emphasis added.)
62
The
Deputy Director General’s decision is then appealed in the
hierarchy provided for in section 96(1) of the Act.
63
In
stating this I certainly do not wish to be seen as dismissive of the
important contribution made by Professor Wiechers in his
work on
administrative law under the previous constitutional dispensation.
It was at a time when it was necessary, in the words
of Chaskalson P
in
Pharmaceutical Manufacturers Association of SA and Another: In
re Ex Parte President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at
para 45, “to claim space and push boundaries to find means of
controlling public power” and his work made
an important
contribution in this process.
64
Hoexter
above n 52 at 233.
65
Section
1(d) of the Constitution.
66
Section
195 of the Constitution provides:
“
(1) Public administration
must be governed by the democratic values and principles enshrined
in the Constitution, including the
following principles:
(a) A high standard of professional ethics must be
promoted and maintained.
(b) Efficient, economic and effective use of resources
must be promoted.
(c) Public administration must be development-oriented.
(d) Services must be provided impartially, fairly,
equitably and without bias.
(e) People’s needs must be responded to, and the
public must be encouraged to participate in policy-making.
(f) Public administration must be accountable.
(g) Transparency must be fostered by providing the
public with timely, accessible and accurate information.
(h) Good human-resource management and
career-development practices, to maximise human potential, must be
cultivated.
(i) Public administration must be broadly
representative of the South African people, with employment and
personnel management
practices based on ability, objectivity,
fairness, and the need to redress the imbalances of the past to
achieve broad representation.
(2) The above principles apply to—
(a) administration in every sphere of government;
(b) organs of state; and
(c) public enterprises.”
67
Compare
Elliott et al (eds)
Administrative Law: Text and Materials
3ed (Oxford University Press, Oxford 2005) 162-6.
68
This
too was the finding of the Supreme Court of Appeal.
69
Act
3 of 2000.
70
Section
7(1) and (2) of PAJA state:
“
(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.”
71
Compare
Koyabe
, above n 55 at para 48 and
Joint Municipal Pension
Fund and Another v Grobler and Others
2007 (5) SA 629
(SCA) at
paras 29-30.
72
Section
6 of the Act and see n 47 above.
73
[2004]
ZACC 19
;
2005 (3) SA 589
(CC);
2005 (4) BCLR 347
(CC).
74
Id
at para 101.
75
Section
10(1) of the Act.
76
Section
10(2) of the Act.
77
Section
16(4)(b) of the Act
78
Id.
79
Section
5(4)(c) of the Act.
80
Compare
Meepo v Kotze and Others
2008 (1) SA 104
(NC) at para 13.1.
81
Schutz
JA’s words in
Trojan Exploration Co (Pty) Ltd and Another v
Rustenburg Platinum Mines Ltd and Others
[1996] ZASCA 74
;
1996 (4) SA 499
(AD) at
509B.
82
Consultation
in good faith with a view to reach a result is a familiar concept in
our law. See
Merafong Demarcation Forum and Others v President of
the Republic of South Africa and Others
[2008] ZACC 10
;
2008 (5)
SA 171
(CC);
2008 (10) BCLR 969
(CC) at paras 46 and 51;
Matatiele
Municipality and Others v President of the RSA and Others (No 2)
[2006] ZACC 12
;
2007 (6) SA 477
(CC);
2007 (1) BCLR 47
(CC) at para
66;
Doctors for Life International v Speaker of the National
Assembly
and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC) (Van der Westhuizen J, dissenting) at para
244 and
S v Smit
2008 (1) SA 135
(T) at 153I-J. With regard
to consultation in labour law, see
NUM & Others v Crown Mines
Ltd
[2001] 7 BLLR 716
(LAC) at para 38.
83
In
terms of section 54 of the Act.
84
Section
3(1) of PAJA.
85
Section
6 of the Act.
86
Section
3(2) of PAJA states that:
“
(a) A fair administrative
procedure depends on the circumstances of each case.
(b) In order to give effect to the right to
procedurally fair administrative action, an administrator, subject
to subsection (4),
must give a person referred to in subsection (1)—
(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.”
87
Regulation
3 above n 31.
88
See
[38]-[41] above.
89
Section
25(4) of the Constitution.
90
Section
25(5) of the Constitution.
91
Section
25(6) and (7) of the Constitution.
92
A
community as defined in section 1 of the Act:
“
means a coherent, social
group of persons with interests or rights in a particular area of
land which the members have or exercise
communally in terms of an
agreement, custom or law.”
93
Sections
16(1)(b) and 104(4) of the Act.
94
Section
3(2)(b)(i) of PAJA.
95
Section
3(2)(b)(ii) of PAJA.
96
Section
3(2)(b)(iii) of PAJA.
97
Section
3(2)(b)(iv) of PAJA.
98
Section
3(2)(b)(v) of PAJA.
99
Section
5 of PAJA.
100
2004
(6) SA 222
(SCA).
101
2008
(2) SA 638
(SCA).
102
2008
(2) SA 481
(SCA).
103
Section
172 states that:
“
(1) When deciding a
constitutional matter within its power, a court—
(a) must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency;
and
(b) may make any order that is just and equitable,
including—
(i) an order limiting the retrospective effect of the
declaration of invalidity; and
(ii) an order suspending the declaration of invalidity
for any period and on any conditions, to allow the competent
authority
to correct the defect.”
104
Section
8(1) of PAJA reads as follows:
“
The court or tribunal, in
proceedings for judicial review in terms of section 6(1), may grant
any order that is just and equitable
. . . .”
Section
8(2) of PAJA reads as follows
:
“
The court or tribunal, in
proceedings for judicial review in terms of section 6(3), may grant
any order that is just and equitable
. . . .”
105
See
Investigating Directorate: Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai
Motor
Distributors (Pty) Ltd and Others v Smit NO and Others
[2000]
ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at paras
23-6.
106
[2006]
ZACC 16
;
2007 (3) SA 121
(CC);
2007 (3) BCLR 300
(CC).
107
Id
at paras 29-30.
108
Eskom
Holdings Ltd and Another v New Reclamation Group (Pty) Ltd
2009
(4) SA 628
(SCA) at para 9.
109
Compare
Oudekraal
above n 100 at paras 27-38.
110
Id
at para 36.
111
Millennium
Waste
above n 102 at paras 23-32.
112
Biowatch
Trust v Registrar, Genetic Resources, and Others
[2009] ZACC
14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at para 28.