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Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining …

Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining And Development Company Ltd and Others (CCT 39/13) [2013] ZACC 48; 2014 (3) BCLR 265 (CC); 2014 (5) SA 138 (CC) (13 December 2013)

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Constitutional Law

Brief Summary

Constitutional Law — Leave to appeal — Condonation for late delivery of heads of argument — Dengetenge Holdings (Pty) Ltd sought leave to appeal against the Supreme Court of Appeal's dismissal of its application for condonation and reinstatement of its appeal against a High Court order reviewing the grant of prospecting rights. The High Court had set aside the prospecting rights granted to Dengetenge by the Minister of Mineral Resources following a review application by Southern Sphere Mining and Development Company Ltd. The legal issue was whether the Supreme Court of Appeal erred in dismissing the application for condonation. The Constitutional Court held that the Supreme Court of Appeal's decision was not final and granted leave to appeal, emphasizing the importance of the issues at stake regarding mineral rights.

Full Judgment Text (Click to expand)

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[2013] ZACC 48
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Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining And Development Company Ltd and Others (CCT 39/13) [2013] ZACC 48; 2014 (3) BCLR 265 (CC); 2014 (5) SA 138 (CC) (13 December 2013)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 39/13
[2013]
ZACC 48
DATE:
13/12/2013
In
the matter between:
DENGETENGE
HOLDINGS (PTY)
LTD
…................................................................
Applicant
And
SOUTHERN
SPHERE MINING AND
DEVELOPMENT
COMPANY
LTD
..............................................................
First
Respondent
RHODIUM
REEFS
LTD
.........................................................................
Second
Respondent
MINISTER
OF MINERALS AND ENERGY
.............................................T
3rd Respondent
DEPUTY
DIRECTOR-GENERAL: MINERAL
REGULATION,
DEPARTMENT OF
MINERALS
AND
ENERGY
....................................................................
Fourth
Respondent
REGIONAL
MANAGER: MPUMALANGA REGION,
DEPARTMENT
OF MINERALS AND ENERGY
.....................................
Fifth
Respondent
REGIONAL
MANAGER: LIMPOPO REGION,
DEPARTMENT
OF MINERALS AND ENERGY
..................................
Sixth
Respondent
ABRINA
1998 (PTY)
LTD
...................................................................
Seventh
Respondent
Heard
on : 15 August 2013
Decided
on : 13 December 2013
JUDGMENT
ZONDO
J (Mogoeng CJ concurring):
Introduction
[1] This
is an application brought by Dengetenge Holdings (Pty) Ltd
(Dengetenge) for leave to appeal against a decision of the Supreme

Court of Appeal dismissing its application for the condonation of
the late delivery of its written heads of argument and for the

reinstatement of its appeal (condonation) against a judgment and
order of the North Gauteng High Court, Pretoria (High Court).

Dengetenge also applies for leave to appeal directly to this Court.
The decision of the High Court against which Dengetenge
seeks to
appeal is an order reviewing and setting aside the grant of certain
prospecting rights to it by the Minister of Mineral
Resources
(Minister) or the Deputy Director-General: Mining Regulation (DDG).
[2] Southern
Sphere Mining and Development Company Limited (Southern Sphere)
brought an application in the High Court for various
orders against
the Minister; the DDG; the Regional Manager: Mpumalanga (RM:
Mpumalanga), Department of Mineral Resources; the Regional
Manager:
Limpopo (RM: Limpopo), Department of Mineral Resources; and three
companies, namely, Rhodium Reefs Ltd (Rhodium), Abrina
1998 (Pty) Ltd
(Abrina) and Dengetenge. It is not necessary to list all the various
orders that Southern Sphere sought. It suffices
to say that Southern
Sphere sought an order reviewing and setting aside the grant of
prospecting rights to Dengetenge and Abrina
by the DDG as well as the
rescission of an earlier order of the High Court that the Minister,
or alternatively the DDG, grant certain
prospecting rights to
Rhodium.
[3] The
Minister, the DDG, the RM: Limpopo and the RM: Mpumalanga authorised
the then DDG, Mr Rocha, to depose to an affidavit on
their behalf.
This he did, and placed before the Court the state respondents’
version of how various decisions had been
made. In that affidavit
the Minister, the DDG and the two Regional Managers asked the High
Court to decide the various claims
and counter claims. They also
indicated which orders the court should grant and which ones not.
[4] Rhodium
filed an answering affidavit in support of its opposition and made a
conditional counter-application in terms of which
it sought to have
the grant of the prospecting right to Dengetenge reviewed and set
aside on certain grounds if Southern Sphere’s
application to
have it reviewed and set aside was unsuccessful. Abrina initially
opposed Southern Sphere’s application but
later withdrew its
opposition. Dengetenge also opposed Southern Sphere’s
application and filed an answering affidavit in
opposition.
Background
[5] This
matter relates to the right to prospect for platinum metal group
metals and minerals generally associated with them on
two farms,
namely Boschkloof 331 KT and Mooimeisjesfontein 363 KT. Both farms
are situated in the Limpopo Province.
[6] In
1936 Boschkloof was subdivided into two portions, namely, Portion 1
and the Remaining Extent. In 1959 the Remaining Extent
was further
subdivided into two portions, one of which was called Portion 2. The
reduced Remaining Extent continued to be called
the Remaining Extent.
[7] All
the properties currently fall within the jurisdiction of the RM:
Limpopo in terms of the Mineral and Petroleum Resources
Development
Act (MPRDA).
[8] For
some years prior to the coming into operation of the Constitution,
Rhodium had been engaged in a prospecting project in
the Steelpoort
Valley. This project was known as the Kennedy’s Vale Project.
The project area comprised the southern parts
of Boschkloof, the farm
De Goedeverwachting, the farm Belvedere, certain portions of the farm
Tweefontein, and the farm Kennedy’s
Vale. At some point the
farms Spitskop and Kalkfontein were also added to the project.
[9] Boschkloof
is situated between the farms Kennedy’s Vale and De
Goedeverwachting. On the south-east boundary of Boschkloof
is the
farm Mooimeisjesfontein.
[10] When
the Constitution came into operation, De Goedeverwachting and
Boschkloof fell under the province of Limpopo whilst the
remainder of
the project farms fell under Mpumalanga. On 20 February 2002 the
Director of Mineral Development (DMD) for Limpopo
transferred by way
of delegation to the DMD for Mpumalanga jurisdiction in respect of
the administration of mineral rights in respect
of the farms
Boschkloof and De Goedeverwachting.
[11] A
prospecting permit was issued to Rhodium on 15 August 2001 in terms
of section 6(4) of the Minerals Act, the precursor to
the MPRDA, in
respect of the southern parts of Boschkloof. Rhodium’s
prospecting permit was renewed on 5 August 2002 effective
until 18
July 2003. On 7 April 2003 Rhodium lodged its application for the
renewal of its prospecting contract with the Department
of Mineral
Resources (Department) in Mpumalanga. On 11 June 2003 Rhodium
applied separately to the same functionary for the renewal
of its
prospecting permit.
[12] On
30 April 2004 the whole of South Africa was divided into regions for
the purpose of the MPRDA. This was pursuant to the
provisions of
section 7 of the MPRDA. The regions coincided with the nine
provinces of the country. Regional Managers were appointed
for the
various regions. Thus, there was a Regional Manager: Limpopo, a
Regional Manager: Mpumalanga, and so on.
[13] On
29 June 2004 the RM: Mpumalanga advised Rhodium in writing that its
pending application would be dealt with under the MPRDA
and called
for certain information. In so doing the RM: Mpumalanga purported to
act under Item 3(2) of Schedule II to the MPRDA.
[14] Rhodium
supplied the information requested by the RM: Mpumalanga who then
acted in terms of section 16 of the MPRDA. The
RM: Mpumalanga
submitted Rhodium’s application to the Department. By letter
dated 14 September 2005 the RM: Mpumalanga advised
Rhodium that its
application had been refused.
[15] By
letter dated 20 September 2005 Rhodium advised the RM: Mpumalanga
that it was considering making an application to court
to have the
decision to refuse its application reviewed and set aside. It also
sought a written undertaking from the RM: Mpumalanga
and the DDG that
they would not process any third party applications pending the
outcome of Rhodium’s review application.
The Department did
not respond to the letter.
[16] Rhodium
instituted an urgent application on 17 October 2005 to interdict the
Minister and her delegate from granting any rights
in terms of
section 17 or 23 of the MPRDA in respect of the southern section of
Boschkloof. It also sought to interdict the RM:
Mpumalanga from
accepting any applications in terms of section 16 or section 22 of
the MPRDA also in respect of the southern portion
of Boschkloof. The
High Court granted that interdict on 26 October 2005 pending the
finalisation of the review proceedings which
Rhodium intended
launching. The interdict operated from 26 October 2005 until it was
discharged by operation of law on 6 December
2006.
[17] Rhodium
launched its review application in the High Court on 2 December 2005.
There was no opposition from the state respondents.
On 6 December
2006 the High Court granted Rhodium an order reviewing and setting
aside the decision not to grant Rhodium’s
application for a
prospecting right and directing the Minister and the DDG to grant and
issue to Rhodium the prospecting right
applied for in respect of the
property.
[18] On
15 April 2005 Southern Sphere lodged an application for prospecting
rights over Portions 1 and 2 and the Remaining Extent
of Boschkloof
and Portion 1 and the Remaining Extent of Mooimeisjesfontein. On 23
December 2005 the DDG refused Southern Sphere’s
application.
Southern Sphere did not file a fresh application but merely rectified
what the DDG had considered to be deficiencies
in its application.
This led to a reconsideration of the application. By letter dated 4
October 2006 the Department notified
Southern Sphere that it had been
granted a prospecting right over Portion 1 and the Remaining Extent
of Boschkloof and Portion
1 and the Remaining Extent of
Mooimeisjesfontein. The grant did not include Portion 2 of
Boschkloof. The failure to include Portion
2 of Boschkloof was a
typographical error.
[19] On
7 February 2006 Dengetenge lodged an application with the RM:
Mpumalanga, for prospecting rights over Portion 1 of Boschkloof
and
Portion 1 and the Remaining Extent of Mooimeisjesfontein. On 11
November 2006 a prospecting right over only Portion 1 of Boschkloof

and the Remaining Extent of Mooimeisjesfontein was notarially
executed in favour of Dengetenge. There was no explanation why
Dengetenge was not awarded Portion 1 of Mooimeisjesfontein as applied
for. By not responding to Rhodium’s letter of 20 September

2005, the Department kept Rhodium unaware of the fact that Southern
Sphere had lodged an application which was then pending.
[20] The
Department did not tell Dengetenge or Southern Sphere that review
proceedings were pending. So it was made impossible
for Rhodium to
give them notice to enable them to intervene in the proceedings.
[21] As
a result of the Department’s failure to inform Dengetenge or
Southern Sphere of Rhodium’s pending review proceedings,
the
High Court decided Rhodium’s review application in the absence
of Southern Sphere and Dengetenge. This made the confusion
worse and
the resolution of the issues more complex. No explanation was
offered by the state respondents as to why they had acted
in breach
of the interdict granted in favour of Rhodium.
[22] In
a letter dated 14 February 2007 to the RM: Limpopo and the RM:
Mpumalanga, the attorney for Southern Sphere recorded that
he had
been told by an official within the Department that prospecting
rights over some of the portions of the properties had been
granted
to other persons in addition to Southern Sphere. It would appear
that at that stage the identities of those parties were
not revealed
to Southern Sphere. Further correspondence ensued in which Southern
Sphere learnt of the interdict and review orders.
[23] A
meeting was called by the Department on 3 April 2007 which was
attended by officials of the Department, Southern Sphere,
Dengetenge
and Abrina. Its purpose was to try and, in the words of the High
Court judgment “unravel the mare’s nest”
created by
the Department. Rhodium did not attend the meeting and it is not
clear whether it was invited but did not attend or
whether it was not
invited. The Department appealed to those present to go away and try
and to resolve the problem among themselves
but nothing came out of
the meeting.
[24] On
4 April 2007 Southern Sphere, through one of its shareholders, wrote
a letter signed by one of Southern Sphere’s directors,
Mr Ward,
to Dengetenge enclosing a copy of the interdict from which Mr Ward
had inexplicably obliterated the case number, the name
of the judge
who had granted the interdict and the name of the applicant, namely,
Rhodium. In the letter Mr Ward pointed out that
the terms of the
interdict operated to strip the grant of prospecting rights to
Dengetenge of any validity. This proposition applied
with equal
force to Southern Sphere. By March 2007, Southern Sphere was aware
of the interdict, review papers and the review order.
[25] By
letter dated 17 August 2007 the Director-General (DG) of the
Department conveyed to the attorneys for Southern Sphere the
decision
of the Minister in terms of section 103(4) of the MPRDA to withdraw
the decision of the DDG to grant a prospecting right
to Southern
Sphere insofar as it overlapped with the right granted to Rhodium in
respect of the properties. Before the High Court
all counsel were in
agreement that the decision in terms of section 103(4)(b) was made
by the Minister in an attempt to comply
with the review order.
[26] The
Department then granted rights to prospect for platinum to—
(a) Southern
Sphere over the whole of Mooimeisjesfontein and Portion 1 and the
Remaining Extent of Boschkloof, pursuant to an application
lodged
with the RM: Limpopo;
(b) Rhodium
over the southern parts of Portion 1, Portion 2 and the Remaining
Extent of Boschkloof, pursuant to an application
lodged in terms of
Item 3 of Schedule II of the MPRDA with the DMD for Mpumalanga and
the court order mentioned below; and
(c) Dengetenge
over Portion 1 of Boschkloof and the whole of Mooimeisjesfontein
pursuant to an application lodged with the RM:
Mpumalanga.
[27] Rhodium’s
prospecting rights were granted following the review order of 6
December 2006 which directed the Department
to grant them to Rhodium.
In
the High Court
[28] Southern
Sphere launched its review application before the High Court on 17
August 2007. Southern Sphere did not lodge any
appeal in terms of
section 96 of the MPRDA before it launched its review application.
This means that it launched its review application
without exhausting
its internal remedies. It is also did not apply to court for
exemption from the obligation to exhaust internal
remedies. Southern
Sphere invoked the provisions of Rule 53 to obtain the record from
the Department. The record, comprising
in all some 580 pages, was
produced in two instalments and was an unwieldy and unchronological
archive.
[29] All
relevant parties before the High Court accepted that only one right
to prospect for a particular mineral could lawfully
be granted over
any specific surface area under the MPRDA. They also accepted that,
once it was established that one of the parties
had been granted such
a right to prospect earlier in time than any of the other competing
rights contended for, the later grants
of rights had to be invalid
for that reason alone. This did not exclude the possibility that all
the grants of rights were invalid
for one reason or another.
[30] It
was also accepted by all the parties that no application for a
prospecting right could be validly accepted by a Regional
Manager and
that no application for a prospecting right could be granted by the
Minister or her delegate during the period in which
the interdict in
favour of Rhodium was in operation.
[31] The
matter came before Tuchten J. When the hearing began, counsel for
Dengetenge formally conceded that the grant of the
prospecting right
to Dengetenge had been unlawful because it was granted contrary to
the provisions of the interdict. Here is
how he made the
announcement in court and the exchange between him and the court:
“
[COUNSEL]: As
the court pleases, My Lord. My Lord, the seventh respondent concedes
that in so far as the relief is sought by the
applicant in its notice
of motion and by the fifth respondent in its counter application to
review and set aside the decision to
grant it a prospecting right . .
. [intervened]
COURT: Grant
whom a prospecting right?
[COUNSEL]: The
seventh respondent My Lord.
COURT: Yes?
[COUNSEL]: It
concedes that the grant of that right was unlawful.
COURT: That
is quite an important concession.
[COUNSEL]: It
is indeed My Lord.
COURT: So
I had better make a careful note of it. Concedes that the grant . .
. [indistinct]. You concede . . . [intervened]
[COUNSEL]: My
Lord, in the . . . [intervened]
COURT: Excuse
me. I want to just make sure that I have got it right. You concede
that the grant of a prospecting right to the
seventh respondent was
unlawful?
[COUNSEL]: That
is correct.
COURT: Seventh
respondent is Dengetenge. Can we call it Dengetenge?
[COUNSEL]: As
the court pleases, My Lord.
COURT: To
make it easier for me. Yes?
[COUNSEL]: My
Lord, as obviously will appear from my argument when I address Your
Lordship, the basis of that concession is that
the grant was in the
face of an interdict.
.
. .
[COUNSEL]: My
Lord, where that leaves the seventh respondent, where that leaves
Dengetenge, is that what we will be addressing Your
Lordship on, is
purely what the appropriate relief should be following, on consequent
upon that concession. In other words, what
is a just and equitable
remedy following the setting aside of the right to it. And that is
my submissions to Your Lordship will
based on that. Obviously My
Lord, I will make submissions on the rights that Southern Sphere the
applicant has and the rights
that Rhodium has as well. But in so far
as Dengetenge goes My Lord, my submissions will be limited to what is
the just and equitable
remedy in the circumstances.
COURT: Thank
you.”
[32] Tuchten
J then proceeded to deal with the matter on the basis that Dengetenge
was not opposing Southern Sphere’s application,
subject to
submissions on a just and equitable remedy. He also heard counsel
for Southern Sphere and counsel for Rhodium. Tuchten
J did not deal
with any contention that he should dismiss Southern Sphere’s
application because there was no exhaustion of
internal remedies in
terms of section 96 of the MPRDA because Dengetenge did not pursue
that contention. However, he did deal
with a contention by Rhodium
that Southern Sphere had delayed unreasonably before instituting its
review application. He rejected
that contention. In terms of his
judgment he set aside the grant of prospecting rights to Dengetenge.
He also made other orders
which are not relevant to the present
matter. He did not accede to Dengetenge’s request regarding a
just and equitable remedy.
The hearing took three days.
[33] On
17 June 2011 Dengetenge obtained leave from the High Court to appeal
to the Supreme Court of Appeal against its decision
to set aside the
grant of prospecting rights to Dengetenge.
In
the Supreme Court of Appeal
[34] Dengetenge
obtained two extensions of time before it lodged the appeal record.
On 15 December 2011 it lodged the record with
the Registrar of
Supreme Court of Appeal. Dengetenge was required to deliver its
heads of argument on or before 23 February 2012.
[35] Dengetenge
realised that it was not going to be able to meet the deadline. It
sought the consent of the other parties for
the late filing of its
heads of argument by 13 April 2012. The State Attorney consented to
the late filing of the heads of argument,
despite the fact that the
state respondents were not taking part in the appeal. Southern
Sphere and Rhodium did not. Dengetenge
then filed a substantive
application for condonation with the Registrar of the Supreme Court
of Appeal. That application reached
the Registrar on 24 February
2012. By that time the appeal had already lapsed. The Registrar
wrote Dengetenge a letter dated
2 March 2012 notifying it that its
appeal had lapsed due to non-compliance with the Rules of the Supreme
Court of Appeal. This
meant that an application for its
reinstatement was required.
[36] On
8 March 2012 Southern Sphere’s attorney wrote to Dengetenge’s
attorney and informed the latter that there was
no need for his
clients to respond to Dengetenge’s application dated 23
February 2012 as the appeal had lapsed. Dengetenge’s
attorney
did not reply to that letter. On 12 July 2012 Dengetenge served on
Southern Sphere a copy of an application for condonation
and for the
reinstatement of the appeal. It subsequently re-served its
application for condonation together with its heads of
argument on 27
August 2012. This meant that Dengetenge’s heads of argument
were some six months late. In terms of the Rules
of the Supreme
Court of Appeal Southern Sphere and Rhodium had to file opposing
affidavits within a month if they sought to oppose
Dengetenge’s
application for condonation. They filed their affidavits outside
the 30-day period and thus, also, in breach
of the Rules of the
Supreme Court of Appeal. This means that they also required
condonation in this regard.
[37] Southern
Sphere and Rhodium said that, after the lapse of the appeal, the
prospecting rights granted by the Minister to them
had become
effective. Southern Sphere said that it had commenced prospecting
operations on the properties during March 2012.
It said that it was
obliged to do this in terms of section 19(2)(b) of the MPRDA.
Southern Sphere said that as at July 2012 it
had incurred direct
prospecting costs of approximately R6 million on the project.
Rhodium stated that it had already expended
in the region of R1,2
million. It also said that its projected costs for the compilation
of its environmental impact assessment
were R1,928 million. Rhodium
said that, although not all of these costs had been incurred yet, the
process had been commissioned
and a portion thereof had been
incurred. Rhodium said that the balance thereof would have had to be
settled soon to ensure compliance
with the requirements in the letter
of acceptance of Rhodium’s mining right application.
[38] Southern
Sphere and Rhodium contended that the amounts would be placed at risk
if Dengetenge were given the opportunity to
re-instate the lapsed
appeal. After Dengetenge’s appeal had lapsed, they said that
most of those costs had been incurred
by them at a time when they
believed that they had legal certainty and there had been no
indication from Dengetenge that it intended
seeking its
re-instatement.
[39] Southern
Sphere also stated that it had sold shares to investors in order to
fund the prospecting operations. These shares
were sold to both
local and international investors on the basis that the appeal had
lapsed. Shares were also sold to the local
communities residing on
the properties, representing some 32 000 people. Southern Sphere
said that those people had very high
expectations of being involved
in the project’s success. Southern Sphere said that it had
taken it many years to establish
a strong working relationship with
the local communities. It said that if the project were placed on
hold or otherwise delayed,
the damage to community relations could be
irreversible. Dengetenge did not dispute any of these allegations.
The Supreme Court
of Appeal held that they could not be disputed. It
accepted that Southern Sphere and Rhodium had been severely
prejudiced by Dengetenge’s
delay in prosecuting the appeal.
[40] The
Supreme Court of Appeal accepted that there had been no or minimal
inconvenience to it. It found that there were huge
gaps in the
chronological sequence advanced by Dengetenge.
[41] The
Supreme Court of Appeal took the view that Dengetenge’s breach
of its Rules was flagrant. It held that given this
breach, coupled
with the failure to advance an acceptable explanation, as also the
very evident prejudice to Rhodium and Southern
Sphere, it could well
have been entitled to refuse the indulgence of condonation
irrespective of the merits of the appeal. Nevertheless,
it addressed
the merits of the appeal in order to determine whether it should
grant condonation. The Supreme Court of Appeal concluded
that there
could be no doubt that Dengetenge’s counsel withdrew
Dengetenge’s opposition to Southern Sphere’s
application
and Rhodium’s counter-application. It held Dengetenge to the
concession its counsel had made in the High Court.
Nevertheless, the
Court found that Dengetenge had no prospects, even without the
concession. It dismissed Dengetenge’s
application for
condonation and for the reinstatement of the appeal with costs
including the costs of two counsel.
In
this Court
Condonation
[42] Dengetenge
failed to deliver its application for leave to appeal as well as its
written submissions timeously. It brought
applications for
condonation. Counsel for Southern Sphere and Rhodium indicated that
they did not oppose those applications.
The period of delay was not
excessive and there was no prejudice or inconvenience to any party or
the Court. Accordingly, it is
in the interests of justice that
condonation be granted.
Jurisdiction
[43] Prior
to 23 August 2013 this Court’s jurisdiction was limited to
deciding constitutional matters and issues connected
with
constitutional matters. However, on that day the Constitution
Seventeenth Amendment Act of 2013 came into operation and conferred

upon this Court general jurisdiction as well. The parties presented
their arguments on the footing that the jurisdiction of this
Court
applicable to this case is its jurisdiction as it was before 23
August 2013. Accordingly, I also propose to deal with the
matter on
the basis of that jurisdiction.
[44] In
terms of section 167(3)(b) of the Constitution, as it was before 23
August 2013, this Court’s jurisdiction was limited
to
constitutional matters and issues connected with constitutional
matters. In so far as Dengetenge seeks leave to appeal against
the
decision of the Supreme Court of Appeal refusing it condonation, it
contends that that Court dealt with its application for
condonation
in a manner that gave rise to a reasonable perception that the Court
was not impartial. That raises a constitutional
issue because it is
a constitutional requirement that, in deciding matters, courts must
adjudicate impartially. Accordingly,
this Court has jurisdiction to
deal with Dengetenge’s application for leave to appeal against
the decision of the Supreme
Court of Appeal.
[45] Dengetenge
also seeks leave to appeal against the decision of the High Court.
There is no doubt that there is a constitutional
issue in this
matter. One of the applicant’s contentions is that it was not
competent for the High Court to entertain Southern
Sphere’s
review application because Southern Sphere had failed to exhaust
internal remedies as required by section 96 read
with section 7 of
the Promotion of Administrative Justice Act (PAJA). This means that
the applicant’s contention in this
regard is based upon a
provision of the PAJA, a statute that was enacted to give effect to
the Constitution. This raises a constitutional
issue. Another
contention advanced by Dengetenge is that the High Court should not
have entertained Southern Sphere’s application
because Southern
Sphere had delayed unreasonably in instituting its review application
and had done so outside the 180 days prescribed
by section 7 of the
PAJA. As this contention is based on a provision of the PAJA, it,
too, raises a constitutional issue. Accordingly,
this Court has
jurisdiction to entertain this matter.
Leave
to appeal against the decision of the Supreme Court of Appeal
[46] This
Court grants leave to appeal if it is in the interests of justice to
grant leave. In this case the ground upon which
Dengetenge attacks
the decision of the Supreme Court of Appeal to refuse its application
for condonation is that the Supreme Court
of Appeal dealt with
Dengetenge’s condonation application in a manner that gave rise
to a reasonable perception that it lacked
impartiality. This is a
complaint of a perception of bias on the part of the Supreme Court of
Appeal. This was said on the basis
that Southern Sphere and Rhodium
had also failed to comply with the Rules of the Supreme Court of
Appeal in filing their answering
affidavits in support of their
opposition to Dengetenge’s condonation application but the
Court had no problem with their
condonation applications. Dengetenge
points out that, in support of the Supreme Court of Appeal’s
decision to dismiss its
application that Court relied upon the
contents of Southern Sphere’s and Rhodium’s opposing
affidavits for which it
had not granted condonation.
[47] In
SARFU this Court said:
“
A
cornerstone of any fair and just legal system is the impartial
adjudication of disputes which come before the courts and other

tribunals. This applies, of course, to both criminal and civil cases
as well as to quasi-judicial and administrative proceedings.
Nothing
is more likely to impair confidence in such proceedings, whether on
the part of litigants or the general public, than
actual bias or the
appearance of bias in the official or officials who have the power to
adjudicate on disputes.”
It
formulated the test as follows:
“
The
question is whether a reasonable, objective and informed person would
on the correct facts reasonably apprehend that the judge
has not or
will not bring an impartial mind to bear on the adjudication of the
case, that is a mind open to persuasion by the evidence
and the
submissions of counsel.”
This
Court then explained:
“
The
reasonableness of the apprehension must be assessed in the light of
the oath of office taken by the judges to administer justice
without
fear or favour; and their ability to carry out that oath by reason of
their training and experience.”
[48] I
think that the answer to Dengetenge’s complaint in this regard
is that, to the extent that the Supreme Court of Appeal
may have
treated the condonation applications of the different parties
differently, this was because Dengetenge’s condonation

application was opposed whereas the others were not. Dengetenge’s
non-compliance was much more extensive than Rhodium’s
and
Southern Sphere’s. Counsel for Dengetenge had informed the
Supreme Court of Appeal that he was not opposing the grant
of
condonation to Southern Sphere and Rhodium whereas one of the other
parties did not reciprocate in this regard and informed
the Court
that he was opposing Dengetenge’s application for condonation.
[49] The
allegation of bias was made against Judges of the Supreme Court of
Appeal. Such allegations are very serious when made
against any
judicial officer but, when they are made against a court of the
standing of the Supreme Court of Appeal, they assume
even greater
seriousness. Making allegations of bias or the appearance of bias
against judges when there are no reasonable grounds
for such
allegations must be viewed in a very serious light. This is because
of the damage that such allegations are likely to
cause to the
confidence the public reposes in the Judiciary. They should not be
made lightly. Applying the above test to the
facts of this case, I
am of the view that the complaint is devoid of any substance and
should be dismissed. There are no reasonable
grounds for any
perception of partiality in the manner in which the Supreme Court of
Appeal dealt with Dengetenge’s application
for condonation.
[50] As
the above was the only ground upon which the decision of the Supreme
Court of Appeal was attacked, I would dismiss Dengetenge’s

application for leave to appeal against that decision because the
contention has no prospects of success.
[51] In
Mabaso, this Court held that “[u]nder rule 19, then, an
applicant refused condonation by the [Supreme Court of Appeal]
should
ordinarily seek leave to appeal to this Court directly against the
judgment of the High Court and not ordinarily seek leave
to appeal
against the judgment of the [Supreme Court of Appeal] refusing
condonation”. There was, therefore, no need for
Dengetenge to
apply for leave to appeal against the decision of the Supreme Court
of Appeal dismissing its application for condonation
because it could
simply have sought leave to appeal directly to this Court against the
decision of the High Court. I now proceed
to consider Dengetenge’s
application for leave to appeal against the decision of the High
Court.
Leave
to appeal against the decision of the High Court
[52] This
Court grants leave to appeal if it is in the interests of justice to
do so. The factors that it normally takes into account
include the
importance of the issues raised by the matter, the prospects of
success and the public interest. In this regard the
prospects of
success, though important, are not decisive. I have identified above
the constitutional issues that are raised by
Dengetenge’s
application for leave to appeal against the decision of the High
Court. The matter raises important issues
for determination by this
Court. One of the issues is whether, where a review applicant
instituted a review application without
exhausting the internal
remedies in section 96(3) the court may hear the review application
if the Minister has considered the
decision sought to be reviewed and
agrees with the review applicant that that decision should not have
been made but requests the
court to hear the review application and
decide the matter. A decision of this Court on this issue is
desirable and will affect
other cases beyond the parties in the
present case. Furthermore, what is at stake is the grant of
prospecting rights which, no
doubt, have huge monetary value. The
contentions raised by Dengetenge are reasonably arguable. For that
reason Dengetenge has
reasonable prospects of success. In the
circumstances I am of the view that it is in the interests of justice
that leave to appeal
against the decision of the High Court should be
granted.
The
appeal
[53] In
considering Dengetenge’s appeal, the first question to be
considered is whether Dengetenge should be granted leave
to withdraw
the concession that its counsel made at the commencement of the
proceedings in the High Court. Dengetenge’s
counsel submitted
that Dengetenge’s previous counsel had made a concession on a
point of law and Dengetenge can withdraw
that concession. I have
quoted the relevant part of the transcript of the proceedings in the
High Court which show how Dengetenge’s
previous counsel
effectively withdrew Dengetenge’s opposition to Southern
Sphere’s application and Rhodium’s
counter-application.
I do not propose to repeat that here. I have also referred earlier
to the prejudice that Southern Sphere
and Rhodium said they would
suffer if, in effect, Dengetenge was granted leave to reinstate its
opposition.
[54] It
is true that a concession made by counsel on a point of law may be
withdrawn if the withdrawal does not cause any prejudice
to the other
party. However, in my view what counsel for Dengetenge did was not
just to make a concession on a point of law.
He effectively withdrew
Dengetenge’s opposition to the application. The Court needs to
do justice to all the parties in
this regard.
[55] The
hearing in the High Court took place over three days. Counsel for
Dengetenge withdrew Dengetenge’s opposition on
the first day of
the hearing but had occasion to repeat it on the second day.
[56] The
attorney for Dengetenge has said that he was not present in Court
when his counsel made the concession. However, he attended
Court on
both the second and third days. There is no way that he could not
have been aware by the end of the second day that his
counsel had
made such an important concession. In fact it is highly unlikely
that counsel would have made such a concession without
having
discussed it with his instructing attorney.
[57] At
any rate, after the hearing neither Dengetenge’s attorney nor
any of the officials of Dengetenge who had attended
Court complained
that Dengetenge’s counsel had made this concession without a
mandate. In fact, despite the fact that Tuchten
J referred to this
concession in his judgment, neither Dengetenge’s attorney nor
any official of Dengetenge reacted to the
judgment in a manner that
reflected that they had not known of this concession. It was only
after many months when the matter
was in the Supreme Court of Appeal
that Dengetenge’s attorney deposed to an affidavit in which he
said that counsel had made
that concession without authority. He
failed to explain why that had never been raised before and was only
being raised at that
stage. In my view it has not been shown that
counsel for Dengetenge had no authority to make the concession that
he made. Furthermore,
after the appeal had lapsed, Southern Sphere
and Rhodium incurred huge expenses in preparations necessary for
exercising their
prospecting rights which they might not have
incurred if Dengetenge had acted with diligence and made sure that
its appeal did
not lapse.
[58] It
would also be prejudicial to Rhodium if Dengetenge were granted leave
to withdraw the concession because, when the matter
was before the
High Court, Rhodium was ready to move an application for it to be
exempted from the obligation to exhaust internal
remedies but had
decided not to move that application after Dengetenge had effectively
withdrawn its opposition.
[59] Dengetenge’s
withdrawal of its opposition meant that all the parties before the
High Court were unanimous in asking the
Court to be the one to decide
the various competing claims. There was no party contending that
there should have been or should
be an exhaustion of internal
remedies before the Court could decide the matter. The Court was
entitled to give effect to the request
that it be the one to decide
all the claims and counter-claims. The High Court proceeded to
adjudicate the various competing claims
and brought about certainty
among the parties. It would be unjust and inequitable to all the
other parties to grant Dengetenge
leave to in effect reinstate its
opposition, particularly because, even at this stage, there can be no
doubt that on the merits
it was not entitled to be granted a
prospecting right in breach of the interdict granted in favour of
Rhodium.
[60] If
Dengetenge had not withdrawn its opposition and the Minister had not
made the request to the Court through Mr Rocha’s
affidavit that
the Court decide the various claims and counter-claims itself and the
High Court had upheld Dengetenge’s contention
and either
dismissed Southern Sphere’s application and Rhodium’s
counter-application or postponed or stayed them, those
parties would
have been able to exhaust their internal remedies and later go back
to Court to have the Court decide the claims
if they still felt
aggrieved after exhausting their internal remedies. However, since
Dengetenge withdrew its opposition and the
Minister requested the
Court to be the one to make the decisions on these claims and the
Court proceeded to decide the claims on
their merits, it would be
extremely unfair to now have that whole process reversed.
[61] I
conclude that the concession must stand. This conclusion is
sufficient to justify the dismissal of Dengetenge’s appeal.

However, even if Dengetenge was granted leave to reinstate its
opposition or to withdraw its concession, for the reasons I set
out
below, I would still conclude that Dengetenge’s appeal should
be dismissed.
Dengetenge’s
contention on internal remedies
[62] There
are two grounds upon which Dengetenge contended that the High Court
should not have heard Southern Sphere’s application.
The one
is that in terms of section 96(1) and (3), Southern Sphere was
obliged to exhaust the internal remedies provided for in
section 96
before it could apply to court for the review and setting aside of
the grant of prospecting rights to Dengetenge. Dengetenge
contended
that, since Southern Sphere had applied to Court for a review without
first exhausting the internal remedies in section
96, it was not
competent for the High Court to hear the matter. The other
contention is that Southern Sphere delayed unreasonably
in
instituting its review application and instituted it after the expiry
of the period of 180 days prescribed by section 7(1) of
the PAJA.
Accordingly, Dengetenge contended that the High Court should not have
entertained the application and should have dismissed
it on this
ground as well.
[63] Section
96 provides:
“
Internal
appeal process and access to courts
(1) Any
person whose rights or legitimate expectations have been materially
and adversely affected or who is aggrieved by any administrative

obligation to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice.”
[67] Section
7(2)(a) does not preclude any person from applying to court for the
review of an administrative act unless the person
has exhausted his
or her internal remedies. It precludes a court from reviewing any
administrative action in terms of the PAJA
unless any internal remedy
provided for in any other law has first been exhausted.
[68] I
now deal with Dengetenge’s contention. Dengetenge’s
contention raises the question whether it would have served
any
useful purpose for the High Court to insist that Southern Sphere
exhaust internal remedies before it could hear the review

application. The first answer is this. At some stage the state
respondents delivered their reasons for the various decisions

challenged in Southern Sphere’s application and in Rhodium’s
counter-application. In respect of the decisions to grant
Abrina and
Dengetenge prospecting rights, the state respondents, expressed the
view that those rights could not have lawfully been
granted to Abrina
and Dengetenge. They also said that the grant of the prospecting
rights to Dengetenge must have been an administrative
oversight.
[69] The
Minister and the DDG also indicated in the reasons that they intended
to invoke section 103(4)(b) of the MPRDA and to
withdraw the
decisions in terms of which prospecting rights had purportedly been
granted to Abrina and Dengetenge. Accordingly,
it can be said that,
once the state respondents had filed the reasons or the record, the
Minister’s decision was clear.
It was that the DDG should not
have granted Abrina and Dengetenge prospecting rights and those
decisions should be withdrawn in
terms of section 103(4)(b) of the
MPRDA. Once the Minister had taken this stance, it is not clear what
decision Southern Sphere
and Rhodium would have asked the Minister to
make in the internal appeal if they lodged an internal appeal at that
stage or if
the Court required them to exhaust the internal remedies
in section 96 before it could hear the review application.
Therefore,
no useful purpose would have been served by exhausting the
internal remedies at that stage or by the court insisting on the
exhaustion
of internal remedies at the stage when the Minister and
the DDG had made up their minds that they agreed with Southern Sphere
and
Rhodium that Dengetenge and Abrina should never have been granted
the prospecting rights in question.
[70] Another
answer to Dengetenge’s contention is that the Minister waived
the right to have the internal remedies exhausted
first before the
matter could be taken to court or could be heard by the court. The
requirement in section 96(3) that internal
remedies be exhausted
before an applicant may apply to court for the review of an
administrative action was enacted for the benefit
of the Minister and
the DG to enable them to examine administrative actions made in terms
of the MPRDA before they could be subjected
to judicial scrutiny so
that, if they think that they should not have been made, they can
withdraw or alter them.
[71] In
response to Southern Sphere’s application in the High Court,
the Minister, the RM: Limpopo and the RM: Mpumalanga
authorised the
DDG, Mr Rocha, to depose to and file an affidavit in which these
respondents explained the circumstances under which
the various
decisions that were being challenged in court had been taken as well
as the reasons for those decisions. In his affidavit
Mr Rocha in
effect apologised on behalf of these respondents in so far as they
made decisions in breach of the interdict that had
been granted in
favour of Rhodium. He pointed out that it was never the intention of
any of these respondents to act in contempt
of court.
[72] Mr
Rocha’s affidavit was deposed to on 16 July 2009. There had
been a lot of delay in filing that affidavit. Mr Rocha
explained the
delay on the basis that there had been confusion and divergence of
views within the Department and in the office
of the State Attorney
which was advising the state respondents on what the Department’s
attitude should be to Southern Sphere’s
application and to
Rhodium’s counter application. He said that the one view was
that they should not oppose these applications.
Another view was
that the Minister should invoke the provisions of section 103(4)(b)
of the MPRDA and withdraw the prospecting
rights that had been
granted to Southern Sphere, Dengetenge and Abrina in so far as they
overlapped with the prospecting rights
that had been granted or that
were required by the order of court of 6 December 2006 to be granted
to Rhodium. Indeed, the Minister
had made a decision to this effect
in regard to Southern Sphere which was conveyed to Southern Sphere on
17 August 2007.
[73] Mr
Rocha said that the third view was that the state respondents should
file an affidavit explaining their decisions, giving
reasons for
those decisions and ask the court to decide the various claims
itself. The motivation for this option was that, if,
for example,
the Minister invoked section 103(4)(b) to withdraw the grant of
prospecting rights, that decision could subsequently
be challenged in
court as well. The Minister and the other state respondents,
according to Mr Rocha, took the view that it would
be “more
expedient and efficient for the entire matter to be resolved by means
of appropriate orders granted by [the Court].”
Mr Rocha says
that, ultimately, it was decided that the state respondents should
file an affidavit explaining how the various
decisions were taken and
ask the Court to be the one to decide the various claims.
[74] Mr
Rocha said that it was “therefore, necessary for the state to
indicate which of the different relief requested by
the various
parties it opposes and which relief it supports.” As one reads
Mr Rocha’s affidavit further, one discovers
that in regard to
all the parties in the matter who had disputes with one another about
the grant or withdrawal of various rights,
the state respondents
indicated what relief they supported and which relief they opposed in
regard to the various claims. For
example, Mr Rocha said somewhere
in his affidavit: “The state, in as much as it may be
necessary, relies also upon the grounds
advanced by [Rhodium] as to
why the relief, proposed by [Rhodium], should be granted.”
Later on in his affidavit Mr Rocha
said: “The view of the state
is that [Southern Sphere] should be entitled to the prospecting
rights over the northern parts
of the relevant farm.” Yet
later on, Mr Rocha also said in his affidavit that:
“
The
state concedes that the rights which the state purported to award to
[Abrina] and [Dengetenge] could have been the result of
an
administrative oversight. . . . Upon reflection, the prospecting
rights ought not to have been granted to [Abrina] and [Dengetenge].”
[75] The
effect of Mr Rocha’s affidavit was that, although the Minister
had taken the view that Dengetenge could not lawfully
have been
granted the prospecting rights that it was granted, it was better
that the Court decide all these competing claims and
requested that
the Court decide them. The Minister would have been aware that in
terms of section 96(3) she could insist that
Southern Sphere exhaust
internal remedies before the Court could hear the review application
but she chose the option of requesting
the Court to decide the matter
because “it appeared to be more expedient and efficient for the
entire matter to be resolved
by means of appropriate orders granted
by [the Court]”. The Minister even informed the Court which
orders asked for by Southern
Sphere and Rhodium she supported or
opposed. In my view the Minister waived the right to the exhaustion
of internal remedies in
terms of section 96.
[76] The
conclusion reached by the majority of the House of Lords in Kammins
in relation to section 29(3) of the Landlord and Tenant
Act, 1954
(LAT Act) is consistent with the view that the requirement of section
96(3) may be waived. In that case the appellants
and the respondents
were tenants and landlords respectively. That Act made provision for
a tenant to request a new lease or tenancy
from the landlord before
the expiry of the existing lease. It also made provision under
section 25 for the landlord, in response,
to give notice of its
opposition to a further tenancy if it was not agreeable to such a
request. Thereafter, the tenant was required
to make an application
to the court in terms of section 29 for a new lease which the court
had the power to grant in an appropriate
case. The tenant’s
application for a new lease had to be made “not less than two
nor more than four months after the
giving of the landlord’s
notice under section 25 of the [LAT Act] or, as the case may be,
after the making of the tenant’s
request for a new tenancy.”
[77] Section
29(3) of the LAT Act was couched in the following terms:
“
No
application under subsection (1) of section 24 of this Act shall be
entertained unless it is made not less than two nor more
than four
months after the giving of the landlord’s notice under section
25 of this Act or, as the case may be, after the
making of the
tenant’s request for a new tenancy.”
It
is necessary to quote the provisions of section 96(3) so as to
compare them with the provisions of section 29(3). Section 96(3)

reads:
“
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.”
[78] Section
29(3) and section 96(3) preclude the making of the applications
contemplated in those sections without compliance with
the prescribed
conditions. In section 29(3) the condition was the making of the
application within the periods stipulated in the
LAT Act. In section
96(3) the condition is the exhaustion of internal remedies in section
96(1). Two features that are common
to both section 29(3) and
section 96(3) are that—
(a) in
each provision the preclusion is couched in very clear language; and
(b) on
the face of it each provision appears to admit of no exception to its
preclusion.
[79] In
Kammins the tenant failed to make its application “not less
than two . . . months . . . after the making of [its]
request for a
new tenancy” as required by section 29(3) and, thus, failed to
meet the prescribed condition. The tenant made
the application less
than two months after making its request for a new tenancy. It was,
therefore, made too soon. For some time
the landlord did not take
the point that the tenant had failed to comply with the requirement
that it could not make the application
earlier than two months after
its request for a new tenancy. The landlord only raised this point
much later after it had taken
various steps in the litigation
process. The tenant argued that the landlord had waived its right to
object to the tenant’s
non observance of section 29(3). The
landlord argued that the terms of section 29(3) were peremptory and
the non-observance by
the tenant meant that the tenant’s
application was a nullity and no agreement or waiver could save it.
The question that
then arose for determination was whether the
landlord could waive the requirement in section 29(3).
[80] The
majority concluded in separate speeches that the landlord could
waive the requirement in section 29(3). The minority
took the view
that the requirement could not be waived.
[81] It
is necessary to refer to the reasons given in Kammins for the
conclusion that a requirement expressed in terms as clear
as those in
section 29(3) of the LAT Act could be waived. Since the four Law
Lords delivered different speeches, it will be necessary
to look at
each speech as the reasons were not the same. In support of the
conclusion that the requirement in section 29(3) could
be waived or
that all the parties could agree differently and, speaking about
statutory provisions that purport to preclude the
institution of
actions or the bringing of actions, Lord Reid said:
“
I
would find it impossible to interpret these sections as preventing
the court from dealing with a claim made out of time if both
parties
asked the court to do so. And in the sphere of limitation of actions
there are many cases cited in this case by Sachs
LJ where very strong
words have not prevented the court from holding that the defendant
has waived his right to object: such words
as ‘all actions
shall be commenced within’ a certain time, ‘no action
shall lie or be instituted’, ‘no
action shall be
maintainable’, ‘no action shall be brought’.
Moreover, as illustrated by a recent decision of
this House in
Anisminic Ltd v Foreign Compensation Commission, there is a well
established principle that any provision ousting
the jurisdiction of
the court must be construed strictly, and I would think that the same
applies to a provision that the court
is not to have jurisdiction if
an application is made too soon.” (Footnotes omitted.)
[82] Lord
Morris took the view that the requirement in section 29(3) was a
procedural requirement – not one of jurisdiction
– which
could be waived. In regard to the requirements of section 29(3),
Lord Morris pointed out that, in his view, the
time limits in section
29(3) regulated procedure and provided for an orderly sequence of
procedural steps. He said that a tenant
who failed to comply with
the requirement could find that the landlord would insist on the
observance of the requirement. He then
said:
“
But
if a landlord agrees to waive the strict observance of a time
stipulation I do not consider that the language of section 29
makes
it obligatory on the court to hold that in spite of the landlord’s
agreement the court cannot and must not proceed.”
A
little later Lord Morris also pointed out, as Lord Reid had done,
that in relation to a statute providing that an action must
be
brought within a certain period—
“
it
has always been recognised that words such as ‘no action shall
be brought’ are generally speaking not words which
compel the
court to hold that it lacks jurisdiction even if the party sued does
not wish to rely on the statutory defence.”
He
held that the position was the same between a tenant and landlord in
regard to section 29(3).
[83] Lord
Pearson also sought to distinguish between statutory requirements
that are jurisdictional “so that the court has
no jurisdiction
in any case to entertain an application made prematurely” and
“requirements [that] are only procedural,
so that the landlords
have a right to ignore or object to a premature application but can
waive their right”. He expressed
the view that the
requirement of section 29(3) was solely for the benefit of landlords
and not for the benefit of other “suitors”.
He then
concluded—
“
that
the requirements of section 29(3) are only procedural, and
consequently the landlords had a right to ignore or object to the

tenants’ premature application but could waive that right.”
[84] Lord
Diplock thought that the division of opinion in the House of Lords
and in the Court of Appeal in Kammins reflected “competing

approaches to the task of statutory construction – the literal
and the purposive approach.” Lord Diplock also said:
“
A
conclusion that an exception was intended by Parliament, and what
that exception was, can only be reached by using the purposive

approach. This means answering the questions: what is the
subject-matter of Part II of the [LAT Act]? What object in relation

to that subject-matter did Parliament intend to achieve? What part
in the achievement of that object was intended to be played
by the
prohibition in section 29(3)? Would it be inconsistent with
achievement of that object if the prohibition were absolute?
If so,
what exception to or qualification of the prohibition is needed to
make it consistent with that object?”
[85] After
considering the questions raised in the preceding passage in the
context of the Kammins case, Lord Diplock also referred
to the
requirements of sections 25 and 26 of the LAT Act and said: “These
requirements are clearly imposed solely for the
benefit of that party
to whom the notice is given, whether he be the landlord or the
tenant.” A little later he went on
to say:
“
Where
in any Act which merely regulates the rights and obligations of
private parties inter se, requirements to be complied with
by one of
those parties are imposed for the sole benefit of the other party, it
would be inconsistent with their purpose if the
party intended to be
benefited were not entitled to dispense with the other party’s
compliance in circumstances where it
was in his own interest to do
so.”
[86] Lastly,
Lord Diplock explained the position in the following terms:
“
On
the purposive approach to statutory construction this is the reason
why in a statute of this character a procedural requirement
imposed
for the benefit or protection of one party alone is construed as
subject to the implied exception that it can be ‘waived’

by the party for whose benefit it is imposed even though the statute
states the requirement in unqualified and unequivocal words.
. . .
This is the construction which has been uniformly applied by the
courts to the unqualified and unequivocal words in statutes
of
limitation which prohibit the bringing of legal proceedings after the
lapse of a specified time. The rule does not depend on
the precise
words of prohibition which are used. They vary from statute to
statute. In themselves they contain no indication
that any exception
to the prohibition was intended at all.” (Emphasis added.)
He
then held that the requirement in section 29(3) could be waived by
the landlord. I am also of the view that the requirement
in section
96(3) that a person must exhaust internal remedies in terms of
section 96(1) before he or she may apply to court for
review of an
administrative action under the MPRDA is a procedural requirement.
[87] The
view that the requirement for the exhaustion of internal remedies in
section 96(3) was enacted for the benefit of the Minister
and the DG
to afford them the opportunity of altering or withdrawing any
administrative decision before it could be challenged
in court if
they think it should not have been made is consistent with what this
Court said in Koyabe. In that case this Court
said:
“
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.”
(Footnote omitted and emphasis added.)
Since
these provisions are there for the benefit of the Minister and the
DG, those functionaries may waive the requirement in section
96(3)
for the exhaustion of internal remedies by asking the court to be the
one to decide the various competing claims instead
of them making
decisions in internal appeals under section 96(1).
[88] Dengetenge’s
contention can also be answered on the basis of the decision of this
Court in Bengwenyama. In Bengwenyama
the community which owned the
land in respect of which it had applied to the Minister for a
prospecting right but had been refused
such right on the basis that
that right had been granted to Genorah Resources (Pty) Ltd (Genorah)
lodged an internal appeal in
terms of section 96(1) of the MPRDA
against the DDG’s decision granting the prospecting right to
Genorah. While waiting
for the outcome of that appeal, the community
brought an application to court to interdict Genorah from exercising
the prospecting
right pending the outcome of a review application
that the community intended to institute to review and set aside the
DDG’s
decision.
[89] In
response to the internal appeal the Department wrote a letter dated
14 June 2007. In the letter it said that, since the
matter was sub
judice, the Minister was not in a position to decide the internal
appeal and that the court should decide the matter.
This is how the
relevant part of the Department’s letter read:
“
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.”
[90] Subsequently
Bengwenyama Minerals, the first applicant, and the community launched
review proceedings in the High Court to
have the grant of a
prospecting right to Genorah reviewed and set aside. The High Court
dismissed that application. An appeal
to the Supreme Court of Appeal
met with the same fate. The matter then came before this Court.
This Court, through Froneman J
who wrote for a unanimous court, said
that there was—
“
no
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.” (Emphasis added.)
This
Court also held that the import of the letter of 14 June 2007 “was
that the internal appeal had been ‘concluded’
in the
sense required by [section 7(1)(a) of the PAJA].”
[91] It
can be concluded from this Court’s judgment in Bengwenyama that
a litigant has no obligation to exhaust internal remedies
to appeal
in terms of section 96 where the Department makes it clear that the
matter should rather be decided by the Court or where
the Department
requests the non-prosecution or non-exhaustion of the internal
remedy. In the present case, too, in my view the
Minister’s
request was in effect a request that there be no exhaustion of
internal remedies in terms of section 96.
[92] This
Court said in Bengwenyama that, through its letter of 14 June 2007,
the Department had in effect advised Bengwenyama Minerals
and the
community not to prosecute their internal appeal. Although in
Bengwenyama this occurred in circumstances where an internal
appeal
had been lodged but the outcome thereof had not been announced, that
does not mean that the principle does not apply or
cannot apply where
the Department adopts the same stance before an appeal is lodged.
Nor does it mean that the principle cannot
apply where no internal
appeal was lodged before a review application was instituted and this
stance was taken by the Minister
after the review application had
been launched.
[93] In
my view, if the Department informs a litigant that the matter should
rather be decided by the court, it does not matter
whether this is
before or after the institution of the review proceedings. That
stance removes the obligation on the litigant
to exhaust the internal
remedies if the stance is indicated before review proceedings are
instituted or cures the defect if the
stance is indicated after the
applicant has already instituted a review application without
exhausting the internal remedies.
That is what happened in the
present case before the hearing in the High Court. Consequently, the
High Court was entitled to hear
Southern Sphere’s application
and Rhodium’s counter application without requiring them first
to exhaust internal remedies
in terms of section 96.
[94] I
do not understand the decision of the Supreme Court of Appeal in
Nichol and the decision of this Court in Koyabe to be authority
for
the proposition that, when a functionary empowered to make a decision
on internal remedies requests that the issue be decided
by the court,
the court may not decide the matter even though both the functionary
and the review applicant want the court to decide
the matter itself.
That question was not before any of those courts in those cases, but,
in my view, it was before this Court
in Bengwenyama and this Court
decided the issue.
[95] This
Court held in effect in Bengwenyama that, once the Department had
taken that stance, there is no obligation upon the litigant

thereafter to exhaust internal remedies or to pursue internal
remedies. It also did not consider that that situation was one which

required the litigant to apply to court for exemption from the
obligation to exhaust internal remedies. In my view this Court
was
correct in both respects. There are cases where there is no longer
any obligation upon a litigant to exhaust internal remedies
because
he or she has been relieved of that obligation. That is a case such
as Bengwenyama and the present case. There are cases
where the
obligation is still there but there are exceptional circumstances
which, together with the interests of justice, justify
that the court
should grant an applicant an exemption from that obligation. The
present case is not such a case. In the present
case, by the time
the matter was heard by the High Court Southern Sphere no longer had
an obligation to exhaust internal remedies.
Dengetenge’s
contention on the delay
[96] Dengetenge
has also contended that that the High Court should have dismissed
Southern Sphere’s application as well as
Rhodium’s
counter-application because they were both brought after an
unreasonable delay and at any rate outside the 180
days prescribed by
section 7(1), which reads:
“
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.”
Dengetenge’s
attack is premised upon section 7(1)(b).
[97] In
its answering affidavit in the High Court, Dengetenge said in
paragraph 15.1 and 15.2:
“
[Southern
Sphere] is vague about when and in what circumstances it became aware
of the prospecting rights granted to Dengetenge.
For the reasons
elaborated on below it appears that [Southern Sphere] was aware of
the prospecting rights granted to Dengetenge
well before March 2007.
I
respectfully submit that the applicant might reasonably have been
expected to have become aware of the grant of the prospecting
right
after the prospecting right was notarially executed on 11 November
2006 and/or registered in the Mineral and Petroleum Titles

Registration Office, Pretoria on 28 November 2006 under registration
number 618/2006 (PR). In this regard I attach a copy of the
page
indicating the registration of Dengetenge’s right marked
‘MN1’.”
[98] Later,
in its answering affidavit Dengetenge said:
“
[Southern
Sphere] failed to institute proceedings within 180 days of the date
when it became aware or might reasonably have been
expected to have
become aware of the decisions and the reasons therefor and failed to
institute the proceedings without unreasonable
delay. In this regard
[Southern Sphere] has not provided any explanation for the delay in
bringing the application in so far as
Dengetenge’s rights are
concerned.”
Elsewhere
in Dengetenge’s answering affidavit it is stated that it
“appears that prior to December 2006 [Southern Sphere]
was
aware of the rights already granted to Dengetenge.” Later, Mr
Nengenda, the deponent to Dengetenge’s answering
affidavit,
said:
“
I
confirm that on 26 February 2006 a representative of Dengetenge
phoned Mr Ward and informed him that a prospecting right had been

granted to Dengetenge in respect of the properties. Mr Ward was well
aware of this at the time. I deny that it was claimed that

Dengetenge owned portions of the properties or mineral rights
relating thereto.”
The
reference to 2006 in this passage must be a mistake. The correct
year has to be 2007.
[99] The
180 days prescribed by section 7(1) as the outside limit within which
a litigant should institute a review application
is calculated on the
basis of (a) or (b) to subsection (1). Section 7(1)(a) provides for
the date from which the period must be
calculated in a case where
internal remedies have been exhausted. Obviously, it does not apply
where internal remedies do not
exist or where they exist but were not
exhausted. The case where no internal remedies exist is governed by
section 7(1)(b). In
the latter case the date is given as the date
“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.”
[100] Southern
Sphere must have been aware of the decision granting Dengetenge the
prospecting right at some stage in March 2007.
It is not enough to
know when Southern Sphere became aware that Dengetenge had been
granted prospecting rights for purposes of
computing the 180-day
period. One needs to know more than simply the date when the
decision was made to grant Dengetenge prospecting
rights because, to
bring a review application, one must also know the circumstances
under which the decision was taken and the
reasons for such a
decision. Southern Sphere also needed to have sight of Dengetenge’s
application for a prospecting right.
[101] On
Southern Sphere’s case it only got to know the identity of
Dengetenge as one of the entities which had been granted
prospecting
rights in about March or April 2007 but, by the time that it launched
its review application on 17 August 2007, it
still did not know the
circumstances under which Dengetenge had been granted the prospecting
right nor did it have the reasons.
The record which was said to
contain the reasons for all the decisions that were being challenged
was filed with the Registrar
on 11 March 2008.
[102] In
a further supplementary founding affidavit deposed to by one of
Southern Sphere’s directors, Mr Ward on 21 July 2008,
it was
said:
“
[I]t
is virtually impossible for [Southern Sphere] to deal with [the
Department] having awarded rights to Dengetenge and Abrina
under
circumstances where the [Department] has failed to furnish any
reasons in relation to its decisions to grant a prospecting
right to
each of Dengetenge and Abrina, but has instead said that the Minister
will revoke those prospecting rights.”
Later
Mr Ward said:
“
That
[Southern Sphere] should have to litigate in this manner is grossly
prejudicial to its rights both under the [PAJA] as well
as its rights
under the Uniform Rules of Court.”
[103] In
its answering affidavit Dengetenge did not challenge any of this. It
simply noted that Southern Sphere “elected
to bring its
application to review and set aside Dengetenge’s rights in
circumstances where it admits that ‘it is virtually
impossible
for [Southern Sphere] to deal with the [Department’s] having
awarded rights to Dengetenge . . . under circumstances
where the
[Department] has failed to furnish any reasons in relation to its
decisions to grant a prospecting right’”.
[104] If
it is accepted, as Dengetenge accepted, that Southern Sphere did not
even have the DDG’s reasons for the decision
to grant
Dengetenge a prospecting right when it instituted the review
proceedings, then it cannot reasonably be said that Southern
Sphere
instituted the review proceedings outside the 180 days. There is
also no suggestion that Southern Sphere acted less than
diligently in
trying to obtain the DDG’s reasons for the decision to grant
Dengetenge prospecting rights.
[105] It
seems to me that what the High Court said in rejecting criticism
against Southern Sphere for the delay between when it
had learnt of
Rhodium’s interdict and review order and when it instituted the
review application applies with equal force
to Dengetenge’s
contention that Southern Sphere delayed unreasonably. The High
Court, inter alia, said:
“
I
do not think that criticism is justified. I have found it very
difficult to arrive at what I hope is a coherent narrative of
the
relevant facts. I would have found the task almost impossible if it
had not been for the chronology prepared by the lawyers
for the
parties and the assistance I received from counsel. When the lawyers
for Southern Sphere drew the application they had
neither the record
nor any meaningful chronology. Many of the relevant facts were
outside the knowledge of Southern Sphere. It
must have been very
difficult to set many of the facts of which they were aware into the
correct context. Southern Sphere cannot
be faulted for the time it
took to bring the application.”
[106] Before
us counsel for Dengetenge did not advance any grounds upon which it
could be said that the High Court erred in reaching
this conclusion.
I can see no basis upon which to interfere with it and I consider
that it is justified. In Bengwenyama this
Court had regard to the
“apparent confusion about the availability of an internal
appeal”
and said that it “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 [MPRDA].” In the
present case there was a lot of confusion
about many things for a
long time including whether other parties had been granted
prospecting rights, their identities, the identity
of the properties
in respect of which such parties may have been granted prospecting
rights, the reasons for such decisions and
the circumstances under
which they had been granted such rights. I would say that that
confusion militates against a finding that
Southern Sphere delayed
unreasonably in bringing its review application.
[107] In
the circumstances I conclude that Dengetenge has failed to show that
Southern Sphere instituted the review application
after an
unreasonable delay or after the lapse of the period of 180 days
prescribed by section 7(1) of the PAJA.
[108] The
appeal must fail. As to costs, it seems to me that, for all intents
and purposes, this is a commercial matter in which
case costs should
follow the result.
Order
[109] The
following order is made:
1. The
applicant’s failure to deliver its application for leave to
appeal and written submissions timeously is condoned.
2. Leave
to appeal against the decision of the Supreme Court of Appeal on
condonation is refused.
3. Leave
to appeal against the decision of the North Gauteng High Court,
Pretoria is granted.
4. The
appeal against the decision of the North Gauteng High Court, Pretoria
is dismissed with costs, such costs to include the
costs of two
counsel.
JAFTA
J (Moseneke DCJ, Madlanga J, Mhlantla AJ, Nkabinde J and Skweyiya J
concurring):
[110] I
have had the opportunity to read the judgment of my Colleague Zondo J
(main judgment). I agree that leave to appeal against
the judgment
of the Supreme Court of Appeal must be dismissed. Dengetenge has
failed to show that that Court has exercised its
discretion
improperly when it refused to grant it condonation. Nor has
Dengetenge established a reasonable perception of bias
on the part of
that Court in dealing with its application for condonation.
[111] However,
this finding, as the main judgment holds, correctly so in my
respectful view, does not preclude Dengetenge from seeking
leave to
appeal against the judgment of the High Court. This is so because
the Supreme Court of Appeal did not determine the merits
of the
appeal. Instead, it disposed of the matter on condonation.
Accordingly, the judgment of the Supreme Court of Appeal does
not
stand in the way of Dengetenge challenging the merits of the High
Court’s judgment.
[112] I
also agree that since this application was lodged and heard before
the Constitution Seventeenth Amendment came into force,
it ought to
be considered with reference to the standard that was then applicable
to applications for leave. In terms of that
standard, an applicant
must show that the matter raises a constitutional issue and that the
interests of justice favour the grant
of leave. I agree further that
a constitutional issue has been established.
[113] Therefore
I concur in the order proposed in the main judgment but for different
reasons. Consequently, it is necessary to
set out my reasons for the
concurrence.
[114] Although
Dengetenge had withdrawn its opposition to the present proceedings in
the High Court, it does not follow that all
the defences it raised
fell away. Two of those defences relate to compliance with statutory
requirements contained in section
96 of MPRDA and section 7 of PAJA.
The first is that Southern Sphere had, in violation of these
sections, instituted review proceedings
in the High Court without
first exhausting internal remedies provided for in the MPRDA. The
second is that the review application
was instituted after a period
of 180 days had lapsed, calculated from the date Southern Sphere
became aware of the impugned decision.
Duty
to exhaust internal remedies
[115] At
common law, a party aggrieved by an administrative decision was not
generally obliged to exhaust internal remedies before
approaching a
court on review. Where internal remedies are provided for, the
choice was that of the aggrieved party either to
pursue those
remedies before going to a court of law or to proceed straight to
seek the review of the offending decision in court.
The promulgation
of PAJA has changed all this. It is now compulsory for an aggrieved
party to exhaust internal remedies before
approaching a court for
review, unless such party is exempted from this duty by a competent
court.
[116] The
exemption is granted by a court, on application by the aggrieved
party. For an application for an exemption to succeed,
the applicant
must establish “exceptional circumstances”. Once such
circumstances are established, it is within the
discretion of the
court to grant an exemption. Absent an exemption, the applicant is
obliged to exhaust internal remedies before
instituting an
application for review. A review application that is launched before
exhausting internal remedies is taken to be
premature and the court
to which it is brought is precluded from reviewing the challenged
administrative action until the domestic
remedies are exhausted or
unless an exemption is granted. Differently put, the duty to exhaust
internal remedies defers the exercise
of the court’s review
jurisdiction for as long as the duty is not discharged.
[117] This
is the law as pronounced in decisions of the Supreme Court of Appeal
and this Court. In Nichol, the Supreme Court of
Appeal construed
section 7 of PAJA and proclaimed:
“
It
is now compulsory for the aggrieved party in all cases to exhaust the
relevant internal remedies unless exempted from doing so
by way of a
successful application under section 7(2)(c). Moreover, the person
seeking exemption must satisfy the court of two
matters: first, that
there are exceptional circumstances, and second, that it is in the
interests of justice that the exemption
be given.” (Footnote
omitted and emphasis added.)
[118] This
dictum accords with the text of section 7 of PAJA. Section 7(2) of
PAJA provides:
“
(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.” (Emphasis added.)
[119] In
clear and peremptory terms, section 7(2) prohibits courts from
reviewing “an administrative action in terms of this
Act unless
any internal remedy provided for in any other law has first been
exhausted”. Where, as in this case, there is
a provision for
internal remedies, the section imposes an obligation on the court to
satisfy itself that such remedies have been
exhausted. If the court
is not satisfied, it must decline to adjudicate the matter until the
applicant has either exhausted internal
remedies or is granted an
exemption. Since PAJA applies to every administrative action, this
means that there can be no review
of an administrative action by any
court where internal remedies have not been exhausted, unless an
exemption has been granted
in terms of section 7(2)(c). This is
apparent from the terms of section 7(2)(a) which begins with the
words “[s]ubject to
paragraph (c)”.
[120] Section
7(2)(c) empowers a court to grant an exemption from the duty of
exhausting internal remedies if, as observed by the
Supreme Court of
Appeal in Nichol, two pre-conditions are established. These are
exceptional circumstances and the interests of
justice.
[121] The
meaning assigned to section 7 by the Supreme Court of Appeal in
Nichol was endorsed by this Court in Koyabe. In that
case, this
Court said:
“
Under
the common law, the existence of an internal remedy was not in itself
sufficient to defer access to judicial review until
it had been
exhausted. However, PAJA significantly transformed the relationship
between internal administrative remedies and the
judicial review of
administrative decisions. . . . Thus, unless exceptional
circumstances are found to exist by a court on application
by the
affected person, PAJA, which has a broad scope and applies to a wide
range of administrative actions, requires that available
internal
remedies be exhausted prior to judicial review of an administrative
action.” (Footnotes omitted.)
[122] This
Court proceeded to underscore the importance of internal remedies;
that the failure to exhaust them renders an approach
to a court on
review premature; and that the pursuit of these remedies enhances
procedural fairness. In this regard, the Court
said:
“
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.”
[123] It
cannot be gainsaid that section 96 of the MPRDA provides for and
obliges a party aggrieved by any decision taken in terms
of the MPRDA
first to exhaust internal remedies before seeking a court review.
Section 96(3) provides:
“
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.”
[124] This
provision forbids parties such as Southern Sphere, from applying for
the review of decisions taken in terms of the MPRDA
until they have
exhausted the internal remedies. It is common cause that Southern
Sphere sought the review of decisions taken
in terms of the MPRDA.
It asked for orders:
(a) setting
aside the decision by the Regional Manager: Mpumalanga to accept
Rhodium’s application for a prospecting right;
(b) setting
aside the decision to grant Abrina prospecting rights;
(c) setting
aside the decision to award prospecting rights to Dengetenge; and
(d) reviewing
and setting aside the refusal to grant Southern Sphere a prospecting
right.
[125] All
of these decisions were taken in terms of the MPRDA by the Regional
Manager and the Deputy Director-General. Therefore,
in accordance
with section 96(1), they were subject to an internal appeal. Section
96(1) provides:
“
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.”
[126] Even
if section 96(3) did not exist, the duty to exhaust domestic remedies
would have been triggered by the mere provision
of the internal
appeal. It will be recalled that section 7 of PAJA precludes a court
from reviewing an administrative action until
internal remedies
provided for in other laws are exhausted. There can be no doubt that
section 96(1) constitutes such other law.
[127] The
interpretation of section 96 of the MPRDA, read with section 7 of
PAJA, lies at the heart of the differences between this
judgment and
the main judgment. I construe these sections to mean that an
aggrieved party must first exhaust internal remedies
before
instituting a review challenge to a decision taken in terms of the
MPRDA, unless such party has been exempted from doing
so by the court
upon establishing exceptional circumstances and that it is in the
interests of justice to grant the exemption.
This interpretation,
with regard to section 7 of PAJA, is affirmed in Nichol and Koyabe.
[128] The
main judgment interprets these sections differently. Relying on an
English case, Kammins, the main judgment holds that
the duty to
exhaust internal remedies imposed by section 96 of the MPRDA may be
waived by administrative functionaries. I am unable
to agree for the
following reasons. First, the House of Lords in Kammins interpreted
a statute that dealt with the renting of
property and not the duty to
exhaust the domestic remedies. That statute regulated and imposed
time limits within which a tenant
could apply to a court to renew a
lease for the parties. The relevant provision required the tenant to
give the landlord notice
before making an application for a new lease
which must be made after two months of giving notice but not later
than four months
from the date of notice. The issue in Kammins was
whether on a proper construction of the relevant provision, the
landlord for
whose benefit the time bar was enacted could waive the
time limit requirement. The House of Lords said the landlord could
do so.
The setting in which waiver was recognised in that case is
different from the present.
[129] Second,
section 96(3) of the MPRDA does not impose a time bar. Nor does it
confer a benefit on the administrative functionaries
considering the
internal appeal. On the contrary, it imposes an obligation on the
aggrieved party to exhaust internal remedies.
The corollary is that
the appeal functionaries are bound to decide those appeals. They
have no power under the MPRDA to circumvent
the provisions of section
96(3) and direct that the aggrieved party should rather institute
review proceedings without exhausting
internal appeals.
[130] Third,
the text of section 29(3) of the English Landlord and Tenant Act is
quite different from section 96(3) of the MPRDA.
It is not only a
matter of the two provisions dealing with different subject-matters
but they are also worded differently. Moreover,
caution must be
exercised when foreign cases are used to interpret legislation passed
by our Parliament. It is doubtful in our
circumstances that
administrative functionaries who fall under the Executive arm of
Government may decline to carry out a legislative
injunction such as
the one in section 96(3) of the MPRDA and direct that what it
requires must be dealt with in a different manner.
[131] In
New Clicks, Chaskalson CJ rejected the suggestion in academic
writings to the effect that PAJA must be interpreted with
reference
to German and Australian law because its provisions had been borrowed
from those countries. Chaskalson CJ said:
“
Before
leaving this part of the judgment one further comment is necessary.
In the academic writings on PAJA reference is made to
the fact that
certain of its provisions have been borrowed from German and
Australian law. PAJA must, however, be interpreted
by our courts in
the context of our law, and not in the context of the legal systems
from which provisions may have been borrowed.
In neither of the
countries is there a defined constitutional right to just
administrative action. Transplanting provisions from
such countries
into our legal and constitutional framework may produce results
different from those obtained in the countries from
which they have
been taken.” (Footnote omitted.)
[132] Section
96(3) and section 7 of PAJA are framed in peremptory terms which is
an indication, in my view, that their requirements
should be
observed, except in circumstances where an exemption is granted.
With regard to section 7 of PAJA, Hoexter says:
“
These
are stringent provisions cast in peremptory language. Review is
prohibited unless any internal remedy provided for in any
other law
has been exhausted. The court is obliged to turn the applicant away
if it is not satisfied that internal remedies have
been exhausted,
and may grant exemption from the duty only in exceptional
circumstances where it is in the interests of justice
to do so.”
(Emphasis in original.)
[133] In
Bengwenyama this Court assumed that the failure to decide an
internal appeal meant that the internal process had been
concluded.
And this finding was made in the context of section 7(1)(a) of PAJA
which requires that the review application be instituted
within 180
days after the date on which the internal remedies have been
concluded. It was for this limited purpose that the Court
assumed
the date of conclusion of the internal appeal concerned. Based on
the calculation of the period from that date, this Court
held that
there was no delay in instituting the review application. This is
different from saying that if the administrative
functionaries wish
that the matter be decided by the court the aggrieved party is
relieved from the duty to exhaust domestic remedies.
Nor does it
mean that they have the power to waive statutory requirements.
[134] The
question that arises is what should be done in the peculiar
circumstances of this case. Ordinarily, if the court before
which
the review proceedings are brought is not satisfied that internal
remedies have been exhausted, it must refuse to entertain
the review
until those remedies are exhausted or an exemption has been granted
to the applicant. Here the High Court did not insist
that section 96
of the MPRDA and section 7 of PAJA be complied with, probably because
Dengetenge had withdrawn its opposition to
the application.
[135] It
is apparent from the special circumstances of this case, set out
fully in the main judgment, that if Southern Sphere had
applied for
exemption, in all probability the High Court would have granted it.
In these circumstances to remit the matter to
the High Court for an
application for an exemption to be made would be tantamount to
placing form above substance. This is so
because Dengetenge has
conceded on the merits that the rights were granted to it unlawfully
and in contravention of an interdict.
Therefore, on the present
facts, a remittal to the High Court would serve no purpose other than
granting an exemption which is
already justified on record.
[136] Accordingly
I hold that a remittal solely for that purpose is neither justified
nor warranted. Ordering a remittal here would
constitute a waste of
time and resources. Scarce judicial resources must not be spent on
mere formalities which are not dispositive
of a real dispute in
particular litigation.
Failure
to institute the review within 180-day period
[137] Section
96(4) of the MPRDA provides that sections 6, 7(1) and 8 of PAJA apply
to proceedings in which decisions taken under
the MPRDA are
challenged. Section 7(1) of PAJA in turn provides:
“
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.”
[138] The
text of the section shows that PAJA requires that review applications
be instituted promptly after the impugned decision
has been taken.
It stipulates that review proceedings must be launched without
unreasonable delay and sets the cut-off date at
180 days from the
date the internal remedies have been concluded. Where no such
remedies exist, the period of 180 days is calculated
from the date on
which the applicant for review was informed of the impugned
administrative decision, became aware of it and the
reasons for it or
might reasonably have been expected to have become aware of the
decision and its reasons.
[139] Although
Dengetenge has asserted in its answering affidavit that Southern
Sphere failed to institute the review application
within 180 days, it
has not stated how this period was calculated. Nor has it given the
date from which the 180 days was computed.
Consequently, the facts
pleaded by Dengetenge fall short of establishing the delay asserted.
[140] It
is for these reasons that I concur in the order proposed in the main
judgment.
FRONEMAN
J (Cameron J and Van der Westhuizen J concurring):
[141] I
have read the judgments of my colleagues Zondo J and Jafta J. They
both agree that leave to appeal should be granted but
that the appeal
should be dismissed, albeit for different reasons. I would not grant
leave to appeal.
[142] I
agree with and support Zondo J’s finding that there is no merit
in the complaint of bias brought against the Supreme
Court of Appeal,
as well as his finding that there are no grounds for withdrawing the
concession made by Dengetenge in the High
Court. He notes that this
finding is sufficient ground to dismiss the appeal. In my view it
is a material factor in the preceding
enquiry whether to grant leave
to appeal, and sufficient reason for refusing leave.
[143] In
Mabaso this Court dealt with the interests-of-justice enquiry in a
similar situation:
“
In
considering an application for leave to appeal against a judgment of
the High Court where the Supreme Court of Appeal has refused
an
application for condonation in respect of an appeal, this Court will
consider, as in all applications for leave to appeal, whether
it is
in the interests of justice to grant leave to appeal. Guiding
principles for determining the interests of justice have been

established by this Court in a string of cases. Relevant factors
include the importance of the determination of the constitutional

issue, the question of whether the matter has been considered by the
Supreme Court of Appeal, the nature of the order appealed
against,
and the prospects of success. It is clear, though, that not one of
the factors is necessarily determinative on its own.
A
further factor relevant to determining whether leave to appeal should
be granted will be the circumstances in which the Supreme
Court of
Appeal has refused the application for condonation. It will often
not be in the interests of justice for this Court to
grant leave to
appeal against such a decision of the Supreme Court of Appeal because
there will often be no prospect that the appeal
will be successful.
And where there has been a flagrant and gross breach of the rules of
the Supreme Court of Appeal by the litigant,
that too will militate
against the grant of leave by this Court. It will only be in the
interests of justice for leave to be granted
in such cases where it
is clear that the constitutional issue is of some importance, and
that there are reasonable prospects of
success in relation to the
appeal on the constitutional issue.” (Emphasis added and
footnotes omitted.)
[144] There
was a “flagrant and gross” breach of the rules of the
Supreme Court of Appeal by Dengetenge. Zondo J has
dealt, in
measured terms, with Dengetenge’s attempt to deflect attention
from this by alleging bias on the part of the Supreme
Court of
Appeal. His judgment also exposes the opportunism and
disingenuousness in a similar attempt by Dengetenge to retract
the
concession made in the High Court. That shows that there are no
prospects of success on appeal. But there is, unfortunately,
also a
pattern here of playing loosely with the integrity of court
processes. And all this not for a higher constitutional principle.

Granting leave to this Court under these circumstances is not in the
interests of justice.
[145] The
application for leave should be dismissed with costs, including the
costs of two counsel.
For
the Applicant:
Advocate
D Ntsebeza SC, Advocate G Shakoane and Advocate L Mashapa
Instructed
by Denga Incorporated.
For
the First Respondent:
Advocate
G Kairinos and Advocate M Mokgato
Instructed
by Badal Attorneys.
For
the Second Respondent:
Advocate
G Grobler SC and Advocate J Gildenhuys
Instructed
by Edward Nathan Sonnenbergs Inc.
For
the Third to Sixth Respondents:
Advocate
M van der Merwe
Instructed
by the State Attorney.

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