Aquila Steel (S Africa) (Pty) Limited v Minister of Mineral Resources and Others (CCT08/18) [2019] ZACC 5; 2019 (4) BCLR 429 (CC); 2019 (3) SA 621 (CC) (15 February 2019)

CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 08/18

In the matter between:


AQUILA STEEL (S AFRICA) (PTY) LIMITED Applicant

and

MINISTER OF MINERAL RESOURCES First Respondent

DIRECTOR-GENERAL, DEPARTMENT OF
MINERAL RESOURCES Second Respondent

DEPUTY DIRECTOR-GENERAL: MINERAL
REGULATION, DEPARTMENT OF MINERAL
RESOURCES Third Respondent

REGIONAL MANAGER: NORTHERN CAPE
REGION, DEPARTMENT OF MINERAL
RESOURCES Fourth Respondent

PAN AFRICAN MINERAL DEVELOPMENT
COMPANY (PTY) LIMITED Fifth Respondent

ZIZA LIMITED Sixth Respondent


Neutral citation: Aquila Steel (S Africa) (Pty) Ltd v Minister of Mineral Resources
and Others [2018] ZACC 5

Coram: Basson AJ, Cameron J , Dlodlo AJ , Froneman J, Goliath AJ,
Khampepe J, Mhlantla J, Petse AJ and Theron J

Judgments: Cameron J (majority): [1] to [121]
Theron J (minority): [122] to [136]

2
Heard on: 23 August 2018

Decided on: 15 February 2019

Summary: Mining — Minerals and Energy — Application for Prospecting
Right — Application for Mining Right – Non Compliance with
Requirements - Duplicate Grants – Substitution of Mining Right



ORDER



On appeal from the Supreme Court of Appeal:

1. Leave to appeal is granted.
2. The appeal is upheld with costs, including the costs of two counsel.
3. The order of the Supreme Court of Appeal is set aside.
4. In its place there is substituted:
“The appeal is dismissed with costs, including the costs of two counsel.
No order is made on the cross-appeal.”




JUDGMENT


CAMERON J (Basson AJ, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J,
Mhlantla J and Petse AJ concurring)

This is an application for leave to appeal against a judgment of the [1]
Supreme Court of Appeal,1 overturning by a majority a judgment of the High Court of

1Pan African Mineral Development Company (Pty) Ltd v Aquila Steel (S Africa) (Pty) Ltd [2017] ZASCA 165;
2018 (5) SA 124 (SCA) (29 November 2017) (Ponnan JA, with Bosielo and Mathopo JJA and Tsoka AJA
concurring; Willis JA dissenting) (Supreme Court of Appeal judgment).
CAMERON J
3
South Africa, Gauteng Division, Pretoria (High Court). 2 The applicant, Aquila Steel
(S Africa) (Pty) Limited (Aquila), is a locally incorporated subsidiary of an A ustralian
resources company. Aquila was the applicant before the High Court and the first
respondent in the Supreme Court of Appeal. The first to fourth respondents in this
Court are the Minister of Mineral Resources and three officials of the Department of
Mineral Resources (Department) responsible for implementing the Mineral and
Petroleum Resources Development Act 3 (MPRDA). It is their decisions under the
statute that Aquila targets in this litigation.

Aquila’s corporate antagonists, who resist its r elief against the departmental [2]
decisions, are the Pan African Mineral Development Company Limited (PAMDC –
fifth respondent), a private company owned by the governments of Zambia,
Zimbabwe and South Africa; and ZiZa Limited (ZiZa – sixth respondent), a com pany
incorporated in the United Kingdom. ZiZa was originally incorporated in 1893, as the
Bechuanaland Railway Company Limited. Cecil John Rhodes was the Prime Minister
of the Cape Colony. As part of his colonial design, he made land grants to the
company. More than a century later, ZiZa is now owned – as its name suggests – by
the governments of Zimbabwe and Zambia. PAMDC was incorporated in
South Africa on 26 November 2007 to take over the prospecting activities of ZiZa.
(Since their interests match, I refer, except where necessary, to PAMDC and ZiZa
together as ZiZa.)

Factual and statutory background
The dispute arises from what counsel for ZiZa rightly called “delinquent” and [3]
“unlawful” conduct on the part of the Department. The Department not on ly botched,
but egregiously botched, coincident prospecting and mining rights applications ZiZa
and Aquila made to its Northern Cape office between April 2005 and December 2011.
This led to overlapping and double grants in which this litigation has its genesis.

2 Aquila Steel (South Africa) Limited v Minister of Mineral Resources 2017 (3 ) SA 301 (GP) (22 November
2016) (Tuchten J) (High Court judgment).
3 Act 28 of 2002.
CAMERON J
4

It happened this way. The MPRDA came into force on 1 May 2004. Breaking [4]
from the past, the statute established state sovereignty 4 and state custodianship 5 over
all the Republic’s mineral and petroleum resources “for the benefit of all
South Africans”6 and “to promote equitable access” for historically disadvantaged
persons.7 But the new statute protected those who held rights under the common law
or under the now -repealed Minerals Act. 8 They could retain their rights , however,
only if they were actively being used. So holders of unused old -order rights were put
in a squeeze. They were given a tight deadline. Th ey had just one year – until
30 April 2005 – in which to apply under the MPRDA for new -order prospecting or
mining rights. No longer could a mineral rights -holder sterilise rights by sitting on
them. The principle was: use it or lose it.

The crucial transitional provisions are packaged up at the back of the statute, in [5]
Schedule II. Their import is our concern here. Item 8 is h eaded “Processing of
unused old-order rights”. At the time that matters for us,9 it provided:

“(1) Any unused old order right in force immediately before this Act took effect,
continues in force subject to the terms and conditions under which it was
granted, acquired or issued or was deemed to have been granted or issued for
a period not exceeding one year from the date on which this Act took effect.

4 Section 2(a) of the MPRDA.
5 Id section 2(b) and section 3(1).
6 Id section 3(1).
7 Id section 2(a)-(d).
8 Act 50 of 1991.
9 With effect from 7 June 2013, item 8(1) was amended by adding, right at its end, the words “or for the period
for which it was granted, acquired or issued or was deemed to have been granted or issued, whichever period is
the shortest”. The result is that item 8(1) now reads:
“Any unused old order right in force immediately before this Act took effect, continues in
force, subject to the terms and conditions under which it was granted, acquired or issued or
was deemed to have been granted or issued, for a p eriod not exceeding one year from the date
on which this Act took effect, or for the period for which it was granted, acquired or issued or
was deemed to have been granted or issued, whichever period is the shortest.”
CAMERON J
5
(2) The holder of an unused old order right has the exclusive right to apply for a
prospecting right or a minin g right, as the case may be, in terms of this Act
within the period referred to in subitem (1).
(3) An unused old order right in respect of which an application has been lodged
within the period referred to in subitem (1) remains valid until such time as
the application for a prospecting right or mining right, as the case may be, is
granted and dealt with in terms of this Act or is refused.
(4) Subject to subitems (2) and (3) an unused old order right ceases to exist upon
the expiry of the period contemplated in subitem (1).”10

The effect was this. During the one -year grace period, holders of unused [6]
old-order rights enjoyed the same rights as before the MPRDA came into force. 11 In
addition, they enjoyed exclusivity to apply for new -order title. They had the sole right
to apply for prospecting or mining rights over the land over which they held unused
old-order rights.12 As will emerge, a lot turns on “exclusivity” and “sole”.

Section 16 of the MPRDA regulates how applications for prospecting rights [7]
should be made. This includes holders of unused old -order rights. This is how it read
when the statute was enacted, and at all times that matter to the parties before us (it
has since been amended):13

“(1) Any person who wishes to apply to the Minister for a pr ospecting right must
lodge the application—
(a) at the office of the Regional Manager in whose region the land is
situated;

10 Item 8 of Schedule II of the MPRDA.
11 Id item 8(1).
12 Id item 8(2).
13 The amended section 16 came into effect on 7 June 2013, after the events in issue. It adds subsection (2)(c),
which reads:
“[N]o prior application for a prospecting right, mining right, mining permit or retention permit
has been accepted for the same mineral on the same land and which remains to be granted or
refused.”
In addition, it deletes from subsection (3) the words “of that fact and return the application to the applicant”.
Amendments were also made to the environmental and consultation requirements set out in subsection (4).
CAMERON J
6
(b) in the prescribed manner; and
(c) together with the prescribed non-refundable application fee.
(2) The Regional Manager must accept an application for a prospecting right if—
(a) the requirements contemplated in subsection (1) are met; and
(b) no other person holds a prospecting right, mining right, mining
permit or retention permit for the same mineral and land.
(3) If the application does not comply with the requirements of this section, the
Regional Manager must notify the applicant in writing of that fact within 14
days of receipt of the application and return the application to the applicant.
(4) If the Regional Manager accepts the application, the Regional Manager must,
within 14 days from the date of acceptance, notify the applicant in writing—
(a) to submit an environmental management plan; and
(b) to notify in writing and consult with the land owner or lawful
occupier and any other affected party and submit the result of the
consultation within 30 days from the date of the notice.
(5) Upon receipt of the information referred to in subsection (4)(a) and (b), the
Regional Manager must forward the application to the Minis ter for
consideration.
(6) The Minister may by notice in the Gazette invite applications for prospecting
rights in respect of any land, and may specify in such notice the period within
which any application may be lodged and the terms and conditions subjec t to
which such rights may be granted.”14

Before the MPRDA came into force, ZiZa held large tracts of land in the [8]
Northern Cape. Its title included, at common law, old -order mineral rights over those
lands. These stemmed from the railway grants Cecil Joh n Rhodes made to ZiZa in the
19th century. In terms of item 8(1) of Schedule II, ZiZa had one year – until
30 April 2005 – to exercise its exclusive right to apply for a new -order prospecting
right, thus converting its unused old-order right into an MPRDA right.

Shortly before this cut -off, on 24 March 2005, the Zimbabwean, Zambian and [9]
South African governments decided to establish PAMDC as a vehicle for all of ZiZa’s

14 Section 16 of the MPRDA.
CAMERON J
7
mineral rights. The next day, ZiZa resolved to apply for its unused pre -MPRDA
mineral rights to be converted under the statute. Eleven days before the 30 April 2005
deadline, on 19 April 2005, it filed its application for a prospecting right under the
MPRDA.

ZiZa’s application did not comply with section 16 nor with the regulations [10]
issued under the MPRDA. Its shortcomings were striking. 15 Among them was that
the exact parameters of the land in which ZiZa’s rights were held were anything but
clear. Despite this, the Department on 17 August 2005 accepted the application.
More on this later.

On 18 April 2006, almost a year after the one -year transitional grace period [11]
elapsed, Aquila submitted an independent application for a prospecting right over the
very same Kuruman land (properties). 16 This application, too, the Department
accepted. One of the questions on which the Courts below differed is whether Aquila
could apply at all while ZiZa’s conversion application was pending. The
Department’s Regional Manager in Kimberley recorded its acceptance of Aquila’s
application in a letter dated 2 May 2006. And on 11 October 2006 the Department
awarded Aquila a prospecting right. This was notarised on 28 February 2007 and
registered on 17 July 2007.17

The award of this prospecting right led Aquila to expend almost R157 million [12]
on prospecting opera tions. And its search was not in vain: Aquila found substantial
manganese deposits, estimated at over 140 million tonnes, worth many billions of
rands. A manganese reserve of 20.2 million tonnes was identified on a portion which

15 See [22] below.
16 The full description is portion 114 (a portion of portion 107) of farm no. 703 in the district of Kuruman,
Northern Cape Province , plus a further twelve properties . The properties as a whole include portion 114 and
cover about 37 000 hectares, all in the Kuruman district.
17 Section 19(2)(a) of the MPRDA requires the holder of a prospecting right to lodge it for registration at the
Mineral and Petroleum Titles Registration Office (at the time, the Mining Titles Office). The provision has been
amended since 7 June 2013 in ways that do not affect this judgment.
CAMERON J
8
it now wants to mine. Bu t it cannot. Not so long as it is stuck in the glue of
departmental delinquency.

Not long after PAMDC was formally incorporated in South Africa, on [13]
26 November 2007, the Department’s Deputy Director-General on 26 February 2008
granted ZiZa a prospecting right that included the disputed land. This was nearly two
years after the Department granted Aquila a prospecting right over the same land. In
2009 ZiZa belatedly started providing parts of the crucial information missing from its
2005 application for a prospecting right. This included maps of the land over which it
held old-order rights.

ZiZa was deregistered on 9 November 2010. Aquila denies knowing of the [14]
overlapping rights, whilst PAMDC says it discovered the existence of Aquila’s rights
in April 2010.

Aquila continued to prospect and, in December 2010, it applied for a license to [15]
mine the manganese deposits. This application for a mining right was accepted later
that month. But very soon after, in January 2011, the Department told Aquila that
PAMDC held overlapping prospecting rights in the Kuruman land. It claimed that
ZiZa’s applicat ion had not been processed because of an administrative error. The
Department explained to Aquila that ZiZa’s rights had since been transferred to
PAMDC.

Aquila investigated the overlapping rights. In March 2011 Aquila met with [16]
PAMDC, who asserted that they held prospecting rights over the land covered by
Aquila’s right. Aquila requested details to establish the extent of the overlap from
both PAMDC and the Department. None were provided. On 17 November 2011 –
while ZiZa was deregistered – the Departm ent granted ZiZa’s application for a
prospecting right – but it did so in favour not of ZiZa but of PAMDC, a totally
different entity.

CAMERON J
9
Meanwhile, Aquila continued to fulfil the requirements for the mining right for [17]
which it had applied. These were comple te by December 2011, the deadline the
Department had set. Aquila made an application to renew its prospecting right that
month. In February 2012, the Department informed Aquila that this application was
accepted.

Unable to get information on the nature of ZiZa’s or PAMDC’s right, Aquila in [18]
2013 issued requests under the Promotion of Access to Information Act 18 (PAIA).
PAMDC gave Aquila information about an overlapping right but it was still not clear
to Aquila whether this covered the disputed portion of land over which both entities
were seeking rights.

On 29 October 2013, Aquila appealed to the Minister against the grant of a [19]
prospecting right to PAMDC. 19 PAMDC cross-appealed, asking for the decisions to
accept and grant Aquila’s prospecting right to b e set aside. On 14 October 2014, ZiZa
was restored to the companies’ register of England and Wales (re -registered). By
23 February 2015, the Minister had still not given a decision. This prompted Aquila
to seek a High Court order requiring the Minister to decide the appeal and

18 Act 2 of 2000.
19 In terms of section 96 of the MPRDA, which reads:
“(1) Any person whose rights or legitimate expectations have been materially and
adversely affected or who is aggrieved by any administrative decision in terms of this
Act may appeal in the prescribed manner to-
(a) the Director -General, if it is an administrative decision by a Regional
Manager or an officer; or
(b) the Minister, if it is an administrative decision by the Director -General or
the designated agency.
(2) An appeal in terms of subsection (1) does not suspend the administrative decision,
unless it is suspended by the Director-General or the Minister, as the case may be.
(3) No person may apply to the court for the review of an administrative decision
contemplated in subsection (1) until that person has exhausted his or her remedies in
terms of that subsection.
(4) Sections 6, 7(1) and 8 of the Promotion of Administrative Justice Act, 2000 (Act No.
3 of 2000), apply to any court proceedings contemplated in this section.”

CAMERON J
10
counter-appeal. This litigation was settled when the Minister agreed to make a
decision by 2 June 2015.

That deal was kept – or almost kept, one month late. The Minister finally [20]
communicated his decision on 2 July 2015. He dete rmined that ZiZa had lodged its
prospecting right during the period in which it enjoyed an exclusive Schedule II right.
Its prospecting right was therefore lawfully granted – and Aquila’s had been wrongly
accepted. He also declined Aquila’s application for a mining right because ZiZa had a
prospecting right over the same land.

PAMDC made a new application for a prospecting right over the same [21]
properties on 20 July 2015. At the time of the High Court judgment, it had not
received notification of acceptance of that application. For now, all is in limbo.

Litigation history
High Court
The litigation commenced with a review Aquila instituted under the Promotion [22]
of Administrative Justice Act20 (PAJA), seeking to set aside the Department’s decision
of 17 November 2011 to grant PAMDC a prospecting right. It alleged bias because of
the South African government’s significant interest in PAMDC but later abandoned
this complaint. Its more lethal co mplaint, in which it persisted, was that the
Department’s decision to accept ZiZa’s prospecting right application was irregular
because ZiZa’s application did not comply with the MPRDA and its regulations. 21
This was because the application did not describ e ZiZa’s old -order rights; nor,
sufficiently, the area over which ZiZa sought a prospecting right; the contested land
did not appear in any of the maps submitted; the prospecting work program lacked
meaningful detail; ZiZa had not shown financial or techni cal ability; and it did not
provide certificates of existing mineral rights.

20 3 of 2002.
21 Regulations 2 and 5 to 9 deal with prospecting rights applications.
CAMERON J
11

Aquila also challenged the grant of the prospecting right as flawed and [23]
irregular. This was because of irregularities in the description of the minerals to
which the grant appli es; the vague description of the area the right covers; the grant
did not stipulate the duration; and the application failed to evince capacity to use the
prospecting right. Aquila also relied on its own grant of a prospecting right some 18
months before the grant to ZiZa, and complained about the fact that the grant, though
to ZiZa, was executed in favour of PAMDC. Aquila also challenged the regularity of
the appeal decisions on the basis that the Minister’s reasons were deficient and show
that he failed to properly apply his mind to the appeal.

ZiZa’s primary submissions were that Aquila’s prospecting right lapsed in [24]
October 2011, five years after it was granted; and that Aquila could not challenge the
Regional Manager’s acceptance of ZiZa’s application for a prospecting right. ZiZa
contended that, in the internal statutory appeal to the Minister, Aquila did not
challenge the acceptance decision and should not be able to bypass the internal
remedies by reviewing that decision.22 The review application, it said, was thus moot.
ZiZa insisted that section 16 did not provide for the Regional Manager to reject an
application. The fact that it had lodged an application for a prospecting right, however
incomplete, nevertheless secured its place at the front of the queue.

It contended that, upon its re -registration as a corporation, it was deemed to [25]
have continued in existence as if it had not been deregistered. This included
restoration of its exclusive prospecting right.

The High Court upheld Aquila’s review. It drew a distinction between the [26]
acceptance of an application and the grant of a right under the MPRDA. It noted that
an application had to be made in the manner prescribed under section 16 and the

22 ZiZa did not persist with the contention, rejected in the High Court, that Aquila had failed to exhaust its
internal remedies as section 7(2) of PAJA requires.
CAMERON J
12
Regulations for it to be acceptable. If an application did not comply with those
provisions the Regional Manager was enjoined to return the application. Here, the
High Court held that “the [RM] was left with no discretion”.23

The High Court held that the return of an ap plication by the Regional Manager [27]
amounted to a rejection. An incomplete application could not secure a place in the
queue because “it would result in the potential sterilisation of the right to prospect for
the minerals on the land in question. An indol ent applicant could delay the potential
exploitation of the mineral for years”.24

The High Court found that ZiZa never transferred its rights to PAMDC; in fact [28]
there was no basis on which those rights could have been granted to PAMDC because
the rights gra nted to ZiZa had lapsed. Exclusivity under item 8 of Schedule II ran
only until 30 April 2005: after that, others are able to join the queue. Exclusivity was
thus limited to one year, and ZiZa’s exclusive rights expired on 30 April 2005. From
that date, ZiZa was just another applicant. Regarding deregistration, the High Court
held that ZiZa’s prospecting right lapsed under section 56(c) of the MPRDA. 25
However, a declaratory order that ZiZa’s rights had lapsed on deregistration was
unnecessary in view of the Court’s other conclusions.

Though the Court did not sustain Aquila’s complaint of bias, it did note “a high [29]
degree of institutional incompetence”. 26 It found, therefore, that the most equitable
remedy would be to substitute its decision for the Mini ster’s. The Court thus set aside

23 High Court judgment above n 2 at para 16.
24 Id at para 19.
25 Section 56 provides:
“Any right, permit, permission or license granted or issued in terms of this Act shall lapse,
whenever—
. . .
(c) a company or close corporation is deregistered in terms of the relevant Acts and no
application has been made or was made to the Minister for the consent in terms of
section 11 or such permission has been refused”.
26 High Court judgment above n 2 at para 111.
CAMERON J
13
the Department’s acceptance of ZiZa’s application for a prospecting right, the decision
to grant the right to ZiZa and to execute the right in favour of PAMDC. It also set
aside and substituted the Minister’s decisions on ZiZa’s and Aquila’s internal appeals
and granted Aquila a mineral right, on terms the Minister was to determine within
three months.

Supreme Court of Appeal
With the High Court’s leave, ZiZa and the Department appealed, while Aquila [30]
conditionally cross-appealed the decision on ZiZa’s deregistration. 27 ZiZa prevailed.
The Supreme Court of Appeal overturned the High Court’s finding that ZiZa’s
prospecting right application was irregular in not reflecting the properties with
sufficient specificity. The Cou rt noted that ZiZa’s application included hand -drawn
plans that identified the co -ordinates of the properties, the registered descriptions of
the farms, the co -ordinates of the total area and a description of the old -order rights
and permits in respect of which application was being made, including the farm name,
division, certificate number, date of grant, area size and grid reference. This, the
Court held, constituted sufficient compliance with the statute’s requirements.
Furthermore, the Department had captured ZiZa’s application on its system as early as
November 2006. This meant, the Court held, that the Department was aware of the
overlap. The Department was thus not unaware of the properties to which ZiZa’s
application related.

Finally, the Supre me Court of Appeal took note that the Department allows [31]
applicants to supplement their applications. 28 Moreover, item 8(3) of Schedule II of

27 Aquila notes that ZiZa / PAMDC did not appeal to the Supreme Court of Appeal against the orders of the
High Court setting aside the decisions accepting ZiZa’s appl ication for prospecting and granting it rights. ZiZa
insisted that it has never conceded that the decision to accept and grant its prospecting right application was
invalid. It contended that it has merely refrained from dealing with their substance in a ny detail because an
order setting them aside is irrelevant to the outcome of this case. That is also why it did not appeal the orders
reviewing and setting aside the acceptance and grant decisions.
28 This Court’s exposition of the facts in Dengetenge Hol dings (Pty) Ltd v Southern Sphere Mining and
Development Co Ltd [2013] ZACC 48; 2014 (5) SA 138 (CC); 2014 (3) BCLR 265 (CC) (Dengetenge) at paras
13 and 20 recorded, without ruling on the permissibility or implications of the fact, that deficiencies in th e

CAMERON J
14
the MPRDA stipulates that an old -order right terminates only after the application for
a prospecting or mining righ t has been dealt with and is granted or refused. ZiZa’s
application should have been returned by the Regional Manager. The Court dismissed
Aquila’s contention that ZiZa’s application for a prospecting right should have been
returned within 14 days by the Regional Manager for want of compliance with the
statute. It did so on the basis that Aquila had failed to direct a ground of review at this
conduct. Instead, Aquila challenged the Regional Manager’s acceptance of ZiZa’s
application, which occurred only later and was distinct from the failure to return the
application within 14 days.

In their cross -appeal to the Minister, ZiZa and PAMDC challenged the [32]
acceptance and grant of Aquila’s application for a prospecting right. The High Court
had set aside the Minister’s decision to uphold the cross -appeal and substituted its
own decision for that of the Minister. The Supreme Court of Appeal reversed the
substance of that decision.

The Supreme Court of Appeal also overturned the High Court’s approach to the [33]
transitional provision, item 8 of Schedule II, which capped the exclusivity period for
old-order rights -holders’ applications at one year. The “express language” of
item 8(3), the Court concluded, prolongs the continued validity of the unused
old-order right until the prospecting application is either granted or refused. Item 8
affords security of tenure to holders of unused old -order rights until those rights have
been converted or rejected under the MPRDA.29

The Supreme Court of Appeal in addition reject ed the remedy the High Court [34]
granted Aquila, which was to substitute the Minister’s decision to reject Aquila’s
appeal with a decision to grant Aquila’s mining right application, albeit on terms to be

application at issue there had been permitted to be rectified. ZiZa’s argument sought to draw strength from the
fact that Dengetenge noted this fact “without censure”.
29 Supreme Court of Appeal judgment above n 1 at para 26.
CAMERON J
15
decided by the Minister later. The Supreme Court of Ap peal, finally, rejected
Aquila’s cross-appeal on the effect of ZiZa’s deregistration.

In this Court
Leave to appeal
Aquila now seeks leave to appeal against the Supreme Court of Appeal [35]
decision, which it asserts is replete with misdirections of fact and law. The
Department and ZiZa oppose. The parties’ contesting claims entail the interpretation
of the transitional and other provisions of the MPRDA. These almost inevitably
implicate constitutional issues.30 In addition, the nature of the e xclusivity and priority
Schedule II of the MPRDA accords an unused old -order right, and the i mpact of a
combined reading of S chedule II with the statute itself, are opaque. They need
explication. The questions that arise involve arguable points of law of wide general
public importance. There are also prospects of success. Leave to appeal must follow.

Issues
The issues are these: [36]
(a) Was the grant of a prospecting right to ZiZa on 26 February 2008 valid?
(b) When Aquila applied for a prospecting right o n 18 April 2006, was it
entitled to do so?
(c) Should the Minister have upheld Aquila’s appeal against the refusal to
grant it a right to mine?
(d) Does the doctrine in Kirland / Oudekraal impede relief for Aquila?

30 Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd [2010] ZACC 26; 2011 (4) SA 113 (CC);
2011 (3) BCLR 229 (CC) at para 42; Minister of Mineral Res ources v Sishen Iron Ore Co (Pty) Ltd [2013]
ZACC 45; 2014 (2) SA 603 (CC); 2014 (2) BCLR 212 (CC) at para 37:
“There can be no doubt that this case raises constitutional issues of importance. It involves
the interpretation and application of a statute that was enacted to discharge a constitutional
obligation to redress inequalities caused by past racial discrimination and to create equitable
access to mineral and petroleum resources. Furthermore, this legislation regulates the mining
industry which is a vital component of this country’s economy, not only in terms of its
contribution to the national GDP, but also in respect of creating jobs for thousands of people
who otherwise would be unemployed. These facts, coupled with the good prospects of
success, warrant the granting of leave.”
CAMERON J
16
(e) If not, to what remedy is Aquila entitled?

Assessment
The Minister’s reason for rejecting Aquila’s internal appeal against the grant of [37]
a prospecting right to ZiZa was that Aquila’s own prospecting right application had
been unlawfully accepted, processed and granted. 31 This, the Minister sa id, was
because Aquila’s application was lodged and pr ocessed during the period that
afforded exclusivity to ZiZa.

The soundness of the Minister’s reasoning depends on (a) whether Aquila’s [38]
application for a prospecting right and the grant of that right to it rendered the later
grant of a prospecting right to ZiZa unlawful; and if so, (b) whether the Department
lawfully accepted Aquila’s application on 2 May 2006.32

Was the ZiZa prospecting right lawfully granted?
The foundation of the Minister’s reasoning – that if Aquila’s prospecting right [39]
was unlawfully accepted and granted then ZiZa’s prospecting right was lawfully
granted – needs only to be stated to be rejected. Just because Aquila may have
applied for a prospecting right prematurely, 33 or just because the Minister should not
have granted Aquila the right it sought before considering ZiZa’s application, does not
mean that the Minister lawfully granted ZiZa a prospecting right. Whether ZiZa’s
prospecting right was lawfully granted depends on whether the Minister and it
complied with the requirements of the MPRDA. Whether the Minister did so when
granting Aquila its prospecting right is an independent question: either could have
been lawfully granted or both could have been unlawfully granted.

31 The Department accepted Aquila’s prospecting right application on 2 May 2006 and granted Aquila a
prospecting right on 11 October 2006.
32 Section 16(2)(b) of the MPRDA precludes acceptance of an application for a prospecting right if any other
person “holds a prospecting right” for “the same mineral and land”. As noted above n 9, with effect from
7 June 2013 subparagraph (c) was added, barring acceptance of a prospecting right application also in the event
that a “prior application . . . has been accepted . . . which remains to be granted or refused”.
33 See below [57] to [67].
CAMERON J
17

The question is then: Did ZiZa’s application for a prospecting right comply [40]
with section 16 and regulations 2, 5 and 7? If not, then that is the end of this question.
The decision granting ZiZa’s prospecting right must be set aside. Then Aquila would
be entitled to apply for a mining right, as ZiZa would not have a valid prospecting
right. This is because the statute preclu des the award of a mining right if any other
person holds a prospecting right. 34 At the same time, whether Aquila’s prospecting
right was lawfully granted would be irrelevant; the MPRDA does not require an
aspirant mining right holder to hold a valid prospecting right.

The Supreme Court of Appeal held that ZiZa’s prospecting right application [41]
complied “sufficiently”. In this, it referred to the maps ZiZa provided at lodging.
These, the Supreme Court of Appeal ruled, “sufficiently described” the propertie s to
enable the Department to accept ZiZa’s application, identify the properties to which it
related and log them onto its system. 35 This led the Supreme Court of Appeal to
observe that “as early as November 2006” the Department was aware of the overlap
between the ZiZa and Aquila applications.36

Both the Supreme Court of Appeal’s legal conclusion about the sufficiency of [42]
ZiZa’s maps and its factual finding about when the overlap dawned on the Department
seem mistaken. The two errors are linked. The docum entary evidence shows with
fair steadiness that the Department became aware of the overlap only in late 2009.
This was after ZiZa at long last supplied sketch plans properly coordinated in

34 Section 22(2)(b) of the MPRDA requires the Regional Manager of the Department to accept an application for
a mining right provided that “no other person holds a prospecting right . . . for the same mineral and land”.
35 Supreme Court of Appeal judgment above n 1 at para 21.
36 Id at para 21. This factual conclusion by the Supreme Court of Appeal appears to derive from a hand -written
note on an undated internal audit memorandum of the Department’s Northern Cape office, on which is inscribed
“overlaps with ZiZa Limited”. This appears to have been attached, with matching cross -references, to a memo
dated 23 November 2006. ZiZa relied on this for its submission, which the Supreme Court of Appeal accepted,
that the overlap was discove red early. But the audit memo is undated, and everything else in the record points
away from inferring that it was made contemporaneously with the memo. On the contrary, the documentary
evidence the Department itself proffers shows repeatedly that the ov erlap was discovered only some three years
later.
CAMERON J
18
accordance with the statute’s requirements. That was only in 2009 – nearly four years
after ZiZa lodged its application in April 2005. And the evidence indicates that the
Department’s belated realisation of the overlap was attributable precisely to the poor
quality of ZiZa’s maps.

Had the deficiencies of the ZiZa appl ication been solely its maps, this alone [43]
would suggest that they were fatal: for, considering the formalities the application
demanded with their purpose in mind, as we must, 37 we have to determine what was
demanded of an old -order rights -holder and why. R egulation 2(2) required ZiZa to
lodge “a plan of the land to which the application relates, in accordance with generally
accepted standards”, including the coordinates and spheroid of the land. 38 The very
object of this requirement was to eliminate overlap s and to eliminate them from the
outset.

37 AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer, South African Social Security
Agency [2013] ZACC 42; 2014 (1) SA 604 (CC); 2014 (1) BCLR 1 (CC) at para 30 states:
“Assessing the materiality of compliance with legal requirements in our administrative law is,
fortunately, an exercise unencumbered by excessive formality. It was not always so. Formal
distinctions were drawn between ‘mandatory’ or ‘peremptory’ provisions on the one hand and
‘directory’ ones on the other, the former n eeding strict compliance on pain of non -validity,
and the latter only substantial compl iance or even non -compliance. That strict mechanical
approach has been discarded. Although a number of factors need to be considered in this kind
of enquiry, the central element is to link the question of compliance to the purpose of the
provision. In this cou rt O’Regan J succinctly put the question in ACDP v Electoral
Commission as being ‘whether what the applicant did constituted compliance with the
statutory provisions viewed in the light of their purpose’. This is not the same as asking
whether compliance with the provisions will lead to a different result.”
38 Regulation 2(2) provides:
“An application contemplated in subregulation (1) must be accompanied by a plan of the land
to which the application relates, in accordance with generally accepted standards, signed and
dated by the applicant and must contain–
(a) the co -ordinates and shperoid (Clarke 1880/C ape Datum, WGS84/WGS84,
WGS94/Hartebeesthoek94) of the land to which the application relates;
(b) the north point;
(c) the scale to which the plan has been drawn;
(d) the location and where applicable, the name and number of the land to whic h the
application relates;
(e) the extent of the land to which the application relates;
(f) the boundaries of the land to which the application relates;
(g) surface structures and registered servitudes where applicable; and
(h) the topography of the land to which the application relates.”
CAMERON J
19

The ZiZa application came nowhere near fulfilling the requirements. The [44]
quality of its maps was lamentable to the point of being amateurish. In this they
thwarted the purpose of the requirements, which was to avo id overlaps. The
consequences were severely detrimental for everyone – for the Department, for Aquila
and for PAMDC itself.

But the Department allowed ZiZa to supplement its maps from time to time. [45]
Aquila disputed the permissibility of this, but I shall accept in ZiZa’s favour, without
deciding so, that supplementation was in order. This leaves further deficiencies in
ZiZa’s application, which the Supreme Court of Appeal did not consider at all. These
endured beyond lodgement and acceptance. And they remained substantial.

So substantial tha t, on 11 September 2006 – some 16 months after the [46]
application was lodged, and four months after the Department accepted it – the
Regional Manager wrote to ZiZa. He told ZiZa flatly: “your application does not
comply with section 17(1)(a) and (b)”. 39 He specified the two defects: (1) “[t]he
entire prospecting work program presenta tion is unacceptable” and (2) “[f] inancial
access must be proved”.


39 The Regional Manager’s letter refers to section 1 9(1)(a) and (b), a clear slip of the pen for section 17(1)(a)
and (b). Section 17(1) provides:
“Subject to subsection (4), the Minister must grant a prospecting right if–
(a) the applicant has access to financial resources and has the technical ability to conduct
the proposed prospecting operation optimally in accordance with the prospecting
work programme;
(b) the estimated expenditure is compatible with the proposed prospecting operation and
duration of the prospecting work programme;
(c) the prospecting will not result in unacceptable pollution, ecological degradation or
damage to the environment;
(d) the app licant has the ability to comply with the relevant provisions of the Mine
Health and Safety Act, 1996 (Act No. 29 of 1996); and
(e) the applicant is not in contravention of any relevant provision of this Act.”
CAMERON J
20
The Department’s recorded objections didn’t stop there. The deficienc ies were [47]
expounded a second time, in a memorandum dated 14 January 2008. This was from
Mr Tshwaro Petso, the Department’s Chief Mine Economist, Kimberley, to the
Regional Manager of the D epartment’s Northern Cape office. By now, 16 months
later, the Depa rtment at least considered ZiZa’s sketch plan and supportin g
information as conforming to regulation 2(2).

But further deficiencies remained. Regulation 7(1)(h) and (i) were not [48]
complied with. 40 This was “because time frames were not assigned to the various

40 Regulation 7 provides:
“(1) The prospecting work programme must contain–
(a) the full particulars of the applicant;
(b) the plan contemplated in regulation 2 (2), showing the land to which the
application relates;
(c) the registered description of the land to which the application relates
specifying the farm name and subdivision;
(d) the mineral or minerals to be prospected for;
(e) a geological description of the land substantiated by a geological map;
(f) a description o f how the mineral resource and mineral distribution of the
prospecting area will be determined through
(i) the prospecting work to be performed;
(ii) a geochemical survey to be carried out; and
(iii) a geophysical survey to be undertaken;
(g) a description of the prospecting method or methods to be implemented that
may include–
(i) any excavations, trenching, pitting and drilling to be carried out;
(ii) any bulk sampling and testing to be carried out; and
(iii) any other prospecting methods to be applied;
(h) all planned prospecting activities must be conducted in phases and within
specific timeframes;
(i) technical data detailing the prospecting method or methods to be
implemented and the time required for each phase of the proposed
prospecting operation;
(j) details with documentary proof of–
(i) the applicant’ s technical ability or access thereto to conduct the
proposed prospecting operation; and
(ii) a budget and documentary proof of the applicant's financial ability
or access thereto, which may include but is not limited to the
following:

CAMERON J
21
activities proposed in the works programme”. In addition, the economist pointed out
that ZiZa had not demonstrated technical ability to carry out the operations it proposed
in the works program. This meant regulation 7(j)(i) had not been complied with. The
capacity to finance the expenditure associated with the proposed operations had also
not been demonstrated. The departmental econ omist concluded flat -out that “[t] his
application does not comply with the requirements of section 17(1)(a)”.

There is little point in going on and on about these further deficiencies. It is [49]
enough to say that the prospecting work program, too, bordered on the amateurish, for
it envisaged entirely a “desk stud y”, with no prospecting methods or prospecting data
set out and without any provision for financing. This was because the “seed capital”
the governments involved in ZiZa promised, on the prospect of which the conversion
application relied, never materiali sed. So ZiZa never had funding to carry out
prospecting, let alone mining.

Unlike the maps, these defects were never remedied. Not to this day. No one [50]
contended otherwise. So glaring were they that they lead to an overwhelming
conclusion. The Department’s acceptance of ZiZa’s prospecting right application on

(aa) loan agreements entered into for the proposed prospecting
operation;
(bb) resolution by a company to provide for the finances
required for the proposed prospecting operation; and
(cc) any other mechanism or scheme providing for the
necessary finances for the proposed prospecting operation;
(k) a cost estimate of the expenditure to be incurred for each phase of the
proposed prospecting operation where the expenditure must be broken down
into–
(i) direct prospecting costs;
(ii) labour costs;
(iii) costs pertaining to the rehabilitation and management of
environmental impacts; and
(iv) any other direct cost; and
(m) an undertaking, signed by the applicant, to adhere to the proposals as set out
in the prospecting work programme.
(2) The prospecting work programme referred to in subregulation (1) shall form part of
the prospecting right when such right is granted.”
CAMERON J
22
17 August 2005, a nd its award of that right to ZiZa on 26 February 2008, were both
flawed. The shabby state of ZiZa’s application meant that in terms of section 16(3)
the Regional Manager of the Department ought to have returned it to ZiZa: but he did
not do so.

It is tr ue that the Regional Manager did not have the power to grant or refuse [51]
ZiZa’s application, since only the Minister enjoys that power under section 17(1). Yet
the statute imposes on the Regional Manager an obligation to return an application
that is not lo dged “in the prescribed manner”. 41 The statute defines “prescribed” as
“prescribed by regulation”.42 Both regulation 2 and regulation 5 explicitly “prescribe”
how an application for a prospecting right under section 16 must be made, and what it
must contai n. This suggests that the Regional Manager has an evaluative function
when accepting an application. He or she much check that the application has been
lodged “in the prescribed manner”, in terms of each applicable regulation. 43 It also
means that an app lication that fails to comply with either regulation “must” be
returned.

Failure by the Regional Manager to return an application non -compliant with [52]
the regulations constitutes failure to carry out an expressly sp ecified statutory duty
(“must . . . return”). It follows in my view that the malperformance in issue may
constitute administrative action reviewable under PAJA; but, since Aquila’s notice of
motion did not target the non -return specifically, targeting the grant of a prospecting

41 Section 16(1)(b), read with section 16(2)(a) of the MPRDA.
42 Id section 1.
43 If so, this renders debatable the suggestion by the Supreme Court of Appeal in Minister of Mineral Resources
v Mawetse (SA) Mining Corporation (Pty) Ltd [2015] ZASCA 82; 2016 (1) SA 306 (SCA) at para 8 that section
16 entails a purely “mechanical and bureaucratic procedur e for the application”, and that the Regional
Manager’s office, though playing a central role in the process, “fulfils a very limited, clearly circumscribed
role”, but it is not necessary finally to determine this question.
CAMERON J
23
right instead, it is unnecessary to decide this issue and whether Aquila is entitled to a
separate order under PAJA setting the non-return aside.44

The conclusion that ZiZa’s application was grossly defective when it was [53]
accepted, when it should instead have been returned, means that it was also defective
when the Minister considered it in terms of section 17(1) of the MPRDA. That leads
to the conclusion that the Minister’s grant to ZiZa of a prospecting right was unlawful
and should be set aside. It follows that the High Court’s order setting aside the grant
of a prospecting right to ZiZa and substituting for it a refusal of that right was
correctly granted. 45 This means that there was no other prospecting right s-holder
blocking Aquila’s path to a mining right.

This mea ns that it is not necessary to consider contested features that were [54]
much in issue before the High Court and the Supreme Court of Appeal. Aquila
initially presented its case in the form of a “domino” argument – if it succeeded in
demonstrating the invalid ity of one block in the Department’s management of its and
ZiZa’s applications, the later blocks would all of necessity come tumbling down.

On this approach, if Aquila could show that ZiZa’s application was a nullity, at [55]
lodgement, in April 2005, or fat ally defective when accepted, in August 2005, the
later grant of the prospecting right would for that reason alone tumble; and this, in
turn, would taint all the Department’s subsequent actions. But Aquila accepted in oral
argument that the domino approac h was not indispensable to its case, and on the
approach and the conclusions in this judgment seeing whether the dominoes tumble is
not necessary.


44 In Gamevest (Pty) Ltd v Region al Land Claims Commissioner, Northern Province and Mpumalanga [2002]
ZASCA 117; 2003 (1) SA 373 (SCA) at paras 7, 20 and 28, the Supreme Court of Appeal held that no act
performed or decision taken before a decision to publish a land claim is reviewable un der PAJA.
45 High Court judgement above n 2 at para 118.4 (ad Aquila’s prayer 2).
CAMERON J
24
While the validity of ZiZa’s prospecting right is crucial, because it formed the [56]
basis on which the Minist er refused Aquila a mining right, the validity of Aquila’s
prospecting right is indeterminative, since holding a prospecting right is not a
precondition to obtaining a mining right. However, had ZiZa held a valid prospecting
right, that would have barred the award of a mining right to Aquila.

Exclusivity and duration
It is further unnecessary to decide an issue that occupied much of the [57]
High Court and Supreme Court of Appeal’s respective judgments. Could Aquila have
applied for a prospecting right before ZiZa’s application to convert its old -order right
had been fully processed?

It is unnecessary to decide the question because what matters is whether ZiZa [58]
had a lawfully granted prospecting right. Above I concluded that ZiZa’s prospecting
right was wrong ly awarded because of its woefully deficient application. Whether
Aquila’s application was properly lodged is irrelevant to that finding.

As already pointed out, 46 the Minister refused to set aside ZiZa’s prospecting [59]
right because (he said) Aquila’s prosp ecting right was unlawfully granted. The
answer to that reasoning is that, just because Aquila’s was unlawful does not mean
ZiZa’s was not unlawful too. What matters is that ZiZa’s was unlawful, and so Aquila
can now seek to mine.

Nonetheless, because the issue was fully argued in both of the courts below and [60]
before this Court, and because there may still be unprocessed old -order rights
applications, it is desirable to deal with it. This affects old -order right holders whose
applications are still pendi ng. Answering it also entails clarifying the currently
opaque relationship between the processing of old -order rights and applications made
by aspirant right holders.

46 See [39].
CAMERON J
25

So: is it right that Aquila could not apply for a prospecting right at all on [61]
11 October 2006? The Minister’s reasoning was th at the exclusivity period that
item 8(1) confers, namely “one year” from 1 May 2004, does not end after one year.
It endures beyond 30 April 2005. It lasts until a prospecting right application by an
unused old -order rights -holder, like ZiZa, has been granted or refused in terms of
item 8(3) – regardless of how long that might take. Until then, no other application
for a prospecting right may be lodged, considered, accepted or granted.

On this approach Aquila’s pr ospecting right application was comprehensively [62]
disabled. The mere lodging of an application for a pro specting right by the holder of
an unused old -order rig ht before the expiry of the one -year period precludes other
applicants from standing in line to apply at all, even after the grace period expires.
Since Aquila’s application was submitted after ZiZ a’s application had been lodged, it
could not lawfully join the queue at all, let alone be granted. The reasoning is that, in
terms of item 8(2), the holder of an unused old -order right enjoys the sole exclusive
right to apply for a prospecting right for as long as it takes the Department to finalise
its application under item 8(3) – and no other applicant can join the queue by lodging
an application or having it accepted.

The High Court rejected this construction, 47 but the Supreme Court of Appeal [63]
embraced it.48 The High Court considered that the exclusivity afforded to holder s of
unused old-order rights to queue for rights under the MPRDA expired after one year.49
Thereafter, ZiZa was just the same as any other applicant. It could lawfully join the
queue for MPRDA rights, alongside any other applicants.50 The High Court said
interpreting item 8 exclusivi ty as running only until 30 April 2005, after which other

47 High Court judgment above n 2 at paras 73-83.
48 Supreme Court of Appeal judgment above n 1 at paras 12-7.
49 High Court judgment above n 2 at para 83.
50 Id.
CAMERON J
26
aspirant right holders could join the queue, far better fulfilled the objects of the
MPRDA.

The High Court rejected ZiZa’s contention tha t this does not give effect to [64]
item 8(3)’s sp ecification tha t the unused old -order right “remains valid” until the
application is granted and dealt with in terms of the MPRDA or is refused. 51 This, it
said, was to confuse the continued validity of the unus ed old-order right with its place
in the MPRDA’s queuing system. If this were not so, the holder of an unused
old-order right could submit a manifestly inadequate application, and take no action at
all, “ever”, after its defective application was returned to it under section 16(3). The
old-order right would remain valid indefinitely, disabling other applications, simply
because the application had been neither granted nor refused .52 This the High Court
said was “absurd”.53

The Supreme Court of Appeal reversed th is. It reasoned that, for as long as a [65]
conversion application in terms of item 8 remains pending, item 8(3) specifies that the
unused old-order right “remains valid” until the application for a new MPRDA right is
either granted or refused. The order in which the statute requires applications received
on subsequent days to be processed, namely “in order of receipt”, 54 necessarily entails

51 High Court judgment above n 2 at para 78.
52 Id at para 75.
53 Id at para 80.
54 Section 9(1)(b) of the MPRDA. Section 9 provides:
“(1) If a Regional Manager receives more than one application for a prospecting right, a
mining right or a mining permit, as the case may be, in respect of the same mineral
and land, applications received on–
(a) the same day must be regarded as having been received at the same time and
must be dealt with in accordance with subsection (2);
(b) different dates must be dealt with in order of receipt.
(2) When the Minister considers applications received on the same date he or she must
give preference to applications from historically disadvantaged persons.”
CAMERON J
27
that any later application cannot be dealt with at all until the old -order conversion
application has been finally determined.55

The Supreme Court of Appeal considered that the later insertion of section [66]
16(2)(c)56 supported its interpretation 57. The amendment expressly prohibits
acceptance of a prospecting right application for the entire time after a prior
application has b een accepted and while it remains to be granted or refused. 58 The
insertion, the Supreme Court of Appeal said, merely “clarified” that this was indeed
the position, even before the amendment .59 The Supreme Court of Appeal considered
that both the unused ol d-order right plus the exclusivity that right confers “remain
extant” until the conversion application is either granted and dealt with under the
MPRDA or is refused.60 Where the application is made but neither granted nor
refused, both the unused old-order right and its exclusivity period endure.61

In my view, the Supreme Court of Appeal’s reasoning in overturning the [67]
conclusion of the High Court cannot be supported. Its approach cross -stitched onto
each other two separa te features of the protections i tem 8 affords the holder of an
unused old -order right – exclusivity and duration. The e xclusivity in i tem 8(1) is
expressly stated to last for one year, and one year only. To protract this indefinitely,

55 Supreme Court of Appeal judgment above n 1 at para 13.
56 Mineral and Petroleum Resources Development Amendment Act 49 of 2008 with effect from 7 June 2013
(MPRD Amendment Act).
57 Supreme Court of Appeal judgment above n 1at para 14.
58 Id.
59 Id.
60 Id at para 15.
61 Id at para 26:
“[H]owever, the high court did not explain why the clear language of item 8(3) was not to be
given its ordinary meaning and effect. The express language of that provision is to perpetuate
the continued validity of the unused old order right until the prospecting application is either
granted or refused. What is more, in its approach to this enquiry, the High Court appears to
have imported a queuing into the exclusivity contemplated by item 8. But, those two cannot
co-exist. Item 8 is designed to afford security of tenure to holders of un used old order rights
until those rights have been converted or rejected in terms of the MPRDA.”
CAMERON J
28
on the basis that the application for conversion of the old -order right is pending,
wrongly chains exclusivity and duration into lockstep together.

The two are distinct, and item 8 treats them so. Holders of unused old -order [68]
rights are accorded the privilege of exclusivity. This confers the sole entitlem ent to
apply for a new -order right over the property to which the unused old -order right
relates. But they also get protected duration: item 8(3) specifies that the unused old -
order right “remains valid” until the conversion application is disposed of. T o
conflate these two protections, or to tag the entailments of one onto the other, seems to
me to misread the statute and to destabilise the protective balance it creates.

Item 8(2) tells us what exclusivity means. It says it means the exclusive right [69]
to apply, within one year, for a prospecting or other right “in terms of this Act”. That
is all. It is a time -defined power, namely to apply, coupled with an immunity from
competing intrusions. Aquila p oints out that the application i tem 8 envisages is fo r a
new-order MPRDA right. This is plainly correct. For the statute defines “prospecting
right” as “the right to prospect granted in terms of section 17(1) .”62 It is not a
prospecting right preserved from the common law or resuscitated from the pre -
existing statutory regime or defined within i tem 8. It is a new MPRDA right. The
holder of an unused old-order right applies for a right that is considered and conferred
afresh, under the new statute.

This matters because it colours the nature of the applica tion process after the [70]
grace year has expired. It is an ordinary MPRDA application, though with a priority
entitlement to being considered.

Item 8 does not purport to deal with the right to apply for a prospecting right at [71]
all. The grant or refusal of t he application is governed entirely by the main provisions
of the statute. The old-order applicant must, in other words, fulfil all the requirements

62 Section 1 of the MPRDA.
CAMERON J
29
the MPRDA specifies for the conferral of a prospecting, mining or other right. These
include the requirements set out in sections 16 to 21.

So the exclusivity i tem 8 confers is the privilege to apply under these MPRDA [72]
provisions for a new-order right. And until that application is disposed of, either way,
the old-order right “remains valid” under item 8(3). What item 8 emphatically does
not say is that the right to apply exclusively is preserved for so long as the old -order
right remains valid. To import this into the provisions is to misperceive the delicacy
of an intricate statutory scheme. 63 The later amendment of section 16 by the insertion
of subparagraph (2)(c) 64 does not support the Supreme Court of Appeal’s opposite
conclusion. It is at best neutral. It seems equally likely that the addition was inserted
because the statute needed to be changed for the very reason that the existing wording
meant something different.65

And it is this inquiry that authority impels upon us. This Court, in NEHAWU,66 [73]
recognised that “it is permissible to refer to a subsequent statute if it throws light on
the meaning of a provision in an earlier statute” .67 The Court invoked the decision of
the Appellate Division in Patel.68 There, Schreiner JA warned that courts should be
cautious in inferring that a later statute “declared” a prior statute’s meaning, “ since it
is usual f or later legislation to amend rather than to declare the meaning of earlier

63 This Court in Sishen above n 29 2014 (2) SA 603 (CC) at para 86 emphasised the intricacy of the disparate
objects item 2 of Schedul e II expressly sets out. These are: to ensure security of tenure in relation to ongoing
prospecting, mining or production; to promote equitable access to mining and petroleum resources; and to give
the holder of an old -order right the opportunity to compl y with the new statutory requirements. The Court said
the statute was, “for plain reasons, intent on not bringing to a halt ongoing mining activity as it extended its new
legislative regulation and attempted to render the mining industry equitable, access ible to all and a more
meaningful contributor to our economy.”
64 MPRD Amendment Act.
65 Supreme Court of Appeal judgment above n 1 at paras 14 and para 45.
66 National Education Health & Allied Workers Union (NEHAWU) v University of Cape Town [2002] ZACC
27; 2003 (3) SA 1 (CC); 2003 (2) BCLR 154 (CC) (NEHAWU) at para 66.
67 Id at para 66, applied in S.O.S Support Public Broadcasting Coalition v South African Broadcasting
Corporation (SOC) Limited [2018] ZACC 37; (12) BCLR 1553 (CC); 2019 (1) SA 370 (CC) at para 41.
68 Patel v Minister of the Interior 1955 (2) SA 485 (A).
CAMERON J
30
statutes”.69 The test, which this Court adopted, was that it must be “clearly shown” in
the later statute what the earlier meant.

The amendment does not match this test. The late r insertion of subparagraph [74]
(c) in section 16(2) does not afford a “clear” indication that, pre -insertion, the
provision already meant that the Regional Manager may not “accept” an application
for a prospecting right if there is a prior competing applicati on for a prospecting right
that has been accepted and that remains to be granted or refused.

While section 16 sets out how applications for prospecting rights are processe d, [75]
section 9, which is headed “[o] rder of processing of applications”, 70 determines t he
order in which this must be done. What item 8 does is to hold off, for the duration of
the one-year grace period, the ordering that section 9 would otherwise prescribe. As
appears below, the ordering section 9 ordains takes effect after the one -year g race
period. Until then, the main practical effect of exclusivity is this. During the grace
year the holder of an old -order right may bring as many applications as it chooses to
fix any defects in earlier applications. No one else may during this time a pply for the
same right over the same property.

But, at the end of the grace year, the continued validity of the old -order right, [76]
pending conversion, does not bar others from standing in line to apply for MPRDA
rights over the same land. 71 Section 9 bars their applications from being processed
only until that of the old -order rights -holder has been processed. However, where
applications by holders of the unused old -order right are not disposed of within the
exclusivity year, other applica nts become entitled to apply in terms of section 16,
though their applications may be processed only in the order ordained by section 9.


69 Id at 493A–D.
70 The provisions of section 9 are set out in [65].
71 High Court judgment above n 2 at paras 77-8.
CAMERON J
31
Section 9 requires that, if received on the same day, competing applications [77]
from historically disadvantaged persons 72 must enjoy preference; but, if received on
different days, competing applications must be dealt with in the order in which they
are received.

Section 9 read together with i tem 8(3) of Schedule II entails that an application [78]
competing with one by the hol der of the old -order right falls into the queue behind it.
In other words, the one-year exclusivity period does not bar other applications after its
elapse, but it does confer priority of consideration and processing, simply because the
old-order rights-holder’s application was in first. This means that the old-order rights-
holder obtains priority (though not exclusivity) for the disposal of its application, until
the MPRDA right it seeks is granted and dealt in terms of the MPRDA or is refused. 73
Until that happens, no competing application for an MPRDA right may be processed.
Yet once the grace period ends, the MPRDA’s requirements apply equally to all
applications, no matter where they are in the queue.

Once the grace period ends, the MPRDA’s requirem ents apply equally to all [79]
applications, no matter where they are in the queue. If those requirements are not met,
the Regional Manager must notify the applicant of this. If he fails to do this, but the
requirements remain unmet, the applicant runs the ri sk of the application being set
aside on review and losing its place in the queue. After 30 April 2005, this includes
holders of unused old -order rights. If there are as yet no other applicants, the holder
of the unused old -order right may attempt to cor rect the defect while staying in the

72 Section 1 of the MPRDA defines “historically disadvantaged persons” as:
“(a) any person, category of persons or community, disadvantaged by unfair
discrimination before the Constitution took effect;
(b) any association, a majority of whose members are persons contemplated in paragraph
(a);
(c) any juristic person other than an association, in which persons contemplated in
paragraph (a) own and control a majority of the issued capit al or members’ interest
and are able to control a majority of the members’ votes.”
73 Item 8(3) Schedule II of the MPRDA.
CAMERON J
32
front of the queue. If there are other applicants behind it and they successfully
challenge the defective application, they will step to the front.

Both the High Court and the Supreme Court of Appeal were alert to th e need to [80]
interpret the MPRDA and item 8’s exclusivity, priority and duration provisions
purposively, in light of the statute’s transformational objectives.74 The Supreme Court
of Appeal rightly noted that the transitional provisions were crafted to secure a
constitutionally compliant balance between the existing entitlements of old -order
rights-holders and the transformational objectives of the MPRDA.75

This the legislature achieved. It did so by affording holders of unused old -[81]
order rights (a) exclusivit y during the grace period; (b) priority determination and
processing of an application lodged within that period; and (c) sustained validity until
disposal of the application. But it was no logical or functional part of this bargain to
accord holders of unused old-order rights indefinite exclusivity pending conversion.

Does disjoining exclusivity from priority and duration, and confining it to one [82]
year for old-order rights-holders, while affording them their section 9 ordinal priority,
undermine the trans itional purposes of the MPRDA? The answer is No. Old -order
rights-holders are given the sole entitlement to lodge applications within one year.
During this time, all new applications are barred. If their applications are not finalised
within that year, they still enjoy the advantage that their applications are considered
first, before any new applications under section 17.

It is important to place in context the exclusivity period and the priority the [83]
statute affords unused old -order rights applications. Broadly, the statute’s transitional
provisions balance the rights held by previously privileged holders of mineral rights
(which excluded most South Africans because they were black) with the rights of new,

74 High Court judgment above n 2 at paras 77-9; Supreme Court of Appeal judgment above n 1 at paras 14-5.
75 Id Supreme Court of Appeal judgment at para 14. See also Agri South Africa v Minister for Minerals and
Energy [2013] ZACC 9; 2013 (4) SA 1 (CC); 2013 (7) BCLR 727 (CC) at paras 63-6.
CAMERON J
33
previously disadvantaged, entrants to the mi ning and resources sector. Both logically
and practically the privileges of exclusivity and priority inhibit new entrants. They do
this to protect old-order rights-holders. But they do not endure indefinitely.

To summarise. When ZiZa lodged its applic ation for a prospecting right on 19 [84]
April 2005, it was exercising its right to apply, within the grace year, for a prospecting
right in terms of section 16. That excluded other applicants until the grace year
expired. Others could join the queue after 30 April 2005. Their applications were
valid. But they did so behind ZiZa. ZiZa’s application preserved its priority under
section 9, and its old -order right remained valid until its application was granted and
dealt with under the MPRDA or refused.

Here, the critical practical issue is: how long did the transitional exclusivity [85]
protecting ZiZa’s application last? On the approach by the Supreme Court of Appeal,
it endured throughout the period when ZiZa’s and Aquila’s applications for
prospecting were lo dged and accepted and granted. This would entail that no
competing application may even be lodged until an application by an old -order rights-
holder has been granted and dealt with in terms of the MPRDA or refused. Instead, as
this judgment holds, ZiZa’s exclusivity expired on 30 April 2005. This means that
Aquila’s application for a prospecting right was capable of being lodged, at the time it
was, over a year after the grace period expired, though its place in the queue was
behind that of ZiZa. Howeve r, since the Minister’s grant of a prospecting right to
ZiZa is set aside only now, it must follow that the grant of a prospecting right to
Aquila, on 11 October 2006, was invalid, since ZiZa’s competing application, albeit,
as we now know, defective, was first in the queue – and had at that stage not yet been
processed as section 9 requires.76


76 ZiZa applied for a prospecting right on 19 April 2005; the Department accepted its application on 17 August
2005; and a pro specting right was awarded to ZiZa on 26 February 2008. Aquila applied on 18 April 2006 and
its application was accepted on 2 May 2006. Despite the fact that ZiZa’s prospecting right application had not
yet been processed, the Department awarded Aquila a prospecting right on 11 October 2006.
CAMERON J
34
The majority of the Supreme Court of Appeal held that Aquila in its notice of [86]
motion should have attacked the failure by the Regional Manager to return ZiZa’s
defective application within 14 days, as section 16(3) requires, rather than the
Regional Manager’s decision, under section 16(4) to accept the application.77 Aquila
justly complained that this was unduly formalistic. Aquila’s attack on the decision to
accept Z iZa’s application fully encompassed all the defects in the application that
should undoubtedly have led to its being returned. It set out those defects – which
were glaring – and neither ZiZa nor the Department made an effort to dispute them or
their significance.

To demand that Aquila target the non -return of ZiZa’s application, rather than [87]
its acceptance, when the two were erroneous for identical reasons, seems to toy with
both the logic and the substance of what matters here. It is lack of compliance with
the requirements of section 16 that kiboshes an application, not whether the Regional
Manager returns it as the provision demands. 78 Whether, as the High Court held,79 the
return of a non -compliant application under section 16(3) entails its rejection, or, as
the Supreme Court of Appeal held, 80 it does not, the real issue remains whether the
statute gave the Regional Manager authority to accept the application at all, an d,
ensuingly, gave the Minister the power to grant the right sought. Here, clearly not.

As noted, 81 only the Minister has the power to grant or refuse an applicant a [88]
prospecting right. 82 But the statute gives the Minister that power only once the
Regional Manager accepts the application. Aquila’s decision to target the erroneous

77 Supreme Court of Appeal judgment above n 1 at para 25.
78 In dissent, Willis JA in the Supreme Court of Appeal noted that the Regional Manager’s return of a defective
application in terms of section 16(3) “is the funeral rite of the application, not its deathblow”.
79 High Court judgment above n 2 at para 21.
80 Supreme Court of Appeal judgment above n 1 at para 24. Aquila insisted that the return by the Regional
Manager of a defective application amounts to its rejection. This seems wrong. The Supreme Court of Appeal
pointed out at para 24 that only the Minister, and not the Regional Manager, has power under section 17(1) and
(2) to grant or refuse an application for a prospecting right.
81 See [51].
82 Section 17(1) of the MPRDA.
CAMERON J
35
acceptance of ZiZa’s application therefore put the crucial precondition to the
Minister’s eventual grant or refusal of the prospecting right in the crosshairs. And,
since the MPRDA itself determines the conditions under which the Minister may grant
or refuse a new -order right, it cannot assis t the old -order applicant that i tem 8(3)
provides that the old-order right “remains valid” until grant or refusal of the new-order
right. Di fferently put, the continued existence of the old -order right until grant or
refusal of the new -order right does not exempt the old -order rights -holder from
compliance with the requirements of the MPRDA. Nor does it permit the Regional
Manager to accept applications that do not comply with the statute.

On this basis, on the legal regime item 8 creates, 83 after the grace period of [89]
exclusivity expired on 30 April 2005, ZiZa remained at the front of the queue for
consideration of its application for a prospecting right. Aquila was waiting right
behind it. After 30 April 2005, nothing barred Aquila from applying for a prospecting
right over the same properties, and nothing b arred the Department from accepting
Aquila’s application, as it did on 2 May 2006, subject only to prior processing of
ZiZa’s.

But, since ZiZa’s application had not yet been processed, and even though [90]
Aquila’s application was in no way defective, it must follow that the award of a
prospecting right to Aquila, too, was premature at the time it occurred.

Do Oudekraal / Kirland bar relief for Aquila?
The award of a prospecting right to ZiZa was thus invalid. As a matter of fact, [91]
however, ZiZa (like Aquila) was awarded that right. The statute provides that an
application for a mining right may not be accepted if any other person holds a
prospecting right for the same mineral and land. 84 What is the effect of the factual

83 See [5] to [8] and [61] to [72].
84 Section 22(2)(b) of t he MPRDA provides that the Regional Manager “must” accept an application for a
mining right if “no other person holds a prospecting right, mining right, mining permit or retention permit for
the same mineral and land”.
CAMERON J
36
grant of the prospecting right to ZiZa? Does the fact that Ziza should never have been
granted that right mean that, judged now, the Minister was lawfully empowered, in
December 2010, to consider and grant a mining right to Aquila? ZiZa protested
strongly No. While not seeking to defend the validity of its own application for a
prospecting right, ZiZa stoutly argued that Aquila could not be granted either a
prospecting or mining right at all for so long as, within the Department’s processes,
ZiZa’s application was regarded as valid.

ZiZa’s argument was this. Whatever its defects, ZiZa’s application for a [92]
prospecting right, and the grant to it, were both extant when Aquila submitted its
mining right application in December 2010. The prospecting right ZiZa was awarded
on 26 February 2008 – rightly or wrongly – endured (subject to the effect of ZiZa’s
deregistration between 9 November 2010 and 14 October 2014) for five years, until
25 February 2013. Aquila applied for a mining right on 14 December 2010. Its
application was accepted on 22 Dec ember 2010. All this was while the Department
thought it had, and acted as though it had, granted a prospecting right to ZiZa. The
further administrative acts of granting a prospecting right to Aquila, and accepting its
mining right application, were pre cluded by the simple fact that, at the time, the
Department had – validly or invalidly – granted ZiZa a prospecting right. Since the
MPRDA prohibits acceptance of a mining right if any other person holds a
prospecting right, 85 Aquila’s application was prec luded by the fact that ZiZa held a
prospecting right, even if invalid. Aquila cannot, ZiZa said, “reverse engineer the
course of events” to render the Department’s decisions retrospectively invalid.

For these propositions, ZiZa invoked the decision of th is Court in Kirland.86 [93]
That showed, ZiZa said, that an organ of state cannot simply ignore its own decision
as a non-decision or a nullity. Once taken, that decision is valid and binding until set

85 Section 22(2)(b) of the MPRDA.
86 MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd [2014] ZACC 6; 2014 (3) SA 481 (CC); 2014
(5) BCLR 547 (CC) (Kirland).
CAMERON J
37
aside on review. Hence ZiZa’s prospecting right, so long as it was in existence, barred
Aquila from acquiring a mining right.

This is no t right. Kirland, and Oudekraal,87 which it confirmed, do not make [94]
invalid administrative action legally valid. Nor do they invest them retrospectively
with power to thwart ri ghtful and lawful processes from prevailing at the time they
took place. Kirland and Oudekraal are concerned with constraining misuse of the
bureaucracy’s power. They recognise that administrative action, even though invalid,
may give rise to consequence s that must be held lawful. As explained in Merafong,88
the import of these decisions was that government cannot simply ignore its own
seemingly binding decisions on the basis that they are invalid. The validity or
invalidity of a decision has to be teste d in appropriate proceedings. And the sole
power to pronounce that decision defective, and therefore invalid, lies with the courts.
The lodestar principle is that the courts’ role in determining legality is pre -eminent
and exclusive. Government officials may not usurp that role by themselves
pronouncing on whether decisions are unlawful, and then ignoring them. And, unless
set aside, a decision erroneously taken may well continue to have lawful
consequences.89

But what the Kirland / Oudekraal doctrine does not do is to fossilise [95]
constitutionally invalid administrative action as indefinitely effective. For rule of law
reasons and for good administration, the principle puts a provisional halt to
determining invalidity, without bringing the process to an irreversible end. What it
requires is that the allegedly unlawful action be challenged by the right actor in the
right proceedings. Until that happens, for rule of law reasons, the decision stands. 90
Most important, the principle does not entail that, unless public authorities in fac t

87 Oudekraal Estates (Pty) Ltd v City of Cape Town [2004] ZASCA 48; 2004 (6) SA 222 (SCA) (Oudekraal).
88 Merafong City Local Municipality v Anglo Gold Ashanti Limited [2016] ZACC 35 2017 (2) ; 2017 (2) SA 211
(CC); BCLR 182 (CC) (Merafong).
89 Id at paras 41-2.
90 Id at para 43.
CAMERON J
38
bring court proceedings to challenge an administrative decision, they are inevitably
obliged to treat it as valid.91

The key point of the doctrine is that since “[ c]onsequential acts which follow [96]
on constitutionally invalid conduct are commonplace ”,92 bureaucratic self -help is
prohibited. This is because legal remedies are the province of the courts, and the
courts alone. Since even an invalid administrative act may have lawful consequences,
no official is entitled to pronounce a decision a nullity witho ut going to court. It is the
court that must consider whether to undo the invalid act, and its consequences, before
pronouncing the act invalid. And in our constitutional dispensation, the key provision
in determining a remedy is the just and equitable p ower section 172(1)(b) of the
Constitution affords.93

Properly seen, Kirland and Oudekraal in their practical effect are about [97]
remedy. They assert the power of the courts to constrain bureaucratic self -help. The
fact that administrative action exists, al beit invalid, may on fitting facts be the basis
for withholding a remedy of invalidity. But where a court – as this judgment does –
pronounces that past administrative action is invalid, the principle does not mean that

91 Id at para 44:
“Oudekraal and Kirland did not impose an absolute obligation on private citizens to take the
initiative to strike down invalid administrative decisions affecting them. Both decisions
recognised that there may be occasions where an administrative decision or ruling should be
treated as invalid even though no action has been taken to strike it down. Neither decision
expressly circumscribed the circumstances in which an administrative decision could be
attacked reactively as invalid. As important, they did not imply or entail th at, unless they
bring court proceedings to challenge an administrative decision, public authorities are ob liged
to accept it as valid. And neither imposed an absolute duty of proactivity on public
authorities. It all depends on the circumstances.”
92 Corruption Watch NPC v President of the Republic of South Africa; Nxasana v Corruption Watch NPC
[2018] ZACC 23; 2018 (2) SACR 442 (CC); 2018 (10) BCLR 1179 (CC) (Corruption Watch) at para 31.
93 Section 172(1)(b) provides:
“When deciding a constitutional matter within its power, a court—
(a) may make any order that is just and equitable, including—
(i) an order limiting the retrospective effect of the declaration of invalidity;
and
(ii) an order suspending the declaration of invalidity for any period and on
any conditions, to allow the competent authority to correct the defect.”
CAMERON J
39
a proper remedy cannot be granted. This emerges from Oudekraal, where the Supreme
Court of Appeal explained that—

“a court that is asked to set aside an invalid administrative act in proceedings for
judicial review has a discretion whether to grant or withhold the remedy. It is that
discretion that accords to judicial review its essential and pivotal role in
administrative law, for it constitutes the indispensable moderating tool for avoiding or
minimising injustice when legality and certainty collide. Each remedy thus has its
separate application to its appropriate circumstances and they ought not to be seen as
interchangeable manifestations of a single remedy that arises whenever an
administrative act is invalid.”94

So, practically speaking, Kirland / Oudekraal have no application here. The [98]
principle does not breathe life into the Department’s invalid decisions to accept and
grant ZiZa’s defective prospecting right application. And it cannot thwart the valid
award of a mining right to Aquila. The legally null award of the prospecting r ight to
ZiZa does not enjoy a zombie afterlife to thwart the legal conclusion that a mining
right could validly be granted to Aquila.

The facts in Corruption Watch show this.95 There, the invalidity of a preceding [99]
legal act (the irregular removal as National Director of Public Prosecutions of Mr
Nxasana) was held to vitiate a subsequent legal act (the appointment to that post of
Mr Abrahams).96 This was even though, at the time, Mr Nxasana’s removal had yet to
be declared invalid, and thus existed as a fact.

If ZiZa’s argument were correct, the fact that, at the time of Mr Abrahams’ [100]
appointment, Mr Nxasana’s resignation, albeit invalid, existe d as a fact, would mean

94 Oudekraal above n 87 at para 36.
95 Corruption Watch above n 92 at para 31.
96 Id at para 35:
“Now that the manner in which Mr Nxasana vacated office has been declared constitutionally
invalid, it follows that the appointment of Advocate Abrahams is constitutionally invalid. ”
CAMERON J
40
that there was a “vacant” post to which Mr Abrahams could validly be appointed.
That cannot be. This Court did the opposite. It retrospectively declared both the
irregular removal and the appointment consequent on it invalid. Th e Abrahams
appointment was invalid even though the Nxasana removal had yet to be declared
invalid.

This Court in Corruption Watch emphasised that “where a consequential act [101]
could be valid only as a result of the factual existence – not legal validity – of the
earlier act, the consequential act would be valid only for so long as the earlier act had
not been set aside”.97 That is an abstract way of saying that if act B depends solely on
the factual existence of act A, then act B is valid only for so long as act A is not set
aside. This, again, is explained in Oudekraal:

“Thus the proper enquiry in each case – at least at first – is not whether the initial act
was valid but rather whether its substantive validity was a necessary precondition for
the validity of consequent acts.”98

The corollary here is the logical converse. Where a consequential act would be [102]
invalid only as a result of the factual existence – not legal validity – of an earlier act,
the consequential act would be invalid only for as long as t he earlier act is not set
aside. In practical terms, where the grant to Aquila of a mining right would be
precluded only for as long as ZiZa’s prospecting right existed, once ZiZa’s right is set
aside as invalid, as it is by this judgment, the grant of a mining right to Aquila is
judged capable and valid. In different words, now that the acceptance and grant of the

97 Id at para 32.
98 Oudekraal above n 94 at para 31 . See further Forsyth “‘ The Metaphysic of Nullity’: Invalidity, Conceptual
Reasoning and the Rule of Law” in Forsyth and Hare (eds) Essays on Public Law in Honour of Sir William
Wade QC (Clarendon Press, Oxford 1998) at 159 cited with approval in Oudekraal above n 94 at para 29:
“The crucial issue to be determined is whether that second actor has legal power to act validly
notwithstanding the invalidity of the first act.”
Thus, where a consequent act relies on the substantive validity of the initial act for its legality, the factual
existence of an initial unlawful act will sustain the validity of the consequent act only for long as the ini tial act is
not set aside. This is distinct from consequent acts that merely require for their validity the factual existence - as
opposed to the substantive validity - of an initial act.
CAMERON J
41
ZiZa prospecting right application have been set aside, as this judgment does, nothing
stands in the way of recognising Aquila’s application f or a mining right on
14 December 2010, and the Department’s acceptance of that application on
22 December 2010, as valid.

Remedy
It follows that the Minister should have considered Aquila’s internal appeal, [103]
and ZiZa’s counter-appeal, on the footing that Z iZa’s prospecting right was invalid. 99
The Minister did not do so. His determination of the appeal, which Aquila’s notice of
motion squarely targeted, was thus flawed and irregular and must be set aside.

The question is: what now? The Minister’s decisi on was dated 2 July 2015. [104]
Some four and a half years before, on 14 December 2010, Aquila applied for a mining
right, which application the Department accepted on 22 December 2010. As already
observed, given that ZiZa’s prospecting right was invalid, ther e was no impediment to
the Minister’s granting Aquila the right to mine the properties in issue.

The Minister dealt with Aquila’s application to mine in his disposal of the [105]
section 96 appeal. He recorded his decision as follows:

“After careful consideration of the appeals . . . I . . . have decided to dismiss the
appeal by Aquila Steel…The reasons for my decision are as follows:
 The prospecting right application by ZiZa Limited was lodged and accepted
during a period which afforded it exclusivity in term s of the transitional
provisions of the MPRDA. The granting of a prospecting right in its favour
was therefore lawful.
 As a consequence, the prospecting right application of Aquila Steel was
unlawfully accepted, processed and granted during the aforesaid period
which afforded exclusivity to the application of ZiZa.

99 In terms of section 96 of the MPRDA.
CAMERON J
42
Accordingly, I am also not in a position to grant the mining right application in
favour of Aquila Steel, because of the existence of a prospecting right in favour of
ZiZa.”100

Aquila’s application for a mining right was included in the review record [106]
before us. No criticism that it was in any respect deficient under the MPRDA was
levelled against it. In these circumstances, the High Court substituted the Minister’s
decision with an orde r granting Aquila’s application for a mining right, subject to
conditions to be determined by the Minister within three months. 101 In doing so, it
determined that exceptional circumstances existed that justified a substitution order
under section 8(1)(c)(ii)(aa) of PAJA.102

100 The Minister concluded by strongly urging the parties “to engage their best efforts to reach a settlement of
the dispute between them”. That did not happen, and this litigation is the consequence.
101 High Court judgment above n 2 at para 118.10.
102 Section 8 of PAJA reads:
“(1) The court or tribunal, in proceedings for judicial review in terms of section 6(1), may
grant any order that is just and equitable, including orders—
(a) directing the administrator—
(i) to give reasons; or
(ii) to act in the manner the court or tribunal requires;
(b) prohibiting the administrator from acting in a particular manner;
(c) setting aside the administrative action and—
(i) remitting the matter for reconsider ation by the administrator, with
or without directions; or
(ii) in exceptional cases—
(aa) substituting or varying the administrative action or
correcting a defect resulting from the administrative
action; or
(bb) directing the administrator or any other party to the
proceedings to pay compensation;
(d) declaring the rights of the parties in respect of any matter to which the
administrative action relates;
(e) granting a temporary interdict or other temporary relief; or
(f) as to costs.
(2) The court or tribunal, in proceedings for judicial review in terms of section 6(3), may
grant any order that is just and equitable, including orders—
(a) directing the taking of the decision;
(b) declaring the rights of the parties in relation to the taking of the decision;

CAMERON J
43

The Supreme Court of Appeal majority held that the High Court ought not to [107]
have granted substitution. 103 Even if it were to be accepted that the ZiZa application
was invalid, the Supreme Court of Appeal held, the High Court’s order was
“misconceived”.104 This was because of its bifurcated nature: the imposition of
conditions could not be separated from the grant of the mining right. And, since the
Court could not itself impose the conditions, the mining right should not have been
awarded, particularly since the application, having been lodged in 2010, was
outdated.105

Should the Supreme Court of Appeal have intervened? Here, it is critical to [108]
bear in mind that PAJA empowered the High Court itself to weigh the factors set out
in section 8 and to determine, for itself, what remedy to afford Aquila. This is
because the statute entrusted to the High Court a discretion in the true sense. This
meant it was for that Court to weigh the courses available to it, and from those to
choose which one it found appropriate to order.106

As this Court found in Trencon, it was for the High Court to exercise “an [109]
election of which option it will apply” between permissible opti ons.107 The fact that
an appellate court might have “preferred to have followed a different course” does not
empower it to interfere.108


(c) directing any of the parties to do, or to refrain from doing, any actor thing
the doing, or the refraining from the doing, of which the court or tribunal
considers necessary to do justice between the parties; or
(d) as to costs.”
103 Supreme Court of Appeal judgment above n 1 at para 26.
104 Id at para 29.
105 Id.
106 Trencon Construction (Pty) Limited v Industrial Development Corporation of SA Ltd [2015] ZACC 22; 2015
(5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) (Trencon) at para 84.
107 Id at paras 84-6.
108 Id at para 84.
CAMERON J
44
The High Court weighed the options before it with conspicuous care. It noted [110]
that the issue trenched upon the separatio n of powers, and that the award of a mining
right is in the first instance vested in the executive, not the courts. 109 It set out the
provisions of PAJA, and the implications of this Court’s judgment in Trencon that
regulated its exercise of the power. It noted that t he sole ground for the Minister’ s
refusal of a mining right to Aquila was the (erroneous) consideration that ZiZa had a
prospecting right.

The High Court noted the inordinate delays in the Department’s management [111]
of the applications, and the i njustice that further delays would inflict. Though the
Court discounted institutional bias as a factor justifying substitution, 110 it found that
Aquila had established “a high degree of institutional incompetence on the part of the
government respondents” 111 and a lack of energy in resolving the very issues their
incompetence caused. As Trencon found, that an administrator has been incompetent
will contribute to a finding that a substitution order is just and equitable. 112 A finding
of gross incompetence may m ake it unfair to require a party to resubmit itself to the
administrator.113

The High Court noted that neither the Department nor ZiZa had suggested any [112]
issue of substance standing in the way of the grant of the mining right to Aquila.
From this, that Cour t concluded that it was in as good a position as the Minister to
make the decision.114

Did the considerations the High Court set out establish that substitution was a [113]
permissible option, a course available to it? In my view, they plainly did.

109 High Court judgment above n 2 at para 106.
110 Id at para 108.
111 Id at para 111.
112 Trencon above n 106 at para 47.
113 Id at para at 53.
114 High Court judgment above n 2 at para 112.
CAMERON J
45

To deal with the bifurcation point the Supreme Court of Appeal raised. Aquila [114]
contended, and it is evident from the record before us showing how the two impugned
prospecting rights in issue here were granted , that the rights under the MPRDA may
well be granted on the basis that conditions are to be imposed later. 115 It was also
pointed out that the conditions in issue are relatively standard and are typically
imposed regardless of who the particular applicant is. Neither ZiZa nor the
departmental respondents made any serious attempt to put these two facts in issue.

What is more, the sole reason the Minister gave for not granting Aquila the [115]
mining right it sought was the existence of ZiZa’s prospecting right. ZiZa protested
that this gave no indication that the Minister had actually considered Aquila’s
application. It urged that the Minister’s statement meant that he thought he was
precluded from considering Aquila’s application by ZiZa’s prospecting right.

But this is to misread what the Minister said. The Minister did not say “I am [116]
also not in a position to consider the mining right application in favour of Aquila”.
What the Minister said was “I am also not in a position to grant the mining right
application in favour of Aquila Steel because of the existence of the prospecting right
in favour of ZiZa ”. This must rightly be inferred to mean that it was the grant or not
of the right that was in issue before the Minister, and that its grant was precluded by
the s ole reason he proffered, which was his erroneous belief that ZiZa had a
prospecting right.116

This construction is supported by everything in the record before us. Nothing [117]
in it indicates anything to preclude the grant of a mining right to Aquila. It has
fulfilled the requirements of the MPRDA and its Regulations. It has demonstrated the

115 In the case of the ZiZa prospecting right and the Aquila prospecting right here, the grant decision was
communicated to the applicant with determination of conditions to follow.
116 In selecting the “Recommendation . . . not approved” box on recommendation in favour of Aquila by the
Department’s Chief Director, Mr Alberts, the Minister wrote against “comments / amendments”, “The M inister
cannot condone an unlawful act. Parties are advised to negotiate a settlement”.
CAMERON J
46
capacities and competencies required. 117 And, in expending nearly R157 million in
prospecting the properties, and in pursuing its entitlement to mine what it has found
with nothing other than single -minded determination in the departmental and court
processes, it has demonstrated its determination.

In my view, the High Court had ample reason to conclude that a substitution [118]
order was competent. It rightly emphasised the in ordinate delays to which Aquila has
been unjustly subjected. 118 Its order substituting the decision of the Minister was
imperatively just and equitable and should be reinstated.

This conclusion makes it unnecessary to consider the effect of ZiZa’s [119]
deregistration, and whether the approach of the Supreme Court of Appeal to this
question was correct. 119 It is also unnecessary to consider whether the Department’s
execution of ZiZa’s prospecting right in favour of PAMDC, an entirely different
entity, was lawful.

I would accordingly allow the appeal and reinstate the order of the High Court. [120]

The following order is made: [121]
1. Leave to appeal is granted.
2. The appeal is allowed with costs, including the costs of two counsel.
3. The order of the Supreme Court of Appeal is set aside .

117 Aquila was not disputed on the papers to have satisfied the requirements for a mining right. Its mining right
application was annexed to its founding papers. Aquila tendered delivery of all the annexures. The
respondents, including the Minister, never challenged the sufficiency of Aquila’s application in any way.
118 Trencon above n 106 at paras 47and 51-3.
119 Shortly before the hearing, on 20 August 2018, counsel were a dvised by the Registrar’s office that they
would be invited to make submissions on whether the decisions of the Supreme Court of Appeal in Newlands
Surgical Clinic v Peninsula Eye Clinic [2015] ZASCA 25; 2015 (4) SA 34 (SCA) ( Newlands) and Palala
Resources v Minister of Mineral Resources and Energy [2016] ZASCA 80; 2016 (6) SA 121 (SCA) (Palala) are
compatible with the decisions of this Court in Du Toit v Minister for Safety and Security [2009] ZACC 22; 2010
(1) SACR 1 (CC); 2009 (12) BCLR 1171 (CC) and The Citizen 1978 v McBride [2011] ZACC 11; 2011 (4) SA
191 (CC); 2011 (8) BCLR 816 (CC) ( McBride); and, if not, the extent to which, if at all, this may affect the
application. It is unnecessary, for now, to determine whether Newlands and Palala sufficiently recognise the
distinction between retrospectivity and retroactivity and whether they can stand in the light of Du Toit and
McBride.
CAMERON J / THERON J
47

4. In its place there is substituted:
“The appeal is dismissed with costs, including the costs of two counsel.
No order is made on the cross-appeal”.



THERON J


Introduction
I have read the erudite judgment by my brother, Cameron J (first judgment) but [122]
am unable to agree with its outcome. I am in agreement with the first judgment’s
approach to priority and its finding that the award of a prospecting right to ZiZa
should be set aside. However, I disagree on whether substitution is appropriate.

Substitution or remittal?
For the reasons advanced by Cameron J, there is nothing that prevent s the [123]
consideration of Aquila’s application for a mining right . However, this is where the
first judgment and I part ways.

It is necessary to consider w hether we ought to remit the matter to the Minister [124]
or substitute in terms of section 8(1)(c)(ii) of PAJA. 120 The threshold for substitution

120 Section 8(1)(c)(ii) reads, in relevant part, as follows:
“The court or tribunal, in proceedings for judicial review in te rms of section 6(1), may grant
any order that is just and equitable, including orders—
. . .
(c) setting aside the administrative action and—
. . .
(ii) in exceptional cases—
(aa) substituting or varying the administrative action or correcting a
defect resulting from the administrative action; or
(bb) directing the administrator or any other party to the proceedings to pay
compensation.”
THERON J
48
is high. At the outset, i t requires that the case be an exceptional one . It is clear from
the astounding history and complexity of this matter that i t is an unusual one,
markedly out of the ordinary. The Department ought ordinarily to deal with
applications expeditiously. On this basis, the initial threshold is met.

Would it be just and equitable for the Minister’s decision on whether to grant [125]
Aquila’s mining right application to be substitute d with a decision of this Court? The
factors to be considered in determining wh ether to make a substitution order were
outlined in Trencon:

“To my mind, given the doctrine of separation of powers, in conductin g this enquiry
there are certain factors that should inevitably hold greater weight. The first is
whether a court is in as good a position as the administrator to make the decision.
The second is whether the decision of an administrator is a foregone con clusion.
These two factors must be considered cumulatively. Thereafter, a court should still
consider other relevant factors. These may include delay, bias or the incompetence of
an administrator. The ultimate consideration is whether a substitution or der is just
and equitable. This will involve a consideration of fairness to all implicated parties.
It is prudent to emphasise that the exceptional circumstances enquiry requires an
examination of each matter on a case-by-case basis that accounts for all relevant facts
and circumstances.”121

The two factors which carry the g reatest weight are whether the C ourt is in as [126]
good a position as the administ rator to make the decision and whether the decision of
an administrator is a foregone conclusion. 122 Section 23(1) of the MPRDA requires
the Minister to grant an application for a mining right if the following requirements
are met:

“(a) the mineral can be mined optimally in accordance with the mining work
programme;

121 Trencon above n 106 at para 47.
122 Id.
THERON J
49
(b) the applicant has access to financial resources and has the technical ability to
conduct the proposed mining operation optimally;
(c) the financing plan is compatible with the intended mining operation and the
duration thereof;
(d) the mining will not result in unacceptable pollution, ecological degradation or
damage to the environment and an environmental authorisation is issued;
(e) the applicant has provided for the prescribed social and labour plan;
(f) the applicant has the ability to comply with the rele vant provisions of the
Mine Health and Safety Act, 1996 (Act No. 29 of 1996);
(g) the applicant is not in contravention of any provision of this Act; and
(h) the granting of such right will further the objects referred to in section 2 (d)
and (f) and in ac cordance with the charter contemplated in section 100 and
the prescribed social and labour plan.”

Many of these requirements are technical in nature and require specific [127]
knowledge and expertise. It would be difficult, for example, for this Court to asses s
whether, on the basis of the mining work programme, the mineral can be mined
optimally. The first judgment makes much of the fact that the applicant ha s alleged
that it meets these requirements and it has never been contended otherwise by the
Minister.123 In the view I take of the matter , given the nature of the decision the
Minister took in finding that he was not in a position to grant Aquila’s application , it
would appear that the substance of Aquila’s application was never considered .
Indeed, the reason underlying the Minister’s decision is indicative of the fact that the
Minister considered himself precluded from making a decision on the application.
This Court does not have any basis, beyond the applicant’s say -so, to conclude that it
has met the r equirements of section 23(1) nor do we have the technical expertise to
make this assessment . The High Court attempted to cure this difficulty by providing
that the Minister could impose conditions on the mining right. 124 However, this does
not accommodate the consideration of more qualitative factors such as the
requirement in sub-section 23(1)(h).

123 See first judgment [112].
124 High Court judgment above n 2 at para 114.
THERON J
50

There is an additional basis upon which the High Court erred. The approach [128]
that the High Court adopted in respect of the imposition of conditions was incorrect.

The first judgment correctly finds that, under Trencon, an appe llate court [129]
cannot lightly interfere with the decision of a lower court to grant substitution. 125 The
Supreme Court of Appeal interfered with the High Court’s decision to substitute the
Minister’s decision. In Trencon, this Court confirmed the settled rule that an exercise
of true discretion can be interfered with if that discretion was materially influenced by
a misdirection as to the applicable law. 126 I agree with the Supreme Court of Appeal
that the High Court had misdirected itself as to the legal principles regarding the
granting of a mining right and the imposition of conditions thereof. 127 That Court’s
interference with the High Court’s decision to substitute was justified. I cannot agree
with the first judgment that the reasoning of the Supreme Court of Appeal was
incorrect on this score.

Section 23(1) of the MPRDA obliges the Minister to grant a mining right if [130]
certain jurisdictional facts are satisfied. Section 23(6) then provides:

“A mining right is subject to this Act, any relevant law, the terms and conditions
stated in the right and the prescribed terms and conditions and is valid for the period
specified in the right, which period may not exceed 30 years.” (Emphasis added.)

125 See first judgment [109].
126 Trencon above n 106 at para 88.
127 Supreme Court of Appeal judgment above n 1 at para 29 reads:
“The power to impose conditions is inextricably link ed to the exercise of the statutory power
itself. It thus seems to me that the grant of the right and the imposition of conditions cannot
be separated from one another. Granting the right without considering whether to impose
conditions or what condition s need to be imposed constitutes, to my mind, an invalid exercise
of the power. Since the High Court could not itself purport to exercise the power to impose
conditions, as it no doubt appreciated, its order was misconceived. On that basis alone the
order is susceptible to attack. Further, the Aquila application was submitted approximately
seven years ago. The information that it contains must necessarily be outdated. The grant of
the mining right application was accordingly not a foregone conclusion. The H igh Court
could thus hardly have been in as good a position as the Minister to determine the
application.”
THERON J
51

Section 23(6) thus empowers the Minister to impose conditions on the mining [131]
rights that he grants. It contemplates that these conditions are not attached to the right
but rather are an intrinsic part of that right by delineating the ambit and sco pe of that
right. The first judgment relies on the fact that the imposition of conditions after a
right has been granted is a regular occurrence. 128 I fail to see how this changes the
plain and purposive meaning of section 23(6). The fact that the Ministe r has a certain
approach to the imposition of conditions – which may not necessarily be correct –
does not change the principle that a mining right cannot be granted in complete
isolation from the imposition of conditions. In this way, conduct cannot over ride the
wording of a statute and the manner in which a provision ought to be interpreted.

The High Court did not have due regard to the proper interpretation of the [132]
statute when considering whether to substitute. The High Court held that the
jurisdictional facts in section 23(1) were satisfied – as a foregone conclusion –
because the respondents did not controvert Aquila’s assertions that those conditions
were satisfied.129 The High Court proceeded to substitute the Minister’s decision not
to grant the mi ning right with one to grant the right and directed the Minister to
impose conditions on the right within three months.130 It could not do this.

The power to impose conditions is, as the Supreme Court of Appeal held, [133]
“inextricably linked” to the power to g rant a mining right and these conditions, as
discussed, are part of the content of a specific right. 131 As a result, it is not possible or
lawful to grant a mining right and delay the imposition of conditions to a later date by
a different decision maker. This is why section 23(6) envisages “ the terms and
conditions stated in the righ t”. Conditions may also be linked to the reasons for why

128 See first judgment [107].
129 High Court judgment above n 2 at para 112.
130 Id at para 118.10.
131 Supreme Court of Appeal judgment above n 1 at para 29.
THERON J
52
the right was granted in the first place, and might be crucial to ensuring that the
jurisdictional facts listed in section 23(1) are satisfied.

The High Court – and this Court – quite clearly are not in a position to impose [134]
the conditions envisaged in section 23(6), as each respectively lacks the requisite
expertise, knowledge and information. The High Court’s decision to grant the mining
right was materially influenced by its erroneous understanding that the imposition of
conditions can occur separately to the grant of the right. The High Court therefore
erred in finding it could substitute the Minister’s decision and grant a mining right and
its decision to substitute should, in any event, have been set aside as it was by the
Supreme Court of Appeal.

In addition, the most striking deficiency this Court is faced with cannot be [135]
cured through the imposition of conditions . This is the glaring acknowledgement by
Aquila that it does not know whether its applications overlap with Ziza’s. This entire
case has proceeded through the courts on the assumption that they do overlap but it
may very well not be so. The Department and the Minister are the ones best placed to
solve this conundrum.

It is for these reasons that I find that this Court is not in as good a position as [136]
the Minister to make the decision . I also cannot find that the outcome of the
application is a foregone conclusion. The additional factors to be considered are
whether the delay, bias or incompetence renders a substitution order just and
equitable. The delays in this matter have been significant and the incompetence of the
Department and its functionaries has been beyond the pale . This however is not
sufficient to offset the weightier factors that militate against substitution. 132 In order
to ameliorate the de lay suffered by Aquila, I would fashion an order which ensures
that, following remittal to the Minister, Aquila’s mining right application is processed
expeditiously and without undue delay.

132 Trencon above n 106 at para 47.


For the Applicants:


For the First to Fourth Respondent:


For the Fifth and Sixth Respondent:


A Cockrell SC and D Smit instructed
by Webber Wentzel

V Maleka SC and L Gumbi instructed
by the State Attorney, Pretoria

C Loxton SC and I Goodman instructed
by Edward Nathan Sonnenbergs