Magnificent Mile Trading 30 (Pty) Limited v Charmaine Celliers NO and Others (CCT157/18) [2019] ZACC 36; 2020 (1) BCLR 41 (CC); 2020 (4) SA 375 (CC) (9 October 2019)

CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 157/18

In the matter between:


MAGNIFICENT MILE TRADING 30 (PTY)
LIMITED Applicant

and

CHARMAINE CELLIERS N.O. First Respondent

MINISTER OF MINERAL RESOURCES Second Respondent

DIRECTOR-GENERAL: DEPARTMENT
OF MINERAL RESOURCES Third Respondent

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

ANNEKE DENISE LE ROUX N.O. Fifth Respondent



Neutral citation: Magnificent Mile Trading 30 (Pty) Limited v Charmaine Celliers
N.O. and Others [2019] ZACC 36

Coram: Cameron J, Froneman J, Jafta J, Khampepe J, Ledwaba AJ,
Madlanga J, Mhlantla J, Nicholls AJ and Theron J

Judgments: Madlanga J (majority): [1] to [67]
Jafta J (concurring): [68] to [110]

Heard on: 7 March 2019

Decided on: 9 October 2019




ORDER



On appeal from the Supreme Court of Appeal:
1. Leave to appeal is granted.
2. The appeal is dismissed.
3. The order of the Supreme Court of Appeal is set aside.
4. It is declared that the unused old order right that the late Mr Nicolaas
Petrus Gouws enjoyed during his lifetime is still valid in terms of item
8(3) of Schedule II to the Mineral and Petroleum Res ources
Development Act 28 of 2002 (Act).
5. It is declared that the application for a prospecting right lodged by Mr
Gouws on 29 April 2005 in terms of section 16(1) of the Act in respect
of portion 9 of the farm Driefontein 338JS in the district of Middel burg,
Mpumalanga is yet to be decided in terms of section 17 of the Act.
6. It is declared that the award of a prospecting right on 16 January 2006 to
Magnificent Mile Trading 30 (Pty) Ltd in terms of section 17(1) of the
Act in respect of portion 9 of the farm Driefontein 338JS in the district
of Middelburg, Mpumalanga is invalid.
7. The application referred to in paragraph 5 must be decided within 30
days from the date of this order.
8. The second, third and fourth respondents must pay the first r espondent’s
costs, including costs of two counsel, in this Court, the Supreme Court
of Appeal and High Court.






4




JUDGMENT




MADLANGA J ( Cameron J, Froneman J , Khampepe J, Ledwaba AJ, Mhlantla J,
Nicholls AJ, Theron J concurring):


Introduction
[1] Yet again the Mineral and Petroleum Resources Development Act 1 (MPRDA)
is before us for the adjudication of some aspects.2 The first aspect concern s the
transmissibility – after the death of the holder – of a right3 arising from the MPRDA .
The second concerns the applicability of the Oudekraal4 / Kirland 5 rule
(Oudekraal rule) to the award of a prospecting right contrary to the right enjoyed by
the holder of an unused old order right under item 8 of Schedule II to the MPRDA .6
This rule says an unlawful administr ative act exists in fact and may give rise to legal
consequences for as long as it has not been set aside.7


1 28 of 2002.
2 This Court has considered it in Agri South Africa v Minister for Minerals and Energy [2013] ZACC 9; 2013
(4) SA 1 (CC); 2013 (7) BCLR 727 (CC) (Agri SA); Aquila Steel (South Africa) (Pty) Ltd v Minister of Mineral
Resources [2018] ZACC 5; 2019 (3) SA 621 (CC); 2019 (4) BCLR 429 (CC) ( Aquila); Maledu v Itereleng
Bakgatla Mineral Resources (Pty) Ltd [2018] ZACC 41; 2019 (2) SA 1 (CC); 2019 (1) BCLR 53 (CC); and
Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd [2010] ZACC 26; 2011 (4) SA 113 (CC);
2011 (3) BCLR 229 (CC) (Bengwenyama).
3 I explain the nature of the right later.
4 Oudekraal Estates (Pty) Ltd v City of Cape Town [2004] ZASCA 48; 2004 (6) SA 222 (SCA).
5 MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd t/a Eye and Lazer Ins titute [2014] ZACC 6;
2014 (3) SA 481 (CC); 2014 (5) BCLR 547 (CC).
6 Here I am referring to the exclusive right to a decision, not the exclusive right to lodge an application. On the
distinction, see Aquila above n 2 at paras 39, 76, 78 and 84.
7 Oudekraal above n 4 at para 26; Kirland above n 5 at para 90.
MADLANGA J
5


[2] This matt er comes before us as an application for leave to appeal against a
judgment of the Supreme Court of Appeal that upheld an appeal from a judgment of
the High Court of South Africa, Gauteng Division, Pretoria (High Court).

Background
[3] I will not rehash the o bjects and impact of the MPRDA with regard to the
holding and exploitation of mineral resources in the Republic of South Africa. They
have been dealt with sufficiently by this Court 8 and the Supreme Court of Appeal. 9
Suffice it to pay attention to the MPRDA’s abolition of the sterilisation of mineral
rights which Mogoeng CJ described in Agri SA as “the entitlement not to sell or
exploit minerals”.10

[4] At the centre of this litigation are the provisions of item 8 of Schedule II to the
MPRDA. These provisions are applicable to unused old order rights. Item 1(ix) of
Schedule II defines an unused old order right as “any right, entitlement, permit or
licence listed in Table 3 to [Schedule II to the MPRDA] in respect of which no
prospecting or mi ning was being conducted immediately before [the MPRDA] took
effect”.11 At the time relevant to this matter , item 8 of Schedule II to the MPRDA
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. . .

8 Agri SA above n 2 at paras 25-31; Aquila above n 2 at para 4; and Bengwenyama above n 2 at para 29.
9 See, for example, Executrix of the Estate of the Late Gouws v Magnificent Mile Trading 30 (Pty) L td [2018]
ZASCA 91; 2018 JDR 0754 (SCA) (Supreme Court of Appeal judgment ) at paras 1, 2 and 21 -7, this being the
judgment that is the subject of the present application for leave to appeal.
10 Agri SA above n 2 at para 2.
11 Table 3 lists a number of exampl es of rights, entitlements, permits and licences that existed in terms of
various laws that were applicable before the MPRDA took effect.
MADLANGA J
6


(2) The holder of an unused old order rig ht has the exclusive right to apply for a
prospecting right or a mining 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).”

[5] The MPRDA took effect on 1 May 2004. T hat means the exclusive right under
item 8(2) of Schedule II to apply for a prospecting right or a mining right had to be
exercised at the latest by 30 April 2005. When the MPRDA came into operation, the
late Mr Nicolaas Petrus Gouws held an unused old order right in respect of a coal
deposit on his farm Driefontein, Middelburg, Mpumalanga . On 29 April 2005, a day
before the deadline, he made an application in terms of section 16(1) of the MPRDA
for the conversion of this right to a prospecting right. On 3 May 2005 , a mere three
days after the deadline , the applicant, Magnificent Mile Trading 30 (Pty) Ltd
(Magnificent Mile), applied in terms of the same section for a prospect ing right in
respect of the coal deposit on Mr Gouws’ farm.

[6] Here is h ow Magnificent Mile appears to have become aware of the coal
deposit. In her answering affidavit before the High Court , Mrs Josephine Terblanche
Gouws, the widow of Mr Gouws , explained that Mr Gouws had requested his son-in-
law to find a reputable company that would advise and assist him in appl ying for a
prospecting right. To this end , t he son -in-law approached a Mr Martin Pretorius, a
director of Magnificent Mile . The son-in-law shared a confidential geological report
Mr Gouws had obtained some years previously and which indicated that there was a
substantial coal deposit on Mr Gouws’ farm. In the end, instead of Magnificent Mile,
Mr Gouws engaged for purposes of professional assistance another company, Benicon
Earthworks and Mining Services (Pty) Ltd . It is quite remarkable that Magnificent
MADLANGA J
7


Mile was ready with and lodge d its own application within three days after the 30
April 2005 deadline.

[7] The Department of Mineral Resources accepted Mr Gouws’ application in
terms of section 16(2) of the MPRDA on 20 May 2005, a nd Magnificent Mile’s on
31 May 2005. Mr Gouws died on 7 November 2005 before a decision had been taken
on his application.

[8] From then onward s “a veritable comedy of official errors” 12 commenced. In
the High Court judgment Fabricius J says “[w]hatever could go wrong with the
applications . . . did go wrong”.13 On 13 December 2005 the Department purported to
grant Mr Gouws a prospecting right he had not applied for. This was in respect of the
farm Driefontein, Wakkerstroom, Mpumalanga instead of Driefontein, Middelburg,
Mpumalanga, the farm he owned before his death. On 16 January 2006 it granted
Magnificent Mile a prospecting right in respect of Mr Gouws’ farm.

[9] An attempt by Magnificent Mile to conduct prospecting operations did not
achieve much as the late Mr Gouws’ family resisted it. On 18 November 2009
Magnificent Mile applied for a mining right in terms of section 22(1) of the MPRDA.

[10] Next came efforts by the Department to u ndo the mess it had made. On
9 November 2010 it purported to amend the prospec ting right it had granted to
Mr Gouws by : changing “ Wakkerstroom” to “Witbank”;14 and substituting as the
grantee of this prospecting right “the Beneficiary, Late Estate Nic olaas Petrus
Gouws”. Instead of making the “amendment” applicable to the whole of Mr Gouws’

12 This is how Mrs Gouws in her answering affidavit before the High Court aptly described the deplorable
manner in which the Department handled the Gouws and Magnificent Mile applications.
13 High Court judgment at para 1.
14 The reference to “Witbank” instead of “Middelburg” is confusing, but nothing turns on this as it seems
reference was now meant to be to the correct far m. Although the farm is in the Middelburg district, it is said to
be close to Witbank.
MADLANGA J
8


farm, it made it in respect of only one of the two deeds of transfer under which Mr
Gouws owned the farm . This, despite the fact that the application by Mr Gouws w as
in respect of both deeds of transfer and thus the whole farm.

[11] Pursuant to an application in terms of section 11 of the MPRDA by Mrs Gouws
for a cession of the prospecting right, on 2 November 2011 the Department registered
the prospecting right in the name of Mrs Gouws in respect of the one portion of
Driefontein, Middelburg held under one of the two deeds of transfer . Subsequent to
this, Magnificent Mile appealed internally against the award of the prospecting right
to the Gouwses. Mrs Gouws opposed the appeal which is yet to be decided. On
10 April 2013 the Department refused Magnificent Mile’s application for a m ining
right on the basis that the right applied for by Magnificent Mile “comprise[d] of land
in respect of which rights for the same minerals ha[d] been granted in respect of an
application received prior to [Magnificent Mile’s] application in this regard” . This
was an obvious reference to the application by Mr Gouws for a prospecting right that
had been lodged before Magnificent Mile’s.

[12] Magnificent Mile brought a review application at the High Court against the
following people: the Minister of Mineral R esources; the Director -General:
Department of Mineral Resources ; the Deputy Director -General, Mineral Regulation:
Department of Mineral Resources; 15 Ms Anneke Denise Le Roux, the execut or of the
estate of Mr Gouws;16 and Mrs Gouws who has since been substituted by Ms
Charmaine Celliers, the executor of her est ate.17 Mrs Gouws is survived by her two
daughters who are her heirs. Only Mrs Gouws opposed the application. Magnificent
Mile’s original and amended notice of motion sought extensive relief. For present

15 Before us the three litigants are second to fourth respondents, respectively (government respondents or
Department).
16 She is the fifth respondent before us.
17 Mrs Gouws passed away on 12 December 2016, three days after the High Court gave reasons for its order that
was favourable to Magnificent Mile. She died soon after instructing her attorneys to apply for leave to appeal
against that order and judgment. Be fore us Ms Celliers, the execut or of the estate of Mrs Gouws, is the first
respondent.
MADLANGA J
9


purposes I highlight only that the amended notice of motion asked for : the setting
aside of the award of rights that had been made in favour of the Gouwses ;18 the refusal
of the ap plication for a prospecting right by Mr Gouws in respect of Driefontein,
Middelburg; the setting aside of the decision to refuse Magnificent Mile’s application
for a mining right; and the substitution for this refusal decision of a decision granting
the mining right.

[13] Magnificent Mile contended that the right that Mr Gouws enjoyed terminated
when he died with the result that no other right could have been granted to any other
person pursuant to the application for a prospecting right he had lodged. In othe r
words, Mr Gouws’ right was not transmissible to his sole heir, Mrs Gouws. It also
contended that the relief relating to the mining right flowed as a matter of course from
the prospecting right which it had already been granted.

[14] Mrs Gouws opposed the fi rst prong of the application on the basis that
Mr Gouws’ right was transmissible first to the executor and ultimately to her, the sole
heir. As for the rest, her opposition was that Magnificent Mile was precluded from
lodging an application for a prospecting right before Mr Gouws’ application had been
decided. She added that, as a result of this preclusion, Magnificent Mile was not
entitled to relief in respect of the application for a mining right. This was because the
application for a mining right was made “on the back of” the invalidly granted
prospecting right. She characterised this defence as a collateral challenge. By way of
a counter -application the founda tion of which was the same as the collateral or
defensive challenge, she sought a declarator. In the main, this counter-application was
to the effect that Magnificent Mile’s application for a prospecting right was void and
that Mr Gouws’ application for a prospecting right was valid and had either been
granted or was still pending.


18 I choose to use “Gouwses” because of how confusi ng it is to determine what the D epartment granted and to
whom.
MADLANGA J
10


[15] In parrying the defence and counter-application, Magnificent Mile called in aid
the provisions of section 7(1) of the Promotion of Administrative Justice Act 19
(PAJA). This section stipulates that a review of administrative action must be brought
without unreasonable delay and not later than 180 days after the date the person
concerned became, or might reasonably have been expected to have become, aware of
the administrative action. In terms of section 9(1) of PAJA the 180-day period may be
extended by agreement between the parties or by a court on application by the person
concerned. Magnificent Mile contended that – since the defence and counter -
application were effectively a PAJA review – they were hit by the 180-day time limit.
This was so because a period in excess of nine years had elapsed from the time
Magnificent Mile’s application for a prospecting right had been granted to the time of
lodgement of the counter -application, and Mrs Gouws had not applie d for an
extension of the time limit in terms of section 9(1).

[16] The government respondents have conveniently opted to remain supine
throughout, including before this Court.

[17] The High Court held in Magnificent Mile’s favour. It is this decision that the
Supreme Court of Appeal overturned.20 That is what has brought Magnificent Mile
knocking at our door. Magnificent Mile makes two principal arguments and submits
that success on any one of them means success for it in the proceedings. First, it
contends that the right that Mr Go uws enjoyed at the time of his death, which –
according to Magnificent Mile – was only a right that his application for a prospecting
right be decided, came to an end when he died; it was not transmissible. Second, it
argues that, as the relief prayed for by Mrs Gouws in her High Court counter -
application was sought long after the 180 -day time limit stipulated by section 7(1) of
PAJA had elapsed without a prayer for an extension of time in terms of section

19 3 of 2000.
20 The Supreme Court of Appeal reasoned, inter alia, that the counter -application by Mrs Gouws was
unnecessary. The relief she sought by means of that application followed as a matter of course in the process of
determining the relief sought by Magnificent Mile in the main application. It then upheld the appeal.
MADLANGA J
11


9(1)(b), its prospecting right cannot be assailed. Relatedly, in the face of that right
which continues to exist in fact, 21 no person may assert any right arising from the
application for a prospecting right that had been lodged by Mr Gouws.

[18] Only the first respondent, Ms Celliers , who is the execut or of Mrs Gouws’
estate, is opposing the present application.

Jurisdiction and leave to appeal
[19] Does the question of transmissibility satisfy the juri sdictional basis set by
section 167(3)(b)(ii) of the Constitution? 22 Although the principles governing the
transmissibility of rights upon the death of the holder are settled, 23 the colouring by
the MPRDA of the right at issue here introduces a uniqueness that renders the
question of transmissibility arguable.24 This is especially so because this issue
involves more than just the question of transmissibility. It also involves the
interpretation of some provisions of the MPRDA insofar as they bear relevance to
transmissibility. I do not think there is a ready ans wer to the question. In any event,
according to Sishen our constitutional jurisdiction is also engaged. In that matter Jafta
J said:


21 Compare Oudekraal above n 4 at para 29 and Kirland above n 5 at para 90.
22 Section 167(3)(b) provides:
“The Constitutional Court—
…
(b) may decide–
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court gra nts leave to appeal on the grounds that the
matter raises an arguable point of law of general public importance which ought to be
considered by that Court …”
23 See Badenhorst “Ownership of Minerals in Situ in South Africa: Australian Darning to the Rescue” (2010)
127 SALJ 646 at 651. Also see Agri SA above n 2 at para 10.
24 See Paulsen v Slip Knot Investments 777 (Pty) Ltd [2015] ZACC 5; 2015 (3) SA 479 (CC); 2015 (5) BCLR
509 (CC) at paras 21- 44.
MADLANGA J
12


“There can be no doubt that this case raises consti tutional 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.”25

[20] Less than a year ago this Court grappled wit h the interpretation of item 8 of
Schedule II to the MPRDA.26 At the heart of the transmissibility question is that same
item, but the context is different. That quite recently we dealt with item 8 and we are
now having a repeat of that is indication enou gh that disputes of this nature – even if
manifesting themselves in different forms – are not isolated incidents. That makes the
question of transmissibility – raised as it is in the context of item 8 – of general public
importance.27

[21] In the context of this case, the question of transmissibility is of some import,
particularly because it relates to the MPRDA, an important transformative piece of
legislation.28 Magnificent Mile’s argument has reasonable prospects of success. Thus
the matter ought to be considered by this Court.29

[22] All this engages our jurisdiction under section 167(3)(b)(ii) , as also our
constitutional jurisdiction under section 167(3)(b)(i).

[23] The second prong of Magnificent Mile’ s submissions concerns legal argument
pertaining to the revi ew of administrative action. That is a quintessential
constitutional issue. 30 These submissions are about the Oudekraal rule and the
collateral or – as I will call it – defensive challenge. With regard to the Oudekraal

25 Minister of Mineral Resources v Sishen Iron Ore Company (Pty) Ltd [2013] ZACC 45; 2014 (2) SA 603
(CC); 2014 (2) BCLR 212 (CC) at para 37; and this was affirmed in Aquila above n 2 at para 35.
26 Aquila above n 2 at para 5.
27 Paulsen above n 24 at paras 25-8.
28 See section 2(c) and (d) of the MPRDA.
29 Paulsen above n 24 at paras 29-31.
30 Aquila above n 2 at para 52.
MADLANGA J
13


rule, the question is whether it is applicable at all to the circumstances of this matter.
Magnificent Mile’s submissions have reasonable prospects of success and are of some
import.

[24] Leave to appeal must be granted on both principal arguments.

Transmissibility
[25] Cowen says that “it is a general rule, true of most legal systems, that legal
rights of a proprietary nature, that is to say rights which have a value, are normally
transmissible on death to heirs and legatees ”.31 Magnificent Mile has argued that the
right that Mr Gouws enjoyed at the time of his death , after he had lodged his
application for a prospecting right , was only a right to a decision. I disagree. His
right was far more than that an d it had value. To illustrate this , Ms Celliers’ argument
makes the following point. Ass ume that, for certain reasons, Mr Gouws opted not to
exploit a valuable coal deposit beneath the surface of their farm , “banking” it for
future use or for their children. Then came the MPRDA. Mr Gouws meticulously
took steps towards applying for a prospe cting right and, indeed, lodged an application
within the deadline set by the MPRDA. All things being equal, Mr Gouws would be
justified in expecting that he would be granted a prospecting right. Surely, concludes
Ms Celliers’ point, the new right would be of value to Mr Gouws and his family. I
agree.

[26] This is buttressed by Aquila. Cameron J held:

“During the one -year grac e period, holders of unused old order rights enjoyed the
same rights as bef ore the MPRDA came into force. In addition , they enjoye d
exclusivity to apply for new -order title. They had the sole right to apply for

31 Cowen “Vested and Contingent Rights” (1949) 66 SALJ 404 at 416.
MADLANGA J
14


prospecting or mining rights over the land over which they held unused old order
rights.”32 (Emphasis added.)

[27] The “in addition” shows that there are two different rights ; in addition to the
exclusive right “to apply for new -order title”, there is the old order right itself . This
right was a limited real right. 33 It went hand in hand with a statutory personal right to
acquire a new limited real right under the MPRDA . These f acets of the right existed
separately from the right that a holder of an unused old order right would then be
entitled to after lodging an application for a right under the MPRDA ; that is the right
to a decision.

[28] Agri SA says mineral rights held before th e MPRDA took effect “were in
practice and in law treated as assets that could be sold, leased or used as security.
They formed part of the holder’s estate and could be bequeathed to an heir.” 34 The
rights referred to here were obviously of much greater po tency and value than the
unused old order r ight retained under the MPRDA. But attenuated and short -lived
though the unused old order right may be, in many respects each of its manifestations
is similar to the right that preceded it and which is preserv ed under item 8 of Schedule
II. To that extent, it too is an asset of some importance and does have value.

[29] Did the unused old order right enjoyed by Mr Gouws suddenly evaporate once
he lodged an application for a prospecting right with the result that , as M agnificent
Mile contends, all that remained was a right to a decision? No. Aquila tells us that
“until that application is disposed of, either way, the old -order right ‘remains valid’

32 Aquila above n 2 at para 6.
33 Agri SA above n 2 at para 9; see also Badenhorst and Mostert “Revisiting the Transitional Arrangements of
the Mineral and Petroleum Resources Development Act 28 of 2002 and the Constitutional Property Clause: An
Analysis in Two Parts” (2003) 3 Stellenbosch Law Review 377 at 384-5 referred to in footnote 17 of Agri SA;
and Badenhorst “The Nature of New Order Prospecting Rights and Mining Rights: A Can of Worms?” (2017)
134 SALJ 361 at 368-9.
34 Agri SA above n 2 at para 10.
MADLANGA J
15


under item 8(3)”.35 And, as Ms Celliers argues, this right and what it may give rise
to36 are of value.

[30] I am satisfied that the right enjoyed by Mr Gouws at the time of his death
became an asset in his estate and was transmissible. But to whom? As this is not a
central issue before us, I deal with it briefly.

[31] The concept of universal succession , in terms of which an heir immediately
stepped into the shoes of the dece ased and took over the assets and liabilities of the
deceased,37 is no longer part of our law. 38 What happens instead is that immediately
after the grant of letters of executorship, the executor must take the deceased estate
into her or his custody or under her or his control .39 After the deceased’s death, an
heir acquires a vested right which entitles her or him to “payment, delive ry or transfer
of the property comprising the inheritance”. 40 This right is enforceable only after the
estate has become “distributable” 41 as envisaged in section 35(12) of the
Administration of Estates Act .42 Likewise, a legatee does not acquire ownership over

35 Aquila above n 2 at para 72.
36 It may give rise to a prospecting or mining right.
37 Joubert “Wills and Succession” in Law of South Africa 2 ed (2009) vol 31 (LAWSA) at para 209.
38 Id.
39 Section 26(1) of the Administration of Estates Act 66 of 1965.
40 LAWSA above n 37 at para 210.
41 This word is used in section 35(13) of the Administration of Estates Act.
42 In terms of section 35(12) an estate becomes distributable when a liquidation and distribution account has lain
open for inspection in accordance with section 35(4) read with subsection (5) “and —
(a) no objection has been lodged; or
(b) an objection has been lodg ed and the account has been amende d in accordance with the Master’ s
direction and has again lain open for inspection, if necessary, as provided in subsection (11), and no
application has been made to the Court within the period referred to in subsecti on (10) to set aside the
Master’s decision; or
(c) an objection has been lodged but withdrawn, or has not been sustained and no such application has
been made to the Court within the said period.”
Of course, an heir or legatee may receive nothing if, after payment of the estate’s liabilities, there are no assets
or if the estate is insolvent. See LAWSA above n 37 para 210.
MADLANGA J
16


the legacy on the deceased’s death. 43 She or he acquires a vested right which is
enforceable against the executor when the estate is distributable.44

[32] So, in terms of section 26(1) of the Administration of Estates Act , Mr Gouws’
transmissible old order right fell to be controlled by Ms Le Roux, the execut or of the
estate of Mr Gouws. Mrs Gouws , being the sole heir , thus had a vested right to take
over this right when Mr Gouws’ estate became distributable. I need not deal with
what, in fact, eventuall y became of this right insofar as the administration of Mr
Gouws’ estate is concerned as we do not have details of the exact stages of the
administration. And this is complicated by the interposition of Mrs Gouws’ death. If
not already resolved, all this is for resolution outside the confines of this litigation.

The Oudekraal rule and defensive challenge
[33] Ms Celliers opposes Magnificent Mile’s case on the basis of the defensive
challenge. Magnificent Mile persists in its High Court argument that the defensive
challenge is but a PAJA review. As such – continues the argument – it is hit by the
180- day time limit. This is so because a period in excess of nine years had elapsed
from the time Magnificent Mile’s application for a prospecting right was granted , and
Mrs Gouws did not apply for an extension of the time limit in terms of section 9(1) of
PAJA. It will soon become apparent when I discuss the Oudekraal rule that it is not
necessary to deal with this argument.

[34] Magnificent Mile argues that, as the defensive challenge has to fail, the
decision to grant it a prospecting right must stand. This must be so even assuming
that the grant was unla wful; it exists in fact and has legal consequ ences for as long as
it has not been set aside. This, of course, is invoking the Oudekraal rule. According
to Magnificent Mile, t he effect of the Oudekraal rule is that, for as long as the

43 LAWSA above n 37 at para 210.
44 Id.
MADLANGA J
17


Magnificent Mile prospecting right has not been set aside, an awa rd of a prospecting
right to the Gouwses will be an exercise in futility . That is so because Magnificent
Mile – as the holder of a prospecting right – has an exclusive right to apply for and be
granted a mining right in respect of the coal deposit in Driefontein, Middelburg.45

[35] Let me consider the question whether the Oudekraal rule is applicable to this
matter. An appropriate starting point is the English judgment in Smith46 which was
relied upon in Oudekraal. Briefly the matter concerned an appeal ag ainst a decision
that had quashed the appellant’s summons. The appellant issued summons against a
Rural District Council, the clerk of that Council and a certain government Ministry for
damages arising from the execution of a “compulsory purchase order” 47 that had
allegedly been procured, issued and confirmed wrongfully and in bad faith. The
summons was quashed on the bases that: paragraph 15 of the relevant part of the
applicable statute provided for circumscribed grounds on which a compulsory
purchase or der could be challenged; the grounds relied upon by the appellant fell
outside those circumscribed grounds; and paragraph 16 of the same part of the statute
disallowed all challenges to compulsory purchase orders falling outside of the grounds
set out in paragraph 15. In the House of Lords Lord Radcliffe said:

“At one time the [appellant’s] argument was shaped into the form of saying that an
order made in bad faith was in law a nullity and that consequently all references to
compulsory purchase orders in paragraphs 15 and 16 must be treated as references to
such orders only as had been made in good faith. But this argument is in reality a
play on the meaning of the word nullity. An order, even if not made in good faith, is
still an act capable of legal consequences. It bears no brand of invalidity upon its
forehead. Unless the necessary proceedings are taken at law to est ablish the cause of

45 Section 19(1)(b) of the MPRDA provides that the holder of a prospecting right has the exclusive right to apply
for and be granted a mining right in respect of the mineral and prospecting area in question.
46 Smith (Kathleen Rose) v East Elloe Rural DC [1956] UKHL 2 (Smith).
47 This appears to have been an expropriation.
MADLANGA J
18


invalidity and to get it quashed or otherwise upset it will remain as effective for its
ostensible purpose as the most impeccable of orders.”48

[36] He concluded that Parliament had taken away the entitlement to quash
compulsory purchase orders outside of paragraph 15 with the result that – even if
unlawful – these orders remained effective.

[37] As it’s often said, context is everything. In what context did this happen? That
is to be found quite early on in his speech. He said:

“The relief that the appellant seeks … depends wholly on her ability to establish that
[the] compulsory purchase orde r . . . was invalid. I do not wish to beg any question
by using the word ‘invalid’. I mean that she has to show that in the eyes of the law
this compulsory purchase order was not effective to confer upon the Rural District
Council the authority to enter upon her land, which they certainly would not have
possessed without the making of the order . It follows, therefore, that her action must
stand or fall by her ability to question this compulsory purchase order in the legal
proceedings.”49 (Emphasis added.)

[38] What we glean from this – and indeed from the earlier quotation – is that the
principle the case enunciates is not only about the continued existence of an unlawful
administrative act that has not been set aside , but also about the legal force of
consequences that the act ordinarily gives rise to. Put differently, once a compulsory
purchase order has been issued, a forced purchase of an individual’s immovable
property may take place validly. This, regardless of how unlawful the issuing of the
compulsory purchase order might have been. Crucially, without the compulsory
purchase order – valid or otherwise – no forced sale can take place. So, the forced
sale – which is a “consequent act” – owes its existence to the earlier administrative
act, the issuing of a compulsory purchase order.50

48 Smith above n 46 at p 17.
49 Id at p 15.
50 Compare Aquila above n 2 at para 101.
MADLANGA J
19



[39] A close look at Oudekraal yields similar results. There the approval by the
provincial Administrator of the establishment of Oudekraal Township was held to be
invalid. The reason was that the Administrator failed to take into account the
existence on the land in issue of graves and kramats 51 which were of religious
significance to the Islamic faith . T his was information that should have been taken
into account in the approval decision. 52 In addition the approval was “ ultra vires for
the reason that it permitted subdivisions and la nd use in criminal disregard of the
graves and kramats. It would be impossible to avoid desecration or violation if one
were to make a road over a grave site or to build over it.” 53 Howie P and N ugent JA
then held:

“[T]he question that arises is what consequences follow from the conclusion that the
Administrator acted unlawfully. Is the permission that was granted by the
Administrator simply to be disregarded as if it had never existed? In other words,
was the Cape Metropolitan Council entitled to disregard the Administrator’s approval
and all its consequences merely because it believed that they were invalid provided
that its belief was correct? In our view it was not. Until the Administrator’s approval
(and thus also the consequences of the approval) is set aside by a court in proceedings
for judicial review it exists in fact and it has legal consequences that cannot simply be
overlooked. The proper functioning of a modern state would be con siderably
compromised if all administrative acts could be given effect to or ignored depending
upon the view the subject takes of the validity of the act in question. No doubt it is
for this reason that our law has always recognized that even an unlawful
administrative act is capable of producing legally valid consequences for so long as
the unlawful act is not set aside.”54


51 “A kramat is the grave of somebody who, among adherents of the Islamic faith, is regarded as having
attained, through conspicuous piety, ‘an enlightened spiritual situation’. Such person having thus been a ‘frien d
of God’, the spirit of God is to be found at the site” (Oudekraal above n 4 at para 14).
52 Oudekraal above n 4 at para 25.
53 Id.
54 Id at para 26.
MADLANGA J
20


[40] Oudekraal as well is , first, about the continued existence of an unlawful
administrative act for as long as it has not been set aside by a court. Second, it too
does focus on acts that are consequent upon an initial unlawful administrative act; that
is acts whose validity – even if only for a while – depends on t he existence of the
initial act. Oudekraal continues:

“Central to [Forsyth’s] analysis is the distinction between what exists in law and what
exists in fact. Forsyth points out that while a void administrative act is not an act in
law, it is, and remains, an act in fact, and its mere f actual existence may provide the
foundation for the legal validity of later decisio ns or acts. In other words ‘. . . an
invalid administrative act may, notwithstanding its non -existence [in law], serve as
the basis for another perfectly valid decision. Its factual existence, rather than its
invalidity, is the cause of the subsequent act, but that act is valid since the legal
existence of the first act is not a precondition for the second.’

. . .

[T]he 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. If the validity of consequent acts is dependent on no
more than the factual existence of the initial act th en the consequent act will have
legal effect for so long as the initial act is not set aside by a competent court.”55

[41] In the instant matter the context is totally dif ferent. Mr Gouws held a n unused
old order right in terms of item 8(1) of Schedule II to the MPRDA the nature of which
was primarily a limited real right with the other facets mentioned above . That right
existed – as a matter of law – from 1 April 2004 to 30 April 2005. In terms of item
8(3) that right continued to exist – as a matter of law – after Mr Gouws had lodged an
application for a prospecting right . It was to endure until that application had been

55 Id at paras 29 and 31. For the work cited in the quote see Christopher Forsyth: “The Metaphysic of Nullity:
Invalidity, Conceptual Reasoning and the Rule of Law” in Christopher Forsyth and Ivan Hare Essays on Public
Law in Honour of Sir William Wade QC eds (Clarendon Press).
MADLANGA J
21


granted or refused. 56 That application was in respect of the whole of Driefontein,
Middelburg. As I explained, this farm comprised two p ortions, each of which had a
separate deed of transfer. We know that insofar as Mr Gouws’ application is
concerned, two purported grants were made. The first was in respect of Driefontein,
Wakkerstroom. The second was in respect of only one of the two p ortions of
Driefonten, Middelburg. None of these grants related to what Mr Gouws had applied
for. That must mean his application is yet to be decided. That in turn means Mr
Gouws’ unused old order right continues to exist. And it was extant when
Magnificent Mile applied for and was awarded a prospecting right. Based on Aquila
that award was invalid. There this Court held:

“Section 9 [of the MPRDA] read together with item 8(3) of Schedule II entails that an
application competing with one by the holder 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 with in
terms of the MPRDA or is refused. Until that happens, no competing application for
an MPRDA right may be processed.”57

[42] Plainly the validity of Mr Gouws’ right did not hinge on the Magnificent Mile
award. Thus this is unlike “consequent” administrative acts that owe their existence to
earlier unlawful administrative acts. Mr Gouws’ right did not owe its existence to the
unlawful award of a prospecting right to Magnificent Mile. It was a statutorily created
limited real right that existed anteriorly to this unlawful award. At the risk of
repetition, the existence of the Magnificent Mile award – albeit unlawful – was never
necessary for the existence of Mr Gouws’ right. To put it bluntly, the subsequent

56 As I have held, that right was transmissible upon Mr Gouws’ death.
57 Aquila above n 2 at para 78.
MADLANGA J
22


invalid Magnificent Mile award has no bearing whatsoever on t he existence and
validity of Mr Gouws’ right.

[43] To say the later unlawful Magnificent Mile award could effectively wipe out
the pre -existing limited real right would be turning the Oudekraal rule on its head.
Oudekraal says no more than that if you wan t to nullify, or even avert consequences
that owe, or would owe, their existence to an initial unlawful administrative act, that
initial act must be set aside. It is one thing to say – but for an unlawful administrative
act – something would never have come about and that , once it has come about, it
continues to exist for as long as the unlawful administrative act to which it owes its
existence has not been set aside. It is quite another to say that an unlawful
administrative act – through the simple facility of applying the Oudekraal rule – can
have the effect of obliterating a pre -existing right which does not owe its existence to
the unlawful administrative act . Indeed, Smith, Oudekraal, Kirland and all other
related cases58 do not suggest so.

[44] This must mean the right that was enjoyed by Mr Gouws which is transmissible
through the succession chain (including after the death of Mrs Gouws, his sole heir) is
still valid as decreed by item 8(3) of Schedule II to the MPRDA . As I have said, that
in turn means the Magnificent Mile award is in valid. In truth , the “defensive
challenge” instituted by Mrs Gouws was simply an as sertion of a pre -existing right; it
did not need to purport to be a review of the unlawful Magnificent Mile award. In any
event, even if Mrs Gouws is taken at her word as having defensively challenged the
Magnificent Mile award, my approach is not a validation of that challenge; it is simply
a declaration of what is . A defensive challenge would have been necessary if Mr
Gouws’ right could not continue to exist in the face of the unlawful Magnificent Mile
award. I have shown that that’s not the case here.

58 Department of Transport v Tasima (Pty) Ltd [2016] ZACC 39; 2017 (2) SA 622 (CC); 2017 (1) BCLR 1 (CC)
at paras 87 and 95; Merafong City Local Municipality v AngloGold Ashanti Ltd [2016] ZACC 35; 2017 (2) SA
211 (CC); 2017 (2) BCLR 182 (CC) at paras 43-4; and Aquila above n 2 at paras 91-102.
MADLANGA J
23


[45] As I have said, t he Oudekraal rule is not only about instances where there is a
consequent act whose existence depends on an earlier unlawful act. It applies to any
situation where – for whatever reason – an extant administrative act is being
disregarded without first being set aside. Kirland is one such instance. The purported
withdrawal of an approval w hich I explain shortly was not consequent upon the prior
approval. Does that make Kirland analogous or similar to the instant matter? No,
Kirland is different.

[46] The Superintendent -General of the Eastern Cape Department of Health
withdrew an approval that Kirland had already been granted to set up a private
hospital. This withdrawal was a desktop exercise with no court process. Kirland’s
challenge was directed at that purported wi thdrawal of approval and a decision of the
Eastern Cape MEC for Health to refuse an appeal against the withdrawal. So, the
approval that was later withdrawn was – and had to be – at the heart of the challenge.
There just could not be a withdrawal in the face of a standing approval. The
Oudekraal rule tells us that the approval – albeit plainly granted unlawfully 59 – had to
be set aside by a court.

[47] Likewise, Merafong is distinguishable. In its capacity as a water service
authority under the Water Service s Act 60 Merafong City Local Municipality
(Merafong) introduced a substantial increase in tariffs for the supply of water. Acting
in terms of section 8(4) of the Water Services Act, t he Minister of Water Affairs and
Forestry upheld an appeal by AngloGold Ashanti Limited against the increase. Shorn
of detail that is not necessary for our purposes, what happened next is that – with the
Minister’s decision still extant – Merafong notified AngloGold Ashanti that failure to

59 The Superintendent-General refused approval on the basis that there was an over -supply of private hospitals
in the area concerned. Before this decision could be communicated to Kirland, the Superintendent -General was
involved in a car accident and had to be away from work for a while. An Acting Superintendent -General –
acting under extreme and improper pressure from the MEC for Health – granted approval. This purported grant
is what was communicated to Kirland. It was on his return that the Superintend ent-General purported to
withdraw the “approval” instead of approaching court to have it set aside.
60 108 of 1997.
MADLANGA J
24


pay for water in accordance with Meraf ong’s new tariffs would result in the water
supply being cut off. There as well the Minister’s decision to uphold the appeal was –
and had to be – at the centre of the litigation that ensued: could the municipality go
ahead with its “decision” to cut off the water supply even though the Minister’s
decision had not been set aside? Yet again, based on the Oudekraal rule, the answer
was in the negative. Merafong succeeded only because the Court upheld its
entitlement to raise a defensive challenge. But the Court remitted the merits of that
challenge to the High Court.

[48] Contrasting these two cases with the instant matter, the effect of the declarator I
am proposing is twofold: (a) in law Magnificent Mile’s entitlement to a prospecting
right only comes into play after Mr Gouws’ application has been finalised; and (b)
Mr Gouws’ application must be dealt with on its merits, unaffected by the Magnificent
Mile application or its purported grant. Put differently, the Magnificent Mile
application d oes not feature at all in the consideration and decision of the Gouws
application. It is simply a non-issue.

[49] But for the concurring judgment penned by my colleague, Jafta J, I would be
ending here and proceeding to remedy. I must have some words in response.

The concurring judgment
[50] What appears to be at the heart of the concurring judgment’s concerns is what
the rule of law dictates. 61 The concurring judgment makes the point that it would be
at variance with the rule of law to enforce unlawful administrative action.62 It is true –
as the concurring judgment says – that the Magnificent Mile award, which was made
contrary to statutory prescripts, is inconsistent with the principle of legality, an
incident of the rule of law. 63 It is also true that the supr emacy clause of our

61 See, for example, concurring judgment at [80].
62 Id.
63 Id.
MADLANGA J
25


Constitution64 decrees that “[t]his Constitution is the supreme law of the Republic; law
or conduct inconsistent with it is invalid, and the obligations imposed by it must be
fulfilled”. Crucially though, the Oudekraal rule itself is informed by the rule of law.65
Imagine the spectre of organs of state and private persons ignoring or giving heed to
administrative action based on their view of its validity. The administrative and legal
chaos that would ensue from that state of affairs is unthinkable. Indeed, chaos and not
law would rule.

[51] It is for this reason that the rule of law does not countenance this. The
Oudekraal rule averts the chaos by saying an unlawful administrative act exists in fact
and may give rise to legal consequences for as long as it has not been set aside. 66 The
operative words are that it exists “ in fact”. This does not seek to confer legal validity
to the unlawful administrative act. Rather, it prevents self-help and guarantees orderly
governance and administrat ion. That this is about the rule of law is made plain by
Kirland:

“The fundamental notion – that official conduct that is vulnerable to challenge may
have legal consequences and may not be ignored until properly set aside – springs
deeply from the rule of law. The courts alone, and not public officials, are the arbiters
of legality. As Khampepe J stated in Welkom, ‘[t]he rule of law does not permit an
organ of state to reach what may turn out to be a correct outcome by any means. On
the contrary, the rule of law obliges an organ of state to use the correct legal process.’
For a public official to ignore irregular administrative action on the basis that it is a
nullity amounts to self-help.”67 (Emphasis added.)


64 Section 2 of the Constitution.
65 Kirland above n 5 at para 103.
66 Oudekraal above n 4 at para 26 and Kirland above n 5 at para 90.
67 Kirland at para 103, quoting Head of Department, Department of Education, Free State Province v Welkom
High School; Head of Department, Department of Education, Free State Province v Harmony High Schoo l
[2013] ZACC 25; 2014 (2) SA 228 (CC); 2013 (9) BCLR 989 (CC) at para 86. See also Aquila above n 2 at
para 96.
MADLANGA J
26


[52] The concern of the concurring judgment tha t the effect of the Oudekraal rule is
to enforce constitutionally invalid administrative action is ameliorated by the fact that
the action is open to challenge through the court process. Until a court process has
taken place, the rule of law must be maint ained. The alternative of a free -for-all is
simply not viable.

[53] I read the concurring judgment to say the rule that an unlawful administrative
act exists in fact and may give rise to legal consequences for as long as it has not been
set aside needs to be qualified. It accepts the necessity of the rule. It says:

“[W]e must acknowledge the principle that, just like laws, administrative actions are
presumed to be valid until declared otherwise by a court of law. What this means is
that any person who disr egards such law or action does so at his or her own peril
should it turn out that the law or action is valid.”68

[54] But, says the concurring judgment, this presumption – like others – is
rebuttable;69 and “[i]n a case like the present where facts establish tha t the
administrative action in question was illegal, it must be taken that the presumption has
been rebutted”. 70 It continues and says “[t]here can be no justification for treating
what has been proven to be invalid as valid”.71 (Emphasis added) Although the focus
of the concurring judgment is Kirland, I do not see how the view of that judgment in
this regard cannot apply to Oudekraal as well. For that reason and to avoid confusion,
I will continue to refer to the Oudekraal rule.

[55] I understand the qualification proposed by the concurring judgment to be that
the rebuttal of the presumption may take place without any court process. My
immediate practical, if not legal, difficulties are manifold. Who rebuts the

68 Concurring judgment at [83].
69 Id.
70 Id.
71 Id at [85].
MADLANGA J
27


presumption? Who – outside of a court process – determines that the invalidity of the
administrative action has been proven and that, therefore, the presumption has been
rebutted; and how do they do that? What if there is disagreement on whether the
illegality has been proven? The approach of the concurring judgment has the potential
of taking us to the very realm of uncertainty from which the Oudekraal rule removes
us. It takes us to the real possibility of a free -for-all. Kirland tells us that ignoring
irregular administrative action on the basis that it is a nullity “invites a vortex of
uncertainty, unpredictability and irrationality. The clarity and certainty of
governmental conduct, on which we all rely in organising our lives, would be
imperilled if irregular or invalid administra tive acts could be ignored because officials
consider them invalid.”72

[56] An argument analogous to the qualification proposed by the concurring
judgment was rejected in Merafong.73 That argument is captured thus:

“Merafong argued it should be permitted to raise a reactive challenge to AngloGold’s
attempt to enforce the Minister’s ruling because there is a fundamental distinction
between decisions that fall within the scope of powers with which a public official is
clothed, but are merely wrongly taken, and those that are palpably and obviously
beyond the powers of the d ecision maker. In the latter case, where a decision ‘lacks
the facial imprimatur of lawfulness’, a person subject to the decision is entitled to
ignore it until, as a matter of process, that decision is sought to be enforced against it.
At that point the nullity of the decision may be raised as a defence. Counsel
contended that decisions of this nature ‘on their face fall beyond the ostensible scope
of the p owers conferred upon a public officer [and] have no validity and should be
treated as such even though they have yet to be set aside on review’.”74

[57] The Court held:


72 Kirland above n 5 at para 103.
73 Merafong above n 58.
74 Id at para 50.
MADLANGA J
28


“If we were to sustain Merafong’s argument that it was entitled to ignore the
Minister’s decision until it was sought to be enforced, this must extend to all cases of
patent invalidity. This would suggest that an official may ignore a decision, taken
under statutory power ( intra vires), that is tainted by patently improper influence or
corruption. But that is precisely what happened in Kirland – and the self -help
argument was not countenanced. What is more, not only would what is or is not
‘patently unlawful’ be decided outside the courts, but there would be no rules on who
gets to decide and how. If failure to review a disputed decision is defensible on the
basis that the decision was considered patently unlawful, the rule of law immediately
suffers. So the argument is not tenable.”75

[58] In similar vein Aquila says “legal remedies are the provi nce of the courts, and
the courts alone”. 76 And “no official is entitled to pronounce a decision a nullity
without going to court”.77 Of course, this applies to private persons as well.

[59] The concurring judgment observes that “it is absurd to propose here t hat
Mr Gouws should be denied the right to convert his old order mineral right on account
of an illegal prospecting right awarded to Magnificent Mile”. For the reasons that I
give, the Magnificent Mile award cannot result in the Gouwses being denied their
rights. So, what the concurring judgment says does not arise. There is simply no
basis for denying the prior and valid right of the Gouwses which does not owe its
existence to the later unlawful Magnificent Mile award. And the declarator puts
everything beyond question.

[60] Lastly, apropos a statement in Kirland that says “invalid administrative action
may not simply be ignored, but may be valid and effectual”, 78 the concurring
judgment says this defies logic. Although Kirland does say this, when viewed in the
context of the judgment as a whole, Kirland says no more than that the invalid

75 Id at para 54.
76 Aquila above n 2 at para 96.
77 Id.
78 Kirland above n 5 at para 101.
MADLANGA J
29


administrative act must be treated as valid by the deci sion-maker and affected parties
until it is reviewed in appropriate court proceedings. Treating the invalid act as valid
does not invest it with legal validity.

[61] What I have said does not affect instances where a defensive challenge may be
available.
Remedy
[62] What I have said about the validity and invalidity of the parties’ competing
claims is not determin ative of the remedy that we must grant. What is are justice and
equities in accordance with section 172(1)(b) of the Constitution. 79 In the
circumstances of this case , what could possibly displace the legal entitlement of the
Gouwses would be the extent t o which Magnificent Mile acted on the unlawful award
to it of a prospecting right. On its own say so, although it did drill some holes in the
process of prospecting, its endeavours were greatly hampered by the Gouwses’
resistance to prospecting activity. Indeed, the Supreme Court of Appeal held that
prospecting was limited. Before us , Magnificent Mile takes issue with this factual
finding. On the authority of Makate there is no basis for us to upset this finding. 80
That leaves us with little to tilt justice and equity in Magnificent Miles’ favour. It is
just and equitable to uphold the continued existence of the right that vested in Mr
Gouws and to make a declarator accordingly.

[63] To put everything beyond question , it is necessary to make two more
declarators. The first is that the application by Mr Gouws for a pr ospecting right is
yet to be decided. The second is that the Magnificent Mile award is invalid.

79 Section 172(1)(b) provides:
“When deciding a constitutional matter within its power, a court—
. . .
(b) may make any order that is just and equitable . . .”
80 Makate v Vodacom (Pty) Ltd [2016] ZACC 13; 2016 (4) SA 121 (CC); 2016 (6) BCLR 709 (CC) at para 37.
MADLANGA J
30


[64] Consequently, the appeal must fail. In so holding I must clarify that this is not
an acceptance of the declarator by the Supreme Court of Appeal that Magnificent Mile
did not have a right or competency to apply for any right in terms of the MPRDA in
respect of Driefontein, Middelburg. Aquila has clarified that , beyond the exclusivity
period that ended on 30 April 2005 ,81 nothing precluded the lodgement of competi ng
applications. However, in terms of the precedence laid down by section 9 of the
MPRDA, competing applications would queue behind an application timeously
lodged by the holder of an old order right.82

Costs
[65] After the hearing, directions were issued calling upon the government
respondents to show cause why – despite their non -participation in the litigation –
they should not bear the costs. Without doubt the root cause of the litigation that the
parties found themselves embroiled in is the departmental bungling detailed above. In
that context, the course adopted by Magnificent Mile is understandable. It seems to
me it would be unjust for Mag nificent Mile to be mulcted in costs whilst the
government respondents have now conveniently disappeared.

[66] Although costs awards are purely discretionary, the Supreme Court of Appeal
does not appear to have applied its mind to the considerations dealt with in the
preceding paragraph. Its costs order against Magnificent Mile, which is not motivated
at all, appears to have followed the general rule that the losing party pays the other
side’s costs. To m y mind, the considerations I have dealt with are crucial. The
Supreme Court of Appeal ought to have grappled with them. Therefore, this Court is
at large to exercise its own discretion on the question of costs. And it comes to the
conclusion that the government respondents must bear the first re spondent’s costs,
including costs of two counsel, in all three Courts.

81 This is in terms of item 8(2) read with (1) of Schedule II to the MPRDA.
82 Aquila above n 2 at para 78.
MADLANGA J
31



Order
[67] The following order is made:
1. Leave to appeal is granted.
2. The appeal is dismissed.
3. The order of the Supreme Court of Appeal is set aside.
4. It is declared that t he unused old order right that the late Mr Nicolaas
Petrus Gouws enjoyed during his lifetime is still valid in terms of item
8(3) of Schedule II to the Mineral and Petroleum Resources
Development Act 28 of 2002 (Act).
5. It is declared that t he application for a prospecting right lodged by Mr
Gouws on 29 April 2005 in terms of section 1 6(1) of the Act in respect
of portion 9 of the farm Driefontein 338JS in the district of Middelburg,
Mpumalanga is yet to be decided in terms of section 17 of the Act.
6. It is declared that the award of a prospecting right on 16 January 2006 to
Magnificent Mile Trading 30 (Pty) Ltd in terms of section 17(1) of the
Act in respect of portion 9 of the farm Driefontein 338JS in the district
of Middelburg, Mpumalanga is invalid.
7. The application referred to in paragraph 5 must be decided within 30
days from the date of this order.
8. The second, third and fourth respondents must pay the first re spondent’s
costs, including costs of two counsel, in this Court, the Supre me Court
of Appeal and High Court.



JAFTA J:

Introduction
[68] The question whether a public official is bound to give effect to an unlawful
administrative decision if the decision is not set aside in appropriate review
JAFTA J
32


proceedings lies at the heart of this matter. The answer to this requires us to clarify
the decision of this court in Kirland.83 This decision has been construed by various
courts to mean that an invalid administrative action remains in force until set aside in
a formal review application.84

[69] In Swart85 the majority in this Court stated:

“[The Master’s decision] must remain in force until such time as a proper application
for review has been brought. This would be in line with the well -established
principle that until a court is appropriately approached and an allegedly unlawful
exercise of public power is adjudicated upon it has binding effect merely because of
its factual existence.”86

[70] Apart from arguing that Mr Gouws’ old order right was not transmitted into his
estate, Magnificent Mile contended that it was granted a prospecting right on the
relevant property before any rights were issued to Mr Gouws or his estate. That
prospecting right, it submitted, conferred on it an exclusive right to apply for a mining
right under section 19(1)(b) of the MPRDA.87

[71] When it was pointed out at the hearing that this argument proceeds from an
incorrect assumption that the prospecting right was lawfully granted when it was in
fact issued unlawfully because whilst Mr Gouws’ application for converting the old

83 Kirland above n 5.
84 City Capital SA Property Holdings Ltd v Chavonnes Badenhorst St Clair Cooper [2017] ZASCA 177; 2018
(4) SA 71 (SCA) ; Serengeti Rise Industries (Pty) Ltd v Aboobaker N .O. [2017] ZASCA 79 ; 2017 (6) S A 581
(SCA); South African Local Authorities Pension Fund v Msunduzi Municipality [2015] ZASCA 172; 2016 (4)
SA 403 (SCA) at para 35; and Democratic Alliance v Minister of International Relations and Co -operation
2018 (6) SA 109 (GP) at para 41.
85 Swart v Starbuck [2017] ZACC 23; 2017 (5) SA 370 (CC); 2017 (10) BCLR 1325 (CC).
86 Id at para 37. The following cases are cited as authority for this proposition: Tasima above n 58 at para 147;
Merafong above n 58 at para 42; and Kirland above n 5 at paras 101-3.
87 Section 19(1)(b) of the MPRDA provides:
“[S]ubject to subsection (2), the exclusive right to apply for and be granted a mining right in
respect of the mineral and prospecting area in question”.
JAFTA J
33


order right was pending, it was not legal for the relevant fun ctionary to grant
Magnificent Mile’s application for a prospecting right, a new argument was advanced.
Relying on Kirland and other cases that followed it, it was submitted that for as long
as the prospecting right issued to Magnificent Mile is not set as ide in appropriate
review proceedings it remains in force and that Magnificent Mile is entitled to be
granted a mining right, based on that prospecting right. It is this argument that makes
it necessary for us to reconsider Kirland.

[72] I have had the benefi t of reading the judgment prepared by my colleague
Madlanga J (first judgment). I agree that the old order right in respect of which
Mr Gouws applied for conversion was transmitted into his estate upon his death. I
also embrace the order prepared in the first judgment. However, I hold the view that it
is not enough to address the argument advanced by Magnificent Mile on the
enforcement of the invalid prospecting right by distinguishing this matter from
Kirland.

[73] But I agree that Oudekraal88 is not on poin t, for reasons comprehensively set
out in the first judgment. I embrace its analysis of Oudekraal as it is in line with what
the minority said in Merafong.89

[74] For a better understanding of the contention that even if the prospecting right
was unlawfully i ssued it is enforceable until set aside by a court in review
proceedings, it is necessary to recapitulate the facts. While Mr Gouws’ application for
conversion was pending, Magnificent Mile applied for and was granted a prospecting
right in respect of the same farm that was the subject matter of Mr Gouws’
application. This means that two applications were received by the relevant
functionary for the granting of rights in respect of one property.


88 Oudekraal above n 4.
89 Merafong above n 58 at paras 119-127.
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34


[75] In terms of item 8(1) of Schedule II to the MPRDA, within t he first year of its
coming into force, the MPRDA prohibited the functionary from accepting an
application from Magnificent Mile or any other applicant. So, the first year was a
period of exclusivity for Mr Gouws to convert his old order right. 90 Beyond t hat
period, the functionary could accept other applications, but was precluded from
determining them before deciding the earlier application by Mr Gouws lodged within
the period of exclusivity. 91 Other applications would have to fall in line after that of
Mr Gouws for determination after his had been decided. 92 Magnificent Mile’s
application was lodged after the expiry of the exclusivity period. But it could be
decided only after Mr Gouws’ had been determined. In error the functionary
disregarded this prescribed order of finalising applications and awarded a prospecting
right to Magnificent Mile before Mr Gouws’ application had been decided. This, of
course, was in contravention of the relevant statutory provisions. Consequently this
prospecting right was unlawfully granted.

[76] The question that arises is whether, despite the unlawfulness, the prospecting
right is enforceable for as long as it is not set aside in appropriate proceedings. The
Constitution is a good point from which to begin this inquiry. S ection 33 guarantees
everyone the “right to administrative action that is lawful, reasonable and procedurally
fair.”93 Significantly this provision imposes a duty on the state to give effect to this
right.94

[77] Upon the lodgement of the application to convert , the rights guaranteed by
section 33 were activated and the relevant functionary was under a duty to afford the
Gouwses an administrative action that is lawful, reasonable and procedurally fair.

90 See how this Court’s judgment in Aquila above n 2 dealt with the exclusivity period at paras 67-72 and 75.
91 Id at paras 75-79.
92 Id.
93 Section 33(1) of the Constitution.
94 Section 33(3)(b) of the Constitution.
JAFTA J
35


This obligation was triggered regardless of whether there w as an existing decision or
not.

[78] The issue is whether the relevant functionary was prohibited from granting the
conversion asked on account of the unlawfully granted prospecting right to
Magnificent Mile. Relying on the proposition that an invalid adminis trative action is
binding and enforceable until set aside, Magnificent Mile contended that the
functionary in question was not permitted to grant any rights to the Gouwses. Instead
he or she was bound to issue a mining right to Magnificent Mile.

[79] The prop osition invoked by Magnificent Mile was formulated by the
High Court in Merafong in these words:

“The Municipality has not in its papers sought to review or overturn the Minister’s
decision and thus based on the Oudekraal principle the Minister’s decision stands
until set aside by a court of law. The decision is therefore binding and enforceable
and the municipality should abide by it.”95

[80] This proposition is fundamentally flawed and here is why. An illegal
administrative action like the prospecting right awarded to Magnificent Mile is
inconsistent with the principle of legality which is an incident of the rule of law that
forms part of the Constitution and therefore cannot be enforceable. In our law an
invalid administra tive action does not exist in the eyes of the law and as a result
cannot be enforced. Therefore the law cannot enforce an action whose existence it
does not recognise.

[81] Here there can be no denying that the prospecting right held by
Magnificent Mile does not exist in law. It merely exists in fact as it has not been set
aside by a court of law. Since an administrative action derives its force from its

95 Merafong above n 58 at para 112.
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36


validity, that prospecting right cannot be binding. 96 An invalid administrative action
is unenforceable and not binding. This is because the Constitution says so.
[82] Affordable Medicines Trust 97 reminds us that conduct which is inconsistent
with the Constitution is invalid:

“Our constitutional democracy is founded on, among other values, the ‘[s]upremacy
of the constitution and the rule of law.’ The very next provision of the Constitution
declares that the ‘Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid’. And to give effect to the supremacy of the
Constitution, courts ‘must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency’. This commitment to the
supremacy of the Constitution and the rule of law means that the exercise of all public
power is now subject to constitutional control.

The exercise of public power must therefore comply with the Constitution, which is
the supreme law, and the doctrine of legality, which is part of that law. The doctrine
of legality, which is an incident of the rule of law, is one of the constitutional controls
through which the exercise of public power is regulated by the Constitution. It entails
that both the legislature and the executive ‘are constrained by the principle that they
may exercise no power and perfo rm no function beyond that conferred upon them by
law’. In this sense the Constitution entrenches the principle of legality and provides
the foundation for the control of public power.”98

[83] However, we must acknowledge the principle that, just like laws,
administrative actions are presumed to be valid until declared otherwise by a court of
law. What this means is that any person who disregards such law or action does so at
his or her own peril should it turn out that the law or action is valid. 99 But the
presumption like all presumptions is rebuttable. In a case like the present where facts

96 Id at para 107 and see also Msunduzi Municipality above n 84 at para 34.
97 Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529
(CC).
98 Id at paras 48-9.
99 Ferreira v Levin N.O.; Vryenhoek v Powell N.O. [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1
at paras 27-8.
JAFTA J
37


establish that the administrative action in question was illegal, it must be taken that the
presumption has been rebutted.

[84] Where the presumption is rebutted, it is not competent for a court to insist that
an illegal action be followed only on the basis that the action concerned has not been
set aside in appropriate review proceedings. The fact that a court may decline to set
aside the illegal action in the absence of a formal application does not mean that it is
valid and enforceable. What is illegal remains invalid and does not exist in law. That
it exists at the level of fact does not mean that it may be enforced in law.

[85] The proposition that “administrative decision s must be treated as valid until set
aside, even if actually invalid” 100 does not reflect the true position in our law. There
can be no justification for treating what has been proven to be invalid as valid.
Treating invalid administrative actions as valid is nothing else but a perversion of the
law. It would mean that administrative action that is not recognised by the law is
treated as if it is recognised. Jurisprudentially, it is absurd to propose that here Mr
Gouws should be denied the right to conver t his old order mineral right on account of
an illegal prospecting right awarded to Magnificent Mile.

The Kirland principle
[86] The statement from Kirland which has given birth to the proposition that an
invalid administrative action is enforceable until set aside on review is the following:

“The essential basis of Oudekraal was that invalid administrative action may not
simply be ignored, but may be valid and effectual, and may continue to have legal
consequences, until set aside by proper process.”101


100 Tasima (Pty) Ltd v Department of Transport [2015] ZASCA 200; 2016 JDR 1370 (SCA) at para 25.
101 Kirland above n 5 at para 101.
JAFTA J
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[87] This statement was based on paragraph 26 of Oudekraal which is quoted as
expressing the principle. Paragraph 26 of Oudekraal states:

“For those reasons it is clear, in our view, that the Administrator’s permission was
unlawful and invalid at the outset. . . . But the question that arises is what
consequences follow from the conclusion that the Administrator acted unlawfully. Is
the permission that was granted by the Administrator simply to be disregarded as if it
had never existed? In other words, was the C ape Metropolitan Council entitled to
disregard the Administrator’s approval and all its consequences merely because it
believed that they were invalid provided that its belief was correct? In our view, it
was not. Until the Administrator’s approval (and thus also the consequences of the
approval) is set aside by a court in proceedings for judicial review it exists in fact and
it has legal consequences that cannot simply be overlooked. The proper functioning
of a modern State would be considerably compromised if all administrative acts could
be given effect to or ignored depending upon the view the subject takes of the validity
of the act in question. No doubt it is for this reason that our law has always
recognised that even an unlawful administrative ac t is capable of producing legally
valid consequences for so long as the unlawful act is not set aside.”102

[88] A careful reading of paragraph 26 reveals that the statement made in Kirland is
not an accurate reflection of what was stated in Oudekraal. Read in the proper context
as set out in the first judgment here, what Oudekraal tells us is that in the case of
consequent actions, an invalid earlier action may give rise to a valid consequent
action. Therefore, unless set aside by a court in review proceedings, the earlier invalid
action may not simply be overlooked by public officials.

[89] The inaccuracy in Kirland’s statement is to the effect that an invalid
administrative action “may be valid and effectual”. To say an invalid action may have
legal consequences does not mean that the action itself has suddenly become valid.
It remains invalid but since it continues to exist at the level of fact, the invalid action
may give rise to legal consequences in circumstances like those identified in

102 Oudekraal above n 4 at para 26.
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39


Oudekraal. In that event it is the consequences that become legal and valid, not the
administrative action which is the source of those consequences. Indeed to say an
invalid action remains valid defies logic.

[90] But the statement in Kirland must be read together with what was said in
paragraph 106 which states:

“In summary: having failed to counter -apply during these proceedings , the
Department must bring a review application to challenge the approval granted to
Kirland, which remains valid until set aside. In those proceedings, the Department
will no doubt explain its dilly -dallying by accounting for the long months before it
acted. As respondent, Kirland will in turn be entitled to defend the decision, whether
on the ground of its validity, or on the ground that it should not be set aside, even if it
is invalid.”103

[91] In that context it becomes apparent that the Court was address ing a different
issue. The proposition that the approval remains valid until set aside was affirming
the presumption that an administrative action is taken to be valid until set aside. This
does not mean where, as in Oudekraal and here, the unlawfulness of the
administrative action in question has been established to the satisfaction of the court,
the presumption continues to operate in favour of validity. Proof of invalidity
terminates the force of the presumption.

[92] To hold otherwise would mean that her e the unlawful prospecting right granted
to Magnificent Mile must be treated as valid until it is set aside. This in turn would
mean that at the time Magnificent Mile submitted its application for a mining right,
the relevant functionary should have treat ed that application, based as it was on an
unlawful act, as giving Magnificent Mile an exclusive right to apply for a mining right
under the MPRDA. This would have been impermissible because the mining right

103 Kirland above n 5 at para 106.
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40


was not consequent to the prospecting right in the sense envisaged in Oudekraal. The
mining right does not depend on the prospecting right for its validity.

[93] Moreover, on its own, the unlawful prospecting right is simply unenforceable,
regardless of the point that it exists at the level of fact. This is because as an invalid
action, the prospecting right does not exist in law. Consequently the law cannot
facilitate enforcement of an action whose existence it does not recognise. In addition,
the principle laid down in Kirland to the effect that publi c officials may not ignore
administrative actions which are considered invalid does no more than placing a duty
on such officials to approach courts to have the actions in question set aside. It does
not mean that if these officials fail to institute proc eedings, the relevant actions
become enforceable even if it is shown that they were invalid. At best those actions
are presumed to be valid until proved otherwise.

[94] Therefore, reliance placed on Kirland here for the proposition that the
prospecting right that was allocated to Magnificent Mile remains valid and binding
until set aside, is misplaced. The true legal position is that since the prospecting right
was unlawful, it could not be enforced.

[95] Merafong too does not help Magnificent Mile’s cause, becau se this Court in
that matter must be taken to have affirmed the presumption in favour of validity and
nothing more. This is apparent from the following statement:

“The import of Oudekraal and Kirland was that government cannot simply ignore an
apparently binding ruling or decision on the basis that it is invalid. The validity of the
decision has to be tested in appropriate proceedings. And the sole power to
pronounce that the decision is defective, and therefore invalid, lies with the courts.
Government itself has no authority to invalidate or ignore the decision. It remains
legally effective until properly set aside.”104

104 Merafong above n 58 at para 41.
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41


[96] Notably, Merafong recognised a simple reality that the presumption of validity
may not be triggered in some administrative actions. W here the presumption is not in
operation, an invalid action is treated as such despite the fact that it is not set aside by
a court. On this issue Merafong informs us:

“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 that, unless they bring court proceedings to
challenge an administ rative decision, public authorities are obliged to accept it as
valid. And neither imposed an absolute duty of proactivity on public authorities. It
all depends on the circumstances.”105

[97] The fact that the statement refers both to Oudekraal and Kirland illustrates
beyond doubt that it is not restricted to matters where a collateral challenge has been
raised. This is so because in Kirland there was no collateral challenge to the validity
of the approval and yet Merafong tells us that Kirland too “recognised 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”.

[98] Of course the conclusion that the prospecting right here is not enforceable does
not mean that an illegal decision may never be enforced. Exercising its just and
equitable remedial powers, a court may order that an invalid decision shall continue to
operate until the defect is remedied by a competent authority. This is normally
achieved by suspending the declaration of invalidity which is usually done in order to
avoid an injustice or serious disruption in the administration of government. In
Allpay 2 this Court held:

105 Id at para 44.
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42



“Section 172(1)(b)(ii) [of the Constitution] provides that a court may, using its just
and equitable remedial powers, make an order ‘suspending the invalidity for any
period and on any conditions, to allow the competent authority to correct the defect’.
So this Court, under constitutional warrant, may suspend the declaration of invalidity
of the contract until any new payment process is operational. During the period of
suspension the contract remains operational and Cash Paymaster stays b ound to its
contractual and constitutional obligations. The continued operation of these
contractual obligations thus finds its source in this Court’s powers under
section 172(1)(b)(ii). The C ourt’s sanction will give any possible future breach by
Cash Paymaster of these obligations a dimension beyond mere breach of contract.”106

[99] But the present is not such a case. There are no reasons compelling that the
illegal prospecting right be treated as if it was valid. To do so would not only be
inconsistent wit h the Constitution but would also result in unfairness and injustice.
The just and equitable remedial power is exercised sparingly to preserve and keep in
operation an otherwise invalid conduct. This is done to avoid a greater harm which
may result in other serious breaches of the Constitution.107

The declarator
[100] What remains for consideration is the propriety of the declaration that the
prospecting right awarded to Magnificent Mile is invalid, without deciding the
counter- application brought by Mrs Gouws . Having held that a collateral challenge
was not available to Mrs Gouws and that her counter -application could not be
entertained in view of statutory time limits, the Supreme Court of Appeal held:


106 Allpay Consolidated Investmen t Holdings (Pty) Limited v Chief Executive Officer, South African Social
Security Agency [2014] ZACC 12; 2014 (4) SA 179 (CC); 2014 (6) BCLR 641 (CC) (Allpay 2) at para 63.
107 Electoral Commission v Mhlope [2016] ZACC 15; 2016 (5) SA 1 (CC) ; 2016 (8) BCLR 987 (CC) at paras
132-4 and 137.
JAFTA J
43


“The relief in the counter -application was probably sou ght unnecessarily, since the
correct disposition of the relief sought by Magnificent Mile, together with the reasons
for such disposition, would sufficiently determine the rights of the parties.”108

[101] In the counter-application Mrs Gouws had sought three decl aratory orders: the
first was an order declaring that Magnificent Mile could not competently apply for a
prospecting right under the MPRDA, in respect of the relevant farm; the second was a
declaration that its application for a prospecting right was void ab initio; and the third
was an order declaring that Mr Gouws’ application for a prospecting right in respect
of the same farm was valid and was still pending. Plasket AJA held that this relief
flowed logically from the grant of the remedy sought by Magni ficent Mile and
therefore there was no need for a counter -application. Hence in upholding the appeal,
he dismissed the application by Magnificent Mile and granted the relief sought under
the counter- application.

[102] Whilst there is merit in the approach fol lowed by the Supreme Court of Appeal
here, the difficulty is that the approach is at variance with the one adopted by that
Court in Kirland.109 In that matter Kirland had sought on review an order setting aside
the withdrawal of approval of its application to establish a private hospital and an
order that reinstated the approval. Without launching a counter -application, the
respondents in opposing the relief sought challenged the validity of the approval
which Kirland sought to be reinstated. They placed f acts before the review court
which established beyond doubt that the approval in question was irregularly granted.
Notably, the decision- maker herself gave details of the irregularities.

[103] The High Court rightly defined the issues as including the validit y of the
approval which Kirland sought to be reinstated and the propriety of the purported

108 Supreme Court of Appeal judgment above n 9 at para 44.
109 MEC for Health, Eastern Cape v Kirland Investments [2013] ZASCA 58; 2014 (3) SA 219 (SCA) ( Kirland
Supreme Court of Appeal judgment).
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44


withdrawal. The High Court set aside the approval on the basis of the irregularities
and also set aside the decision to withdraw it and the MEC’s decision to uphold the
withdrawal in an internal appeal.

[104] The MEC appealed to the Supreme Court of Appeal and Kirland cross -
appealed against the order setting aside the approval. The Supreme Court of Appeal
dismissed the MEC’s appeal but upheld Kirland’s cross -appeal. In upholding the
cross-appeal Plasket AJA reasoned:

“In paragraph 8 of the judgment of the court below, Makaula J spoke of Kirland
Investments having sought the review of four decisions, including ‘the ASG’s
[Acting Superintendent -General’s] decision of 23 October 2007 approving the
establishment application’. He then proceeded to find, at paragraph 27, that this
decision (perhaps more correctly ‘these decisions’) was to be ‘reviewed and set aside’
because the [Acting Superintendent -General] had ignored the advisory committee’s
recommendations and had acted under dictation. Finally, he made orders reviewing
and setting aside ‘the decision of the Acting Superintendent -General dated 23
October 2007’ and remitting ‘the applicant’s applications for establishment of private
hospitals and unattached operating theatres in Port Eliz abeth and Jeffreys Bay’ to the
Superintendent-General for reconsideration.

Kirland Investments never applied for this relief. They would not have wanted to
because the approvals that were granted by the [Acting Superintendent-General] were
precisely what they had applied for. The MEC and Superintendent -General, on the
other hand, never applied for the review and setting aside of the approvals and neither
did they bring a counter -application to this effect. It is therefore clear that when
Makaula J said that Kirland Investments had sought the setting aside of the [Acting
Superintendent-General] decisions (and the consequential remittal order) he erred.”110

[105] It is apparent from this statement that two reasons were advanced for upholding
the cross-appeal. First, it was stated that Kirland did not ask for the setting aside of
the approval and that the MEC did not bring a counter -application for that relief.

110 Id at paras 25-6.
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Second, the High Court had no jurisdiction, it was said, to set aside the approval in the
absence of a counter-application.

[106] I think the Supreme Court of Appeal erred in Kirland. Like here, it was
unnecessary for the MEC to bring a counter -application. The relief she sought flowed
“logically” from the remedy asked for by Kirland to the effect that the approval be
reinstated.

[107] The proposition that the High Court lacked jurisdic tion too was in error. The
High Court was seized with a review application by Kirland and that gave it
jurisdiction to determine all issues which arose in tha t matter. Section 6(1) of PAJA
does not require a separate application for review where there is one already before
the court. The proceedings in which the High Court determined the validity of the
approval in question were instituted in terms of section 6. Section 8 of PAJA confers
a wide remedial power on the review court which includes the setti ng aside of an
administrative decision if one of the grounds listed in section 6 is established.

[108] The guiding principle proclaimed by section 8 is that the remedy granted must
be just and equitable. And the determination of justice and equity requires th e court to
consider and weigh the interests of the parties on both sides. In this regard
Millennium Waste Management declares:

“The question of relief remains for consideration. While acknowledging that there
was no culpable delay on the part of the app ellant to institute review proceedings,
exercising its discretion the court below dismissed the application with costs. In so
doing the court overlooked the provisions of section 8 of PAJA which require that
any order granted in matters such as this be ju st and equitable. This guideline
involves a process of striking a balance between the applicant’s interests on the one
hand, and the interests of the respondents, on the other. It is impermissible for the
court to confine itself, as the court below did, to the interests of the one side only.
JAFTA J
46


Furthermore, the section lists a range of remedies from which the court may choose a
suitable one upon a consideration of all relevant facts.”111

[109] In the circumstances I am satisfied that when the interests of Magnific ent Mile
are weighed against those of the Gouwses, it is just and equitable to grant a declarator
on the prospecting right unlawfully given to Magnificent Mile. Procedurally, there
can be no prejudice to Magnificent Mile because the right granted to it wa s unlawful.
It can never be enforced. Nor can it prevent the relevant functionary from awarding a
prospecting right that was applied for by Mr Gouws whose application is still pending.

[110] It is for these additional reasons and those set out in the first ju dgment that I
support the order proposed in that judgment. Of course, I do not support those reasons
in the first judgment that are responding to my judgment.


111 Millennium Waste Management (Pty) Limited v Chairperson Tender Board: Limpopo Province [2007]
ZASCA 165; 2008 (2) SA 481 (SCA) at para 22.



For the Applicant: M A Wesley and M Z Gwala instructed
by Malan Scholes Attorneys

For the First Respondent: P F Louw and A N Kruger instructed
by Johan Coetzee Incorporated