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[2018] ZASCA 91
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Executrix of the Estate of the Late Josephine Terblanche Gouws v Magnificent Mile Trading 30 (Pty) Ltd and Others (594/17) [2018] ZASCA 91 (1 June 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 594/17
In
the matter between:
THE
EXECUTRIX OF THE ESTATE OF THE LATE
JOSEPHINE
TERBLANCHE GOUWS
(CHARMAINE
CELLIERS N.O.)
APPELLANT
and
MAGNIFICENT MILE TRADING 30
(PTY) LTD 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:
Executor of the Estate of the Late Josephine Terblanche Gouws
(Charmaine
Celliers N.O.) v Magnificent Mile Trading 30 (Pty) Ltd & others
(594/17)
[2018]
ZASCA 91
(1 June 2018)
Coram:
Shongwe ADP, Swain and Dambuza JJA, Plasket and Rogers AJJA
Heard:
11 May 2018
Delivered:
1 June 2018
Summary:
Mineral and Petroleum Resources Development Act 28 of 2002
–
application for conversion of unused old order mineral right to new
order prospecting right – effect of death of
applicant after
application made but before decision taken – setting aside of
grant of prospecting right in respect of a
property other than
property applied for – effect of setting aside is that original
application still pending – application
for mining right by
another party not permissible.
ORDER
On
appeal from:
Gauteng Division, Pretoria (Fabricius J sitting as
court of first instance):
1 The
appeal is upheld with costs, including the costs of two counsel.
2 The
order of the court below and paragraph 2 of the costs order dated 28
June 2017 are set aside and replaced with the following
order.
‘
(a)
With the exception of the prayers set out in paragraphs 1, 2, 3, 5
and 6 of the applicant’s amended notice of motion,
the
application is dismissed.
(b)
The counter-application is granted and it is declared that:
(i)
the applicant did not have the right or competency to apply for any
right in terms of the
Mineral and Petroleum Resources Development Act
28 of 2002
in respect of Portion 9 of the farm Driefontein 338,
Registration Division J.S., Mpumalanga, district of Middelburg; and
(ii)
The application for a prospecting right lodged by the late Mr
Nicolaas Petrus Gouws in respect of the farm Driefontein, district
of
Middelburg is still pending a decision by the relevant authority.
(c)
The applicant is directed to pay the fifth respondent’s costs
in respect of both the application and the counter-application,
such
costs to include the costs of two counsel.’
JUDGMENT
Plasket
AJA (Shongwe ADP, Swain and Dambuza JJA and Rogers AJA concurring)
[1] The
Mineral and Petroleum Resources Development Act 28 of 2002 (the
MPRDA) changed fundamentally the way in which the country’s
mineral and petroleum resources are to be exploited.
[1]
The MPRDA’s objects, specified in s 2, include the recognition
of the ‘internationally accepted right of the State
to exercise
sovereignty over all the mineral and petroleum resources within the
Republic’ and giving effect to the ‘principle
of the
State’s custodianship’ of those resources. Added to that
– and not surprisingly, given our history –
the MPRDA
also aims to promote ‘equitable access to the nation’s
mineral and petroleum resources to all the people
of South Africa’
and to expand in a substantial and meaningful way ‘opportunities
for historically disadvantaged persons
. . . to enter into and
actively participate in the mineral and petroleum industries and to
benefit from the nation’s mineral
and petroleum resources’.
[2] In
order to achieve these objects, the MPRDA broke decisively with the
regime previously in place for the exploitation of mineral
and
petroleum resources. Principally, it provided that the State is the
custodian of all mineral and petroleum resources and that
it may
‘grant, issue, refuse, control, administer and manage any
reconnaissance permission, prospecting right, permission
to remove,
mining right, mining permit, retention permit, technical cooperation
permit, reconnaissance permit, exploration right
and production
right’. The MPRDA did, however, create a bridge of narrow span
for a transition from the earlier system of
mineral regulation to its
new system. For instance, it allowed holders of ‘unused old
order’ mineral rights in existence
when the MPRDA came into
effect (on 1 May 2004) to apply for their conversion into ‘new
order’ rights subject to the
condition that if such a holder
did not apply for conversion of his or her right within one year of 1
May 2004, he or she lost
the right, and it could be allocated to
someone else.
[2]
This
appeal
[3] This
appeal concerns an application brought by the late Mr Nicolaas Petrus
Gouws (Mr Gouws) for the conversion of his unused
old order mineral
right to a new order prospecting right for coal in respect of his
property, Portion 9 of the farm Driefontein
338 in the district of
Middelburg, Mpumalanga; a competing application for a prospecting
right in respect of the same property
and the same mineral brought by
Magnificent Mile Trading 30 (Pty) Ltd (Magnificent Mile); and the
validity of these and a proliferation
of other administrative
decisions taken over a number of years thereafter. With a great deal
of justification, counsel for the
appellant, in the court below,
described the administrative process as a ‘veritable comedy of
errors’, and Fabricius
J, the judge in the court below,
observed that ‘[w]hatever could go wrong with the applications
. . . did go wrong’.
[4] As Mr
Gouws died after his application had been made but before it was
decided, a central question that arises for decision
in this appeal
is whether a prospecting right may be granted to a deceased estate,
or whether the death of Mr Gouws put an end
to his application.
[5] In
the court below, the North Gauteng Division of the High Court,
Pretoria, Magnificent Mile brought an application to review
and set
aside a number of decisions taken by officials within the Department
of Mineral Resources (the Department) in favour of
Mr Gouws’
deceased estate and that of his widow Ms Josephine Terblanche Gouws,
as well as decisions adverse to it. Although
the Minister, the
Director-General and the Deputy Director-General: Mineral Regulation
of the Department were cited as respondents,
they played no part in
the proceedings, and take no part in this appeal. Initially, the
executor of the estate of the late Mr Gouws
was cited as the fourth
respondent and his widow and sole heir, Ms J T Gouws (Ms Gouws), was
cited as the fifth respondent. On
the death of Ms Gouws, she was
substituted by the executor of her deceased estate, Ms Charmaine
Celliers. The deceased estate of
Ms Gouws opposed the relief sought
by Magnificent Mile and also brought a counter-application of its own
for declaratory relief.
[6]
Fabricius J granted an order in terms of paragraphs 1, 2, 3, 4, 5, 6,
7 and 8.1 of Magnificent Mile’s amended notice of
motion.
A perusal of the order gives a good indication of the bureaucratic
mayhem attendant upon Mr Gouws’ application
and its sequelae.
The order read (to avoid confusion, I shall substitute the
non-governmental parties’ citations in the court
below with
their names):
‘
1.
That Magnificent Mile is, in terms of section 7(2)(c) of the
Promotion of Administrative Justice Act, 2000 (Act 3 of 2000) (“the
PAJA”), hereby exempted from the obligation to exhaust its
internal remedies in terms of section 96 of the Mineral and Petroleum
Resources Development Act, 2002 (Act 28 of 2002) (“the MPRDA”)
in relation to the review of the decisions referred
to in paragraphs
2,3,5,6 hereof and the review of the Refusal Decision contemplated in
paragraph 7 hereof;
2.
That the following decisions of the third respondent (“DDG”)
be reviewed and set aside, namely:
2.1.
The decision of the DDG dated 13 December 2005 to grant a prospecting
right in favour of Nicolaas Petrus Gouws (“the
Deceased”)
in respect of coal on portion 9 of Driefontein 338 JS situated in
Wakkerstroom;
2.2.
The decision of the DDG dated 9 November 2010 to grant a prospecting
right in favour of the Deceased in respect of one half
share of
minerals on portion 9 of Driefontein 338 JS situated in Witbank;
2.3.
The decision of the DDG dated 19 September 2011 to amend the power of
attorney dated 9 November 2010 to rectify the magisterial
district
referred to therein to read “Middelburg”.
3.
That the decision of the first respondent to grant a prospecting
right for coal in respect of portion 9 of the farm Driefontein
338 JS
situated in Witbank to the Deceased on a date prior to 9 July 2013 be
reviewed and set aside;
4.
That the decisions referred to in paragraphs 2.1, 2.2 and 3 hereof be
substituted by a decision, in terms of section 17(2) of
the MPRDA, to
refuse the application for a prospecting right by Nicolaas Petrus
Gouws in respect of portion 9 of the farm Driefontein
338 JS;
5.
That the execution and registration in the Mineral and Petroleum
Titles Registration Office of the following prospecting rights
be
reviewed and set aside, alternatively, be declared to be unlawful and
invalid, namely:
5.1.
The prospecting right executed on 14 December 2010 in favour of Ms
Gouws for one half share of the minerals on portion 9 of
the farm
Driefontein 338 JS situated in Middelburg; and
5.2.
The prospecting right executed on 5 October 2011 in favour of Mr
Gouws’ executor for coal in respect of one half share
of the
minerals on portion 9 of the farm Driefontein 338 JS situated in
Middelburg.
6.
That the decision of the DDG dated 17 July 2013 to grant consent in
terms of section 11 of the MPRDA for the cession of a prospecting
right in respect of portion 9 of the farm Driefontein 338 JS
allegedly held by the Deceased to Ms Gouws be reviewed and set aside
and that the said decision of the DDG be substituted by a decision in
terms of which the applications for consent in terms of section
11 of
the MPRDA to cede a prospecting right in respect of portion 9 of the
farm Driefontein 338 JS allegedly held by the Deceased
to Ms Gouws,
be refused;
7.
That the decision of the second respondent to refuse Magnificent
Mile’s application for a mining right for coal in respect
of
portion 9 of the farm Driefontein 338 JS (“the Refusal
Decision”) be reviewed and set aside;
8.
That, the Refusal Decision be substituted by the following decision,
namely, to:
8.1.
grant to Magnificent Mile, in terms of section 23(1) of the MPRDA, a
mining right in respect of portion 9 of the farm Driefontein
338 JS.’
In
addition, an order was made directing the Minister to consider an
application, when one was made, for the approval of an environmental
authorisation in respect of Magnificent Mile’s proposed mining
operations. This was an amended form of the order sought in
paragraph
8.2 of the amended notice of motion.
[7]
Fabricius J dismissed the deceased estate’s counter-application
in which declaratory orders had been sought that:
‘
1.
Magnificent Mile never had the right or competency to apply for any
right under the
Mineral and Petroleum Resources Development Act, 28
of 2002
, in respect of the property described as Portion 9 of the
Farm Driefontein 338, Registration Division J.S. Mpumalanga, District
of Middelburg;
2.
The application for a prospecting right by the said Magnificent Mile
in respect of the said property is void
ab initio
, and so are
all steps taken in consequence thereof;
3.
The application for a prospecting right by Mr Gouws in respect of the
said property was valid, and:
3.1.
has been duly granted, alternatively;
3.2.
is still pending, awaiting consideration by the Director-General of
the Department of Mineral Resources or the correct official
in the
said Department.’
[8] Costs
were reserved but later an order was made directing the Minister,
Director-General and Deputy Director-General –
the official
respondents, as they were referred to by the parties – to pay
the costs of the application and the estate to
pay the costs of the
counter-application. This appeal is before this court with the leave
of Fabricius J.
[9] It is
common cause between the parties that paragraphs 1, 2, 3, 5 and 6 of
the order were correctly made. These are the orders
that exempted
Magnificent Mile from having to exhaust its internal remedies and
that set aside the grant of a prospecting right
to Mr Gouws in
respect of a property called Driefontein in the Wakkerstroom district
and the ill-conceived attempts to rectify
this initial error. Mr Louw
who, together with Mr Kruger, appeared for the appellant, argued,
however, that paragraphs 4, 7 and
8 should be set aside and so should
the order dismissing the counter-application.
The
factual background
[10] Mr
Gouws owned the farm Driefontein in the district of Middelburg.
Before the MPRDA came into force on 1 May 2004, he owned
the mineral
rights beneath the surface as a consequence of his ownership of the
land.
[11] He
knew that the mineral rights were valuable because he had previously
conducted prospecting operations which had indicated
the presence of
a substantial coal deposit on the property. He decided not to exploit
his mineral right at that stage but rather
to wait for a more
opportune time to do so.
[12] When
it became apparent that the MPRDA would be passed into law and would
introduce a dramatically different minerals regime,
Mr Gouws decided
that the time was ripe for him to make use of his mineral right so
that he would not lose it. In order to do so,
his son-in-law sought
the partnership of people with experience in the mining industry. It
is alleged that this was how Mr Martin
Pretorius, a director of
Magnificent Mile, came to know of the coal deposit below the surface
of Driefontein, and motivated this
company’s competing
application for a prospecting right.
[13] The
MPRDA came into force on 1 May 2004. Mr Gouws applied for a
prospecting right in respect of Driefontein on 29 April 2005,
a day
before the closing of the window period of one year created by item 8
of Schedule II of the MPRDA. On 3 May 2005, Magnificent
Mile lodged
its application for a prospecting right for coal in respect of
Driefontein. Both applications were accepted by the
Department, Mr
Gouws’ on 20 May 2005 and Magnificent Mile’s on 31 May
2005.
[14] On 9
November 2005, while his application was still pending, Mr Gouws
died. On 13 December 2005, however, the Department granted
a
prospecting right for coal to Mr Gouws in respect of a farm called
Driefontein in the Wakkerstroom district of Mpumalanga. At
the same
time, Magnificent Mile was granted a prospecting right for coal in
respect of Driefontein in the Middelburg district,
the farm that Mr
Gouws had owned.
[15] Not
surprisingly, when Magnificent Mile sought to enter Driefontein and
commence prospecting, it encountered the resistance
of the Gouws
family. This led to a stand-off between Magnificent Mile and the
Gouws family and a parallel process on the part of
officials within
the Department to rectify the errors that had occurred. Although some
prospecting was undertaken on Driefontein
by Magnificent Mile, those
operations appear to have been fairly limited. The prospecting right
has now lapsed.
[3]
On 18 November 2009, Magnificent Mile applied for a mining right in
respect of the coal on Driefontein.
[16] On 9
November 2010, the Department purported to amend the prospecting
right that had been granted to Mr Gouws. It did so, first,
by
substituting ‘Witbank’ for ‘Wakkerstroom’ to
describe the district in which Driefontein was situated.
Secondly,
the holder of the prospecting right was amended to reflect, not Mr
Gouws, but ‘The Beneficiary, Late Estate Nicolaas
Petrus
Gouws’. Thirdly, the prospecting right was said to be in
respect of ‘one half portion (a portion of portion
3)’ of
Driefontein. (This error occurred because Mr Gouws owned the farm by
virtue of two title deeds, each in respect of
a half share. The
officials mistakenly had regard to only one of the title deeds in
making the purported grant.) On 19 September
2011, a further attempt
was made to rectify the situation: the power of attorney that had
effected the amendment of 9 September
2009 was amended to reflect the
magisterial district in which Driefontein was situated to be
Middelburg.
[17] On
22 September 2011, Ms Gouws applied, in terms of
s 11
, for
ministerial approval for the cession of the prospecting right to her.
On 2 November 2011, the prospecting right was registered
in the
Mineral and Petroleum Titles Registration Office. Its holder was now
described as Ms Gouws and it authorised prospecting
in respect of
‘one half share of minerals in Portion 9 (a portion of portion
3) of the farm Driefontein’ in the Middelburg
district.
[18] At
about this time, an internal appeal was initiated by Magnificent Mile
aimed at challenging the grant of the prospecting
right to Mr Gouws
and Ms Gouws. That process, which was opposed by Ms Gouws, was never
concluded.
[19] On
10 April 2013, Magnificent Mile’s application for a mining
right was refused because of Mr Gouws’ prior prospecting
right.
It lodged an internal appeal against that decision. This too was
opposed by Ms Gouws. This process too was never completed.
[20] It
was agreed between the parties, probably as a result of the comedy of
errors that I have described, that it would be best
to abandon the
internal appeals and proceed to court for a definitive determination
of their disputes. As a result, Magnificent
Mile launched an
application in terms of
rule 53
of the uniform rules on 12 August
2013. Even then, problems of the Department’s making continued
to beset the proceedings:
it took 18 months, an application to compel
the Department to comply with its obligations to furnish the record
and a contempt
of court application before a record of sorts was
available. On 25 August 2015, an amended notice of motion and
supplementary founding
affidavit were filed. On 22 October 2015, Ms
Gouws filed her answering affidavit and counter-application.
The
legislation
[21] The
MPRDA made the State custodian of all of the country’s mineral
and petroleum resources but also empowered it, through
the Minister
of Mineral Resources, to grant rights to exploit minerals to
individuals who applied for those rights. To that end,
an
administrative system was created for the consideration of
applications for various types of rights as well as an internal
appeals process. So, for instance, provision is made for applications
for reconnaissance permission,
[4]
prospecting rights,
[5]
mining rights,
[6]
mining permits
[7]
and retention permits,
[8]
as well as for the duration of each type of right, their renewal and
the rights and obligations that are imposed on their holders.
[22] In
order to ensure that the objects of the MPRDA, and particularly its
transformational objects, are attained, the Minister
retains control
over the transfer of rights that have been granted: in terms of
s 11
,
rights granted in terms of the MPRDA may not be ‘ceded,
transferred, let, sublet, assigned, alienated or otherwise disposed
of without the written consent of the Minister . . .’.
[23] In
order to bridge the gap between the old order and the new, Schedule
II of the MPRDA provides for transitional arrangements.
These are
particularly relevant to this matter as Mr Gouws was the holder of an
unused old order right when the MPRDA came into
force and had applied
for its conversion.
[24] The
Schedule contains its own set of objects in item 2. They are the
protection of security of tenure in respect of prospecting
and mining
operations, affording the holders of old order rights the opportunity
to comply with the new dispensation and promoting
‘equitable
access to the nation’s mineral and petroleum resources’.
[25] In
order to give effect to these objects – particularly the object
of ensuring security of tenure – Schedule II
deals with
prospecting and mining applications that were pending when the MPRDA
came into force, providing that they would continue
as if brought in
terms of the MPRDA;
[9]
exploration and production operations, providing for their
continuation subject to an expiry date and for their conversion into
new order rights;
[10]
and the continuation of old order prospecting and mining rights for
limited periods within which the holders of those rights could
apply
for their conversion into new order rights.
[11]
[26] Item
8 deals with the processing of unused old order rights. It provides:
‘
(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, 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.
(2)
The holder of an unused old order right 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).’
[27] Two
key terms used in item 8 are defined in item 1. A ‘holder’
of an old order right is defined to mean ‘the
person to whom
such right was or is deemed to have been granted or by whom it is
held or is deemed to be held, or such person's
successor in title
before this Act came into effect’. An ‘unused old order
right’ means ‘any right, entitlement,
permit or licence
listed in Table 3 to this Schedule in respect of which no prospecting
or mining was being conducted immediately
before this Act took
effect’. Table 3 includes in category 1 a mineral right under
the common law.
The
issues
The
effect of paragraphs 2, 3, 5 and 6 of the amended notice of motion
[28] The
grant and refusal of prospecting and mining rights in issue in this
case constitute administrative action as that term
is defined in s 1
of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA):
they are decisions of an administrative
nature, taken by an organ of
state exercising a public power in terms of which rights created and
regulated by the MPRDA are either
allocated or refused to persons,
thereby having the potential to adversely affect rights and having a
direct, external legal effect.
[12]
In
Minister of Mineral
Resources & others v Mawetse (SA) Mining Corporation (Pty)
Ltd
,
[13]
Majiedt JA held that ‘the granting of a prospecting right, as
is the case with all other rights under the MPRDA, is not contractual
in nature but a unilateral administrative act by the Minister or her
delegate in terms of their statutory powers under the MPRDA’.
[29] More
than one ground of review justified the setting aside of the
prospecting right granted to Mr Gouws on 13 December 2005,
and the
related chain of administrative actions that followed: the official
who granted the prospecting right for a property other
than the
property applied for was not authorised by the MPRDA to do so
[14]
and he or she certainly acted irrationally in the sense that there
was no rational connection between the decision taken and the
information before the official;
[15]
when attempts were made to alter the terms of the prospecting right,
once again, the officials concerned acted beyond their authority
because they were, by then,
functus
officio
;
[16]
and their attempts to rectify the problem resulted in a prospecting
right that was void for vagueness.
[17]
[30] In
terms of the doctrine of objective invalidity, the setting aside of
the irregular grant operates retrospectively.
[18]
Because of the defects that I have mentioned, the grant was always a
nullity and, on its setting aside, was to be treated as never
having
existed – it was ‘void from its inception’ and
never had legal force or effect.
[19]
This means that Mr Gouws’ application for a prospecting right
has never been decided. Subject to what I shall say about the
effect
of Mr Gouws’ death on the application, it is still pending.
The
effect of Mr Gouws’ death
[31] It
was argued on behalf of Magnificent Mile that, in blunt terms, Mr
Gouws’ application died with him. The argument is
based on the
non-transferability of an unused old order right and the personal
nature of that right.
[32] In
order to address this issue, it is necessary to consider the nature
of the right that accrues to a holder of an unused old
order right
when he or she applies for its conversion into a prospecting right or
a mining right.
[33] It
is correct that the holder of an unused old order right as at 30
April 2004 could not thereafter transfer it. That is implicit
in the
definition of a holder that I have already cited, and consistent with
the scheme and purpose of the Schedule: for an old
order right to
endure, it had to be converted. Once that had occurred, the new order
right could be transferred, but only with
the approval of the
Minister.
[20]
But, on the view I take, the transferability of either an unused old
order right or a new order prospecting right are not relevant
to the
issue to be decided in this case.
[34] The
holder of an unused old order right had a choice: he or she could do
nothing, in which event the unused old order right
would lapse a year
after the coming into effect of the MPRDA, or he or she could apply
for its conversion into a new order right,
in terms of item 8.
[35] In
an application in terms of item 8, the holder was given a
preferential place in the queue – an ‘exclusive right
to
apply for a prospecting right or mining right’ during the
period of one year commencing on 1 May 2004.
[21]
Once an application had been made within the window period, the
unused old order right remained valid until the application was
either granted or refused.
[22]
If the application was granted, the unused old order right was
replaced with a prospecting right or mining right. If the application
was refused, the holder lost the unused old order right.
[36] It
is clear from this analysis that the right that Mr Gouws enjoyed,
when he applied for the conversion of his unused old order
right into
a prospecting right, was a right to a decision on his application.
This was conceded by Magnificent Mile which described
the right in
the heads of argument as being ‘in the nature of a right to
lawful, reasonable and procedurally fair administrative
action’.
When Mr Gouws died, a decision had not been taken and, the defective
decisions having now been set aside, one has
still not been taken. In
my view, the executor of Mr Gouws’ estate was entitled to a
decision. Her right arises not from
any transfer of a right but by
the fact that, on her appointment as executor, the right to deal with
the ‘aggregate of assets
and liabilities’ that is the
estate of the deceased vested in her.
[23]
If the application is granted, it may then be necessary for the
executor to seek the approval of the Minister for the transfer
of the
prospecting right to Mr Gouws’ heirs, but that question need
not be resolved now.
[37] I am
aware that the estate of Mr Gouws was finalised some time ago and, I
assume, the executor has been discharged. The estate
was finalised,
however, before there was clarity on the outstanding application. The
Master can be approached to appoint an executor
again to see through
to finality the administration of this last aspect of Mr Gouws’
estate.
[24]
[38] The
effect of my finding that the estate of Mr Gouws is entitled to a
decision is that, in terms of item 8(3), the unused old
order right
remains valid until a decision is taken. That, in turn, means that
the relief granted in terms of paragraph 4 of the
amended notice of
motion ought not to have been granted: an order refusing Mr Gouws’
application for a prospecting right
was not competent when, in fact,
no decision had been taken.
Magnificent
Mile’s application for a mining right
[39] The
fact that the application for the conversion of the unused old order
right is still pending also has an effect on Magnificent
Mile’s
review of the refusal of its application for a mining right in
respect of Driefontein. Its application was refused
on the basis that
‘[t]he right applied for comprises of land in respect of which
rights for the same minerals have been granted
in respect of an
application received prior to your application in this regard’.
I take this to mean that the Department
took the view that the
defective prospecting right which it tried to rectify in stages
trumped Magnificent Mile’s application.
[40] Now
that the position has been clarified, it is clear that the relief
sought in paragraphs 7 (the setting aside of the refusal
of the
mining right) and 8.1 (the granting of a mining right) of the amended
notice of motion cannot be justified. The fact that
the application
for the conversion of Mr Gouws’ unused old order right into a
prospecting right is still pending renders
it impermissible for a
mining right to be granted to Magnificent Mile. Section 22(2)(
c
)
of the MPRDA precludes a regional manager from accepting an
application for a mining right if a ‘prior application for a
prospecting right . . . has been accepted for the same mineral and
land and which remains to be granted or refused’. As a
result,
the mandamus directing the Minister to consider Magnificent Mile’s
application for an environmental authorisation
in respect of its
proposed mining operations must also be set aside.
The
counter-application
[41] The
appellant brought a counter-application, claiming it to be a
collateral challenge. It claimed to bring the counter-application
in
terms of the principle of legality, rather than the PAJA, and
asserted that because it was a collateral challenge, the delay
rule
did not apply.
[42] The
court below dismissed the counter-application because it considered
it to be, in substance, a review which ought to have
been brought in
terms of the PAJA, and particularly, within the 180 day period
provided for in s 7(1).
[43] The
relief sought in the counter-application consisted of three prayers
for declaratory orders. The first was for an order
declaring that
Magnificent Mile ‘never had the right or competency’ to
apply for any right in terms of the MPRDA in
respect of Driefontein.
The second was for an order declaring that its application for a
prospecting right was ‘void
ab initio
’. The third
was for an order declaring that Mr Gouws’ application for a
prospecting right in respect of Driefontein
was valid and had either
been granted or was pending.
[44] I
find myself in disagreement with both the court below and the
appellant as to the nature and basis of the relief claimed
in the
counter-application. First, it is not a collateral challenge. No
public authority seeks to coerce the appellant into compliance
with
an unlawful administrative act.
[25]
Secondly, if it was intended as a review, it had to be brought in
terms of the PAJA because it was reviewing administrative action
as
defined in s 1,
[26]
and if it was out of time, condonation had to be applied for.
[27]
Thirdly, however, I do not agree that it was a review. Rather, it
seems to me, paragraphs 1 and 3 of the counter-application flow
logically from the grant of paragraphs 2, 3, 5 and 6 of the amended
notice of motion and the refusal of paragraphs 4, 7 and 8.1.
To the
extent that paragraph 2 of the counter-application seeks a
declaratory concerning the prospecting right granted to Magnificent
Mile, it is academic in the sense that that prospecting right has
lapsed and has no bearing on the matter. The relief in the
counter-application
was probably sought 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. But by no stretch of the
imagination could Magnificent
Mile be prejudiced by a ‘late’
counter-application which merely gave effect to the grounds on which
Ms Gouws and her
executor opposed the relief sought by Magnificent
Mile itself.
[45] On
the basis of the above, I am of the view that the court below erred
in dismissing the counter-application with costs. I
would grant
prayers 1 and 3 (in amended form) along with costs.
The
order
[46] I
make the following order.
1 The
appeal is upheld with costs, including the costs of two counsel.
2 The
order of the court below and paragraph 2 of the costs order dated 28
June 2017 are set aside and replaced with the following
order.
(a)
With the exception of the prayers set out in paragraphs 1, 2, 3, 5
and 6 of the applicant’s amended notice of motion,
the
application is dismissed.
(b)
The counter-application is granted and it is declared that:
(i)
the applicant did not have the right or competency to apply for any
right in terms of the
Mineral and Petroleum Resources Development Act
28 of 2002
in respect of Portion 9 of the farm Driefontein 338,
Registration Division J.S., Mpumalanga, district of Middelburg; and
(ii)
The application for a prospecting right lodged by the late Mr
Nicolaas Petrus Gouws in respect of the farm Driefontein, district
of
Middelburg is still pending a decision by the relevant authority.
(c)
The applicant is directed to pay the fifth respondent’s costs
in respect of both the application and the counter-application,
such
costs to include the costs of two counsel.
______________________
C
Plasket
Acting
Judge of Appeal
APPEARANCES
For
appellant:
P F Louw SC and A N Kruger
Instructed by:
Johan Coetzee Incorporated, Emalahleni
Phatshoane Henney Attorneys,
Bloemfontein
For first
respondent
M A Wesley (heads of argument drafted by L J Bekker)
Instructed by:
Malan Scholes Attorneys, Johannesburg
Claude Reid Attorneys,
Bloemfontein
[1]
For comment on the changes brought about by the MPRDA see
Xstrata
South Africa (Pty) Ltd & another v SFF Association
2012 (5) SA 60
(SCA);
[2012] ZASCA 20
para 1;
Agri
South Africa v Minister of Minerals and Energy
2013 (4) SA 1
(CC);
[2013] ZACC 9
paras 25-26;
Minister
of Mineral Resources & others v Sishen Iron Ore Co (Pty) Ltd &
another
2014 (2) SA 603
(CC);
[2013] ZACC 45
paras 10-11.
[2]
Pan African Mineral
Development Company (Pty) Ltd & others v Aquila Steel (South
Africa) (Pty) Ltd
[2018] 1
All SA 414
(SCA);
[2017] ZASCA 165
para 12.
[3]
Magnificent Mile’s purported prospecting right ran from 24
February 2006 to 24 February 2007. It was a condition of the
grant
that an application for extension in terms of
s 18
be lodged not
later than 60 days before expiry. Apart from the fact that
Magnificent Mile’s extension application was only
lodged on 16
February 2007, an extension could in any event not have exceeded a
further three years. See
s 18(5).
[4]
Sections 13
-
15
.
[5]
Sections 16
-
20
.
[6]
Sections 22
-
25
.
[7]
Section 27.
[8]
Sections 31
-
36
.
[9]
Item 3.
[10]
Items 4 and 5.
[11]
Items 6 and 7.
[12]
The PAJA,
s 1.
See the definitions of ‘administrative action’
and ‘decision’. See too
Greys
Marine Hout Bay (Pty) Ltd & others v Minister of Public Works &
others
2005 (6) SA 313
(SCA);
[2005] ZASCA 43
paras 21-24.
[13]
Minister of Mineral
Resources & others v Mawetse (SA) Mining Corporation (Pty) Ltd
2016 (1) SA 306
(SCA);
[2015] ZASCA 82
para 24. See too
Bengwenyama
Minerals (Pty) Ltd & others v Genorah Resources (Pty) Ltd &
others
2011 (4) SA 113
(CC);
[2010] ZACC 26
para 61.
[14]
The PAJA,
s 6(2)(
a
)(i).
[15]
The PAJA,
s 6(2)(
f
)(ii)(cc).
[16]
The PAJA,
s 6(2)(
a
)(i).
[17]
The PAJA,
s 6(2)(
i
).
See too
Minister of Health
& another NO v New Clicks South Africa (Pty) Ltd & others
(Treatment Action Campaign & another
as amici curiae)
2006 (2) SA 311
(CC);
[2005] ZACC 14
para 246.
[18]
Ferreira v Levin NO;
Vryenhoek & others v Powell NO & others
1996 (1) SA 984
(CC);
[1995] ZACC 13
para 27.
[19]
Pikoli v President of the
Republic of South Africa & others
2010 (1) SA 400
(GNP) at 409C-D. See too Cora Hoexter
Administrative
Law in South Africa
(2 ed)
at 545-546.
[20]
Section 11.
[21]
Item 8(2).
[22]
Item 8(3).
[23]
D Meyerowitz
The Law and
Practice of Administration of Estates and their Taxation
(2010
ed) para 12.20.
[24]
Meyerowitz note 23 para 11.10.
[25]
Oudekraal Estates (Pty) Ltd
v City of Cape Town & others
2004 (6) SA 222
(SCA);
[2004] ZASCA 48
para 32;
V
& A Waterfront Properties (Pty) Ltd & another v Helicopter
and Marine Services (Pty) Ltd & others
2006 (1) SA 252
(SCA);
[2005] ZASCA 87
para 10; Hoexter (note 19) at
549.
[26]
Minister of Home Affairs &
another v Public Protector
[2018] ZASCA 15
para 28.
[27]
Asla Construction (Pty) Ltd
v Buffalo City Metropolitan Municipality
2017 (6) SA 360
(SCA);
[2017] ZASCA 23
para 13.