Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining & Development Co Ltd and Others

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J, Skweyiya J, Van Der Westhuizen J and Zondo J
• Judgment Date: 13 December 2013
• Citation: 2014 (5) SA 138 (CC)
• Docket Number: CCT 39/13 [2013] ZACC 48
• Hearing Date: 15 August 2013
• Counsel: D Ntsebeza SC (with G Shakoane and L Mashapa) for the applicant. G Kairinos (with M Mokgato) for the first respondent. G Grobler SC (with J Gildenhuys) for the second respondent. M van der Merwe for the third to sixth respondents.
• Court: Constitutional Court

Zondo J (Mogoeng CJ concurring): G

Introduction

[1] This is an application brought by Dengetenge Holdings (Pty) Ltd (Dengetenge) for leave to appeal against a decision of the Supreme H Court of Appeal [1] dismissing its application for the condonation of the late delivery of its written heads of argument and for the reinstatement of its appeal (condonation) against a judgment and order of the North Gauteng High Court, Pretoria (high court). Dengetenge also applies for leave to appeal directly to this court. The decision of the high court [2] I against which Dengetenge seeks to appeal is an order reviewing and

Zondo J (Mogoeng CJ concurring)

setting aside the grant of certain prospecting rights to it by the Minister A of Mineral Resources (the minister) or the Deputy Director-General: Mining Regulation (DDG).

[2] Southern Sphere Mining and Development Company Ltd (Southern Sphere) brought an application in the high court for various orders against the minister; the DDG; the Regional Manager: Mpumalanga (RM: B Mpumalanga), Department of Mineral Resources; the Regional Manager: Limpopo (RM: Limpopo), Department of Mineral Resources; and three companies, namely Rhodium Reefs Ltd (Rhodium), Abrina 1998 (Pty) Ltd (Abrina) and Dengetenge. It is not necessary to list all the various orders that Southern Sphere sought. It suffices to say that C Southern Sphere sought an order reviewing and setting aside the grant of prospecting rights to Dengetenge and Abrina by the DDG as well as the rescission of an earlier order of the high court that the minister, or alternatively the DDG, grant certain prospecting rights to Rhodium. [3]

[3] The minister, the DDG, the RM: Limpopo and the RM: Mpumalanga D authorised the then DDG, Mr Rocha, to depose to an affidavit on their behalf. This he did, and placed before the court the state respondents' version of how various decisions had been made. In that affidavit the minister, the DDG and the two regional managers asked the high court to decide the various claims and counterclaims. They also indicated which orders the court should grant and which ones not. E

[4] Rhodium filed an answering affidavit in support of its opposition and made a conditional counter-application in terms of which it sought to have the grant of the prospecting right to Dengetenge reviewed and set aside on certain grounds if Southern Sphere's application to have it reviewed and set aside was unsuccessful. Abrina initially opposed F Southern Sphere's application but later withdrew its opposition. Dengetenge also opposed Southern Sphere's application and filed an answering affidavit in opposition.

Background [4]

[5] This matter relates to the right to prospect [5] for platinum metal group G metals and minerals generally associated with them on two farms, namely Boschkloof 331 KT and Mooimeisjesfontein 363 KT. Both farms are situated in the Limpopo Province.

[6] In 1936 Boschkloof was subdivided into two portions, namely portion 1 and the remaining extent. In 1959 the remaining extent was H

Zondo J (Mogoeng CJ concurring)

A further subdivided into two portions, one of which was called portion 2. The reduced remaining extent continued to be called the remaining extent.

[7] All the properties currently fall within the jurisdiction of the RM: Limpopo in terms of the Mineral and Petroleum Resources Development B Act [6] (MPRDA).

[8] For some years prior to the coming into operation of the Constitution, [7] Rhodium had been engaged in a prospecting project in the Steelpoort Valley. This project was known as the Kennedy's Vale Project. The project area comprised the southern parts of Boschkloof, the farm C De Goedeverwachting, the farm Belvedere, certain portions of the farm Tweefontein, and the farm Kennedy's Vale. At some point the farms Spitskop and Kalkfontein were also added to the project.

[9] Boschkloof is situated between the farms Kennedy's Vale and De Goedeverwachting. On the southeast boundary of Boschkloof is the D farm Mooimeisjesfontein.

[10] When the Constitution came into operation, De Goedeverwachting and Boschkloof fell under the province of Limpopo whilst the remainder of the project farms fell under Mpumalanga. On 20 February 2002 the Director of Mineral Development [8] (DMD) for Limpopo transferred by E way of delegation to the DMD for Mpumalanga jurisdiction in respect of the administration of mineral rights in respect of the farms Boschkloof and De Goedeverwachting.

[11] A prospecting permit was issued to Rhodium on 15 August 2001 in terms of s 6(4) of the Minerals Act, [9] the precursor to the MPRDA, in F respect of the southern parts of Boschkloof. Rhodium's prospecting permit was renewed on 5 August 2002 effective until 18 July 2003. On 7 April 2003 Rhodium lodged its application for the renewal of its prospecting contract with the Department of Mineral Resources (the department) in Mpumalanga. On 11 June 2003 Rhodium applied separately to the same functionary for the renewal of its prospecting G permit.

[12] On 30 April 2004 the whole of South Africa was divided into regions for the purpose of the MPRDA. This was pursuant to the H provisions of s 7 of the MPRDA. [10] The regions coincided with the nine

Zondo J (Mogoeng CJ concurring)

provinces of the country. Regional Managers were appointed for the A various regions. Thus, there was a Regional Manager: Limpopo, a Regional Manager: Mpumalanga, and so on.

[13] On 29 June 2004 the RM: Mpumalanga advised Rhodium in writing that its pending application would be dealt with under the MPRDA and called for certain information. In so doing the RM: Mpumalanga B purported to act under item 3(2) of sch II to the MPRDA. [11]

[14] Rhodium supplied the information requested by the RM: Mpumalanga who then acted in terms of s 16 of the MPRDA. [12] The RM: Mpumalanga submitted Rhodium's application to the department. By letter dated 14 September 2005 the RM: Mpumalanga advised Rhodium C that its application had been refused.

[15] By letter dated 20 September 2005 Rhodium advised the RM: Mpumalanga that it was considering making an application to court to have the decision to refuse its application reviewed and set aside. It also D sought a written undertaking from the RM: Mpumalanga and the DDG that they would not process any third-party applications pending the outcome of Rhodium's review application. The department did not respond to the letter.

[16] Rhodium instituted an urgent application on 17 October 2005 to E interdict the minister and her delegate from granting any rights in terms of s 17 or 23 [13] of the MPRDA in respect of the southern section of Boschkloof. It also sought to interdict the RM: Mpumalanga from accepting any applications in terms of s 16 or s 22 of the MPRDA also in respect of the southern portion of Boschkloof. The high court granted that interdict on 26 October 2005 [14] pending the finalisation of the F review proceedings which Rhodium intended launching. The interdict operated from 26 October 2005 until it was discharged by operation of law on 6 December 2006.

Zondo J (Mogoeng CJ concurring)

A [17] Rhodium launched its review application in the high court on 2 December 2005. There was no opposition from the state respondents. On 6 December 2006 the high court granted Rhodium an order reviewing and setting aside the decision not to grant Rhodium's application for a prospecting right and directing the minister and the DDG to B grant and issue to Rhodium the prospecting right applied for in respect of the property.

[18] On 15 April 2005 Southern Sphere lodged an application for prospecting rights over portions 1 and 2 and the remaining extent of Boschkloof and portion 1 and the remaining extent of Mooimeisjesfontein. C On 23 December 2005 the DDG refused Southern Sphere's application. Southern Sphere did not file a fresh application but merely rectified what the DDG had considered to be deficiencies in its application. This led to a reconsideration of the application. By letter dated 4 October 2006 the department notified Southern Sphere that it had been granted a prospecting right over portion 1 and the remaining extent D of Boschkloof and portion 1 and the remaining extent of Mooimeisjesfontein. The grant did not include portion 2 of Boschkloof. The failure to include portion 2 of Boschkloof was a typographical error.

[19] On 7 February 2006 Dengetenge lodged an application with the RM: Mpumalanga, for prospecting rights over portion 1 of Boschkloof E and portion 1 and the remaining extent of Mooimeisjesfontein. On 11 November 2006 a prospecting right over only portion 1 of Boschkloof and the remaining extent of Mooimeisjesfontein was notarially executed in favour of Dengetenge. There was no explanation why Dengetenge was not awarded portion 1 of Mooimeisjesfontein as applied for. By not F responding to Rhodium's letter of 20 September 2005 the department kept Rhodium unaware of the fact that Southern Sphere had lodged an application which was then pending.

Zondo J (Mogoeng CJ concurring)

[20] The department did not tell Dengetenge or Southern Sphere that A review proceedings were pending. So it was made impossible for Rhodium to give them notice to enable them to intervene in the proceedings.

[21] As a result of the department's failure to inform Dengetenge or B Southern Sphere of Rhodium's pending review proceedings, the high court decided Rhodium's review application in the absence of Southern Sphere and Dengetenge. This made the confusion worse and the resolution of the issues more complex. No explanation was offered by the state respondents as to why they had acted in breach of the interdict granted in favour of Rhodium. C

[22] In a letter dated 14 February 2007 to the RM: Limpopo and the RM: Mpumalanga the attorney for Southern Sphere recorded that he had been told by an...