Global Pact Trading 207 (Pty) Ltd v The Minister of Minerals and Energy

• Jurisdiction: South Africa
• Judge: Kruger J, Van der Merwe J
• Judgment Date: 14 June 2007
• Docket Number: 3118/06
• Court: Orange Free State Provincial Division
• Hearing Date: 21 May 2007
• Citation: 2008 JDR 1067 (O)

Kruger J:

THE COURT:

[1]

The essential relief claimed in this application is the review and setting aside of a decision refusing the grant of a prospecting right to the applicant in terms of section 17 of the Mineral and Petroleum Resources Development Act, No. 28 of 2002 ("the Act").

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Kruger J

[2]

It is clear from the papers that the decision to refuse the prospecting right applied for by the applicant, was taken by the third respondent. In terms of section 17 of the Act the power to grant or refuse a prospecting right is given to the first respondent. Section 103 of the Act provides that the first respondent may, subject to a qualification not presently relevant, in writing delegate any, power conferred on him or her by or under the Act. At the hearing before us it was argued on behalf of the applicant that it was not shown that the power in question was delegated by the first respondent to the third respondent. In the founding affidavit however, it was clearly accepted by the applicant that the power in terms of section 17 of the Act was delegated to the third respondent. In fact, the applicant relied on that delegation in the context of whether the applicant could or should have exhausted an internal remedy, to which aspect we will return shortly. In the answering affidavit the third respondent states under oath that the power in question was delegated to him in terms of a written delegation document attached to the papers. The delegation document provides that if any organisational changes occur which alter the names of existing designations, any power delegated in terms thereof

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Kruger J

is deemed to have been delegated to equivalent ranks which arise from such changes. In the circumstances we regard the attempt on behalf of the applicant to rely on a minor difference in the description of the post of the third respondent contained in the written delegation document, opportunistic and without substance. We find on the totality of the evidence that the power in terms of section 17 of the Act was at all times relevant hereto in writing delegated by the first respondent to the third respondent.

[3]

On behalf of the respondents it was argued that the application should be dismissed without consideration of the merits thereof for failure by the applicant to exhaust internal remedies available to it. Relying in this regard in the first place on the provisions of section 96 of the Act, it was specifically argued that the remedy of appeal to the first respondent is available to the applicant.

[4]

According to its heading, section 96 of the Act deals with internal appeal process and access to courts. This section provides as follows:

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Kruger J

"96

Internal appeal process and access to courts

(1)

Any person whose rights or legitimate expectations have been materially and adversely affected or who is aggrieved by any administrative decision in terms of this Act may appeal in the prescribed manner to-

(a)

the Director-General, if it is an administrative decision by a Regional Manager or an officer; or

(b)

the Minister, if it is an administrative decision by the Director-General or the designated agency.

(2)

An appeal in terms of subsection (1) does not suspend the administrative decision, unless it is suspended by the Director-General or the Minister, as the case may be.

(3)

No person may apply to the court for the review of an administrative decision contemplated in subsection (1) until that person has exhausted his or her remedies in terms of that subsection.

(4)

Sections 6, 7 (1) and 8 of the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000), apply to any court proceedings contemplated in this section."

[5]

The question then is whether the remedy of appeal to the first respondent in terms of section 96 of the Act is available to the applicant in the circumstances of this case. For the reasons that follow, we think that it is not.

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Kruger J

[6]

In his well-known work on administrative law, Administratiefreg, p. 52 — 57, Prof. Marinus Wiechers distinguishes in the field of delegation of public power inter alia between what he terms deconcentration and decentralisation. Delegation of power in the form of decentralisation takes place when powers are transferred to an independent organ or body which carries out these powers and functions entirely in its own name. As a rule the delegans (that is the delegating authority) has no authority to act on behalf of the delegate and has no control over the independent body other than appointment of...