Meepo v Kotze and Others

• Jurisdiction: South Africa
• Judgment Date: 29 June 2007
• Citation: 2008 (1) SA 104 (NC)

Meepo v Kotze and Others
2008 (1) SA 104 (NC)

2008 (1) SA p104

Citation	2008 (1) SA 104 (NC)
Case No	Case No 869/2006
Court	Northern Cape Division
Judge	Lacock J and Olivier J
Heard	May 16, 2007; May 22, 2007; June 23, 2007
Judgment	June 29, 2007
Counsel	FWA Danzfuss SC for the applicant; CN Van Heerden (with RS Willis) for the first and second respondents; SA Nthai SC (with SP Mothle) for the third and fourth respondents

Flynote : Sleutelwoorde E

Mines and minerals — Prospecting rights — Nature and ambit — Limitations — Compulsory consultations — Consultations with landowner and interested and affected parties — Consultations with interested/ affected parties and landowner before granting of right not relieving holder of obligation to consult with landowner after granting F of right but before commencing work — Mineral and Petroleum Resources Development Act 28 of 2002, ss 5(4)(c), 10(2) and 16(4)(b).

Mines and minerals — Prospecting rights — Granting — Review — Exemption from exhaustion of internal remedies under s 7(2)(c) of Promotion of Administrative Justice Act 3 of 2000 applicable to matters resorting under s 17 of Mineral and Petroleum Resources Development G Act 28 of 2002.

Mines and minerals — Prospecting rights — Granting — Review — Regional manager acting ultra vires in accepting and processing application for prospecting right in disregard of pending application — Decision set aside — Mineral and Petroleum Resources Development Act 28 of 2002, s 17. H

Mines and minerals — Prospecting rights — Granting — Appeal — Exclusion of access to courts before exhaustion of internal remedies — Appeal pending at time of institution of review proceedings but finalised by time of hearing of review application — Applicant having substantially exhausted internal remedies — Mineral and Petroleum Resources Development Act 28 of 2002, ss 17 and 96(3). I

Headnote : Kopnota

In enacting the Mineral and Petroleum Resources Development Act 28 of 2002 the legislature did away with the traditional concept of mineral rights. The State is now the custodian of the mineral and petroleum resources of South Africa (s 3). The Act makes no provision for compulsory compensation of a landowner for the surface use of his property for the purposes of J

2008 (1) SA p105

prospecting or mining for minerals except in cases of expropriation (sch 2 para 12, or arbitration (s 54). The holder of a A prospecting right now has a limited real right in the land that is the subject of the right, and this right has to be registered (ss 5(1) and 19(2)(a)). The Act asserts the prevalence of the State's control over mineral resources and the concomitant ousting of the mineral rights of the landowner or the holder of mineral rights (s 3(2)). (Paragraph [8.1] at 110G - J.) B

It is clear from the Act that there is a conflict between the interests and/or rights of a holder of a prospecting or mining right and those of the landowner. When interpreting the applicable provisions of the Act and more particularly those provisions that may be suspect of more than one construction, preference should be given to that construction which would result in the most rational balance between these conflicting interests and/or rights. (Paragraphs [8.2] and [8.3] at 111A - C.) C

The first respondent (the respondent), acting in terms of the Minerals Act 50 of 1991, lodged with the third and fourth respondents an application for a diamond prospecting right on the farm of which he was the owner. Before the respondent was informed of the outcome of his application and after the commencement of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), the D applicant lodged a similar application under the MPRDA, which was granted. The respondent appealed the grant of the right in terms of the provisions of s 96 of the MPRDA. When the respondent refused to allow the applicant access to the farm to exercise his right, the applicant approached the High Court for orders declaring that he was entitled to access to and to prospect for diamonds on the farm and directing the respondent to allow him to do so. The E respondent resisted the application on the ground that the applicant had failed to consult with the land-owner subsequent to the grant of the right and before demanding access to the farm, as was required of him in terms of the provisions of s 5(4)(c) of the MPRDA. The applicant replied that the s 5(4)(c) consultation was no longer necessary in light of his compliance with the provisions of ss 10(2) and 16(4)(b) of the MPRDA. The F respondent counter-applied for (i) the review and setting aside of the decision of the third and fourth respondents to grant the applicant's application; and (ii) an order directing the third and fourth respondents to receive his application made under the old Minerals Act and to process it as a pending application under the MPRDA. The applicant contended in limine that the counter-application had been lodged prematurely as the respondent G had not first exhausted his internal remedies, as was required by the provisions of s 96(3) of the MPRDA. The applicant also contended that the provisions of s 7(2)(c) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) were applicable to matters resorting under the MPRDA.

Held, in respect of the main application, that there was no merit in the respondent's argument that the applicant's H compliance with the provisions of ss 10(2) and 16(4)(b) of the MPRDA dispensed with the need for consultation in terms of the provisions of s 5(4). On a proper interpretation of s 5(4), post the granting of a prospecting right and before the commencement of prospecting activities on the land which was the subject of the right, proper notice of the intention to enter the land for purposes of prospecting had to be given to the landowner, followed I by a consultative process. (Paragraphs [12] and [15] - [16] at 113H and 116G - H.)

Held, in respect of the point in limine, that it could never have been the case that the provisions of s 7(2)(c) of PAJA were ousted by the provisions of s 96 of the MPRDA. (Paragraph [31] at 119H.)

Held, further, that by the time of the hearing of the matter, the internal remedies J

2008 (1) SA p106

had indeed been exhausted and the point in limine ought not to have been persisted with. (Paragraph [35] at 120E.) A

Held, further, that the point in limine could not stand. (Paragraph [44] at 122F.)

Held, further, as to (i), that the prospecting right was invalid because the third respondent acted ultra vires in three respects:

(1)

The prospecting rights became vested in the holder of the rights upon the granting of the right, ie upon B execution of the relevant notarial deed. The notarial deed was executed by the third respondent and the applicant's representative. However, he was not authorised to grant the right on behalf of either the minister or the deputy director general (the DGG). (Paragraphs [46.3] and [47] - [48] at 125D - G and 126B - D.) C

(2)

The terms and conditions upon which the right was granted were determined by the third respondent and not by the DGG. The third respondent was not authorised to do so. (Paragraph [48.3] at 128B - C.)

(3)

The third respondent was not authorised to sign the right on behalf of the DGG. (Paragraphs [49.1] and [49.3.3] at 128D and 129C.)

Held, further, that the applicant's right was accordingly of no force and effect and had to be set aside. (Paragraph [51] at D 130B.)

Held, further, as to (ii), that the respondent's application had still been pending when the applicant had lodged his application under the MPRDA. The acceptance and processing of the applicant's application in disregard of the respondent's pending application was therefore irregular and ultra vires the powers of the third respondent and/or the DDG and the applicant's E prospecting right fell to be reviewed and set aside. (Paragraph [60] at 134A - B.)

Held, further, that it followed that the respondent's application ought to have been processed as a pending application under the MPRDA. The respondent was therefore entitled to the relief requested in prayer (ii) of the counter-application. (Paragraph [60] at 134B - C.) Main application dismissed and counter-application F upheld.

Held, further, that although s 96(3) of the MPRDA was prima facie peremptory, the fact that the internal remedies had in fact been exhausted by the time the matter was heard constituted substantial and sufficient compliance with those provisions. (Paragraph [38] at 121A - B.) G

Cases Considered

Annotations

Reported cases

Absa Bank Bpk h/a Bankfin v Louw en Andere 1997 (3) SA 1085 (C): compared

Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd 2007 (2) SA 363 (SCA): dictum at 365F applied H

Blue Circle Ltd v Valuation Appeal Board, Lichtenburg, and Another 1991 (2) SA 772 (A): compared

Chotabhai v Union Government (Minister of Justice) and Registrar of Asiatics 1911 AD 13: dictum at 24 applied

Director: Mineral Development, Gauteng Region, and Another v Save The Vaal Environment and Others 1999 (2) SA 709 (SCA) ([1999] 2 All SA 381): dictum at 718E - 719D (SA) applied I

Douglas Hoërskool en 'n Ander v Premier, Noord-Kaap, en Andere 1999 (4) SA 1131 (NC) ([1999] 4 All SA 146): referred to

Ex parte Mothuloe (Law Society, Transvaal, Intervening) 1996 (4) SA 1131 (T): referred to

JEM Motors Ltd v Boutle and Another 1961 (2) SA 320 (N): referred to. J

2008 (1) SA p107

Le Grand (t/a Jeannes) v Carmelu (Pvt) Ltd (t/a Lynwood Fashions) 1980 (1) SA 240 (ZRA): dictum at A 242D - G applied

Maharaj and Others v Rampersad 1964 (4) SA 638 (A): dictum at 646C - E applied

Malokoane v Multilateral Motor Vehicle Accidents Fund 1999 (1) SA 544 (SCA) ([1998] 4 All SA 486): compared

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