Minister of Mineral Resources and Others v Mawetse (SA) Mining Corporation (Pty) Ltd
Jurisdiction | South Africa |
Judge | Navsa ADP, Leach JA, Majiedt JA, Zondi JA and Meyer AJA |
Judgment Date | 28 May 2015 |
Citation | 2016 (1) SA 306 (SCA) |
Docket Number | 20069/14 [2015] ZASCA 82 |
Hearing Date | 07 May 2015 |
Court | Supreme Court of Appeal |
Counsel | CDA Loxton SC (with MBL Makola) for the appellants. G Marcus SC (with N Ferreira) for the respondent. |
Majiedt JA (Navsa ADP, Leach JA, Zondi JA and Meyer AJA concurring): A
Introduction
[1] The issues in this matter are whether a prospecting right had been lawfully granted to the fifth appellant, Dilokong Chrome Mine (Pty) Ltd B (Dilokong), and, if so, whether Dilokong may lawfully exercise that right. Allied to that is the question whether that right had lapsed due to its expiry or abandonment. These questions were decided against Dilokong and in favour of the respondent (qua applicant), Mawetse (SA) Mining Corporation (Pty) Ltd (Mawetse), in the Gauteng Division of C the High Court, Pretoria, by Masipa J. Dilokong appeals with the leave of the court a quo. The first to fourth appellants, the Minister of Mineral Resources and senior officials in that Department, to whom I shall collectively refer as 'the DMR', did not participate in this appeal, although they made common cause with Dilokong in the court below and to that end filed a comprehensive answering affidavit. D
The order in the Gauteng Division
[2] The case was brought by Mawetse in the Gauteng Division as a review application. Masipa J held that —
Dilokong had failed to comply with a suspensive condition attached E to the grant of the prospecting right and had accordingly 'disabled' itself from implementing that right; and
even if there had been a lawful award of a prospecting right to Dilokong, that right had been 'lost' due to the unreasonable delay in exercising it and, as a result, the right had lapsed, as it has expired. F
Masipa J consequently issued a declaratory order that Dilokong did not hold a valid prospecting right, as it had lapsed, and, following on that conclusion, that it no longer constituted a bar to the consideration of Mawetse's application for a prospecting right. She set aside the decision of the fourth appellant, the Regional Manager, Limpopo Region, G Department of Mineral Resources (the Regional Manager), rejecting Mawetse's application for a prospecting right, and remitted that application to the third appellant, the Deputy Director-General: Mineral Development, Department of Mineral Resources (the DDG), for reconsideration within 30 days. Lastly, Masipa J dismissed Dilokong's counter-application in which it sought to compel the DMR to notarially execute the prospecting right that had been awarded to it. H
Background
[3] On 24 November 2006 Dilokong applied, in terms of s 16 of the Mineral and Petroleum Resources Development Act 28 of 2002 I (the MPRDA), for a prospecting right for chrome ore (base metals) in respect of the farm Driekop 253 KT (Driekop). The application was lodged at the office of the Regional Manager who, in his letter of acceptance dated 6 December 2006, requested Dilokong to give effect to the objects of s 2(d) of the MPRDA by submitting, amongst others, a signed shareholder agreement to the Regional Manager's office by 4 February 2007. J
Majiedt JA (Navsa ADP, Leach JA, Zondi JA and Meyer AJA concurring)
A That request was made purportedly under the provisions of s 17(4) of the MPRDA, an aspect which will be discussed in due course.
[4] On 21 June 2007 the DDG granted a power of attorney, ostensibly under s 103 of the MPRDA, to the Regional Manager to sign the prospecting right contemplated in s 17(1) in favour of Dilokong in B respect of Driekop. On that same day the DDG signed an approval of a recommendation to grant a prospecting right to Dilokong for four years subject to Dilokong, where applicable, submitting, before notarial execution of the right, all other outstanding information or documentation, including a shareholder agreement with a black economic empowerment C (BEE) entity holding not less than 26% of the equity in the operation. [1] The DDG wrote to Dilokong on 18 July 2007 to confirm that it had been granted a prospecting right in respect of Driekop. The DDG purported to exercise the Minister's delegated powers in terms of ss 103(1) and (2) of the MPRDA in respect of the grant and refusal of D prospecting rights.
[5] On 14 November 2007, the date on which the prospecting right was to be notarially executed (as it is a limited real right in terms of s 5(1) of the MPRDA), Dilokong's representatives were informed that this could not take place, due to Dilokong's failure to give effect to s 2(d) of the MPRDA in relation to the required BEE shareholding. Section 2(d) reads as E follows:
'2 Objects of Act
The objects of this Act are to —
. . .
substantially and meaningfully expand opportunities for historically F disadvantaged persons, including women, to enter the mineral and petroleum industries and to benefit from the exploitation of the nation's mineral and petroleum resources; . . . .'
Dilokong's attempts to comply with this requirement proved futile. Dilokong is a wholly owned subsidiary of ASA Metals (Pty) Ltd (ASA Metals) G which is in turn owned by East Asia Metal Investment Company Ltd and the Limpopo Development Corporation (Limdev), a Limpopo provincial government enterprise. A national government moratorium on the disposal of all mining related state assets by all organs of state prohibited Limdev from disposing of its shares in ASA Metals to a BEE entity to meet the requirements imposed upon Dilokong. The environmental-management H plan submitted by Dilokong on 2 February 2007 in compliance with s 16(4)(a) was never approved due to Dilokong's failure to comply with the s 2(d) BEE-compliance requirement.
[6] In the meantime Mawetse, completely oblivious to the facts set out above, applied in September 2009 for a prospecting right for various I minerals (including chrome) in respect of various farms, including
Majiedt JA (Navsa ADP, Leach JA, Zondi JA and Meyer AJA concurring)
Driekop. Its application in respect of Driekop was rejected in terms of A s 16(2)(b) of the MPRDA because that prospecting right had already been granted to Dilokong. [2] Upon investigation Mawetse discovered the facts set out above, in particular that Dilokong's prospecting right had not been executed, that its duration was for three years (ie contrary to the DDG's approval which was for a period of four years, an aspect to which B I shall revert shortly), and that according to Mawetse's calculation it would have lapsed on 13 November 2010. Mawetse challenged the award of the prospecting right to Dilokong in the North Gauteng High Court, Pretoria, on 20 January 2012. That challenge was met with a preliminary point being taken by Dilokong, namely that the application was premature since Mawetse had not exhausted its internal remedy, ie C an internal appeal to the Minister in terms of s 96 of the MPRDA. Mawetse's internal appeal was lodged on 28 October 2010 while its challenge in the North Gauteng High Court was held in abeyance by agreement. The Minister refused to consider Mawetse's internal appeal because the matter was considered to be 'sub judice' due to Mawetse's D pending application in the High Court. In July 2011 Mawetse, faced with this impasse, approached the North Gauteng High Court again for an order to compel the Minister to decide the internal appeal, and obtained such an order. On 16 August 2011 the Minister upheld the award of the prospecting right to Dilokong and dismissed Mawetse's E appeal. On 20 January 2012 Mawetse launched the review application, culminating in the present appeal. Counsel for Mawetse conceded in this court that at the time of Mawetse's application to the DMR, the time period in respect of the prospecting right (calculated as a four-year period) had not yet lapsed, but had lapsed at the time when Mawetse had launched its application in the court below. As stated earlier, Dilokong filed a counter-application which sought to compel the DMR to cause the F execution of the prospecting right.
[7] It is against this factual backdrop that we must determine whether Masipa J was correct in her findings. A useful starting point is to examine the provisions of the MPRDA in respect of prospecting rights.
The statutory framework G
[8] The MPRDA has been substantially amended by the Mineral and Petroleum Resources Development Amendment Act 49 of 2008. Those amendments do not apply in this case, since they were promulgated subsequent to the events material to the central issues in this case. H References to the MPRDA are therefore to the Act in its pre-amendment form. The statutory procedure in respect of an application for a prospecting right is set out comprehensively in Bengwenyama Minerals
Majiedt JA (Navsa ADP, Leach JA, Zondi JA and Meyer AJA concurring)
(Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others A . [3] Sections 16 and 17 of the MPRDA regulate the application for and the granting and duration of prospecting rights. Section 16 sets out the mechanical bureaucratic procedure for the application. The Regional Manager's office plays a central role in this process but it fulfils a very limited, clearly circumscribed role. For present purposes, the following provisions are of B importance:
Section 16(4) provides:
'(4) If the Regional Manager accepts the application, the Regional Manager must, within 14 days from the date of acceptance, notify the applicant in writing —
C to submit an environmental management plan; . . . .'
And s 16(5) reads:
'(5) Upon receipt of the information referred to in subsection (4)(a) and (b), the Regional Manager must forward the application to the Minister for consideration.'
D [9] Section 17 is of cardinal importance. It concerns the granting and duration of prospecting rights. Section 17(1) reads as follows:
'17 Granting and duration of prospecting right
(1) Subject to subsection (4), the Minister must grant a prospecting right if —
the applicant has access to financial resources and has the technical E ability to conduct the proposed...
To continue reading
Request your trial-
Oudekraal after Fifteen Years: The Second Act (or, A Reassessment of the Status and Force of Defective Administrative Decisions Pending Judicial Review)
...Advanced Par king Solutions CC 2009 5 SA 595 (C) para 34; Minis ter of Mineral Res ources v Mawe tse (SA) Mining Corporation (Pty) Ltd 2016 1 SA 306 (SCA) para 20 44 See the cases cite d in n 28 above; Pretorius (20 09) SALJ 557-563 and the authorities cited t here; Central Road Board v Mei......
-
The Notion of Constitutional Property in South Africa: An Analysis of the Constitutional Court’s Approach in Shoprite Checkers (Pty) Ltd v MEC for Economic Development, Eastern Cape 2015 6 SA 125 (CC)
...See discus sion in the text to par t 2 above.151 See also Minis ter of Mineral Resources v Maw etse (SA) Mining Corporation ( Pty) Ltd 2016 1 SA 306 (SCA) paras 19, 24, 26 and 27.40 STELL LR 2017 1© Juta and Company (Pty) those r ights.152 This does not mean that the all-impor tant social a......
-
Chamber of Mines v Minister of Mineral Resources and Another
...ZACC 14): dictum in para [640] considered B Minister of Mineral Resources and Others v Mawetse (SA) Mining Corporation (Pty) Ltd 2016 (1) SA 306 (SCA): applied Minister of Mineral Resources and Others v Sishen Iron Ore Co (Pty) Ltd and Another 2014 (2) SA 603 (CC) (2014 (2) BCLR 212; [2013]......
-
Pan African Mineral Development Co (Pty) Ltd and Others v Aquila Steel (SA) (Pty) Ltd
...(10) BCLR 1033; [2002] ZACC 15): referred to Minister of Mineral Resources and Others v Mawetse (SA) Mining Corporation (Pty) Ltd F 2016 (1) SA 306 (SCA): Minister of Mineral Resources and Others v Sishen Iron Ore Co (Pty) Ltd and Another 2014 (2) SA 603 (CC) (2014 (2) BCLR 212; [2013] ZACC......
-
Chamber of Mines v Minister of Mineral Resources and Another
...ZACC 14): dictum in para [640] considered B Minister of Mineral Resources and Others v Mawetse (SA) Mining Corporation (Pty) Ltd 2016 (1) SA 306 (SCA): applied Minister of Mineral Resources and Others v Sishen Iron Ore Co (Pty) Ltd and Another 2014 (2) SA 603 (CC) (2014 (2) BCLR 212; [2013]......
-
Pan African Mineral Development Co (Pty) Ltd and Others v Aquila Steel (SA) (Pty) Ltd
...(10) BCLR 1033; [2002] ZACC 15): referred to Minister of Mineral Resources and Others v Mawetse (SA) Mining Corporation (Pty) Ltd F 2016 (1) SA 306 (SCA): Minister of Mineral Resources and Others v Sishen Iron Ore Co (Pty) Ltd and Another 2014 (2) SA 603 (CC) (2014 (2) BCLR 212; [2013] ZACC......
-
Aquila Steel (South Africa) (Pty) Ltd v Minister of Mineral Resources and Others
...ZACC 45): dicta in paras [30] – [37] applied Minister of Mineral Resources and Others v Mawetse (SA) Mining Corporation (Pty) Ltd 2016 (1) SA 306 (SCA) ([2015] ZASCA 82): dictum in para [8] doubted B National Education Health and Allied Workers Union v University of Cape Town and Others 200......
-
Aquila Steel (SA) Ltd v Minister of Mineral Resources and Others
...Singer 1979 (3) SA 258 (W): dictum at 266A appliedMinister of Mineral Resources and Others v Mawetse (SA) Mining Corporation(Pty) Ltd 2016 (1) SA 306 (SCA): referred toNewlands Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd 2015 (4)SA 34 (SCA) ([2015] ZASCA 25): dictum in para [......
-
Oudekraal after Fifteen Years: The Second Act (or, A Reassessment of the Status and Force of Defective Administrative Decisions Pending Judicial Review)
...Advanced Par king Solutions CC 2009 5 SA 595 (C) para 34; Minis ter of Mineral Res ources v Mawe tse (SA) Mining Corporation (Pty) Ltd 2016 1 SA 306 (SCA) para 20 44 See the cases cite d in n 28 above; Pretorius (20 09) SALJ 557-563 and the authorities cited t here; Central Road Board v Mei......
-
The Notion of Constitutional Property in South Africa: An Analysis of the Constitutional Court’s Approach in Shoprite Checkers (Pty) Ltd v MEC for Economic Development, Eastern Cape 2015 6 SA 125 (CC)
...See discus sion in the text to par t 2 above.151 See also Minis ter of Mineral Resources v Maw etse (SA) Mining Corporation ( Pty) Ltd 2016 1 SA 306 (SCA) paras 19, 24, 26 and 27.40 STELL LR 2017 1© Juta and Company (Pty) those r ights.152 This does not mean that the all-impor tant social a......
-
Application and granting of rights to minerals: A trio of legal processes for optimal exploitation and protection of right holders [an analysis of Minister of Mineral Resources v Mawetse (SA) Mining Corporation (Pty) Ltd 2016 1 SA 306 (SCA)]
... OF RIGHT HOLDERS [AN ANAL YSIS OF MINISTER OF MINERAL RESOURCES V MA WETSE (SA) MINING CORPORA TION ( PTY ) LTD 2016 1 SA 306 (SCA)]Heleen van Niekerk BCOM LLB LLM (UJ) PhD ( UCT ) Post-doctoral Fellow: DST/NRF SARChI Research Chair: Mineral Law in Africa, Faculty of......