Rhino Oil and Gas Exploration South Africa (Pty) Ltd v Normandien Farms (Pty) Ltd and Another

• Jurisdiction: South Africa
• Citation: 2019 (6) SA 400 (SCA)

Rhino Oil and Gas Exploration South Africa (Pty) Ltd v Normandien Farms (Pty) Ltd and Another
2019 (6) SA 400 (SCA)

2019 (6) SA p400

Citation	2019 (6) SA 400 (SCA)
Case No	100/2018; [2019] ZASCA 88
Court	Supreme Court of Appeal
Judge	Ponnan JA, Mbha JA, Mathopo JA, Van der Merwe JA and Plasket AJA
Heard	May 31, 2019
Judgment	May 31, 2019
Counsel	A Rafik Bhana SC (with I Goodman) for the appellant.; MG Roberts SC (with E Roberts) for the first respondent.

Flynote : Sleutelwoorde

Review — Grounds — Legality — Misdirections of clerical nature — When reviewable. C

Headnote : Kopnota

In this matter an administrative body had committed misdirections in certain actions it had taken in the course of an application for the issuing of an exploration right (see [1]). These clerical actions were set aside on review, and the issue on appeal to the Supreme Court of Appeal was whether this D was competent (see [2] – [3] and [26]).

The SCA held that in the absence of prejudice to the reviewing parties flowing from the misdirections, they were unripe for review, and accordingly the orders of the reviewing court were incompetent (see [30] – [31] and [33] – [35]).

The order of the reviewing court was duly set aside and replaced with an order E dismissing the application for review (see [36]).

Cases cited

Aquila Steel (South Africa) (Pty) Ltd v Minister of Mineral Resources and Others 2019 (3) SA 621 (CC) (2019 (4) BCLR 429; [2019] ZACC 5): referred to

Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others F 2011 (4) SA 113 (CC) (2011 (3) BCLR 229; [2010] ZACC 26): referred to

Jockey Club of South Africa and Others v Feldman 1942 AD 340: dictum at 359 applied

Johannesburg Consolidated Investment Co Ltd v Johannesburg Town Council G 1903 TS 111: referred to

Mbina-Mthembu v Public Protector 2019 (6) SA 534 (ECB): referred to

Minister of Mineral Resources and Others v Mawetse (SA) Mining Corporation (Pty) Ltd 2016 (1) SA 306 (SCA) ([2015] ZASCA 82): referred to

Nedbank Ltd v Mendelow and Another NNO 2013 (6) SA 130 (SCA) ([2013] ZASCA 98): referred to

Rajah & Rajah (Pty) Ltd and Others v Ventersdorp Municipality and Others H 1961 (4) SA 402 (A): referred to

Simelane and Others NNO v Seven-Eleven Corporation SA (Pty) Ltd and Another 2003 (3) SA 64 (SCA) ([2003] 1 All SA 82): referred to.

Case Information

A Rafik Bhana SC (with I Goodman) for the appellant.

MG Roberts SC I (with E Roberts) for the first respondent.

An appeal from the Western Cape Division (Dlodlo J).

Order

1.

The appeal is upheld with costs, including the costs of two counsel.

2.

The order of the court below is set aside and replaced with the J following order:

2019 (6) SA p401

'(a)

The application is dismissed with costs, including the costs of A two counsel.'

Judgment

Plasket AJA (Ponnan JA, Mbha JA, Mathopo JA and Van der Merwe JA concurring):

[1] The appellant, Rhino Oil and Gas Exploration South Africa (Pty) Ltd (Rhino), B lodged an application with the second respondent, the South African Agency for Promotion of Petroleum Exploration and Exploitation SOC — also known as the Petroleum Association of South Africa (PASA) [1] — in terms of s 79(1) of the Mineral and Petroleum Resources Development Act 28 of 2002 (the MPRDA) for a petroleum C exploration right. The application was in respect of nearly 5500 farms in KwaZulu-Natal covering an area of just under two million hectares. Some of these farms were owned by the first respondent, Normandien Farms (Pty) Ltd (Normandien). [2]

[2] Normandien brought an application in the Western Cape High Court, D Cape Town for orders: (a) setting aside PASA's acceptance of Rhino's application; (b) setting aside the notices published by PASA in terms of ss 10(1)(a) and (b) of the MPRDA, that the application had been accepted and inviting interested and affected persons to submit comments on the application; (c) setting aside PASA's acceptance of a scoping report submitted to it by Rhino; and (d) interdicting Rhino from E submitting an environmental impact assessment and environmental management programme to PASA.

[3] In the court below, Dlodlo J granted these orders with costs. Rhino appeals against those orders with Dlodlo J's leave. F

[4] In this judgment, I shall first set out the process that an applicant for an exploration right is required to follow, from lodgement to decision. I shall then consider the salient facts of this case. Finally, I shall turn to the application of the law to those facts.

The process G

[5] The long title of the MPRDA states that it makes provision for 'equitable access to and sustainable development of the nation's mineral and petroleum resources' and 'matters incidental therewith'. It does so, inter alia, by placing the mineral and petroleum resources of the country H

2019 (6) SA p402

Plasket AJA (Ponnan JA, Mbha JA, Mathopo JA and Van der Merwe JA concurring)

under A the custodianship of the state for the benefit of all South Africans. [3] The consequences of this for the exploitation of mineral and petroleum resources are spelt out in s 3(2):

'As the custodian of the nation's mineral and petroleum resources, the State, acting through the Minister, may —

(a)

B grant, issue, refuse, control, administer and manage any reconnaissance permission, prospecting right, permission to remove, mining right, mining permit, retention permit, technical co-operation permit, reconnaissance permit, exploration right and production right; and

(b)

in consultation with the Minister of Finance, prescribe and levy, C any fee payable in terms of this Act.'

[6] C Chapter 6 of the MPRDA deals with petroleum exploration and production. It is to the provisions of this chapter that I now turn.

[7] Section 69, the first section of ch 6, states that the chapter 'provides for the granting of exploration rights and production rights and the D issuing of technical co-operation permits and reconnaissance permits'. For this purpose, s 69(2)(a) provides that various sections in ch 4, 5 and 7, as well as in sch II, apply to the application of ch 6, with the necessary changes.

[8] Section 69(2)(b) provides specifically that in applying the provisions E of those other chapters:

'Any reference in the provisions referred to in paragraph (a) to —

(i)

minerals, must be construed as a reference to petroleum;

(ii)

mining, must be construed as a reference to production;

(iii)

mining area, must be construed as a reference to production area;

(iv)

mining rights, must be construed as a reference to production F rights;

(v)

prospecting, must be construed as a reference to exploration;

(vi)

prospecting area, must be construed as a reference to exploration area;

(vii)

prospecting rights, must be construed as a reference to exploration rights; and

(viii)

G reconnaissance permission, must be construed as a reference to reconnaissance permit.'

[9] It is not in dispute that PASA was appointed by the Minister as a designated agency for the performance of functions in terms of ch 6. Section 71 sets out its functions. These functions cover a wide span and H include: promoting both onshore and offshore exploration and production of petroleum; [4] receiving applications for, inter alia, exploration rights; [5] and evaluating applications lodged with it and making recommendations to the Minister. [6]

[10] Section 79 regulates applications for exploration rights. Section 79(1) I is concerned with the lodging of applications. It provides:

2019 (6) SA p403

Plasket AJA (Ponnan JA, Mbha JA, Mathopo JA and Van der Merwe JA concurring)

'(1) Any person who wishes to apply to the Minister for an exploration A right must lodge the application —

(a)

at the office of the designated agency;

(b)

in the prescribed manner; and

(c)

together with the prescribed non-refundable application fee.'

[11] Once an application has been lodged, s 79(2) requires that PASA B 'must', within 14 days of receipt, accept the application if —

'(a)

the requirements contemplated in subsection (1) are met;

(b)

no other person holds a technical co-operation permit, exploration right or production...