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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 39808/2007

DATE: 18 November 2008

In the matter between:

BENGWENYAMA MINERALS (PTY) LTD 1^st Applicant

BENGWENYAMA-YE-MASWAZI TRIBAL COUNCIL 2^nd Applicant

THE TRUSTEES FOR THE TIME BEING OF THE 3^rd Applicant

BENGWENYAMA-YE-MASWAZI TRUST

and

GENORAH RESOURCES (PTY) LTD 1^st Respondent

Formerly Tropical Paradise 427 (pty) Ltd

THE MINISTER OF MINERALS AND ENERGY 2^nd Respondent

THE DIRECTOR GENERAL OF THE DEPARTMENT OF 3^rd Respondent

MINERALS AND ENERGY

THE REGIONAL MANAGER, LIMPOPO REGION, 4^th Respondent

POLOKWANE OF THE DEPARTMENT OF

MINERALS AND ENERGY

THE DEPUTY DIRECTOR GENERAL OF 5^th Respondent

THE DEPARTMENT OF MINERALS AND ENERGY

BENGWENYAMA-YE-MASWAZI ROYAL COUNCIL Intervening Party

JUDGMENT

HARTZENBERG J:

[1] This is an application for the review and setting aside of the decision to award, and the award, of a prospecting right to the first respondent, during or about September 2006

in terms of the provisions of section 17 of the Mineral and Petroleum Resources Development Act, 28 of 2002 (“the Act”), in respect of the farms Nooitverwacht 324 KT and Eerstegeluk 327 KT, in the Magisterial District of Sekhukhuneland, Limpopo Province (“the properties”). Simultaneously the first applicant applies for a directive that the prospecting right be awarded to it, or, alternatively, that it’s application for the right be considered.

[2] The first applicant is Bengwenyama Minerals (Pty) Ltd (“Bengwenyama Minerals”), a limited liability company. The second applicant is the Bengwenyama-ye-Maswati Tribal Council (“the Tribal Council”) and the third to the fourteenth applicants are the trustees for the time being of the Bengwenyama-ye-Maswazi Trust (“the Trust”). The first respondent is Genorah Resources (Pty) Ltd (“Genorah”), a limited liability company that is the holder of prospecting rights over five adjoining farms i.e. De Kom 252 KT, Eerstegeluk 327 KT, Garatouw 282 KT, Hoepakrantz 291 KT and Nooitverwacht 324 KT. The application was initially made in the name of Tropical Paradise 427 (Pty) Ltd before it changed its name. For the sake of convenience I shall refer to steps taken in the previous name as steps taken by Genorah. The second to the fifth respondents are respectively the Minister, the Director-General, the Regional Manager, Limpopo Region and the Deputy Director-General of the Department of Minerals and Energy (“the Department”). When the matter was about to be argued there was an application to intervene by the Bengwenyama-ye-Maswati Royal Council (“the Royal Council”). In a separate ruling I have provisionally granted leave to the Royal Council to intervene.

[3] As a result of the ruling further affidavits were exchanged between the Royal Council and the applicants. I have also given leave for the filing of further affidavits by the Department and an answer thereto and such affidavits have been filed. Moreover the parties have all favoured me with additional heads of argument which were very helpful.

[4] The applicants allege that the position of the first applicant is different from that of Genorah. The second and third applicants maintain that they represent the community and that the community has decided to use the first applicant as a vehicle to exercise its mineral rights in terms of the Act. It is their case that the community will benefit tremendously if the first applicant can obtain the prospecting rights. On the other hand they maintain that Genorah has applied for the prospecting rights purely for its own gain and that the community stands to lose a lot if their application is unsuccessful. The issues become very intricate because of allegations and counter-allegations that it is not really the Bengwenyama community (“the community”) that stands to benefit directly from the grant of such rights but only three individuals who were involved in the orchestration of the competing applications for the relevant rights. On behalf of Genorah it is alleged that the deponent to Bengwenyama Minerals’ founding affidavit Mr. Zet Maphanga (“Maphanga”) and his friend, who deposed to a confirmatory affidavit, Mr. Vusi Mhlungu (“Mhlungu”), are promotors and directors of Bengwenyama Minerals, who stand to benefit from the grant of the prospecting rights to the first applicant. In particular it is alleged that Maphanga is not a member of the Tribal Council and that Mhlungu, who is a Zulu from Kwazulu Natal, is not even a member of the community. On behalf of the applicants it is alleged that Mr. Maredi Wilson Mphahlele (“Mphahlele”) who deposed to Genorah’s answering affidavit, was involved with the preparation of its application and that he stands personally to benefit from the grant of the rights to Genorah.

[5] There are a number of issues between the parties.

5.1 Whether there was proper authorization of the officials who took the decision to award the prospecting rights to the first respondent and of the officials who awarded the prospecting right to it;

5.2 The applicants contend that the first applicant’s application was brought in terms of section 104 of the Act and that that entails that they are entitled to preferent treatment in terms of the Act. All the respondents deny that.

5.3 It is disputed that the first respondent had a proper consultation with the

Bengwenyama-ye-Maswazi community, as is required by the Act;

5.4 The validity of the award is attacked on the basis that Genorah’s application did not comply with environmental requirements of the Act and in respect of notice to the community;

5.5 The first respondent contends that as the application was brought in terms of the Promotion of Administrative Justice Act, No 3 of 2000 (PAJA), it has been brought outside of the 180 days allowed for in PAJA , and is accordingly time-barred.

Chronology

[6] The following facts, circumstances and dates are relevant:

6.1 It is common cause that the community has been entitled to occupation of Nooitverwacht for more than a century. As for Eerstegeluk it was still, in terms of a Government Notice No. R 9 of the then Lebowa Government, defined to fall within the area of jurisdiction Roka-Pasha Phokwane Local Government. There was however a recommendation that it was to be restored to the Bengwenyama-ye-Maswati community.

6.2 It is not in dispute that the community fits the definition of a community in terms of section 1 of the Act and apart from the factual situation that Eerstegeluk still falls within the jurisdiction of the Roka Pasha Phokwane Local Government, the community’s claim to the right to become owner of

the properties and its interest in respect of the possible exploitation of the mineral rights, are not in dispute.

6.3 The first respondent’s application for prospecting rights for Crome ore, Copper ore, Nickel ore, Platinum Group Metals, Sulpher and Sulpher in Pyrite on the Farms De Kom, Garatouw, Hoepakrantz, Nooitverwacht, Eerstegeluk and De Goedverwacht was submitted, under its then name, Tropical Paradise Trading (Pty) Ltd, with the Regional Manager on 8 February 2006.

6.4 On 20 February 2006 the regional manager informed the first respondent that its application was accepted as it complied with section 16(2) of the Act and that six copies of an environmental management plan had to be submitted not later than 21 April 2006.

6.5 On the 8^th and 9^th of June 2006 a document, entitled “Heads of Agreement” was signed on behalf of the Bengwenyama- Ye-Maswati Trust, Zevoli 19 (Pty) Ltd and Red Arrow Capital (Pty) Ltd and by Mhlungu and Maphanga. Paragraph 3.1.5 thereof recorded that as the parties had resolved to form a joint venture, a joint venture that would lodge an application for a license and wished to position itself as a “black empowered enterprise” had been formed.

6.6 On the 14^th July 2006 the first applicant submitted its application for a prospecting right. The application form indicated that the first applicant was the applicant for the rights and that Maphanga was its director.

6.7 On 27 July 2006 the Regional Manager informed the first applicant by registered letter that its application for a prospecting right had been accepted in terms of section 16 of the Act¹. The first applicant was informed that its environmental management plan was to be submitted not later than 26

September 2006 and that there were five earlier applications for the same minerals, one of which was the application of the first respondent. The first applicant was further informed that its application was to be “processed in accordance with the provisions of Section 9 of the Act”²

6.8 On 28 August 2006 the Deputy Director signed an approval of the grant of the prospecting rights in favour of Genorah and granted a power of attorney to the Regional Manager: Limpopo Region to sign the prospecting right contemplated in section 17 (1) in favour of Genorah in respect of chrome ore, cobalt, copper ore, nickel ore and platinum group metals on the farms De Kom 252KT, Garatouw 282KT, Hoepakrantz 291KT, Nooitverwacht 324KT and Eerste Geluk 327KT, district of Sekhukhune

6.9 On 8 September 2006 the Regional Manger informed Genorah that the Deputy Director-General had approved the granting of the prospecting right and that it had to be notarially executed within a period of sixty days.

6.10 The Regional Manager, alleging that he was duly authorized thereto, and one Mphahlele, on behalf of the first respondent, attended to the notarial execution of the grant of the prospecting right by the Minister to the first respondent on 12 September 2006.

6.11 On the 15^th and 17^th September 2006 the parties to the “Heads of Agreement”, mentioned in 6.5 above, signed a written agreement which replaced the “Heads of Agreement”

6.12 The first respondent furnished financial guarantees in respect of the environmental rehabilitation of the mined areas on 15 September 2006.

6.13 The first applicant was advised during December 2006 that its application for a prospecting right had been refused.

6.14 On 17 January 2007, and after a written request by the attorneys for the first applicant, the Department provided the documents relevant for Genorah’s application and the grant of the prospecting right to it, to the first applicant.

6.15 The attorney for the first applicant addressed a letter to the Minister dated 13^th February 2007 in which it was stated that the first applicant applied for a prospecting permit in terms of section 16(1) of the Act on 10 May 2006. He dealt at length with the merits of his client’s application and the demerits of the first respondent’s application and maintained that wrong information had been supplied by the first respondent. Relying on section 47 of the Act he urged the Minister to cancel or suspend the first respondent’s prospecting right.

6.16 In a letter dated 9 March 2007 the first applicant urged the Minister to uphold the appeal and referred specifically to section 104 of the Act as “(i) has substantially come to our attention that there additional grounds under the Act that are relevant to our claim.

6.17 FA 37 is a letter dated 14 June 2007 by the Department to Mr. Nahan, of the first applicant, in which the first applicant is advised to institute review proceedings.

6.18 The notice of motion was issued on 22 August 2007.

Section 104 of the Act.

[7] Before discussing any of the other issues in this matter, it is necessary to examine an aspect that was heavily relied upon by the applicants e.g. that their application is something different than the application of the first respondent, in that it was a community

application, that falls within the ambit of section 104 of the Act and which enjoys the protection of that section.

[8] Section 16 of the Act regulates the bringing of applications for prospecting rights³. “Any person” can apply for the rights. The application must be lodged at the office of the Regional Manager. The Regional Manager receives the application. If it complies with the requirements the Regional Manager notifies the applicant. If it does not, it returns the application to the applicant. The Regional Manager calls for an environmental management plan and for consultation with the landowner or occupier. Upon receipt of the information the Regional Manager sends the application to the Minister for consideration. In terms of

section 17 the Minister has to grant a prospecting right if the applicant has financial resources and the technical ability to conduct the operation optimally, if the estimated expenditure is compatible with the operation and the duration thereof, if the prospecting will not result in unacceptable pollution, ecological degradation or damage to the environment and the applicant has the ability to comply with the provisions of the Mine Health and Safety Act.

[9] Section 104 provides for the grant of preferent prospecting or mining rights in respect of communities⁴. The application is to be lodged with the Minister. The Minister must grant the right if the community can prove that it will contribute to the development and social upliftment of the community, can submit a development plan, can prove that the envisaged benefits of the project will accrue to the community and that the community has access to technical and financial resources to exercise the right. The right is valid for five years and can be renewed for a further maximum period of five years and cannot be granted where prospecting or mining or similar rights had already been granted.

[10] An application in terms of section 16 of the Act is directed to the Regional Manager and it is an application for the grant of “prospecting rights”, whereas an application


in terms of section 104 is an application directly to the Minister and for a “preferent right to prospect”. A prospecting right is defined in section 1 as “the right to prospect granted in terms of section 17(1)”. In both sections 16 and 17 the concept of “prospecting rights” is used. Moreover it is clear that the grantee of a “prospecting right” must have complied with environmental requirements by having submitted an environmental management plan which has shown that there will not be pollution, ecological degradation or damage to the environment. The grantee of “prospecting rights” must have shown that it can comply with
the Mine Health and Safety Act. It is not necessary for the applicant for a ‘prospecting right” to show that its operation will contribute towards the development and social upliftment of the community. On the other hand the applicant for a “preferent right to prospect” must persuade the Minister that if the right is granted to it, it will redound to the benefit of the community. It is not necessary to address the impact on the environment or the compliance with the Mine Health and Safety Act. It seems as if the Legislature wanted to give some sort of preference to communities who live on land underlain by minerals, in the sense that if they can arrange for the exploration of the minerals in a way where they can benefit from it, they must be given the right to do so. Where they can persuade the Minister that they will be able to do so, in the not so distant future, section 104 empowers the Minister to protect their right to apply for a prospecting right for a period of time so that they can get their ducks in a row. Interestingly enough attached to the General Power of Attorney in which powers were delegated by the Minister to officials in the Department is a schedule of powers delegated. Powers are delegated in respect of many sections in the Act such as sections 16 and 17. There is however no delegation of the Minister’s powers in terms of section 104. I do not believe that the Legislature had in mind that communities, exploring the minerals on the land on which they live, were to be exempt from the duty to protect the environment or to mine without complying with the requirements of the Mine Health and Safety Act. Before the



holder of the “preferent right to prospect” will actually be entitled to prospect, it will have to obtain the right provided for in section 17(1), by bringing a section 16 application.

[11] The first applicant’s application was definitely not an application for a preferent right. It was an out- and-out application for a prospecting right. It was understood by the Department as such an application and the first applicant was requested to submit an environmental management plan. It submitted such a plan. The reliance at this stage on section 104 is clearly an afterthought. It was stated, in the letter by the first applicant’s attorneys dated 9 March 2007, to have come to the attention of the first applicant after it had
learned that Genorah’s application had been granted. There can be no doubt that Genorah’s application preceded the first applicant’s application and had to be dealt with before it.

The Application to Intervene

[12] The whole purpose of the application to intervene is to counter Bengwenyama Minerals’ claim that it on behalf of the second- and the third applicants brought its application which in fact is a community application. A number of prominent members of the community, claiming to be acting on behalf of the Royal Council, disputed that allegation and wanted to intervene to persuade the court that the Tribal Council has become defunct and was not able to and did not support the applicant’s application. It also wanted to show that the objects of the trust were not really to cause the upliftment of the community as community. On the whole the purpose of the application to intervene was to show that there was no difference between the two competing applications and that the prospects of the community to benefit were no different whether the applicant’s application succeeded or not.

[13] In the light of the finding that the application of Bengwenyama Minerals was not a community application the whole question of intervention has become academic. It makes
no difference whether the Kgosi supports the applicant or the first respondent or whether the fact that the Kgosi supports the one side or the other is conclusive of the question of where the support of the community lies. Likewise it is not relevant whether the Tribal Council has become defunct or whether the application to intervene could be brought in the name of the Royal Council without the active support of the Kgosi. It is also not necessary to decide whether the community will be better off if the first applicant mines the minerals and Maphanga and Mhlungu and the trust have an interest in the first applicant or whether the Genorah mines the minerals and Mhpahlele has an interest in Genorah. The fact that the intervening party was at all times aware of the application, but could not intervene because of
a lack of funds, before at the very last moment, is indicative that an order for costs against it will be incapable of execution. In the circumstances the Royal Council’s provisional joinder as a party is confirmed but no further order is made in respect of the application to intervene either for or against the Royal Council.

Is the application to fail for failure to have been brought earlier?

[14] It is a fact that the one decision which the applicants want to have reviewed, the award of the prospecting right to the first respondent, was taken on 28 August 2006 and that the application for the review thereof was only signed by the attorney for the applicants on 21 August 2007 and the notice of motion issued on 22 August 2007. That was 359 days after the decision had been taken. In terms of section 7(1) of the Promotion of Administrative Justice Act, No. 3 of 2000 (“PAJA”) “proceedings for judicial review in terms of section 6(1) must be instituted without unreasonable delay and not later than 180 days after the date” ⁵ Of


course the applicant must have been aware of the decision or ought reasonably be expected to have been aware thereof. In addition thereto the proceedings may not be instituted before the applicant’s internal remedies have been exhausted. It is the first respondent’s case that the first applicant was aware of the decision to award the prospecting rights to the first respondent during December 2006⁶ and that it had no internal remedies to exhaust. The applicant maintains that it was not entitled to bring the application before it had exhausted its internal remedies. In this regard it relies on the provisions of sections 47 and 96 of the Act.
The first respondent denies that the provisions of either section 47⁷ or of section 96⁸ afforded possible internal remedies to the first applicant.

[15] Before dealing with the different issues it is perhaps apposite to give a very concise chronology of the important dates that are relevant to decide whether the applicants’ application was brought in good time:

15.1 The decision that the applicants want to be set aside was taken on 28 August 2006, conveyed to Genorah on 8 September 2006 and notarially executed on 12 September 2007.

15.2 The applicants became aware of it during December 2006

15.3 During December 2006 a letter was addressed to the Department for access to the records of the application by the first respondent⁹.

15.4 The documents were available on 17 January 2007.¹⁰

15.5 On 13 February 2007 the applicants wrote an eight page letter to the department complaining that there had not been proper consultation with the community and formally appealed against the grant of the propecting rights to the first respondent in terms of section 96 of the Act.

15.6 In a letter dated 9 March 2007 the first applicant augmented its appeal to have the grant of the rights set aside by stating that the existence of section 104 of the Act had come to their attention and that that is consistent with section 25 of the Constitution.

15.7 On 14 June 2007 the Director-General wrote a letter to Mr. Nahan, who dealt with the Department on behalf of the first applicant, informing him that the matter is sub judice and that as the right had already been granted to Genorah the matter had to be decided upon review.

15.8 On 21 August 2007 the application was launched.

[16] The first aspect that is to be addressed is the first applicant’s letter dated 13 February 2007. Was the appeal brought in time in terms of the Act and the regulations promulgated in terms of the Act? Regulation 74 (1) of the Mineral and Petroleum Resources Development Act Regulations, published on 23 April 2004 under Government Notice R 527 in Government Gazette No. 26275 provides that any person who appeals in terms of section 96 against an administrative decision must within 30 days of having become aware of the decision or of the date on which it should reasonably have become aware of the decision lodge a written appeal to the Director General or to the Minister, as the case may be.

[17] In this matter the applicants became aware of the decision, already during December 2006. It wrote a letter requesting insight in Genorah’s application also already during December 2006. By 17 January 2007 it had been supplied with all the necessary documents. Assuming in its favour that it only became aware of the decision on 31
December 2006, the 30 day period would have expired by 30 January 2007. There is no explanation in the papers why the appeal to the Minister had not been lodged before 30 January 2007 or why there was not an application for the late submission of the appeal. I shall deal with the question whether the fact that the letter was out of time rendered the whole appeal a nullity, as was argued by Mr. Leech later in this judgment.

[18] However that may be, the next question is whether there was a right of appeal to the Minister. The applicants rely on sections 47 and 96. Section 47 is an empowering section, empowering the Minister to take action if the holder of the right exercises his rights in contravention of the Act, breaches any material term of the right, permit or permission, contravenes the approved environmental management program or has submitted inaccurate, incorrect or misleading information. The section does not afford a right to third parties to



induce the Minister to take such action. In my view that is not an internal process available to affected third parties to have administrative decisions reviewed.

Who made the decision?

[19] Before dealing with the issue whether the process provided for in section 96 was available to the applicants in this case it is convenient at this stage to deal with the whole question of who exactly made the decision to grant the rights and who granted the prospecting rights to Genorah. A number of issues have been raised in this regard. From the outset it was Genorah’s attitude that the rights were granted to it by the Minister and that accordingly there was no scope for an internal appeal as the Minister could not appeal against her own decision. It referred to Annexure FA 10, the notarially executed Prospecting Right no. 105 of 2006 and in particular to page 13 thereof where the document indicates that it was signed by one T R Rankapole, “For and on behalf of the Minister”. The notary, one Moolman, made it known in the document that “Tlou Robert Rankapole, Regional Manager, Limpopo Region of the Department of Minerals and Energy, and as such in his/her capacity
as the duly authorised representative of the Minister of Minerals and Energy, being duly authorised thereto under and by virtue of a Power of Attorney granted by the Deputy Director General: Mineral Regulation of the Department of Minerals and Energy on the 28^th of August in the year 2006 in terms of the powers delegated to him by the Minister on the 12^th day of May 2004 in terms of section 103(1) of the Mineral and Petroleum Resources Development Act” personally came and appeared before him. The applicants on the other hand argue that the Deputy Director General was not entitled in terms of the power of attorney to authorise the regional manager to sign the document and thus grant the rights to Genorah. The argument is that the rights were not properly granted to Genorah and that the



grant of the rights must on that ground alone be set aside. The applicants rely on the judgment in Meepo v Kotze and Others, 2008 (1) SA 104 (NC).

[20] On behalf of the Department Mr. L G Rapoo, Acting Deputy Director General, made an affidavit in which he indicated the procedure followed when applications for mineral rights are dealt with in the Department. He made the affidavit during the temporary absence of the Deputy Director General and being authorized to do so by the Deputy Director General. I understand his evidence to be the following: All applications are accepted in the regional offices. All the necessary steps are to be taken in the regional office such as to attend to the procurement of an environmental management program, notice to interested parties, verification whether there had been consultation between the applicant and the occupiers of the land in question etc. Once all the formalities have been adequately dealt with a recommendation is prepared for consideration by the Deputy Director General¹¹. The
Deputy Director General must then decide whether the application is to be approved or not. The document submitted to him is drafted in such a way that he only has to sign at the appropriate spot. If he decides to approve the application he signs in the opening below the words “GRANTED - POWER OF ATTORNEY SIGNED.” and if he decides to refuse the application he signs below the words NOT GRANTED. About this particular application his


evidence is that it was signed on 28 August 2006 as was the power of attorney, authorizing the regional manager to sign the prospecting right. He states that this was the day on which the decision to grant the right was taken¹². I accept that it is the practice in the Department that the Deputy Director General does not personally attend to the signing of the notarially executed grant but that it is done by someone authorized by him to do so, usually the regional manager.

[21] Mr. Rapoo states that in every case, where rights are granted to an applicant, two documents accompany the documents that are remitted to the regional office. They are the power of attorney and the standard written instrument that, after completion thereof, is the document that is notarially executed. The body of annexure FA 10, before completion thereof, is an example of such a standard form that is freely available on the Department’s computer system and cannot be changed by officials. It already contains the standard conditions that cannot be changed by individual officials. It needs to be completed in respect
of the relevant information that pertains to the specific successful application. What have to be inserted are things like 1. the name of the applicant, 2 the time period for which the right has been granted, 3 a description of the land over which the rights have been granted and 4 a listing of the specific minerals in respect of which the right had been granted.

[22] The argument on behalf of the applicants is that when the regional manager attends to the notarial execution of the grant he does not only give effect to a decision which


had already been taken. It is argued that he has a free hand and can, independent from the Deputy Director General, insert stipulations and impose conditions upon the grantee. That is what in fact happened in the Meepo matter. The Department argues that when the departmental procedure is followed, like in this case there is no room for the regional manager, when signing the grant, to be anything more than a mere scribe. When the five year period was inserted in the grant it was in accordance with the application and the recommendation. The regional manager did not have the authority to, and did not, change the time period. The type of minerals was also not something that the regional manager could decide upon. They were mentioned in the application and had to be inserted into the grant. The description of the type of minerals is identical in the application, the power of attorney authorizing the regional manager to sign and in the eventual grant. The situation is identical in respect of the farms over which the rights were granted. As far as the commencement of the five year period is concerned the approval was clear that, provided that the grant was notarially executed within 60 days from notification of the approval to Genorah, the period was for five years as from the date of the execution of the grant.

[23] The facts of this case differ substantially from the facts in the Meepo matter. In the latter matter unlike in this matter, there was no evidence as to what the standard procedure in the Department really is. More importantly in that matter the regional manager and the grantee signed the grant for it to be registered with the Registrar of Mining Titles, but
it could not be registered because a proper map had not been registered. To rectify that position the regional manager and the grantee entered into a new agreement of grant for a different period, without the approval of the Deputy Director General. It is evident that the regional manager did not have the authority to enter into that new agreement. I am satisfied that in this matter the regional manager did not take any independent decisions that were introduced into the grant. In addition thereto I am satisfied that the decision to grant the


rights was properly taken by the Deputy director General on 28 August 2006, having been duly authorized by the Minister to do so on her behalf.

[24] If the finding that the execution of the grant by the regional manager was in order, is wrong it does not follow that Genorah’s whole application failed and has of necessity to be set aside. The evidence of Mr. Rapoo is clear, and the papers support it, that the decision to grant the rights was taken on 28 August 2006. Apart from the attack against compliance with the formalities with which I shall deal later, there are no procedural defects vitiating that decision. The result is that in my view the Deputy Director General on 28 August 2006 took the decision to grant the rights to Genorah. When he did that he was properly authorized to do so, on behalf of the Minister, and the decision is therefore the decision of the Minister. When the grant was executed on 12 August 2006 it was done by the regional manager properly authorized by the Deputy Director General who in turn was properly authorized by the Minister. The regional manager was only authorized to sign the document on behalf of the Deputy Director General and had not been granted any discretion as to the terms and conditions that were to form the subject of the grant. In those circumstances the grant was also indirectly by the Minister herself.

[25] In the light of the conclusion that the very decision that the applicants want to have reviewed and set aside was taken by the Minister and that the grant of the rights was also done by the Minister, the only possible appeal was to the Minister against her own
decision and her own grant of the rights to Genorah. Section 96 does not provide for any internal procedure to remedy decisions and conduct of the Minister. To some extent it is illustrated in this matter why it is wrong to allow the Minister to revise and set aside her decisions that were reached bona fide in the normal course of events, in the Department. In the letter FA37 by the Department to Mr. Nahan of the first applicant it was stated that “the


Minister will not be in a position to decide on your appeal in this matter. The fact that a right has already been granted to Genorah also poses legal challenge in deciding on the appeal, and it is therefore the view of this Department that this matter should be decided by means of a review.” It is obvious that a decision by the Minister to take away a previously granted right from a grantee will cause unhappiness that may very well lead to all sorts of claims and court actions. It follows that the only remedy that was available to the applicants was an application for a review of the decision and the grant to Genorah. That application was well out of time even assuming that the applicants only became aware of the decision on 31 December 2006. Consequently the application is to be dismissed on that ground alone.

[26] The conclusion that the application was not brought timeously is not the only reason why in my view the application should fail. I shall as concisely as possible deal with the other issues as I am of the view that the application could not have succeeded on those issues either.

Is the result of a failure, strictly to comply with the provisions of the Act and the Regulations, that the decision has to be set aside?

[27] As this question is relevant in respect of a number of arguments that were presented it is convenient to deal with it at this stage. One of those arguments is the argument by the respondents that the failure by the first applicant to deliver the letter containing the appeal to the Minister within 30 days after having become aware of the
decision, that it wishes to have set aside, means that there was no appeal with which the Minister could deal. The second of these arguments is the applicants’ attack against the validity of the decision because of non compliance with provisions that are aimed at ensuring that there will not be unacceptable pollution, ecological degradation or damage to the



environment i.e. the submission of an environmental management plan and the approval thereof strictly in accordance with the provisions of section 39 of the Act. The third question is whether strict compliance with sections 10 and 16(4) of the Act is necessary. The applicants maintain that there had to be consultation with their community, that the department failed to give proper notice in terms of the section and that there was no consultation. I shall later deal with the question whether there was in fact compliance with section 10.

[28] In the case of each one of these provisions, the intention of the Legislature is to be determined. The question is whether the Legislature intended the provisions to be strictly complied with or not. To do so regard must be had to the scope and object of the Act as a whole¹³. The further enquiry is whether what was done constituted compliance with the Act. The object of the Act is to make provision for equitable access to and sustainable development of the mineral and petroleum resources, by recognising that they are not renewable, acknowledging that they belong to the nation and that the State is the custodian thereof, affirming the State’s obligation to protect the environment, recognising the need to promote local and rural development and the social upliftment of communities affected by mining, reaffirming the State’s commitment to reform to bring about equitable access to the resources, the State’s commitment to eradicate discriminatory practices and to take legislative measures to redress the results of past racial discrimination, reaffirming the State’s commitment to guarantee security of tenure in respect of mining operations and to create an internationally competitive and efficient administrative and regulatory regime. The emphasis
seems to be that a system is to be created for the award of mineral rights to entities that can and will be able to exploit the minerals for the benefit of the nation. In doing so the State has



to see to it that the environment is protected, that local and rural development and the upliftment of communities affected by mining is to be promoted.

[29] The Act creates a regime under which the minerals of this mineral rich country can be mined for the benefit of the whole nation. It recognises that mining operations can lead to pollution, ecological degradation and damage to the environment. It also recognises that the owners of land underlain by minerals have an interest in any possible mining operations on the land. The Act creates the possibility for a landowner to arrange finance so that it can exploit the minerals on its own land. In the case of a community the Act creates the opportunity to it to get a preferent right, in terms of section 104, which will cause a situation where the applications of other would-be applicants may not be considered before it has had an opportunity to arrange for the necessary financial assistance to prospect and mine for the minerals until it becomes clear that the community will not or cannot succeed with an application for rights in terms of section 17. The Act also provides, in section 9, for the sequence in which applications have to be dealt with and for internal appeals in terms of section 96.

[30] It is evident that quite a number of actions have to be taken by the Department before rights can be granted to applicants. There has to be communication between the applicant and the Department. All the actions are not equally important. It is, for instance, of paramount importance that the sequence in which applications are to be dealt with be adhered to. If an applicant is allowed to squeeze in, in front of an applicant whose application is to be dealt with before his, it is such a deviation from what the Act envisages that clearly a court must be entitled to rectify the position. In my view those provisions, in the context of the Act, are strictly to be complied with. On the other hand provisions in



respect of environmental requirements or consultation with interested parties or the lodging of an appeal may be less mandatory so that certain deviations from what the Act requires may be sufficient. One will have to consider the particular provision.

Regulation 74

[31] I now turn to consider whether the applicants’ failure to lodge its appeal in terms of section 96 within the 30 day period provided for in Regulation 74 renders the whole appeal a nullity. I have found that there is no provision in the Act for an appeal to the Minister against her own decision and that the applicants can accordingly not rely on the period between 13 February 2007 and 14 June 2007 as to be excluded from the 180 days allowed to bring an application for review of an administrative decision. Although I do not subscribe to it there is a possible different approach as to the availability or not of internal remedies. It can be argued that although the decisions were the decisions of the Minister it is common cause that the decisions were reached as a result of what was submitted to and done by the Department without the actual knowledge of the Minister. The next step of the argument is that the Minister must be free to re-assess the decision of officials taken on her behalf. The argument can be augmented by saying that if it comes to the Minister’s attention that the decision was made on the strength of inaccurate or wrong information that led to the grant of rights which should have not been granted the Minister must be at large to interfere, and can do so, in terms of section 47 of the Act. Although, as I have indicated, I am of the view that the Minister was functus officio and that accordingly there was no internal remedy available, but assuming in favour of the applicants that they were entitled to an internal review, it is to be considered whether they were not in any event time-barred, because of the fact that the letter of 13 February 2007 was delivered outside of the 30 day period provided for in Regulation 74.

[32] The applicants addressed the letter of 13 February 2007 to the Director-General and not directly to the Minister. On the 9^th of March 2007 that letter was followed up by two identical hand delivered letters, one to the Director General and one to the Minister. In the letters of 9 March 2007 section 104 was mentioned for the first time but the letters were clearly written to bolster the arguments proffered in the letter of 13 February. All these letters were accepted by the addressees and there was never an indication by the Department or the Minister that the letters could not be given attention to because of the provisions of Regulation 74 or, for that matter, any other reason. The letters were considered and in the letter of 14 June 2007 the first applicant was advised that the only place where it could ask for relief was the court.

[33] In this particular case it is clear that neither the applicant nor the Department was concerned about the time lapse before the appeal was officially noted. There was no perception, it seems, in the Department, that the applicant was out of time with the appeal. Moreover regulation 74(4) makes provision for condonation of an appeal that was noted late. In my view the 30 day period is not an absolute maximum period within which an appeal has to be lodged.

.

[34] It is an indication that an aggrieved party must take steps speedily but non compliance will not necessarily lead thereto that such an appeal is a nullity. It is for the court to decide whether what had been done complies with the provisions of the Act. The first applicant had to take a thorough overview of precisely what material was before the decision maker. It involved investigating what material was submitted to the Department by Genorah, but more importantly it had to satisfy itself about consultation with the community. Added thereto was the position with the environmental management plan and when and how it was submitted, considered and approved. Both the letters of 13 February and 9 March contain a


very comprehensive exposition of the facts and the first applicant’s submissions. In my view
and assuming that the first applicant was entitled to appeal to the Minister, this court cannot find that the appeal was fatally defective because it had not been brought within the 30 day period.

Section 39

[35] It is essential that the Department take proper steps that the ecology and the environment be protected as far as possible. For that reason section 39 requires an environmental impact assessment and the submission of an environmental management plan that has to be scrutinized by the Department to satisfy itself that the objects of the Act will be achieved. In section 39(4)(a) it is provided that the Minister “must, within 120 days from the lodgement” approve of the environmental management plan. In this case the plan was only approved a number of months after approval of the application for prospecting rights. That is one of the applicants’ main arguments why the decision to approve the application is to be set aside. A further attack is that Genorah did not pay the necessary monies on the time prescribed by the Act.

[36] The scheme of the Act does not indicate that such a plan, once approved is cast in stone. Before approval the Minister may direct that the plan be adjusted. If the adjustment is of a major nature it may take so long to submit the adjusted plan that it may no longer be possible for the Minister to consider the plan within the 120 day period¹⁴. In terms of section 39(6) the Minister may after approval of the environmental management plan approve an amended plan. It indicates that that the question of the conservation of the environment is not static. Changes may set in that necessitate amendment of the plan. It


may complicate adhering to definite dates. Section 17(5) of the Act provides that the grant of a prospecting right “becomes effective on the date on which the environmental management
programme is approved in terms of section 39”. It seems as if the Legislature contemplated the approval of the environmental management plan after approval of the application. All the indications in my view are that the provision that the plan must be approved within 120 days will not automatically invalidate the approval of such a plan outside the period of 120 days. In this case it was not Genorah that was remiss. Its plan was submitted timeously. The fact that the Department only approved the plan later, as was contemplated and provided for by the Legislature, does not in my view vitiate the decision in question. Assuming that Genorah was out of time with the payment of fees I also do not think that the decision to grant the rights and the grant thereof are to be set aside as a result thereof.

Notice to interested parties and consultation

[37] One of the applicants’ main contentions is that there was not compliance with section 10 in that there was no proper notice calling upon interested and affected parties to submit comments within 30 days. It is also alleged that there was no proper compliance with section 16(4)(b) of the Act in that there was no proper notification to and consultation with the land owner or lawful occupier by the respondent. Interestingly enough section 105 of the Act contemplates the situation where the landowner or lawful occupier cannot be traced. There is provision that the applicant can give notice in such a case by installing a notice in a visible place. In such a case it is very unlikely that any meaningful consultation can take place. In addition thereto there may be circumstances where the registered owner is not really the interested party in that the property had been sold but not yet transferred or especially in the case of communities who have land claims and the community is not yet the registered owner but has a spes to become the landowner. In my view the provisions of


section 16(4) are such, that, if it is clear that there was communication between the applicant and the landowner, and the landowner was aware of the applicant’s intention to apply for the rights it is sufficient to constitute compliance with the provisions of the section. It is not
necessary in terms of the section that the landowner or occupier has to support the applicant’s application.

[38] There is a difference between the farms Nooitverwacht and Eerstegeluk. Eerstegeluk according to the aforesaid Govt Notice R 9 of the Lebowa Government of 25 May 1990 fell within the area of jurisdiction of the Rhoka-Phasha Phokwane, Local Government whereas Nooitverwacht was the property of the community. The first respondent submitted a document entitled: Consultation with Lawful Occupier in respect of Application for a Prospecting Right. It was in respect of Eerstegeluk, De Goedeverwachting¹⁵ and Nooitverwacht. It shows that some people of Kgosi Nkosi squat on Eerstegeluk and that Nooitverwacht Farm belongs to Kgosi Nkosi. It also indicates that the Ga Phasha Tribal Authority had no objection to the grant of the prospecting right. There is no dispute on the papers that Mr. Mphalele together with Mr. van Schalkwyk and Mr. Mohale visited chief Nkosi on 3 February 2007. It can be accepted that the chief was informed that an application would be made for prospecting rights over the relevant properties. It can be accepted that the chief and Mr. Mphanga made it clear that they did not support the application. It is clear that at all relevant times and as a result of a visit to the chief the chief and Mr. Mphanga were aware of Genorah’s intention to apply for prospecting rights over the relevant properties. In my view there was compliance with section 16(4).

[39] As far as section 10 is concerned the applicants maintain that the Minister could not have granted the rights to Genorah without first affording the applicants a hearing, as


they have objected to the application. Section 10 does not prescribe that there must be such a hearing. In section 10(2) it is specifically provided that in case of an objection the matter is to be referred to the Regional Mining Development and Environmental Committee. The fact that the applicants had not been afforded a hearing does not in my view indicate that there was no compliance with section 10.

[40] The main attack based on section 10 is a belated one. The applicants argued that there was no proof that the Department had complied with section 10(1) by giving notice to interested parties of the application and by inviting comments from such parties. As a result thereof Mr. Van der Merwe on behalf of the second to the fifth respondents asked for an opportunity to file further affidavits. I granted leave to do so. Thereafter the events took a rather quaint course:

[41] One Maria Elizabeth Zietsman stated in an affidavit that she is an Assistant-Director in the Department and that the Department complies with the obligation in terms of section 10(1) by employing the method prescribed in Regulation 3(3)(b). It entails that a notice is faxed to the relevant magistrate’s court where it is to be displayed for 30 days. Although she could not remember the specific notice she confirmed that it would have been faxed to the magistrate’s court by Ms. Mabore Soafo, who confirmed that statement in an affidavit.

[42] The applicants’ response thereto was that there was no positive evidence of compliance. In addition they attached affidavits by Messrs. Nahon and Maphanga which indicate that during 2007 and at the time when the application was launched he and Mr. Maphanga went to the Sekhukune magistrate’s court with the specific purpose to ascertain whether notice of Genorah’s application had been placed on the notice board. They met with


Ms. Doreen Mashego who informed them that she was in charge of receiving notices that were to be placed on the notice board and that she kept a meticulous record of the copies. Every notice received was put into her file. They carefully looked for the notice in respect of Genorah’s application but it was not to be found. He also stated that during the week 2008 he contacted her again but that she refused to depose to an affidavit, as she did not want to get involved in the litigation.

[43] The first respondent filed an affidavit dated 24 August 2008, deposed to by Ms. Mashego, in which she stated the following: That she confirms the affidavit of Ms. Zietsman; that several of the averments by Nahon are blatant lies; that she never had any contact with either Nahon or Maphanga; that she has no idea how they obtained her identification number; that she was employed at the relevant magistrate’s court from 1980 until 30 June 2008 after which she started working at Jane Furse; that she never was in charge of receiving or displaying the notices as that was done by several person; that the file of notices is not a complete file as some of the notices get misplaced or taken away by interested parties and she emphatically denies that she was approached to depose to an affidavit during July 2008.

[44] Thereafter and on 28 August 2008 I received a letter from the attorneys for the first applicant. It was pointed out that the affidavit was out of time and not accompanied by an application for condonation, that in the first applicant’s view it was improper to file it and that the first applicant denies that it was genuine or that it has been deposed to by Doreen Mashego. I was requested to disregard the affidavit. The letter continued with an argument that the affidavit does not take the matter any further as it does not provide direct evidence of publication of the notice. I was further requested only to pay any attention to the contents of the affidavit after having heard viva voce evidence.

[45] Mr. Van der Merwe argues that I must disregard Nahon’s affidavit as there is no explanation why the information contained therein had not been dealt with in the founding affidavit. All possible points of criticism were raised by the applicants, as soon as it became aware thereof, and it is indeed strange that it did not occur to the applicants to deal with this important evidence in the founding affidavit and the number of supplementary affidavits or in the replying affidavit and that it was only proffered after Ms. Zietsman’s affidavit had been filed. It is strange that Nahon and Maphanga was aware during 2007 that it was
Departmental policy to give notice in terms of Regulation 3(3)(b), as was deposed to by Ms. Zietsman, and it is not explained where they acquired that knowledge.

[46] I have decided to by-pass this unwholesome “factual dispute” by accepting the evidence of Ms. Zietsman and Ms. Soafo in respect of the procedure that was followed in the Department and to apply the maxim omnia praesumuntur rite esse acta. The result is that I accept that the notice would have been faxed to the Sekhukune magistrate’s court and that in all probability it was received and displayed. I can hardly do better than to quote from the judgment of Wessels CJ in the matter of Cape Coast Exploration Ltd v Scholtz and Another¹⁶:

“Where the proof depends the recollection of busy officials whose act are often mere routine work and who in the course of time move from one place to another, or upon public documents which, as in this case, are not carefully guarded and which may completely disappear, grave injustice might be done if we are not to decide civil cases on the probabilities which arise from those circumstances which are capable of proof. Absolute proof is well nigh impossible where the frail recollection of men is a factor, and especially is this the case where we have to deal with the recollection of

officials who almost automatically do much of their routine work. Hence the importance of the maxim omnia praesumuntur rite esse acta."

[47] If one bears in mind that the object of section 10 is to give interested parties notice about a pending application it does not make much of a difference between the first applicant and Genorah whether proper notice had been given or not. The first applicant was aware of the application and, if one accepts Nahon’s latest, affidavit it was so acutely aware of the application that it actually went to the magistrate’s court in Sekhukune to check if the Department had complied with section 10

[48] Weighing all the arguments up I have come to the conclusion that Genorah in the ordinary course of events openly brought an application, as it was entitled to do. There were a number of other later applications, of which the one of the first applicant was well down the line. I do not detect any improper conduct by either the Department or by Genorah and I am satisfied that the grant of the rights to Genorah was regular and that it would be wrong to set it aside.

[49] Even if I am wrong and if there is some or other fatal defect in the procedure that would entitle a court to review and set aside the grant of the rights to Genorah this is one of those cases where a court in its discretion ought to decline to set aside an invalid administrative act¹⁷. I say so for the following reasons:

49.1 The applicants’ main and emotive argument was that it represents the community and that the individual members of the community stand to benefit from a grant of the rights to it. I am far from convinced that the position of

individual members will be much different whether the exploitation of the minerals is done by Genorah as supported by Mr. Mphalele or by the first applicant as supported by Mr. Maphanga and Mr. Mhlungu. Individual members are prejudiced by this litigation, in that the actual mining and development are delayed.

49.2 The applicants rely on section 104 of the Act. The application of the first applicant was an ordinary section 16 application until 9 March 2007 when somebody alerted Mr. Shapiro to the provisions of section 104. That was long after the rights in question had already been granted to Genorah. This whole application negates the rights of applicants for the rights whose applications
were submitted and accepted between the application of Genorah and that of the first applicant.

49.3 Rights have been granted to Genorah over five farms and a large area. If the grant in respect of the two farms or one of them is set aside it will no doubt affect the manner of mining and may affect the viability of a project.

49.4 In my view there is a public interest element therein that there must be finality in this particular case.

[50] In my view the application cannot succeed. I cannot think of any reason why the applicants are not to be ordered to pay the respondents costs.

The following order is made:

1. The provisional joinder of the Bengwenyama Ye-Maswati Royal Council is confirmed.

2. No order for costs is made either for or against the aforesaid Bengwenyama Ye-Maswati Royal Council

3. The application is dismissed.

W J HARTZENBERG

JUDGE OF THE HIGH COURT

HEARD ON : 5 June 2008

ON BEHALF OF THE APPLICANTS

Counsel : G Marcus, SC

D G Leibowitz

Instructed by : ROUTLEDGE MODISE

C/O JACOBS & LEVY

ON BEHALF OF THE RESPONDENTS

1^st Respondent

Counsel : B E Leech

Instructed by : WERKSMANS INCORPORATED

C/O WEAVIND & WEAVIND

2^nd – 5^th Respondents

Counsel : M P van der Merwe

Instructed by : THE STATE ATTORNEY

ON BEHALF OF THE INTERVENING PARTY

Counsel : F R Memani

Instructed by : LEDWABA MAZWAI

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