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NOT REPORTABLE

DELIVERED: 13 JUNE 2008

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 39808/07

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

RULING

HARTZENBERG J

[1] The first applicant has brought an application for the review and setting aside of the grant of a prospecting right to the first respondent, a limited liability company, by the second to the fifth respondents, the Minister of Minerals and Energy and other officials of the Department of Minerals and Energy, in terms of section 17 of the Minerals and Petroleum Resources Development Act, no. 28 of 2002. I shall refer to the second respondent as “the Minister” and to the third to the fifth respondents, unless there is specific reference to a particular one of them as “the Department” The first applicant is a limited liability company. The second applicant who has joined forces with the first and third applicants is the Bengwenyama-ye-Maswazi tribal council. The third applicant is a trust, represented by its 14 trustees of which the chief of the Bengwenyama-ye-Maswazi community is one. There are further prayers that the prospecting rights be awarded to the first applicant by the court, alternatively that the matter be referred back to the Department with a direction that the rights are to be awarded to the first applicant.

[2] Initially the Department only filed the record in terms of Rule 53. It was satisfied that the first respondent would properly put the whole application process in perspective. After the exchange of a number of affidavits the Department eventually also filed an affidavit. The affidavits have snowballed into more than 600 pages. The matter was to be argued on 5 June 2008. On 5 June there was an application for intervention by one Nkosi who alleges that he was properly authorized by the Bengwenyama-ye-Maswazi Royal Council to bring the application. There was a answering affidavit by the chief of the Bengwenyama-ye-Maswazi community, Msuthu Nicholas Nkosi, who denied the standing of the Royal Council alleging that it has no more than advisory powers. Mr. Memani on behalf of the intervening party indicated that the intervening party needed time to reconsider its position.

[3] As the parties were eager to get finality, it was decided that the matter was to be argued in full and that if the application stood to be dismissed such an order could be made. If on the other hand it was not clear that all the necessary averments were before the court it was for the court to make a ruling about the further steps that are to be taken by the parties. The idea was that the argument would be completed on 5 June 2008 after the court started sitting at 9:00. Despite a genuine attempt to finish within the agreed upon times the parties failed to do so and eventually they only concluded their arguments on Friday 6 June at 16:00 after having started at 9:00 on the 6^th as well. At that stage there were three aspects hanging in the air. It was not clear whether the intervening party had been joined as a party and there were two requests by Mr. van der Merwe on behalf of the Department to file further affidavits, one in respect of the question whether the Department had complied with the provisions of the Act in respect of consultation with interested parties and the other to put the full facts before the court in regard to the delegation of powers and the practice in the Department when decisions are taken and rights are awarded.

[4] There are a number of issues between the applicants and the respondents: The applicant maintains that the Regional Manager of the Department did not have the requisite authority to grant the prospecting right to the first respondent and that the grant of the right to it was fatally defective and stands to be set aside on that ground alone. The standing of the applicants is disputed. There is a dispute about the applicability of section 104 of the Act. The applicants allege that their application was an application in terms of both section 104 and section 16 of the Act whereas the respondents deny that applications in terms of sections 16 and 104 of the Act are similar and argue that the first applicant’s application was only an application in terms of section 16 of the Act and that the first applicant was accordingly not entitled to any preferential treatment. There is a dispute about the question whether the first respondent had a proper consultation with interested parties and in particular with the Bengwenyama-ye-Maswazi community before the award of the prospecting rights. There is an attack on the validity of the award on the basis that the environmental requirements were not in order. There was also an attack on the bona fides of the first respondent when it urged the court not to come to the assistance of the applicant by claiming that it stood to lose astronomical sums of money if the application is granted. The first respondent furthermore alleges that the applicants are in any event time-barred with their application

[5] As far as the attack on the authority of the Regional Manager to award the rights is concerned the applicants rely on the decision in Meepo v Kotze, 2008 (1) SA 104 (NC) and maintain that the facts in that matter and the facts in the present matter are indistinguishable. Mr van der Merwe says that the facts were not fully before the court in the Meepo matter and that although it is so that the Department is out of time it is necessary for certainty in the mining industry that all the facts be put before the court before the matter is decided. Likewise he asks that the department be given an opportunity to put material before the court about whether or not the requirements in respect of consultation with interested parties had been complied with or not.

[6] It is not likely that the losing party will accept a first round defeat. It is in my view in the particular circumstances of this case advisable that all the facts be presented to the court before a decision is taken. Leave to file a further affidavit dealing with the two aspects mentioned above is therefore to be given to the Department. I shall invite the parties to make submissions in respect of possible costs orders as a result of the indulgence.

[7] As far as the intervening party is concerned it seems to me to be fair to join it provisionally as a party. It can then file a replying affidavit but in order to persuade the court that it is entitled to be joined as a party leave is given to it to answer comprehensively to the allegations in the founding affidavit. Naturally the applicant is entitled to answer to those allegations in a further affidavit and there is the possibility that the intervening party may require to reply to the applicant’s answer. It is also clear that the parties must have the right to put further argument before the court in respect of all new matter that may be introduced.

[8] In the light thereof that a considerable time will elapse before the papers will be in such a condition that judgment can be given, the temptation to kick for touch is great. The matter can be postponed sine die and time periods for the filing of further affidavits can be laid down. A different court can then hear the matter. Where I had the benefit of very helpful arguments that lasted over 9 hours I have decided to retain the matter and to deal with it eventually.

The following order is made.

1. The Bengwenyama-ye-Maswazi Royal Council is provisionally joined as a party to the proceedings.

2. Leave is granted to the aforesaid Royal Council to file a replying affidavit to the first applicant’s answering affidavit in the application to intervene and furthermore, if so advised, to deal with the allegations in the applicants’ founding and supplementary affidavits, in such affidavit, within 20 days from the date of this ruling.

3. Leave is granted to the second to the fifth respondents to deal with (a) the question whether the prospecting rights that were awarded to the first respondent

were awarded by officials that were duly authorized to do so and (b) the question whether the Department complied with the requirements in respect of notification

of the first respondent’s application to interested parties, by affidavit filed within a period of 20 days after date of this ruling.

4. Leave is granted to the other parties to file affidavits in response to the affidavits mentioned in paragraphs 2 and 3 above within 10 days of receipt thereof

5. Leave is granted to the intervening party to file an affidavit in response to an affidavit by the applicant in reply to its replying affidavit within 10 days from receipt of such affidavit.

6. Leave is granted to all the parties to file additional heads of argument no later than 10 days after the expiry of the period provided for in paragraph 5 above, in which the parties deal solely with the new matter raised in the aforesaid affidavits and with the question of the costs occasioned by this ruling.

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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