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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG HIGH COURT, PRETORIA)

Case Number: 93117/2015

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

TWIN CITIES TRADING 374 PROPRIETARY LIMITED                                   APPLICANT

And

MINISTER OF MINERAL RESOURCES                                                 1^st RESPONDENT

DIRECTOR-GENERAL,

DEPARTMENT OF MINERAL RESOURCES                                        2^nd RESPONDENT

DEPUTY DIRECTOR-GENERAL OF THE

DEPARTMENT OF MINERAL RESOURCES                                         3^rd RESPONDENT

THE REGIONAL MANAGER: MPUMALANGA

REGION OF THE DEPARTMENT

OF MINERAL RESOURCES                                                                   4^th RESPONDENT

LEHLABILE AFRICA TRADING

PROPRIETARY LIMITED                                                                       5^th RESPONDENT

BRIGHTSTONE RESOURCES

PROPRIETARY LIMITED                                                                       6^th RESPONDENT

A RE SHOMENG HOLDINGS

PROPRIETARY LIMITED                                                                       7^th RESPONDENT

JUDGMENT

Fabricius J,

The Applicant in these opposed proceedings seeks the following relief:

"1 Reviewing and setting aside the decisions of the Third Respondent in terms of the provisions of the Mineral and Petroleum Resources Development Act, 28 of 2002 ("the MPRDA") to refuse the Applicant's applications for prospecting rights for coal in respect of:

1.1 The Remaining Extent of Portion 3, Portion 6, 8, 9, 12, 13 and Remaining Extent of the Farm Strehla 261, IR., Magisterial district of Delmas ("the Strehla Property"); and

1.2 The Farm Drawina Louw 254 IR., Magisterial district of Delmas ("the Drawina Property") ;

("the refusal decisions");

1A To the extent that it is necessary, exempting the Applicant from having  to exhaust internal remedies with respect to the refusal decisions that may still be available to the Applicant.

2. An order substituting for the refusal decisions with an order granting the Applicant's applications for prospecting rights in respect of the Strehla property and the Drawina Lauw property in terms  of Section 17 (1) of the MPRDA;

3. An order declaring that the First Respondent was required to have suspended anY further action concerning the Strehla Property and/or the Drawina Property with effect from 23 October 2012, pending the final determination of the Applicant's appeals against the refusal decisions;

4. An order reviewing and setting aside any rights granted by the DMR over the Strehla Property and/or the Drawina Property to the Fifth and/or Sixth Respondents;

5. In the alternative to prayers 1 and 2 above, an order -

5.1 Reviewing and setting aside the refusal decisions;

5.2 Remitting the applications by the Applicant for reconsideration; and

5.3 Directing the First to Fourth Respondents to afford the Applicant the opportunity to make representations to them and directing them to consider all relevant facts before taking a decision in terms of Section 17 of the MPRDA;

5.4 That the DMR shall reconsider the Applicant's applications within 60 (sixty) days from the date of service of the Court Order  upon the First to Fourth Respondents;

6. That the First to Fourth Respondents pay the costs of this application, and in the  event of the Fifth, Sixth and/or Seventh Respondents opposing this application, that they pay the costs occasioned by their opposition, jointly and severally between them, if applicable".

Prayer 1A was inserted by way of an amended Notice of Motion handed to me during argument. It was opposed on the basis that the Applicant in these proceedings had not brought such an application in terms of the provisions of s.7(2)   of  the  Promotion  of Administrative  Justice  Act  3  of 2000 (“PAJA"), that  the issue had therefore not been debated in the affidavits, and that as a result the Fifth Respondent was prejudiced. Section 7 ( 2) (b)  requires that if such internal remedy has  not been exhausted,  the  Court  must  direct  that this be done. According to the provisions of s. 7 (2) (c), a Court may exempt a person from this obligation if it is deemed to be in the interests of justice, but this may only be done in exceptional circumstances and on application.

The proceedings before me were only opposed by the Fifth and Seventh Respondents.

3.

The relevant facts are largely common cause and I will refer to them as they appear from the very useful Heads of Argument filed on behalf of the Seventh Respondent. Counsel for Fifth Respondent also set out the relevant facts in his Heads, but the former refer to events that occurred already during 2005, while the latter commences with facts relating to events from 2008. In the first mentioned Heads, the relevant chronology is as follows:

"8. During 2005 Kumba Coal (Pty) Ltd, the predecessor in name to Exxaro Coal (Pty) Ltd ("Exxaro"), applied for a prospecting right for coal on a number of properties over which it held the common law mineral rights to coal, including the Strehla properties.

8.1 Exxaro's application was rejected by theFourth Respondent ("the Regional Manager") on 7 September 2005.

8.2 On 28 September 2005 Exxaro obtained a Court order interdicting relevant officials from the Department of Mineral Resources ("the DMR") from, amongst other things, granting any application for a prospecting right on the Strehla properties pending the resolution of review or appeal proceedings to be launched by Exxaro.

8.3 Exxaro noted anappeal as contemplated in the order on 7 October 2005.

8.4 Exxaro withdrew its appeal and abandoned its application on 24 April 2014.

9 On 22 July 2008, Lehlabile applied for a prospecting right to prospect for coal on inter alia the Strehla properties.

9.1 Lehlabile’s application was refused by the DDG on or about 8 March 2010.

9.2 Lehlabile noted an appeal to the DG against the DDG's decision on 16 March 2010.

9.3 On 4 February 2011 the First Respondent ("the  Minister'') withdrew the DDG's decision and substituted it with a decision granting Lehlabile a prospecting right on only a single property (portion 47 of the farm Straffontein 252 IR). The Minister issued a power of Attorney authorizing the Regional Manager to sign a prospecting right relating to this property.

9.4 On or about 9 September 2014 and 27  March 2015, the Minister approved the amendment of the power of Attorney to include a number  of additional properties, including the Strehla properties.

10 On 30 March 2010 Twin Cities lodged with the Regional Manager two applications for prospecting rights to prospect  for coal - the Strehla prospecting right application, in respect of certain properties on Strehla, including the Strehla properties, and the Darwina Louw prospecting right application, in respect of the farm Darwina Lauw.

10.1 The Darwina Louw prospecting right application was refused by the DDG on 19  April 2012.

10.2 The Strehfa prospecting right application was refused by the DDG on 2 May 2012.

10.3 Twin Cities noted appeals against both refusal decisions to the DG on 23 October 2012.

10.4 Those appeals have not yet been determined. Twin Cities has not taken any steps to compel the DG to determine either of them.

11 On 8 June 2014 A Re Shomeng lodged with the Regional Manager an application for a prospecting right to prospect for coal on various properties, including the Strehla properties.

11.1 A Re Shomeng's application was rejected by the Regional Manager on 18 June 2014.

11.2 A Re Shomeng lodged an appeal against the Regional Manager's decision on 30 July 2014, which appeal was upheld by the DG in relation to the Strehla properties on 24 June 2016. The DG remitted the application back to the Regional Manager for reconsideration.

11.3 On 4 August 2016 the Regional Manager again rejected A Re Shomeng's application. A Re Shomeng lodged an appeal to the DG against this decision on 15 September 2016.

11.4 A Re Shomeng's appeal has yet to be determined".

4.

It is convenient to deal with the argument on behalf of Fifth Respondent: the Applicant's  application  is governed  by the provisions  of the Mineral and Petroleum Resources Development Act 28 of 2002 {"MPRDj. Especially relevantare s.6, 9 and 96(1). 96 (2)(b) and 96(3). The last mentioned section states that no person may apply to Court for review of a decision until internal remedies have been exhausted. The provisions of s.9 deal with a sequence in which applications for particular rights are to be processed  by the Second Respondent. With reference to the chronology of events, it appeared that the Fifth Respondent' s application for rights in the affected land predates those of the Applicant, and the rights of the Fifth Respondents have accordingly already been notarily executed.

5.

On behalf of Fifth Respondent it was argued that the Applicant had pending appeals before the Second Respondent which have not been exhausted. The provisions of s. 7(2) of PAJA and 96 (3) of MPRD therefore, preclude me from granting the relief sought. As far as the Applicant's prayers 1, 1.1, 1.2 and 51 were concerned therefore, the Applicant  had failed to exhaust the internal remedies  referred to, did not in these proceedings apply to seek exemption and the relief was therefore not competent in law. As far as prayer 2 was concerned, the applicant failed to establish exceptional circumstances justifying the need to intervene and to exercise powers that the MPRD grants to officials, or the Second Respondent of Mineral Resources. The relief was therefore not competent.

Having regard to the time that has lapsed, as is apparent from the chronology of events, and the institutional incompetence of the Second to Fourth Respondents, one could be tempted to exercise these powers. However, upon proper consideration, it is apparent that those powers must be exercised by persons who one would assume have the necessary skill and knowledge to analyse the relevant applications before them, to ensure that they comply with all legislative requirements, and then to take a proper decision thereon. A Court is not ordinarily equipped to make those types of decisions and that is exactly why exceptional circumstances have to be placed before a Court before it would intervene and exercise statutory powers reserved for particular officials.

6.

As far as prayer 3 was concerned, it was argued that this demonstrated clearly that Applicant's appeals were still pending and that the application was therefore not competent. No exceptional circumstances have been placed before me. It appeared also from a written advice given by the Second Respondent that the appeal was being processed (Annexure "FA15", p.572). This is therefore fatal to the review relief sought in both prayers 1 and 5.1 of the Notice of Motion.

7.

It was also argued that the rights granted to the Fifth and Sixth Respondents by the DMR have been notarily executed and therefore stand as rights established by means of an administrative action. Only a Court can divest the parties of such right.

8.

As far as prayer 4 is concerned, it was argued that this relief was not competent in that the Applicant had failed to lay legal and factual basis for its application to jump the queue ahead of that of the Fifth Respondent.

9.

It was therefore submitted by Mr E. Labuscagne SC, on behalf of the Fifth Respondent, that even if a basis for review were established, I ought not to exercise a remedial discretion so as to interfere with the vested rights of the Fifth Respondent. It is clear from the provisions of s.8 of PAJA that I may grant an order that is just and equitable in review proceedings.

10.

On behalf of the Seventh Respondent, it was also argued that Applicant had failed to exhaust internal remedies. I was referred to Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and Others 2014 (5) SA 136 (CC), where it was decided at [116] that the duty to exhaust internal remedies defers  the exercise  of the Court's  review  jurisdiction for as long as the duty is not discharged.. It was submitted that when  Twin Cities launched  this application, it had not exhausted its internal remedy, because it had lodged an appeal against the Strehla refusal decision, but had not received any decision in respect of the appeal. It did not however seek an exemption and from the ordinary principles this is fatal to the application. There was no application before me for such an exemption and, as I have said, at the hearing of this application, prayer 1 A was sought to be inserted into the Notice of Motion. There were also no facts set out in the Founding – or Supplementary Founding Affidavits relating to such relief.

11.

It was also contended, and I have briefly eluded to this topic, that in any event, and even if I set aside a particular decision, no order of substitution should be made, as this could only be done in "exceptional circumstances, in terms of the provisions of s.8(1)(c)(ii) of PAJA. In Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa and Another 2015 (5) SA 245 (CC}, it was held that  a Court  should afford appropriate judicial difference to a statutory decision-maker. It was submitted that I was not in a good position as the Second Respondent to determine Strehla's prospecting rights and also whether the Applicant had  provided adequate proof of its financial ability to conduct the proposed prospecting. I also do not have before me any input from the Second Responden'ts Mine Economics Department which the Second Respondent  relies on. I was further not best  placed  to determine the policy considerations of whether the grant of a prospecting licence to the Applicant would further the objects of the MPRDA.

12.

I have considered the Applicant's argument in the context of the Dengetenge Holdings decision supra, and as I have said, I was tempted to some extent to grant prayer 1A of the Amended Notice of Motion, but I have decided that this would not be proper, despite the long delay that has occurred. These appeals need to be decided upon, and it is always open to the Applicant to launch a mandatory interdict in that context should the relevant decisions not be made promptly. In my view it is at this stage not just and equitable to grant any relief. The outstanding appeals need to be decided, and this needs to be done on an expedited basis. The Applicant has a number of remedies at its disposal in this context, and I have mentioned the power of a Court to grant a mandatory interdict, should these decisions not be taken forthwith. Thereafter, the Applicant would have all the rights at its disposal that appear from the relevant provisions of  PAJA.

13.

It is in my view just and equitable having regard to the long delay in these proceedings caused by the institutional incompetence of the Second to Fourth Respondents that they pay the costs of the proceedings.

14.

The following order is therefore made:

1. The application is dismissed;

2. First to Fourth Respondents are to pay the costs jointly and severally, the one paying, the others to be absolved.

JUDGE H.J FABRICIUS

JUDGE OF THE GAUTENG HIGH COURT, PRETORIA

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