Werksmans Director Bulelwa Mabasa Speaking Notes - Junior Mining & Exploration Conference - 8th Nov 2012

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Werksmans Director Bulelwa Mabasa speaks on appeals, reviews, mandamus, interdicts & administrative actions in terms of the minerals & petroleum resources development act ("MRPDA") No.28 of 2002 at …

Werksmans Director Bulelwa Mabasa speaks on appeals, reviews, mandamus, interdicts & administrative actions in terms of the minerals & petroleum resources development act ("MRPDA") No.28 of 2002 at the Junior Mining & Exploration Conference 8th November 2012.

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  • 3. INTRODUCTIONIt is a principle of administrative justice that any administrativeprocess conducted or decision taken in terms of the MPRDA mustbe conducted or taken, as the case may be, within a reasonabletime and in accordance with the principles of lawfulness,reasonableness and procedural fairness and that such decisionmust be in writing and accompanied by written reasons for suchdecision;in terms of section 33 of the Constitution , everyone has the right toadministrative action that is lawful, reasonable and procedurally fair.Thus everyone whose rights have been adversely affected byadministrative action has the right to be given written reasons.Furthermore, National legislation must be enacted to give effect tothese rights, and must provide for the following-
  • 4. CONTINUATION• the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;• impose a duty on the state to give effect to the abovementioned rights; and• promote an efficient administration.• challenging a decision made by the state or administrative body may happen by way of either an appeal, review, mandamus or an interdict;• below, we deal specifically with each remedy, as to what it entails and when a party may utilise each remedy.
  • 5. THE ESSENCE OF THE PROMOTION OF ADMINISTRATIVE JUSTICE ACT NO 3 OF 2000 ("PAJA")• In South Africa, administrative decision-making is promulgated through PAJA, which sets out the general rules that govern how administrators must make decisions; reasonably, justly and procedurally fairly;• Reasonableness, means that administrators should be able to comprehend the context of an application in which they have to make a decision;• Justifiableness, refers to the administrator having the power to make a decision;
  • 6. CONTINUATION• procedural fairness, means that an administrator must ensure that if a person I likely to receive a negative decision, the potentially affected individual must be given ; adequate notice of the nature and purpose of the proposed negative decision, a reasonable opportunity to make representations, a clear statement of the administrative action, adequate notice of any right of review or internal appeal where applicable and adequate notice of the right to request reasons.
  • 7. APPEALS
  • 8. WHAT IS AN APPEAL?• depending on the context, the term ‘appeal’, which includes a cross- appeal, has different meanings. It may refer to-• an appeal in the wide sense, that is a complete rehearing of and fresh determination on the merits of the matter, with or without additional evidence;• an appeal in the strict sense, that is a rehearing on the merits but limited to the evidence or information on which the decision was given. The only question is then whether that decision is right or wrong;
  • 9. WHAT DOES AN APPEAL ENTAIL?• Firstly, any person who appeals in terms of section 96 of the MPRDA against an administrative decision, must within 30 days after he or she has become aware of the or should reasonably become aware of the administrative decision concerned, lodge a written notice of appeal with the Director-General or the Minister, as the case may be;• if the decision concerned was made by the regional manager or another officer of the Department of Mineral Resources, the correct appeal authority is the Director-General of the Department. On the other hand, if the Director-General made the decision, the appeal must be directed to the Minister of Mineral Resources;
  • 10. CONTINUATION• after receiving the appeal, the Director-General or the Minister, as the case may be, must then send copies of it to whomever in the Department made the decision, as well as to any person whose rights could be affected by the outcome of the appeal. These parties then have 21 days to respond in writing. Generally, the appeal is sent to the Regional Manager who would have recommended the grant or refusal of the right. These responses must be sent by the Director-General or the Minister, as the case may be, to the appellant to furnish a response;• within 30 days of receiving the latter response, the Director-General or the Minister, as the case may be, must do one of the following: confirm the initial decision, set it aside, amend it, or make another decision in the place of the original one;
  • 11. ADVANTAGES OF AN APPEAL• an appeal is not the ultimate finalisation of a matter and it is important to note that it can be taken to the High Court on review within 30 days and below is a significant Constitutional Court decision this matter had thus been initiated by an internal appeal and ended up being the subject of a High Court review, an appeal to the Supreme Court of Appeal (SCA) and a further appeal to the Constitutional Court;• the Constitutional Court decision of Bengwenyama, is a decision in which the Bengwenyama community appealed against the grant of a prospecting right to a third party in terms of the Mineral and Petroleum Resources Development Act ("the MPRDA") on land owned by a community;
  • 12. CONTINUATION• the community’s challenge to the award in the North Gauteng High Court, Pretoria was dismissed. An appeal to the Supreme Court Appeal was also dismissed on the ground, like in the High Court, that the community had failed to bring the application for review timeously in terms of the provisions of PAJA. The Supreme Court of Appeal did not decide the merits of the community’s grounds of review. The community applied to the Constitutional Court for leave to appeal against the decision of the Supreme Court of Appeal;• the community contended that the Supreme Court of Appeal erred in finding that the application was brought out of time and for not finding that the community should have been awarded a preferent right to prospect in terms of section 104 of the MPRDA, which states that, any community that wishes to obtain a preferent right to prospect or mine in respect of any mineral and land which is registered or to be registered in the name of the community concerned, must lodge such application to the Minister, under specified conditions;
  • 13. CONTINUATION• in addition, the community argued that the award to Genorah Resources (Proprietary) Limited ("Genorah") was defective because of irregularities in the required consultation process, lack of compliance with environmental requirements and unfair administrative procedures;• the Constitutional Court decided the matter on the basis of whether the decision to allocate the prospecting rights was fair administrative action. The Court found that an internal appeal was available to the applicants, that the Department’s failure to deal with the appeal amounted to a conclusion of the appeal process, and that the review application had thus been brought in time;
  • 14. CONTINUATION• the Constitutional Court held further that the granting and execution of prospecting rights is a grave invasion of a property owner’s rights. The Court held that the purpose of consultation with landowners, required by the Act, was to provide them with the information necessary to make an informed decision on how to respond to the application. The Constitutional Court, per Froneman J, concluded that Genorah had not consulted with the community as required by the Act, that the decision- maker had not given the community a hearing or complied with the fairness requirements of PAJA, and that the environmental requirements in terms of the Act had not been satisfied. Accordingly the community had not been treated as required by the Constitution;• leave to appeal was accordingly granted to the community and the appeal succeeded. The awards of prospecting rights on the community’s land were set aside.
  • 15. DISADVANTAGES OF AN APPEAL• An appeal involves a re-hearing on the evidence or information before the lower tribunal and the only question is whether the decision was right or wrong. It is based upon the record of the case in the court of first instance and the appellant is bound by it; he cannot rely on any circumstance that does not appear or cannot be deduced from the record. If an appellant is dissatisfied with the record, he must apply for leave to amend it;• one of the most important points to note about the MPRDAs internal appeal process is that it is an internal administrative process managed by the Department of Mineral Resources. There is no option available for an administrative review through the courts - at least not until all the prescribed internal avenues have been exhausted;
  • 16. CONTINUATION• the Supreme Court of Appeal in the Bengwenyama matter confirmed that a decision of the Deputy Director-General or the Director-General as delegatee of the Minister is not a Ministerial decision but rather a decision of the Deputy Director-General or the Director-General and thus is subject to the appeal process;• the lodging of an appeal under the MPRDA does not suspend the decision leading to the appeal. For instance, if one is appealing against the grant of an overlapping or competing right granted to another party, that appeal will not suspend the other partys right pending the outcome of the appeal. On the contrary, the other party may continue exercising their granted right until the MPRDA appeal process has run its course, which, as pointed out above, can take years to complete. In this event, one should, as the appellant apply to the High Court for an urgent interdict preventing the other party from exercising its right while the administrative appeal process and any subsequent review is pending, which interdict should be granted if the requirements for an interim interdict are met.
  • 18. WHAT IS JUDICIAL REVIEW?• Judicial review denotes the process whereby the proceedings of lower courts, both civil and criminal, are brought before the high court in respect of grave irregularities or illegalities occurring during the course of such proceedings;• secondly, it is the process whereby a court has to assess whether there has been an infringement of the right to lawful, reasonable and procedurally fair administrative action;• in the third place the term refers to that power conferred upon a court by statute to review the proceedings of certain statutory bodies on specific grounds;
  • 19. CONTINUATION• fourthly, courts may subject any exercise of public power to constitutional review under rule of law principle;• any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action;
  • 20. WHAT DOES JUDICIAL REVIEW ENTAIL?• any proceedings for judicial review in terms of section 6 (1) of PAJA must be instituted without unreasonable delay and not later than 180 days after the date on which any proceedings instituted in terms of internal remedies have been concluded; or• where no such remedies exist, on which the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons;• of significant importance is that, no court or tribunal shall review an administrative action in terms of PAJA unless any internal remedy provided for in any other law has first been exhausted;
  • 21. CONTINUATION• a court or tribunal must, if it is not satisfied that any internal remedy has been exhausted, direct that the person concerned must first exhaust such remedy before instituting proceedings in a court or tribunal for judicial review in terms of PAJA;• a court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such person from the obligation to exhaust any internal remedy if the court or tribunal deems it in the interest of justice.
  • 22. ADVANTAGES OF JUDICIAL REVIEW• a review involves a limited re-hearing and the question is often whether the procedure adopted was formally correct. The applicant may travel beyond the record of the proceedings before the tribunal in order to make out his case.
  • 23. DISADVANTAGES OF JUDICIAL REVIEW• A pending review does not suspend the administrative act automatically;• the power to review should generally, unless there are special reasons, not be exercised before the conclusion of the proceedings.
  • 24. MANDAMUS
  • 25. WHAT IS A MANDAMUS?• A mandamus is one whereby a person is compelled to do something precise or particular, so that the applicant may have his just rights;• a mandamus and a mandatory interdict is one and the same thing. There is no difference between the two, except to indicate the involvement of a public or governmental body on the one hand and a private person on the other hand. Except for this, there is no reason to differentiate.
  • 26. WHAT DOES A MANDAMUS ENTAIL?• Numerous applications for a mandamus are refused mainly due to three reasons- – there must be clear proof of illegality. It is not the practice of the court to grant an order for a mandamus, which is a formal mandatory interdict, against a public officer, unless it is clear that he has refused to perform a specific duty imposed upon the law; – where a discretion is involved, it must be shown that the respondent has not exercised a proper discretion, e.g. failure to comply with the audi alteram partem rule if the discretion vested is an absolute discretion, mala fides must be proved; and – there was no urgent necessity or danger in delay. A man who approaches the court for a mandamus should use due diligence in bringing the application. Mere delay will not be fatal to the application if no mischief is caused thereby to the defendant, and the delay does not exceed a reasonable period; but the right to a mandamus is gone if there has been an unreasonable delay, and mischief would be caused thereby to the defendant;
  • 27. REQUIREMENTS OF LODGING A MANDAMUS• the requirements for the grant of a final mandatory interdict are- – a clear right: – an actual or threatened invasion of that right; and – the absence of similar protection by any other ordinary or suitable legal remedy;
  • 28. CONTINUATION• if the interdictory relief sought is interim in effect, form, and substance the applicant must establish the following to succeed- – a prima facie right even though open to some doubt; – a well-grounded apprehension of irreparable harm if the interim relief is not granted; – a balance of convenience in their favour; and – the lack of another remedy adequate in the circumstances.
  • 29. ADVANTAGES OF A MANDAMUS• It is usually sought by way of application proceedings which are relatively inexpensive and are far less time consuming than trial proceedings. It is possible to obtain both a prohibitory interdict, which prevents the respondent from doing something and a mandatory interdict, which requires the respondent to do something ;• non-compliance with a mandamus order, amounts to contempt of court;• other than non-compliance by a public official , a mandamus is a speedy remedy that has arisen from the nature of the violation and the urgency to remedy it.
  • 30. DISADVANTAGES OF A MANDAMUS• It is more difficult to enforce a mandatory interdict than to enforce a prohibitory interdict.
  • 32. WHAT IS AN INTERDICT?• An interdict, which is also known as an injunction, is an order granted by a court in the course of litigation, an intermediate stage, in regard to preliminary or procedural questions and which are incidental to the main dispute;• interdicts are either interlocutory/interim or final in nature;• interlocutory interdicts are merely provisional in nature and do not conclude a right. The effect and object of this type of interdict is merely to keep matters is statu quo, until the hearing of the cause upon the merits or generally until further order. Thus in interfering by interlocutory interdict, the Court does not in general profess to anticipate the determination of the right, but merely gives it as its opinion that there is a substantial question to be tried and that until the question is ripe for trial, a case has been made out for the preservation of property in the meantime, in statu quo• final interdicts form part of the order made at the hearing upon the merits. The final interdict is in effect an order and concludes a right.
  • 33. WHAT DOES AN INTERDICT ENTAIL?• High Courts have always had the inherent jurisdiction to grant interdicts, while the jurisdiction of other courts to grant such orders depends on the statutes on which they are founded. In some instances particular legislation that creates statutory wrongs may provide specifically for the power to grant an interdict. A court will have the same jurisdiction in respect of parties and causes of action as it does in other civil proceedings;• a statute may, subject to the basic right of access to courts, deny the right to an interdict ;• an application for an interim interdict is brought on notice of motion with a founding affidavit ;
  • 34. CONTINUATION• an application for an interim interdict is brought on notice of motion with a founding affidavit ;• it is often necessary to apply for an interim interdict on an urgent basis; and in certain circumstances by way of an ex parte application (that is without notice to the respondent). In these cases the court (if it grants the interim interdict) will issue a rule nisi, which will order the respondent to come before the court on a particular date, to show cause as to why the interim interdict should not be made a final interdict;• if the matter is urgent, the application may be brought ex parte, with a rule nisi granted with a return date;
  • 35. CONTINUATION – the rule nisi is thereafter served on the other side and the respondent must show cause on the return day why the rule should not be confirmed and a final interdict granted; – then requesting an interlocutory interdict, the applicant will ask for temporary relief, which will operate until the return day. – the interdict sought on the return day is usually final, but may again be interim;•the application for interdictory relief must comply with certainrequirements. There must thus be allegations in the affidavits or thepleadings, arising from the particular facts, which meet these requirements.
  • 36. THE REQUIREMENTS OF LODGING AN INTERDICT• the requirements for the grant of a final interdict are- – a clear right: – an actual or threatened invasion of that right; and – the absence of similar protection by any other ordinary or suitable legal remedy;
  • 37. CONTINUATION• if the interdictory relief sought is interim in effect, form, and substance the applicant must establish the following to succeed- – a prima facie right even though open to some doubt; – a well-grounded apprehension of irreparable harm if the interim relief is not granted; – a balance of convenience in their favour; and – the lack of another remedy adequate in the circumstances;• in some cases, after ascertaining the existence of the right in question, the Court proceeded to consider the requirements of an interdict. In other cases is not done. An interdict is simply granted or the application dismissed after probing the facts and the particular sphere of substantive law. The modus operandi of a few judges is commendable. The use the requirements as the points of departure to probe the facts and the particular sphere of substantive law in relation thereto.
  • 38. ADVANTAGES OF AN INTERDICT• it is usually sought by way of application proceedings which are relatively inexpensive and are far less time consuming than trial proceedings. It is possible to obtain both a prohibitory interdict, which prevents the respondent from doing something and a mandatory interdict, which requires the respondent to do something;• non-compliance with an interdict order, amounts to contempt of court;• application may be made to set aside an interlocutory interdict;• where parties reach a settlement or are reconciled after the grant of an interlocutory interdict, the lis between them disappears and the rule is discharged. Third parties are also no longer bound the moment they receive a notice of settlement or reconciliation;
  • 39. CONTINUATION• an interlocutory interdict granted pending the institution of action expires when the summons is served. Strictly speaking application should be made currently with the issue of summons for an extension of the interdict to the end of the trial or the order obtained from Court be appropriately phrased- "pending determination of the trial" when such an interlocutory interdict is granted, the lis between the parties is the pending action or application. It is intended that the interdict remain in force until judgment is given in the action, application or review.
  • 40. DISADVANTAGES OF AN INTERDICT• The Court does not have a general discretion to defer the operation of an interdict. Such discretion can only arise under exceptional circumstances. A court is also not entitled to suspend the operation of an interdict where the wrong complained of amounts to a crime as it would thereby be abrogating its duty as an officer of the law.
  • 42. JOUBERT AND OTHERS v MARANDA MINING CO (PTY) LTD 2010 (1) SA 198 (SCA)• the North Gauteng High Court had granted the respondent mining company an order interdicting and restraining the appellant landowners from refusing to allow the company access to a portion of a farm in Limpopo Province in respect of which the company had purchased certain mineral rights;• the company had subsequently been granted a mining permit in accordance with the MPRDA. An environmental management plan submitted by the company in respect of the intended mining activities was also approved;• the landowners had thwarted several attempts by the company to gain access to the farm, stating that they would under no circumstances allow the company access. The impasse persisted even after the company had formally consulted the appellants as required by the MPRDA. In an appeal to the SCA the landowners argued that the company had sought access in contravention of its environmental management plan and that the only solution to the impasse was expropriation of the farm;
  • 43. CONTINUATION• Held, that the unreasonable conduct of the appellants was not countenanced by the MPRDA, which in section 27(7)(a), clearly affords the holder of a mining permit the right to enter the land in respect of which the mining rights have been granted, and this right solidifies once the mining permit holder has complied with the provisions regarding notification and consultation with the landowner (or occupier or other affected parties);• Held, further, that since the company had complied with all the requirements set out in sections 27(1) - (5) of the MPRDA (which regulate the requirements for the granting of a mining permit) it had acquired the right to enter the farm for purposes of exploiting its mineral rights.
  • 44. CARNIE T, "MINING BATTLE TO START NEXT MONTH" THE MERCURY 30 OCTOBER 2012• the KZN High Court (Durban) is to hear legal arguments next week on whether a multinational mining group may start mining just 100m from Mtunzini, without the municipalitys permission;• a report in The Mercury notes that residents of the North Coast town are hoping to get an urgent interdict to halt a major dune mining project by the New Tronox group, an offshoot of the Kerr McGee corporation, which left a trail of environmental damage across large areas of the US. The hearing was to have started earlier this week. The case has now been set down for hearing on 8 November after Tronox filed responding papers to oppose the interdict application by the Mtunzini Conservancy. Relying on a recent groundbreaking Constitutional Court case, environmental attorney Norman Brauteseth is expected to argue that Tronox cannot start mining until it gets formal approval and zoning permission from the Umlalazi Municipality, according to the report. Tronox, which is listed on the New York Stock Exchange, has said that it will oppose the interdict application. It will apparently argue that there is no merit in the legal argument put forward by Mtunzini residents.
  • 45. BLAIN SUE, "JUDGE SETS ASIDE PLATREEFS RESTRAINING ORDER AGAINST COMMUNITY" BUSINESS DAY, 17 OCTOBER 2012.• A Limpopo community group last week welcomed a North Gauteng High Court judges ruling against unlisted mining company Platreef. The court ruled that Platreef could not obtain an interdict against the 15 000- strong community after about 150 of them protested against its prospecting operations on and near their land, according to Business Day report ("the report");• Judge Jody Kollapen set aside an interim interdict Platreefs had obtained against the Kgobudi community, preventing them from coming within 200m of its mining operations, according to the report. Judge Kollapen said that it contradicted the Constitutions injunction against collective punishment;
  • 46. CONTINUATION• Nathaniah Jacobs, from Lawyers for Human Rights, said that the drilling operations were in the Kgobudi residential areas, and the interdict had cut off residents from their grazing and maize fields and, in extreme situations, from their homes;• according to the report, she added the judgment was quite significant as it meant companies cannot seek blanket orders against communities; they have to engage with individuals. If mines engage correctly and dont treat everyone the same, these requirements are not insurmountable, she is reported to have said.
  • 48. CONCLUSION• In the final analysis, whatever choice a company takes when faced with an unfavourable MPRDA decision, it pays to be fully informed about the appeal process, aware of ones rights and willing to consider all options at ones disposal.
  • 49. THANK YOU Ms. Bulelwa Mabasa 8 November 2012Nothing in this presentation should be construed as formal legal advice from any lawyer or this firm. Readers are advised to consult professional legal advisors for guidance on legislation which may affect their businesses. © 2012 Werksmans Incorporated trading as Werksmans Attorneys. All rights reserved.