THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 1109/2020

In the matter between:

RUSTENBURG PLATINUM MINES LIMITED        FIRST  APPELLANT

ARM MINING CONSORTIUM LIMITED                  SECOND APPELLANT

and

THE REGIONAL MANAGER, LIMPOPO
REGION, DEPARTMENT OF
MINERAL RESOURCES (DMR)                           FIRST  RESPONDENT

DEPUTY DIRECTOR-GENERAL:
MINERAL REGULATION, DMR                        SECOND RESPONDENT

MINISTER OF MINERAL RESOURCES
AND ENERGY                                                            THIRD RESPONDENT

GENORAH RESOURCES (PTY) LIMITED      FOURTH RESPONDENT

DIRECTOR-GENERAL, DMR                                  FIFTH RESPONDENT

NKWE PLATINUM (SOUTH AFRICA)
(PTY) LIMITED                                                          SIXTH RESPONDENT

INTERNATIONAL GOLDFIELDS
LIMITED
SEVENTH RESPONDENT

MORUTHANE BEN SEKHUKHUNE N O          EIGHTH RESPONDENT
BAUBA A HLABIRWA MINING

INVESTMENTS (PTY) LIMITED
NINTH RESPONDENT

NKWE PLATINUM LIMITED
TENTH RESPONDENT

Neutral citation: Rustenburg Platinum Mines Limited and Another v The
Regional Manager, Limpopo Region, Department of Mineral
Resources and Others (1109/2020) [2022] ZASCA 157 (18
November 2022)

Coram:
DAMBUZA ADP and VAN DER MERWE, NICHOLLS and
MBATHA JJA, and MEYER AJA

Heard:

1 March 2022

Delivered:             18 November 2022

Summary:
Administrative Law – review of decisions of Regional
Manager and Deputy Director General of the Department of Mineral resources
and Energy.
Interpretation of provisions of the Mineral and Petroleum Resources
Development Act 28 of 2002 (MPRDA) – refusal of application for prospecting
right under s 17(2) of the MPRDA considered – a prospecting right is not a pre-
requisite for a mining right under s 22 of the MPRDA.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Kollapen J,
sitting as court of first instance):
The appeal is dismissed with costs including the costs of two counsel, which costs
shall be paid by the second appellant.

JUDGMENT

Dambuza ADP (Van der Merwe, Nicholls and Mbatha JJA and Meyer AJA
concurring)

Introduction
[1] In this appeal the second appellant seeks an order reviewing and setting
aside seven decisions made by functionaries of the Department of Minerals and
Energy (DMRE).1 The decisions were challenged in an application for review
brought by the first appellant, Rustenburg Platinum Mines Limited (RPM), a
wholly owned subsidiary of Anglo Platinum Limited (Anglo Platinum), together
with the second appellant, ARM Mining Consortium Limited (ARM). That
application was dismissed by the Gauteng Division of the High Court, Pretoria,
Kollapen J (high court).2  This appeal, against the dismissal of the review
application, is with the leave of the high court.

1 When the review application was launched the Department was known as the Department of Mineral Resources
(DMR). On 29 May 2019, the name was changed to Department of Mineral Resources and Energy DMRE).
2 The separate applications by RPM and ARM challenging the granting of prospecting rights to Genorah and
Bauba were consolidated in November 2014.

[2] The first contested decision was the acceptance, by the first respondent,
DMRE’s Regional Manager in the Limpopo Region (Regional Manager), of a
prospecting application lodged by King Sekhukhune III and later ceded to the
ninth respondent, Bauba A Hlabirwa Mining Investments (Pty) Limited (Bauba).
The second was the acceptance, by the Regional Manager, of an application for a
prospecting right by the fourth respondent, Genorah Resources (Pty) Ltd
(Genorah), a Black Empowerment entity. The third decision was a refusal, by
DMRE’s Deputy Director-General, of RPM’s application for a prospecting right.
The fourth and fifth decisions were the granting of prospecting rights to King
Sekhukhune and Genorah. The sixth decision was the renewal of the Bauba
prospecting right. And the seventh was the granting of a mining right to Genorah.

Background
[3] The contested prospecting and mining rights related to eight farms
cumulatively known as the Modikwa Deeps Properties which are located in the
Magisterial District of Sekhukhune (Eastern Bushveld complex). The land is
adjacent to the Modikwa Platinum Mine which was operated by RPM and ARM
at the time of the events under consideration. It comprises rural farms known as
De Kom 252 KT (De Kom), the remaining extent of the farms Garatouw 282 KT
(Garatouw), Hoepakrantz 291 KT (Hoepakrantz), Portion 1 and the remaining
extent of the farm Eerste Geluk 322 KT (Eerste Geluk), Zwemkloof 283 KT
(Zwemkloof), Grootvygenboom 283 KT (Grootvygenboom), Genokakop 285 KT
(Genokakop), Houtbosch 323 KT (Houtbosch), and Portions 1 and 2 of the farm
Nooitverwacht 324 (Nooitverwacht).

[4] During the 1980’s the Anglo American Platinum Corporation Group
(Corporation Limited) concluded a number of agreements with the self-governing
territory of Lebowa through the Lebowa Minerals Trust (LMT) as the holder of
various mineral rights over land in the Limpopo Province. Flowing from these

agreements, Anglo Platinum and its subsidiaries conducted joint venture
prospecting activities for platinum and related minerals over the land.

[5] In December 2000 three joint venture agreements were cancelled following
negotiations with the third respondent, the Minister of Mineral Resources and
Energy (Minister), who perceived them to result in a concentration of mineral
rights in the hands of the ARM Group. At that time prospecting had already
occurred on the properties to varying degrees, and mines had been established.
The agreement with the Minister was that on cancellation of the joint venture
agreements in respect of some of the Modikwa Deeps Properties, twelve mineral
leases and two prospecting agreements would be concluded between the joint
venture entities and the Minister. In respect of twelve properties, the rights of
these entities would be limited to purchasing the platinum group and all
associated metals and minerals mined on the properties for a certain period.

[6] With regard to the prospecting agreements, RPM and ARM would form a
joint venture to prospect and operate platinum mining activities on a defined joint
venture area. RPM was to contribute the old order rights which it held over the
Modikwa Deeps Properties while ARM would contribute stipulated finance to
the joint venture.

[7] In line with that agreement, on 16 March 2004 RPM applied for a
prospecting permit for platinum metals and other minerals under s 6 of the
Minerals Act 50 of 1991 (the Minerals Act). On 1 May 2004, before the
Department had made a decision on RPM’s prospecting permit application, the
Minerals Act was repealed and replaced with the Mineral and Petroleum
Resources Development Act 28 of 2002 (MPRDA), which is still the applicable
legislation in respect of mining activities. In a letter dated 21 June 2004, the
Department advised RPM that because its application could not be finalized

before the MPRDA became effective, its application would be processed as a
pending application in terms of Item 3(1) of Schedule II to the MPRDA. In terms
of Item 3(1), applications for mineral rights made under ss 6, 8 and 9 of the
Minerals Act that had not been finalised when the MPRDA came into effect, had
to be regarded as having been lodged in terms of ss 13, 22, 27, 79 or 83 of the
MPRDA. Subsequent to the MPRDA coming into effect, RPM submitted
additional information as required thereunder.

[8] Bauba denies that when RPM lodged its application for a prospecting right
on 16 March 2004 it was a holder of a permit to prospect and to mine for platinum
group metals over the Modikwa Deeps Properties (which permit is referred to in
the MPRDA as an unused old order right).3 However, the Department does not
deny that RPM was a holder of such a right flowing from the agreements reached
with the Minister. In fact, the Department dealt with RPM as a holder of an
unused old order right. As will be discussed more fully in the paragraphs that
follow, as a holder of an unused old order right at the commencement of the
MPRDA, RPM became entitled to a one-year period of exclusivity in relation to
its application for a prospecting right.4 This meant that during that one-year
period no other application for a prospecting right over the relevant Modikwa
Deeps Properties could be accepted and considered by the Department. That
period of exclusivity expired on 30 April 2005.

[9] On 29 April 2005, before a decision on RPM’s application was made by
DMRE, King Sekhukhune Thulare, as the Kgosi of the Bapedi Community (King
Sekhukhune III), lodged an application for a prospecting right over some of the

3 Except over the property known as Nooitverwacht 324 KT.
4 Item 8 of Schedule II to the MPRDA.

Modikwa Deeps Properties.5 On 30 April 2005, a day after the lodgment of King
Sekhukhune’s application, the one year exclusivity period after the lodgment of
RPM’s application expired. On 12 May 2005, RPM addressed a letter to the
Regional Manager inquiring about progress in its application. It also informed the
Regional Manager that its application was made on the basis that if the
prospecting right was granted it would seek consent under s 11 of the MPRDA,
to have the right registered in favour of the Joint Venture between itself and ARM
Mining Consortium Limited, the BEE group with which it was already operating
the Modikwa Mine up-deep from the Modikwa Deeps Properties. In a letter dated
13 May 2005 addressed to King Sekhukhune III, the Regional Manager advised
that his application (lodged on 29 April 2005) in respect of the Modikwa Deeps
Properties would be ‘placed on hold’ pending the Minister’s decision on
applications that had already been accepted in respect of those properties.

[10] On 27 July 2005, the Regional Manager wrote to RPM confirming that its
application had been accepted in terms of s 16(2) of the MPRDA. Thereafter RPM
submitted further reports, including its report on consultations with the
landowners, its Environmental Management Plan and financial guarantee.

[11] On 6 February 2006, Genorah lodged a prospecting right application in
respect of five of the Modikwa Deeps Properties.6 On 20 February 2006, this
application was accepted by the Regional Manager and was duly processed. On
22 August 2006 the Deputy Director-General: Mineral Regulation (DDG) granted
Genorah’s application over three Modikwa Deeps Properties. This right related
to De Kom, Garatouw, and Hoepakrantz. On 7 June 2006, Prospecting Right

5 Grootvygenboom, Houtbosch and Genokakop, (The King also applied for a prospecting right over Dingaanskop
543 KS, Dsjate 249 KT, Fisantlaagte 506 KS, Hoogste Punt 290 KT, Indiё 474 KS, Malekskraal 509 KT,
Mecklenburg 112 KT, and Schoonoord 462 KS).
6 Genorah’s application was in respect of farms De Kom, Garatouw, Hoepakrantz, Nooitverwacht, and Eerste
Geluk.

256/2006 granted in favour of the King Sekhukhune III was notarially executed.
This right related to Dingaanskop 543 (Dingaanskop), Indie 474 KS (Indie), and
Fisantlaagte 506 and not the three Modikwa Deeps Properties in respect of which
King Sekhukhune III had applied for a prospecting right.

[12] On 7 July 2006, the Regional Manager recommended refusal of the RPM
prospecting right application. On 3 August 2006, the Regional Manager
recommended approval of Genorah’s prospecting right application. From 22 to
28 August 2006, various functionaries of the Department approved the
recommendation for approval of Genorah’s application in respect of De Kom,
Garatouw, and Hoepakrantz.

[13] On 24 August 2006 the second respondent, the Deputy Director-General:
Mineral Regulation (DDG), refused RPM’s application for a prospecting right in
terms of s 17(2)(b)(i) of the MPRDA, following the Regional Manager’s
recommendation. The refusal letter read as follows:
‘REFUSAL OF APPLICATION FOR A PROSPECTING RIGHT: THE MODIKWA DOWN-
DEEPS PROPERTIES: THE FARMS DE KOM 252 KT, GARATOUW 282 KT,
ZWEMKLOOF 283 KT, GROOTVYGENBOOM 284 KT, GENOKAKOP 285 KT,
HOEPAKRANTZ 291 KT, HOUTBOSCH 323 KT, NOOITVERWACHT 324 KT AND
EERSTE GELUK 327 KT; MAGISTERIAL DISTRICT OF SEKHUKHUNE
After careful consideration of your application for a new prospecting right, the Deputy
Director-General: Mineral Regulation in terms of section 17(2) has, by virtue of powers
delegated to him in terms of section 103(1) of the Mineral and Petroleum Resources
Development Act, 2002 decided to refuse to grant a prospecting right in respect of the above
mentioned properties for the following reasons:
 Section 17(2)(b)(i) and (iii) as the granting of the right will result in the concentration
of the mineral resources in question under the control of the applicant and will also
result in an exclusionary act.’
RPM received the letter on 11 September 2006.

[14] On 12 September 2006, Genorah’s prospecting right was notarially
executed. On 14 September 2006, the tenth respondent, Nkwe Platinum Limited
(Nkwe), issued a media statement in which it announced that it had concluded an
agreement with Genorah to acquire the latter’s interest in the prospecting rights
over two of the Modikwa Deeps Properties.7 The agreement between Nkwe and
Genorah for the acquisition of the latter’s prospecting right was conditional upon
the granting of the prospecting right in respect of the two properties to Genorah.

[15] On 29 September 2006, the Regional Manager granted the prospecting
right applied for by King Sekhukhune III over the Modikwa Deeps Properties
Genokakop and Grootvygenboom. On 4 October 2006, the Regional Manager
wrote to the King advising of the grant to him of a prospecting right over
Genokakop, Grootvygenboom, Schoonoord, Zwitzerland and Houtbosch.

[16] On 5 October 2006, RPM lodged an appeal with the Minister in terms of
s 96 of the MPRDA against the refusal of its application for a prospecting right.
On the same day its attorneys wrote to the Regional Manager alleging that the
acceptance of Genorah’s prospecting application was irregular as it happened
prior to a decision on its (RPM’s) application, and prior to expiry of the period
determined in terms of the MPRDA for an internal appeal against the refusal of
its application, and a (possible) court review. No response was received to this
letter.

[17] On 5 March 2007, RPM launched the application for review of the refusal
decision and the decision to accept Genorah’s application. Thereafter
negotiations were held between RPM and DMRE in an effort to have the dispute
settled amicably. According to RPM, the DDG was unhappy with the institution

7 Farms Garatouw 282 KT and De Kom 252 KT.

of the review proceedings. In November 2007, the Bapedi community resolved
to cede its prospecting right to Bauba. On 19 December 2007, an amendment was
effected on Prospecting Right 256/2006 (King Sekhukhune’s right over
Dingaanskop,
Indie
and
Fisantlaagte)
to
include
Genokakop
and
Grootvygenboom.

[18] While settlement negotiations in relation to the review application were
underway, in February 2008 RPM became aware that a prospecting right was
granted to Genorah in August 2006. Correspondence was exchanged between
RPM and DMRE in relation to this matter. The DDG urged RPM to enter into
settlement negotiations with Genorah, which it did. On 3 March 2008, the DDG
consented to a cession of the prospecting right in terms of s 11(1) of the MPRDA
from King Sekhukhune III to Bauba.8 In terms of the cession, the prospecting
right in respect of Genokakop and Grootvygenboom were ceded to Bauba.
Negotiations between RPM and Genorah broke down in the same month.

[19] On 12 August 2008, the DDG, acting in terms of s 102 of the MPRDA,
granted consent for the addition of Houtbosch onto Bauba’s prospecting right. On
17 February 2010, RPM became aware from a media release, that a prospecting
right had been granted to Bauba. According to RPM its attempts to ascertain the
description of the properties in respect of which the right had been granted were
unsuccessful. On 19 December 2008, an amendment was effected to the review
application to add the grant of the Genorah prospecting right to the decisions that
were to be reviewed. ARM intervened and was joined as a second applicant in
RPM’s review application.

8 The King had since passed away in December 2006.

[20] On 22 April 2010, following the decision of this Court in Bengwenyama
Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd (Formerly Tropical
Paradise 427 (Pty) Ltd and Others,9 RPM lodged an appeal to the Minister
against the grant of a prospecting rights to Bauba and Genorah. In Bengwenyama
this Court held that the internal appeal provided for in s 96 of the MPRDA must
be exhausted as stipulated in s 96(3) before instituting review proceedings. On 28
April 2010, the variation by the DDG in respect of PR256/2006 to include
Genokakop and Grootvygenboom, was notarially executed. On 4 May 2010,
RPM obtained a copy of the notarial deed of amendment, and two days thereafter
it amended its internal appeal to include the decision to amend PR256/2006.

[21]  RPM argues that the variations effected to the King Sekhukhune III
prospecting right 256/2006 to incorporate therein the Modikwa Deeps Properties
are invalid because the Minister had not delegated to the DDG his authority to
consent thereto. And even if there had been such delegation, the grant of new
rights over these properties by way of variation was an impermissible
circumvention of the requirements set in ss 16 and 17 of the MPRDA. On 29
September 2010 it instituted the application for review and setting aside of the
amendment decisions.

[22] On 4 April 2011, Bauba lodged an application for renewal of its
prospecting right. On 7 April 2011, RPM addressed a letter to the DDG, DG and
the Minister seeking an undertaking that no further rights would be granted in
respect of the Modikwa Deeps Properties until its internal appeal had been
determined. On 6 July 2011 Bauba’s prospecting right expired. On 11 September
2011, Genorah’s prospecting right also expired. On 10 February 2012, a mining

9 Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd (Formerly Tropical Paradise 427
(Pty) Ltd and Others [2010] ZASCA 50; [2010] 3 All SA 577 (SCA).

right was granted to Genorah over De Kom, Garatouw, Hoepakrantz and
Nooitverwacht. On 15 March 2012. RPM lodged an internal appeal against the
grant of the Genorah mining right.

[23] The internal appeals remained pending for years until the high court
(Basson J), in 2017, granted an order declaring, amongst other things, that RPM
had exhausted its internal remedies of appeal in respect of the acceptance and
refusal decisions.  It should be noted that in terms of s 96(2)(a) of the MPRDA,
the internal appeal did not suspend the decisions as the DDG did not specifically
order suspension. The refusal and the grant of rights therefore continued to be
effective. However, in terms of s 96(2)(b) subsequent applications for the same
right on the same land were suspended pending the finalisation of the appeal.

[24] On 6 June 2012, Bauba’s prospecting right over Genokakop and
Grootvygenboom was renewed. On 10 August 2012, RPM lodged an internal
appeal against that renewal decision. On 9 July 2015 Bauba applied for a mining
right. Bauba’s renewed prospecting right expired on 17 July 2015. On 27 August
2014, the addition of Houtbosch onto the Bauba prospecting right was notarised.
On 23 November 2017, Bauba’s mining right application was accepted by the
Department. No decision had been made on that application when this appeal was
heard.

Litigation history
The review application
[25] In the review application RPM set out the events that preceded its
application for a prospecting right in 2004. It argued that its mineral leases and
prospecting agreements in respect of the Modikwa Deeps Properties had been
concluded in line with the agreements reached with the DDG (who had
represented the LMT Trust).  By refusing its application for a prospecting right

the Minister was acting in bad faith, and contrary to the agreements which had
been concluded with her with the aim of avoiding a concentration of mineral
rights in the hands of RPM.

[26] RPM maintained that in principle, the granting of a prospecting right would
always have the effect of preventing or excluding others from obtaining the same
right in respect of the same mineral and land.  Similarly, the granting of such a
right to an applicant who already holds a mining right in terms of the MPRDA
theoretically resulted in a concentration of the mineral resource in question under
the control of the approved applicant. It could never have been the intention of
the legislature to impose a blanket bar to the granting of a prospecting right to a
holder of a mining right. Consequently, the refusal was arbitrary and was taken
without good cause. It therefore fell to be set aside under the provisions of ss 5(3),
6(2)(e)(v), and/or 6(2)(h) of the Promotion of Administrative Justice Act 3 of
2000 (PAJA).

[27] In addition, the reference in s 17(2)(b)(iii) to concentration of mineral
resources was ‘perplexing’ because at the time of considering the application it
would be unknown whether there were any resources on the land. To avoid
potential absurdities in the interpretation of s 17(2)(b)(i) and (iii), a qualified
reading of the section was necessary – by interpreting s 17(2)(b)(iii) as intending
to prohibit ‘unreasonable’ concentration of rights in the hands of a particular
entity. In this case, because the DDG did not give adequate reasons for the refusal
and did not apply a qualified meaning to the section, but merely regurgitated the
provisions of the section, the refusal was arbitrary.

[28] RPM’s central argument, however, was that, in any event, the clear
transitional provisions of the MPRDA which provided security to a holder of old
order rights should take precedence over the provisions of s 17(2)(b). Because the

DDG had failed to interpret the provisions of s 17(2(b) to be subject to the clear
and specific transitional provisions of the MPRDA, which provided special
protection to a holder of an old order right in order to bring it within the provisions
of the MPRDA, the refusal fell to be set aside under s 62(d) of PAJA.

[29] In line with this argument it was submitted that the acceptance of Bauba’s
application for a prospecting right by the Department, on 29 April 2005, prior to
the expiry of its (RPM’s) exclusivity period was unlawful. Furthermore, the
acceptance of Genorah’s application in February 2006, prior to determination of
RPM’s application was in breach of the provisions of s 16(2) of the MPRDA
which prohibits the acceptance of a prospecting right where another entity holds
a prospecting right, mining right, or mining permit in respect of the same mineral
on the same land.  The contention was that the applications by Genorah and Bauba
should not have been accepted before a decision was made on RPM’s application,
and before the internal appeal and the court review had been finalised. Because
both acts of acceptance were unlawful, all subsequent administrative action by
the Department granting renewals and further rights to Bauba and Genorah were
invalid.

[30] It was also contended that the refusal decision fell to be set aside because
the DDG failed to take into account numerous factors, including that the
Modikwa Deeps Properties are situated adjacent to and ‘down dip’ from the
Modikwa Platinum Mine on which RPM and ARM were already mining, which
rendered them best suited to access the minerals on those properties.

[31] The respondents, on the other hand, contended that the delay by RPM in
instituting and prosecuting the review applications (which were later
consolidated) was fatal to the proceedings. The review application in relation to
the refusal decision and the grant of the prospecting right to Genorah, which

decisions were taken in August 2006, was instituted in March 2007 (and amended
in December 2008). By the time the application was heard the prospecting right
had long lapsed and Genorah had been in possession of the mining right for eight
years. It had concluded all prospecting activities, and subsequent thereto, had
expended more than R1.2billion in the development of the Garatouw Platinum
Mine in the exercise of its mining right. The review application challenging the
2008 amendment decisions that resulted in the Bauba prospecting right over the
Modikwa Deeps Properties was initiated on 29 September 2010.

[32] The high court dismissed the consolidated review application based, in the
main, on unreasonable delay in instituting and prosecuting the review
proceedings. It found the delay to have been extraordinary and ‘inexplicable’. It
remarked that RPM and ARM could have been ‘more efficient and decisive’ in
prosecuting the application. Although the Learned Judge found that the grant of
the Genorah prospecting right was improper, he exercised his remedial discretion
in favour of Genorah by declining to declare it unlawful and setting the decision
aside.

On appeal
[33] The appeal was brought and prosecuted by ARM. The parties persisted in
the arguments they had advanced in the high court. ARM highlighted that in
refusing RPM’s application for a prospecting right, the DDG ignored the fact that
its joint venture partner (ARM), was a black company and a 100% shareholder in
ARM Platinum which, in turn, held 83% in AMCL. The balance of the 17%
shareholding was held by Mampudima and Matimatjatji communities residing
near the Modikwa Deeps Properties. Against this background, the suggestion that
granting a prospecting right to RPM would result in the concentration of mineral
resources and limitation of equitable access to it was unfounded, it was argued.

[34] It was also submitted that the delay in prosecuting the application could
not be attributed to any remissness on RPM’s part. Instead it was the State
respondents who caused the delay by refusing to provide documents and by
disobeying court orders. It was also pointed out that both Genorah and Bauba
delivered their answering papers more than two and six months out of time
respectively. Furthermore, the appellants contended that they should not be
punished because the respondents proceeded to expend huge expenditure on the
mines when they knew of the challenges to the approval of their prospecting
rights.

The Law
[35] In Minister of Mineral Resources and Others v Sishen Iron Ore Company
(Pty) Ltd and Another10 the Constitutional Court set out succinctly the
circumstances in which the MPRDA was passed and the objectives thereof. At
paragraph 10 the Court said:
‘In the discharge of its obligations to transform the mining industry, one of the major sectors
of our economy, Parliament passed the MPRDA. As its preamble proclaims, the MPRDA was
enacted in part to eradicate all forms of discriminatory practices in the mining and petroleum
industries and to redress the inequalities of past racial discrimination. Pivotal to achieving these
objectives was placing all mineral and petroleum resources in the hands of the nation as a whole
and making the state the custodian of the resources on behalf of the nation. This is one of the
fundamental changes brought about by the MPRDA. By vesting all mineral and petroleum
resources in the nation, the MPRDA dispensed with the notion of mineral rights or rights to
minerals which before 1 May 2004 were held by private persons.’
At paragraph 13 the Court held:
‘In view of the fact that black people did not own land because of dispossession and legal
instruments that prohibited ownership, drastic measures were necessary to open up

10 Minister of Mineral Resources and Others v Sishen Iron Ore Company (Pty) Ltd and Another [2013] ZACC
45; 2014 (2) BCLR 212 (CC); 2014 (2) SA 603 (CC).

opportunities in the mining industry for the previously excluded majority. This became one of
the primary objectives of the MPRDA.’

[36] These remarks by the Constitutional Court elucidate the purpose for which
the MPRDA was enacted. An overview of the relevant provisions will be helpful
for proper consideration of the contested decisions. The sections are set out below
as they read when the contested decisions were made, prior to the commencement
of the Mineral and Petroleum Resources Development Amendment Act, 49 of
2008, on 7 June 2013.11

[37] As a starting point s 2 of the MPRDA set out the following objectives of
the Act; to:
‘(a) recognize the internationally accepted right of the State to exercise sovereignty over all
the mineral and petroleum resources within the Republic;
(b) give effect to the principle of the State’s custodianship of the nation’s mineral and
petroleum resources;
(c) promote equitable access to the nation’s mineral and petroleum resources;
(d) substantially and meaningfully expand opportunities for historically disadvantaged persons,
including women, to enter the mineral and petroleum industries and to benefit from the
exploitation of the nation’s mineral and petroleum resources;
(e) promote economic growth and mineral and petroleum resources development in the
Republic;
(f) promote employment and advance the social and economic welfare of all South Africans;
(g) provide for security of tenure in respect of prospecting, exploration, mining and production
operations;
(h) give effect to section 24 of the Constitution by ensuring that the nation’s mineral and
petroleum resources are developed in an orderly and ecologically sustainable manner while
promoting justifiable social and economic development; and
(i) ensure that holders of mining and production rights contribute towards the socio economic
development of the areas in which they are operating.’

11 Although the wording of some of the provisions of the Act changed pursuant to the amendment, the substance,
structure and flow of the Act remains substantially the same post amendment.

[38] Chapter 3 of the Act regulated the administration of the MPRDA. In terms
of s 7, the Republic and the sea were divided into regions. Each region had a
regional manager designated by the Director-General to perform the functions
assigned to him or her under the Act or any other law.12 One such function was
the processing of mineral and petroleum reconnaissance applications.

[39] Section 9 regulated the sequence in which multiple applications for the
same mineral on the same land would be processed. If the Regional Manager
received more than one application for a prospecting or mining right in respect of
the same mineral and land on the same day, she had to regard the applications as
having been received at the same time.13 When processing the applications the
Minister had to then give preference to applications from historically
disadvantaged persons.14 Applications received on different dates had to be dealt
with in the order of receipt.15

[40] Sections 16 and 17 regulated the procedure and requirements for
processing prospecting rights applications. In terms of s 16(1), applications had
to be lodged in the office of the Regional Manager in whose region the land was
located, in the prescribed manner, with the prescribed, non-refundable application
fee. In terms of s 16(2), the Regional Manager had to accept an application for a
prospecting right if –
‘(a) the requirements contemplated in subsection (1) [were] met; and
(b) no other person [held] a prospecting right, mining right, mining permit or retention permit
for the same mineral and land.’

12 Section 8 of the MPRDA.
13 Section 9(1)(a).
14 Section 9(2).
15 Section 9(1)(b).

[41] As stated, when the MPRDA came into effect on 01 May 2004, a
transitional, arrangement was provided in the Act. Apart from Item 3 of Schedule
II to the Act, which kept applications that were pending under ss 6, 8, and 9 of
the Minerals Act16 alive, in addition, transitional arrangements were provided,
under Items 8(1) and (2) of Schedule II, to protect the security of tenure and to
give holders of old order rights opportunity to comply with the new Act. In terms
thereof, an unused old order right17 which was in force when the MPRDA came
into effect, continued to be valid subject to the conditions under which it was
acquired. The holder thereof was afforded an exclusive right for a period of a year
from 1 May 2004, to apply for a prospecting right or a mining right as the case
might be.

[42] Item 8 provided that:
‘Processing of unused old order rights
(1) Any unused old order right in force immediately before this Act took effect, continues in
force, subject to the terms and conditions under which it was granted, acquired or issued or was
deemed to have been granted or issued, for a period not exceeding one year from the date on
which this Act took effect, or for the period for which it was granted, acquired or issued or was
deemed to have been granted or issued, whichever period is shortest.
(2) The holder of an unused old order right has the exclusive right to apply for a prospecting
right or a mining right as the case may be, in terms of this Act within the period referred to in
item (1).
(3) An unused old order right in respect of which an application has been lodged within the
period referred to in subitem (1) remains valid until such time as the application for a
prospecting right  or mining right, as the case may be, is granted and dealt with in terms of this
Act or is refused.
(4) Subject to the subitems (2) and (3), an unused old order right ceases to exists upon the
expiry of the period contemplated in subitem (1).’

16 Para 7 above
17 In terms of s1 of Schedule II an ‘old order right’ meant ‘an old order mining right, old order prospecting right
or unused old order right as the case may be’.

[43] Once an application for a prospecting right was accepted as provided in
s16(2), the Regional Manager had to notify the applicant, in writing, within 14
days, of the receipt of the application, if it did not comply with the requirements
set in s 16(1).18 Section 17(1) provided that the Minister had to grant the
application within 30 days if:
‘(a) the applicant [had] access to financial resources and [had] the technical ability to conduct
the proposed prospecting operation optimally in accordance with the prospecting work
programme;
(b) the estimated expenditure [was] compatible with the proposed prospecting operation and
duration of the prospecting work programme;
(c) the prospecting [would] not result in unacceptable pollution, ecological degradation or
damage to the environment;
(d) the applicant [had] the ability to comply with the relevant provisions of the Mine Health
and Safety Act, 1996 (Act No. 29 of 1996); and
(e) the applicant [was] not in contravention of [the] Act.’

[44] On approval of the application, the holder of the prospecting right became
entitled to an exclusive right to apply for renewal thereof in respect of the same
mineral, on the same land.19 It also had an exclusive right to remove and dispose
of the minerals to which the right related when found during prospecting
operations.20 On the other hand, it was obliged to commence with the prospecting
activities within 120 days from the date on which the prospecting right became
effective or any extended period granted.21 Prospecting operations had to be
conducted continuously and actively in accordance with the prospecting work
programme incorporated in the conditions of the prospecting right.22

18 Section 16(3).
19 Section 19(1)(a) read together with s18.
20 Section 19(1)(c) read together with s 20.
21 Section 19(2)(b).
22 S 19(2)(c).

[45] In terms of s 17(2) the Minister had to refuse an application for a
prospecting right where:
‘(a) the application [did] not meet all the requirements referred to in subsection(1);
(b) the granting of such right [would] –
(i) result in an exclusionary act;
(ii) prevent fair competition; or
(iii) result in the concentration of the mineral resources in question under the control of the

applicant.’
A refusal had to be communicated to the applicant in writing within 30 days
thereof, together with the reasons therefor.23

[46] Notably, after the amendment to the Act s 17(2) reads as follows:
‘(2) The Minister must, within 30 days of receipt of the application from the Regional
Manager, refuse to grant a prospecting right if —
(a) the application does not meet all the requirements referred to in subsection (1);
(b) the granting of such right will result in the concentration of the mineral resources in
question under the control of the applicant and their associated companies with the
possible limitation of equitable access to mineral resources.’ (Emphasis added)

[47] Sections 22 and 23 regulated the procedure and requirements in
applications for, and granting of, mining rights. The prescribed procedure and
approval requirements were substantially similar to those applicable to
prospecting right applications.24 Renewal of mining rights was regulated under s
24 in a procedure similar to renewal of prospecting rights.

[48] Prior to the amendment, alienation and encumbrance of prospecting and
mining rights were restricted under s 11(1) of the Act as follows:

23 Section 17(3).
24 Section 22 (1) & (2).

‘A prospecting or mining right or an interest in any such right or a controlling interest in a
company or close corporation, may not be ceded, transferred, let, sublet, assigned, alienated or
otherwise disposed of without the written consent of the Minister, except in the case of change
of controlling interest in listed companies.’

Discussion
[49] Much of the argument on behalf of the appellants centered around the
acceptance of the respondents’ (Bauba and Genorah) prospecting rights
applications and the effect thereof on the subsequent renewals, and the granting
of Genorah’s mining right. The respondents persisted in their contention that the
appeal should be dismissed based only on the unreasonable delay in the
prosecution of the review application.

[50] There was indeed evidence of intermittent attempts at settlement
negotiations between the RPM and DMRE’s functionaries from 2006 to the end
of 2013, to the extent that a draft settlement agreement was exchanged between
the DDG and Mr Mukoka of RPM on 17 December 2013.  It is also correct that
the Department delayed, repeatedly, sometimes for long periods, in furnishing
RPM with requested information and documents. In addition, the Regional
Manager insisted that RPM enter into settlement negotiations with DMRE and
Genorah, even after the review proceedings had been instituted. Moreover, RPM
did not immediately become aware of and first had to verify the decisions that
preferred Bauba and Genorah on the competing applications. The Department
had to be compelled by court to furnish the information required to institute the
proceedings. RPM only became aware after almost two years that the King’s
application had been approved.

[51] Nevertheless there were long periods of unexplained inaction by RPM after
becoming aware of the Genorah approval decision and after the institution of the

review proceedings. Regarding the 10 month delay after becoming aware that the
Genorah prospecting right had been granted, the only explanation was that the
matter was taken up with the DDG who ‘never reverted to RPM about the matter’.

[52] Having become aware in 2008 that prospecting rights were granted in
2006, the appellants must have been aware that, by that time only three years of
the five-year lifespan of the rights remained. Importantly, under s19(2)(b) of the
MPRDA, once Bauba and Genorah were granted prospecting rights they became
obliged to commence with prospecting activities within 120 days from the date
on which the rights became effective. The appellants therefore had to institute
and prosecute their challenge to the relevant decisions diligently. Yet it was at
Bauba’s instance that there was progress in the prosecution of the review
application after a long period of inaction. Bauba instituted an application for the
dismissal of the review application. This led to ARM seeking the joinder that led
to the consolidation of the separate review applications that had been instituted
against Bauba and Genorah.

[53] The delays had the effect that by the time the application for review was
heard by the high court the original and renewed prospecting rights had long
expired. Genorah had secured a mining right and Bauba’s application for a mining
right was pending. All that was specified under s 22(2)(b) was that no application
for a mining right could be accepted if some other person held a prospecting right,
mining right, mining permit or retention permit for the same mineral and land.
There was no evidence of a holder of any such right or permit when Genorah and
Bauba applied for mining rights on the properties in question.

[54] Ultimately, a decision on the lawfulness of the applications for the
prospecting rights granted, including the rights that were granted by way of
variations, was of no practical effect. More so that a prospecting right was not a

pre-requisite for a mining right. Consequently it is not necessary to consider the
appeal on the granting of the prospecting rights. It is important to note, however,
that even if it were to be found that the granting of prospecting rights to Genorah
and Bauba was unlawful that would not mean that a prospecting right should have
been granted to the appellants. The refusal decision remains to be considered on
its own merits. In the paragraphs that follow I confirm, on the merits, the
lawfulness of the refusal of the appellants’ application for a prospecting right. It
is not necessary to reach any conclusion in this appeal on the effect of delays on
the institution and prosecution of the review application.

The refusal of RPM’S application for a prospecting right.
[55] The high court found that the refusal decision was neither unfair nor
irrational because of the reasons set out in the DDG’s recommendations. It found
that there was nothing improper about taking into consideration Anglo Platinum’s
2005 annual report which was an accurate public document. A further finding
was that the approach in s 17(2), prior to its amendment, was too restrictive and
did not account for the objectives of the MPRDA. The pre-amendment s 17(2)
had to be interpreted liberally to achieve these objectives, particularly the security
of tenure which RPM enjoyed based old order right, it was held.

[56] Of relevance at this point is that before the amendment, s 17(2) did not
extend the assessment of concentration of minerals to companies associated with
an applicant for a prospecting right.25 Possible limitation of equitable access
to mineral resources was also not a specified consideration. Importantly, the Act
had to be interpreted and applied to the facts of this case as it read before the
amendments. Such interpretation, however, could not ignore the context and
purpose for which the relevant provisions were enacted.

25 See pragraphs 45 and 46 above.

[57] It is trite that context is fundamental in the interpretation of all written
instruments. Statutes should be interpreted in accordance with the spirit, purport
and objects of the Bill of Rights. There is, inter alia, the context provided by the
entire enactment. Furthermore, the general factual background to the statute, such
as the nature of its concerns, the social purpose to which it is directed and, in the
case of statutes dealing with specific areas of public life or the economy, the
nature of the areas to which the statute relates provides the context for the
legislation.26

[58] Section 17 in its pre-amended form of the MPRDA must be interpreted to
give effect to its objectives and purpose. I have already set out the objectives of
s2 of the MPRDA.27 They included, giving effect to the State’s custodianship of
the nation’s mineral resources, the promotion of equitable access to such
resources to all the people of South Africa, substantial and meaningful expansion
of opportunities for historically disadvantaged persons to enter into and benefit
from the nation’s mineral and petroleum resources, and the promotion of
economic growth and mineral and petroleum resources development in the
Republic.28

[59] In In Minister of Mineral Resources v Sishen29 the Constitutional Court
said the following about the objectives of the MPRDA:
‘The promotion of equitable access by all South Africans to mineral resources, the expansion of
opportunities for historically disadvantaged persons to enter the mining and petroleum industries, and
the advancement of the social and economic welfare of all South African are cornerstones of that
transformation. The state is obligated to advance the realization of these goals. It is therefore vitally
important to heed the provisions of s 4 when interpreting the MPRDA.

26 Commissioner, South African Revenue Service v United Manganese of Kalahari (Pty) Ltd 2020 (4) SA 428
(SCA) paras 16-17.
27 See para 37 above
28 Section 2(b)(c)(d)(e) and (f) of the MPRDA.
29 Minister of Mineral Resources v Sishen Iron 2014 (2) SA 603 at 45-47.

This is not only because s 4 expressly says so, but also for the reason that the MPRDA was enacted to
eradicate the inequality embedded in all spheres of life under the apartheid order. Equality is at the heart
of our constitutional architecture. It is not only entrenched as a right in the Bill of Rights, but it is also
one of the values on which our democratic order has been founded.

[60] Given the context and objectives of the MPRDA I do not think the DDG
acted improperly in considering the factors which RPM complains about. They
were relevant for the determination that had to be made. In the recommendation,
RPM’s dominance in the platinum group mining sector was highlighted.30 It was
recorded that according to the Anglo Platinum (RPM’s holding company) 2005
Annual Report the Modikwa Platinum Mine, which RPM owns and operates, had
still not reached the target production levels of 240 000 tons per annum and
therefore if granted to RPM, the prospecting right would not be immediately put
to use to attain the objectives of the Act. The DDG’s assessment was that the
Modikwa Platinum Mine had ‘potential life-of-mine resources’ that would last
for over 100 years (presumably from the time of the memorandum). She reasoned
that granting the prospecting right applied for by RPM would result in ‘an
additional 150 m oz 4E, to a depth of 1000 m (approximately) to RPM’s existing
mineral resources on Modikwa Mining operation’. She stressed that:
‘Awarding the properties under the new application to RPM (and therefore to Anglo Platinum)
will certainly contradict the stated goals of the MPRD Act, namely: “To promote equitable
access of the nation’s minerals and petroleum resources to all the people of South Africa and
to expand opportunities for HDSA’s to enter the mineral industry and to benefit from the
exploitation of the nation’s mineral resources”’.

[61] The DDG reasoned that in granting the right applied for, the Department
would be entrenching the same position of locking-up the area as was the case in
the past. RPM’s dominant position would continue to be entrenched, thereby
frustrating the transformation objectives of the MPRDA. Her view, in other

30 See para 14 above.

words, was that, if the prospecting right for the Modikwa Deeps Properties was
granted to RPM, other potential miners, especially from the historically
disadvantaged communities would be excluded from accessing the concerned
market for a long period, whilst RPM still had vast amounts (potential life of mine
resources of up to 100 years) of unmined platinum at the Modikwa Platinum
Mine, and, either directly, or through related entities, already had considerable
access to the minerals in question in the country. That reasoning and the decision
reached was consistent with the purpose and objectives of the MPRDA.

[62] The DDG further referred to 17 old order mining rights held by Anglo
Platinum in the name of its wholly owned subsidiaries, and a further four with its
joint venture partners, which was more than all the other companies involved in
the South African PGM industry combined. She considered that not a single
historically disadvantaged entity held more than five mining rights in the Eastern
Limb or Western Bushveld.

[63] Even though associated companies were not expressly included in s 17(2)
prior to the amendment, there can be no dispute that they were always part of the
composition of the applicant entity. Ignoring the extent of the benefit derived
from that kind of association between companies would be contrary to the
objectives and purpose of s 17(2) even as it read pre-amendment. It was a relevant
factor in considering whether there would be concentration of the minerals in the
hands of RPM.

[64] RPM did not dispute the correctness of the contents of the Anglo Platinum
Annual Report. It also did not dispute that it (RPM) was a wholly owned
subsidiary of Anglo Platinum, one of the largest mining companies in the country.
On any reasonable approach this is the kind of information that is relevant in
determining whether the granting of a prospecting and mining right accords with

the transformation objectives of the MPRDA. As it was submitted on behalf of
Genorah, DMRE was obliged to consider this information once it came to the
attention of the relevant functionaries. It was an integral part of the determination
of the concentration of mineral rights as provided in s 17(2).

[65] The following reasoning by the Regional Manager gives even more insight
into her approach in considering RPM’s application:
‘The properties under application and their resource potential present a critical mass and an
ideal opportunity to serve as a base for a company controlled by HDSA persons to successfully
enter the South African PGM Industry. In view of RPM/Anglo Platinum’s dominant position
in the South African and world PGM Industry . . . its application for the new properties cannot
be supported. . .’
Again, this reasoning is consistent with the objectives of the MPRDA and in line
with the principles of interpretation of legislation. On the other hand, the
contention that the DDG ignored the fact that RPM would be going into a joint
venture with a historically disadvantaged entity was not substantiated. That entity
had been RPM’s associate in the industry for some time and would have already
benefited from that association.

[66] The refusal of the prospecting right to RPM can therefore not be faulted on
the basis of the approach she took in applying the provisions of s17(2) of the
MPRDA. It follows that there was no bar to granting a mining right to Genorah
In the end, I cannot find that the result reached by the high court was incorrect.
The following order is granted:

The appeal is dismissed with costs including the costs of two counsel, which costs
shall be paid by the second appellant.

___________________________

N DAMBUZA

ACTING DEPUTY PRESIDENT

Appearances:
For 1st appellants:

M Seape
Instructed by:

Norton Rose Fullbright Inc, Sandton

Webbers Attorneys, Bloemfontein

For 2nd appellants:

T Bruinders SC with E Webber
Instructed by:

Bowman Gilfillan Inc., Sandton
McIntyre
van
der
Post
Attorneys,
Bloemfontein

For 4th, 6th, 7th and 10th respondents: B Leech SC with F Hobden

Instructed by:

Werkmans Attorneys, Sandton

Matsepes Inc, Bloemfontein

For 8th and 9th respondents:

A Botha SC with A Saldulker
Instructed by:

Shaheed Dollie, Johannesburg

Matsepes Inc, Bloemfontein

THE SUPREME COURT OF APPEAL OFSOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED

FROM

The Registrar, Supreme Court of Appeal
DATE

18 November 2022
STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part
of the judgment.

Rustenburg Platinum Mines Limited and Another v The Regional Manager, Limpopo
Region, Department of Mineral Resources and Others (1109/2020) [2022] ZASCA 157
(18 November 2022)

MEDIA STATEMENT

Today the Supreme Court of Appeal dismissed an appeal against an order of the Gauteng
Division of the High Court, Johannesburg which dismissed an application for review of certain
decisions of the Regional Manager of the Department of Mineral Resources and Energy,
Limpopo Region. The Regional Manager approved applications by Genorah Resources and
Bauba A Hlabirwa Mining for prospecting rights in respect of an area known as the Modikwa
Deeps Properties and refused an application by Rustenburg Platinum Mines Ltd (RPM) for the
same rights. In addition the Regional Manager approved an application by Genorah Resources
for mining rights.
The applications by Genorah and Bauba for prospecting rights were submitted to the
Department after RPM had submitted its application for the upgrading of its old order
(prospecting) right for the same minerals in respect of the Modikwa Deeps Properties. When
RPM’s application was refused and Genorah and Bauba’s were approved RPM challenged
these decisions saying the Deputy Director General should not have accepted the applications
by the other two entities because of the period of exclusivity that RPM had in respect of its old
order right application. RPM also argued that the unlawful grant of the prospecting rights all
subsequent rights, including renewal of the prospecting rights and the granting of the mining
right Genorah were also unlawful and should be set aside. Genorah and Bauba responded
disputing the unlawfulness of the approval decisions and arguing that RPM’s review

application should be dismissed based only on the delay in instituting the application for
review. The high court agreed with the latter argument and dismissed the review application
because of the unreasonable delay in instituting the review proceedings. It also made certain
findings on the merits; including that Bauba’s application should not have been accepted by
the Department and that RPM’s application had been correctly refused.

The SCA held that it was unnecessary to consider the lawfulness of the approvals of the
prospecting rights because those rights and subsequent renewals thereof had long expired by
the time the application for review was heard by the court. Furthermore a prospecting right was
not a pre-requisite for a mining right. Therefore the challenge on the grant of Genorah’s mining
right based on the alleged unlawfulness of the prospecting right failed. As to the refusal of
RPM’s application for a prospecting right the SCA found that that decision had to be evaluated
independently of the applications by the other two entities.  The court found that the reasoning
of the Regional Manager, in considering the extent of participation of RPM and its partner
ARM, in the platinum mining sector, was in line with the provisions of the applicable sections
of the Mining and Petroleum Resources Distribution Act of 2002. Therefore RPM’s application
had been correctly refused.

--- ends --