THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 594/17

In the matter between:

THE EXECUTRIX OF THE ESTATE OF THE LATE
JOSEPHINE TERBLANCHE GOUWS
(CHARMAINE CELLIERS N.O.)

APPELLANT

and

MAGNIFICENT MILE TRADING 30 (PTY) LTD     FIRST RESPONDENT
MINISTER OF MINERAL RESOURCES                            SECOND RESPONDENT
DIRECTOR-GENERAL, DEPARTMENT
OF MINERAL RESOURCES

THIRD RESPONDENT
DEPUTY DIRECTOR-GENERAL:
MINERAL REGULATION: DEPARTMENT
OF MINERAL RESOURCES

FOURTH RESPONDENT
ANNEKE DENISE LE ROUX N.O.                                            FIFTH RESPONDENT

Neutral citation:
Executor of the Estate of the Late Josephine Terblanche Gouws
(Charmaine Celliers N.O.) v Magnificent Mile Trading 30 (Pty) Ltd & others (594/17)
[2018] ZASCA 91 (1 June 2018)

Coram:
Shongwe ADP, Swain and Dambuza JJA, Plasket and Rogers AJJA

Heard:
11 May 2018

Delivered:
1 June 2018

Summary:
Mineral and Petroleum Resources Development Act 28 of 2002 –
application for conversion of unused old order mineral right to new order prospecting
right – effect of death of applicant after application made but before decision taken –
setting aside of grant of prospecting right in respect of a property other than property
applied for – effect of setting aside is that original application still pending –
application for mining right by another party not permissible.

___________________________________________________________________

ORDER

On appeal from: Gauteng Division, Pretoria (Fabricius J sitting as court of first
instance):
1 The appeal is upheld with costs, including the costs of two counsel.
2 The order of the court below and paragraph 2 of the costs order dated 28 June
2017 are set aside and replaced with the following order.
‘(a) With the exception of the prayers set out in paragraphs 1, 2, 3, 5 and 6 of
the applicant’s amended notice of motion, the application is dismissed.
(b) The counter-application is granted and it is declared that:
(i) the applicant did not have the right or competency to apply for any
right in terms of the Mineral and Petroleum Resources Development
Act 28 of 2002 in respect of Portion 9 of the farm Driefontein 338,
Registration Division J.S., Mpumalanga, district of Middelburg; and
(ii) The application for a prospecting right lodged by the late Mr
Nicolaas Petrus Gouws in respect of the farm Driefontein, district of
Middelburg is still pending a decision by the relevant authority.
(c) The applicant is directed to pay the fifth respondent’s costs in respect of
both the application and the counter-application, such costs to include the
costs of two counsel.’

JUDGMENT

Plasket AJA (Shongwe ADP, Swain and Dambuza JJA and Rogers AJA
concurring)

[1] The Mineral and Petroleum Resources Development Act 28 of 2002 (the
MPRDA) changed fundamentally the way in which the country’s mineral and
petroleum resources are to be exploited.1 The MPRDA’s objects, specified in s 2,

1 For comment on the changes brought about by the MPRDA see Xstrata South Africa (Pty) Ltd &
another v SFF Association 2012 (5) SA 60 (SCA); [2012] ZASCA 20 para 1; Agri South Africa v

include the recognition of the ‘internationally accepted right of the State to exercise
sovereignty over all the mineral and petroleum resources within the Republic’ and
giving effect to the ‘principle of the State’s custodianship’ of those resources. Added
to that – and not surprisingly, given our history – the MPRDA also aims to promote
‘equitable access to the nation’s mineral and petroleum resources to all the people of
South Africa’ and to expand in a substantial and meaningful way ‘opportunities for
historically disadvantaged persons . . . to enter into and actively participate in the
mineral and petroleum industries and to benefit from the nation’s mineral and
petroleum resources’.

[2] In order to achieve these objects, the MPRDA broke decisively with the
regime previously in place for the exploitation of mineral and petroleum resources.
Principally, it provided that the State is the custodian of all mineral and petroleum
resources and that it may ‘grant, issue, refuse, control, administer and manage any
reconnaissance permission, prospecting right, permission to remove, mining right,
mining permit, retention permit, technical cooperation permit, reconnaissance permit,
exploration right and production right’. The MPRDA did, however, create a bridge of
narrow span for a transition from the earlier system of mineral regulation to its new
system. For instance, it allowed holders of ‘unused old order’ mineral rights in
existence when the MPRDA came into effect (on 1 May 2004) to apply for their
conversion into ‘new order’ rights subject to the condition that if such a holder did not
apply for conversion of his or her right within one year of 1 May 2004, he or she lost
the right, and it could be allocated to someone else.2

This appeal

[3] This appeal concerns an application brought by the late Mr Nicolaas Petrus
Gouws (Mr Gouws) for the conversion of his unused old order mineral right to a new
order prospecting right for coal in respect of his property, Portion 9 of the farm
Driefontein 338 in the district of Middelburg, Mpumalanga; a competing application
for a prospecting right in respect of the same property and the same mineral brought

Minister of Minerals and Energy 2013 (4) SA 1 (CC); [2013] ZACC 9 paras 25-26; Minister of Mineral
Resources & others v Sishen Iron Ore Co (Pty) Ltd & another 2014 (2) SA 603 (CC); [2013] ZACC 45
paras 10-11.
2 Pan African Mineral Development Company (Pty) Ltd & others v Aquila Steel (South Africa) (Pty) Ltd
[2018] 1 All SA 414 (SCA); [2017] ZASCA 165 para 12.

by Magnificent Mile Trading 30 (Pty) Ltd (Magnificent Mile); and the validity of these
and a proliferation of other administrative decisions taken over a number of years
thereafter. With a great deal of justification, counsel for the appellant, in the court
below, described the administrative process as a ‘veritable comedy of errors’, and
Fabricius J, the judge in the court below, observed that ‘[w]hatever could go wrong
with the applications . . . did go wrong’.

[4] As Mr Gouws died after his application had been made but before it was
decided, a central question that arises for decision in this appeal is whether a
prospecting right may be granted to a deceased estate, or whether the death of Mr
Gouws put an end to his application.

[5] In the court below, the North Gauteng Division of the High Court, Pretoria,
Magnificent Mile brought an application to review and set aside a number of
decisions taken by officials within the Department of Mineral Resources (the
Department) in favour of Mr Gouws’ deceased estate and that of his widow Ms
Josephine Terblanche Gouws, as well as decisions adverse to it. Although the
Minister, the Director-General and the Deputy Director-General: Mineral Regulation
of the Department were cited as respondents, they played no part in the
proceedings, and take no part in this appeal. Initially, the executor of the estate of
the late Mr Gouws was cited as the fourth respondent and his widow and sole heir,
Ms J T Gouws (Ms Gouws), was cited as the fifth respondent. On the death of Ms
Gouws, she was substituted by the executor of her deceased estate, Ms Charmaine
Celliers. The deceased estate of Ms Gouws opposed the relief sought by Magnificent
Mile and also brought a counter-application of its own for declaratory relief.

[6] Fabricius J granted an order in terms of paragraphs 1, 2, 3, 4, 5, 6, 7 and 8.1
of Magnificent Mile’s amended notice of motion.  A perusal of the order gives a good
indication of the bureaucratic mayhem attendant upon Mr Gouws’ application and its
sequelae. The order read (to avoid confusion, I shall substitute the non-
governmental parties’ citations in the court below with their names):
‘1. That Magnificent Mile is, in terms of section 7(2)(c) of the Promotion of Administrative
Justice Act, 2000 (Act 3 of 2000) (“the PAJA”), hereby exempted from the obligation to
exhaust its internal remedies in terms of section 96 of the Mineral and Petroleum Resources

Development Act, 2002 (Act 28 of 2002) (“the MPRDA”) in relation to the review of the
decisions referred to in paragraphs 2,3,5,6 hereof and the review of the Refusal Decision
contemplated in paragraph 7 hereof;
2. That the following decisions of the third respondent (“DDG”) be reviewed and set aside,
namely:
2.1. The decision of the DDG dated 13 December 2005 to grant a prospecting right in
favour of Nicolaas Petrus Gouws (“the Deceased”) in respect of coal on portion 9 of
Driefontein 338 JS situated in Wakkerstroom;
2.2. The decision of the DDG dated 9 November 2010 to grant a prospecting right in
favour of the Deceased in respect of one half share of minerals on portion 9 of
Driefontein 338 JS situated in Witbank;
2.3. The decision of the DDG dated 19 September 2011 to amend the power of
attorney dated 9 November 2010 to rectify the magisterial district referred to therein
to read “Middelburg”.
3. That the decision of the first respondent to grant a prospecting right for coal in respect of
portion 9 of the farm Driefontein 338 JS situated in Witbank to the Deceased on a date prior
to 9 July 2013 be reviewed and set aside;
4. That the decisions referred to in paragraphs 2.1, 2.2 and 3 hereof be substituted by a
decision, in terms of section 17(2) of the MPRDA, to refuse the application for a prospecting
right by Nicolaas Petrus Gouws in respect of portion 9 of the farm Driefontein 338 JS;
5. That the execution and registration in the Mineral and Petroleum Titles Registration Office
of the following prospecting rights be reviewed and set aside, alternatively, be declared to be
unlawful and invalid, namely:
5.1. The prospecting right executed on 14 December 2010 in favour of Ms Gouws for
one half share of the minerals on portion 9 of the farm Driefontein 338 JS situated in
Middelburg; and
5.2. The prospecting right executed on 5 October 2011 in favour of Mr Gouws’
executor for coal in respect of one half share of the minerals on portion 9 of the farm
Driefontein 338 JS situated in Middelburg.
6. That the decision of the DDG dated 17 July 2013 to grant consent in terms of section 11
of the MPRDA for the cession of a prospecting right in respect of portion 9 of the farm
Driefontein 338 JS allegedly held by the Deceased to Ms Gouws be reviewed and set aside
and that the said decision of the DDG be substituted by a decision in terms of which the
applications for consent in terms of section 11 of the MPRDA to cede a prospecting right in
respect of portion 9 of the farm Driefontein 338 JS allegedly held by the Deceased to Ms
Gouws, be refused;

7. That the decision of the second respondent to refuse Magnificent Mile’s application for a
mining right for coal in respect of portion 9 of the farm Driefontein 338 JS (“the Refusal
Decision”) be reviewed and set aside;
8. That, the Refusal Decision be substituted by the following decision, namely, to:
8.1. grant to Magnificent Mile, in terms of section 23(1) of the MPRDA, a mining right
in respect of portion 9 of the farm Driefontein 338 JS.’
In addition, an order was made directing the Minister to consider an application,
when one was made, for the approval of an environmental authorisation in respect of
Magnificent Mile’s proposed mining operations. This was an amended form of the
order sought in paragraph 8.2 of the amended notice of motion.

[7] Fabricius J dismissed the deceased estate’s counter-application in which
declaratory orders had been sought that:
‘1. Magnificent Mile never had the right or competency to apply for any right under the
Mineral and Petroleum Resources Development Act, 28 of 2002, in respect of the property
described as Portion 9 of the Farm Driefontein 338, Registration Division J.S. Mpumalanga,
District of Middelburg;
2. The application for a prospecting right by the said Magnificent Mile in respect of the said
property is void ab initio, and so are all steps taken in consequence thereof;
3. The application for a prospecting right by Mr Gouws in respect of the said property was
valid, and:
3.1. has been duly granted, alternatively;
3.2. is still pending, awaiting consideration by the Director-General of the Department
of Mineral Resources or the correct official in the said Department.’

[8] Costs were reserved but later an order was made directing the Minister,
Director-General and Deputy Director-General – the official respondents, as they
were referred to by the parties – to pay the costs of the application and the estate to
pay the costs of the counter-application. This appeal is before this court with the
leave of Fabricius J.

[9] It is common cause between the parties that paragraphs 1, 2, 3, 5 and 6 of
the order were correctly made. These are the orders that exempted Magnificent Mile
from having to exhaust its internal remedies and that set aside the grant of a
prospecting right to Mr Gouws in respect of a property called Driefontein in the
Wakkerstroom district and the ill-conceived attempts to rectify this initial error. Mr

Louw who, together with Mr Kruger, appeared for the appellant, argued, however,
that paragraphs 4, 7 and 8 should be set aside and so should the order dismissing
the counter-application.

The factual background

[10] Mr Gouws owned the farm Driefontein in the district of Middelburg. Before the
MPRDA came into force on 1 May 2004, he owned the mineral rights beneath the
surface as a consequence of his ownership of the land.

[11] He knew that the mineral rights were valuable because he had previously
conducted prospecting operations which had indicated the presence of a substantial
coal deposit on the property. He decided not to exploit his mineral right at that stage
but rather to wait for a more opportune time to do so.

[12] When it became apparent that the MPRDA would be passed into law and
would introduce a dramatically different minerals regime, Mr Gouws decided that the
time was ripe for him to make use of his mineral right so that he would not lose it. In
order to do so, his son-in-law sought the partnership of people with experience in the
mining industry. It is alleged that this was how Mr Martin Pretorius, a director of
Magnificent Mile, came to know of the coal deposit below the surface of Driefontein,
and motivated this company’s competing application for a prospecting right.

[13] The MPRDA came into force on 1 May 2004. Mr Gouws applied for a
prospecting right in respect of Driefontein on 29 April 2005, a day before the closing
of the window period of one year created by item 8 of Schedule II of the MPRDA. On
3 May 2005, Magnificent Mile lodged its application for a prospecting right for coal in
respect of Driefontein. Both applications were accepted by the Department, Mr
Gouws’ on 20 May 2005 and Magnificent Mile’s on 31 May 2005.

[14] On 9 November 2005, while his application was still pending, Mr Gouws died.
On 13 December 2005, however, the Department granted a prospecting right for
coal to Mr Gouws in respect of a farm called Driefontein in the Wakkerstroom district
of Mpumalanga. At the same time, Magnificent Mile was granted a prospecting right

for coal in respect of Driefontein in the Middelburg district, the farm that Mr Gouws
had owned.

[15] Not surprisingly, when Magnificent Mile sought to enter Driefontein and
commence prospecting, it encountered the resistance of the Gouws family. This led
to a stand-off between Magnificent Mile and the Gouws family and a parallel process
on the part of officials within the Department to rectify the errors that had occurred.
Although some prospecting was undertaken on Driefontein by Magnificent Mile,
those operations appear to have been fairly limited. The prospecting right has now
lapsed.3 On 18 November 2009, Magnificent Mile applied for a mining right in
respect of the coal on Driefontein.

[16] On 9 November 2010, the Department purported to amend the prospecting
right that had been granted to Mr Gouws. It did so, first, by substituting ‘Witbank’ for
‘Wakkerstroom’ to describe the district in which Driefontein was situated. Secondly,
the holder of the prospecting right was amended to reflect, not Mr Gouws, but ‘The
Beneficiary, Late Estate Nicolaas Petrus Gouws’. Thirdly, the prospecting right was
said to be in respect of ‘one half portion (a portion of portion 3)’ of Driefontein. (This
error occurred because Mr Gouws owned the farm by virtue of two title deeds, each
in respect of a half share. The officials mistakenly had regard to only one of the title
deeds in making the purported grant.) On 19 September 2011, a further attempt was
made to rectify the situation: the power of attorney that had effected the amendment
of 9 September 2009 was amended to reflect the magisterial district in which
Driefontein was situated to be Middelburg.

[17] On 22 September 2011, Ms Gouws applied, in terms of s 11, for ministerial
approval for the cession of the prospecting right to her. On 2 November 2011, the
prospecting right was registered in the Mineral and Petroleum Titles Registration
Office. Its holder was now described as Ms Gouws and it authorised prospecting in
respect of ‘one half share of minerals in Portion 9 (a portion of portion 3) of the farm
Driefontein’ in the Middelburg district.

3 Magnificent Mile’s purported prospecting right ran from 24 February 2006 to 24 February 2007. It
was a condition of the grant that an application for extension in terms of s 18 be lodged not later than
60 days before expiry. Apart from the fact that Magnificent Mile’s extension application was only
lodged on 16 February 2007, an extension could in any event not have exceeded a further three
years. See s 18(5).

[18] At about this time, an internal appeal was initiated by Magnificent Mile aimed
at challenging the grant of the prospecting right to Mr Gouws and Ms Gouws. That
process, which was opposed by Ms Gouws, was never concluded.

[19] On 10 April 2013, Magnificent Mile’s application for a mining right was refused
because of Mr Gouws’ prior prospecting right. It lodged an internal appeal against
that decision. This too was opposed by Ms Gouws. This process too was never
completed.

[20] It was agreed between the parties, probably as a result of the comedy of
errors that I have described, that it would be best to abandon the internal appeals
and proceed to court for a definitive determination of their disputes. As a result,
Magnificent Mile launched an application in terms of rule 53 of the uniform rules on
12 August 2013. Even then, problems of the Department’s making continued to
beset the proceedings: it took 18 months, an application to compel the Department
to comply with its obligations to furnish the record and a contempt of court
application before a record of sorts was available. On 25 August 2015, an amended
notice of motion and supplementary founding affidavit were filed. On 22 October
2015, Ms Gouws filed her answering affidavit and counter-application.

The legislation

[21] The MPRDA made the State custodian of all of the country’s mineral and
petroleum resources but also empowered it, through the Minister of Mineral
Resources, to grant rights to exploit minerals to individuals who applied for those
rights. To that end, an administrative system was created for the consideration of
applications for various types of rights as well as an internal appeals process. So, for
instance, provision is made for applications for reconnaissance permission,4
prospecting rights,5 mining rights,6 mining permits7 and retention permits,8 as well as

4 Sections 13-15.
5 Sections 16-20.
6 Sections 22-25.
7 Section 27.
8 Sections 31-36.

for the duration of each type of right, their renewal and the rights and obligations that
are imposed on their holders.

[22] In order to ensure that the objects of the MPRDA, and particularly its
transformational objects, are attained, the Minister retains control over the transfer of
rights that have been granted: in terms of s 11, rights granted in terms of the MPRDA
may not be ‘ceded, transferred, let, sublet, assigned, alienated or otherwise disposed
of without the written consent of the Minister . . .’.

[23] In order to bridge the gap between the old order and the new, Schedule II of
the MPRDA provides for transitional arrangements. These are particularly relevant to
this matter as Mr Gouws was the holder of an unused old order right when the
MPRDA came into force and had applied for its conversion.

[24] The Schedule contains its own set of objects in item 2. They are the
protection of security of tenure in respect of prospecting and mining operations,
affording the holders of old order rights the opportunity to comply with the new
dispensation and promoting ‘equitable access to the nation’s mineral and petroleum
resources’.

[25] In order to give effect to these objects – particularly the object of ensuring
security of tenure – Schedule II deals with prospecting and mining applications that
were pending when the MPRDA came into force, providing that they would continue
as if brought in terms of the MPRDA;9 exploration and production operations,
providing for their continuation subject to an expiry date and for their conversion into
new order rights;10 and the continuation of old order prospecting and mining rights for
limited periods within which the holders of those rights could apply for their
conversion into new order rights.11

[26] Item 8 deals with the processing of unused old order rights. It provides:
‘(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

9 Item 3.
10 Items 4 and 5.
11 Items 6 and 7.

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 the 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
subitem (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 subitems (2) and (3), an unused old order right ceases to exist upon the expiry
of the period contemplated in subitem (1).’

[27] Two key terms used in item 8 are defined in item 1. A ‘holder’ of an old order
right is defined to mean ‘the person to whom such right was or is deemed to have
been granted or by whom it is held or is deemed to be held, or such person's
successor in title before this Act came into effect’. An ‘unused old order right’ means
‘any right, entitlement, permit or licence listed in Table 3 to this Schedule in respect
of which no prospecting or mining was being conducted immediately before this Act
took effect’. Table 3 includes in category 1 a mineral right under the common law.

The issues

The effect of paragraphs 2, 3, 5 and 6 of the amended notice of motion

[28] The grant and refusal of prospecting and mining rights in issue in this case
constitute administrative action as that term is defined in s 1 of the Promotion of
Administrative Justice Act 3 of 2000 (the PAJA): they are decisions of an
administrative nature, taken by an organ of state exercising a public power in terms
of which rights created and regulated by the MPRDA are either allocated or refused
to persons, thereby having the potential to adversely affect rights and having a
direct, external legal effect.12 In Minister of Mineral Resources & others v Mawetse

12 The PAJA, s 1. See the definitions of ‘administrative action’ and ‘decision’. See too Greys Marine
Hout Bay (Pty) Ltd & others v Minister of Public Works & others 2005 (6) SA 313 (SCA); [2005]
ZASCA 43 paras 21-24.

(SA) Mining Corporation (Pty) Ltd,13 Majiedt JA held that ‘the granting of a
prospecting right, as is the case with all other rights under the MPRDA, is not
contractual in nature but a unilateral administrative act by the Minister or her
delegate in terms of their statutory powers under the MPRDA’.

[29] More than one ground of review justified the setting aside of the prospecting
right granted to Mr Gouws on 13 December 2005, and the related chain of
administrative actions that followed: the official who granted the prospecting right for
a property other than the property applied for was not authorised by the MPRDA to
do so14 and he or she certainly acted irrationally in the sense that there was no
rational connection between the decision taken and the information before the
official;15 when attempts were made to alter the terms of the prospecting right, once
again, the officials concerned acted beyond their authority because they were, by
then, functus officio;16 and their attempts to rectify the problem resulted in a
prospecting right that was void for vagueness.17

[30] In terms of the doctrine of objective invalidity, the setting aside of the irregular
grant operates retrospectively.18 Because of the defects that I have mentioned, the
grant was always a nullity and, on its setting aside, was to be treated as never
having existed – it was ‘void from its inception’ and never had legal force or effect.19
This means that Mr Gouws’ application for a prospecting right has never been
decided. Subject to what I shall say about the effect of Mr Gouws’ death on the
application, it is still pending.

13 Minister of Mineral Resources & others v Mawetse (SA) Mining Corporation (Pty) Ltd 2016 (1) SA
306 (SCA); [2015] ZASCA 82 para 24. See too Bengwenyama Minerals (Pty) Ltd & others v Genorah
Resources (Pty) Ltd & others 2011 (4) SA 113 (CC); [2010] ZACC 26 para 61.
14 The PAJA, s 6(2)(a)(i).
15 The PAJA, s 6(2)(f)(ii)(cc).
16 The PAJA, s 6(2)(a)(i).
17 The PAJA, s 6(2)(i). See too Minister of Health & another NO v New Clicks South Africa (Pty) Ltd &
others (Treatment Action Campaign & another as amici curiae) 2006 (2) SA 311 (CC); [2005] ZACC
14 para 246.
18 Ferreira v Levin NO; Vryenhoek & others v Powell NO & others 1996 (1) SA 984 (CC); [1995] ZACC
13 para 27.
19 Pikoli v President of the Republic of South Africa & others 2010 (1) SA 400 (GNP) at 409C-D. See
too Cora Hoexter Administrative Law in South Africa (2 ed) at 545-546.

The effect of Mr Gouws’ death

[31] It was argued on behalf of Magnificent Mile that, in blunt terms, Mr Gouws’
application died with him. The argument is based on the non-transferability of an
unused old order right and the personal nature of that right.

[32] In order to address this issue, it is necessary to consider the nature of the
right that accrues to a holder of an unused old order right when he or she applies for
its conversion into a prospecting right or a mining right.

[33] It is correct that the holder of an unused old order right as at 30 April 2004
could not thereafter transfer it. That is implicit in the definition of a holder that I have
already cited, and consistent with the scheme and purpose of the Schedule: for an
old order right to endure, it had to be converted. Once that had occurred, the new
order right could be transferred, but only with the approval of the Minister.20 But, on
the view I take, the transferability of either an unused old order right or a new order
prospecting right are not relevant to the issue to be decided in this case.

[34] The holder of an unused old order right had a choice: he or she could do
nothing, in which event the unused old order right would lapse a year after the
coming into effect of the MPRDA, or he or she could apply for its conversion into a
new order right, in terms of item 8.

[35] In an application in terms of item 8, the holder was given a preferential place
in the queue – an ‘exclusive right to apply for a prospecting right or mining right’
during the period of one year commencing on 1 May 2004.21 Once an application
had been made within the window period, the unused old order right remained valid
until the application was either granted or refused.22 If the application was granted,
the unused old order right was replaced with a prospecting right or mining right. If the
application was refused, the holder lost the unused old order right.

20 Section 11.
21 Item 8(2).
22 Item 8(3).

[36] It is clear from this analysis that the right that Mr Gouws enjoyed, when he
applied for the conversion of his unused old order right into a prospecting right, was
a right to a decision on his application. This was conceded by Magnificent Mile which
described the right in the heads of argument as being ‘in the nature of a right to
lawful, reasonable and procedurally fair administrative action’. When Mr Gouws died,
a decision had not been taken and, the defective decisions having now been set
aside, one has still not been taken. In my view, the executor of Mr Gouws’ estate
was entitled to a decision. Her right arises not from any transfer of a right but by the
fact that, on her appointment as executor, the right to deal with the ‘aggregate of
assets and liabilities’ that is the estate of the deceased vested in her.23 If the
application is granted, it may then be necessary for the executor to seek the
approval of the Minister for the transfer of the prospecting right to Mr Gouws’ heirs,
but that question need not be resolved now.

[37] I am aware that the estate of Mr Gouws was finalised some time ago and, I
assume, the executor has been discharged. The estate was finalised, however,
before there was clarity on the outstanding application. The Master can be
approached to appoint an executor again to see through to finality the administration
of this last aspect of Mr Gouws’ estate.24

[38] The effect of my finding that the estate of Mr Gouws is entitled to a decision is
that, in terms of item 8(3), the unused old order right remains valid until a decision is
taken. That, in turn, means that the relief granted in terms of paragraph 4 of the
amended notice of motion ought not to have been granted: an order refusing Mr
Gouws’ application for a prospecting right was not competent when, in fact, no
decision had been taken.

Magnificent Mile’s application for a mining right

[39] The fact that the application for the conversion of the unused old order right is
still pending also has an effect on Magnificent Mile’s review of the refusal of its
application for a mining right in respect of Driefontein. Its application was refused on

23 D Meyerowitz The Law and Practice of Administration of Estates and their Taxation (2010 ed) para
12.20.
24 Meyerowitz note 23 para 11.10.

the basis that ‘[t]he right applied for comprises of land in respect of which rights for
the same minerals have been granted in respect of an application received prior to
your application in this regard’. I take this to mean that the Department took the view
that the defective prospecting right which it tried to rectify in stages trumped
Magnificent Mile’s application.

[40] Now that the position has been clarified, it is clear that the relief sought in
paragraphs 7 (the setting aside of the refusal of the mining right) and 8.1 (the
granting of a mining right) of the amended notice of motion cannot be justified. The
fact that the application for the conversion of Mr Gouws’ unused old order right into a
prospecting right is still pending renders it impermissible for a mining right to be
granted to Magnificent Mile. Section 22(2)(c) of the MPRDA precludes a regional
manager from accepting an application for a mining right if a ‘prior application for a
prospecting right . . . has been accepted for the same mineral and land and which
remains to be granted or refused’. As a result, the mandamus directing the Minister
to consider Magnificent Mile’s application for an environmental authorisation in
respect of its proposed mining operations must also be set aside.

The counter-application

[41] The appellant brought a counter-application, claiming it to be a collateral
challenge. It claimed to bring the counter-application in terms of the principle of
legality, rather than the PAJA, and asserted that because it was a collateral
challenge, the delay rule did not apply.

[42] The court below dismissed the counter-application because it considered it to
be, in substance, a review which ought to have been brought in terms of the PAJA,
and particularly, within the 180 day period provided for in s 7(1).

[43] The relief sought in the counter-application consisted of three prayers for
declaratory orders. The first was for an order declaring that Magnificent Mile ‘never
had the right or competency’ to apply for any right in terms of the MPRDA in respect
of Driefontein. The second was for an order declaring that its application for a
prospecting right was ‘void ab initio’. The third was for an order declaring that Mr

Gouws’ application for a prospecting right in respect of Driefontein was valid and had
either been granted or was pending.

[44] I find myself in disagreement with both the court below and the appellant as to
the nature and basis of the relief claimed in the counter-application. First, it is not a
collateral challenge. No public authority seeks to coerce the appellant into
compliance with an unlawful administrative act.25 Secondly, if it was intended as a
review, it had to be brought in terms of the PAJA because it was reviewing
administrative action as defined in s 1,26 and if it was out of time, condonation had to
be applied for.27 Thirdly, however, I do not agree that it was a review. Rather, it
seems to me, paragraphs 1 and 3 of the counter-application flow logically from the
grant of paragraphs 2, 3, 5 and 6 of the amended notice of motion and the refusal of
paragraphs 4, 7 and 8.1. To the extent that paragraph 2 of the counter-application
seeks a declaratory concerning the prospecting right granted to Magnificent Mile, it is
academic in the sense that that prospecting right has lapsed and has no bearing on
the matter. The relief in the counter-application was probably sought unnecessarily,
since the correct disposition of the relief sought by Magnificent Mile, together with
the reasons for such disposition, would sufficiently determine the rights of the
parties. But by no stretch of the imagination could Magnificent Mile be prejudiced by
a ‘late’ counter-application which merely gave effect to the grounds on which Ms
Gouws and her executor opposed the relief sought by Magnificent Mile itself.

[45] On the basis of the above, I am of the view that the court below erred in
dismissing the counter-application with costs. I would grant prayers 1 and 3 (in
amended form) along with costs.

The order

[46] I make the following order.
1 The appeal is upheld with costs, including the costs of two counsel.

25 Oudekraal Estates (Pty) Ltd v City of Cape Town & others 2004 (6) SA 222 (SCA); [2004] ZASCA
48 para 32; V & A Waterfront Properties (Pty) Ltd & another v Helicopter and Marine Services (Pty)
Ltd & others 2006 (1) SA 252 (SCA); [2005] ZASCA 87 para 10; Hoexter (note 19) at 549.
26 Minister of Home Affairs & another v Public Protector [2018] ZASCA 15 para 28.
27 Asla Construction (Pty) Ltd v Buffalo City Metropolitan Municipality 2017 (6) SA 360 (SCA); [2017]
ZASCA 23 para 13.

2 The order of the court below and paragraph 2 of the costs order dated 28 June
2017 are set aside and replaced with the following order.
(a) With the exception of the prayers set out in paragraphs 1, 2, 3, 5 and 6 of
the applicant’s amended notice of motion, the application is dismissed.
(b) The counter-application is granted and it is declared that:
(i) the applicant did not have the right or competency to apply for any
right in terms of the Mineral and Petroleum Resources Development
Act 28 of 2002 in respect of Portion 9 of the farm Driefontein 338,
Registration Division J.S., Mpumalanga, district of Middelburg; and
(ii) The application for a prospecting right lodged by the late Mr
Nicolaas Petrus Gouws in respect of the farm Driefontein, district of
Middelburg is still pending a decision by the relevant authority.
(c) The applicant is directed to pay the fifth respondent’s costs in respect of
both the application and the counter-application, such costs to include the
costs of two counsel.

______________________
C Plasket
Acting Judge of Appeal

APPEARANCES

For appellant:

P F Louw SC and A N Kruger

Instructed by:

Johan Coetzee Incorporated, Emalahleni
Phatshoane Henney Attorneys, Bloemfontein

For first respondent
M A Wesley (heads of argument drafted by L J
Bekker)

Instructed by:

Malan Scholes Attorneys, Johannesburg

Claude Reid Attorneys, Bloemfontein