THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case number: 71/09
In the matter between:

BENGWENYAMA MINERALS (PTY) LTD
FIRST APPELLANT
BENGWENYAMA-YE-MASWAZI
TRIBAL COUNCIL

SECOND APPELLANT
THE TRUSTEES FOR THE TIME
BEING OF THE BENGWENYAMA-
YE-MASWAZI TRUST

THIRD TO FOURTEENTH

APPELLANTS
and

GENORAH RESOURCES (PTY) LTD
(formerly TROPICAL PARADISE 427
(PTY) LTD)

FIRST RESPONDENT
THE MINISTER OF MINERALS AND
ENERGY

SECOND RESPONDENT
THE DIRECTOR GENERAL OF THE
DEPARTMENT OF MINERALS AND
ENERGY

THIRD RESPONDENT
THE REGIONAL MANAGER,
LIMPOPO REGION, POLOKWANE
OF THE DEPARTMENT OF MINERALS
AND ENERGY

FOURTH RESPONDENT
THE DEPUTY DIRECTOR-GENERAL
OF THE DEPARTMENT OF MINERALS
AND ENERGY

FIFTH RESPONDENT
BENGWENYAMA-YE-MASWAZI
ROYAL COUNCIL

INTERVENING PARTY

Neutral citation:
Bengwenyama Minerals v Genorah Resources (71/09)
[2010] ZASCA 50 (31 March 2010)

CORAM:

MPATI P, HEHER, MALAN, SHONGWE and TSHIQI JJA
HEARD:

16 FEBRUARY 2010
DELIVERED: …
31 MARCH 2010
SUMMARY:
Review – Application for a prospecting right submitted by
company on its own behalf in terms of s 16 of Act 28 of
2002 not constituting community application envisaged in
s 104. Where condonation not obtained for late appeal in

terms of s 96, party seeking review of decision of
functionary taken to have abandoned internal remedy.
Review thus subject to 180-day period provided in s 7(1)
of Promotion of Administrative Justice Act 3 of 2000.

ORDER

On appeal from:
North Gauteng High Court, Pretoria,
(Hartzenberg J sitting as court of first instance).
The appeal is dismissed and the first appellant is ordered to pay the
respondents' costs.

JUDGMENT

MPATI P (Malan, Shongwe and Tshiqi JJA concurring):

[1] This appeal is against the refusal by the North Gauteng High Court
(Hartzenberg J) to review and set aside the grant of a prospecting right to the
first respondent in terms of s 17 of the Mineral and Petroleum Resources
Development Act ('the Act').1 The Act makes provision for the State, as the
custodian of the nation's mineral and petroleum resources, to grant, issue or
refuse, inter alia, prospecting rights, mining rights and mining permits to
persons or entities who apply for them (s 2(a)). Section 9 empowers a
Regional Manager,2 who receives applications for these rights, to deal with
them in order of receipt if received on different dates (s 9(1)(b)). For
convenience I shall refer to the first respondent as 'Genorah', the second
respondent as 'the Minister', the third respondent as 'the Director-General', the
fourth respondent as 'the Regional Manager’ and the fifth respondent as 'the
Deputy Director-General'.

1 28 of 2002.
2 A regional manager is defined in the Act as 'the officer designated by the Director-General
[of the Department of Mineral and Energy] in terms of section 8 as a regional manager for a
specified area'. Section 8 provides that the Director-General 'must . . . designate an officer in
the service of the Department as regional manager for each region contemplated in s 7 who
must perform the functions delegated or assigned to him or her in terms of this Act or any
other law'.

[2] On 8 February 2006 Genorah lodged an application for a prospecting
right in respect of five farms, two of which are known as Eerstegeluk 322 KT
('Eerstegeluk') and Nooitverwacht 324 KT ('Nooitverwacht'), situated in the
magisterial District of Sekhukhuneland in Limpopo Province. By letter dated
20 February 2006 the Regional Manager accepted Genorah's application,
acknowledging that it complied with the provisions of s 16(2) of the Act,3 and
calling upon Genorah to submit copies of its environmental management plan4
not later than 21 April 2006. Genorah submitted its environmental
management plan ('EMP') on 21 April 2006.

[3] On 14 July 2006 the first appellant also lodged its application for a
prospecting right which related only to the farms Eerstegeluk and
Nooitverwacht. The Regional Manager notified his acceptance of the
application by letter dated 24 July 2006, addressed to the first appellant. The
first appellant was also called upon to submit its EMP by not later than 26
September 2006. On 28 August 2006 the Deputy Director-General, by virtue
of the authority delegated to him by the Minister, approved Genorah's
application and granted the prospecting right in respect of all the farms,
including Eerstegeluk and Nooitverwacht. On 8 September 2006 the Regional
Manager notified Genorah, in writing, of the grant and also informed it that the
prospecting right had to be notarially executed within 60 days from the date of

3 Section 16 reads:
'(1) Any person who wishes to apply to the Minister for a prospecting right must lodge the
application-

(a)
at the office of the Regional Manager in whose region the land is situated;

(b)
in the prescribed manner; and
(c)
together with the prescribed non-refundable application fee.
(2) The Regional Manager must accept an application for a prospecting right if-
(a)
the requirements contemplated in subsection (1) are met; and
(b)
no other person holds a prospecting right, mining right, mining permit or retention
permit for the same mineral and land.
(3) . . ..
(4) If the Regional Manager accepts the application, the Regional Manager must, within 14
days from the date of acceptance, notify the applicant in writing-
(a)
to submit an environmental management plan; and
(b)
to notify in writing and consult with the land owner or lawful occupier and any other
affected party and submit the result of the consultation within 30 days from the date of the
notice.
(5) Upon receipt of the information referred to in subsection (4)(a) and (b), the Regional
Manager must forward the application to the Minister for consideration.
(6) . . ..'
4 An environmental management plan is a plan to manage and rehabilitate the environmental
impact as a result of prospecting, etc.

the written notification. The notarial execution took place on 12 September
2006. It is recorded under the definition section of the document evidencing
the execution of the prospecting right ('the prospecting agreement'), that
'"Effective date" means 12 September in the year 2006 (being the date on
which the Environmental Management Plan is approved in terms of s 39(4) of
the Act)'.5

[4] By letter dated 6 December 2006 the Regional Manager wrote to the
first appellant notifying it that its application had been refused. The reasons for
the refusal were recorded as follows:
'Prospecting right has been granted to other entities that applied before your
application for the same minerals on the same properties.'
However, the first appellant's legal representatives addressed a letter to the
Minister dated 13 February 2007, requesting her to suspend or cancel
Genorah's prospecting right in terms of s 47of the Act.6  Paragraph 12 of the
letter reads:
'. . .
12.2
Our client in the circumstances calls upon the Honourable Minister either to
cancel or suspend Genorah's prospecting right in respect of Eerstegeluk en
Nooitverwacht since –
12.2.1 Genorah . . . submitted inaccurate, incorrect and misleading
information in support of its application when purporting to comply with
s 16(4) of the Act;
12.2.2 The provisions of s 16(4) of the Act were not, in fact, complied with;
and
12.2.3 The provisions of s 17(1)(a) of the Act were not, in fact, complied
with.'7

5 Section 17(5) of the Act reads:
'(5) The granting of a prospecting right  . . . becomes effective on the date on which the
environmental management programme is approved in terms of section 39.'
6 Section 47(1) provides that the Minister may cancel or suspend a prospecting right if the
holder
(a) is conducting any prospecting operation in contravention of the Act;
(b) breaches any material term or conditions of such right;
(c) is contravening the approved environmental management programme, or
(d) has submitted inaccurate, incorrect of misleading information in connection with any
matter required to be submitted under the Act.
7 See fn 3 for the provisions of s 16(4). Section 17(1)(a) provides that the Minister 'must grant
a prospecting right if the applicant has access to financial resources and has the technical

[5] On the same date the first appellant's legal representatives also
addressed a letter to the Director-General, purportedly appealing on behalf of
the first appellant, in terms of s 96 of the Act,8 against the decision of the
Deputy Director-General to grant the prospecting right to Genorah. The main
grounds of appeal were alleged non-compliance with the provisions of
ss 16(4) and 17(1)(a). The alleged non-compliance with the provisions of
s 16(4) was said to be Genorah's failure to consult with the owners or
occupants of the farms Eerstegeluk and Nooitverwacht, viz the Bengwenyama
community, as represented by the second appellant. As to the alleged non-
compliance with the provisions of s 17(1)(a), it was averred that the grant of
the prospecting right to Genorah was subject, inter alia, to a requirement that
Genorah furnish a guarantee for the rehabilitation or management of negative
environmental impacts on the land concerned prior to the approval of its EMP
and the grant of the prospecting right. It was alleged that the required
guarantee was only submitted on 'approximately' 15 September 2006, while
the prospecting right was granted on 28 August 2006. It was thus contended
that this was in conflict with the provisions of s 17(1)(a), which require the
Minister to be satisfied that the applicant has access to financial resources
prior to the approval of any prospecting right.

[6] On 9 March 2007 the first appellant's legal representatives addressed
further letters to the Minister and the Director-General, supplementing the

ability to conduct the proposed prospecting operation optimally in accordance with the
prospecting work programme'. There are other requirements under s 17(1) for the granting of
the right, which are not strictly relevant for present purposes.
8 The section provides:
'96
Internal appeal process and access to courts
(1) Any person whose rights or legitimate expectations have been materially and adversely
affected or who is aggrieved by any administrative decision in terms of this Act may appeal in
the prescribed manner to-
(a)
the Director-General, if it is an administrative decision by a Regional Manager or an
officer; or
(b)
the Minister, if it is an administrative decision by the Director-General or the
designated agency.
(2) An appeal in terms of subsection (1) does not suspend the administrative decision, unless
it is suspended by the Director-General or the Minister, as the case may be.
(3) No person may apply to the court for the review of an administrative decision
contemplated in subsection (1) until that person has exhausted his or her remedies in terms
of that subsection.
(4) Sections 6, 7(1) and 8 of the Promotion of Administrative Justice Act, 2000 (Act 3 of
2000), apply to any court proceedings contemplated in this section.'

grounds upon which the first appellant relied in the letters dated 13 February
2007 for its request to have the decision of Deputy Director-General to grant
the prospecting right to Genorah cancelled or suspended. The additional
ground was a claim, proffered for the first time, that the first appellant's
application for a prospecting right in respect of the farms Eerstegeluk and
Nooitverwacht was, in fact, one in terms of s 104 of the Act,9 that is, it was a
community application lodged by the Bengwenyama-ye-Maswazi community
('Bengwenyama
community').
It
was
accordingly
alleged
that
the
Bengwenyama community had a preferent claim and that the community
would, but for the failure by the Department of Minerals and Energy
('Department') to comply with the provisions of s 104, 'in all likelihood have
been granted the prospecting right that in fact went to Genorah'. It was further
alleged that the Bengwenyama community 'had an interest in the award of the
permit and was entitled to make representations to, and be heard by, [the
Department] . . . under section 3(2)(b) of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA) prior to the grant of that permit'.

[7] It appears that a director of the first appellant, Mr Michael Craig Nahon,
subsequently had a telephone conversation with a Mr Alberts, an official in the
Department, which was followed by a letter dated 14 June 2007, addressed to
Mr Nahon. The first two paragraphs of the letter read as follows:
'The recent telephone conversations between your Mr Nahon and Mr Alberts of this
Department have reference.
You are hereby advised that since this matter is now sub-judice, the Minister will not
be in a position to decide on your appeal in this matter. The fact that a right has
already been granted to Genorah also poses legal challenge in deciding on the

9 The relevant parts of the section reads:
'(1) Any community who wishes to obtain the 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.
(2) The Minister must grant such preferent right if the community can prove that-
(a)
the right shall be used to contribute towards the development and the social
upliftment of the community concerned;
(b)
the community submits a development plan, indicating the manner in which such right
is going to be exercised;
(c)
the envisaged benefits of the prospecting or mining project will accrue to the
community in question; and
(d)
the community has access to technical and financial resources to exercise such right.'

appeal, and it is therefore the view of this Department that this matter should be
decided by means of a review.
. . . .'
In the appellants' founding affidavit, deposed to by Mr Zet Timothy Maphanga,
a director of the first appellant, it is averred that the letter indicates 'that no
relief against the Genorah prospecting right is going to be granted by the
second to fourth respondents, whether in terms of sections 47 or 96 of the
Act, or at all.'

[8] The appellants accordingly instituted motion proceedings, in terms of
rule 53 of the Uniform Rules of Court, seeking an order:
'1.
Reviewing and setting aside the decision to award and the award of a
prospecting right to the first respondent . . . in respect of, inter alia, the farms
Nooitverwacht 324 KT and Eerstegeluk 322 KT . . . .
2.
Directing the second respondent, alternatively the third respondent, further
alternatively the fifth respondent, to award a prospecting right to the first
applicant in respect of, inter alia, the farms Nooitverwacht 324 KT and
Eerstegeluk 322 KT . . . on such terms and conditions as may reasonably be
imposed upon the first applicant in terms of the provisions of section 17 of the
Act, as read with section 104 thereof.
3.
Alternatively to prayer 2 above, directing the second respondent, alternatively
the third respondent, further alternatively the fifth respondent, to adjudicate
the application for a prospecting right made by the first applicant on 14 July
2006, as an application in terms of section 104 of the Act.'10
The court a quo dismissed the application with costs. This appeal is with its
leave.

[9] The issues raised and argued in this court were all comprehensively
dealt with by the court a quo. In listing them, I do so not necessarily in the
sequence in which they were argued before us. The first issue was whether
the grant of the prospecting right to Genorah was ultra vires. Section 103(1) of
the Act empowers the Minister to delegate in writing 'any power conferred on
him or her by or under this Act, . . . and may assign any duty so imposed upon

10 In the appellants' Notice of Appeal paragraph 2 of the order sought in the notice of motion is
amended in that the word 'preferent' is inserted before the words 'prospecting right'.

him or her to the Director-General, the Regional Manager or any officer'. It is
common cause that on 12 May 2004 the Minister delegated the authority she
holds, under s 17(1), to grant or refuse a prospecting right, to the Deputy
Director-General. No further delegation was authorised without the Minister's
consent.11 When he granted the prospecting right to Genorah on 28 August
2006 the Deputy Director-General granted a Power of Attorney in terms of
which the Regional Manager was given authority 'to sign the prospecting right
contemplated in section 17(1) of the . . . Act, in favour of Genorah . . .
according to the approval signed by me today'.

[10] As I have mentioned above, the prospecting right granted to Genorah
by the Deputy Director-General was executed on 12 September 2006. The
prospecting agreement was signed by the Regional Manager pursuant to the
Power of Attorney granted by the Deputy Director-General. It contains the
terms upon which the right was granted, such as, inter alia, the
commencement date of the right, its duration, the properties in respect of
which the right was to apply and payment of prospecting fees and royalties.
Because the Power of Attorney did not stipulate the terms upon which the
right was granted, it was submitted, on behalf of the appellants, that the terms
and conditions contained in the prospecting agreement must have been
decided, at his discretion, by the Regional Manager. That being so, the date
upon which the prospecting right was actually granted was the date of
execution of the right (12 September 2006). It follows, so the argument
continued, that the prospecting right was granted by the Regional Manager,
who had no authority to do so. The grant of the right was thus a nullity.

[11] The second issue relates to an allegation, in the founding and replying
papers, that the Department failed to give adequate notice of Genorah’s
application for a prospecting right as required by s 10(1) of the Act,12 read with

11 Section 103(3) provides that the Minister 'may, in delegating any power or assigning any
duty under subsection (1), authorise the further delegation of such power and the further
assignment of such duty by a delegatee or assignee'.
12 The subsection reads:
'Within 14 days after accepting an application lodged in terms of section 16, 22 or 27, the
Regional Manager must in the prescribed manner-

regulation 3 of the Regulations13 promulgated in terms of s 107(1) of the Act.14
It was alleged, on behalf of the appellants, that there was no proof of
compliance with the Department's chosen manner of giving notice of an
application to interested and affected persons, which was by sending the
notice per facsimile to the Sekhukhune Magistrate's Office for display on a
notice board there. A related issue was an alleged failure by the Department
to give a hearing to the appellants, as an alleged community applicant and
occupiers of the two farms in issue. Counsel for the appellants argued that the
hearing referred to was in addition to the consultation an applicant for a
prospecting right is required to conduct with the land owner or lawful occupier
of the land concerned, in terms of s 16(4)(b) of the Act.15 The hearing, so it
was contended, is well recognised at common law and under s 3(2)(b)(ii) of
PAJA, in that procedurally fair administrative action requires, at a minimum,
that affected parties be heard.

[12] The third issue concerns an alleged failure by Genorah to consult with
the community, as owners or occupiers of the farms Eerstegeluk and
Nooitverwacht, in accordance with the provisions of s 16(4). Whilst Genorah
submitted to the Deputy Director-General a document indicating that
consultation with the Bengwenyama community of Nooitverwacht, through its
leader, Kgoshi Nkosi, took place, it was contended on behalf of the appellants,
that such consultation had neither been appropriate nor meaningful. As to the
farm Eerstegeluk, it was submitted that although the community with which
Genorah consulted had informed the latter that the Bengwenyama community
occupied Eerstegeluk, Genorah failed to consult the latter community.

(a)
make known that an application for a prospecting right, mining right or mining permit
has been received in respect of the land in question; and
(b)
call upon interested and affected persons to submit their comments regarding the
application within 30 days from the date of the notice.'
13 Regulation 3(3) is in the following terms:
'In addition to the notice referred to in sub-regulation (1), the Regional Manager or designated
agency, as the case may be, must also make known the application by at least one of the
following methods-
(a)
Publication in the applicable Provincial Gazette;
(b)
Notice in the Magistrate's Court in the Magisterial District applicable to the land in
question; or
(c)
Advertisement in a local or national newspaper circulating where the land or offshore
area to which the application relates, is situated.'
14 See Government Gazette 26275, dated 23 April 2004.
15 Above n 3.

[13] The fourth issue was that the Department allegedly failed to approve
Genorah's EMP within 120 days from its lodgement as was required in terms
of s 39(4) of the Act. As has been mentioned above, Genorah lodged its EMP
on 21 April 2006 and it was approved either on the day that the prospecting
right was notarially executed, or on 13 November 2006.16 It was accordingly
contended on behalf of the appellants, that the EMP having been approved
more than 180 days from its lodgement, Genorah's prospecting right could not
lawfully be brought into effect.

[14] Apart from the fact that I find it unnecessary to express any opinion on
the correctness or otherwise of the appellants' submissions on this issue, I fail
to see the basis upon which the alleged late approval of the EMP could affect
the validity of the grant, or coming into effect, of the prospecting right, whilst
the decision to approve the EMP has not been set aside.17 The same applies
to a related issue that financial provision for the rehabilitation or management
of negative environmental impacts had allegedly not been provided before the
approval of the EMP, as contemplated in s 41(1) of the Act.18 So also to a
further submission that the approval of the EMP was ultra vires, because the
person who approved it was an acting Regional Manager who allegedly had
no power to approve it.

[15] The fifth issue relates to the alleged failure by the Department to
respect, protect and promote the Bengwenyama community's property rights
entrenched in s 25 of the Constitution, and the alleged failure to give effect to
s 104 of the Act, which, according to counsel for the appellants, gives
legislative effect to those rights. I think the real question here is whether or not
the first appellant's application for a prospecting right was a community
application. The last issue I wish to mention was whether the appellants had

16 It appears from an official stamp on the EMP document that the EMP was approved by the
Regional Manager, Limpopo Province, on 13 November 2006.
17 Compare Oudekraal Estates (Pty) Ltd v City of Cape Town & others 2004 (6) SA 222 (SCA)
para 31.
18 The sub-section reads:
'An applicant for a prospecting right, mining right or mining permit must, before the Minister
approves the environmental management plan or environmental management programme in
terms of section 39(4), make the prescribed financial provision for the rehabilitation or
management of negative environmental impacts.'

brought themselves within the provisions of s 7 of PAJA, in particular, whether
their review application was launched 'without unreasonable delay and not
later than 180 days after the first appellant became aware of the grant of the
prospecting right to the first respondent (s 7(1)(b)), and whether any internal
remedies had been concluded prior to the institution of the review proceedings
(s 7(1)(b) and (2)).

[16] The court a quo found against the appellants on all these issues,
except the last. In the view I take in this matter, it is unnecessary to consider
all of them. It would be convenient, however, to deal briefly with the question
whether the first appellant's application constituted a community application.

[17] The prescribed form used by the first appellant when applying for a
prospecting right was one used in an application 'in terms of section 16 of the
[Act]'. The first appellant is reflected on the form as the only applicant. There
is no mention whatsoever of s 104, or its provisions, or the Bengwenyama
community, in the first application, nor in the subsequent application submitted
on 14 July 2006.19 Relying on Shaikh v Standard Bank of South Africa Ltd &
another20 counsel for the appellants argued that nothing turns on the question
whether an application expressly referred to the provision under which it is
made, and that the pertinent question is whether the application was, as a
matter of fact, an application made in terms of, and in compliance with, s 104.
Counsel was unable, however, to point to any portion of the contents of the
application that should have directed the recipient's attention to the provisions
of s 104.

[18] Moreover, on 24 July 2006 the Department notified the first appellant,
in writing, of the acceptance of its application. The subject matter of the latter
is recorded thus:

19 The first appellant submitted its first application on or about 10 May 2006. That application
was received by the Department on 14 July 2006, but was rejected. The first appellant was
advised of the rejection by letter dated 20 July 2006.
20 2008 (2) SA 622 (SCA) paras 16-19.

'NOTICE OF ACCEPTANCE OF AN APPLICATION FOR A PROSPECTING RIGHT
IN TERMS OF SECTION 16 OF [THE ACT]: EERSTEGELUK 322 KT AND
NOOITVERWACHT 324 KT.'
The second paragraph of the letter reads:
'I wish to inform you that your application complies with the provisions of Section
16(2) of the Act, as I have accepted it for further processing . . . '
And further:
'Your application will consequently be processed in accordance with the provisions of
Section 9 of the Act.'21
No objection was raised to the clear reference, in the letter, to the application
being one in terms of s 16.22 In addition, mention of the application being a
community application was made for the first time in the second letter (of 9
March 2006) addressed to the second and third respondents respectively,
asking for the first respondent's prospecting right to be cancelled or
suspended. This, in my view, clearly indicates that the first appellant's
application was, until then, never considered by the first appellant itself as a
community application. Indeed, counsel for the appellants contended that the
application underwent 'a metamorphosis'. However, that 'metamorphosis'
never came to the attention of the Deputy Director-General before the date
upon which he granted the prospecting right to Genorah. The appellants rely
on a letter dated 10 May 2006 addressed to 'the Director' of the Department
and assert that it is clear from its contents that the first appellant's application
fell within the ambit of s 104 of the Act. The letter covered the first appellant's
first application which was rejected. In any event, the letter merely spelled out
the relationship between the first appellant and the Bengwenyama community
and the fact that the community owned the surface rights over the land in
issue. Nowhere does it state that the application was in fact a community
application. Another letter dated 6 October 2006 purporting to set out the
shareholding in the first appellant was written after the prospecting right had
been granted to Genorah. It follows that the court a quo correctly found
against the appellants on this issue.

21 Section 9 is referred to in para 1 above.
22 Above n 3.

[19] I proceed to consider the question whether the review application was
out of time, and whether internal remedies, if any, were exhausted. In the
appellants' founding affidavit the deponent states that 'according to his
recollection' the Department's letter23 by which the first appellant was advised
of the refusal of its application 'was only received during or after December
2006'. The case was, however, conducted on the basis that the first appellant
received the letter during December 2006. According to the provisions of
PAJA, where any internal remedies exist, they must, except in exceptional
circumstances, first be exhausted before review proceedings may be
instituted.24 It is not in dispute that by addressing the letters of 13 February
2007 to the Minister and Director-General respectively, the first appellant was
seeking to pursue an internal appeal. The question is whether any appeal
procedure was available to it under the Act.

[20] I agree with the court a quo that s 47 of the Act 25 does not provide for
an internal process which is 'available to affected third parties to have
administrative decisions reviewed'. I agree too that the section is an
empowering provision in terms of which the Minister can take action if the
holder of a prospecting right exercises his or her right in contravention of the
provisions of the Act. But the court a quo also held that because the Deputy
Director-General, when granting Genorah's application for a prospecting right,
exercised a power delegated to him by the Minister, his decision was the
decision of the Minister. Consequently, so the court held, s 9626 'does not
provide for any internal procedure to remedy decisions and conduct of the
Minister'. The court thus concluded that the only remedy available to the

23 Although the deponent states that the letter 'is undated' it was signed by the respondent on
6 December 2006.
24 Section 7(2) of PAJA provides as follows:
'7(2) (a) Subject to paragraph (c), no court or tribunal shall review an administrative action in
terms of this Act unless any internal remedy provided for in any other law has first been
exhausted.
(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal
remedy referred to in paragraph (a) 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 this Act.
(c) 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.'
25 Above N 6.
26 Above n 8.

appellants was an application for a review of the decision, but held that the
application was 'well out of time . . . [that is, it was brought well after the 180
days provided for in s 7(1)(b) of PAJA], assuming that [the appellants] only
became aware of the decision on 31 December 2006', and that the review
application fell to be dismissed on that ground alone.

[21] The court a quo assumed, however, for purposes of considering
whether the appeal to the Director-General was out of time, that s 96 provided
for an internal remedy and that the internal remedy was available to the
'appellants'. Bearing in mind that '[o]ur system of administrative justice seeks
to encourage internal remedies to resolve disputes that arise out of
administrative action',27 that assumption was correctly made. In the present
matter the Minister delegated her powers to grant or refuse an application for
a prospecting right to the Deputy Director-General. A delegatee or
subdelegatee who acts in his or her own right is responsible for his or her
exercise of the power.28 In my view, a full delegation of powers was made to
the Deputy Director-General. In deciding whether or not to grant the
prospecting right to Genorah he exercised his own discretion. As delegatee he
acted in his own right and did not represent the delegator. This is therefore not
a case of an appeal being lodged against the Minister's own decision or a
question of the delegator sitting on his own judgment on appeal.29

[22] Regulation 74(1) provides that any person who appeals against an
administrative decision in terms of s 96 must do so within 30 days after he or
she has become aware, or should reasonably have become aware, of the
administrative decision concerned. The first appellant's letter of appeal, in
terms of s 96, dated 13 February 2007, was lodged more than 30 days from,
the latest, 31 December 2006. But the court a quo held that the 30-day period
'is not an absolute maximum period within which an appeal has to be lodged',
and that non-compliance 'will not necessarily lead thereto that such an appeal

27 Walele v City of Cape Town & others 2008 (6) SA 129 (CC) para 142.
28 See Lawrence Baxter Administrative Law (1984) on p 442.
29 See Thompson, Trading as Maharaj & Sons v Chief Constable, Durban 1965 (2) SA 296
(D & CLD) at 302E-H; Bartlett v Munisipaliteit van Kimberley 1966 (2) SA 95 (G.W.P.A) at
101D-F.

is a nullity'. The court accordingly held that the appeal in this case was not
fatally defective even though it was not brought within the 30-day period.

[23] It is true that non-compliance with the 30-day period provided for in the
Regulations will not necessarily lead to an appeal being a nullity, but that will
be so only if the non-compliance has been condoned.30 Although in its letter of
appeal to the Director-General the first appellant sought condonation for the
late lodging of their appeal, there is no evidence on the papers that
condonation was granted. In fact, the evidence points to the opposite. The
letter written by Mr Alberts dated 14 June 200731 and addressed to Mr Nahon,
advised the addressee that the matter – the subject of the appeal – was sub
judice; that therefore the Minister would not decide the appeal and that the
view of the Department (including the Director-General) was that the matter
be decided by means of a review. It has not been explained on the papers
what was meant by the matter being sub judice, but clearly no proceedings
concerning the subject matter of the appeal had, by that date, been instituted
out of any court. It seems to me that the writer of the letter, and any other
official of the Department involved, were more concerned about the 'legal
challenge' posed by the fact that the prospecting right had already been
granted to Genorah and the legal consequences that would follow were the
grant of the right to be reversed. In my view, the Director-General, as the
official to whom the appeal was addressed, was obliged to consider the
condonation application and, if granted, the appeal. The letter written by Mr
Alberts can by no means be interpreted to mean that the first appellant's
condonation application was granted and the appeal dismissed, or that
condonation was refused. These issues were simply not dealt with.

[24] The result was that no condonation was granted to the first appellant
and the attempt to appeal under s 96 was of no effect. Because the first
appellant did not pursue its condonation request, its rights under s 7 of PAJA
must be assessed on the basis that it had abandoned the internal remedy of

30 Regulation 74(4) reads:
'The Director-General or the Minister, as the case may be, may in his or her discretion and on
such terms and conditions as he or she may decide, condone the late noting of an appeal.'
31 The relevant part is quoted in para 7 above.

appeal that it had initiated. As far as it was concerned no remedy any longer
existed which it was obliged to exhaust. This raises another question, which is
whether the first appellant, having abandoned its internal remedy, could still
have the decision to grant Genorah's prospecting rights reviewed under
PAJA. I shall assume, without deciding, that it could, although the provisions
of s 96(3) appear to bar a review 'until that person has exhausted his or her
[internal] remedies'.32 Section 7(1)(b) therefore applied to it. Section 7(1)(c)
possessed no significance because there was no obligation in existence from
which it could be exempted.

[25] On the preceding analysis the period of 180 days laid down in s 7(1)
began to run, at the latest, when the first appellant became aware of the
decision to refuse its prospecting. The review proceedings were not instituted
before 22 August 2007 when the application was filed with the Registrar of the
High Court, ie more than 180 days it was informed of the refusal of the
prospecting application. The onus rested on the appellants to bring
themselves within the terms of s 7(1). It failed to do so.

[26] No formal application was made before the court a quo for the
extension of the 180-day period within which the review proceedings should
have been instituted.33 Counsel informed us, however, that an application was
moved from the bar before the court below. It appears that the application was
unsuccessful. We were urged from the bar (by counsel for the appellants) that
this court should extend the 180-day period since all the facts or information
necessary to explain the delay in instituting review proceedings timeously
were before us. As was said in Gqwetha v Transkei Development Corporation

32 See s 96(3) above n 8.
33 Section 9(1) and (2) of PAJA are in the following terms:
(1) The period of-
(a)
. . . ;
(b)
90 days or 180 days referred to in sections 5 and 7 may be extended for a fixed
period,
by agreement between the parties or, failing such agreement, by a court or tribunal on
application by the person or administrator concerned.
(2) The court or tribunal may grant an application in terms of subsection (1) where the
interests of justice so require.'

Ltd & others,34 whether there has been undue delay entails a factual enquiry
upon which a value judgment is called for in the light of all the relevant
circumstances, including an explanation that is offered for the delay.35 It was
argued, on behalf of the appellants, that their belief that they were entitled, in
terms of s 96 of the Act, to appeal the decision to grant the prospecting right
to the first respondent was reasonable. They pursued the appeal remedy
within a reasonable time and once they were informed that their appeal would
not be considered they launched the review proceedings expeditiously.

[27] Assuming that the appellants' explanation for the delay was reasonable
and that the decision to grant the prospecting right was invalid, it does not
follow that the decision will be set aside. This is because in appropriate
circumstances a court will decline, in the exercise of its discretion, to set aside
an invalid administrative act.36 In terms of s 9(2) of PAJA a court may grant an
application for the extension of the 180-day period 'where the interests of
justice so require'. In the present matter Genorah raised, in its answering
affidavit, the fact that the review application was out of time and that
condonation for the delay had to be sought. Except for stating, in the replying
affidavit, that they had at all times acted in good faith and as expeditiously as
possible, the appellants did not, as has been mentioned above, apply for an
extension of the 180-day period. They therefore failed to place any facts
before the court a quo to assist it properly to consider whether the interests of
justice require that the period be extended. Nor was any argument advanced
in this court in this regard.

[28] Finally, the court a quo considered that even if there was 'some or
other fatal defect' in the procedure leading up to the making of the challenged
decision, the present is one of those cases where a court, in its discretion,
ought to decline to set aside an invalid administrative act. The court set out its
reasons for that view as follows:

34 2006 (2) SA 603 (SCA).
35 Para 24. See too Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale
Vervoerkomitee, & 'n ander 1986 (2) SA 57 (A) at 86D-F.
36 Chairperson, Standing Tender Committee & others v JFE Sapela Electronics (Pty) Ltd &
others 2008 (2) SA 638 (SCA) para 28 and the cases there cited.

'49.1
The applicants' main and emotive argument was that it represents the
community and that the individual members of the community stand to benefit
from a grant of the rights to it. I am far from convinced that the position of
individual members will be much different whether the exploitation of the
minerals is done by Genorah as supported by Mr Mphalele or by the first
applicant as supported by Mr Maphanga and Mr Mhlungu. Individual
members are prejudiced by this litigation, in that the actual mining and
development are delayed.
49.2
The applicants rely on section 104 of the Act. The application of the first
applicant was an ordinary section 16 application until 9 March 2007 when
somebody alerted Mr Shapiro to the provisions of section 104. That was long
after the rights in question had already been granted to Genorah. This whole
application negates the rights of applicants for the rights whose applications
were submitted and accepted between the application of Genorah and that of
the first applicant.
49.3
Rights have been granted to Genorah over five farms and a large area. If the
grant in respect of the two farms or one of them is set aside it will no doubt
affect the manner of mining and may affect the viability of a project.
49.4
In my view there is a public interest element therein that there must be finality
in this particular case.'

[29] I can find no fault with this reasoning and no argument was advanced
as to why this court should interfere with the exercise of its discretion by the
court a quo. The appeal must accordingly fail. In view of this conclusion, it
becomes unnecessary to consider the remaining issues listed above.

[30] There remains the issue of costs. At the first hearing of this matter the
court a quo ordered that the intervening party be provisionally joined as a
party in the proceedings. The intervening party wished to counter the first
appellant's assertions, as supported by the second and third appellants, that
its application was in fact a community application. In its judgment the court a
quo held that in the light of its finding – without having had to resolve a
dispute as to the authority and standing of the intervening party – that the
application of the first appellant was not a community application 'the whole
question of intervention has become academic'. It made no costs order either

for, or against, the intervening party. Despite the finding that the intervention
had become academic, the intervening party took part in the appeal. Although
the submissions on behalf of the intervening party were by no means
unhelpful, I am not inclined to award any costs in its favour.

[31] Relying on the decisions of the Constitutional Court in Affordable
Medicines Trust v Minister of Health37 and Biowatch Trust v Registrar, Genetic
Resources & others38 counsel for the appellants reminded of the well-
established rule that unsuccessful litigants who have sought, in good faith, to
vindicate constitutional rights, should not have costs awarded against them.
The finding that the first appellant's application for a prospecting right was not
a community application is, in my view, of importance in considering the issue
of costs. I am unable to hold that the litigation was undertaken to assert
constitutional rights, at least as regards the first appellant. It was undertaken
to assert a commercial interest, but with the assistance of the second and
third appellants. I am not persuaded that the rule just referred to should be
applied to the benefit of the first appellant. Counsel for the respondents
sought no costs order against the second and third appellants.

[32] In the result the appeal is dismissed and the first appellant is ordered to
pay the respondents' costs.

_______________
L Mpati
Judge Of Appeal

37 2006 (3) SA 247 (CC).
38 2009 (6) SA 232 (CC).

HEHER JA:

[33] I agree that the appeal should fail.

[34] A community application for a preferent right to prospect or mine (s 104
of the Mineral and Petroleum Resources Development Act 28 of 2002)
requires that an application be lodged with the Minister. The specific
considerations set out in ss (2)(a) to (d) must be addressed in the application.
The Minister must expressly or by necessary implication be made aware that
the applicant relies on the terms of the section, whether or not another
application has been lodged for a prospecting or mining right in terms of secs
16 or 22 respectively. The first appellant’s application satisfied none of these
requirements. That is because it was conceived as a s 16 application.
Recourse to s 104 was clearly an afterthought, and too late to influence the
process.

[35] I agree with Mpati P that the appeal against the refusal to grant a
prospecting right to the first appellant was an appeal to the Minister against
the decision of a functionary and not one against a decision of the Minister
himself, for the reasons enunciated in the main judgment. All the grounds
relied on in the review (save, perhaps, the s 104 question) were matters that
could properly have been dealt with in an appeal under s 96(1). But s 96(3)
has made what is usually a matter for the court’s discretion a peremptory bar
to the bringing of review proceedings. (The constitutionality of the bar was not
challenged in the appeal before us.) The first appellant did not obtain
condonation in terms of regulation 74(4) for the late noting of his s 96(1)
appeal. Consequently he could not and did not pursue the appeal and,
thereby, exhaust his remedies in terms of that subsection. Review
proceedings in which he raised any ground which could have been answered
by such an appeal were thus closed to him.

[36] In any event, having failed to pursue a condonation application, the first
appellant’s appeal was writ in water. He must be taken to have abandoned it.
Any review instituted under the Promotion of Administrative Justice Act 3 of

2000 was subject to the time limit of 180 days in s 7(1), which fell to be
calculated from the date on which the first appellant was notified of the
rejection of its application for prospecting rights. That period expired before
the review proceedings were launched. The court did not extend the period
(under s 9(1)(b) or exempt the first appellant from its obligation to exhaust the
internal remedy (under s 7(1)(c)).39

[37] I concur in the order proposed by Mpati P.

________________

J A Heher

Judge of Appeal

39 I leave open the question of whether an exemption under s 7(1)(c) would also have
surmounted the bar created by s 96(3) of the Minerals Act.

Counsel for Appellants:

G J Marcus SC; I Goodman
Instructed by:

Routledge Modise Eversheds

c/o Jacobson & Levy Inc

PRETORIA
Correspondents:

Lovius Block

BLOEMFONTEIN

Counsel for 1st Respondent:
B E Leech
Instructed by:

Werksmans Inc

c/o Weavind & Weavind

PRETORIA
Correspondents:

Matsepes

BLOEMFONTEIN

Counsel for 2nd – 5th Respondent:
M P van der Merwe
Instructed by:

The State Attorney

PRETORIA
Correspondents:

The State Attorney

BLOEMFONTEIN

Counsel for Intervening Party:
M R Madlanga SC; F R Memani
Instructed by:

Makaula Zilwa Inc

c/o Ledwaba Mazwai Attorneys

PRETORIA
Correspondents:

Nonxuba Inc

BLOEMFONTEIN