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  • IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

    Case no.: 99593/15

    Set down on the unopposed roll: 18 April 2017

    In the matter between

    ESCARPMENT ENVIRONMENTAL PROTECTION GROUP FIRST APPLICANT

    BIRDLIFE SOUTH AFRICA SECOND APPLICANT

    and

    MINISTER OF MINERAL RESOURCES FIRST RESPONDENT

    DIRECTOR-GENERAL: DEPARTMENT OF

    MINERAL RESOURCES SECOND RESPONDENT

    WILLIAM PATRICK BOWER (PTY) LTD THIRD RESPONDENT

    APPLICANTS’ HEADS OF ARGUMENT

    INTRODUCTION

    1. The Applicants launched an application for judicial review in terms of section

    6(2)(g), read with section 6(3), of the Promotion of Administrative Justice Act,

    3 of 2000 (“PAJA”) in respect of the failure of the Minister of Mineral Resources

    (“the Minister”) to decide internal appeals lodged by each of the Applicants in

  • 2

    terms of section 96(1) of the Mineral and Petroleum Resources Development

    Act, 28 of 2002 (“the MPRDA”) read with regulation 74 of the applicable

    regulations 1 against the grant of a coal mining right by the Second

    Respondent, the Director-General of the Department of Mineral Resources

    (“the DG”), to the Third Respondent, William Patrick Bower (Pty) Ltd (“WPB”).

    2. The Minister and the DG have not delivered notices of intention to oppose.

    Despite having delivered a notice of intention to oppose, 2 WPB has failed to

    deliver an answering affidavit. The application has, accordingly, been enrolled

    for hearing on the unopposed roll. 3

    LEGAL FRAMEWORK

    3. Section 33 of the Constitution of the Republic of South Africa, 1996 provides

    that everyone has the right to administrative action that is lawful, reasonable

    and procedurally fair. The decisions impugned in this application constitute

    administrative action reviewable in terms of section 6 of PAJA. PAJA also

    sets out in section 8 the remedies in proceedings for judicial review.

    4. The MPRDA was amended by the coming into operation of Act 49 of 2008 on

    7 June 2013 (“the Amendment Act”). 4 References to provisions of the MPRDA

    1 MPRDA Regulations (GN R527 in GG26275 of 23 April 2004) (“the Regulations”). 2 The notice of intention to oppose is at notices bundle 7 record pp. 1- 5. 3 The notice of set down is at notices bundle 7 record pp. 39 - 41. 4 The commencement of the operation of specified provisions of Act 49 of 2008 was suspended by a Notice 17 in Government Gazette 36541 of 6 June 2013. Those provisions commenced on 7 December 2014.

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    in these heads of argument are, unless expressly stated otherwise, references

    to the MPRDA as amended.

    5. The MPRDA expressly incorporates principles of administrative justice.

    Section 6(1) provides that, subject to PAJA, any administrative process

    conducted or decision taken in terms of the MPRDA must be conducted or

    taken, as the case may be, within a reasonable time and in accordance with

    the principles of lawfulness, reasonableness and procedural fairness. Section

    6(2) provides that any decision contemplated in section 6(1) must be in writing

    and accompanied by written reasons for such decision.

    6. Section 23(1) of the MPRDA empowers the Minister to grant a mining right.

    That power has been delegated to the DG. 5 In terms of section 23(1) read

    with section 23(3), the DG is obliged when deciding on a mining right

    application to refuse to grant a mining right if the application does not meet all

    the requirements set out in section 23(1) of the MPRDA. At the time that the

    mining right was granted, 6 section 23(1)(d) of the MPRDA provided that the

    Minister must grant a mining right if the mining will not result in unacceptable

    pollution, ecological degradation or damage to the environment.

    7. Section 96 of the MPRDA governs the internal appeal process under the

    MPRDA. Section 96(1)(b) provides that:

    5 Founding affidavit para 7 record p. 8 (bundle 1). See also Dale South African Mineral and Petroleum Law MPRDA – 604. 6 Prior to the coming into effect of the Amendment Act.

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    “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 within 30 days becoming [sic] aware of such administrative decision in the prescribed manner to the Minister, if it is an administrative decision that was taken by the Director-General or the designated agency”.

    8. The underlined portion (my emphasis) was introduced by the Amendment Act.

    Prior thereto, the 30 day period was already provided for in regulation 74(1) in

    terms of which any person who appeals in terms of section 96 of the MPRDA,

    must within 30 days after he or she has become aware of, or should

    reasonably become aware of, the administrative decision concerned lodge a

    written notice of appeal with (in this case) the Minister. The Minister 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. 7

    9. After the receipt of the notice of appeal, the Minister must dispatch copies

    thereof to the person responsible for the decision concerned (“the decision

    maker”) 8 and any other person who may in the opinion of the Minister be

    affected by the outcome of the appeal (“the affected person”). 9 The decision

    maker must submit the reasons for the decision to the Minister within 21 days

    of receipt of the notice of appeal (“the reasons”). 10

    10. The affected person must within 21 days of receipt of the notice of appeal

    submit a replying submission to the Minister. 11 The Minister must dispatch the

    reasons and the replying submission to the appellant and request the

    7 Regulation 74(4). 8 Regulation 74(5)(a) (i) 9 Regulation 74(5)(a)(ii). 10 Regulation 74(6). 11 Regulation 74(7).

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    appellant to respond thereto in writing within 21 days of receipt thereof. 12 The

    regulation does not stipulate a time period within which the Minister must

    dispatch the reasons and replying submission to the appellant.

    11. In terms of regulation 74(9), the Minister is obliged to decide the internal

    appeal within 30 days from the receipt of a responding statement.

    12. An internal appeal does not automatically suspend the operation of the

    decision appealed against. 13 However, the Minister is empowered to grant

    such a suspension. 14

    FAILURE TO DECIDE EEPOG APPEAL WITHIN THE STATUTORY TIME PERIOD

    13. On 10 December 2012, the DG granted a coal mining right to WPB in respect

    of portions 6 and 23 of the farm Groenvlei 353 JT and portion 12 of the farm

    Lakenvlei 355 JT in the Magisterial District of Belfast in Mpumalanga Province

    (“the mining right”).

    14. The First Applicant, Escarpment Environment Protection Group (“EEPOG”),

    became aware of the grant of the mining right on 4 March 2013. 15 EEPOG,

    (together with three other parties) lodged an internal appeal timeously on 25

    March 2013 (“the EEPOG appeal”). 16

    12 Regulation 74(9). 13 Section 96(2). 14 As above. 15 EEPOG appeal paragraph 3 record p. 207 (bundle 3). 16 The EEPOG appeal is Annexure “JPP12” to the founding affidavit record pp. 206 – 338 (bundle 3). The reference to 25 March 2012 in paragraph 40 of the founding affidavit record p. 16 (bundle 1) and at the foot of the last page of the EEPOG internal appeal record p. 271 (bundle 3) is clearly an error and should be 25 March 2013.

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    15. When the internal appeal was lodged, EEPOG requested the Minister, in

    terms of section 96(2) of the MPRDA, to suspend the decision of the DG to

    grant a mining right to WPB, pending the finalisation of the internal appeal and

    to furnish the reasons for the grant of the mining right. 17

    16. More than a year later, on 7 June 2013, WPB’s legal representatives

    submitted WPB’s replying submission in terms of regulation 74(7) to the

    EEPOG appeal. 18 On 28 January 2015 EEPOG submitted its responding

    submission to the Minister. 19 Accordingly, the Minister was obliged to decide

    the EEPOG appeal within 30 days 20 of 28 January 2015, i.e. by 11 March

    2015.

    FAILURE TO DECIDE BIRDLIFE APPEAL WITHIN THE STATUTORY TIME

    PERIOD

    17. On 30 July 2013 the Centre for Environmental Rights (“CER”) lodged an

    internal appeal on behalf of the Second Applicant, BirdLife South Africa (“the

    BirdLife appeal”). 21

    17 Founding affidavit para 24 record pp. 12-14 (bundle 1), “JPP2” para 3 record p. 44 (bundle 1). 18 Founding affidavit para 40 record p. 17 (bundle 1). 19 Founding affidavit para 42 record p. 17 (bundle 1). The responding statement is annexure “JPP14” record pp. 406 – 413 (bundle 5). 20 “Day” is defined in the MPRDA as meaning a calendar day excluding a Saturday, Sunday or public holiday and when any particular number of days are prescribed for the performance of any act, those days must be reckoned by excluding the firs

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