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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
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
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
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
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.
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.
“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).
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.
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
FAILURE TO DECIDE BIRDLIFE APPEAL WITHIN THE STATUTORY TIME
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