This document summarizes recent developments in South African case law related to mining law. It discusses cases related to appeals and reviews, consultation requirements, royalties, section 54 of the MHSA, and conversion of rights in undivided mining shares. It also briefly summarizes several other relevant cases on topics such as prospecting rights and interdicts. The document was presented by Chris Stevens on October 18, 2012.

1. RECENT
DEVELOPMENTS IN
CASE LAW
CONCERNING APPEALS,
CONSULTATION,
ROYALTIES, SECTION
54MHSA, AND
CONVERSION OF
RIGHTS IN UNDIVIDED
SHARES
Chris Stevens
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2. APPEALS AND REVIEWS
 S96 of MPRDA
 officer or RM to DG
 DG to Minister
 Minister  High Court review – Rule 53
 Global Pact Trading 201 (Pty) Ltd v Minister of
Minerals and Energy and Others (OFS PD –
3118/06) [2007] ZAFSHC 68
 de-centralisation v de-concentration
 Minister had power to revoke the delegation to DDG
 Minister could exercise power delegated to herself
 Minister could exercise control over the exercise of the
delegated power
 a decision of the DDG was a decision of the Minister
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3. APPEALS AND REVIEWS
 Bengwenyama Minerals and Others v Genorah
Resources and Others (Case CCT39/10 [2010] ZACC
26)
 delegator retains final control over decision
 enhance autonomy of administrative process and
immediate and cost-effective relief
 final control exercised by way of appeal
 values and principles of public administration in
Constitution enhanced by appeal process
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4. CONSULTATION
 S16(4)(b) and s22(4)(b)
 consult with landowner or lawful occupier and any other
affected party and submit results of consultation
 S5(4) before commencing any work
 Bengwenyama (supra)
 purpose of consultation to see if accommodation is
possible on impact on landowner
 not necessary to reach agreement
 failure to agree could result in s54 process
 also to provide information to landowners regarding
objections and appeals and reviews
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5. CONSULTATION
 Thus applicant must –
inform landowner of acceptance
inform in detail of operations to allow landowner to assess
impact
consult with view to reach agreement
results of consultation
 S105 MPRDA
 notify RM if landowner or occupier cannot be readily traced
or deceased and no successor can be found
 non-sensical section
 Amendment Act
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6. SECTION 104 – PREFERENCE TO COMMUNITIES
 Benwenyama (supra)
 s104 creates a special category of rights akin to a right of
first refusal to acquire a prospecting right
 before an application under s16 or s22 which may affect
the right of the community may be granted, the
community must be informed so that it can apply
 Definition of Community
 coherent, social group of persons, with interest or rights in
a particular area which the members have or exercise
communally in terms of an agreement, custom or law
 land or minerals must be registered or to be registered
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7. SECTION 54 MHSA
 Bert’s Bricks v Inspector of Mines (North Gauteng
Court – 15347/2011)
 declarator that MHSA does not apply to brick-making
activities
 objectively a state of affairs must exist which would lead a
reasonable man to believe that it may endanger the health
or safety of a person
 only give an instruction necessary to protect health or
safety of person
 no objective facts existed to suspend operation
 order out of all proportion and gross abuse of the Act
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8. ROYALTIES
 Whether royalties continue to apply after conversion
 Xstrata South Africa and Others v SFF Association
2012 (5) SA 60 (SCA)
 mineral lease conferring right to mine in return for
royalties
 item 7(4) was debated – no decision but assumed it
related to terms and conditions which continued to apply
after conversion
 Tavistock’s entitlement to mine no longer has its origins in
the mineral lease
 if lease falls away no need to pay royalties
 double payment of royalties could imperil financial viability
of operation (no basis for this contention)
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9. ROYALTIES
 “right to claim royalties under a contract, such as this
mineral lease, concluded prior to the Act coming into force
and maintaned during the transitional period in the form of
a condition attaching to an old order mining right, does not
serve the purposes and would be contrary to the Act”
 above statement is obiter and no mention of why the
royalty is contrary to the Act
 if consideration is in the form of a sale of mineral rights
perfected before the MPRDA, then there is no reason why
that should no longer be payable
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10. UNDIVIDED SHARES OF OLD ORDER RIGHTS
 Sishen Iron Ore and Others v Minister of Mineral
Resources and Others (North Gauteng - Case No.
28980/10)
 nowhere in the converted mining right of Sishen was there
a restriction to 78,6% of the converted mining right
 100% full right granted
 ICT granted prospecting right for 21,4%
 court held that Minister granted 100% mining right
 RM had no power to accept ICT’s application or Sishen’s
application for 21,4%
 on appeal
 convert only what one has
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11. OTHER CASES
 BHP Billiton Energy Coal v Minister and Others and
Finishing Touch (North Gauteng Court – 67536/2010)
[2012] ZASCA 49
 interdict upheld pending outcome of appeal/review
 review order set aside because of non-joinder of party to
whom a prospecting right was granted
 Khusela Women Investment v Minister and Afex
unreported (North Gauteng Court – 52109/08)
 conflicting prospecting right granted to Afex (State
company) set aside
 Joubert v Maranda Mining 2010 (1) SA 198 (SCA)
 access to land interdict granted
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12. OTHER CASES
 Maccsand v City of Cape Town (Justin Truter)
 Minister v AgriSA [2012] ZASCA 93
 the contention that all mineral rights that existed in South
Africa under the 1991 Act were expropriated under the
MPRDA not correct
 Norgold Investments v Rhodium Reefs and
Minister (SCA 278/10) (2011) ZASCA 49
 lodging application in wrong Regional Office not fatal
 Southern Sphere v Minister unreported (North
Gauteng - Case 38976/07)
 validity of s103(4) decision
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13. OTHER CASES
 De Beers v Ataqua unreported (OFS PD – Case No.
3215/06) [2007] ZAFSHC 74
 Dumps created pre-MPRDA not governed by Schedule II
nor substantive parts of MPRDA
 Silver Meadow v Golfview unreported (North
Gauteng – Case No 39706/2007)
 rescission of review order granted
 180 day period in s39(1) of MPRDA is peremptory
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14. THANK YOU
Chris Stevens
18 October 2012
Nothing in this presentation should be construed as formal
legal advice from any lawyer or this firm. Readers are
advised to consult professional legal advisors for guidance
on legislation which may affect their businesses.
© 2012 Werksmans Incorporated trading as Werksmans
Attorneys. All rights reserved.
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