Werksmans Director Bulelwa Mabasa speaks on appeals, reviews, mandamus, interdicts & administrative actions in terms of the minerals & petroleum resources development act ("MRPDA") No.28 of 2002 at the Junior Mining & Exploration Conference 8th November 2012.

1. APPEALS, REVIEWS, MANDAMUS, INTERDICTS AND
ADMINISTRATIVE ACTIONS IN TERMS OF THE MINERALS
AND PETROLEUM RESOURCES DEVELOPMENT ACT
(“MPRDA”)
NO.28 OF 2002

2. INTRODUCTION

3. INTRODUCTION
It is a principle of administrative justice that 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 and that such decision
must be in writing and accompanied by written reasons for such
decision;
in terms of section 33 of the Constitution , everyone has the right to
administrative action that is lawful, reasonable and procedurally fair.
Thus everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons.
Furthermore, National legislation must be enacted to give effect to
these rights, and must provide for the following-

4. CONTINUATION
• the review of administrative action by a court or, where appropriate, an
independent and impartial tribunal;
• impose a duty on the state to give effect to the abovementioned rights;
and
• promote an efficient administration.
• challenging a decision made by the state or administrative body may
happen by way of either an appeal, review, mandamus or an interdict;
• below, we deal specifically with each remedy, as to what it entails and
when a party may utilise each remedy.

5. THE ESSENCE OF THE PROMOTION OF ADMINISTRATIVE
JUSTICE ACT NO 3 OF 2000 ("PAJA")
• In South Africa, administrative decision-making is promulgated through
PAJA, which sets out the general rules that govern how administrators
must make decisions; reasonably, justly and procedurally fairly;
• Reasonableness, means that administrators should be able to
comprehend the context of an application in which they have to make a
decision;
• Justifiableness, refers to the administrator having the power to make a
decision;

6. CONTINUATION
• procedural fairness, means that an administrator must ensure that if a
person I likely to receive a negative decision, the potentially affected
individual must be given ; adequate notice of the nature and purpose of
the proposed negative decision, a reasonable opportunity to make
representations, a clear statement of the administrative action,
adequate notice of any right of review or internal appeal where
applicable and adequate notice of the right to request reasons.

7. APPEALS

8. WHAT IS AN APPEAL?
• depending on the context, the term ‘appeal’, which includes a cross-
appeal, has different meanings. It may refer to-
• an appeal in the wide sense, that is a complete rehearing of and fresh
determination on the merits of the matter, with or without additional
evidence;
• an appeal in the strict sense, that is a rehearing on the merits but
limited to the evidence or information on which the decision was given.
The only question is then whether that decision is right or wrong;

9. WHAT DOES AN APPEAL ENTAIL?
• Firstly, any person who appeals in terms of section 96 of the MPRDA
against an administrative decision, must within 30 days after he or she
has become aware of the or should reasonably become aware of the
administrative decision concerned, lodge a written notice of appeal with
the Director-General or the Minister, as the case may be;
• if the decision concerned was made by the regional manager or another
officer of the Department of Mineral Resources, the correct appeal
authority is the Director-General of the Department. On the other hand,
if the Director-General made the decision, the appeal must be directed
to the Minister of Mineral Resources;

10. CONTINUATION
• after receiving the appeal, the Director-General or the Minister, as the
case may be, must then send copies of it to whomever in the
Department made the decision, as well as to any person whose rights
could be affected by the outcome of the appeal. These parties then
have 21 days to respond in writing. Generally, the appeal is sent to the
Regional Manager who would have recommended the grant or refusal
of the right. These responses must be sent by the Director-General or
the Minister, as the case may be, to the appellant to furnish a response;
• within 30 days of receiving the latter response, the Director-General or
the Minister, as the case may be, must do one of the following: confirm
the initial decision, set it aside, amend it, or make another decision in
the place of the original one;

11. ADVANTAGES OF AN APPEAL
• an appeal is not the ultimate finalisation of a matter and it is important
to note that it can be taken to the High Court on review within 30 days
and below is a significant Constitutional Court decision this matter had
thus been initiated by an internal appeal and ended up being the
subject of a High Court review, an appeal to the Supreme Court of
Appeal (SCA) and a further appeal to the Constitutional Court;
• the Constitutional Court decision of Bengwenyama, is a decision in
which the Bengwenyama community appealed against the grant of a
prospecting right to a third party in terms of the Mineral and Petroleum
Resources Development Act ("the MPRDA") on land owned by a
community;

12. CONTINUATION
• the community’s challenge to the award in the North Gauteng High
Court, Pretoria was dismissed. An appeal to the Supreme Court
Appeal was also dismissed on the ground, like in the High Court, that
the community had failed to bring the application for review timeously in
terms of the provisions of PAJA. The Supreme Court of Appeal did not
decide the merits of the community’s grounds of review. The
community applied to the Constitutional Court for leave to appeal
against the decision of the Supreme Court of Appeal;
• the community contended that the Supreme Court of Appeal erred in
finding that the application was brought out of time and for not finding
that the community should have been awarded a preferent right to
prospect in terms of section 104 of the MPRDA, which states that, any
community that wishes to obtain a 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, under specified conditions;

13. CONTINUATION
• in addition, the community argued that the award to Genorah
Resources (Proprietary) Limited ("Genorah") was defective because of
irregularities in the required consultation process, lack of compliance
with environmental requirements and unfair administrative procedures;
• the Constitutional Court decided the matter on the basis of whether the
decision to allocate the prospecting rights was fair administrative action.
The Court found that an internal appeal was available to the
applicants, that the Department’s failure to deal with the appeal
amounted to a conclusion of the appeal process, and that the review
application had thus been brought in time;

14. CONTINUATION
• the Constitutional Court held further that the granting and execution of
prospecting rights is a grave invasion of a property owner’s rights. The
Court held that the purpose of consultation with landowners, required
by the Act, was to provide them with the information necessary to make
an informed decision on how to respond to the application. The
Constitutional Court, per Froneman J, concluded that Genorah had not
consulted with the community as required by the Act, that the decision-
maker had not given the community a hearing or complied with the
fairness requirements of PAJA, and that the environmental
requirements in terms of the Act had not been satisfied. Accordingly
the community had not been treated as required by the Constitution;
• leave to appeal was accordingly granted to the community and the
appeal succeeded. The awards of prospecting rights on the
community’s land were set aside.

15. DISADVANTAGES OF AN APPEAL
• An appeal involves a re-hearing on the evidence or information before
the lower tribunal and the only question is whether the decision was
right or wrong. It is based upon the record of the case in the court of
first instance and the appellant is bound by it; he cannot rely on any
circumstance that does not appear or cannot be deduced from the
record. If an appellant is dissatisfied with the record, he must apply for
leave to amend it;
• one of the most important points to note about the MPRDA's internal
appeal process is that it is an internal administrative process managed
by the Department of Mineral Resources. There is no option available
for an administrative review through the courts - at least not until all the
prescribed internal avenues have been exhausted;

16. CONTINUATION
• the Supreme Court of Appeal in the Bengwenyama matter confirmed
that a decision of the Deputy Director-General or the Director-General
as delegatee of the Minister is not a Ministerial decision but rather a
decision of the Deputy Director-General or the Director-General and
thus is subject to the appeal process;
• the lodging of an appeal under the MPRDA does not suspend the
decision leading to the appeal. For instance, if one is appealing against
the grant of an overlapping or competing right granted to another party,
that appeal will not suspend the other party's right pending the outcome
of the appeal. On the contrary, the other party may continue exercising
their granted right until the MPRDA appeal process has run its course,
which, as pointed out above, can take years to complete. In this event,
one should, as the appellant apply to the High Court for an urgent
interdict preventing the other party from exercising its right while the
administrative appeal process and any subsequent review is pending,
which interdict should be granted if the requirements for an interim
interdict are met.

17. JUDICIAL REVIEW

18. WHAT IS JUDICIAL REVIEW?
• Judicial review denotes the process whereby the proceedings of lower
courts, both civil and criminal, are brought before the high court in
respect of grave irregularities or illegalities occurring during the course
of such proceedings;
• secondly, it is the process whereby a court has to assess whether there
has been an infringement of the right to lawful, reasonable and
procedurally fair administrative action;
• in the third place the term refers to that power conferred upon a court
by statute to review the proceedings of certain statutory bodies on
specific grounds;

19. CONTINUATION
• fourthly, courts may subject any exercise of public power to
constitutional review under rule of law principle;
• any person may institute proceedings in a court or a tribunal for the
judicial review of an administrative action;

20. WHAT DOES JUDICIAL REVIEW ENTAIL?
• any proceedings for judicial review in terms of section 6 (1) of PAJA
must be instituted without unreasonable delay and not later than 180
days after the date on which any proceedings instituted in terms of
internal remedies have been concluded; or
• where no such remedies exist, on which the person concerned was
informed of the administrative action, became aware of the action and
the reasons for it or might reasonably have been expected to have
become aware of the action and the reasons;
• of significant importance is that, no court or tribunal shall review an
administrative action in terms of PAJA unless any internal remedy
provided for in any other law has first been exhausted;

21. CONTINUATION
• a court or tribunal must, if it is not satisfied that any internal remedy 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 PAJA;
• 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.

22. ADVANTAGES OF JUDICIAL REVIEW
• a review involves a limited re-hearing and the question is often whether
the procedure adopted was formally correct. The applicant may travel
beyond the record of the proceedings before the tribunal in order to
make out his case.

23. DISADVANTAGES OF JUDICIAL REVIEW
• A pending review does not suspend the administrative act
automatically;
• the power to review should generally, unless there are special reasons,
not be exercised before the conclusion of the proceedings.

24. MANDAMUS

25. WHAT IS A MANDAMUS?
• A mandamus is one whereby a person is compelled to do something
precise or particular, so that the applicant may have his just rights;
• a mandamus and a mandatory interdict is one and the same thing.
There is no difference between the two, except to indicate the
involvement of a public or governmental body on the one hand and a
private person on the other hand. Except for this, there is no reason to
differentiate.

26. WHAT DOES A MANDAMUS ENTAIL?
• Numerous applications for a mandamus are refused mainly due to
three reasons-
– there must be clear proof of illegality. It is not the practice of the court to grant an order
for a mandamus, which is a formal mandatory interdict, against a public officer, unless
it is clear that he has refused to perform a specific duty imposed upon the law;
– where a discretion is involved, it must be shown that the respondent has not exercised
a proper discretion, e.g. failure to comply with the audi alteram partem rule if the
discretion vested is an absolute discretion, mala fides must be proved; and
– there was no urgent necessity or danger in delay. A man who approaches the court for
a mandamus should use due diligence in bringing the application. Mere delay will not
be fatal to the application if no mischief is caused thereby to the defendant, and the
delay does not exceed a reasonable period; but the right to a mandamus is gone if
there has been an unreasonable delay, and mischief would be caused thereby to the
defendant;

27. REQUIREMENTS OF LODGING A MANDAMUS
• the requirements for the grant of a final mandatory interdict are-
– a clear right:
– an actual or threatened invasion of that right; and
– the absence of similar protection by any other ordinary or suitable
legal remedy;

28. CONTINUATION
• if the interdictory relief sought is interim in effect, form, and substance
the applicant must establish the following to succeed-
– a prima facie right even though open to some doubt;
– a well-grounded apprehension of irreparable harm if the interim
relief is not granted;
– a balance of convenience in their favour; and
– the lack of another remedy adequate in the circumstances.

29. ADVANTAGES OF A MANDAMUS
• It is usually sought by way of application proceedings which are
relatively inexpensive and are far less time consuming than trial
proceedings. It is possible to obtain both a prohibitory interdict, which
prevents the respondent from doing something and a mandatory
interdict, which requires the respondent to do something ;
• non-compliance with a mandamus order, amounts to contempt of court;
• other than non-compliance by a public official , a mandamus is a
speedy remedy that has arisen from the nature of the violation and the
urgency to remedy it.

30. DISADVANTAGES OF A MANDAMUS
• It is more difficult to enforce a mandatory interdict than to
enforce a prohibitory interdict.

31. INTERDICTS

32. WHAT IS AN INTERDICT?
• An interdict, which is also known as an injunction, is an order granted
by a court in the course of litigation, an intermediate stage, in regard to
preliminary or procedural questions and which are incidental to the
main dispute;
• interdicts are either interlocutory/interim or final in nature;
• interlocutory interdicts are merely provisional in nature and do not
conclude a right. The effect and object of this type of interdict is merely
to keep matters is statu quo, until the hearing of the cause upon the
merits or generally until further order. Thus in interfering by interlocutory
interdict, the Court does not in general profess to anticipate the
determination of the right, but merely gives it as its opinion that there is
a substantial question to be tried and that until the question is ripe for
trial, a case has been made out for the preservation of property in the
meantime, in statu quo
• final interdicts form part of the order made at the hearing upon the
merits. The final interdict is in effect an order and concludes a right.

33. WHAT DOES AN INTERDICT ENTAIL?
• High Courts have always had the inherent jurisdiction to grant interdicts,
while the jurisdiction of other courts to grant such orders depends on
the statutes on which they are founded. In some instances particular
legislation that creates statutory wrongs may provide specifically for the
power to grant an interdict. A court will have the same jurisdiction in
respect of parties and causes of action as it does in other civil
proceedings;
• a statute may, subject to the basic right of access to courts, deny the
right to an interdict ;
• an application for an interim interdict is brought on notice of motion with
a founding affidavit ;

34. CONTINUATION
• an application for an interim interdict is brought on notice of motion with
a founding affidavit ;
• it is often necessary to apply for an interim interdict on an urgent basis;
and in certain circumstances by way of an ex parte application (that is
without notice to the respondent). In these cases the court (if it grants
the interim interdict) will issue a rule nisi, which will order the
respondent to come before the court on a particular date, to show
cause as to why the interim interdict should not be made a final
interdict;
• if the matter is urgent, the application may be brought ex parte, with a
rule nisi granted with a return date;

35. CONTINUATION
– the rule nisi is thereafter served on the other side and the
respondent must show cause on the return day why the rule should
not be confirmed and a final interdict granted;
– then requesting an interlocutory interdict, the applicant will ask for
temporary relief, which will operate until the return day.
– the interdict sought on the return day is usually final, but may again
be interim;
•the application for interdictory relief must comply with certain
requirements. There must thus be allegations in the affidavits or the
pleadings, arising from the particular facts, which meet these requirements.

36. THE REQUIREMENTS OF LODGING AN INTERDICT
• the requirements for the grant of a final interdict are-
– a clear right:
– an actual or threatened invasion of that right; and
– the absence of similar protection by any other ordinary or suitable
legal remedy;

37. CONTINUATION
• if the interdictory relief sought is interim in effect, form, and substance
the applicant must establish the following to succeed-
– a prima facie right even though open to some doubt;
– a well-grounded apprehension of irreparable harm if the interim relief is not granted;
– a balance of convenience in their favour; and
– the lack of another remedy adequate in the circumstances;
• in some cases, after ascertaining the existence of the right in question,
the Court proceeded to consider the requirements of an interdict. In
other cases is not done. An interdict is simply granted or the application
dismissed after probing the facts and the particular sphere of
substantive law. The modus operandi of a few judges is commendable.
The use the requirements as the points of departure to probe the facts
and the particular sphere of substantive law in relation thereto.

38. ADVANTAGES OF AN INTERDICT
• it is usually sought by way of application proceedings which are
relatively inexpensive and are far less time consuming than trial
proceedings. It is possible to obtain both a prohibitory interdict, which
prevents the respondent from doing something and a mandatory
interdict, which requires the respondent to do something;
• non-compliance with an interdict order, amounts to contempt of court;
• application may be made to set aside an interlocutory interdict;
• where parties reach a settlement or are reconciled after the grant of an
interlocutory interdict, the lis between them disappears and the rule is
discharged. Third parties are also no longer bound the moment they
receive a notice of settlement or reconciliation;

39. CONTINUATION
• an interlocutory interdict granted pending the institution of action
expires when the summons is served. Strictly speaking application
should be made currently with the issue of summons for an extension of
the interdict to the end of the trial or the order obtained from Court be
appropriately phrased- "pending determination of the trial" when such
an interlocutory interdict is granted, the lis between the parties is the
pending action or application. It is intended that the interdict remain in
force until judgment is given in the action, application or review.

40. DISADVANTAGES OF AN INTERDICT
• The Court does not have a general discretion to defer the operation of
an interdict. Such discretion can only arise under exceptional
circumstances. A court is also not entitled to suspend the operation of
an interdict where the wrong complained of amounts to a crime as it
would thereby be abrogating its duty as an officer of the law.

41. CASE LAW AND CURRENT
LITIGATION RELATING TO
INTERDICTS

42. JOUBERT AND OTHERS v MARANDA MINING CO (PTY) LTD
2010 (1) SA 198 (SCA)
• the North Gauteng High Court had granted the respondent mining
company an order interdicting and restraining the appellant landowners
from refusing to allow the company access to a portion of a farm in
Limpopo Province in respect of which the company had purchased
certain mineral rights;
• the company had subsequently been granted a mining permit in
accordance with the MPRDA. An environmental management plan
submitted by the company in respect of the intended mining activities
was also approved;
• the landowners had thwarted several attempts by the company to gain
access to the farm, stating that they would under no circumstances
allow the company access. The impasse persisted even after the
company had formally consulted the appellants as required by the
MPRDA. In an appeal to the SCA the landowners argued that the
company had sought access in contravention of its environmental
management plan and that the only solution to the impasse was
expropriation of the farm;

43. CONTINUATION
• Held, that the unreasonable conduct of the appellants was not
countenanced by the MPRDA, which in section 27(7)(a), clearly affords
the holder of a mining permit the right to enter the land in respect of
which the mining rights have been granted, and this right solidifies once
the mining permit holder has complied with the provisions regarding
notification and consultation with the landowner (or occupier or other
affected parties);
• Held, further, that since the company had complied with all the
requirements set out in sections 27(1) - (5) of the MPRDA (which
regulate the requirements for the granting of a mining permit) it had
acquired the right to enter the farm for purposes of exploiting its mineral
rights.

44. CARNIE T, "MINING BATTLE TO START NEXT MONTH" THE
MERCURY 30 OCTOBER 2012
• the KZN High Court (Durban) is to hear legal arguments next week on
whether a multinational mining group may start mining just 100m from
Mtunzini, without the municipality's permission;
• a report in The Mercury notes that residents of the North Coast town
are hoping to get an urgent interdict to halt a major dune mining project
by the New Tronox group, an offshoot of the Kerr McGee corporation,
which left a trail of environmental damage across large areas of the US.
The hearing was to have started earlier this week. The case has now
been set down for hearing on 8 November after Tronox filed responding
papers to oppose the interdict application by the Mtunzini Conservancy.
Relying on a recent groundbreaking Constitutional Court case,
environmental attorney Norman Brauteseth is expected to argue that
Tronox cannot start mining until it gets formal approval and zoning
permission from the Umlalazi Municipality, according to the report.
Tronox, which is listed on the New York Stock Exchange, has said that
it will oppose the interdict application. It will apparently argue that there
is no merit in the legal argument put forward by Mtunzini residents.

45. BLAIN SUE, "JUDGE SETS ASIDE PLATREEFS RESTRAINING
ORDER AGAINST COMMUNITY" BUSINESS DAY, 17
OCTOBER 2012.
• A Limpopo community group last week welcomed a North Gauteng
High Court judge's ruling against unlisted mining company Platreef. The
court ruled that Platreef could not obtain an interdict against the 15 000-
strong community after about 150 of them protested against its
prospecting operations on and near their land, according to Business
Day report ("the report");
• Judge Jody Kollapen set aside an interim interdict Platreefs had
obtained against the Kgobudi community, preventing them from coming
within 200m of its mining operations, according to the report. Judge
Kollapen said that it contradicted the Constitution's injunction against
collective punishment;

46. CONTINUATION
• Nathaniah Jacobs, from Lawyers for Human Rights, said that the drilling
operations were in the Kgobudi residential areas, and the interdict had
cut off residents from their grazing and maize fields and, in extreme
situations, from their homes;
• according to the report, she added the judgment was 'quite significant'
as it meant companies cannot seek blanket orders against
communities; they have to engage with individuals'. 'If mines engage
correctly and don't treat everyone the same, these requirements are not
insurmountable,' she is reported to have said.

47. CONCLUSION

48. CONCLUSION
• In the final analysis, whatever choice a company takes when faced with
an unfavourable MPRDA decision, it pays to be fully informed about the
appeal process, aware of one's rights and willing to consider all options
at one's disposal.

49. THANK YOU
Ms. Bulelwa Mabasa
8 November 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.
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