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RECENTDEVELOPMENTS IN

CASE LAWCONCERNING APPEALS,

CONSULTATION,ROYALTIES, SECTION

54MHSA, ANDCONVERSION OF

RIGHTS IN UNDIVIDEDSHARES

Chris Stevens

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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 ofMinerals 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 thedelegated power

a decision of the DDG was a decision of the Minister

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APPEALS AND REVIEWS

Bengwenyama Minerals and Others v GenorahResources and Others (Case CCT39/10 [2010] ZACC26)

delegator retains final control over decision

enhance autonomy of administrative process andimmediate and cost-effective relief

final control exercised by way of appeal

values and principles of public administration inConstitution enhanced by appeal process

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CONSULTATION

S16(4)(b) and s22(4)(b)

consult with landowner or lawful occupier and any otheraffected party and submit results of consultation

S5(4) before commencing any work

Bengwenyama (supra)

purpose of consultation to see if accommodation ispossible on impact on landowner

not necessary to reach agreement

failure to agree could result in s54 process

also to provide information to landowners regardingobjections and appeals and reviews

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CONSULTATION

Thus applicant must –

inform landowner of acceptance

inform in detail of operations to allow landowner to assessimpact

consult with view to reach agreement

results of consultation

S105 MPRDA

notify RM if landowner or occupier cannot be readily tracedor deceased and no successor can be found

non-sensical section

Amendment Act

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SECTION 104 – PREFERENCE TO COMMUNITIES

Benwenyama (supra)

s104 creates a special category of rights akin to a right offirst refusal to acquire a prospecting right

before an application under s16 or s22 which may affectthe right of the community may be granted, thecommunity must be informed so that it can apply

Definition of Community

coherent, social group of persons, with interest or rights ina particular area which the members have or exercisecommunally in terms of an agreement, custom or law

land or minerals must be registered or to be registered

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SECTION 54 MHSA

Bert’s Bricks v Inspector of Mines (North GautengCourt – 15347/2011)

declarator that MHSA does not apply to brick-makingactivities

objectively a state of affairs must exist which would lead areasonable man to believe that it may endanger the healthor safety of a person

only give an instruction necessary to protect health orsafety of person

no objective facts existed to suspend operation

order out of all proportion and gross abuse of the Act

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ROYALTIES

Whether royalties continue to apply after conversion

Xstrata South Africa and Others v SFF Association2012 (5) SA 60 (SCA)

mineral lease conferring right to mine in return forroyalties

item 7(4) was debated – no decision but assumed itrelated to terms and conditions which continued to applyafter conversion

Tavistock’s entitlement to mine no longer has its origins inthe mineral lease

if lease falls away no need to pay royalties

double payment of royalties could imperil financial viabilityof operation (no basis for this contention)

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ROYALTIES

“right to claim royalties under a contract, such as thismineral lease, concluded prior to the Act coming into forceand maintaned during the transitional period in the form ofa condition attaching to an old order mining right, does notserve the purposes and would be contrary to the Act”

above statement is obiter and no mention of why theroyalty is contrary to the Act

if consideration is in the form of a sale of mineral rightsperfected before the MPRDA, then there is no reason whythat should no longer be payable

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UNDIVIDED SHARES OF OLD ORDER RIGHTS

Sishen Iron Ore and Others v Minister of MineralResources and Others (North Gauteng - Case No.28980/10)

nowhere in the converted mining right of Sishen was therea 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’sapplication for 21,4%

on appeal

convert only what one has

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OTHER CASES

BHP Billiton Energy Coal v Minister and Others andFinishing 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 towhom a prospecting right was granted

Khusela Women Investment v Minister and Afexunreported (North Gauteng Court – 52109/08)

conflicting prospecting right granted to Afex (Statecompany) set aside

Joubert v Maranda Mining 2010 (1) SA 198 (SCA)

access to land interdict granted

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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 SouthAfrica under the 1991 Act were expropriated under theMPRDA not correct

Norgold Investments v Rhodium Reefs andMinister (SCA 278/10) (2011) ZASCA 49

lodging application in wrong Regional Office not fatal

Southern Sphere v Minister unreported (NorthGauteng - Case 38976/07)

validity of s103(4) decision

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OTHER CASES

De Beers v Ataqua unreported (OFS PD – Case No.3215/06) [2007] ZAFSHC 74

Dumps created pre-MPRDA not governed by Schedule IInor substantive parts of MPRDA

Silver Meadow v Golfview unreported (NorthGauteng – Case No 39706/2007)

rescission of review order granted

180 day period in s39(1) of MPRDA is peremptory

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THANK YOU

Chris Stevens

18 October 2012

Nothing in this presentation should be construed as formallegal 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 WerksmansAttorneys. All rights reserved.