In the review application between Sedibeng Iron Ore (Pty) Ltd v The Minister of Mineral Resources and Energy & 16 Others (case number 19831/20), and in which the specialist mining, environmental and litigation teams of Andersen in South Africa acted for the Applicant (Sedibeng) with Adv. P?Daniels SC and Adv. A Higgs, Le Roux AJ handed down a reportable judgment reviewing and setting aside the decision of the Minister of Mineral Resources to grant a prospecting right to the Rexton Holdings (Pty) Ltd.
One of the central issues in this matter, and one of the grounds of review, was whether the Minister acted lawfully in term of s103(4)(b) of the Mineral and Petroleum Resources Development Act 28 of 2002 by withdrawing a decision taken by the Deputy Director General of the Department of Mineral Resources and Energy, to grant a prospecting right to Rexton, and replacing it with his own decision and reasons to grant the prospecting right, despite a pending internal appeal by Sedibeng of the Deputy Director General's decision to the Director-General of the Department of Mineral Resources and Energy.
Le Roux AJ noted that she, and the parties' legal representatives, were unaware of any decided caselaw on the interpretation and application of s103(4)(b) and applied a broader interpretation of the word "affect", in the sub-section, to include Sedibeng's existing mining right and right to administrative justice. Section 103(4) of the MPRDA holds that:
"The Minister, Director-General, Regional Manager or officer may at any time-
- withdraw a delegation or assignment made in terms of subsection (1), (2) or (3), as the case may be; and
- withdraw or amend any decision made by a person exercising a power or performing a duty delegated or assigned in terms of subsection (1), (2) or (3), as the case may be: Provided that no existing rights of any person shall be affected by such withdrawal and amending of a decision". (our underlining added)
The Court did not find that the Minister had acted unlawfully in withdrawing the Deputy Director General's decision in terms of s103(4)(b), but the decision by the Minister to subsequently grant the prospecting right was reviewed, set aside, and the Minister ordered to reconsider Rexton's application for the prospecting right subject to certain directions from the Court.
Ultimately, if you are contemplating challenging the decision made by an official with assigned or delegated powers for the granting of a mining right, mining permit, or prospecting right, then take notice that the Minister could intervene in terms of s103(4), withdraw the decision, and make his own.
Given the interpretation of what it means to be "affected" in terms of s103(4)(b) and its precedent setting implications in administrative law and mining law, we will address this in further detail in a follow up article.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.