Thaba Tafia Diamond Mining BK en Anders v Minister van Mynwese en Anders (02/2010) [2011] ZAFSHC 95 (21 April 2011)

Thaba Tafia Diamond Mining BK en Anders v Minister van Mynwese en Anders (02/2010) [2011] ZAFSHC 95 (21 April 2011)

The court found that the fourth respondent did not comply with the mandatory consultation process as required by section 16(4)(b) of the Mineral and Petroleum Resources Development Act, 28 of 2002. The evidence showed that the alleged consultation in 2006 was insufficient and not properly documented, and subsequent attempts in 2009 did not meet the statutory requirements. As a result, the prospecting right granted to the fourth respondent was unlawful and had to be set aside. The first applicant's application was properly processed and met all statutory requirements, and the only reason for its refusal was the existence of the fourth respondent's unlawfully granted right. The court...

Citation
[2011] ZAFSHC 95
Parties
Applicant: Thaba Tafita Diamond Mining BK; Applicant: Johannes Schrenk; Applicant: Anna Sophia Schrenk; Respondent: Minister van Mynwese; Respondent: Adjunk Direkteur-Generaal Minerale Regulering; Respondent: Streeksbestuurder: Departement Minerale, Vrystaat Streek; Respondent: Wheatfields Investments 168 (Edms) Bpk
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
21 April 2011
Case Number
02/2010
Procedural Posture
Review Application / Judgment
Outcome
The application for review is granted. The prospecting right granted to the fourth respondent is set aside and declared void. The refusal of the first applicant's prospecting right is set aside and the right is granted to the first applicant. The fourth respondent is ordered to pay the costs of the application.
Judges
HANCKE, R, C. J. MUSI, R
Legal Topics
Prospecting Rights, Consultation Requirements, Promotion of Administrative Justice Act, Mineral and Petroleum Resources Development Act
Administrative Law Land and Property Prospecting Rights Consultation Requirements Promotion of Administrative Justice Act Mineral and Petroleum Resources Development Act

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Parties

Thaba Tafita Diamond Mining BK

Applicant

Johannes Schrenk

Applicant

Anna Sophia Schrenk

Applicant

Minister van Mynwese

Respondent

Adjunk Direkteur-Generaal Minerale Regulering

Respondent

Streeksbestuurder: Departement Minerale, Vrystaat Streek

Respondent

Wheatfields Investments 168 (Edms) Bpk

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the consultation process required by section 16(4)(b) of the Mineral and Petroleum Resources Development Act, 28 of 2002, was properly followed before granting a prospecting right to the fourth respondent.
  2. 2 Whether the refusal to grant a prospecting right to the first applicant was lawful given the alleged existing right held by the fourth respondent.

Ratio Decidendi

The court found that the fourth respondent did not comply with the mandatory consultation process as required by section 16(4)(b) of the Mineral and Petroleum Resources Development Act, 28 of 2002. The evidence showed that the alleged consultation in 2006 was insufficient and not properly documented, and subsequent attempts in 2009 did not meet the statutory requirements. As a result, the prospecting right granted to the fourth respondent was unlawful and had to be set aside. The first applicant's application was properly processed and met all statutory requirements, and the only reason for its refusal was the existence of the fourth respondent's unlawfully granted right. The court...

Court Disposition

The application for review is granted. The prospecting right granted to the fourth respondent is set aside and declared void. The refusal of the first applicant's prospecting right is set aside and the right is granted to the first applicant. The fourth respondent is ordered to pay the costs of the application.

Orders

  • The decision of the second respondent to grant a prospecting right to the fourth respondent over Portion 1 of the farm Speculatie No. 217, district Boshof, Free State Province, is reviewed and set aside, and prospecting right number FS5/1/1/2/749PR is declared void.
  • The decision of the second respondent to refuse the first applicant's application for a prospecting right over Portion 1 of the farm Speculatie No. 217, district Boshof, Free State Province, dated 5 October 2009, is set aside and the prospecting right over the property is granted to the first applicant.