IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
In the matter between: CASE NO. CCT157/18
MAGNIFICENT MILE TRADING 30
(PTY) LTD Applicant
and
THE EXECUTRIX OF THE ESTATE OF THE LATE JOSEPHINE TERBLANCHE GOUWS
(CHARMAINE CELLIERS NO) First Respondent MINISTER OF MINERAL RESOURCES Second Respondent DIRECTOR-GENERAL: DEPARTMENT
OF MINERAL RESOURCES Third Respondent DEPUTY-DIRECTOR GENERAL:
DEPARTMENT OF MINERAL
RESOURCES Fourth Respondent
THE EXECUTRIX OF THE ESTATE OF THE LATE NICOLAAS
PETRUS GOUWS
(ANNEKE DENISE LE ROUX NO) Fifth Respondent FIRST RESPONDENT’S PRACTICE NOTE
1. Name and number of the matter
Magnificent Mile Trading 30 (Pty) Ltd v The Executrix of the Estate of the Late Josephine Terblanche Gouws (Charmaine Cilliers N.O.) and others (Case No: CCT 157/2018)
2. Nature of proceedings
This is an application in terms of Rule 19 of the Constitutional Court Rules in terms of which the applicant seeks leave to appeal against the whole of the judgement and order handed down by the SCA on 1 June 2018 under SCA case number 594/17.
3. Issues to be argued
3.1. The late Mr Nicolaas Petrus Gouws was the owner of the immovable property described as portion 9 of the farm Driefontein 338 JS, Middelburg, Mpumalanga (“ the property”). Prior to the coming into effect of the Mineral and Petroleum Resources Development Act, 28 of 2002 (“the MPRDA”), the late Mr Gouws was the owner of the common law mineral right underneath the property. Upon the coming into effect of the MPRDA, the common law mineral right was abolished, and the State became the custodian of all minerals.
3.2. In order to transition from the old legislative scheme to the new, the MPRDA provided for the Transitional Arrangements (Schedule II to the MPRDA). The provisions gave the holder of an unused
old order right the exclusive right to apply for a prospecting right within the exclusive period, being 1 May 2004 to 30 April 2005.
The late Mr Gouws, as a holder of an unused old order right, lodged his prospecting right application on 29 April 2005 with the consequence that the unused old order right remained valid until such time as he is prospecting right application had been determined.
3.3. Magnificent Mile made an application for the same mineral and over the same property on 3 May 2005. In the face of the late Mr Gouws’ prospecting right application, the RM accepted Magnificent Mile’s prospecting right application and subsequent thereto the DDG granted a purported prospecting right to Magnificent Mile. This, under circumstances where the late Mr Gouws’ prospecting right application had not yet been determined.
3.4. Mr Gouws died on 7 November 2005.
3.5. Magnificent Mile subsequently made an application for a mining right to mine for coal on the property. The DG refused the application upon which the applicant had recourse to the internal appeal mechanisms provided by the MPRDA. In opposing the applicants internal appeal, Mrs Gouws made the appropriate submissions.
3.6. Magnificent Mile applied to review and set aside a succession of decisions made by the state officials in regard to the late Mr Gouws’ application and the decision to refuse the applicants mining right. Mrs Gouws lodged a counter-application seeking an order declaring that the grant of the prospecting right to the applicant was void ab initio.
3.7. Four distinct issues arise in this matter, namely:
3.7.1. whether it is in the interests of justice for this Court to grant Magnificent Mile leave to appeal;
3.7.2. Magnificent Mile’s own locus standi;
3.7.3. a legal issue which relates to superior rights between Magnificent Mile and the Gouws respondents; and
3.7.4. a procedural issue and in particular what the remedies are available to the parties.
4. Estimated duration of the argument
It is estimated that argument should last no longer than 4 (four) hours.
5. The record
5.1. The entire record filed with this Court is relevant to the determination of the issues in this matter.
5.2. Various annexures to the affidavits in the application and the entire rule 53 record have already been excluded from the appeal record before the SCA and therefore similarly excluded from the record before this Court
6. Summary of the first respondent’s argument
6.1. On the first issue, the first respondent contends that it is not in the interests of justice to grant leave in this matter. It is submitted that this matter does not raise a constitutional issue. The SCA did not locate the right in the Constitution but determined the right by the interpretation of the provisions of the MPRDA. Through this application, Magnificent Mile seeks to raise two points of law, the first relating to the transitional phase and secondly the receipt of the rights of the deceased person by his or her executor. The former is of historical interest and academic, whilst the latter has been settled and it would have no practical effect or of interest to anyone but the parties. The issues raised do not raise matters of public interest and Magnificent Mile enjoys no prospect of success on those issues.
6.2. On the second issue, the first respondent contends that Magnificent Mile does not have the required locus standi. It is common cause that the late Mr Gouws had the exclusive right to
apply for the prospecting right over the property during the first period (between 1 May 2004 to 30 April 2005). No third party could have applied for such a right during that first period. Where an old order application had been made timeously, the provisions of the MPRDA preclude everyone else from lodging an application and the official respondents from accepting a third party application unless and until the old order application had been dealt with by the officials. This conclusion means that Magnificent Mile never had the right to apply for any MPRDA right and the official respondents never had the power to grant such a right to Magnificent Mile. That conclusion means that Magnificent Mile never had the standing to seek the administrators remedy.
6.3. The third issue relates to superior rights between Magnificent Mile and the Gouws respondents. As the ‘preclusion approach’
applies, Magnificent Mile did not have the right to make any application in respect of the Middelburg farm and the official respondents had no power to accept such application, consider it ought to grant any right in respect thereof. Everything that had been done was void ab initio. Having demonstrated that Magnificent Mile never had any rights, and to the extent that they had such rights they were void, we submit that Mr Gouws’ rights
did not perish upon his death. Mr Gouws’ right is the creation of a statute and the statute itself links the life of the right to something other than the life of the applicant. That right remains open until it is granted and dealt with in terms of the Act or is refused. As such, executrix received the right and she became entitled to a right to a decision.
6.4. Finally, and on the fourth issue, and as between Magnificent Mile and the Gouws respondents, there is no PAJA issue. As between Magnificent Mile and the Gouws respondents, there is only a superior rights dispute and should Magnificent Mile lose its fight with the official respondents, they would still be nothing left for Mrs Gouws to do. That would simply be the end of Magnificent Mile on the Middelburg farm.
7. List of authorities
Hirsch v Nel 1948 3 SA 686 (A).
Ferreira v Levin NO 1990 1 SA 984 (CC).
Albutt v Centre for Study of Violence and Reconciliation 2010 3 SA 293 (CC).
Xstrata SA (Pty) Ltd v SFF Association 2012 5 SA 60 (SCA).
Agri SA v Minister of Minerals and Energy 2013 4 SA 1 (CC).
Minister of Mineral Resources v Sishen Iron Ore Co (Pty) Ltd 2014 2 SA 603 (CC).
Paulsen v Slip Knot Investments 777 (Pty) Ltd 2015 3 SA 479 (CC).
Aquila Steel (SA) Ltd v Minister of Mineral Resources 2017 3 SA 301 (GP).
Pan African Mineral Development Co (Pty) Ltd v Aquila Steel (SA) (Pty) Ltd 2018 5 SA 124 (SCA).
