FIFTH AND SIXTH RESPONDENTS PRACTICE NOTE

Transcription

1 THE CONSTITUTIONAL COURT OF SOUTH AFRICA CC case no: 08/2018 SCA case no: 179/2017 NGHC case no: 72248/2015 In the matter between: AQUILA STEEL (S AFRICA) (PTY) LTD Applicant and MINISTER FOR MINERAL RESOURCES DIRECTOR-GENERAL OF THE DEPARTMENT OF MINERAL RESOURCES First Respondent Second Respondent DEPUTY DIRECTOR-GENERAL OF THE DEPARTMENT OF MINERAL RESOURCES Third Respondent REGIONAL MANAGER: NORTHERN CAPE REGION, DEPARTMENT OF MINERAL RESOURCES PAN AFRICAN MINERAL DEVELOPMENT COMPANY (PTY) LTD ZIZA LTD Fourth Respondent Fifth Respondent Sixth Respondent FIFTH AND SIXTH RESPONDENTS PRACTICE NOTE

2 2 NAME AND NUMBER OF THE MATTER As above DATE OF HEARING 23 August 2018 NATURE OF PROCEEDINGS This is an application for leave to appeal, in terms of Rule 19 of the Constitutional Court Rules, against the whole judgment and order (including the costs order) of a majority of the Supreme Court, in Pan African Mineral Development Company (Pty) Ltd and Others v Aquila Steel (S Africa) (Pty) Ltd [2018] 1 All SA 414 (SCA). ISSUES TO BE ARGUED 1. Whether leave to appeal should be granted; 2. Whether the SCA s judgment and orders should be overturned on appeal, including: 2.1. whether the Department of Mineral Resources could accept and/or grant the applicant s ( Aquila s ) application for a prospecting right in the face of the fifth respondent s ( Ziza s ) prior application lodged in terms of item 8 of Schedule II to the Mineral and Petroleum Resources Development Act 28 of 2002 ( the MPRDA ); 2.2. whether the Department could accept and/or grant Aquila s application for a mining right when Ziza held a prospecting right over the same land for the same minerals; 2.3. whether the Regional Manager s decision to accept Ziza s prospecting

3 3 right application is amenable to being reviewed and set aside and, if so, whether the effect of an order to that effect is retrospectively to validate an invalid decision taken in the face of that application; 2.4. whether Ziza s deregistration from the company register (and subsequent restoration) caused its prospecting right to lapse. 3. Costs. SUMMARY OF THE FIFTH AND SIXTH RESPONDENTS ARGUMENT The fifth and sixth respondents will argue that: 1 Ziza held an unused old order right over certain properties, which conferred upon it, during a transitional period, the exclusive right to apply for a prospecting right. It duly did so. 2 In terms of item 8 of Schedule II to the MPRDA, Ziza was entitled to have that application determined before any other application could be considered. 3 Instead of respecting that priority, the DMR accepted a prospecting right application from Aquila and granted Aquila a prospecting right before it had decided Ziza s application and at a time when Ziza still held an unused old order right. It later also granted Ziza a prospecting right. 4 Aquila later applied for a mining right over one of properties, and the DMR accepted the application. But both the acceptance and the grant of that application were precluded by Ziza s extant prospecting right. 5 The Minister found, and a majority of the SCA later confirmed, that the acceptance and grant of Aquila s prospecting and mining right applications were precluded under the MPRDA. Their findings and orders were plainly correct, and should not be overturned by this Court. 6 Aquila s application for leave to appeal to this Court should therefore be dismissed, with costs.

4 4 PORTIONS OF THE RECORD TO BE READ The affidavits in the application, which appear at in the main record at: - FA; vol 1 pp SFA; vol 5 pp Ziza AA; vol 6 pp Second amended NOM; vol 6 pp SSFA; vol 6-7; pp Ziza SAA; vol 7 pp DMR s AA; vol 7 pp RA; vol 7 pp HC judgment; vol 19 pp SCA judgment; vol 21 pp Application for leave to appeal to this Court; vol 21 pp Directions; vol 21 pp Important documents in the core bundle: - Ziza application; vol 1-2 pp Record of acceptance decision; vol 2 pp Letter of grant, core bundle vol 2 pp Internal memorandum, core bundle vol 2 pp Grant letter; vol 3 pp Aquila s mining right application; vol 4 pp Letter of acceptance; vol 4 pp Minister s decision on the internal appeal; vol 6 pp Company records; vol 6 pp ESTIMATED DURATION OF ORAL ARGUMENT One day

5 5 AUTHORITIES ON WHICH PARTICULAR RELIANCE WILL BE PLACED Agri South Africa v Minister for Minerals and Energy [2013] ZACC 9; 2013 (4) SA 1 (CC); 2013 (7) BCLR 727 (CC) Minister of Mineral Resources and Others v Mawetse (SA) Mining Corporation (Pty) Ltd [2015] ZASCA 82; [2015] 3 All SA 408 (SCA); 2016 (1) SA 306 (SCA) Newlands Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd [2015] ZASCA 25; 2015 (4) SA 34 (SCA) Oudekraal Estates (Pty) Ltd v City of Cape Town and Others [2004] ZASCA 48; 2004 (6) SA 222 (SCA) [2004] 3 All SA 1 (SCA) Palala Resources (Pty) Ltd v Minister of Mineral Resources and Energy and Others [2016] ZASCA 80; [2016] 3 All SA 441 (SCA); 2016 (6) SA 121 (SCA) Pan African Mineral Development Company (Pty) Ltd and Others v Aquila Steel (S Africa) (Pty) Ltd [2018] 1 All SA 414 (SCA) Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa and Another [2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) NAMES OF COUNSEL Applicant s counsel A Cockrell SC acockrel@law.co.za D Smit danieljsmit@law.co.za First to Fourth respondents counsel V Maleka SC (011) / ivmaleka@mweb.co.za L Gumbi gumbi@webmail.co.za

6 6 Fifth and sixth respondents counsel CDA Loxton SC I Goodman CDA LOXTON SC I GOODMAN Counsel for the fifth and sixth respondents Chambers, Sandton 18 May 2018