South Africa: Remedies In Respect Of Decisions Made Under The MPRDA: There Are No Quick Fixes

Last Updated: 3 September 2012
Article by Chris Stevens

When it comes to appealing against or reviewing administrative decisions under the Mineral and Petroleum Resources Development Act (MPRDA), the wheels of administrative justice tend to grind slowly. However mining and exploration companies need to understand the process to achieve results.

The backlog in internal appeals under the MPRDA is growing daily and currently stands at approximately 2 000 unresolved matters. The main spoke in the wheel is the sheer volume of appeals being lodged and the lengthy, convoluted appeal process, which, unfortunately, is unavoidable.

For a party aggrieved by a decision of an official of the Department of Mineral Resources (DMR) under the MPRDA, it is not possible to sidestep, circumnavigate or accelerate the appeal process. However, it can be managed, provided that the appellant has a clear understanding of the process itself and of the appellant's rights and remedies.

Mining and exploration companies should also consider that there comes a time when it makes business sense to explore alternative avenues rather than continue with or even initiate the appeal process.

Appeals and reviews

In the past three or four years, a number of high-profile disputes around the granting or refusal of mining or prospecting rights in South Africa have been the subject of appeals and/or reviews.

A well-known example is the case in which the Bengwenyama community appealed against the grant of a prospecting right. The community argued that it had not been properly consulted over the decision to grant the prospecting rights to the mining company Genorah and that the fairness requirements of the Promotion of Administrative Justice Act had not been met. The matter eventually went all the way to the Constitutional Court, which ruled in favour of the Bengwenyama community. The matter had been initiated by an internal appeal and ended up being the subject of a High Court review, an appeal to the Supreme Court of Appeal (SCA) and a further appeal to the Constitutional Court.

Other recent high-profile disputes over decisions around decisions to grant mining rights or prospecting rights include Sishen Iron Ore Company versus Imperial Crown Trading, Norgold versus Rhodium Reefs, Southern Sphere versus Rhodium Reefs and BHP Billiton Energy Coal versus Finishing Touch Trading, all of which ended up in the High Court on review.

Such matters demonstrate that MPRDA administrative decisions may result in various parties becoming aggrieved, including surface owners, competing right holders, environmental groups and communities with rights of preference.

The MPRDA allows the right of appeal to any person or party who is aggrieved by, for example, a decision to accept or reject a prospecting right or mining right application or to grant or refuse a mining or prospecting right application. The MPRDA and the Regulations in force thereunder set out the process for submitting an appeal, as well as the timeframes that go with it.

No initial recourse to the courts

One of the most important points to note about the MPRDA's internal appeal process is that it is an internal administrative process managed by the Department of Mineral Resources. There is no option available for an administrative review through the courts - at least not until all the prescribed internal avenues have been exhausted.

The Supreme Court of Appeal in the Bengwenyama matter confirmed that a decision of the Deputy Director-General or the Director-General as delegatee of the Minister is not a Ministerial decision but rather a decision of the Deputy Director-General or the Director-General and thus is subject to the appeal process.

Here is a brief outline of the main steps involved in lodging an appeal against a decision under the MPRDA.

Firstly, any party wishing to appeal must do so within 30 days of gaining knowledge of the decision, or should reasonably have become aware of the decision, and such party must submit the appeal to the correct appeal authority.

If the decision concerned was made by the regional manager or another officer of the Department of Mineral Resources, the correct appeal authority is the Director-General of the Department. On the other hand, if the Director-General made the decision, the appeal must be directed to the Minister of Mineral Resources.

After receiving the appeal, the Director-General or the Minister, as the case may be, must then send copies of it to whomever in the Department made the decision, as well as to any person whose rights could be affected by the outcome of the appeal. These parties then have 21 days to respond in writing. Generally, the appeal is sent to the Regional Manager who would have recommended the grant or refusal of the right. These responses must be sent by the Director-General or the Minister, as the case may be, to the appellant to furnish a response.

Within 30 days of receiving the latter response, the Director-General or the Minister, as the case may be, must do one of the following: confirm the initial decision, set it aside, amend it, or make another decision in the place of the original one.

There are often delays in that the Regional Manager does not furnish the reasons to the Director-General timeously or the Director-General or the Minister fails to take a decision on the appeal timeously after having received all prescribed responses.

Dealing with delays

Should there be an unreasonable delay in receiving a decision on the appeal, the appellant may turn to the High Court for a mandamus – an order of court instructing the Director-General or Minister, as the case may be, to furnish a decision on to the appeal forthwith. The Bengwenyama decision held that a four month delay in furnishing a decision on an appeal is unreasonable.

Such an order may get the process moving but will not necessarily bring it to a speedy conclusion. For example, if the appeal authority dismisses the appeal on its merits after the mandamus, the next step would be to appeal to the Minister if the initial appeal was decided by the Director-General.

That, too, might take an unduly long time, in which case the appellant's recourse would be to obtain another mandamus, this time against the Minister.

The Minister might then take a decision that goes against the appellant, prompting the appellant to take the next step in the process, namely a High Court review. The outcome of that could result in an appeal to the Supreme Court of Appeal and ultimately, as we have seen in numerous instances, an appeal to the Constitutional Court. If the matter is taken to the High Court on review there is a specific rule of the High Court Rules of South Africa, namely Rule 53, which sets out the process. Often a delay results from the lack of furnishing of a record of decision by the DMR and often one has to resort to obtaining a Court order directing the DMR to furnish the record, after which it is produced. Adherence to the strict time limits and the rules will help to expedite the review application, but obtaining a court date, if it is opposed, can delay the matter somewhat.

By this time, two to three years may have passed since the original appeal was lodged and ultimately the decision may go against the appellant.

Managing the process and exploring alternatives

As mentioned earlier, there is simply no sidestepping the appeal process set out in the MPRDA, but it can be managed.

The most effective way to approach an appeal is to ensure one follows the process correctly and completely, including submitting all the required documentation and directing the appeal to the correct appeal authority within the prescribed timeframe.

A very important piece of advice, however, is to be aware of an aggrieved party's right to object before a decision on a mining or prospecting right application is taken. The fact that an aggrieved party has objected upfront will more than likely strengthen the objector's case if, and when, the objector lodges an appeal. Conversely, not objecting may well be taken into account, to the detriment of an appellant, in the event of an appeal being lodged against the grant of a prospecting right or mining right.

Provision for the lodging of objections is built into the process of applying for mining or prospecting rights. Within 14 days after accepting any application for such a right, the regional manager must call on interested or affected parties to comment on the application in writing which objections have to be made within 30 days thereafter.

The regional manager is then obliged to refer any objection to the Regional Mining Development and Environmental Committee (RMDEC). This is an internal committee, one per province, which meets once a month to consider objections and advise the Minister on the grant or refusal of an application.

Another critical point to be aware of is that the lodging of an appeal under the MPRDA does not suspend the decision leading to the appeal. For instance, if one is appealing against the grant of an overlapping or competing right granted to another party, the fact that one appeals does not suspend the other party's right pending the outcome of the appeal. On the contrary, the other party may continue exercising their granted right until the MPRDA appeal process has run its course, which, as pointed out above, can take years to complete. In this event, one should, as the appellant apply to the High Court for an urgent interdict preventing the other party from exercising its right while the administrative appeal process and any subsequent review is pending, which interdict should be granted if the requirements for an interim interdict are met.

There may also be times when it is advisable to consider alternatives to litigation (which, as we have seen, often goes hand in hand with the appeal process). For example, it might be worthwhile to approach the other party for a commercial settlement as opposed to litigation. A commercial settlement could benefit both parties and obviate a long, drawn-out dispute where potentially no party wins at the end of the day. The rights which are the subject of the dispute may lapse before finalization of the dispute. The costs of running the matter through the entire process up to the Constitutional Court could run into millions of rands.

One must bear in mind furthermore that an appeal must be based on the merits of the matter. The appellant will have to demonstrate that the decision taken by the administrative authority was wrong in law or unlawful. For example, if the holder of a platinum mining right wishes to appeal against the decision to grant a chrome mining right to a third party over the same piece of land, the appeal will not necessarily be granted merely because the right was granted to the chrome right company. The appellant will have to demonstrate that in taking the decision to grant the right under section 23 of the MPRDA, the Minister erred in concluding that the chrome right company fulfilled all of the requirements of section 23(1) of the MPRDA. The appellant would have to demonstrate that one of the elements of section 23(1) was not satisfied. For example, the platinum right company may argue as appellant that the mining of chrome would not be optimal because the chrome is situated in the same ore body as the platinum and chrome cannot be mined optimally on its own.

Otherwise the appellant may wish to argue that the chrome right holder cannot mine in a healthy and safe manner thus contravening the provisions of section 23(1) of the MPRDA because of the existence of the platinum operation, or that mining for chrome in addition to the platinum will result in unacceptable pollution and degradation to the environment, This once again does not satisfy the requirements of section 23 of the MPRDA. The platinum right company could not successfully bring an appeal merely because the mining of chrome on the same property would be an irritation to the platinum right company. Similarly, if a landowner wishes to appeal against the grant of a right on his property, the landowner would have to argue that the holder, whether it be a prospecting right or mining right, did not satisfy the requirements of section 17(1) or 23(1) of the MPRDA respectively. Thus, the landowner would have to argue for example that the holder would cause unacceptable degradation to the environment or could not mine in a healthy and safe manner or does not have the financial competence to execute the work programme properly.

In the final analysis, whatever choice a company takes when faced with an unfavourable MPRDA decision, it pays to be fully informed about the appeal process, aware of one's rights and willing to consider all options at one's disposal.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.