IN THE NORTH GAUTENG HIGH COURT, PRETORIA (REPUBLIC OF SOUTH AFRICA)

CASE NO: 28980/2010

In the matter between:

SISHEN IRON ORE COMPANY (PTY) LIMITED Applicant

and

MINISTER OF MINERAL RESOURCES OF THE REPUBLIC OF SOUTH AFRICA First Respondent

DIRECTOR- GENERAL OF THE DEPARTMENT OF MINERAL RESOURCES Second Respondent

DEPUTY DIRECTOR-GENERAL : MINERAL REGULATION, DEPARTMENT OF MINERAL RESOURCES Third Respondent

THE REGIONAL MANAGER, NORTHERN CAPE REGION, DEPARTMENT OF MINERAL RESOURCES Fourth Respondent

IMPERIAL CROWN TRADING 289 (PTY) LIMITED Fifth Respondent

THE OFFICER IN THE SERVICE OF THE DEPARTMENT OF MINERAL RESOURCES DESIGNATED TO PERFORM FUNCTIONS IN TERMS OF THE MINING TITLES REGISTRATION ACT, 1967 Sixth Respondent

SUPPLEMENTARY FOUNDING AFFIDAVIT

I, the undersigned:

ROBERT JOHANN BOTHA

say under oath that

DEPONENT

1 I am the Head of Legal of the applicant in this matter and am duly authorised to make this affidavit by virtue of a resolution, a copy of which is annexure FAI to the founding affidavit.

2 The facts contained herein are to the best of my knowledge true and correct and are, unless otherwise indicated, within my personal knowledge. Where I express views on a legal matter. I do so on the advice of applicants legal advisers.

3 1 The applicant is filing this supplementary founding affidavit in terms of Rule 53(4) of the Uniform Rules.

BACKGROUND

4 The background to this matter and the founding facts on which the applicant relies are fully set out in the founding application in which the applicant has sought to review:

4.1 the decision to grant ICT a prospecting right (the prospecting grant decision); and

4.2 the decision to approve ICTs environmental management plan (the EMP approval decision) as described and defined in the founding affidavit: and

4.3 the failure of the Minister or her delegate to grant SIOC's mining right application. In these supplementary founding papers the applicant, having considered the contents of the documents made available by the State Attorney on behalf of the state respondents, seeks to set aside a further decision, being the decision of the Regional Manager to accept the ICT prospecting right application.

5 An amended notice of motion to reflect that development is filed together with this supplementary founding affidavit. The amended notice of motion also seeks additional relief in the form of a declarator that SIOC is in the circumstances of AMSA having permitted its old order mining right to lapse, the only person to which a mining right or prospecting right for iron ore and aggregate can he granted as to the remaining 21,4% undivided share in those minerals on the SIOC properties.

OVERVIEW

6 At the outset I wish to draw to this Honourable Court's attention, by way of introduction, to the extraordinary anomalies in the ICT application and in the decision-making process that underlie the supplementary and additional grounds of review contained in this supplementary founding affidavit by providing an overview of the central contentions of the applicant.

7 The lCT application is fraudulent and the product of a corrupt process

7.1 ICT apparently obtained access to documents which formed part of SIOC's confidential mining right application. This is evident from the fact that the copies of the title deeds submitted as part of the ICT application were obtained from SIOC's mining right application.

7.2 ICT manipulated the copies of the title deeds obtained from SIOC's application in an attempt to disguise their origins and to give the false impression that the ICT application had been made in the prescribed manner and complied with the regulations as regards the requirement to submit certified copies of the original title deeds. ICTs application consequently involved a process of fraudulent manipulation and misrepresentation that could only have come about by ICT gaining unlawful access to SIOC's application

8 ICT's application was irregular and incomplete

8.1 The records of decision reveal that the Regional Manager could not lawfully have accepted ICT's application, and the Deputy Director-General could not have lawfully granted ICT a prospecting right.

8.1.1 The application that the Regional Manager accepted was not lodged by ICT in the prescribed manner.

8.1.2 Certain documents that are required by law to form part of every application for a prospecting right were not included in the ICT application.

8.1.3 The checklist of required documents completed by the DMR official concerned reflects that certain items were checked as present and forming part of the ICT application on 4 May 2009 when in fact they were absent. It is evident that these documents could not have then formed part of the ICT application because those documents, including the prescribed application form itself, were signed on later dates.

8.2 Moreover, the ICT application and prospecting work programme in particular are materially deficient in so many respects that the application cannot be considered to be a genuine application and the DMR should have recognised that fact.

9 The decision making process for the ICT application was irregular such that the grant criteria were not considered

9.1 The DMR officials, including the Regional Manager, who processed the ICT application unanimously recommended to the Deputy Director-General that the ICT application should be refused and their written recommendation was prepared and premised on that approach. The Deputy Director-General contrary to that reasoned recommendation decided "not to refuse" the application.

9.2 The MPRDA does not provide for a decision of non-refusal. A prospecting right application must either be granted or refused.

9.3 The decision to not refuse" the application was in consequence the product of an irregular decision-making process. The Regional Manager and officials who prepared the recommendation document did not furnish the normal supporting documentation which would indicate ICT's compliance with the statutory requirements since they prepared the recommendation document on the basis that the ICT application was obviously incompetent in law.

The relevant documentation was absent because the Regional Manager and his officials recognised that ICT could not he lawfully awarded a prospecting right in the face of SIOC's existing mining right for the same mineral on the same properties. Accordingly, when the Deputy Director-General ignored the recommendation and decided that the application was "not refused', he did so without having satisfied himself that the ICT application was in fact compliant in relation to the necessary supporting documentation because such documentation was simply not presented before him. In the absence of the usual documentation which ordinarily and necessarily underpins the recommendation, the Deputy Director-General failed to apply his mind to the available facts and the statutory grant criteria were not considered and the grant decision was accordingly irregular.

10 No application other than that of SIOC could lawfully have been accepted

10.1 It is irrational and contrary to the objects of the MPRDA and unlawful to permit a prospecting work programme and a mining work programme (or two mining work programmes) simultaneously for the same mineral on the same land. Where SIOC holds an existing right to mine 78,6% of the iron ore on the properties in question it follows that the Deputy Director-General could not lawfully grant a prospecting right (the sole purpose of which is to lead ultimately to a mining right) to any person other than SIOC in the absence of an agreement between SIOC and such other person regarding the exploitation of the minerals pursuant to a single mining work programme.

10.2 When AMSA failed to apply for the conversion of its undivided 21.4% share in the right to iron ore before the statutory deadline, SIOC became the only entity at law which could possibly be entitled to the residual 21 4% right to mine the iron ore.

10.3 The acceptance of ICT's application was therefore unlawful as no applicant except SIOC could submit an application which complied with section 16(2)(b) of the MPRDA.

10.4 The record reveals that this became evident to the Regional Manager and the officials who processed the ICT application and who therefore recommended to the Deputy Director-General that the application had to be refused.

11 The Deputy Director-General awarded ICT a right to prospect in the area of a mine which active mines the same mineral purportedly to be prospected for

11.1 The record reveals that the Deputy Director-General was aware at the time of the grant decision that ICT had applied to prospect for iron ore and manganese on properties on which SIOC already held a 78.6% undivided share in the right to mine iron ore.

11.2 The sole reason for granting a prospecting right is to permit the applicant for the right to determine the presence of the target mineral in quantities which make it economically viable to mine such mineral.

11.3 The Deputy Director-General must have known at the time of the grant decision that iron ore was present in quantities which it is economically viable to mine on the properties in question because, to his knowledge, SIOC was actively engaged in mining iron ore on such properties. The decision to grant ICT a prospecting right for iron ore is accordingly absurd, irrational and unlawful.

12 The prospecting right granted to ICT included the right to prospect on a property for which ICT never applied

The prospecting right granted to ICT includes within the defined prospecting area a farm described as the Remaining Extent of the farm Sacha 468 which farm was not the subject of the ICT application. Under the MPRDA the Deputy Director-General can only lawfully grant a prospecting right in respect of an area which has been applied for.

13. ICT failed to comply with the regulations regarding consultation with interested and affected parties

13.1 It is a requirement of section 16(4)(b) of the MPRDA that an applicant for a prospecting right consults with interested and affected parties and that proof of such consultations be submitted before a prospecting right is granted.

13.2 The record reveals that the Regional Manager reported to the Deputy Director-General that ICT had failed to comply with this requirement and that there was no proof of the requisite consultation by ICT with the relevant land owners. The Deputy Director-General nevertheless decided to grant ICT a prospecting right despite its failure to comply with this statutory requirement.

14 In addition to the case made out in my previous affidavit that the ICT application should not have been granted, the applicant now submits that the Regional Manager should never have accepted the lCT application in the first place due to material and obvious deficiencies in the application itself and a fundamental inability by ICT to comply with the statutory requirements for acceptance.

15 I will elaborate below on these and the other additional grounds of review that became apparent on receipt of the record. In what follows I set out three classes of additional review grounds namely,

15.1 The acceptance decision review grounds;

15.2 Supplementary review grounds which seek to supplement existing review grounds on new or amplified bases; and

15.3 Additional review grounds which are entirely new grounds on which the prospecting grant decision or the EMP approval decision falls to be reviewed.

16 In what follows I shall deal first with the events surrounding obtaining the records of decision; the exemption from the obligation to exhaust the internal remedy of an appeal against the acceptance decision; then with the acceptance decision review grounds and then with the supplementary review grounds following the sequence of the existing review grounds as set out in the founding affidavit. I shall deal then with the additional (new) review grounds, unless the logic of the basis of the additional review ground requires that it be inserted earlier in the sequence. Lastly, I set out the Ministers response to the applicant's appeal letter, and the amendments to the notice of motion.

RECORDS OF DECISION

17 First respondent failed to provide the records of the two decisions by 15 June 2010 as required and ultimately served the documents which purported to be the records on 28 June 2010 on the applicant's attorneys. This documentation made available and described as "the record" was however not a full and complete copy of the records in question.

18 Applicant's attorneys accordingly engaged in correspondence with the State Attorney. On 8 July 2010 applicant's attorney asked to inspect the original record at the offices of the State Attorney. A copy of that letter is annexure SA7 hereto. Mr A Vos of applicant's attorney wrote the originals of the Letters which are annexures SA4. SA7, SA8 and SA9 hereto.

Vos's confirmatory affidavit is annexure SAIO hereto. Subsequently Ms A McKenzie (‘McKenzie") of the applicant's attorneys (whose confirmatory affidavit is annexure SA5 hereto) attended at the office of the State Attorney to inspect the record During that inspection it was established that the record in the possession of the State Attorney was a copy and that the State Attorney was not in possession of the original record. Mckenzie was informed that the original record was with the DMR.

Applicant's attorneys persisted in their request to inspect the original record as appears from the letter of 15 July 2010 to the State Attorney. A copy of that letter is annexure SA8 hereto. That letter also pointed out that in view of the incomplete nature of the record the time period allowed in Rule 53(4) of the Uniform Rules within which the applicant may amend its founding application had not commenced to run. The State Attorney was requested to respond to the requests in that fetter by 23 July 2010, but failed to so respond.

19 On 28 July 2010 the applicant's attorneys addressed a further letter to the State Attorney, a copy of which is SA9 hereto. That letter pointed out that no response had been received by 23 July 2010, and recorded that unless the State Attorney indicated to the contrary within ten court days of 28 July 2010, the applicant would assume that the documents which the State Attorney had furnished in the records supplied to date constituted all the documents placed before the Minister or her authorised delegate when the prospecting grant decision and the EMP approval decision were taken. That letter also recorded that if no reply was received within the ten day period, SIOC would regard the final clay of the ten day period as the date on which, for purposes of Rule 53(4), the record was delivered. No reply was received within the ten day period, so that the period in Rule 53(4) commenced to run on expiry of such ten day period.

20 Accordingly, the applicant has now proceeded to prepare a supplementary founding affidavit pursuant to the information gleaned from the records of decision on the assumption that the records of the grant decision and of the EMP approval decision as furnished are in fact the records which the Minister contends served before the decision-makers in question. The applicant's attorneys have furthermore as required by Rule 53(3) prepared and filed those portions of the records which have been supplied as are necessary for the purposes of the review. Duplicated pages have been omitted from those records.

Furthermore the records been prepared so as to indicate those pages which are missing from and were nowhere contained in the records supplied. The re-arranged records contain the pagination of the documents as they appeared in the original copies of the records supplied and the pagination of the records as re-arranged without the duplicated pages which have been omitted.

21 I shall accordingly below supplement the existing grounds of review as appear at paginated pages 74 to 99 of the founding affidavit and set nut certain additional grounds of review. I shall in this affidavit use the same abbreviations as are used in my founding affidavit. In what follows I will for convenience refer to the re-arranged record as "the record"

22 As is evident from the correspondence referred to above, the respondents have elected not to follow the procedures set out in Rule 53 regarding the furnishing of the record. The applicant did not and does not object to the respondents failure to do so. Its concern is that it should be provided with a true and complete copy of the documents which were before the relevant decision-makers so that the review application can proceed with due expedition. It is for that reason that SA9 was sent to the State Attorney. As set out in annexure SA5 hereto McKenzie continues to liase with the State Attorney but has yet to inspect the original record

EXEMPTION FROM FAILURE TO EXHAUST INTERNAL APPEAL AGAINST THE ACCEPTANCE DECISION

23 In terms of section 7(2)(c) of PAJA this Court may, in exceptional circumstances, exempt the applicant from an obligation to exhaust any internal remedy if the Court deems it in the interests of justice.

24 In this affidavit the applicant has supplemented its grounds of review and amended the notice of motion to include a challenge to the Regional Manager's decision to accept the ICT prospecting right application. The various grounds on which that acceptance decision stands to be reviewed and set aside are set out below. Insofar as may be necessary, the applicant hereby applies for an exemption from the requirement that the appeal provisions in section 96 of the MPRDA first be exhausted before approaching this Court for relief in relation to the acceptance decision. Applicant applies for such exemption on the grounds set out below.

25 The issues which the second respondent would have to consider in any appeal under section 96 are complex and are inextricably bound up with the substantial legal questions which this Court will in any event be called upon to consider and determine in this matter. It is not appropriate that second respondent should decide upon complex legal issues. That is pre eminently the function of this Court.
26 On the facts which must become common cause in this application, the acceptance of a prospecting right application where there is an existing mining right in respect of the same mineral and land was clearly invalid and was so imposed on the basis of material misdirections of law.

27 Since the acceptance of the ICT prospecting right application, the grant to ICT of a prospecting right and the failure to decide on the applicant's application for a mining right form an integral part of the res gestae which this Court is required to consider, it would be an unnecessary duplication of time, effort and money on the part of applicant and on the part of the second respondent to entertain, separately from these proceedings, an appeal against the acceptance decision

28 It is entirely conceivable that the first respondent will properly in the course of these proceedings concede that the fourth respondent's acceptance of the ICT application and third respondent's grant of a prospecting right to ICT were erroneous, in which case, the appeal against the acceptance decision, which is simply an earlier step iii the statutorily Iad down process required to obtain the grant of a prospecting right, would be rendered entirely unnecessary.

29 A number of the material facts on which the applicant relies in the grounds on which it seeks to review the acceptance decision were not known to the applicant until the records of decision were made available to it. The records were only made available to SIOC by the State Attorney after the review proceedings had been launched and long after the expiry of the 30 day period after the acceptance decision became known to the applicant and which is the period within which an appeal as envisaged in regulation 74(1) read with section 96 is required to be lodged. Accordingly, a number of the material facts on which the review of the acceptance decision is based were not known to the applicant before the expiry of the period within which an appeal against that decision had to be lodged.

30 The applicant was therefore not in a position to raise those grounds on appeal at all and could not have appealed on the basis of those factual grounds. In this regard, the records produced by the State Attorney:

30.1 included a copy of ICT's application for a prospecting right from which it became clear to SIOC that such application had not been made in the prescribed manner.

30.2 disclose the fact that the Acting Regional Manager nevertheless decided on 15 May 2009 that the requirements of the MPRDA had been met, as appears from the record of decision relating to the acceptance decision (record pages 81 to 82, paragraphs 3(a)(ii) and 6(a)).

30.3 reveal that the Regional Manager tater adopted a contrary position on 16 October 2009 when he signed the recommendation to the Deputy Director-General (as appears from page 110 of the record) which stated that there was "an existing old order right for the same mineral and properties issued over the area applied for" (as appears from page 110 of the record) and for that reason recommended that the ICT application should be refused. The evidence that the Regional Manager contradicted the earlier recordal of the factual position made at acceptance stage (namely that the requirement that no other person hold a right for the same mineral and land had been satisfied) was not evidence of which the applicant could possibly have been aware as that fact only became known to the applicant following receipt of the records.

31 Moreover, the fact that the record of the acceptance decision reflects that the Regional Manager was under the impression that ICT had applied for diamonds (as set out below under the fourth ground of review of the acceptance decision), is a fact which only became known to the applicant following receipt by it of the records.

32 Similarly, the fact that the record of the acceptance decision reflects that the Regional Manager's acceptance tailed to refer to the Remaining Extent of Portion 4 of Sacha which was one of the properties ICT had applied for (as set out below under the fifth ground of review of the acceptance decision), is a fact which only became known to the applicant following receipt by it of the records.

33 As is set out below, the Regional Manager nevertheless accepted ICT's prospecting right application despite the fact that other persons held rights to the same minerals on the prospecting area applied for. This appears from his signature approving the recommendation on the Record of Decision of the acceptance decision (at page 82 of the record).

34 In the circumstances, the applicant submits, it should be exempted from the obligation that it appeal the acceptance decision in terms of section 96 of the MPRDA as the circumstances should be regarded as exceptional circumstances and that it would be in the interests of justice to so exempt the applicant as envisaged in terms of section 7(2)(c) of PAJA.

GROUNDS OF REVIEW OF THE ACCEPTANCE DECISION

35 Applicant submits that the decision of the Regional Manager under section
16(2) of the MPRDA to accept the ICT prospecting right application ("the acceptance decision") falls to be reviewed on the following grounds.

First ground of review of the acceptance decision: The acceptance decision was precluded by s16(2(b) of the MPRDA

36 In terms of section 16(3) read with section 16(2)(b), the Regional Manager must refuse to accept a prospecting right application where another person holds a mining right for the same mineral and land.

37 The Regional Manager was aware of the requirements of section 16(2) (as appears from paragraph 3 on page 82 of the record).

38 The Regional Manager was aware (or should have been aware) that ICI had applied for a prospecting right on two properties, namely the farms Simondium 308 and Constantia 309, over which other persons already held rights to the same minerals for which ICT had applied to prospect. (This appears from paragraph 1 on pages 148 -149 of the record). On this basis alone the Regional Manager was precluded from accepting the ICT application.

39 The Regional Manager was furthermore aware that ICT had applied for a prospecting right on properties over which SIOC already held an old order mining right for iron ore, albeit as to a 78,6% undivided share thereof. (This appears from paragraph 2 of the Record of Decision of the acceptance of the ICT prospecting right application (at pages 81 - 82 of the record) and from paragraph 2 of the Record of Decision of the acceptance of SIOC's mining right application (at pages 695 696 of the record).

40 on 15 May 2009 the Regional Manager nevertheless accepted ICT's prospecting right application despite the fact that other persons held rights to the same minerals on the prospecting area applied for. This appears from his signature approving the recommendation on the Record of Decision of the acceptance decision (at page 82 of the record).

41 I submit that the Regional Manager, by accepting the ICT prospecting right application, materially misinterpreted section 1 6(2)(b). The recommendation later submitted to the Deputy Director-General in the Record of Decision of the prospecting right grant reflects a recommendation that the ICT prospecting right application be refused because "There is an existing old order right for the same mineral and properties issued over the area applied for" (at paragraphs 2.4, 4.1(a), and 5.1, record pages 109 -110 and the proposed refusal letter at page 112).

The Regional Manager himself signed that refusal recommendation (record page 111) thereby recognising the very factual basis upon which he should earlier have refused to accept the ICT prospecting application as required by section 16(2)(b).

42 It is noteworthy that in the recommendation document submitted to the Deputy Director-General, both the Director: Licensing and Legal Compliance and the Chief Director: Mineral Regulation reached the conclusion, correctly I submit, that ICT's prospecting right application had to be refused due to the pre-existence of SIOC's old order mining right relating to a 78,6% share in the rights to iron ore. This appears from their respective signatures approving the refusal recommendation (record page
111).

43 The Regional Manager was aware, or should have been aware, that SIOC also held a mining right as to 100% of iron ore on the surrounding properties as is depicted in shaded orange on the plan which is annexure SAI6 hereto.

44 The Regional Manager was correct in making the refusal recommendation which he did, but the basis on which he made that recommendation, namely that there was an existing old order right for the same mineral over the area applied for by ICT, is also a ground on which he was obliged to refuse to accept the ICT application because it included in the area applied for:

(a) the farms Simondium 308 and Constantia 309 over which other persons already held rights for the same mineral: and

(b) the virtually co-extensive overlap between the ICT application properties and the SIOC properties over which SIOC already held a mining right.

45 The decision of the Regional Manager to accept ICT's prospecting right application accordingly falls to be set aside as envisaged in:

45.1 section 6(2)(b) of PAJA. in that a mandatory and material condition prescribed by the empowering provision was not complied with:

45.2 section G(2)(a)(i) of PAJA, in that the administrator who took it was not authorised to do so by the empowering provision:
45.3 section 6(2)(d) of PAJA, in that the decision was materially influenced by an error of law; alternatively section 6(2)(i) of PAJA, in (hat the decision was materially influenced by a material error of fact, namely that no other person held a mining right for the same mineral and land;

45.4 section 6(2)(e)(iii) of PAJA, because the relevant considerations that other persons held rights as envisaged in s16(2)(b) were not considered; and

45.5 section 6(2)(h) in that the decision was so unreasonable that no reasonable person could have taken the acceptance decision.

Second ground of review of the acceptance decision: The decision to accept the ICT prospecting right application was precluded because the application was not lodged in the prescribed manner

46 In terms of s16(2)(a) and 16(3) read with s16(1)(b), the Regional Manager must refuse to accept a prospecting right application where the application has not been lodged in the manner prescribed by the regulations.

47 The Regional Manager ought to have declined to accept the ICT application by reason of its failure to comply with the requirement that it be lodged in the prescribed manner and ought to have notified ICT of that fact as envisaged in section 16(3). The additional ways in which the application manifestly failed to comply with the regulations are set out below.

48 The checklist of documents required to be submitted for a prospecting right application is purportedly signed off on 4 May 2009 (on page 80 of the record). That checklist indicates in item 1, which is not checked as present, that the prescribed application form was absent on 4 May 2009. This is in itself is fatal to the contention that a full and complete application was submitted by ICT on that day. Insofar as the purported signing off of the checklist is a representation that a full and complete application was submitted by ICT in respect of the other documents itemized and checked therein as having been submitted on 4 May 2009, that representation is patently false.

This is so because the ICT application contains no less than six documents which bear signatures which are dated after 4 May 2009 (record pages 6. 9-14 (plans), 40. 53, 72 and 247) and which accordingly cannot have been included in the ICT application on 4 May 2009 which is the date on which the checklist indicates they were received. These documents are fully dealt with below in the supplementation of the ninth ground of review.

49 In terms of regulation 5(1)(b) a prospecting right application must be accompanied by documentary proof that the applicant has obtained the necessary authority to make the application in a representative capacity on behalf of the company. The prescribed application for prospecting right form requires a "copy of resolution, if acting in a representative capacity", see Form B, accompanying document J (at record page 6).

49.1 The ICT prospecting right application is signed in a representative capacity, yet the record reflects that there was no accompanying document which proves that IC F passed a resolution authorising the signatory, one A. Luhlabo, to make the application on behalf of the company. Added to that is the fact that in Part F (on record page 5) of the ICT application it is stated that the authorised representative is a certain "Mabelindile Luhiabo", whereas the signature on record page 6 is clearly by certain "A Luhlabo' and not by M. Luhlabo'.

49.2 Accordingly, the ICT application was manifestly incomplete and defective in relation to the requirement that it contain documentary proof of a company resolution that reflects that the applicant has the necessary authority to make the application in his representative capacity. It follows that the Regional Manager ought to have refused to accept the ICT prospecting right application as it was not made in the prescribed manner.

50 In terms of regulation 5(1)(l) and the required accompanying document D of Form B (at record page 6), a prospecting right application must contain a certified copy or copies of the title deeds in respect of the land to which the application relates.

50.1 The purported copy of Deed of Transfer I 3280/2001 which appears in the record as part of the ICT application is self evidently incomplete as it includes only typed pages 1, 26, 27, 27 (duplicated), 24, 22, 21,16, 15, 14. 9, 8 and 7 thereof being twelve typed pages with no endorsement pages (record pages 16 - 27).

By way of comparison, the full and complete deed appears in SIOC's mining right application and consists of 38 typed pages (record pages 492 to 531) and 6 pages of endorsements (record  pages 532 - 537). For purposes of clarification I attach a comparative table showing in the second column the properties which were the subject of the ICT application ("the ICT application properties"). That table is annexure SA12 hereto. The table reflects in the fourth column those properties for which title deeds were included in the application lodged by ICT. 1 he table further reflects in the second column the relevant properties over which SIOC holds a converted mining right and in the fifth column the properties which make up the prospecting area over which ICT has been granted a prospecting right (‘the ICT grant properties").

50.2 As reflected in SAI2 the incomplete copy of the title deed lodged by ICT does not include all the properties which were the subject of the ICT application. In fact it includes complete references only to the Remaining Extent of Portions 3 and 4 of Gamagara (record pages 18 and 19), and the Remaining Extent of Portion 1 Sishen (record pages 26 - 27) and an incomplete reference to Remaining Extent of Portion 2 of Sacha (record page 22), but does not include any one of the other relevant properties applied for.

50.3 Moreover, the ICT application included three further properties. namely the farm Simondium, the farm Constantia and the Remaining Extent of Portion 4 of Sacha, none of which is held by virtue of Deed of Transfer T3280/2001, and in respect of ICT did not provide copies (certified or otherwise) of the title deeds to the land as required by the regulations.

50.4 Accordingly, the ICT application was manifestly incomplete and defective in relation to the requirement that certified copies of the relevant title deeds are required to be lodged.

51 In terms of regulation 5(1)(g) and the required accompanying document B of Form B (at record page 6), a prospecting right application must contain a prospecting work programme contemplated in regulation 7. Regulations 7(1)(b), (c), (d) and (j) require respectively that a prospecting work programme must contain the plan contemplated in regulation 2(2), the registered description of the land, an indication of the minerals to be prospected for, and documentary proof of an applicant's technical and financial ability.

51.1 For the reasons set out in paragraphs 79 to 83 of the founding affidavit the plans at pages 9 to 14 of the record do not comply with regulation 2(2) thus rendering the prospecting work programme noncompliant with regulation 7(1)(b). In addition, these plans are dated either 8 or 9 May and could thus not have been attached to the application as lodged on 4 May 2009 as items 2. 3 and/or 4 of the completed checklist on page 80 of the record misrepresents was the case

51.2 "Putt C: Description of Land or Area" of the ICT prospecting work programme (on page 30 of the record) does not give the registered description of the land as required by regulation, but simply refers vaguely to "Various Farms". This renders the prospecting work programme non-compliant with regulation 7(1)(c).

51.3 The minerals to be prospected for are stated in part D of the ICT prospecting work programme (on page 30 of the record) to be manganese and iron ore. The prospecting work programme goes on (at the third paragraph on page 32 of the record) to state that the programme is designed to establish other possible mineralization such as uranium and tiger's eye (neither of which is the subject of the ICT application according to the prescribed application form at record page 5) and that "Should any different mineral commodity be identified during prospecting, then (lie intention will be to run a simultaneous prospecting programme." The same paragraph (at page 32 of the record) goes on to state that: "It must be noted that the primary mineral commodity to be investigated is the Iron ore with Manganese as the bi-product".

These references to prospecting for minerals other than manganese and iron ore in a prospecting right application stated to be for the latter two minerals is inconsistent and confusing and is not compliant with the requirements of regulation 7(1)(d).

51 .4 Reference to technical and financial ability appears in the ICT prospecting work programme at page 39 of the record, which in turn refers to "annexure 2: Technical and Financial abilities" which appears to be a reference to pages 41 - 70 of the record. I submit that such documentary proof as was furnished by ICT is wholly inadequate, thus rendering the prospecting work programme non-compliant with the regulations as regards applying in the prescribed manner as required by regulation 7(1)j). In that regard
I refer to my submissions made more fully below as to why such proof is inadequate, particularly with reference to the separate requirements of regulations 5(1)(h), (I) and (j).

52 Regulations 5(1)(h), (I) and j) and 7(1)(i) and (j) and accompanying document C of Form B (at record page 6) require a prospecting right application to be accompanied by details and documentary proof of the applicant's technical ability and financial resources.

52.1 The prospecting work programme reveals that Mr E Nkosi was appointed by ICT as overseeing contractor I consulting engineer (at record page 43). An examination of Mr Nkosi's curriculum vitae which was attached in support of the prospecting work programme reveals that his experience is in gold and diamonds, not in iron ore or manganese (record pages 47 52). What is noteworthy in that regard is that it appears that the ICT application initially related to diamonds and not to iron ore or manganese.

This supports the allegation I made in that regard in paragraphs 27 and 43 of my founding affidavit (at paginated pages 28 and 36) read with the confirmatory affidavit of Marais (at paginated pages 254 - 255). This fact is moreover supported by the Regional Manager's record of his acceptance decision which also refers to an application by ICT to prospect for diamonds (paragraph 1 at record page 81). Since the ICT application reflects that Mr Nkosi does not have experience in regard to prospecting for manganese or iron ore, ICT has failed to prove its technical ability in regard to the ICT application.

52.2 1 refer in this regard to Dr Lickfolds critique of Mr Nkosi's qualifications, as well as her analysis of the gross underestimation of the costs of the proposed prospecting programme, arid I refer to her supplementary supporting affidavit, annexure SA 1 hereto.

52.3 I also refer in this regard to what I say below in supplementation of the fourth ground of review of the prospecting grant decision.

Third ground of review of the acceptance decision: The acceptance decision was precluded by s9(1)(b) of the MPRDA

53 In terms of s9(1)(b) of the MPRDA, if the Regional Manager receives more than one application in respect of the same mineral and land, applications received on different dates must be dealt with in order of receipt.

54 From pages 98 and 690 of the record, being the Regional Manager's acceptance letters in respect of the ICT prospecting right application and the SIOC mining right application respectively, it appears that the Regional Manager was under the belief that the ICT application and the SIOC application were lodged on the same day and that accordingly section 9(1)(a) of the MPRDA applied to them,

55 In paragraph 39 of the founding affidavit (at paginated page 34) I pointed out that the ICT application appears to have been lodged after 4 May 2009. That is further substantiated by the fact that the signature on the ICT prospecting work programme was dated 5 May 2009 (see page 40 of the record), notwithstanding that the ICT application was supposedly lodged the day before that on 4 May 2009.

56 Since the SlOC application was lodged on 4 May 2009 prior to the lodgment on some later date of the ICT application, but without detraction from what I have said in the sixth ground of review of the prospecting grant decision in paragraph 123 of my founding affidavit (at paginated pages 86 to 90), even if s9 is to be interpreted to apply among applications for different classes of right, the ICT application could not be "dealt with" by being accepted since the SIOC application had been lodged on a date prior to the ICT application.

57 The acceptance decision accordingly falls to be set aside in accordance with:

57.1 section 6(2)(b) of PAJA, in that a mandatory and material condition prescribed by s9(1)(b) of the MPRDA was not complied with;

57.2 section 6(2)(a) of PAJA, in that (he Regional Manager who took t was not authorised to do so by the empowering provision;

57.3 section 6(2)(d) and/or section 6(2)(i) of PAJA in that the decision was materially influenced by an error of law, alternatively by an error of fact. namely the date of Iodgment of the ICT application; and

57.4 section 6(2)(e)(iii) of PAJA, in that the relevant consideration that the ICT application was lodged on a day after the lodgment of the SIOC application, was riot considered.

Fourth ground of review of the acceptance decision: The acceptance decision related to diamonds

58 In paragraph 1 of the record of the acceptance decision at page 81 of the record, the Regional Manager stated that ICT "applied for a prospecting right to prospect for diamonds".

59 However, from page 5 of the record, it appears that ICT had in fact applied for manganese and iron ore.

60 The acceptance decision accordingly falls to be set aside in accordance with:

60.1 section 6(2)(e)(iii) of PAJA because the relevant consideration that ICT had applied for manganese and iron ore was not considered;

60,2 section 6(2)(f')(ii)(cc) of PAJA because the acceptance decision was not rationally connected to the information before the Regional Manager in regard to the mineral that was the subject of the ICT application;

60.3 section 6(2)(i) of PAJA because the acceptance decision was unlawful in that it was based on a material mistake of fact namely that the ICT application related to diamonds whereas it actually related to manganese and iron ore.

Fifth ground of review of the acceptance decision: The acceptance decision did not relate to Remaining Extent of Portion 4 Sacha

61 In paragraph 1 of the record of the acceptance decision (at page 81 of the record), the Regional Manager recorded the properties which were the subject of the ICT application, but did not refer to the Remaining Extent of Portion 4 Sacha as being one of those properties.

62 From the list of farms in the ICT application itself it appears that the application did include the Remaining Extent of Portion 4 Sacha (pages 1 and 2 of the record).

63 I point out that although the ICT application appears to refer to "Remaining Extent" of Portion 4 Sacha, there is no such property. The property which does exist is described in the Deeds Registry simply as "Portion 4" of Sacha, and not as a Remaining Extent of Portion 4 of Sacha, as appears from a Windeed Search Report a copy of which is annexure SA1 hereto. I shall accordingly in the rest of this affidavit refer to this property either as "Remaining Extent of Portion 4 of Sacha" (using the ICT description) or as ‘Portion 4 of Sacha" (using the correct Deeds Registry description).

64 The acceptance decision accordingly falls to be set aside in accordance with:

64.1 section 6(2)(e)(ii) of PAJA because the relevant consideration that ICT's application included the Remaining Extent of Portion 4 Sacha was not considered

64.2 section 6(2)(f)(ii)(cc) of PAJA because the acceptance decision was not rationally connected to the information before the Regional Manager in regard to the properties to which the application related;

64.3 section 6(2)(i) of PAJA because the acceptance decision was unlawful in that it was based on a material mistake of fact namely that the ICT application did not include the Remaining Extent of Portion 4 Sacha.

SUPPLEMENTARY GROUNDS OF REVIEW

Supplementary to the first ground of review: the prospecting right grant decision was precluded by s16(2(b) of the MPRDA

65 When he made the grant decision the Deputy Director-General was aware (or should have been aware) of the fact that ICT had applied for a prospecting right on:

65.1 the farms Simondium 308 and Constantia 309 over which other persons already held rights to the same mineral; and

65.2 properties which were virtually co-extensive with the SIOC properties on which SIOC already held an existing mining right for iron ore.

These facts meant that the Deputy Director-General ought to have refused to grant the ICT application.

66 By virtue of the facts set out above in the first and second grounds of review of the acceptance decision, the Regional Manager ought to have refused to accept the ICT application because it failed to fulfil the requirements of section 16(2) both in regard to (a) other persons holding rights for the same mineral and land: and (b) the application not having been made in the prescribed manner.

67 In fact, instead of refusing to accept the ICT application the Regional Manager proceeded to erroneously advise the Deputy Director-General in the recommendation document that "The application has complied with all the application requirements of section 16(2 i.e. (he application was lodged in the prescribed manner" (This appears from paragraph 4.1, at record page 109). The Regional Manager further confirmed in the recommendation document (at paragraph 4.1(a), record page 110) that: "... the granting criteria has been entirely satisfied, accept (sic) the following which then form the basis of refusal, (a) There is an existing old order right for the same mineral and properties issued over the area applied for. (Annexure E)."

The document marked ‘SE' (at record page 146) is a power of attorney to sign the SIOC converted mining right, thus evidencing that SIOC held an existing old order right for the same mineral and properties. Alternatively the document at pages 119 - 120 of the record is the document which should be Annexure E, as that is the internal DMR document which reflects existing rights over the prospecting area applied for by ICT. This document reflects that SIOC holds a converted mining right under reference NC3O/5/1/2/2/O106MRC (at record page 119).

68 There are several important manuscript annotations on the recommendation document (on pages 110 and 111 of the record), all of which are apparently those of the Deputy Director-General, having regard to the signatures and dates in manuscript beside these various annotations.

69 Immediately beneath the Regional Manager's statement in the recommendation that ". there is an existing old order light for the same mineral and properties issued over the area applied for" appears the manuscript annotation: "This is not (true) correct" (see record page 11 0). This is followed on the final page of the document (record page 111) by the following note by the Deputy Director-General made against his signature:

"There are no existing rights to the remaining 21% undivided share of mineral rights. Kumba is not the holder of the relevant old order right".

70 The Deputy Director-General wrote the words "Not Refused' above his signature (record page 111) and apparently decided to grant ICT a prospecting right. It is not apparent from the recommendation document itself, including the manuscript notes, that the Deputy Director-General decided to grant lCT a prospecting right, but this does appear to be so from the fact that he signed a power of attorney the same day on 30 November 2009 in which he authorised the Regional Manager to sign a prospecting right in favour of ICT to prospect for manganese ore (but not for iron ore) on the ICT properties applied for but not including the Remaining Extent of Portions 2, 3 and 4 of the farm Sacha 468. This appears from page 151 of the record.

71 It is apparent from his manuscript notes on the recommendation document that the Deputy Director-General adopted the attitude that he was empowered to grant a prospecting right to ICT because either:

71.1 in fact there were no existing prospecting or mining rights on the properties for which ICT applied for a prospecting right including also the farms Simondium 308 and Constantia 309); or

71 2 despite the fact that there were existing prospecting or mining rights on such properties, he was nevertheless empowered to grant a prospecting right to ICT by virtue of the fact that SIOC held only a 78,6% undivided share of the rights to iron ore on (he SIOC properties notwithstanding that because SIOC held such 78,6% share SIOC had the sole right to be granted the remaining 2 1,4% share. SIOC is and was at all material times the only person which can comply with the requirements in sections 16(2)(b) and 22(2)(b) of the MPRDA that no other person' holds a prospecting right or mining right for the same mineral and land.

I am advised that the Deputy Director-General was materially influenced by his erroneous interpretation of section 16(2)(b). Legal argument will be addressed on this issue at the hearing.

72 I submit that the Deputy Director-General was mistaken as to the fact that no other person held a right to the same mineral on the same land and was in either case precluded from granting a prospecting right to ICT. The facts recorded in the recommendation that Id had lodged the application in the prescribed manner and had complied with the requirements of section 16(2) were incorrect, yet the Deputy Director-General in taking the decision relied on the Regional Manager's erroneous factual report that apart from the one mentioned in paragraph 41(a) of the recommendation document all the other granting criteria had been satisfied.

73 I accordingly reiterate the grounds under PAJA on which I previously relied under the first ground of review in the founding affidavit that the grant decision falls to he set aside

74 Finally, it is irrational, entirely unworkable and contrary to the objects of the MPRDA to permit a situation where there are two mining programmes for the same mineral which exist simultaneously on the same land. Yet this situation is the logical conclusion which follows the grant by the Deputy Director-General of a prospecting right to ICT for iron ore in respect of the SIOC properties because there is simply no point in prospecting without the intention that minerals can thereby be identified which it is economically feasible to mine, It is similarly irrational, unworkable and contrary to the objects of the MPRDA to permit a prospecting work programme and a mining work programme for the same mineral on the same land. It follows that the Deputy Director-General ought not to have granted a prospecting right at all in the lace of SIOC's existing right to mine 78,6% of the iron ore and in the absence of an agreement as between SIOC and ICT regarding the exploitation of the minerals held in undivided shares pursuant to a single mining work programme.

75 Accordingly, the grant decision also falls to be set aside under the first ground of review in the founding affidavit and as envisaged under section 6(2)(f)(ii)(bb) and (cc) of PAJA in that the action of granting the prospecting right itself is not rationally connected to the purpose of the empowering provision or to the information before the decision maker.

Supplementation of Second ground of review: the prospecting right grant decision was precluded by s17(1)(e) road with s16(1)(b) of the MPRDA

76 Also relevant to the grant decision are the additional ways in which the ICT application was not lodged in the prescribed manner and thus failed to comply with the regulations which I have detailed above under the head of the second ground of review of the acceptance decision. I repeat those factual allegations and submissions under this review ground.
77 The ICT prospecting right application is, from a mining geology point of view, not consistent with a serious intention to conduct genuine prospecting operations in an area which has been a mining area for many years and where the extent of the iron ore resource purportedly to be prospected for is well known and publicly documented. On the contrary, the ICT application bears all the hallmarks of an application which was hurriedly put together and in consequence is inconsistent and irregular. It fails to show access to financial resources and fails to show that ICT has the technical ability to conduct the proposed prospecting operation optimally. I say this for the reasons set out in the affidavits of Dr Licklold being annexures FA3I to the founding affidavit and SA1 hereto.

78 These allegations I submit supplement the grounds on which the grant decision falls to be set aside under PAJA as set out under the second ground of review in my founding affidavit.

Additional ground of review (2 bis): mandatory and material procedure in S 10(1) not complied with

79 Section 10 and regulation 3 of the MPRDA require the Regional Manager to give notice of a prospecting right application.

80 The section 10 notice for the ICT application (which is at page 97 of the record):

80.1 fails to make reference to Portion 4 Sacha which property was included in the ICT application (as appears from page 1 of the record read with the description of the land on page 4 of the record); and

80.2 fails to make reference to Remaining Extent of Sacha which property forms part of the area for which the ICT prospecting right was granted, notwithstanding that this property was never applied for. This appears from clause 1 of the ICT prospecting right (on page 253 of the record)

81 The prospecting right grant decision accordingly falls to be set aside in terms of section 6(2)(b) of PAJA in that the mandatory and material procedure prescribed by slO(1) was not complied with insofar as Portion 4 Sacha and/or Remaining Extent of Sacha are concerned.

Supplementation of Third ground of review, the Minister was not authorised to make a partial grant

82 First, the ICT application was for the right to prospect for 100% of the iron ore and manganese ore on its subject properties. (This appears from part E on page 5 of the record). The ICT application makes no reference to an application for only a 21 .4% undivided share in iron ore. Accordingly, as would normally be the position, the ICT application must be construed as constituting an application to prospect for 100% of the iron ore on the ICT application properties in the same way as it was so construed to relate to 100% of manganese ore.

83 The Deputy Director-General (as the Ministers delegate) is empowered to grant or refuse applications. Although it may be permissible for an applicant to amend its application, the Deputy Director-General is not entitled, when taking a decision on whether to grant or refuse a prospecting right, to unilaterally amend the ambit of the prospecting right application. In order to secure the position that the right applied for matched the undivided share in the right to iron ore which was not already held by SIOC. The Deputy Director-General construed the application as one which sought only the right to prospect for the 21,4% undivided share in iron ore. There is no evidence of ICT having ever amended its application in this respect. It follows that the Deputy Director-General, by unilaterally reducing the ambit of the ICT application so as to exclude the application by ICT for the 78,6% share of the right to iron ore which was already held by SIOC, acted outside of his statutory powers.

84 Secondly, the ICT application included in the prospecting area applied for the Remaining Extent of Portion 4 Sacha but did not include the Remaining Extent of Sacha 1 his appears from pages 1 arid 2 of the record read with the description of the land on page 4 of the record (and is reflected in the comparative table of properties which is annexure SAI2 hereto).

85 The grant record of decision makes no reference to the property Sacha at all, let alone to Portion 4 Sacha or to Remaining Extent of Sacha. (This appears from the record at paragraphs 2 1 and 2.3 on pages 108 - 109).

86 Similarly, the power of attorney signed by the Deputy Director-General contemporaneously with the grant decision on 30 November 2009 makes no reference at all to Sacha (at record page 151). Neither does the letter from the Deputy Director-General to ICT notifying it of the grant decision make any reference to Sacha (at record page 148).

87 Similarly, clause 1 of the executed ICT prospecting right does not include Portion 4 Sacha for which ICT had applied (as appears on record page 253).

88 The executed ICT prospecting right does refer to Remaining Extent Sacha (which was not applied for) and to Remaining Extent of Portion 2 and Remaining Extent of Portion 3 of Sacha (which are not mentioned either in the record of decision or in the power of attorney).

89 I submit that these supplementary grounds add further support for the grounds on which I previously relied under the third ground of review in the founding affidavit that the grant decision falls to be sot aside under PAJA.

Additional Ground of review (3 bis): Granting criteria not considered

90 The record reflects that the recommendation document relating to the ICT application which was put before the Deputy Director-General by the Regional Manager was signed by the Director. Licensing and L.egal Compliance and by the Chief Director Mineral Regulation. All three of those officials presumably agreed with the recommendation contained in the document which was that the ICT application be refused. This appears from the grant record of decision (at record pages 107 - 111 specifically paragraph 1.1 on page 108. paragraph 5.1 on page 110). as well as from the summary (at paragraph 3, record page 107) and the signatures in the "Refused' column on page 111, as well as from the draft refusal letter
attached to the recommendation (at record page 112).

91 As a consequence of the fact that the recommendation which was put up was that the ICT application be infused, the officials who made the recommendation to the Deputy Director-General did not, as would normally be done in the case of a recommendation to grant an application, traverse in their recommendation the facts relating to:

91.1 the granting requirements in ss17(1)(a) to (e);

91.2 the absence of the refusal requirements in s17(2)(b); and

91.3 the presence of the granting requirement in s17(4).

These facts and considerations are usually canvassed in such a document which recommends the grant of a right by attaching the reports rrom the relevant Directorates (namely, Mine Economics, Environment, Health and Safety, Empowerment, and so on) which indicate that the granting requirements have been satisfied. By way of example of a typical grant recommendation (without annexures) I attach hereto annexure SA2.

92 In contrast to this comprehensive canvassing of the factors relevant to the grant of a prospecting right, the recommendation document in the case of the ICT application contains no more than the bald, unsubstantiated, and unmotivated statement (in paragraph 4.1, record page 110) that: The Regional Manager confirms that the granting criteria has (sic) been entirely satisfied, accept (sic) in the following which then form the basis of refusal...".

93 Accordingly, there was no recommendation that the ICT application be granted and there was quite simply no information before the Deputy Director-General in regard to how the granting requirements in ss17(1)(a) to (e), the absence of the refusal requirements in s17(2)(b), and the granting requirements in s17(4), were satisfied. Indeed although the Deputy Director-General indicated (at record page 111) that the application was "Not Refused', there is nothing in the recommendation document as annotated to indicate that the application was in fact "granted'. Legal argument will he addressed to the Court on the inadequacy of this procedure, which is tantamount to the lower officials, who are not the Minister's delegates, rather than the Deputy Director-General who is the Minister's delegate, deciding the application. The procedure adopted has the effect that the Deputy Director-General simply abrogated his powers and duties in regard to considering the criteria (or the grant of the ICT application to the lower officials, and in particular to the Regional Manager.

94 It is furthermore clear that the Deputy Director-General did not have any of the relevant documents or reports before him. This appears From page 110 of the record where in manuscript the Deputy Director-General had asked: "How many rights have we granted to this company?", whereas from page 74 of the record, which clearly was not before the Deputy Director-General, it appeared that ICT had no existing rights. There is simply no indication in the Record of Decision that the Deputy Director-General had the ICT application before him or indeed that he had before him any reports of the relevant Directorates, indicating that the granting criteria had been met. Only one of the many relevant criteria may have been considered, namely the requirement in s17(2)(b)(iii) that the grant of the right be refused where it will result in concentration of the mineral resources under the control of ICT as indicated by the manuscript query (record page 110) cited above and the manuscript note that "There are no records that show that this company is a holder of oilier rights granted in terms of the Act' ( record page 111),

95 The inadequacy and irregularity of the Deputy Director-General's decision- making process in respect of the ICT application is brought into sharp relief when it is compared to the standard process for how the DMR grants or refuses a right. This process is set out in an affidavit deposed to by the then acting Deputy Director-General. Mr Rapoo, ri the recent case of Bengwenyama Minerals (Ply) I Id & Others v Genorah Resources (Pty) Ltd (formerly Tropical Paradise 427 (Ply) I Id) & Others (Case no. 39808/2007). A copy of the affidavit of Mr Rapoo is annexure SA6 hereto.

96 Mr Rapoo goes into some detail regarding the contents and material facts that should be contained in the compiled submission that would be placed before the Deputy Director-General before he can grant or refuse a prospecting right. The starting point is that the reports that are annexed to the application are "attached to the submission for my perusal and further evaluation prior to granting or refusing' (at para 14 of Rapoo's affidavit).

97 Mr Rapoo explains the details of the document compiled by the DMR's junior officials that contains the recommendations for the Deputy Director Generals decision-making process. The material aspects of such an application which must be considered by the Deputy Director-General include

97.1
97.2 the type of right sought:
the name of the applicant (with supporting constitutional documents),
97.3 the date of the application (to determine whether there are competing rights);
97.4 the minerals and properties applied for (to determine overlaps);
97.5 the date of the acceptance of the application and the reason for such acceptance:
97.6 proof of consultation process in a prescribed manner,
97.7 compliance criteria (technical, financial and regulatory);
97.8 environmental management:
97.9 recommendation by the Regional Manager:
97.10 approval or disapproval of the recommendation by Chief Directors;
97.11 the decision to grant or refuse; and
97.12 power of attorney authorising the Regional Manager to execute the standard right accordingly (para 23).

98 Mr Rapoo also enumerates the documents that form part of a standard annexure to the submission from the junior DMR officials:

98.1 A letter of acceptance of the application by the Regional Manager;
98.2 A report from the Sub Directorate : Mine Economics regarding technical and financial evaluations;
98.3 The standard prospecting right considered for granting: and
98.4 A report from the Sub Directorate : Mine Environment Management regarding the ability to manage and rehabilitate the environment (para 25).
99 In the current application it is apparent from the Deputy Director-General's manuscript comments, as quoted above, that many material aspects of the ICT application before the Deputy Director-General were simply not considered In addition, the documents that should have formed part of the annexures to the submission (such as reports by Mine Economics, by the Health and Safety Inspectorate, by Mine Environmental Management. and by Empowerment Officials) were apparently not included and as a result, the grant decision was made in the absence of the decision- maker's consideration of such documents. Because the junior officials had in fact recommended the refusal of ICTs application, they had not processed that application in the manner in which they usually do when recommending to the Deputy Director-General that he grant the application. The mandatory requirements of a prospecting right application were simply never evaluated by the decision-maker.

100 The prospecting right grant decision accordingly falls to be set aside in terms of:

100.1 section 6(2)(a)(i) of PAJA, in that the administrator who look the decision was not authorised to do so by the empowering provision; and
100.2 section 6(2)(e)(iii) of PAJA. in that the relevant granting requirements were not considered.
Supplementation of Fourth ground of review: the prospecting right grant decision was precluded by s17(1)(a) to (e) read with s17(2)(a) of the MPRDA
101 The Record of Decision has revealed the following in regard to the granting criteria.
101.1 The granting criteria were not considered at all by the Deputy Director-General, as set out above in the previous additional ground of review (3bis).
101.2 In relation to the requirements in ssl7(1)(a) and (b), namely that an applicant must prove that it had access to financial resources and has the technical ability to conduct the proposed prospecting optimally in accordance with the prospecting work programme and that the estimated expenditure is compatible with the proposed prospecting operation, I refer to the above second ground of review of the acceptance decision, where I have indicated that the ICT application does not comply with the requirements in regard to proof of technical ability, and with the requirements for a prospecting work programme and repeat the allegations made under that ground. In this regard I refer to the following.

101.3 In regard to the inadequacy of the prospecting work programme, I refer to the defects which I have identified in the second ground of review relating to the acceptance decision, and to the comments in the affidavits of Dr Lickfold. The ICT prospecting right application is, from a mining geology point of view, not consistent with a serious intention to conduct genuine prospecting operations. On the contrary, the application bears all the hallmarks of an application which was hurriedly put together and in consequence is inconsistent and irregular The ICT prospecting work programme is also inadequate and incomplete in that it fails to establish both the financial and technical ability on the part of ICT to conduct the proposed prospecting operation optimally. I say this for the reasons set out in the affidavits of Dr Lickfold being annexure FA31 to the founding affidavit and particularly annexure SA1 hereto in which Dr Lickfold analyses the ICT application including the prospecting work programme.

101.3.1 I furthermore refer to page 39 of the record where in relation to Part F ("Technical and Financial Ability"), ICT refers to a non-existent annexure 2 and states that it will make use of unidentified mineral consultants, and speculates that the unidentified mineral consultant ‘might" appoint a sub-contractor called Touchstone. It also refers vaguely to a resolution by Adistra 11 CC to provide finance, and to Mr M Luhlabo financing the prospecting activities, but without in any way indicating that either Adistra 11 CC ("Adistra") or Mr Luhlaho has the financial ability to do so. Reference is vaguely made to annexure 2: ‘Financial ability from Standard Bank', but there are no supporting documents from Standard Bank and there is no annexure 2. None of this satisfies the detailed requirements of regulation 7(1)j which requires that a prospecting work programme must contain:

"(i) details with documentary proof of -
‘the applicant's technical ability or access thereto to conduct the proposed prospecting operation

and

(ii) a budget and documentary proof of the applicant's financial ability or access thereto, which may include but is not limited to the following:

(aa) Loan agreement  s entered into for the proposed prospecting operation;

(bb) resolution by a company to provide for the finances required for the proposed prospecting operation; and

(cc) any other mechanism or scheme providing for (he necessary finances for the proposed prospecting operations".

101.3.2 Regulations 5(1)(h), (i) and (j) require that an application for a prospecting right must contain:
‘(h) documentary proof of the applicant's technical ability or access thereto to -

(i) conduct the proposed prospecting operation in accordance with the prospecting work programme
(iii) to mitigate, manage and rehabilitate relevant environmental impacts;
(iii comply with relevant provisions of the Mine Health and Safely Act, 1996 (Act No. 29 of 1996,);

(i) a description of how the applicants technical ability will be provided by making use of in-house expertise, contractors and consultants on the proposed prospecting operation;

(j) a budget and documentary proof of the applicant's financial ability or access thereto, which may include but is not limited to the following:

(i) Loan agreements entered into for (he proposed prospecting operation:
(ii) a resolution by a company to provide for the finances required for the proposed prospecting operation,' and

(iii) any other mechanism or scheme providing for the necessary finances for the proposed prospecting operation".

ICT's application does not comply with these requirements. At pages 42 and 43 of the record reference is made to the appointment of Mr Nkosi "...for the first phases of the prospecting activities, but are silent on subsequent phases. Page 43 of the record omits reference to the farms Simondium and to Constantia.

There is no documentary proof that ICT has the technical ability or that Mr Nkosi has the technical ability to comply with the provisions of the Mine Health and Safety Act as required by regulation 5(1)(h)(iii). The inadequacy of Mr Nkosi's experience in relation to prospecting for iron ore and manganese (as opposed to diamonds) is commented on by Dr Lickfold in annexure SA1 hereto. Page 53 of the record is a resolution by Adistra, and also refers only to "the last phase'. However, Adistra's own financial ability i.e. that it has funds to make available, is not proved. The Stanlib investment summary and statement (at record pages 65 to 67) are meaningless in that the investments could at any time be withdrawn, and in that nothing is stated about what existing liabilities Adistra might have. It might indeed have already committed these funds for other purposes. The Touchstone document (at at record) pages 68 to 70) clearly relates to diamonds as is clear from the fact that the only formations referred to are "Alluvials" and "Kimberlites" both of which relate to diamonds and not iron ore or manganese. I point out moreover that the Touchstone document is not addressed to any one in particular, so that it cannot be linked to ICT or to ICT's application and is merely a generic document regarding the appointment of Touchstone as a possible contractor to mine for diamonds.

101.4 In relation to the requirement in s17(1)(c), namely that the prospecting must not result in unacceptable pollution, ecological degradation or damage to the environment, I would draw to the attention of the Court the following.

101.4.1 I refer to the eleventh ground of review relating to the EMP approval decision, which applies equally here.

101.4.2 The Regional Manager notified ICT by way of letter dated 16 March 2010 that he had approved its EMP (record pages 152-153) The financial guarantee from Standard Bank (record pages 164 to 166) submitted in support of the EMP is a guarantee for mining and not for prospecting. Although this guarantee was apparently dated 21 September 2009 in Durban, the manuscript signature (at record page 165) in contradiction refers to a signature in Kimberley on 22 September 2009, which seems strange, particularly having regard to the relatively low amount of R51 209.00 being the amount guaranteed.

1014.3 As mentioned below, all even numbered pages of the environmental management plan (from record page 207 onwards) are missing, so that it was impossible for the Deputy Director-General to have satisfied himself that the requirement in s17(1)(c) had been satisfied in that the prospecting would not result in unacceptable pollution, ecological degradation or damage to the environment.

101.4 4 In paragraphs B 2.8 and B 2 9 of the EMP on page 211 of the record it is stated that:

"Part of the study area forms pail of the mining area of the Sishen Iron Ore Mine, where mining activities are currently actively taking place. As was mentioned in Section B 2.8. a part of the proposed prospecting right forms part of the mining area of the Sishen Iron Ore Mine where mining activities are currently actively taking place. This may have a number of health and safety, as well as legal implications, which should be very carefully considered, negotiated and managed by all the relevant parties."

These implications, which relate not only to health and safety but also to the environment, should have been considered as part of the environmental management plan, rather than vaguely being left to subsequent consideration, negotiation and management. In the absence thereof, s17(1)(c) was clearly not satisfied.

101.5 As to whether ICT has the ability to comply with the provisions of the Mine Health and Safety Act as required by the grant criterion in s17(1)(d) I point out that the report of the Principal Inspector of Mines (at pages 102 - 104 of the record) completely fails to take account of the fact that existing mining operations are being conducted on the prospecting area proposed by ICT. The letter from the Regional Manager calling on the Principal Inspector of Mines to consider the ICT application (record page 101) fails to draw to his attention to the fact that the prospecting proposal overlaps with existing mining operations and there is nothing in the content of the pro-forma response by the Principal Inspector of Mines (record pages 103 - 104) which indicates that he appreciated the inevitable clash which must arise between two sets of health and safety procedures in the same area or that he considered this issue. He certainly did not report to the Regional Manager on this issue and it follows that the Deputy Director- General too failed to consider the difficulties which will certainly arise and which will compromise SIOCs ability to comply with health and safety statutory requirements. I refer the honourable Court in this regard to my previous averments in paragraphs 64.6 - and 64.7 of my founding affidavit (at paginated page 49) and to paragraphs 54 to 60 of Dr Lickfold's affidavit FA3I (at paginated pages 299 - 302).

101.6 In regard to the grant criterion in s17(i)(e) that an applicant must not be in contravention of any provision of the MPRDA. I refer to and repeat my detailed allegations in this regard set out above under the second ground of review of the acceptance decision.

Supplementation of Fifth ground of review: the prospecting right grant decision is in conflict with s17(2,)(a) read with s17(1)('e of the MPRDA

102 The recommendation of the Regional Manager in the grant record reported that "Section 16(4) was not complied with in that proof of consultation with landowners was not submitted (Top paragraph, record page 110).

103 This supports my evidence in founding that ICT did not consult with SIOC as a land owner and affected party as required by s 16(4).

104 The copies of notices from the Regional Manager to the Commissioner of Restitution of Land Rights, the Principal Inspector of Mines, the Director: Mine Economics and the Deputy Director: Environmental Management  (which appear at pages 100, 101, 105 and 106 of the record) reveal that reference was not made either to Portion 4 Sacha or to the Remaining Extent of Sacha.

105 Similarly, both the notice sent to the Magistrate, Kuruman (record page 95) and the notice faxed to the Magistrate to be placed on the notice board (record page 97) omitted to refer to Portion 4 Sacha or to Remaining Extent of Sacha. (As stated above the former property was included in the ICT application while the latter property was not but was nevertheless included in the area for which the ICT prospecting right was granted). In this regard I refer to what I have set out above dealing with the section 10 notice as mentioned in the above additional ground of review (2 his).

106 The above I submit supports Ihe fifth ground of review.

Supplementation of Sixth ground of review: the prospecting right grant decision was based on a misinterpretation of s9(1) of the MPRDA

107 It is clear from the absence of any reference thereto in the grant record of decision (at pages 107 to 111 of the record) that the Deputy Director-General in taking the prospecting right grant decision, had no regard to the existence of SIOCs mining right application (which appears at pages 283 to 692 of the record relating to SlOCs mining right application).

108 The absence of any such reference supports the sixth ground of review which is based in part on the failure of the Deputy Director-General to weigh up and consider the existence of the SIOC mining right application when considering the ICT prospecting right application in the course of his reliance on and misinterpretation of section 9(1) of the MPRDA.

Additional ground of review (6 bis): The DDG had no evidence as to ICT being an historically disadvantaged person for purposes of s9(2) of the MPRDA

109 As mentioned in founding in the sixth ground of review, the acceptance decision referred to ICT's application and to SIOC's application being dealt with in terms of s9(1)(a) of the MPRDA. This also appears from the Regional Manager's acceptance letter to ICT (at paragraph 1, record page 98).

110 Without detraction from SIOC's submission that s9(1 )(a) is not relevant in the present circumstances, if s9(1)(a) had been applicable, s9(2) would necessarily be applicable Under s9(2) when the Minister considers applications received on the same date she must give preference to applications from historically disadvantaged persons as defined in terms of the MPRDA.

111 From the summary and recommendation documents which served before the Deputy Director-General (record at pages 107 - 111) it appears that nothing is said about ICT being an historically disadvantaged person Indeed, the record reveals that at the time of the prospecting grant decision, there was nothing before the Deputy Director-General proving that ICT was an historically disadvantaged person. The DMR checklist of documents which were purportedly lodged as part of the ICT application (record page 80, item 15) reflects that no documentary proof was submitted by ICT in the application to substantiate the bald indication made by checking the relevant box in Part B of the prescribed application form (at record page 4) that ICT was controlled by historically disadvantaged persons as envisaged in the MPRDA for purposes of section 9(2). It was only subsequently, namely on 16 March 2010 being the date of notarial execution of the prospecting right (record page 282) that ICT presented anything to the DMR about its status as an historically disadvantaged person.

112 Notwithstanding the fact that there was no proof on 30 November 2009 of ICT's status as an historically disadvantaged person, the Deputy Director- General simply seems to have assumed when he made the grant decision that ICT was an historically disadvantaged person and that it followed in terms of s9(2) that he had to give ICT's application preference over that of SIOC.

113 I point out moreover that the information regarding ICT shareholding which was belatedly supplied on 16 March 2010 some four months after the grant decision (record page 282) fails to show lCT's status as an historically disadvantaged person. Apparently no shareholder agreement was produced as that does not form part of the record.

Moreover, the letter of 16 March 2010 reflects that an entity styled ‘Pragat Investment' held 50% of the equity in ICT, yet there is no indication in the record that any enquiry was made into the BEE status of Pragat Investment.

114 The prospecting grant decision accordingly falls to be set aside in accordance with:

114.1 section 6(2)(a)(i) of PAJA in that the Deputy Director-General was not authorised by s9(2) to give ICT preference in the absence of proof that ICT was an historically disadvantaged person;

114.2 section 6(2)(b) of PAJA in that the mandatory and material procedure in s9(2) was not complied with;

114.3 section 6(2)(e)(iii) of PAJA in that the relevant consideration that ICTs status as an historically disadvantaged person was not proved was not considered;

1 14.4 section 6(2)(f)(ii)(cc) of PA.JA in that the decision was not rationally connected to the information (or lack of information) before the Deputy Director-General in regard to lCTs status as an historically disadvantaged person.

114.5 sections 6(2)(d) and/or (i) of PAJA in that the decision was materially influenced by an error of law or was unlawful as having been materially influenced by an error of fact. i.e. that ICT had proved that it was an historically disadvantaged person.

Supplementation of Seventh and Eighth grounds of review : SIOC's objection not considered; and the prospecting right grant decision contravened S 10(2) of the MPRDA

115 The Regional Manager states in paragraph 4.1 of the recommendation document (record page 110) that:

"No objections were received against the granting of the prospecting light applied for."

116 This statement is factually incorrect. SIOC lodged an objection (a copy of which appears at pages 711 - 719 of the record) with the Regional Manager on 19 June 2009 as appears from the acknowledgement of receipt on paginated page 233 (FAI7) of the applicant's founding papers.

117 From the fact that the Regional Manager stated that no objections were received it can also be inferred that the objection was never referred by the Regional Manager to the REMDEC and that the REMDEC never considered it or advised the Minister on it Certainly, there is no reference to any of this in the grant record of decision at pages 107 - 111 of the record.

118 The aforegoing supplements and supports the allegations I made in founding under the seventh and eighth grounds of review (paginated pages 90 to 93) to the effect that the grant decision falls to be set aside in that the relevant consideration that an objection had indeed been lodged, was riot considered.

Supplementation of Ninth ground of review: error of fact as to date of lodgement of ICT's prospecting right application

119 The Regional Manager states in the recommendation document that ICT applied for the prospecting right on 4 May 2009. (paragraph 2.1 of record page 108). However, the record reveals the following facts which contradict this fact.

119.1 The prospecting right application form was signed on 5 May 2009. i.e. after the alleged date of lodgement on 4 May 2009. This appears from page 6 of the record.

1 19.2 The plans which form part of the ICT application were similarly dated after the alleged date of lodgement on 4 May 2009 being dated variously four and five days later on 8 and 9 May 2009. This appears from the manuscript dates which appear together with the signature on each of the plans at pages 9 - 14 of the record.

1 19.3 The prospecting work programme which formed pail of the ICT application was signed only on 5 May 2009, i.e. the day after the alleged lodgement on 4 May 2009. This appears from page 40 of the record.

119.4 The resolution from Adistra regarding its making funds available to ICT for prospecting is similarly dated 5 May 2009. This appears from page 53 of the record.

119.5 The acknowledgment signed by A. Luhlabo that the Minister may require additional information and which formed part of the ICT application is also dated 5 May 2009. This appears from page 72 of the record.

120 These facts all support the ninth ground of review in that a material error of fact occurred in that the Deputy Director-General relied on and accepted the fact that the ICT prospecting application as prescribed had been duly lodged on 4 May 2009 and clearly show that the ICT application cannot have been lodged on that date and that insofar as certain documents may possibly have been lodged by ICT on 4 May 2009, it is clear that such documents cannot have constituted a full and complete application by ICT in the prescribed manner as required by the MPRDA and the regulations.

ADDITIONAL GROUNDS OF REVIEW

Additional Ground of review (9 bis): ICT application contains misrepresentations

121 in addition to the ninth ground of review, the following indications appear from the record that the ICT application was not a valid application in that it fraudulently misrepresented various facts to the DMR in the knowledge that such facts were false These representations were made in the application lodged in order to induce the DMR officials concerned to grant ICT a prospecting right when in fact IC I had not complied with the statutory requirements laid down for (he grant of a prospecting right.

122 All prospecting right applications must contain a certified copy or copies of the title deeds in respect of the land to which the application relates. This is so by virtue of the requirement that such an application must in terms of section 16(1)(b) of the MPRDA be made in the prescribed manner, read together with regulation 5(1)(l) and the required accompanying document D of Form B (at record page 6) which together lay down that such certified copies of the original title deeds are required.

123 The ICT application was lodged on the basis that the certified copy of the extracts of the title deed contained therein was a true copy of the original when in fact it was not. There was a deliberate misrepresentation in this regard because the copies of the deed which ICT submitted were in fact manipulated copies of the certified copy of the deed contained in the SIOC application.

124 I have already pointed out above under the second ground of review of the acceptance decision that the copy of (he relevant title deed T3280/2001 which was included in the ICT application is incomplete and is made up of extracts from the deed. It is clear from these extracts which form part of the ICT application (at record pages 16 - 27) that these pages have been copied from the copy of the title deed contained in the SIOC mining right application which was lodged with the DMR and can for that reason not be certified copies of the original as the regulations require. Included in the SIOC mining right application lodged with the DMR at its Kimberley office was a certified copy of the original title deed (as appears from pages 493 - 537 of the record). It is clear that the copies of the extracts of the title deed in the ICT application are photocopied manipulated copies of the certified copy of that deed which was in the SIOC application lodged in Kimberley. This is so by virtue of the following.

124.1 Title deed T3280/2001 is a title deed to land and as such is a document available to the public at the office of the Registrar of Deeds. ICT could therefore readily have obtained a certified copy of the deed from the Registrar. ICT would however not have been able to obtain a copy of the deed from the Registrar over the long weekend of 13 May 2009.

124.2 The copy of the title deed in SIOC's application was codified by Commissioner of Oaths l3ridget Engela (now Van der Biji) ("Engela") to be a true copy of the original.

124.3 Engela of the applicant and Mckenzie of the applicant's attorneys examined the copy of the record available at the State Attorney's offices but found that this was only a copy of the original record which McKenzie was informed is held at the DMR offices. Applicant's attorneys have since requested access to the original record as appears from a copy of their letter dated 15 July 2010 to the State Attorney, a copy of which is annexure SA8 hereto Such access has yet to be obtained. The confirmatory affidavit of McKenzie is annexure SA5 hereto. Engela, who certified the deed contained in the SIOC application, has accordingly not been able to examine the original record but has examined the copy of the record which has been furnished to the applicant and confirms that the copy of the title deed contained in the SIOC mining right application portion of the record (at pages 493 to 537 of the record) is indeed a copy of the original certified copy which she certified to be a true copy of the original and which bears her signature which she recognises. That this is a copy of the document lodged with the DMR is confirmed by the fact that the DMR rubber stamp which reads ORIGINAL" appears on the cover sheet to the document at page 492 of the record.

124.4 It is quite apparent from an examination of record that the extracts of the title deed contained in the ICT application have been fraudulent ly manipulated to obscure Engelas certification stamps by blanking them over with a piece of paper or card and then photocopying the pages. 1 his appears from a comparison of the COPY of the extracts from title deed contained in the ICT application compared with the full copy of the title deed contained in the Sl()C mining right application. In this regard I refer to each of pages 16 to 27 of the record (which contain the ICT copies) compared respectively with pages 493, 500 - 502, 507 - 509, 514 - 515,  517 and 519 - 520 of the record (which contain the SIOC copy of the title deed) On each of pages 16 to 27 of the record it is apparent that Engela's certification stamp and manuscript certification on 28 April 2009 and signature have been obscured by placing a blank card over these portions of the document before copying it.

124.5 The manipulation of these documents was very amateurish and left a trail of obvious signs as to the origins of the ICT copies of the extracts from the title deed. It is not necessary to refer to all those signs but I will address certain of the more obvious points of comparison which show conclusively that ICT relied on manipulated copies of the deed contained in the SIOC mining right application.

124.6 In particular I point out that on page 18 of the record the blanking out was only partially achieved so that the last portion of the date of Engela's manuscript certification, namely "April 2009" and her signature (immediately above that date) still appear on the ICT copy when compared with the SIOC copy at record page 501. The left bottom of page 18 contains remnants of the rubber stamps of both Engela and Jolindie Ferreira ("Ferreira"). Ferreira's stamp as a Commissioner of Oaths appeals on each page of the SIOC copy of the deed but is not signed.

124.7 Similarly, on page 19 of the record the blanking out was only partially achieved so that Engela's signature still appears on the ICT copy when compared with the SIOC copy at record page 502.

124.8 On pages 23 and 19 of the record it appears that the card used to blank out Engela's certification (see record pages 514 and 502 respectively) was held back to front so that the blank table on that card was mistakenly photocopied instead of the blank card.

124.9 On page 25 of the record in order to completely blank out the two certifications on the left of the SIOC copy of the deed (record page 517) it was necessary to blank out the lettering in the left margin ‘1' and part of the text down the left side of the document (see record page 25 which is the ICT copy).

124.10 On each page of the ICT extracts at pages 16 to 27 of the record there are lines visible (which are absent in the comparable SIOC copies) which indicate the edge of the card which appears to have been used to obscure the certification of Engela and the rubber stamp of Ferreira when photocopying the document. Many of the ICT pages reveal remnants of the rubber stamp of Ferreira.

124.11 Engela who is an admitted attorney has inspected the copy of the record produced by the State Attorney's office and confirms that the copy of the ICT application which she so inspected was an altered photocopy of extracts of the copy which she certified as a copy of the original (as appears at record pages 493 to 537). Engela's confirmatory affidavit as to the aforegoing is annexure SA3 hereto.

125 The inescapable conclusion is that after SIOC delivered its mining right application to the DMR on Thursday 30 April 2009 and over the long weekend between Thursday 30 April 2009 and the next working day which was Monday 4 May 2009 and before it finalised and lodged its application, ICT had unlawful access to SIOC's mining right application in order to effect such copying. ICT used at least part of the SIOC mining right application as a basis to prepare its own application and by so doing obtained an unlawful benefit to which it was not entitled by uttering forged documents.

126 Each of the plans included in the ICT application at pages 54 to 64 of the record is dated Saturday 2 May 2009, apparently by the software programme in which such plans were created. The fact that these plans were produced over the long weekend supports the contention that the existence of the SIOC mining right application for the undivided 21,4% share in the rights to iron ore had been "leaked" to ICT over that long weekend.

127 In short what the evidence disclosed above shows is that:

127.1 ICT was informed of the fact that on Thursday 30 April 2009 SIOC had delivered its mining right application to the office of the Regional Manager: Kimberley;

127 2 ICT then proceeded in great haste to assemble an application for a prospecting right:

127.3 In order to do so, ICT unlawfully obtained access to SIOC's application and copied portions of it, more particularly the certified copy of the relevant title deeds;

127.4 ICT sought to hide the fact that it had gained access to SIOC's application and that it had simply copied SIOC's certified copy of the title deeds by manipulating the copying process:

127.5 Despite that unlawful access and fraudulent manipulation of the copying of SIOC's certified title deeds, ICT was still unable to complete its application by 4 May 2009;

127.6 ICT therefore either delivered its application after 4 May 2009 and procured that it nevertheless be stamped as having been received on that dale or, having lodged a materially incomplete and defective application on that date then proceeded, illegitimately, to add to it. Either way, lCT's conduct remains grossly improper and. indeed, unlawful,
128 Accordingly, the prospecting right grant decision falls to be set aside in terms of:

128. 1 section G(2)(b) 01 PAJA, iii that a mandatory and material condition prescribed by the empowering provision was not complied with; and

128.2 section 6(2)(e)(iii) in that the decision was taken because of a failure to take into account the relevant consideration that a certified copy of the true title deed was not lodged, there being only copies of excerpts of the deed, and moreover that such copies as were lodged by ICT were manipulated copies improperly obtained from the SIOC mining right application.

Additional (alternative) Ground of review (9 ter): The grant decision was based on the material incorrect fact that the ICT application was lodged on a date prior to the SIOC lodgement

129 In his letter of notification to ICT of the acceptance of its prospecting right application the Regional Manager stated that the ICT application "... is competing with another application was (sic) lodged on the same day for same(sic) minerals therefore those application (sic) will be dealt with in terms of section 9(1)(a)" (at record page 98).

130 The recommendation document prepared by the Regional Manager which served before the Deputy Director General contradicted this statement by recording that the application was accepted in terms of section 9(1)(b)" (at record page 108). The difference is significant because informing the Deputy Director-General that section 9(1)(b) applied to the ICT application by necessary implication in the circumstances meant that it was received on a different (and prior) date from the date of receipt of any other application, including SIOC's application for a mining right

131 Accordingly, the Deputy Director-General took the grant decision on the understanding that there was no competing application lodged on the same date as the ICT application, whereas in fact the ICT application was not lodged on a date prior to the lodgement of the SIOC application. Indeed, I submit that the SIOC application was lodged on a date prior to the date of lodging of the ICT application, particularly having regard to the incomplete and irregular nature of the ICT application as is dealt with more fully elsewhere in this affidavit and in founding. It follows that the Deputy Director-General took the grant decision on the basis of an incorrect fact which was material to that decision, namely that the ICT application was made prior to the SIOC application, alternatively because a relevant consideration was not considered, namely that the SIOC application had been lodged on or before the date of lodgement of the ICT application.

132 Accordingly, the grant decision falls to be set aside as envisaged in sections 6(2)(i) or 6(2)(e)(iii) of PAJA.

Additional Ground of Review (10 bis): relevant considerations not considered

133 The recommendation document refers in the paragraph which describes the area under application to an "Annexure A2" as a document indicating the area under application (paragraph 2.3 of the record at page 109). The document which is identified in the record as annexure "A2' is at page 116, but is a document of a completely unrelated nature, namely a certificate by the Registrar of Companies in regard to ICT. It is apparent therefore that the true Annexure A2 did not serve before the Deputy Director-General

134 The grant decision accordingly falls to be set aside in terms of s6(2)(e)(in) of PAJA because the relevant considerations contained in the true Annexure A2 were not considered by the decision maker.

Additional Ground of Review (10 ter): inclusion of Remaining Extent of Sacha

135 Clause 1 of ICTs notarially executed prospecting right includes within the area for which a prospecting right was granted the Remaining Extent of the farm Sacha 468. This appears from the record at page 253.

136 The Remaining Extent of the farm Sacha 468 was however never part of the area which formed the subject of the ICT application. This appears from the description of the land applied for in Part D page 4 of the record read together with page 2 thereof. For the convenience of the Court the properties which formed the subject of the ICT prospecting right application are depicted on a plan annexed as SAI4 hereto which are to be compared with the properties for which ICT was granted a prospecting right which are depicted on a plan annexed hereto as SAI5. In both of these plans the farms are allocated numbers (the name of the farm being set out against such numbers at the loot of each plan). In the comparative table of properties (annexure SAI2) those numbers appear in brackets at the end of each farm description. These plans also depict the position of the farm boundaries, and certain physical features and infrastructure such as the pit area of the Sishen Mine (cross hatched in black), the proposed pit area (future operations hatched in red) and the existing and proposed dump areas as well.

137 In terms of s17 read with s16 of the MPRDA, a prospecting right can only be granted for the area which has been applied for. The fact that the decision to grant the ICT application included an area for which ICT had never applied illustrates the entirely deficient decision making process

138 The grant decision accordingly falls to be set aside as a whole in terms of s6(2)(a)(i) of PAJA, or at the very least falls to be set aside insofar as it relates to the Remaining Extent of Sacha 468, since the administrator who took the decision was not authorised to do so by the empowering provision insofar as Remaining Extent of Sacha 468 is concerned.

Additional Ground of Review (11 bis): EMP grant decision could not be taken because every second page thereof was missing

139 As already mentioned above, every second page of the environmental management plan submitted by ICT was missing (record fom page 207 onwards).

140 It was accordingly not possible for the EMP approval decision to have been taken in the absence of such even numbered pages. No bona fide decision maker could have regarded the EMP as valid and complete, yet the EMP was approved.

141 The EMP approval decision accordingly falls to be set aside in accordance with:

141.1 section 6(2)(e)(iii) of PAJA because the relevant consideration that the content of even-numbered pages of the EMP were missing, was not considered:

141.2 section 6(2)(f)(ii)(cc) of PAJA because the decision is not rationally connected to the information which was before the Regional Manager, namely that the content of the even-numbered pages of the EMP were missing.

Additional Ground of Review (11 ter): EMP approval decision could not be taken because relevant considerations were not considered

142 In paragraphs B 2.8 and B 2.9 on page 211 of the record it was stated that: "Part of the study area forms part of the mining area of the Sishen Iron Oe Mine where mining activities are currently actively taking place. As was mentioned in Section B 2.8 a part of the proposed prospecting area forms part of the mining area of the Sishen Iron Ore Mine where mining activities are currently actively taking place. This may have a number of health and safety, as well as legal implications, which should be very carefully considered, negotiated and managed by all the relevant parties."

143 I have already stated above in paragraph 101.4.4 hereof that the failure to address and consider these environmental impacts at the stage of the grant decision meant that the requirements of s17(1)(c) were not satisfied. In addition those same considerations had to be considered as part of the EMP approval decision, and not held over for subsequent consideration. negotiation and management after ICT's EMP had been approved..

144 The LMP approval decision accordingly falls to be set aside in accordance with:

144.1 section 6(2)(e)(iii) of PAJA because the relevant consideration that the prospecting area forms part of the SIOC mining area was not considered;

144.2 section 6(2)(f)(ii)(cc) of PAJA because the EMP approval decision is not rationally connected to the information that was before the Regional Manager, namely that the prospecting area forms part of the SIOC mining area and that the environmental impacts (hereof needed to be considered as part of the environmental management plan.

Supplementation of Twelfth Ground of Review: failure to decide the mining right application

145 Under the twelfth ground of review applicant seeks to review the Minister's failure to decide on SIOC's mining right application and contends inter alia that where the Minister, or her delegate, has to consider both an application for a mining right and an application for a prospecting right lodged in respect of the same mineral and land, of the decision maker is obliged to consider the mining right application (founding affidavit paragraph 129. paginated page 97).

146 The record of the decision to grant ICT a prospecting right (at pages 107 - 111) makes no reference to SIOC's mining right application despite the fact that such application had been lodged in respect of the same mineral and land.

147 It is clear from the record produced by the Minister through the State Attorney in respect of the SIOC mining right application and the absence of any decision relating thereto (record pages 283 to 719) that after the acceptance of the SIOC mining right application by the Regional Manager on 15 May 2008 (at record pages 695 to 698) and the notification to SIOC of such acceptance (record pages 699 to 701), SIOC's mining right application was simply not further processed or considered by the Minister, the Minister's delegates, or any other official of the Department of Mineral Resources.

148 Despite the fact that the notification letter informed the applicant that the DMR "must finalise your application by no later than 30 May 2010" (record pages 700 and 701), no decision has been taken on the SIOC mining right application. The fact that no decision on the applicant's mining right application has yet been taken has recently been confirmed to the applicant in writing by the Minister as is set out more fully below.

149 The record reveals that the only further steps taken in processing SIOC's application were that the Regional Manager called upon the Magistrate Kuruman to display the relevant section 10 notice (record pages 702 - 704), and called upon the relevant Municipal Manager, Commissioner on Restitution of Land Rights. Deputy Director: Environmental Management, Assistant Director: Mine Economics and Assistant Director: Social and Labour Plan (sic) for comment (record pages 705 - 709). The record does not reflect a response from either the Magistrate or any one of the other state officials each of whom was called on to supply the record of their decision by a specific date, the latest of which dates was 14 September 2009.

150 The applicant can only infer, given the complete absence of any response from all of these officials, that a halt was called to the processing of its mining right application, presumably in consequence of the grant of a prospecting right to ICT on 30 November 2009 in respect of the same mineral and land. It follows that SIOCs mining right application was not considered and that there has been a failure by the Minister, or her delegate the Director-General, to take a decision on the SIOC application which failure falls to be reviewed on the grounds set out in the twelfth ground of review.

Additional Ground of review : amendment to the power of attorney relating to the ICT grant was unauthorised

151 An additional ground or review arises from the fact that the power of attorney pursuant to the grant decision was amended without authority.

152 The grant decision was based on the recommendation document which required the Deputy Director-General to consider a prospecting right application by ICT to prospect for manganese ore and iron ore on various farms listed in that document.

153 The recommendation document omitted to refer to the farm Sacha No. 468 or any portion of that farm (record page 108). It follows that the grant decision taken by the Deputy Director-General accordingly did not apply to any part of the farm Sacha No. 468, despite the fact that the ICT application related to the Remaining Extent of Portions 2, 3 and 4 of Sacha No.468 (Part E on page 5 of the record, read with page 2 of the record).

154 The power of attorney signed by the Deputy Director-General on 30 November 2009 on the same day as and pursuant to the grant decision, authorised the Regional Manager to sign a prospecting right to prospect for manganese ore in favour of ICT in respect of various properties listed in the power of attorney (record page 151). That power of attorney omitted to refer to iron ore. It also omitted to refer to the farm Sacha No 468 or any portion of that farm

155 On 16 March 2010 more than three months later and at the time of the execution of the ICT prospecting right, the Acting Deputy Director-General purported to amend the power of attorney dated 30 November 2009 so as to include the mineral iron ore and so as to include the "Remainder of the farm Sacha 468, Remainder of portion 2 of Sacha 248 (sic) and the remainder of portion 3 of the farm Sacha 468" (record page 266 - 267).

156 I am advised that in the absence of the grant decision having applied to the farm Sacha No. 468 or any portion of that farm, it was not competent for the Acting Deputy Director-General to amend the power of attorney so as to include any portion of the farm Sacha 468. The Deputy Director- General was functus officio in relation to the grant decision and the Acting Deputy Director-General was not empowered to amend the grant decision itself so as to include any portion of Sacha all of which portions were omitted from the original decision in order to thereby effect an amendment to the power of attorney.

157 Moreover, the Acting Deputy Director-General purported on 16 March 2010 to amend the power of attorney so as to include the Remaining Extent of the farm Sacha 468 which property had never formed part of the ICT application.

158 It follows that the execution of the ICT prospecting right so as to include the "Remainder of the farm Sacha 468. Remainder of Portion 2 and the Remainder of Portion 3 of the farm Sacha 468" (record page 253) was erroneous and unauthorised.

159 I point out in this regard that the purported amendment to the power of attorney was effected on 16 March 2010 which was after the applicant had objected to the acceptance of the ICT application, the following circumstances in that regard being relevant:

159.1 SIOC had written to the Regional Manager and lodged an objection on 19 June 2009 to the ICT prospecting right application;

159.2 SIOC had repeatedly communicated with the Regional Manager and had repeatedly attempted to meet with the Deputy Director- General who refused to meet with SIOC;

159.3 Despite undertakings in November 2009 by both the Regional Manager and the Chief Director: DMR to investigate SIOC's concerns regarding the ICT application, no response was ultimately received by SIOC to these undertakings to investigate.

These facts are set out in detail in paragraphs 43-50 of the founding affidavit (paginated pages 36.40).

159.4 SIOC had on 1 March 2010, which was two weeks prior to the purported amendment to the power of attorney, already lodged an appeal against the giant of the prospecting right to ICT (founding affidavit thereof 112. paginated pages 70-71).

159.5 The conduct of the Acting Deputy Director-General in effecting an unauthorised amendment to the power of attorney in circumstances where he must have been aware of the concerns and alleged defects in the ICT application is not conduct one would expect from a public functionary discharging his statutory duty in a bona fide manner.

160 Accordingly, the ICT prospecting right falls to be set aside as envisaged in:

160.1 section 6(2)(a)(i) of PAJA, in that the administrator who took it was not authorised to do so by the empowering provision;

160.2 section 6(2)(b) of PAJA, in that a mandatory procedure prescribed by an empowering provision was not complied with;

160.3 section 6(2)(d) of PAJA, in that the decision was materially influenced by an error of law;

160.4 section 6(2)(i) of PAJA, in that the decision was unlawful because of a material error of fact, namely that the grant decision had applied to portions of the farm Sacha.

THE MINISTER'S RECENT LETTER

161 In response to SIOC's appeal letter dated 1 March 2010 (annexure FA33. paginated page 405) the applicant received on 16 August 2010 a letter from the Minister signed on the same date, a copy of which is annexure SA1 3 hereto. In that letter the Minister

161.1 stated that she had decided in terms of section 103(4)(b) of the MPRDA to uphold the grant decision of the Deputy Director General to grant a prospecting right to ICT and uphold the decision of the Regional Manager to approve ICT's EMP (paragraph 3 of the letter);

161.2 declined to revisit the decision of the Deputy Director-General in terms of section 103(4)(b) to grant a prospecting right to ICT because she "deemed it inappropriate to do so in circumstances where existing rights of other persons are affected. "(paragraph 4.1 of the letter);

161.3 indicated that she considers herself functus officio and precluded from again considering the granting of the ICT prospecting right (paragraph 4.3 of the letter); and

161.4 confirmed that no decision has been taken in respect of SIOC's application for a mining right (paragraph 5 of the letter).

EXEMPTION FROM FAILURE TO EXHAUST INTERNAL APPEAL AGAINST THE GRANT DECISION

162 I dealt in the founding affidavit (at paragraphs 115 and 116 ) with why applicant should be exempt from the obligation to pursue its internal appeals against inter alia the grant decision and the EMP approval decision. I draw the Court's attention to the fact that the Minister's recent letter (annexure SA1 3) does not decide the applicant's appeals against the decisions appealed against. As is clear from the letter the Minister has not decided the appeals in terms of section 96(1)(a) of the MPRDA. nor could she have done so because in the first instance the appeals against the grant decision and the EMP approval decision lie to the Director- General rather than to the Minister, and secondly the appeal procedure prescribed by regulation 74 has not been complied with. The Minister has in her letter confined her actions to the purported exercise of her powers under section 103(4) of the MPRDA.

163 The Minister's recent letter in itself constitutes an exceptional circumstance pursuant to which it is in the interests of justice for this Court to exempt the applicant from the obligation to exhaust its internal remedies.

EXCEPTIONAL CASE AS REGARDS RELIEF SOUGHT

164 Section 16(2)(b) of the MPRDA precludes the acceptance of an application for a prospecting right by the Regional Manager on the grounds that the applicant held a converted mining right over a portion of the proposed prospecting area, namely the SIOC properties, which formed the subject of the ICT application properties. It is not competent for a prospecting right for the same mineral to be granted over an area that is held under an existing converted mining right.

165 The ICT prospecting right has not been withdrawn by the Minister in terms of section 103(4) of the MPRDA and the Minister has in fact purported to uphold the grant decision and the EMP approval decision in her recent letter (annexure SAI3) referred to above.

166 Where the above honourable Court finds that applicant is, and was at all relevant times, the holder of a converted mining right as to a 78,6% undivided share to mine iron ore and quartzite over that part of the prospecting area made up of the ICT grant properties, then the provisions of section 16(2)(b) applied to the ICT application and the Deputy Director General had no basis to grant Fifth Respondent the right to prospect for 21,4% of iron ore and 100% of manganese on and under the ICT grant properties in terms of section 17(1) of the MPRDA. Indeed, the Regional Manager was obliged in terms of section 16(3) to notify Fifth Respondent that its application did not comply with the requirements of section 16 and the Deputy Director-General was obliged by virtue of section 17(2)(a) to refuse to grant the Filth Respondent's prospecting right application.

167 In the circumstances, it would not be appropriate for the above Honourable Court to remit the prospecting right application back to the Regional Manager, the Minister, or her delegate the Deputy Director- General for reconsideration as contemplated in section 8(1)(c)(i) of the PAJA since this is an exceptional case in which the Court should substitute, vary or correct these administrative decisions as envisaged in section 8(1)(c)(ii) of the PAJA by virtue of the following

167.1 the end result would be a foregone conclusion and it would merely be a waste of time to order the Regional Manager, the Minister or her delegate the Deputy Director General to reconsider the acceptance and the grant of the ICT application; and

167.2 the above Honourable Court is in as good a position as the Regional Manager, the Minister and the Deputy Director-General to make the decisions respectively to refuse to accept and reject and refuse to grant the ICT application; and

167.3 further delay would cause unjustifiable prejudice to the applicant;
and

167.4 the Regional Manager and the Deputy Director-General have exhibited incompetence to such a degree in processing the ICT prospecting right application that it would be unfair to require the applicant to have to again submit to the jurisdiction of the DMR and that this Honourable Court should itself make the decision to reject and refuse to accept the Fifth Respondents application for a prospecting right.

168 For all the above reasons, it is submitted that the acceptance decision of the Fourth Respondent and the grant decision of the Third Respondent should be set aside and substituted by decisions to reject and refuse the Fifth Respondent's prospecting right application for a prospecting right

AMENDMENTS TO THE NOTICE OF MOTION

169 In terms of Rule 53 applicant amends the present notice of motion by;

169.1 the substitution of prayers 1 to 6 of the existing notice of motion with the following prayers:

1 Reviewing and setting aside the decision by the First Respondent or her delegate in terms of section 17 of the Mineral and Petroleum Resources Development Act. 2002 ("the MPRDA") to grant a prospecting right to Fifth Respondent relating to iron ore as to a 21 .4% share and manganese ore as to a 100% share ("the prospecting right grant decision") in respect of the prospecting area which comprised of the properties set out in Annexure "A" ("the ICT grant properties"), all situate in the Administrative District of Kuruman, Northern Cape Province.

2. Reviewing and setting aside the decision by the Fourth Respondent in terms of section 16(2) of the MPRDA to accept the Fifth Respondent's application for a prospecting right for the minerals applied for (‘the acceptance decision") in respect of the prospecting area which is comprised of the ICT grant properties.

3 Reviewing and setting aside the decision by the First Respondent or her delegate in terms of section 39(4) of the MPRDA to approve the environmental management plan of the Fifth Respondent (‘the EMP approval decision") pursuant to the prospecting right grant decision.

4. In the event of an order being granted in terms of prayer 1 above:

4.1 Substituting the prospecting right grant decision with a decision to refuse the Filth Respondent's application for a prospecting right for iron ore and manganese ore in, on and under the ICT grant properties in terms of section 17(2)(a) of the MPRDA;
Alternatively to prayer 4.1

4 2 Directing the First Respondent or her delegate to refuse the Fifth Respondent's application for a prospecting right relating to iron ore and manganese ore in respect of the ICT grant propeities in terms of section 17(2)(a) of the MPRDA.

Alternatively to prayers 4.1 and 4.2

4.3 Directing First Respondent and her delegates to refrain from re-considering the Fifth Respondents application for a prospecting right under section 17 of the MPRDA or any fresh application for a prospecting right in respect of the same minerals on the same land.

5. In the event of an order being granted in terms of prayer 2 above, directing the Fourth Respondent to notify the Fifth Respondent that its application for a prospecting right fails to comply with the requirements of section 16 and is rejected and to return the application to Fifth Respondent in terms of section 16(3) of the MPRDA.

6 Reviewing the failure of the First Respondent or her delegate to take a decision in terms of section 23 of the MPRDA on whether to grant the mining right application made by the Applicant as to a 21,4% undivided share of the rights to iron ore and aggregate in respect of the area which is comprised of the properties set out in Annexure "B" ("the SIOC properties"), all situated in the Administrative District of Kuruman, Northern Cape Province; arid

6.1 Directing the First Respondent to take a decision in terms of section 23 of the MPRDA in relation to the Applicants mining right application within 30 days of the service of this order of court.

6.2 Declaring that

6.2.1 As the holder of a converted mining right for iron ore and quartzite as to a 78,6% share in respect of the SIOC properties the Applicant is the sole competent applicant for, alternatively the only person which can be granted, a mining right or a prospecting right for iron ore and aggregate as to the remaining 21.4% undivided share in those minerals on the SIOC properties.

6.2.2 On a proper interpretation of section 9 of the MPRDA an "application" means an application of the same class and consequently the section does not apply where applications of different classes such as an application for a prospecting right and an application for a mining right are received in the circumstances described in section 9(1)(a); and

6.2.3 Where applications for a prospecting right and a mining right are received on the same day in respect of the same mineral and land:

(i) the application for a mining right must he determined first and without reference to the application for a prospecting right.

(ii) the application for a mining right must be granted if it meets the requirements of the MPRDA and the application for a prospecting right must be refused irrespective of whether or not it complies with the requirements of the
MPRDA.

7. Setting aside the whole of the notarially executed prospecting right in favour of Fifth Respondent and any registration thereof in the Mineral and Petroleum Titles Registration Office pursuant to the prospecting right grant decision, and directing Second and/or Sixth Respondent to cancel any registration of such right."

169.2 the renumbering of the existing paragraphs 7, 8 and 9 to be numbered 8, 9 and 10
Wherefore the applicant respectfully requests that this Honourable Court grant the relief sought in the Amended which is filed with this supplementary founding affidavit

Dated: August 23 2010

Note: Transcribed from the PDF. Please check against the original here.

Click here to sign up to receive our free daily headline email newsletter