Public officials' decisions aren't always flawless when applying the Mineral and Petroleum Resources Development Act, No 28 of 2002 (MPRDA), and there are often situations where the Minister of Mineral Resources makes an incorrect decision. In these circumstances, a person is not without any legal remedies. It is possible to bring a court application to set aside the incorrect decision, and refer the matter back to the minister for reconsideration.

As a more expedient alternative to referring a matter back to the minister, it became common to ask the court to take the decision directly, and grant the application. The court is asked to step into the shoes of the minister and make the decision itself. This is known as "substitutionary relief".

The recent decision of the Supreme Court of Appeal in the case of Pan African Mineral Development Company (Pty) Ltd and others v Aquila Steel (S Africa) (Pty) Ltd ((179/2017) [2017] ZASCA 165) may, however, put an end to substitutionary relief when it comes to the grant of applications for prospecting and mining rights.

The Court's general power to grant substitutionary relief

Any state decision must be lawful, reasonable, and procedurally fair. If not a court may be approached to "review" the infringing action in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).   

Courts are rightly hesitant to grant substitutionary relief, being careful not to overstep its role and perform acts that fall into the realm the state. Generally, there are four situations where a court will be prepared to grant substitutionary relief without referring the matter back for reconsideration, namely when:

• the end result is a forgone conclusion; 
• the court is as well qualified as the original authority to make the decision; 
• any further delay will cause unjustifiable prejudice; or
• the original decision maker has exhibited bias or incompetence.

The re-examination of substitutionary relief for certain decision in terms of the MPRDA

It became common to ask for substitutionary relief when challenging a decision on the grant of prospecting or mining rights. Without substitutionary relief, the court sets aside the incorrect decision, and then refers the matter back to the minister for fresh determination. This increases the time that it takes to resolve the matter and be granted the application. 

It has been argued that a court is entitled to grant substitutionary relief and grant a prospecting or mining right because the minister is compelled to grant these applications if they meet the set requirements. If the application "ticks all the boxes", then the result is a foregone conclusion because the minister must grant the application, and the court is as well placed as the minister to determine if the application is compliant.    

The Supreme Court of Appeal's recent decision challenges this argument. Here there were two overlapping applications. Aquila Steel brought a High Court application to set aside both the minister's decision to accept Ziza's prospecting application and the decision to grant Ziza a prospecting right.

The High Court accepted the argument that Ziza's application was defective, and that Aquila Steel's application was the sole application that could be considered and granted. The High Court granted substitutionary relief:

• setting aside the minister's decisions regarding the various applications; and
• substituting the minister's decision with the court's decision to grant Aquila Steel a mining right, on terms to be decided by the minister within 3 months.

On appeal, this decision to grant of substitutionary relief was criticised and it was held that the court didn't have the power to grant substitutionary relief in respect of the decision to grant Aquila Steel a mining right for two reasons.

First, the minister's power to grant a mining right, and the minister's power to impose conditions on the mining right, are inextricably linked. It is impossible to separate these two decisions — a grant of the mining right without considering what conditions should be imposed is an invalid exercise of power. The High Court, however, attempted to separate these decisions when it left the imposition of any conditions up to the minister. This meant that the High Court's order was misconceived and susceptible to attack on this basis.

Secondly, the information in the mining right application was 7 years old, and possibly outdated. This meant that the grant of the mining right was not a foregone conclusion.

The end of substitutionary relief 

The court's argument in respect of substitutionary relief for the grant of a mining right would apply equally to the grant of a prospecting right.

The Supreme Court of Appeal has held that the decision to grant a right in terms of the MPRDA is inextricably linked to the conditions that the minister may impose on the right. A court can't make a decision to grant the right, and then order the minister to impose conditions as the minister deems fit.

A person would be hard pressed to think of a set of facts where it could be confidently argued that the conditions that should be imposed on a prospecting or mining right is a foregone conclusion, and that the court is as well placed as the minister to impose a set of conditions.

It may well be that the Aquila Steel case has put an end to the grant of substitutionary relief when it comes to the grant of prospecting and mining rights in terms of the MPRDA. If not, the Aquila Steel case has drastically limited the cases where the granting of this relief by a court would be appropriate.

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