Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and Others

The litigation arose from a dispute over competing prospecting and mining rights under South African mineral law. BHP Billiton Energy Coal SA Ltd held an unused old order mining right and was deemed, under the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), to have applied for a prospecting right. Its application was refused by the Department of Mineral Resources in September 2005. BHP obtained an interim interdict from the North Gauteng High Court preventing the State respondents from granting prospecting rights to third parties, pending the initiation of review proceedings by 25 January 2006. BHP issued review proceedings on 25 January 2006 and served them by hand on the State Attorney, who had confirmed authority to accept service. The review succeeded in October 2006, with the refusal set aside and prospecting rights granted to BHP. Despite the interdict, the State granted overlapping prospecting rights to Finishing Touch 163 (Pty) Ltd in September 2006. Years later, BHP sought urgent interdictory relief against Finishing Touch. Finishing Touch opposed, contending that the original interim interdict had lapsed because the review proceedings were not properly initiated and served by the deadline.

The appeal was dismissed with costs, including the costs of two counsel.

The judgment is significant for clarifying the procedural meaning of 'initiation' of application proceedings in South African civil procedure, especially where compliance with time-bound court orders is required. It affirms that initiation generally requires service on affected parties, but also confirms the validity of service on an attorney of record under Uniform Rule 4(1)(aA). The case is important in administrative and mineral law disputes involving urgent interdicts and review proceedings under the MPRDA.