The first applicant, Mining Forum of South Africa, was appointed by the Bapo-Ba-Mogale Traditional Council to represent community interests regarding compliance with Social and Labour Plans submitted by mines operating on tribal land. The second applicant was the Mining Forum's president. The fifth, sixth and seventh respondents (collectively Lonmin) held mining rights and had submitted a Social and Labour Plan for October 2013 to September 2018. Following community complaints, the Department of Mineral Resources conducted an audit in August 2017 which revealed Lonmin's failure to meet targets in Human Resources Development and Local Economic Development programmes. On 28 November 2017, the Department issued a section 93 notice directing Lonmin to suspend mining activities and remedy the concerns. After representations, the Acting Chief Director withdrew the section 93 notice on 1 December 2017 and Lonmin submitted a revised action plan on 26 January 2018 which was approved by the Department. The applicants sought declaratory orders that the Minister failed to act against Lonmin for non-compliance, that the conduct was unlawful and inconsistent with section 24(b)(iii) of the Constitution, an order directing suspension of Lonmin's mining rights pending compliance, and an interdict restraining disposal of mining rights to Sibanye-Stillwater.
Application dismissed with costs, including costs of two counsel. No order as to costs against the intervening applicants who were admitted as amici curiae.
Where an administrative action as defined in PAJA has been taken, applicants must follow the judicial review procedure prescribed by PAJA and cannot bypass it by seeking declaratory relief or relying directly on constitutional provisions or common law. The principle of constitutional subsidiarity requires that once legislation has been enacted to give effect to a constitutional right, litigants must rely on that legislation and cannot directly invoke the constitutional provision. Courts must exercise judicial deference to the executive in matters requiring specialized expertise and policy decisions, and should not interfere with administrative processes where proper statutory procedures have been followed. An applicant for an interdict must establish all the required elements including prima facie right, irreparable harm, balance of convenience, and absence of alternative remedy.
The court noted that suspending Lonmin's mining permit would not benefit the community as it would incapacitate Lonmin from generating income needed to fulfill its Social and Labour Plan obligations. The court observed that the transaction between Lonmin and Sibanye-Stillwater was an all-share purchase with no bearing on the Social and Labour Plan, and that mining rights cannot be transferred without the Minister's written consent under section 11 of the MPRDA. The court remarked on the contradictory nature of the relief sought - requesting that Lonmin's operations be suspended while simultaneously expecting compliance with obligations requiring operational income. The court also noted concerns about the second applicant's potential ulterior personal motives based on previous rejected proposals to Lonmin.
This case clarifies important principles regarding the relationship between PAJA, the Constitution, and common law in administrative law matters. It confirms that where administrative action is taken under PAJA's remit, there is no alternative pathway to review through common law or direct reliance on the Constitution. The judgment reinforces the doctrine of constitutional subsidiarity - that once legislation exists to give effect to a constitutional right, litigants must rely on the legislation rather than directly invoking the constitutional right. The case also emphasizes the importance of judicial deference to executive functions and expertise in matters of policy implementation, particularly in the context of mining regulation and Social and Labour Plan monitoring. It demonstrates the courts' reluctance to interfere with ongoing administrative processes where proper procedures have been followed, and underscores that interim relief should not be granted where it would effectively usurp the role of a review court or unduly trespass upon the executive's terrain before final determination on review.