The right to appeal against mining decisions

Section 96 of the Minerals and Petroleum Resources Development Act 28 of 2002 (MPRDA) provides that any person who is aggrieved by an administrative decision taken under the MPRDA may appeal to the Minister of Minerals if the decision has been taken by the Director-General or a designated agency. However uncertainty has arisen because the Minister has delegated her power to take certain decisions in terms of the MPRDA to other officials in the department. When the officials take these decisions they are said to represent the Minister and as such the decision is notionally the decision of the Minister. The MPRDA does not provide for any appeal against a decision of the Minister as she is the highest decision making authority under the Act. If the decision by the delegatee, in this particular case the Deputy-Director, is the decision of the Minister it would be both superfluous and procedurally unfair for the Minister to sit in judgment of, what amounts to, her own decision. However, the court made it clear that when the Minister wholly delegates such a power, the delegatee takes the decision in his own right, exercises his own discretion and as such does not represent the Minister (the delegator). Thus the court held that when an official takes a decision in terms of a power delegated to him by the Minister a right of appeal to the Minister against the decision, in terms of Section 96 of the MPRDA, still exists. This decision is likely to be taken on appeal to the Constitutional Court. Cullinans & Associates MPRDA