court findings 31 march 2010

Its an interesting read, if you are that way inclined and if there are any legal eagles amongst us, they may be able to pass better comment.

After spending ages going throught these findings, I have cut and pasted the section below that outlines where this, presumably, judge's, opinion lies.

I guess the final outcome will be known in the course of time.

Here is the link to the full document

http://www.saflii.org/za/cases/ZASCA/2010/50.html

[28] Finally, the court a quo considered that even if there was 'some or other fatal defect' in the procedure leading up to the making of the challenged decision, the present is one of those cases where a court, in its discretion, ought to decline to set aside an invalid administrative act. The court set out its reasons for that view as follows:

'49.1 The applicants' main and emotive argument was that it represents the community and that the individual members of the community stand to benefit from a grant of the rights to it. I am far from convinced that the position of individual members will be much different whether the exploitation of the minerals is done by Genorah as supported by Mr Mphalele or by the first applicant as supported by Mr Maphanga and Mr Mhlungu. Individual members are prejudiced by this litigation, in that the actual mining and development are delayed.

49.2 The applicants rely on section 104 of the Act. The application of the first applicant was an ordinary section 16 application until 9 March 2007 when somebody alerted Mr Shapiro to the provisions of section 104. That was long after the rights in question had already been granted to Genorah. This whole application negates the rights of applicants for the rights whose applications were submitted and accepted between the application of Genorah and that of the first applicant.

49.3 Rights have been granted to Genorah over five farms and a large area. If the grant in respect of the two farms or one of them is set aside it will no doubt affect the manner of mining and may affect the viability of a project.

49.4 In my view there is a public interest element therein that there must be finality in this particular case.'


[29] I can find no fault with this reasoning and no argument was advanced as to why this court should interfere with the exercise of its discretion by the court a quo. The appeal must accordingly fail. In view of this conclusion, it becomes unnecessary to consider the remaining issues listed above.