The role of ministerial discretionary powers in the granting of rights to minerals

Abstract

In South Africa all mineral law matters are governed by the Mineral and Petroleum Resources Development Act 28 of 2002 (hereafter MPRDA). The MPRDA was enacted to, inter alia, enforce equitable access to the nation's mineral and petroleum resources and advance the social and economic welfare of all South Africans. However, these objectives are undermined by the excessive ministerial discretion afforded to the Minister of Mineral Resources (hereafter the Minister) by the MPRDA, particularly during the process regulating the processing and granting of prospecting and mining rights. Section 9 is the most prominent example of a provision granting broad discretionary powers to the Minister. Section 9 makes provision for a “first in, first assessed” – system in order to regulate the order in which applications should be considered. However, the section does not make provision for all circumstances and entitles the Minister to exercise his discretion without providing adequate statutory guidance to the Minister. It is argued that the absence of statutory guidance does not necessarily render the provisions of section 9 unconstitutional as adequate guidance can be identified from the context in which the right was given. In exercising his discretion the onus is upon the Minister himself to ensure that he identifies and applies the necessary considerations so as to ensure that the exercise of his discretion adheres to the Constitutional requirements of lawfulness, reasonableness and procedural fairness