The Mineral and Petroleum Resources Development Act, No. 28 of 2002 (MPRDA) allows interested parties to apply to the Minister of Resources and Energy for a prospecting right, which would entitle the holder the exclusive right to explore a defined area to determine whether mineral deposits exist and whether mining these deposits would be desirable. This process is governed by sections 16 and 17 of the MPRDA.
Section 16 regulates the application and acceptance stage of the process, while section 17 regulates the granting of the right by the Minister. Section 16(2) states that the Regional Manager must not accept an application for a prospecting right if: (i) another person already holds a prospecting right, mining right, mining permit or retention permit for the same mineral and land, or (ii) if a prior application for such a right has been accepted and remains pending. This provision enshrines the principle of exclusivity and creates a procedural filter to prevent overlapping or competing rights.
Section 16(5) provides that the Regional Manager must, upon receipt of the information required in section 16(4)(a) and (b), forward the application to the Minister for his consideration. It follows that an application should only be forwarded by the Regional Manager to the Minister if it has been accepted in accordance with section 16(2).
Section 17 empowers the Minister to grant a prospecting right within 30 days of receiving the application from the Regional Manager, provided the applicant satisfies certain substantive criteria such as financial and technical capability to conduct the proposed prospecting operation optimally, environmental compliance and adherence to health and safety legislation.
However, section 17 does not require the Minister to verify whether an application has been lawfully accepted in accordance with section 16(2), allowing the possibility that the Minister could grant a prospecting right based on an application that should never have been accepted in the first place.
The disjunction in the process between the acceptance of an application for a prospecting right and the granting thereof creates several defects, rendering the internal administrative process incoherent.
Firstly, the omission of the section 16(2) prohibitions from section 17 undermines the aforesaid principle of exclusivity. If section 17 is read and interpreted in isolation, the Minister could grant rights that overlap with existing rights, thereby creating competing entitlements over the same mineral resource. When considering the MPRDA in totality, this is a result that the legislature intended to avoid.
Secondly, section 17 appears to operate independently, suggesting that the Minister’s power arises merely upon receipt of the application for a prospecting right, regardless of its validity. This is problematic because an application that has been accepted contrary to section 16(2) would render the subsequent granting of such prospecting right under section 17 ultra vires.
Finally, the contradiction created by these provisions exposes a procedural vulnerability. The validity of a prospecting right depends on the Minister’s satisfaction of the substantive criteria set out in section 17, which is preceded by the lawfulness of the acceptance in terms of section 16.
Without an explicit link between these governing provisions, prospecting rights which are legally defective from inception may be granted. This creates a real risk for both applicants for prospecting rights and holders of existing rights, whose rights can be impeded by such defective prospecting rights being granted in conflict with their existing rights.
In theory, sections 16 and 17 are meant to ensure both procedural order and exclusivity over mineral-bearing land. However, in practice, the wording of these sections creates a contradiction that undermines the integrity of the prospecting right process.
