HOW NOT TO QUEUE: JUDICIAL SCRUTINY OF THE MPRDA’S QUEUING SYSTEM – AN ANALYSIS OF Aquila Steel (South Africa) Limited v Minister of Mineral Resources (72248/15) [2016] ZAGPPHC 1071 AND LEGISLATIVE CHANGES TO THE QUEUING SYSTEM

Abstract

The social rules of standing and waiting in a queue do not require explanation. When queuing at the post office, supermarket, or the theatre entrance, it is common knowledge that someone trying to enter the queue at any place but the rear end will cause, to say the least, an unfriendly reaction. Leaving the queue without good reason and without discussing this with the person behind one, may very well lead to losing one’s place in the queue. There are nuances, of course, informed by other important social norms or common decency, such as allowing leniency to queuing decorum for the infirm or disabled; or to be reasonable in allowing someone back into the queue when he/she had to leave for a good reason and with the promise of return, for example, to fetch an ID document accidentally left in the car. Adherence to these rules and norms is an expression of the deeply democratic principle of “ordinality” – something going more commonly by the statement “first-come; first-served”. Very simply, with limited exceptions, the person that is first in the queue must be served first.
The “first-come; first-served” principle is not only a social rule of queuing. The notion that priority must be given according to the time of arrival is a manifestation of distributive and procedural justice, and is also “one of the most primitive canons of property jurisprudence”. In South African mining law, the “first-come; first-served” principle is associated with the notion that overlapping applications for a licence to conduct extractive-related activities, must be processed in order of receipt.

In the mining context, the application of rules related to queuing and the “first-come; first-served” principle is, of course, more complex in a social setting. The reason for this stems from the different, and at times conflicting, interests that must be taken into account. While a simple application of the “first-come; first-served” principle may benefit individual queuers, the government, for example, may be interested in granting rights to entities that have the best financial and technical skills to exploit a mineral deposit optimally. The government may also be interested in granting rights to entities that are best able to advance the objectives of transformation and equitable access to mineral resources.
The decision in Aquila Steel (South Africa) Limited v Minister of Mineral Resources ((72248/15) [2016] ZAGPPHC 1071) presents a striking illustration of the importance of rules related to queuing in the South African mining industry. This illustration is even more vivid, taking into account legislative changes to the Mineral and Petroleum Resources Development Act 28 of 2002 that were pending at the time of the judgment and that has subsequently taken effect. The judgment and legislative developments, furthermore, illustrate the interrelationship between the “first-come; first-served” principle and the notion of “exclusivity” as understood in the mining context.
This case note discusses all aspects of the Aquila Steel judgment, but hones in on its implications for the queuing system in the South African mining context and, in particular, the relationship between the “first-come; first-served” principle and the notion of exclusivity.