On 10 May 2009 the President appointed the new Cabinet. Furthermore he announced that "the Department of Minerals and Energy" would be split into the Department of Mining and the Department of Energy, each with a Minister. Ms Susan Shabangu was appointed as the Minister of Mining and Ms Dipuo Peters as the Minister of Energy. However the powers of these Ministers were not yet defined or transferred as required by the Constitution. This raises the question whether any action taken or decision made, prior to compliance with the Constitution, will be valid.

The functional separation of the two new departments was announced at joint sitting of the newly formed Mining and Energy portfolio committees, on 9 June 2009. Mineral policy and promotion, mineral regulation and mine and heath and safety sub-departments will fall under the Department of Mining, while the Department of Energy will deal with policy development; operations; energy resource planning and strategy and nuclear energy sub departments. The financial restructuring of the former Department of Minerals and Energy is scheduled to be completed by the end of August 2009.

The split of the Department of Minerals and Energy into the Department of Mining and the Department of Energy creates a unique situation. When a new Minister, responsible for a new department, is appointed the powers and functions of such a Minister have to be defined by the President. In this instance the powers and functions of the previous Minister of Minerals and Energy will have to be allocated between, and transferred to the Minister of Mining and the Minister of Energy respectively. In terms of the Constitution the President can transfer powers and functions from one Minister to another Minister but must do so by proclamation.

The replacement of Minister of Minerals of Energy with the Minister of Energy and the Minister of Mining has legal consequences for the mineral and petroleum industry with regard to the grant and execution of rights in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). The MPRDA defines "Minister" as the "Minister of Minerals and Energy. Only the Minister of Minerals and Energy, or a person duly authorised may grant rights in terms of the MPRDA. However this Minister no longer exists. The Constitution provides that actions by the President which have legal consequences as mentioned above must be in writing. The Interpretation Act 33 of 1957 requires that acts by the President must be published in the government gazette. In the absence of such publication, the powers and functions of the Ministers will have to be dealt with by amendment of relevant legislation. However no such publication or amendment to the relevant legislation could be found.

Pending compliance with the Constitution and the termination of services of the Minister of Minerals and Energy and the publication of a proclamation or legislation defining the powers and functions of the two new Ministers they remain "in limbo". Should a right be granted and executed prior to the publication of the prescribed proclamation or the amendment of the MPRDA the right would invalid. In the case of Meepo v Kotze and Others 2008 (1) SA 104 the court held that a production right executed by a government official acting outside the scope his of powers is null and void.

Although the spilt of the Department of Minerals and Energy is well received by the industry the identification of the powers and functions of the Ministers and the requisite notification to the general public thereof needs to be dealt with as a matter of urgency.

Written by: Lizel Oberholzer, Megan Rodgers of Bowman Gilfillan