The Theatre of First Resort
Three times in recent years, a party has come to the High Court sure of its case, and left without a judge pronouncing on the merits. The disputes had almost nothing in common. One was a fight between chrome miners over a shaft. One was farmers trying to stop a coal mine next door. One was a smelter that wanted to be told it fell outside a particular safety statute. Despite their differences, they failed for the same reason, and the reason had nothing to do with who was right or wrong.
The reason was a mistake about what a court is for, and about when a court is even the right place to stand. It is a mistake made every week, by careful people, and almost always at the start, before anyone has asked the question that settles where a dispute belongs. The answer, more often than commercial instinct allows, is not the courtroom.
The Theatre of First Resort
When technical disputes are dressed up for the wrong stage
A courtroom is a kind of theatre. It is built for one performance: the argument of a case in law. In motion proceedings the evidence comes in on affidavit, counsel argue, and a judge rules on the law. It is a grand theatre, with centuries of tradition and pageantry that survive to this day, and the drama of the courtroom still makes for good television.
There is something the courtroom cannot do, and was never built to do. It cannot resolve questions that depend on technical judgement: whether a ferrochrome smelter counts as a mine for health and safety purposes, whether coal may keep coming out of the ground while an environmental authorisation is put right, or on whose land a shaft should be sunk to chase a dipping reef. Those are not questions of law but rather of fact, of engineering and of expert judgement, and the people equipped to answer them sit not in the court but in the department that regulates that industry. In a developed legal system there is a fine line between the executive and the judicial branches of the state, and holding that line is not always simple.
Between us we have spent a long time watching commercial litigants, and their lawyers, reach for the court as the opening move in disputes of exactly this kind, when the real question was technical and thus belonged somewhere else first. In three recent judgments, a party took a specialist question, dressed it in legal costume, and carried it to a court that was bound to turn it away. The court is not the theatre of first resort, and treating it as though it were is an expensive habit.
Three cases, one wrong turn
Take the three in turn.
The first was a fight between chrome producers.[1] Two of them held mining rights over neighbouring ground in Limpopo. In order to reach its ore, one had sunk a decline shaft which, following the dip of the reef, had to stand on the other’s side of the boundary line. In 2020 the neighbour went to court for an order that the shaft was illegal, with an interdict to stop its use. But the shaft had been built under a mining work programme and an environmental management plan the department had approved years earlier. The department had since approved the conversion and the transfer of the mining right as well, which the department could only have done if it was satisfied that mining was being conducted legally. In 2025 the court refused the application. It held that the party’s real complaint was with the department’s decisions to grant the various approvals, and a challenge to those had to be dealt with in the manner which the law provided, being the internal appeals process under the Mineral and Petroleum Resources Development Act 28 of 2002 (the MPRDA). Only if unsuccessful in that forum could the party then bring a review and in the timeframes prescribed by law, not years later as a private claim. Failing to follow that internal process could not be rectified by dressing up a review as a declarator of illegality coupled with an interdict to stop the approved shaft’s use.
The second was a fight over coal.[2] Farmers in Mpumalanga went to court in 2023 to interdict an open-cast coal mine that had begun working next to them without, they said, a mining right, the environmental authorisation and water use licence the law required. In May 2025 the court dismissed the application. The power to stop mining that begins without authorisation, it held, belongs to the Minister and not to a neighbour, and it is a power the law requires to be used with judgement, because stopping a mine can itself do harm. The neighbours were asking the court to make a decision that the law had given to the regulator.
The third was about a smelter.[3] A ferrochrome operation wanted to be told that it fell outside the mine health and safety statute, or to be exempted from it. The statute lets a party apply to the department for exactly that, and the department is the body with the expertise to decide it. The department did not decide and rather than press for a decision to be made, the company went to court for a declarator that the statute did not apply, and it chose the ordinary civil court as the forum. Although neither party raised jurisdiction as an issue for determination, the court directed them to address it and the matter was decided on that point. In March 2026 the appeal court struck the matter out. That statute gives a specialist forum, the Labour Court, the sole power to decide disputes about its meaning, so the civil court had no jurisdiction at all.
Three industries, three statutes, and on the surface three different quarrels, but underneath, the same mistake. Each had a question that was really for a regulator, and each took it to a court instead.
Why do we head straight for the stage?
The instinct to litigate is strong, and in business it is close to automatic. Something has gone wrong, a rival has done something intolerable, money is at risk, and the question is not what kind of problem this is but whom to sue. Lawyers do not cure the instinct. We are trained for court, we are comfortable there, and a court order has a finality that a regulator’s process may not.
There is a second reason, which is less flattering. A court can be made to move quickly against a neighbour or a commercial rival, where a department may take months or even years to act. An urgent application can be issued tomorrow. So when the real remedy lies with a regulator that is slow, or silent, the temptation is to go around it, to the one place that will give a hearing quickly. That is where the trouble starts and it has become quite frequent to see parties using the courts as a substitute for executive action.
Can a judge be a mining engineer?
A court decides questions of law. Give it a contract and it will tell you what the words mean. Give it a statute and it will interpret it. Give it a dispute of fact and it will weigh the evidence and decide what happened. What it cannot do is step into the shoes of the regulator and supply technical expertise it does not have. A judge does not become a mining engineer, an environmental scientist or a chief inspector of mines for the length of a hearing.
The courts know this. Our highest court has said that on review a judge must not cross from reviewing a decision into taking it afresh, and must show deference to the body which the law placed in charge.[4] This is not a case of our courts being modest but is necessary to keep the line between the executive and the courts. The legislature entrusted the technical decision to a department because the department, not the court, is built to make it.
Whose stage is it first?
If a court is the wrong place, the right one is not hard to find. For each of these fields the legislator has built a regulator and given it both the power and the expertise to make decisions. The Department of Mineral and Petroleum Resources (the DMPR) approves mining work programmes and environmental management plans, grants and cancels rights, decides whether the safety statute applies, and may order unlawful mining be stopped or allowed to continue. The law does not offer a choice between that regulator and a court. It sends the question to the regulator first. There is an internal appeal process to be followed against a decision under the MPRDA and it must be brought in time. Parties cannot bypass the processes provided for in the statute and these are not steps on the way to the real event in court. They are the event.
When the regulator is slow to decide, as with the case of the smelter, the answer is not to simply ask the court to decide instead. A court can order an official who is sitting on a decision to make it as that is a question of law that a court is built for. What a court cannot be asked to do is take the technical decision in the regulator’s place, even where parties try to hide the fact they are seeking a review by not framing their relief as such.
When does the court’s curtain rise?
The court has a real and necessary place, but it comes after the regulator has acted, and it is narrower than the litigant wants. Once the department has decided, its decision can be taken on review, and the court will ask whether it was made lawfully and rationally, whether the relevant considerations were weighed and the irrelevant ones left out. That is a question of law, and the court answers it well. What it does not do, even then, is take the technical decision again. It does not ask whether the smelter is really a mine, only whether the official who decided that did so rationally and within the confines of the law.
Both our courts and the English courts have refused to let a litigant bring a public law complaint as an ordinary private claim. The lesson is slow to be learned. The rules that govern a challenge to official power, the duty to act promptly, the time limits and the protections for the public body, are there for a reason, and a litigant cannot escape them by dressing up the challenge as something else and bringing it another way. Each of these three litigants was told a version of that.
So three cases failed, and not one of them failed only on its merits. In each case the court was asked the wrong question, in the wrong place, and answered the only one properly before it, whether it should be hearing the matter at all.
The lesson is not that you should avoid court but recognise that court is not always the first step. The first question in a dispute of this kind is not how to get to court, but what kind of question is it and who has the law put in charge of answering it. Asked early, the answer is usually a quiet one; an application, an internal appeal, a decision forced out of an official who would rather not make it. Asked late, or not at all, the answer comes back as a judgment with the merits untouched, the dispute unresolved and only an order for costs to show for it.
The courtroom remains the grandest theatre in the law.
It is not the theatre of first resort.
Written by:
Wessel Badenhorst and Samantha Joshua
October 2026
[1] Black Chrome Mine (Pty) Ltd (formerly Umnotho weSizwe Resources (Pty) Ltd) v Cheetah Chrome South Africa (Pty) Ltd and Others, Gauteng Division, Pretoria, case number 44631/2020, per Van Niekerk AJ; the application was dismissed with costs (unreported), and leave to appeal was refused by the High Court (Black Chrome Mine (Pty) Ltd v Cheetah Chrome South Africa (Pty) Ltd and Others (Leave to Appeal) (44631/2020) [2026] ZAGPPHC 41 (16 January 2026)) and by the Supreme Court of Appeal on 30 April 2026.
[2] Anderson and Another v Silver Unicorn Coal and Minerals (Pty) Ltd and Others (2023/031181) [2025] ZAGPPHC 497 (16 May 2025), per Hassim J; the application was dismissed.
[3] TC Smelters (Pty) Ltd and Another v The Minister: Department of Mineral Resources and Energy and Others (910/2024) [2026] ZASCA 40 (27 March 2026); the appeal was dismissed, the order of the High Court set aside and substituted to strike the application from the roll, the Labour Court having exclusive jurisdiction under section 82(1) of the Mine Health and Safety Act 29 of 1996.
[4] Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC), per O’Regan J, on the distinction between review and appeal and the respect owed to the expertise of administrative decision makers.
