in the supreme court of appeal of south africa appeal ... · applicants, with the registrar of the...

IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

In the matter between:

ATHA-AFRICA VENTURES (PTY) LTD

and

Appeal Court Case No: /2019 Court a quo Case No: 50779/2017

Applicant (Third Respondent in court a quo)

MINING AND ENVIRONMENTAL JUSTICE COMMUNITY NETWORK OF SOUTH AFRICA First Respondent

GROUNDWORK

EARTHLIFE AFRICA, JOHANNESBURG

BIRDLIFE SOUTH AFRICA

ENDANGERED WILDLIFE TRUST

(First Applicant in court a quo)

Second Respondent (Second Applicant in court a quo)

Third Respondent (Third Applicant in court a quo)

Fourth Respondent (Fourth Applicant in court a quo)

Fifth Respondent (Fifth Applicant in court a quo)

FEDERATION FOR A SUSTAINABLE DEVELOPMENT Sixth Respondent (Sixth Applicant in court a quo)

ASSOCIATION FOR WATER AND THE RURAL DEVELOPMENT Seventh Respondent

(Seventh Applicant in court a quo)

BENCH MARKS FOUNDATION Eighth Respondent (Eighth Applicant in court a quo)

MINISTER OF ENVIRONMENTAL AFFAIRS Ninth Respondent

MINISTER OF MINERAL RESOURCES

(First Respondent in court a quo)

Tenth Respondent (Second Respondent in court a quo)

THE MABOLA PROTECTED ENVIRONMENT LAND OWNERS ASSOCIATION Eleventh Respondent

(Fourth Respondent in court a quo)

MEC FOR AGRICULTURE, RURAL DEVELOPMENT, LAND AND ENVIRONMENTAL AFFAIRS, MPUMALANGA Twelfth Respondent

(Fifth Respondent in court a quo)

INDEX

NO. DESCRIPTION PAGES -

1. Notice of Motion 1 - 5

2. Founding Affidavit 6 -19

3. Annexure ''A" - Judgment of the Court a quo 20 - 56

4. Annexure "B" - Order of the Court a quo 57 - 59

5. Annexure "C" - Application for Leave to Appeal Order 60-61

6. Annexure "D" - Application for Leave to Appeal Judgment 62

Dated and signed at Pretoria on this 20'" day of February 2019.

(:~ Mr GF Joubert Attorney for Applicant Fasken Attorneys (incorporated in South Africa as Bell Dewar Inc.) Building 2, lnanda Greens 54 Wierda Road West SANDTON Ref: Francois Joubert Tel: (011) 586-6089 Fax:(011) 586-6189 E-mail: [email protected] Care of: Savage Jooste & Adams No 141 Boshoff Street Nieuw Muckleneuk PRETORIA Tel: (012) 452-8200 Fax: (012) 452-8201

To:

To:

And to:

And to:

And to:

Care of: Me Lazyja Venter Symington & De Kok Attorneys Docex 18 Bloemfontein 169B Nelson Mandela Drive Westdene BLOEMFONTEIN Tel: (051) 505-6665 Fax: (051) 430-4806 [email protected]

The Registrar of the Honourable Court Supreme Court of Appeal of South Africa BLOEMFONTEIN

The Registrar of the Honourable Court High Court of South Africa Gauteng Division Corner of Paul Kruger & Madiba Streets PRETORIA

Attorney for First to Eight Respondents Centre for Environmental Rights Care-of: Du Plessis and Kruyshaar Incorporated Suite No 2, Route 21 Corporate Park No 118 Sovereign Drive, Irene PRETORIA Ref: Rentia Kruyshaar Email: [email protected] Served electronically by agreement

Attorney for Ninth, Tenth and Twelfth Respondents Office of the State Attorney SALU Building No 316 Thabo Sehume Street PRETORIA Email: [email protected]

[email protected] [email protected] [email protected]

Seived electronically by agreement

Eleventh Respondent Farm Schoongezicht VOLKSRUST Mpumalanga Province E-mail: [email protected] Served electronically by agreement




and


Applicant (Third Respondent in court a quo)

MINING AND ENVIRONMENTAL JUSTICE COMMUNITY NETWORK OF SOUTH AFRICA First Respondent

GROUNDWORK




(First Applicant in court a quo)

Second Respondent (Second Applicant in court a quo)

Third Respondent (Third Applicant in court a quo)

Fourth Respondent (Fourth Applicant in court a quo)

Fifth Respondent (Fifth Applicant in court a quo)

FEDERATION FOR A SUSTAINABLE DEVELOPMENT Sixth Respondent (Sixth Applicant in court a quo)

ASSOCIATION FOR WATER AND THE RURAL DEVELOPMENT Seventh Respondent

(Seventh Applicant in court a quo)

BENCH MARKS FOUNDATION Eighth Respondent (Eighth Applicant in court a quo)

MINISTER OF ENVIRONMENTAL AFFAIRS Ninth Respondent


(First Respondent in court a quo)

Tenth Respondent (Second Respondent in court a quo)

THE MABOLA PROTECTED ENVIRONMENT LAND OWNERS ASSOCIATION Eleventh Respondent

(Fourth Respondent in court a quo)

\

-2-

MEC FOR AGRICULTURE, RURAL DEVELOPMENT, LAND AND ENVIRONMENTAL AFFAIRS, MPUMALANGA Twelfth Respondent

(Fifth Respondent in court a quo)

NOTICE OF MOTION

TAKE NOTICE that ATHA-AFRICA VENTURES (PTY) LTD (hereinafter called the

Applicant) hereby applies to the President of the Supreme Court of Appeal for an order

in the following terms:

1. that leave to appeal to the Supreme Court of Appeal, alternatively to the Full

Bench of the Gauteng Division of the High Court be granted only against that

part of the judgment pertaining to, and only against, paragraph 4.3 and

paragraph 4.4 of the orders made by the Honourable Mr Justice Davis, delivered

and handed down in the Gauteng Division of the High Court in Pretoria on

8 November 2018 (but dated 6 November 2018), in terms whereof a decision by

the Ninth and Tenth Respondent, to grant the Applicant written permission in

terms of section 48(1)(b) of the National Environmental Management: Protected

Area Act 57 of 2003 ("NEM:PAA"), after having been set aside and remitted to

them for reconsideration, has to be reconsidered with a directive:

1.1 in terms of paragraph 4.3 of the order, to defer any decision in terms of

section 48(1 )(b) of NEM:PAA until after the decision of:

1.1.1 the statutory appeal to the Director-General: Department of

Mineral Resources in terms of the Mineral and Petroleum

-3-

Resources Development Act 28 of 2002 ("the MPRDA") against

the approval of the Applicant's environmental management

programme; and

1.1.2 the statutory appeal to the Water Tribunal in terms of the National

Water Act 36 of 1998 ("lhe NWA") against the decision to issue a

water use licence to the Applicant;

1.2 in terms of paragraph 4.4 of the order, not to consider the granting of

permission to conduct commercial mining in the "Mabola Protected

Environmental (sic)" in terms of section 48(1)(b) of NEM:PAA until a

management plan for the Mabola Protected Environment has been

approved by the Ninth Respondent in terms of section 39(2) of the

NEM:PAA and to consider the contents thereof;

2. that the costs of this application be cost in the appeal; and/or

3. that such further and/or alternative relief be granted as is deemed flt and proper.

TAKE FURTHER NOTICE that the founding affidavit of PRAVEER TRIPATHI is

annexed in support of this application.

TAKE FURTHER NOTICE that if you intend to oppose this application, you are required

to lodge your affidavit in support of your opposition, after prior service upon the

-4-

Applicants, with the Registrar of the Supreme Court of Appeal within one month after

service of this application upon you.

Dated and signed at Pretoria on this 20• day of February 2019.

Mr GF Joubert Attorney for Applicant Fasken Attorneys (incorporated in South Africa as Bell Dewar Inc.) Building 2, lnanda Greens 54 Wierda Road West SANDTON Ref: Francois Joubert Tel: (011) 586-6089 Fax: (011) 586-6189 E-mail: [email protected] Care of: Savage Jooste & Adams No 141 Boshoff Street Nieuw Muckleneuk PRETORIA Tel: (012) 452-8200 Fax: (012) 452-8201 Care of: Me Lazyja Venter Symington & De Kok Attorneys Docex 18 Bloemfontein 169B Nelson Mandela Drive Westdene BLOEMFONTEIN Tel: (051) 505-6665 Fax: (051) 430-4806 [email protected]

To:

To:

And to:

And to:

And to:

The Registrar of the Honourable Court Supreme Court of Appeal of South Africa BLOEMFONTEIN

The Registrar of the Honourable Court High Court of South Africa Gauteng Division Corner of Paul Kruger & Madiba Streets PRETORIA

Attorney for First to Eight Respondents Centre for Environmental Rights Care of: Du Plessis and Kruyshaar Incorporated Suite No 2, Route 21 Corporate Park No 118 Sovereign Drive, Irene PRETORIA Ref: Rentia Kruyshaar Email: [email protected] Served electronically by agreement

Attorney for Ninth, Tenth and Twelfth Respondents Office of the State Attorney SALU Building No 316 Thabo Sehume Street PRETORIA Email: [email protected]

[email protected] [email protected] [email protected]

Served electronically by agreement

Eleventh Respondent Farm Schoongezicht VOLKSRUST Mpumalanga Province E-mail: [email protected] Served electronica//y by agreement

C'\OatalPraKIY% dokumente\Omgew•ngs· en 8eplanningsreg\Acl1ve case\E~rthlife v Alha-Afrir;:a\Nf.MPAA _Judgment_SCA_L TA.wpd

5

-5-

-6-




ATHA-AFRICA VENTURES (PTY) LTD Applicant (Third Respondent in court a quo)

and

MINING AND ENVIRONMENTAL JUSTICE COMMUNITY NETWORK OF SOUTH AFRICA AND OTHERS

FOUNDING AFFIDAVIT

I. the undersigned

PRAVEER TRIPATHI

do hereby declare under oath as follows:

Respondents

1. I am a major businessman and the Senior Vice President of the Applicant, Atha

Africa Ventures (Pty) Ltd (''Atha-Africa"}. J am employed as such at 81h Floor,

Sinosteel Plaza, t59 Rivonia Road, Morningside, Sandton, Gauteng Province.

2. The contents of this affidavit are within my personal knowledge, unless the

contrary is stated or appears from the context, and are to the best of my

knowledge and belief both true and correct.

3. Atha-Africa is part of an international group of companies which, upon the

invitation of the Government of the Republic of South Africa at a 2011 trade fair

-7-

in Mumbai, held for the purpose of, amongst others, recruiting new foreign direct

investments into South Africa, was established for the purposes of its investment

in the South African coal mining industry.

4. Because the mining industry in the Republlc of South Africa is regulated under

a multi-permitting system, Atha-Africa requires amongst others:

4.1 a mining right in terms of section 23 of the MPRDA (granted but presently

under judicial review);

4.2 a water use licence in terms of section 21 read with section 40-43 of the

NWA (approved by the responsible authority but presently under an

administrative appeal to the Water Tribunal);

4.3 an environmental authorisation to commence with certain listed activities

under section 24 of the National Environmental Management Act 107 of

1998 ("NEMA") (granted but presently under judicial review); and

4.4 in this specific instance, the written permission of both the Minister of

Environmental Affairs and the Minister of Mineral Resources in terms of

section 48(1 )(b) of NEM:PAA to conduct mining or related activities in the

Mabola Protected Environment.

5. The said NEM:PAA permission was given to Atha-Africa by both Ministers on

-8-

20 August 2016 and 21 November 2016 respectively, and became the subject

matter of the review application that was launched by the 1 "1 to 81h Respondents

on or about 24 July 2017.

6. The 1s1 to 81h Respondents relied upon a multitude of grounds of review, which

I briefly mentioned for the convenience of the Honourable Court, namely

6.1 that the Ministers did not take the NEM:PAA decision in an open and

transparent manner or in a manner that promoted public participation;

6.2 that the NEM:PM decision was taken in a procedurally unfair manner;

6.3 that the Ministers relied on an outdated and rejected version of the

Environmental Impact Assessment Report;

6.4 that the Ministers misconstrued their distinctive duties in terms of

NEM:PAA;

6.5 that NEM:PAA envisages that mining will only be permissible in a

protected environment in exceptional circumstances;

6.6 that the Minister of Environmental Affairs failed to take into account the

interests of local communities;

-9-

6.7 that the Ministers failed to take into account that the use and exploitation

of non-renewable natural resources must be responsible and equitable;

6.8 that the Ministers failed to apply the precautionary principle and the

vulnerable ecosystems principle;

6.9 that the Ministers failed to ensure intergovernmental co-ordination and

harmonisation, and ignored key planning and other instruments;

6.10 that the Ministers failed to take into account South Africa's international

responsibilities relating to the environment;

6.11 that the Ministers ought to have awaited the outcome of the various

statutory appeals;

6.12 that the Ministers failed to take into account that Atha-Africa has made

inadequate provision for rehabilitation; and

6.13 that the Ministers failed to await the approval of the management plan for

the Ma bola Protected Environment (which approval has been outstanding

already since 17 February 2015) although the draft plan has been taken

into account.

7. From the outset AthawAfrica was not opposed to the review and setting aside of

-10-

the NEM:PAA permission but opposed the terms of the remittal of the matter as

proposed by the 1st to 81n Respondents.

8. On or about 8 November 2018 a judgment (dated 6 November 2018) was

delivered by the Court a quo, of which a copy is attached as annexure 'A' hereto.

From that judgment (in para 11.11) it appears that the Court a quo effectively

upheld the grounds of review mentioned in paragraph 6.1-6.10 above but did not

find it apposite or necessary to make further comments in respect of the grounds

of review mentioned in paragraph 6.11-6.13 above {save for certain passing

remarks). In other words, the Court a quo did not reach a firm conclusion:

8.1 on whether the Ministers ought to have awaited the outcome of the

various statutory appeals; and/or

8.2 on whether the Ministers should have awaited the approval of the

management plan for the Mabola Protected Environment.

9. In a nutshell the Court a quo, on the basis of what it regarded as the proper

interpretation of section 48(1 )(b) of NEMPAA, concluded that:

9.1 firstly, legally a written permissLon in terms thereof can only be (applied

for and/or) granted after all the other required authorisations for

commercial mining activities in a protected environment were in place so

that these procedures had to follow a particular sequence; and

10

-11-

9.2 secondly, legally an application for such a written permission is subject to

a stricter measure of scrutiny;

which conclusion - on the sequence of procedures and/or the stricter measure

of scrutiny required - informed not only the findings of the Court a quo on the

various grounds of review but also informed the directives for remittal.

10. A copy of the order of the Court a quo is attached as annexure 'B' hereto.

11. Together with an order reviewing and setting aside the NEM:PAA permission,

the Court a quo remitted the matter back to the Ministers for reconsideration

and, in that remittal, also included the following two directives, namely:

11.1 in terms of paragraph 4.3 of the order, to defer any decision in terms of

section 48(1 )(b) of NEM:PM until after the decision of:

11.1.1

11.1.2

the statutory appeal to the Director-General: Department of

Mineral Resources in terms of the MPRDA against the

approval of the Applicant's environmental management

programme; and

the statutory appeal to the Water Tribunal in terms of the

NWA against the decision to issue a water use licence to

the Applicant;

\

-12-

11.2 in terms of paragraph 4.4 of the order, not to consider the granting of

permission to conduct commercial mining in the Mabola Protected

Environment in terms of section 48(1 )(b) of NEM:PAA until a

management plan for the Mabola Protected Environment has been

approved by the Ninth Respondent in terms of section 39(2) of the

NEM:PAA and to consider the contents thereof.

12. With regard to paragraph 4.3 of the order:

12.1 The Court a quo deferred a decision or the exercise of the statutory

power in terms of section 48(1)(b) of NEM:PAA until after all the other

statutory authorisations have been obtained.

12.2 There is no legal or statutory basis in any legislation upon which a

decision or the exercise of the statutory power in terms of section 48(1 )(b)

of NEM:PAA has to be deferred, either in general pending any other

statutory process or procedure for the relevant authorisations or

permissions pertaining to the development of mineral resources, or in

particular pending the outcome of an administrative or statutory appeal

in terms· of the MPRDA against the approval of an environmental

management programme and/or to the Water Tribunal in terms of the

NWA against the decision to issue a water use licence.

12.3 On a proper interpretation of section 48(1)(b) of NEM:PAA, it does not

-13-

prescribe, either expressly or by necessary implication, a fixed sequence

or rigid hierarchy in terms of which the relevant authorisations or

permissions for the development of mineral resources must first be

obtained, and/or does not require that, before an application for the

written permission of the Minister of Environmental Affairs and the

Minister of Mineral Resources, in terms thereof, may be considered

and/or decided upon, such relevant authorisations or permissions must

already be in place and/or finalised.

12.4 The written permission of the Minister of Environmental Affairs and the

Minister of Mineral Resources in terms of section 48(1)(b) of NEM:PAA,

to conduct commercial prospecting or mining in a protected environment,

is but one of the required authorisations or permissions before any

development of mineral resources may be commenced with.

12.5 There is no legal or practical reason why all of the statutory procedures

cannot be conducted in parallel with each other; in fact, a judicially-

imposed requirement of a sequential processing will inevitably cause

significant and serious delays, is open for abuse, will increase overhead

costs, will adversely impact upon developments in the mining sector

(which is the lifeblood of the economy) and is inconsistent with the

constitutional imperatives for public administration contained in section

195 of the Constitution.

-14-

12.6 The interpretation of section 48(1 )(b) of NEM:PAA by the Court a quo is

not only impractical and un-businesslike, but it will cause inevitable delay

so that it is open for _abuse by any person or entity opposing any kind of

development and more specifically the development of mineral resources

in a protected environment.

12.7 The Court a quo should have concluded accordingly.

13. With regard to paragraph 4.4 of the order:

13.1 The Court a quo in substance and in effect elevated the finalisation or

approval of a management plan for a protected environment to a

jurisdictional condition for the exercise of the statutory power under

section 48(1)(b) of NEM:PAA.

13.2 There is no legal or statutory basis in NEM:PAA, or in any other

legislation, on which an approved management plan, as contemplated in

section 39 of NEM:PAA and in accordance with which the management

authority is expressly commanded by section 40(1 )(b)(i) thereof to

manage the protected environment under its control, can be elevated to

a jurisdictional condition for the exercise of the statutory power entrusted

by Parliament to the Minister of Environmental Affairs and the Minister of

Mineral Resources under section 48(1 )(b) of NEM:PM.

-15-

13.3 Any such interpretation of section 48(1 )(b) of NEM:PAA is not only

impractical and Un-businesslike, but it will cause inevitable delay so that

it is open for abuse by any person or entity opposing any kind of

development and more specifically the development of mineral resources

in a protected environment.

13;4 Any delay with the finalisation of a management plan, whether innocently

or negligently or even deliberately and by design, will mean that the

entitlement of Atha-Africa to apply for such written permission in terms of

section 48(1 )(b) of NEM:PAA is at the mercy of a third party and to be

held in a limbo of uncertainty, which is contrary to the constitutional

imperatives for public administration as contained in section 195 of the

Constitution and/or an infringement of the fundamental right to

administrative justice under section 33 of the Constitution.


14. In general with regard to both paragraph 4.3 and paragraph 4.4 of the order:

14.1 Other than the judgment by the Court a quo, I am advised that there is no

other known judgment on the proper interpretation of section 48(1 )(b) of

NEM:PAA.

14.2 The proper interpretation of section 48(1)(b) of NEM:PAA has to J:>e

-16-

informed not only by the fundamental right to the environment contained

in section 24 of the Constitution and/or the general environmental

management principles contained in section 2 of NEMA but also has to

be informed by the other fundamental rights and freedoms contained in

the Bill of Rights and furthermore such interpretation must also be

consistent with the Constitution in general.

14.3 The interpretation by the Court a quo of section 48(1}(b) of NEM:PAA,

summarised in paragraph 9 above, is without foundation: there is no basis

in the language utilised in that provision from which to infer either a

specific sequence of procedures or a stricter measure of scrutiny, either

in the context of NEM:PAA and/or of the general environmental

management principles contained in section 2 of NEMA and/or of the

fundamental right to the environment contained in section 24 of the

Constitution, and such an interpretation does not serve the purpose of

sustainable development (calling for a properly-informed balance

between ecological, economic and social factors Instead of an approach

premised upon a stricter measure of scrutiny for an ecological threshold

to be passed before development may proceed).

14.4 Section 8(1 )(c)(i) of the Promotion of Administrative Justice Act 3 of 2000

empowered (but also commanded) the Court a quo to grant an order that

is just and equitable, including an order setting aside the administrative

action and remitting the matter for reconsideration by the administrator,

-17-

with or without directions.

14.5 In context this judicial directive power is concerned with a failure or

omission on the part of the executive in the administrative process and is

thus to_be interpreted as a remedial measure, especially when the scope

and ambit thereof are considered within the parameters of the doctrine of

separation of powers.

14.6 In the result the directives issued by the Court a quo in paragraph 4.3 and

paragraph 4.4 of the order are, firstly, not authorised in law (because it

goes further than providing a remedial measure) and, secondly,

inconsistent with the Constitution because it disregards the doctrine of

separation of powers.

14. 7 In the result the directives issued by the Court a quo in paragraph 4.3 and

paragraph 4.4 of the order are an unwarranted and unjustifiable judicial

interference in the procedures entrusted to the executive branch of

government, amounting to the Court a quo being "over~prescriptive to

administrative decision~makers" (para 11.9.3 of the judgment).


15. An application for leave to appeal was dismissed by the Court a quo and a copy

of the order made in this regard is attached as annexure 'C' hereto.

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16. To date the Applicant has not yet received a copy of the judgment by the Court

a quo, which is in the process of being transcribed. I am advised that the

attorneys for the Applicant will request the Registrar of the Honourable Court for

an extension of the period for the filing of the copy of the said judgment, which

will be filed as annexure 'D' hereto immediately upon becoming available.

17. I respectfully submit that there is a reasonable prospect that another court will

come to a different decision to that of the Court a quo.

18. Given the importance of this matter and the fact that the underlying issue is a

legal question on the proper and constitutional interpretation of environmental

legislation, which is already a value-laden exercise on which courts may differ,

I respectfully submit that leave to appeal to the Supreme Court of Appeal should

be granted.

19. In the result I respectfully pray that the relief be granted to the Applicant as set

out in the Notice of Motion to which this Founding Affidavit is attached.

Deponent: P Tripathi

I certify that the Deponent acknowledged that he knows and understands the contents of this affidavit, that he has no objection to the making of the prescribed oath and that he considers this oath to be binding on hfs conscience. I also certify that this affidavit was signed in my presence at Pretoria on this 201

h day of February 2019 and that the Regulations contained in Government Notice R1258 of 21July1972, as amended by

Government Notice R1648of19 August 1977, have been complied with.

COMM SSI NER OF OATHS FULL N ES: STREET ADDRESS: CAPACITY: AREA:

JUEL BARNETT Comrnlssloner of O~tt>s Ex Officio

Registered Attorney R.S.A OM K1scti Inc

lnanda Greens Busiriess Park S4 W\ERDA RD WEST, W!EROA VALLEY. SANDT ON

P.O. BOX 761218. SANDTO,N. 2146

C:IOata\Praktyk dokumen\e\Omgew1ngs- en Beplanningsreg\Active caselEarthlife v Alha-Africa\NEMPAA_Judgrnent_SCA _L TA.wpd

-19-

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

1

CASE NO: 50779/2017

DELETE WHICHEVER IS NOT -~PPLlC,<\BLE

(1) REPORTABLE: 'YES/~

(2) OF INTEREST TO OTHER JUDGES: YES I

i:;<f-:

{3)REVISED.i/ ~.----] /

DATE ~ft/,70(, ... ···· ;;Ir~ SIGNATURE ../". '.' "7J

_£ ~ ' /


MINING AND ENVIRONMENTAL JUSTICE COMNlUNITY NETWORK OF SOUTH AFRICA

GROUNDWORK

EARTHLIFE AFRICA, JOHA."11"'ESBURG


El'iDANGERED WILDLIFE TRUST

FEDERATION FOR A SUSTAINABLE ENVIRONMENT

ASSOCIATION FOR WATER AND RURAL DEVELOPMENT

BENCH lWARKS FOUNDATION

First Applicant

Second Applicant

Third Applicant

Fourth Applicant

Fifth Applicant

Sixth Applicant

Seventh .A..pplicant

Eighth Applicant

and

MINISTER OF ENVIRONMENTAL AFFAIRS



THE MABOLA PROTECTED ENVIRONMENT LANDOWNERS ASSOCIATION

MEC FOR AGRICULTURE, RURAL DEVELOPMENT, LAND AND ENVIRONMENTAL AFFAIRS, MPUMALAL~GA

Coram: Davis J

2

First Respondent

Second Respondent

Third Respondent

Fourth Respondent

Fifth Respondent

Environmental Law - permission to conduct mining activities in a declared protected environment - nature of Minsters' discretions and duties in terms of National Environmental Management: Protected Areas Act 57 of 2003 evaluated.

Environmental Law - permission to conduct mining activities in a declared protected environment - Section 48(J)(b) of National Environmental 1\1anagement: Protected Areas Act 57 of2003 interpreted and explained

Environmental Law - review of Ministerial permissions - application of sections 3 and 4 of Promotion of Administrative Justice Act 3 of 2003 and possible departure therefrom discussed.

JUDGMENT

DAVIS,J

[1] Introduction:

This is an application heard in the third motion court as a special application iii tenns

of which the applicants seek to have decisions of the Minister of Environmental

Affairs and the Minister of Mineral Resources to permit coalmining activities in a

3

protected wetlands area reviewed and set aside. There are numerous grounds of

review relied on by the applicants, the principal of which are the Ministers' failure to

observe the provisions of sections 3 and 4 of the Promotlon of Administrative Justice

Act No 3 of 2000 ("PAJA"). The Ministers concede non-compliance with these

provisions but contend that they were justified in departing therefrom. A further

question central to the matter was the proper interpretation of the relevant statutory

provisions governing the requisite consent of the Ministers.

[2] The Parties

2.1 The applicants have been described as a range of non-governmental, non

profit community, er'lvlronmental and human rights organisations. They are the

Mining and Environmental Justice Community Network of South Africa,

Groundwork, Earthlife Africa, Johannesburg, Birdlife South Africa,

Endangered Wildlife Trust, the Federation for a Sustainable Environment, the

Association for Water and Rural Development and Benchmarks Foundation.

They claim to represent primarily the public interest in the enforcement of the

public's constitutional right to an environment that is protected for the benefit

of present and future generations and that is not harmful to their health or

well-being.

2.2 The first respondent is the Minister of Environmental Affairs and the second

respondent is the Minister of Mineral Resources. The third respondent is the

prospective coal mining company Atha-Africa Ventures (Pty) Ltd ("Atha"). It is

the South African subsidiary of the Atha Group, a group of companies

registered in India. It's BEE partner is the Bashubile Trust of which the

trustees are Vincent Gezinh!eyiso Zuma and Sizv1e Christopher Zuma

(nephews of the erstwhile president of the Republic of South Africa) and

Prince Thabo Mpofu. The relevance of the identity of the BEE partner

features in the applicants' submissions regarding the issue of transparency of

the administrative acts in question. The fourth respondent is the Mabola

Protected Environment Landowners Association. The fifth respondent is the

MEC for Agriculture, Rural Development, Land and Environmental Affairs,

Mpumalanga ("the MEC").

4

[3] Postoonement:

The application was launched on 24 July 2017. After the exchange of some

affidavits, the application became the subject of case management procedures,

particularly due to the initial urgent relief sought, the volume of papers and the

estimated duration of argument All the parties participated in the case management

process and the plaintiffs counsel, Adv Dodson SC, styled the matter as a textbook

case of how case managed Htigatio'n should function. By Y.1ay of a directive of the

deputy judge president dated 24 April 2018, the matter was to be set down as a

special motion for hearing on 16, 17 and 18 October 2018. This was done and the

papers extended beyond 14 lever arch files and the applicants, the first, second and

fifth respondents Uointly) as well as Atha were all represented by sets of senior and

junior counsel who all filed extensive and useful heads of argument. On the Friday

prior to the hearing of the matter in the following week, the MEC without prior notice

or warning published a notice in the Mpumalanga provincial gazette of his intention

to exclude the proposed mining_ area from the Mabo!a Protected Environment (the

"MPE"), comprising the wetlands in question. Should such an exclusion take place, it

would render the permission of the ministers redundant. Upon being made aware of

this consequential impact on the pending application, the MEC instructed the state

attorney to apply for a postponement of the application. The court was not satisfied

with the explanation given by the state attorney for the postponement and,

particularly having regard to the timing of the publication of the notice, required the

MEG to furnish a further founding affidavit to the application for postponement,

should the MEG persist therewith. Such an affidavit was furnished and the

application for postponement was duly argued and dismissed with costs on the

attorney and client scale, including costs of two counsel. ln dismissing the

application for postponement I indicated that the reasons therefor would be included

in this judgement, which I shall later do.

[4] Statutory Framework:

4.1. In terms of section 24 of the Constitution of the Republic of South Africa

everyone has the right to an environment that is not harmful to their health or

well~being and to have the environment protected for the benefit of present

5

and future generations through reasonable legislative and other measures

that prevent pollution and ecological degradation, promote conservation and

secure ecologically sustainable development and use of natural resources

while promoting justifiable economic and social development.

4.2. The legislation in question to give effect to the abavementioned environmental

provision contained in the Constitution are the National Environmental

Management Act 107 of 1998 ("NEMA"), the National Environmental

Management: Biodiversity Act 10 of 2004 ("NEMBA"), the National

Environmental Management: Protected Areas Act 57 of 2003 ("NEMPAA")

and the National Water Act 36 of 1998 ("the National Water Act").

4.3 NEMA provides for a set of principles to be applied throughout the Republic

by organs of state when taking decisions which "may significantly affect the

env;ronmenf'. It also prescribes a number of relevant considerations to be

taken into account when sustainable development is considered as part of

integrated environmental management1 .

i Section 2 of NEMA: (a) Sustainable development requires the consideration of all relevant factors including the following:

{i) That the disturbance of ecosystems and loss of biological diversity are avoided, or, where they cannot be altogether avoided, are minimised and remedied;

(il) That pollution and degradation of the environment are avoided, or, where the y cannot be altogether avoided, are minimised and remedied;

{iii) That the disturbance of landscapes and sites that constitute the nation's cultural heritage is avoided, or where it cannot be altogether avoided, is minimised and remedied;

{iv} That waste is avoided, or \Vhere it cannot be altogether avoided, minimised and re-used or recycled where possible and otherwise disposed of in a responsible manner;

(v) That the use and exploitation of non-renewable natural resources is responsible and equitable, and takes into account the consequences of the depletion of the resource;

(vi) That the development, use and exploitation of renewable resources and the ecosystems of which they are part do not exceed the level beyond which their integrity is jeopardised;

(vii) That a risk-averse and cautious approach is appl!ed, which takes into account the limits of current knowledge about the consequences of decisions and actions; and

(viii) That negative impact on the environment and on people's environmental rights be anticipated and prevented, and where they cannot be altogether prevented, are minfmised and remedied.

{b) Environmental management must be integrated, acknowledging that all elements of the environment are linked and interrelated, and it must take into account the effects of decisions on all aspects of the environment and a!I people in the environment by pursuing the selection Of the best practicable environmental option.

6

(c} Environmental justice must be pursued so that adverse environmental Impacts shall not be distributed in such a manner as to unfairly discriminate against any person, particularly vulnerable and disadvantaged persons.

(d) Equitable access to environmental resources, benefits and services to meet basic human needs and 2nsure human well-being must be pursued and special measures may be taken to ensure access thereto by categories of persons disadvantaged by unfair discrimination.

(e}- Responsibility for the environmental health and safety consequences of a policy, programme, project, product, proces~, service or activity exists throughot.it its life cycle.

{f) The participation of all interested and affected parties in environmental governance must be promoted, and all people must have the opportunity to develop the understanding, skill and capacity necessal)' for achieving equitable and efTective participation, an.:l participation by vulnerable and dis;:idvantaged persons rnust be ensured.

{g) Decisions must take into account the interests, needs and values of all interested and affected parties, and this includes recognising all forms of knowledge, including traditional and ordinal)' knowledge.

(h) Comrnun!ty well-being and empowerment must be promoted through environmental education, the raising of environmental awareness, the sharing of knowledge and experience and other appropriate means.

(i) The 'ociol, eoonomic ond envirnnmeotol impoct' of octivitie,, indoding di>"dvontog" end becefit>. must be considered, assessed and evaluated, and decisions must be appropriate in the light of such consideration and assessment,

Ul Th• eight of wockm to '''°'' week that i> hocmfol to human heokh cc the envirnoment end to be informed of dangers must be respected and protected.

(k) Decisions must be taken in an open and transparent manner, and access to information must be provided in :accordance with the 1av1.

(1) There must be inter-governmental co-ordination and harmonisation of policies, legislation and actions relating to the environment.

(m) Actual or potential conflicts of interest bet\Veen organs of state should be resolved through conflict resolution procedures.

(n) Global and international responsibilities relating to the environment must be discharged in the national interest.

(o) The environment is held in public trust for the people, the beneficial use of environmental resource~ must serve the public interest and the environment must be protected as the people's common heritage.

(p) The costs of remedying pollution, environmental degradation and consequent adverse health effects and of preventing, controlling or minimising further pollution, environmental d<image or adverse health effects must be paid for by those responsible for harming the environment.

(q) The vita\ role of \Vernen and youth in env\ror.menta! management and development must be recognised and their full participation therein must be promoted.

)

-'·~·

7

4.4 In particular, in addition to all the other listed principles, section 2(4) (r) of

NEMA provides as follows: " Sensitive vulnerable, high dynamic or stressed

ecosystems, such as .. , wetlands and similar systems require specific

attention in management and planning procedures, especially where they are

subject to significant human resource usage and development presure".

4.5 NEMBA provides for the management and conservation of the country's

biodiversity within the framework of NEMA. It contains provisions dealing with

the protection of species and ecosystems that warrant national protection. ln

this respect it also lists "restricted activities" which may threaten or harm

threatened or protected species (which includes animal, plant or other

organisms). In terms of section 12 of NEMBA both the relevant Minister and a

MEG may publish lists of eco-systems that are threatened and in need of

protection.

4.6 NEMPAA has as its objectives, stated in section 2 thereof, the provision,

within the framework of national !egis!ation, including NEMA, for the

declaration and management of protected areas, to provide for co-operative

governance in the declaration and management of such areas, including the

promotion of sustainable utilisation of protected areas for the benefit of people

in a manner that would preserve the ecological character of such areas.

4.7 In terms of section 3 of NEMPAA the State, acting through the organs of state

implementing legislation applicable to protected areas, acts as trustee of

those areas in securing the rights contained in section 24 of the Constitution.

4.8 Regarding the management and development of protected areas, in the event

of conflict with any national, provincial or municipal laws, the provisions of

NEMPAA shall prevail2.

2 Section 7{1) of NEMPAA: (1) In the event of any conflict between -a section of this Actand-

(a) Other national legislation, the section of this Act prevails if the conflict specifically concerns the management or development of protected areas;

(b) Provinclal legislation, the conflict must be resolved in term of section 146 of the Constitution; and (c) A municipal by-law, the section of this Act prevalls.

8

4.9 The mining industry in South Africa is well-regulated and in particular by the

Mineral and Petroleum Resources Development Act 28 of 2002 ("MP RDA').

4.10 Various subordinate legislation regulating various aspects of environmental

protection pertaining to mining rights have also been promulgated1.

4.11 In order for a party to conduct mining activities, it must have obtained the

following authorisations:

4.11.1

4.11.2

4.11.3

4.11.4

4.11.4

A mining right in terms of section 23(1) of the MPRDA,

The approval of its environmental management programme

("EMPR") in terms of section 39 of the MPRDA,

An environmental authorisation for listed activities in terms of

section 24 of NEMA,

A water use licence ("WUL") in terms of section 22 (1)(b) of the

National Water Act and

Permission for a change of land-use of the properties comprising

th13 mining area from agricultural and/or conservation purposes to

mining in terms of section 26 (4) of the Spatial Planning and Land

Use Management Act 16 of 2013 ("SPLUMA'').

4.12 In addition to the above, should the proposed mining area fall within a

protected area, the written permission of the Ministers of Environmental

Affairs and Mineral Resources are also required in terms of section 48 of

0 Environmental Impact Assessment Regulations, 2010; Extensions of moratorium GN R160 in GG34057 of 28

February 2011 as amended by GN R287 in GG 34171 of 31 March 2011; Mineral and Petroleum Resources Development Regulations, 2004; Moratorium on the granting of all prospecting rights in South Africa - GN R768 in GG 33511 of 31 August 2010; Spatial Planning and land Use Management Regulations: Land Use Management and General Matters, 2015

9

NEMPM4. It is this lastmentioned provision which primarily forms the

subject-matter of the review in question.

[5] The protected area:

5.1 On 9 December 2011 the late Minister oi what was then the combined

department Water and Environmental Affairs (the deponent to the 1''. 2'' and

5th Respondents' answering affidavit) published a national list of ecosystems

that are threatened and in need of protection. This was done in terms of

Section 52 of NEMBA5. This list included the Wakkerstrooml Luneburg

Grasslands.

4 Section 43 NEMPAA:

(1) Despite other legislation, no person may conduct commercial prospecting, mlning, exploration, production or related activities-(a) In a special nature reserve, national park or nature serve;

[para. (a) substituted bys. 18 {a) of Act 31of2004 (v;ef 1November2005).1 (b) ln a protected environment without the written permission of the Minister and the Cabinet

member responsible for minerais and energy affairs; or (c) \n a protected area referred to in section 9 (b}, {c) or (d).

[para. (c) substituted by s.18 (b) of Act 31 of 2004(wef1 November 2005),] [sub-s. (1) amended bys. 12 of Act 21of2014 {wef 2 June 2014).]

(2) The Minister, after consultation with the Cabinet member responsible for mineral and energy affairs, must review all mining activities which were lawfully conducted in arE:as indicatE.'d in subsE.'ction (1) (a), {b) and (c) immediately before this section took effect.

{3) The Minister, after consultation with the Cabinet member responsible for mineral and energy affairs, may, in relation to the activities contemplated in subsection (2), as well as in relation to mining activities conducted in areas contemplated in that subsection VJhich were dedare as such after the commencement of this section, prescribe conditions under which those activities may continue in order to reduce or eliminate the impact of those activities on the environment or for the environmental protection of the area concerned.

(4) When applying this section, the Minister must take into account the interests of local communities ar,d the environmental principles referred to in section 2 of the National Environmental Management Act, 1998.

5Section 52 of NEMBA: Ecosystems that are threatened or in need of Protection -{1)(a) The rvHnster may, by notice in the Gazette, publish a national list of ecosystems that are threatened

and in need of protection. {b} An MEC for environmental affairs in a province may, by notice in the Gazette, publish a provincial list

of ecosystems in the province that are threatened and in need of protection. (2) The following categories of ecosys~ems may be listed in terms of subsection (1):

(a) critically endangered ecosystems, being ecosystems that have undergone severe degradation of ecological structure, function or composition as a result of human lntervention and are subject to an extremely high risk of irreversible transformation;

10

5.2 Following a prior notice and comment procedure, which included a full

opportunity for stakeholder participation (including Atha, who at that stage

t":e!d prospecting rights in respect farms falling within the area covered by the

notice), as well as a meeting of and discussion amongst stakeholders, the

MEG on 22 January 2014 declared the MPE referred to in paragraph 3 above,

ii terms of section 28 (1)(a)(i) and (b) of NEMPAA6. The MPE included the

ecosystem included in the abovementiond list of 2011.

5.3 On 17 February 2014 the MEG concluded an agreement with the fourth

:espondent in terms of which it was assigned as the management authority for

ihe MPE.

5.4 The MPE comprises of wetlands and grasslands which have been largely

classified as "Irreplaceable Critical Biodiversity Areas" and "Optima! Critical

Biodiversity Areas" and numerous organs state and other stakeholders have

previously recognised the fundamental ecological and environmental

Importance of the area comprising the MPE7.

(b) endangered ecosystems, being ecosystems that have undergone degradation of ecological structure, function or composition as a result of human intervention, although they are not crit\cally endangered ecosystems;

(t) vulnerable ecosystems, being ecosystems that have a high risk of undergoing significant degradation of ecological structure, function or composition as a result of human Intervention, although they are not critically endangered ecosystems or endangered ecosystems; and

(d) protected ecosystems, being ecosystems that have a high conserva~ion value or of high national or provincial irr.portance, although they are not listed in terms of paragraohs (a), 1.Q) or (g.

(3) A list referred to in subsection (1) must describe in sufficient detail the location of each ecosystem on the list.

(4) The Minister and the MEC for environmental affairs in a relevant province, respectively, must at least every five years review any nation or provincial list published by the Minister or MtC in terms of subsection {1}.

{S) P.n MEC may publish or amend a'provincial list only with the concurrence of the Minister.

6 Declaration of protected environment (1) The Minister or the MEC may be notice in the Gazette

( a) Declare any area specified in the notice-(i) as a protected environment; or (ii) as part of an existing protected environment; and

(b) Assign a name to the protected environment. 7 Mpurr.a!anga Biodiversity Sector Plan 2013, the Local Municipality Special Development Framework of 30 November 2010 in terms of the Local Government: Municipal Systems Ac~ 32 of 2000 and the District

M"";,;p,lity'' Spod'I Dovoloprnont F"rnewo;k of 2014, tho ceoogn;tfoc, of tho "" " "on,;rnnrnont.~ G

11

[6] "7he proposed mining operations:

6.1 Apart from the surface infrastructure of the proposed mine, the largest part of

its underground mining footprint falls within the MPE. Boreholes and pipelines

are also proposed over three of the four properties which fall in the MPE.

These various mine components are jointly referred to in the various reports

as the "mine area".

6.2 The proposed mine is an underground coal mine (titled "the Yzerfontein

Underground Coal Mine"). The proposal is to use a conventional "bord-and

pillar" mining method, comprising of the removal of large areas of coal

containing ore and leaving in place underground "pillars" of ore to support the

~roof' of the underground mine. The mining activities would also include the

extraction, crushing, screening and stockpiling of ore and coal as well as the

off-site transportation thereof. The estimated life of the mine is 15 years.

6.3 It is common cause that the mine cannot operate without dewatering activities

and that this was one of the biodiversity concerns already considered when

the mine conducted its environmental impact assessment.

6.4 In terms of the mine's Social Labour Plan, it proposed to provide about 576

employment opportunities, some of which will benefit the local communities.

A proposed amount of R2 million would also be invested towards ski!\s

development, including core skills training, internal !earnerships, external

learnerships, portable skills, bursaries and internships.

[7] The decisions sought to be reviewed:

7 .1 The decisions sought to be reviewed are contained in a letter directed to

Atha's Senior Vice-President. The relevant portion thereof reads:

sensitive" in the Annual Report of 31 May 2012 by the Minerals Minister, the Atlas of National Fresh\vater Ecosystem Priority Areas of August 2011, the CSIR Strategic Water Sour_ce Areas Report of March 2013 prepared for the WWF-SA and the Grasslands Programme included in the Mining and Biodiversity Guidelines: Mainstreaming Biodiversity into the Mining Sector published by, inter alia , the department of the two Minister in question on 22 May 2013.

()

12

" ... please be advised that the Ministers of Environmental Affairs and

Mineral Resources have decided to grant Atha-African Ventures (Ply)

Ltd permission to mine within the Mabola Protected Environment in

terms of section 48 of the National Environmental Management:

Protected Ares Act (NEMPAA), 2003 (Act no 57 of 2003)".

7.2 The letter was signed by the late Minister of Environmental Affairs on 20

August 2016 and, some three months later, by the Minister of Mineral

Resources on 21 November2016. The MEG was copied on the letter.

7.3 Attached to the letter were the "permission and reasons for the decision".

They are similarly signed. Therein, the decisions were recorded as follows:

"The Minster of Environmental Affairs (DEA) and Mineral Resources

(DMR) are satisfied, on the basis of information available to them and

subject to compliance with the conditions of this permission, that the

applicant should be permitted to mine within a Protected Environment

in terms of Section 48(1){b) of the National Environmental

Management: Protected Areas Act, 2003 {Act no.57 of 2003)

(NEMPAA).

Non-compliance with a condition of this permission may result in the

permission being suspended or withdrawn. These permission is (sic)

not transferable should the company change hands.

Details regarding the basis on which the f\ivo Ministers reached this

decision are set out in Annexure 1".

7.4 Annexure 1 referred to above lists that the minister (singular) has taken Into

account the decision of the MEG to declare the MPE "and its associated

processes", the draft MPE Management Plan, the mining right and its

Environment Management Programme, the Environmental Authorisation,

Environmental Impact Report dated January 2014 ~and its associated

13

specialist studies", the Water Use Licence, Mining and Biodiversity Guidelines

and NEMA Section 2 principles.

7.5 The findings which the Ministers have made "after consideration of the

information and factors listed above" were stated as fot!ows:

"(a) The Yzermyn Underground Mine has received other required

authorisations from relevant organs of state which have jurisdiction in

respect of the activity, including the Water Use Licence, the Mining

Right and approved Environmental Management Plan, and the

Environmental Authorisation. These decisions include measures to

minimise impacts on environmental resources.

(b) The mining activity will not compromise the management objectives of

the Mabola Protected Environment as ii stipulated in the draft Mabola

Protect Environment management plan.

(c) The mining and Biodiversity Guidelines, 2013, signed by both Ministers

(DEA and DMR) support the development of the country's resources in

a manner that will minimise the impact of mining of the country's

biodiversity and ecosystem seNices.

(d) Potential impacts have been clearly highlighted and the proposed

mitigation of impacts identified and assessed in the EIR dated January

2014 adequately curtails the identified impacts.

(e) This permission further includes specific conditions to ensure that the

mineral resources are developed in an orderly and ecologically

sustainable manner wh;Je promoting justifiable social and economic

development thus giving effect to the provisions of section 24 of the

constitution and NEMA Section 2 Principles".

[8] The grounds of review:

14

It was common cause that the decisions of the Ministers constitUted administrative

acts which are as such reviewable by a court. A summary of the thirteen grounds of

review relied on by the Applicants is the following:

8.1 Transparency. The Applicants contend that the decisions were not taken in a

transparent manner and almost in a clandestine fashion.

8.2 Procedural unfairness. It ls common cause that the Ministers did not follow

the prescripts of Sections 3 and 4 of PAJA. They contended that they were

justified in departing therefrom. Their contention is disputed.

8.3 Ministers' duties. It was submitted on behalf of the Applicants that the

Ministers misconstrued their duties and obligations in terms of section 48 of

NEMPM.

8.4 Exceptional circumstances. The Applicants contend that permission to mine

in a protected area should only be granted in "exceptional circumstances\' and

that these words should be read into Section 48 of NEMPAA ..

8.5 The management plan. The Applicants contend that the decisions could not

be reasonably taken in the absence of a final management plan for the MPE.

8.6 The Applicants pointed out that Atha's Social and Labour Plan was not before

the Ministers when they took their decisions and they could therefore not

properly have complied with Section 48(1)(b) of NEMPM, or have applied

their minds when they imposed the following condition to their permissions:

"30 All social issues inclusive of affected homesteads and

relocations must be addressed with the approved social and

labour plan as informed by the social impact assessment report

and regulated by the Department of Mineral Resources".

8.7 The Ministers overlooked a SAS 2015 Report. In May 2015, Scientific Aquatic

Services ("SAS"), one of the specialists commissioned by Atha's

environmental assessment practitioner, conducted a detailed assessment of

15

the surface infrastructure of the wetlands in question. There is a dispute as to

whether the overlooking of this report was immaterial or not

8.8 The Applicants contend that NEMPAA invokes a "cautionary principle" in

dealing with protected areas and that the Ministers overlooked this.

8.9 The Applicants complain about the inadequate provisions for rehabilitation

proposed by Atha and the decisions should be reviewable for not sufficiently

addressing this issue.

8.10 The tenth, twelfth and thirteenth grounds of review were lumped together and

all deal with the accusation of a failure to take the country's international

responsibilities relating to the environment into account and the failure to

ensure intergovernmental co-ordination and planning In dealing with the use

and exploitation of non-renewable natural resources.

8.11 The eleventh ground of review was the Ministers' failure to have awaited th'e

outcome of various statutory appeals regarding the different authorisations

required by Atha as referred to in paragraph 4.11 above.

8.12 The review grounds therefore encompass the grounds of not having acted

within the ambit of the enabling legislation, having acted procedurally unfair

and by failing to take relevant considerations into account and by taking

irrelevant considerations into account, al! contemplated in section 6(2) of

PAJA8.

a Settion ,6(2) of PAJA: Section 6(2) provides: "A court, .. has the power to judicially review an administrative action if:

(a) The administrator who took it-(i) Was not authorised to do so by the empowering provision ...

(b) a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;

{c) the action was procedurally unfafr; (d) the action was materially influenced by an error of law; (e) the action was taken ...

(iii) because irrelevant consiCerations were taken lnto account or relevant considerations were not considered; .. .

{f) the action itself; .. . (i) contravenes, a law or is not authorised by the empo~vering provisions; or

16

[9] The Respondents' stances:

9.1 The first, second and fifth Respondents (the Minsters and the MEC) opposed

both the main and ancillary relief sought by the Applicants. The MEC's stance

was somewhat modified by his application for postponement but, when this

ivas dismissed, he thre\'°" his weight again behind the Ministers' opposition.

9.2 Atha was not opposed to the revie1,,v of the Ministers' decisions but opposed

the terms of remittal proposed by the Applicants.

9.3 I shall deal with these stances together with the grounds of review, some of

which are, as should already be apparent from their formulation in paragraph

8 above, more substantial than others and some overlap with each over.

[10] The nature of the decisions taken:

10.1 Before dealing with the grounds of review, certafnty must be established in

respect of the proper interpretation of the enabling statutory enactment, being

Section 48 of NEMPAA. All counsel were ad idem that no judicial

interpretation or pronouncement on this section has yet been made. Ms Pillay

SC (for the Ministers and the MEC) further pointed out that the permissions

sought from the Ministers and the nature of their decisions were novel, as if to

say, if they had erred, they should not be blamed. Be that as it may, the

interpretation of the section ties in with the Applicants' fourth ground of review

(which is vehemently disputed), namely the contention that upon a proper

contextual and purposive interpretation of Section 48(1)(b) of NEMPAA,

permission to mine should only be granted by the Ministers in exceptional

circumstances.

(ii) is not rationally connected to1 (aa) the purpose for which it Was taken; {bb} the purpose of the empowering provisions; (cc) the information before the administrator; or (dd) the reason5 given for it by the administrator;

17

10.2 Somewhat related to these contentions of the Applicants is their notion of the

supremacy of NEMPAA over other legislation (bolstered by the express

wording of section 7 of NEMPM) and the sequence or chronology of the

authorisations needed by Atha. The applicants contend that for any

prospective mining operations 1n a protected environment, all the required

authorisations should already have been obtained and then one would

additionally need the permission of the Ministers, which should only be

granted fn the aforesaid exceptional circumstances. The opposing

respondents pointed out that, contrary to the position in, for example the

MPRDA, there is no prescribed sequence or hierarchy of authorisations in

NEMPAA. Notionally, one could then first "test the water" by ascertaining the

views of the Ministers and their consent could be made subject to the

obtaining of other authorisations.

10.3 The issues are therefore twofold: the one deals with the sequence of

authorisation vis-a-vis Ministerial permissions and the other deals with the

issue of the exceptiona!ity or not of the Ministerial permissions.

10.4 Contrary to what was at some stage suggested by the Respondents, the

Applicants do not contend for a "reading in" of the words "exceptional

circumstances" into Section 48 on the basis that the provision would

otherwise be unconstitutional. They say these words should be read in so as

to render the statute and each of its sections as a functional, integrated and

meaningful whole. Atha, on the other hand, submits that it is sufficient IT one

accepts that, the Ministers are (only)obliged to bring a "stricter measure of

scrutiny" to bear in applications for their consent under the section.

10.5 The Applicants and the Respondents agree (as they should) that statutory

provisions should be interpreted purposively9. In such interpretation,

however, the reading in of an implied provision is only permissible if the

9 Bate Star Fishing (Ptv) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 {4) SA 490 CC at para [91]; Department of land Affairs v Goedgelgen Tropical Front (Pty) Ltd 2007 (6) SA 199 CC at [51] and

Cool !doe> 1186 CCv H"bbocd 2014 (41 SA,474 CC g:-~

18

implication is a necessary one without vi1hich the statutory provision is

ineffectual or incapable of realising the legislative intention 10.

10.6 The proper approach to a purposive interpretation of a statutory provision

consists of the process of attributing meaning to the words used, having

regard to the context provided by reading the provision in light of the

document (in this case NEMPAA) as a whole and the circumstances

attendant upon its coming into existence (in this case Section 24 of the

Constitution) 11.

10.7 In my view, if one follows the process outlined above, it is unnecessary to

"read into" section 48 the qualification of exceptional circumstances (which

wording, by itself, might set the bar higher than the legislative intention). To

purposively give effect to the envisaged environment within and manner in

which the Ministers are obliged to exercise their discretions, section 48 (1)(b)

and 48 ( 4) shou Id be interpreted to mean the following: despite the fact that a

person may have obtained a!! the necessary authorisations required in terms

of all other applicable statutory provisions in order to lal.Nfu!ly conduct mining

activities on a certain portion of land, should that land fa!! within a protected

environment as contemplate-d in NEMPAA, then such a person would, in

addition, need to obtain the written permission of both the Ministers of

Environmental Affairs and Mineral Reso1,1rces to do so. ln considering a

request for such permission, the ministers shall act as custodians of such

protected environment and with a strict measure of scrutiny take into account

the interests of local communities and the environmental principles referred' to

in Section 2 of NEMA. Effect is given by this interpretation to al! the words

expressly used in the section as we!! as the intentions of the Legislature

contained in sections 2, 3, 5 and 7 of NEMPAA referred to in paragraph 4

above and the Act as a whole. It also deals with the issue of sequence of

authorisations.

10 Masetlha v President the Reoub!ic of South Africa 2008(1) SA 565 CC at [192] ll See: Natal Joint Municipal Pension Fund v Endumenl Municipality 2012 (4] SA 593 (SCA) at [18] and the numerous annotations thereon~ a recent one of which. deal With the legality of certain conduct in an environmentally sensitive area (although in a different context) in Goncgoose & others v Minister of Agri~uiture & others 2018 (5) SA 104 (SCA) and most recently in this court in Proxismart Services {Pty) Ltd v Law Society of South Africa 2018 (5) SA 644 GP at para [51]

_,_,,

!

19

[11] I shall now deal with the grounds of review:

11.1 Transparency:

11.1.1 Sections 3 and 4 of PAJA prescribes the components of procedurally

fair administrative action. Sections 3(2)(b) and 4(1), 4(2) and 4(3)

prescribe either adherence to direct audi alterem parlem-princip!es

or public participation respectively. Both these two routes demand

and would result in transparency.

11.1.2 In the present instance, it was conceded that these provisions were

not followed and the Ministers allege that they werei justified in

departing therefrom (as envisaged in sections 3(4) and 4(4)(a)). The

consequence of their departure was that there was no transparency

in the decision-making process but whether this constitutes a

separate substantive ground for review in this case, shall depend on

the issue of whether the departure from sections 3 and 4 were

justified or not. I.e. if the Ministers were justified in not affording the

Applicants either a hearing or participation in a public process, then

the issue of transparency becomes a separate issue or ground of

review.

11.1.3 Before dealing with the aforesaid justification issue, it needs to be

mentioned that there is a disturbing feature in the conduct of the

Ministers or their d_epartments which gave rise to one of the

complaints of a !ack of transparency and it ls this: the primary

beneficiaries of the mining activity sought to be permitted are based

off-shore and their local BEE component is, to an extent, "politically

connected". There was therefore, apart from the statutory

requirements, a compelling need for environmental decision-making

to take place openly. As the advocates who appeared for the

Applicants put it; "ethical environmental governance and behaviour is

enhanced simply by exposing it to the glare of public scrutiny".

When the Applicants heard from media reports that Atha might be in

~o

20

the process of obtaining the Ministers' permission as contemplated

in Section 48 of NEMPAA, they started making written enquiries.

Officials "bounced" the correspondence between various officials to

such an extent that formal PAIA requests for information had to be

made by the Applicants during the second half of 2016. In response

to these requests, only given on 29 November 2016, the relevant

officials forwarded Atha's section 48(1) request, dated then as tong

ago as 3 May 2016 without informing the Applicants that the request

has already been acceded to by the- Minister of Environmental Affairs

on 20 August 2016 and by the Minister of Mineral Affairs on 21

November 2016. This, the Applicants only found out by chance an

31 January 2017 when the Ministers' permissions were attached to a

letter from a completely different department, namely that of the

Department of Water and Sanitation. The relevant Respondents

admit the correspondence and sequence of events but by way of a

bare denial deny that the Applicants were kept in the dark.

11.2 Procedural unfairness

11.2.1 In no less than six Instances in the answering affidavit deposed to by

the late Minister of Environmental Affairs on behalf of herself and the

Minister of Mineral Resources it is conceded that the prescripts for

procedurally fair administrative action prescribed in sections 3(1),

3(2), 3(3) and 4(1), 4(2) and 4(3) of PAJA were not followed but that

it had been reasonable and justifiable to depart from those prescripts

as contemplated in sections 3(4) and 4(4) of PAJA.

11.2.2 The result of the non-compliance was that the Applicants were never

granted an opportunity to be heard in respect of Atha's request of 3

May 2016. The Ministers' contention that other functionaries had

heard the Applicant's objections in respect of the different

component authorisations referred to in paragraph 4.11 above is no

answer or justification: in dealing with, for example, a water use

licence appeal, the Applicants cannot be expected to present

21

arguments which they may have presented in respect of a Section

48(1)(b) of NEMPM request. Neither were the functionaries who

heard these various processes the same.

11.2.3 Despite this, the late Minister of Environmental Affairs said in her

affidavit that she considered the aforesaid departure justifiable in the

circumstances and that the Minister of Mineral Resources

"concurred".

11.2.4 Apart from the aforesaid ipse dixit, the evidentiary difficulty the court

had, was that this departure decision was not reflected in the letter

containing the permission (referred to in paragraph 7.1 above) and,

more importantly, neither in the reasons and findings for their

permission (referred to in paragraphs 7.3 - 7.5 above). There was

no evidence, written or othenwise (apart from the answering affidavit)

indicating that, prior to the launching of the review application, the

departure from the procedural requirements referred to above was

motivated, considered or "concurred" with or that any of the

component specific factors listed in Sections 3(4)(b) and 4(4)(b) of

PAJA had been considered as the Minsters had been required to

do12. No internal documents or memoranda in this regard could be

pointed out by Ms Pillay SC who appeared for the Ministers and had

to play the hand she was dealt.

11.2.5. My initial impression of the Ministers' method of exercising their

discretion was simply to apply a "tick-box" approach, namely, had all

the other organs of state given their approvals? If so, then

permission is granted. Counsel for the Respondents vehemently

argued that this was not the case and that the Ministers simply

sought to avoid a duplication of previous investigations and

considerations and relied on the documents submitted in respect of

each of the other required authorisations.

12 See: Scalabrinl Centre v Minister of Horne Affairs 2013 (3) SA 531 WCC) and MEC. Department of Agriculture, Conservation and Environment v HTF Develooers (Pry) Ltd 2008 (2) SA319 CC at [46]

22

11.2,6 It is, to my mind, astounding that in an admitted novel procedure, the

Ministers decided (if indeed they had done so) that it would be

procedurally fair not to hear the applicants whilst well-knowing that

each and every preceeding authorisation had been hotly co'ntested.

Whatever the case, lt resulted in an unjustifiable and unreasonable

departure from the PAJA prescripts and lead to procedurally unfair

administrative action which should be reviewed and set aside on this

ground alone.

11.2.7 The further attempted justification by relying on the conditions

imposed by the Ministers a'lso does not hold water: one would only

be able to assess if the conditions were fair, justified or sufficient

after one has heard and considered input from au relevant parties

thereon. Here, this was not done.

11.3 The Minsters' distinctive duties

11.3.1 The essence of this ground of review is simply that the discretions

which the Ministers were called upon to exercise, imposed on them

distinctive duties arising from the terms of NEMPAA.

11.3.2 NEMPAA is a distinct statute, dealing with the environmental

management of protected areas. Although it fits into the overall

environmental statutory framework set out in paragraphs 4.1 - 4.8

above, it has supremacy in terms of section 7 of NEMPAA over other

conflicting statutory provisions when it deals vvith protected

environments and the state's trusteeship thereof.

11.3.3 The !ate Minister of Environmental Affairs was therefore simply

wrong where she said in her answering affidavit:

"/ deny that it was incumbent on the Minister to "apply their fresh

minds" to the application. Both Ministers were fully aware of the

23

complex processes undertaken in respect of the authorisation

processed initiated by Atha".

11.3.4 Apart from the fact that the Ministers were expected to do exactly

that, namely apply their minds and not rely on decisions taken by

other officials in terms of other provisions, this contention a!so runs

contrary to the scrutiny required in the purposive interpretation of

section 48(1)(b) of NEMPM set out in paragraph 10.6 above.

11.3.5 Further, apart from raising the spectre of an impermlssib!e "tick-box"

approach, the approach mooted by the Ministers fall foul of the

Constitutional Court decision in Fuel Retailers Association of South

Africa (Pty) Ltd v Director-General Environmental Management

Mpumalanga Province 2007 (6) SA 4 (CC). The principle, as I see

it, is that each functionary operates within the purpose and ambit of

his or her own enabl[ng statutory provisions when taking

administrative action and the satisfaction of the requirements of a

specific section or act does not necessarily equate to satisfaction of

a similar requirement in a different section or act, particularly when

lastmentioned is to be adjudicated by a different functionary.

11.3.6 On more than one level therefore, the Ministers have not appreciated

their distinctive duties and neither have they fulfilled them in the

manner in which they came to their conclusions. Their decisions

should therefore be reviewed and set aside,

11.4 The fourth ground of review, dealing with the issue of whether exceptional

circumstances must exist for a party to be able to obtain permission to

conduct mining activities within a protected environment, has been dealt with

above in the interpretation of section 48(1)(b).

11.5 The management plan

! ~~;

Lj. L,"

24

11.5.1 In terms of Section 39(2) oi NEMPAA the assigned management

authority of any protected area (which includes a declared protected

environment) must, within 12 months of the assignment submit a

management plan for the protected area in question.

11.5.2 The fourth respondent is the management authority for the MPE but

had to date only prepared a draft management plan which has not

yet undergone al! its consultative and approval processes.

11.5.3 The Applicants' argument is, in short, that unti! the Ministers know

how the specific part of the protected environment in which the

proposed mining area is situated is going to be managed or how the

management criteria set out in section 40 of NEMPAA is going to be

applied, they should be precluded from exercising their discretion in

terms of section 48(1)(b) of NEMPAA.

11.5.4 If this is not a substantive ground for review it should form part of the

directives or conditions when the matter is remitted to the Ministers,

so the Applicants contend.

11.5.5 I agree. On the same basis as the Ministers would ne-ed to kno1;v

what the position is in respect of all the other prescribed

authorisations so as to be able to exercise their discretion in an

informed manner pertaining to a protected environment in respect of

which they represent the trustee, they can only do so once they have

been able to consider how their consent, if granted, Wi!l either fit in

with or impact on the management of the specific environment.

Logic dictates this, not only in general, but even more so in the

present instance where the management of water and all aspects

pertaining thereto are a comm_on feature of both the wetlands and

the proposed mine. The importance and status of a management

plan in respect of a protected area in terms of the context of

NEMPAA appears from the recent Supreme Court of Appeal

judgment in Umfolozi Sugar Planters Ltd & others v lsimanqa!iso

25

Wetland Park Authority and others (as yet unreported) SCA

873/2017 1 October 2018.

11.6 Interest of local communities

11.6.1 Section 48(4) of NEMPAA obligates the Ministers to take the

interests of !ocal communities into account when exercising their

discretion. They allege that they have done so but state in their

answering affidavit that "there was no need for the Ministers to

consider the SLP during this process to the exclusion of other

socioeconomic specialist studies". ln addition to the ambiguity of this

statement, the Ministers added compliance with the approved social

and labour plan as- a condition to their consent.

11.6.2 I agree that the reliance on a document, particularly one which

directly impacts on a specified aspect expressly determined in

Section 48(4), without even seeing or considering the contents of

such a document, renders the administrative action manifestly

reviewable. It clearly constitutes a failure to consider relevant

information.

11.7 The SAS 2015 Report

11.7.1 The Ministers concede that they had overlooked this report but

contend that this oversight was immaterial.

11.7.2 However, the fact that the report deals with the assessment (or re

assessment) of two wetlands which are located within 500 metres of

the proposed underground mining boundary, clearly renders the

report and consideration of its contents materlal and relevant. It

should also be noted that various biodiversity sectors of the

protected environment have been classified as "protected",

"irreplaceable" or at !east "highly significant". Therefore the same

argument and finding applies as in paragraph 11.6.2 above.

I Ii L}- ''"r~

26

11.8 Cautionary rule

11.8.1 The Applicants contend that. with reference to the principles set out

in section 2 of NEMA (incorporated in Section 48(4) of NEMPAA),

decision-making authorities should apply a risk-averse and cautious

approach when dealing with "sensitive, vulnerable, highly dynamic or

stressed ecosystems, such as ... wetlands and similar systems".

11.8.2 The Applicants further contend that, in particular with regard to the

management of a::id mine drainage post closure of the proposed

mine, no cautionary approach had been adopted.

11.8.3 Without raising the "cautionary approach" to a substantive ground of

review beyond its compulsory inclusion in the decision-making

process by means of Section 48(4) of NEMPAA, it is clear from the

findings and reasons for their decisions and from the condftions

imposed by the Ministers, that they simply relied on the mitigation

and management of "acid mine drainage, where applicable,

according to the requirements of OWS" (this ls a quotation of one of

the conditions and "DWS" refers to the Department of Water and

Sanitation}.

11.8.4 The above constitutes both an impermissible abdication of decision

making authority and a non-compliance with Section 48(4) of

NEMPAA, rendering the decisions reviewab!e.

11.9 Rehabilitation

11.9.1 The Applicants complain that too little financial provisions have been

made or conditions imposed to ensure complete rehabilitation of the

MPE in consequence of the proposed coal mining activities.

11.9.2 From the concessions made by the Ministers, it appears that they did

not independently and distinctively consider this, but relied on the

27

approval of the environmental programme submitted in respect of

the mining licence. There appears not to have been any separate

application of their minds as to whether the rehabilitation proposed

therein would be sufficient for the MPE or whether, as trustees of a

protected environment, they should be satisfied therewith.

11.9.3 It is for the above reasons that the Applicants contend that this issue

be included in the directions to be given to the Ministers as part of

the remittal of Atha's request for permission. In my view, once fair

administrative procedures are followed during the re-consideration

their decisions, the Applicants will have sufficient opportunity to bring

the specifics of their contentions regarding the sufficiency of

rehabilitation conditions to the attention of the Ministers. They will be

the ones to ultimately take the decisions and exercise their

discretions and courts should be vigilant in not overstepping the

borders of the separation of powers by being over-prescriptive to

administrative decision-makers. I am therefore of the view that this

aspect need not and should not form part of the remittal directions.

11.10 Failure to await the statutory appeals

11.10.1 This was the Applicant's eleventh ground of review. At the time

when the decisions were taken, statutory appeal procedures were

pending in respect of the environmental authorisation granted to

Atha in respect of its envfronmental management programme and its

water use licence.

11.10.2 The parties were ad idem that all the appeals in terms of NEMA, the

MPRDA and the National Water Act fall into the category of so-called

"wide appeals", i.e. they consist of re-considerations of the original

decisions and authorisations and new evidentiary material may be

introduced. "Wide appeals" refer to appeals ln the "wide sense" as

characterised in Tikly v Johannes NO 1963 (3) SA 588 (T) at 590G -

591A. See also, in the environmental sphere and Sea Front for All

28

and Another v MEC. Environmental and Development Planning and

others 2011 (3) SA 55 f:NCC} at [24] - [28].

11.10.3 In similar fashion as set out in paragraph 11.5 above regarding

management of the protected area, where the permission of the

Ministers envisaged in Section 48 of NEMPAA is an additional

requirement to be obtained by a mining company in respect of

prospective mining operations in a protected environment after all

other authorisations had been obtained, it must follow that, until all

internal remedies have been exhausted in respect of such

authorisations, their existence, nature or any conditions attached

thereto, would not have been determined.

11.10.4 Insofar as the Ministers had also contended, both in their answering

affidavit in general and, in their attempt to justify their departure from

Sections 3 and 4 of PAJA_, that they had relied on the decisions

reached and processes followed by the various decision-makers in

respect of all the other authorisations required by Atha, it must also

follow that, until al! internal appeals have been concluded, the

processes, submissions and possible new or updated e_videntiary

material in the form of further submissions and/or reports are

incomplete.

11.10.5 The Ministers' contention that, in pursuance of effective governance,

they could not 1..vait for these other processes to conclude before

exercising their discretions, is no answer. Their conduct also runs

contrary to the interpretation of Section 48(1}(b} of NEMPAA referred

to in paragraph 10.6 above. Mr Lazarus SC, who appeared for

Atha, correctly in my view, was constrained to agree that, fn the

course of being called upon to exercise a discretion, "more

information is always better than less".

11.10.6 The requirement to wait until finalisation of internal appeal

procedures (and the possible furnishing of further evidence and

29

information) will therefore be one of the directives to be made in the

remittal of the Ministers' decisions.

11.11 Grounds ten. twelve and thirteen

These grounds have largely been encompassed by the interpretation placed

on section 48(1)(b) and 48(4) of NEMPAA earlier in this judgment In View of

the conclusion having been a!ready reached in the preceding paragraphs that

the Ministers' decisions should be reviewed, set aside and be remitted, it is

neither apposite nor necessary to make further comments in respect of these

grounds save for the following: a failure to take South Africa's international

responsibilities relating to the environment into account and a failure to take

into account that the use and exploitation of non-renewable natural resources

must take place in a responsible and equitable manner would not satisfy the

"higher level of scrutiny" necessary when considering whether mining

activities should be permitted in a protected environment or not. Such failures

would constitute a failure by the state of its duties as trustees of vulnerable

environments, particularly where it has been stated that "most people would

agree, whe_n thinking of the tomorrows of unborn people that it is a present

moral duty to avoid causing harm to the environment". See: Du Plessis,

Climate change, Public trusteeship and the tomorrows of the unborn, 2015

SAJHR 260. Such failures might also amount to impermissibly failing to take

relevant considerations into account.

[12] The postponement aoplication

12.1 The Matter was, as already stated, set down for argument on Tuesday

16, Wednesday 17 and Thursday 18 October 2018. The extent of the

papers (including affidavits, documents, correspondence, maps,

diagrams and reports) as we!! as heads of argument were extensive.

12.2 Apparently without notice or recourse to his legal team, the MEC

published his intention to exclude the area of the proposed mining area

from the MPE in terms of section 29 (b) of NEMPM on Friday 12

' [ <?· u. l\ ' '

30

October 2018. Members of the public were invlted to submit

representations within 60 days of the publication of the notice.

12.3 His purpose for his intention was set out in the notice as the following:

1. To ensure balance towards use of n'atural resources for socio

economic beneffts of all the citizens/community of Pixley Ka Seme

Local Municipality and the country, while promoting environmental

protection and sustainability;

2. To ensure/promote economic growth of the country and the

community of the area;

3. To promote co-existence of mining activities and conservation

within the area on the properties, the boundaries of which are as

indicated on addendum 1 and 2 hereto".

12.4 How the notice got to the attention of the state attorney is not clear and

neither was it disclosed, but the state attorney received instructions to

apply for a postponement of the application on the following basis:

"This document was only brought to the attention of the legal

team acting for the first, second and third Applicants on 12

October 2018. I was advised by the legal advisor acting for the

MEC that the reason is that the MEC did not, at the time,

appreciate the fink bef)Jveen the notice (annexure A) and the

litigation currently before cowt. Once I explained that the two

were closely related, and that any decision to exclude the land in

question from the MPE would render the main application moot,

I was instructed to bring this application and bring the annexure

"A'' to the attention of the court'.

31

12.5 The State Attorney's affidavit and the application for postponement

were brought to my chambers on the afternoon of Monday 15 October

2018.

12.6 Should the MEG exclude the area in question, it would render the

Ministers' decision unnecessary and moot. The timing of the

publication of the notice and the possible prevention or avoidance of a

decision by a court in respect of a pending matter of the nature as set

out above was unfortunate, to say the least. The fact that costs were

tendered did not alleviate the situation and would constitute yet another

instance of public funds being wasted by way of unnecessary litigation.

12.7 In view of the unsatisfactory (or absent) explanations as to the timing of

the notice and its motive, I stood the main application down in order for

the MEG to produce his own affidavit, which he did on Tuesday 16

October 2018. In it, he confirmed his instructions to apply for a

postponement of the main application and stated as his rationale tor

publishing the notice the receipt of a memorandum dated 6 March

2018 from a large portion of the local community in the Dr Pixley Ka

lsaka Serna Municipality (accompanied by a petition of 8500

community members). The community apparently expressed concerns

about the declaration of the MPE (which had already been done four

year ago), the lack of a management plan and the impoverishment of

the community due to a lack of development in the area. The MEC's

explanation for the lengthy time lapse since receipt of the

memorandum is sparse in the extreme save for the facts that he had

raised the memorandum with his "counterparts~ in the Mpumalanga

Provincial Government and, significantly also, the late Minister of

Environmental Affairs. In any event, on 27 September 2018 (6 months

after receipt of the memorandum) he decided to embark on a public

participation process which is foreshadowed in the notice. He was

oblivious of the impact of his conduct on the pending litigation in which

he features prominently.

32

12.8 The application for postponement was vehement!y and substantively

opposed by the Applicants.

12.9 It was clear that the published intention by the MEC may result in

various possible permutations. lf, after receipt of written submissions

by 12 December 2018, the MEC decided to exclude the proposed

mining area from the MPE then Atha would no longer need the

Ministers' permission in terms of section 48(1)(b) of NEMPM. To this

extent, the main application for review of their decisions- might be moot.

Having regard to the nature and extent of the Applicants' expressed

concerns about the wetlands in question, an attack on such a decision

of the MEG ls quite foreseeable, which attack may or may not be

successful. If successful, the current review would then re-surface with

all the present costs (and time) having been lost and which would have

to be expended again. The same would happen if the MEC decides

not to exclude the area in question.

12.10 The Applicants contended that currently, the decisions of the Ministers

are not moot, are the subject matter of a pending review application in

respect of which al! parties had expended substantial resources and in

respect of which the applicants insist on exercising their Constitutional

rights of access to a court of law set out in section 34 -of the

Constitution.

12.11 Even if an issue of true mootness had arisen, the court has a discretion

to still hear a matter. Examples have featured In appellate litigation

such as Centre for Child Law v Hoerskool Fochville 2016 (2) SA 121

(SCA), Natal Rugby Union v Gould 1999 (1) SA 432 (SCA), Executive

Officer. Financial Services Board v Dynamic Wealth and Others 2012

(1) SA 453 (SCA). As set out in the Centre for Child Law-case at [11],

the broad distinction between the cases where an appeal had been

heard despite mootness of the order appealed against and those cases

where a court has refused to entertain the merits, is that in the former a

discrete legal issue of public importance arose which would effect

33

matters in the future and on which adjudication is required, whilst in the

latter, no such issue arose See: Qoboshiyane NO v Avusa Publishing

Eastern Cape (Pty) Ltd 2013 (3) SA 315 (SCA) and IEC v Langberg

Municipality 2001 (3) SA 925 (CC) .

12.12 Apart from the issue of wastage of costs and time, I was of the view

that the Applicants' contentions referred to in paragraph 12.10 above

should be upheld. Moreover, the Ministers' decisions are not yet

irrelevant (and may possibly not ever become irrelevant) and true

mootness does not yet exist. Even if it did and, applying the same

principles as in appellant litigation, all parties agreed that clarity on the

interpretation of Section 48 and the Ministers' duties and approach

thereto are needed, not only for this matter but for future similar

matters.

12.-13 I have therefore, for the reasons as set out above and, in the exercise

of my discretion, refused the application for postponement. I also

found that there was no reason to depart from the customary approach

that costs should follow the event Having regard to the timing of the

application for postponement and the manner in which it was launched,

I found that its refusal justified a punitive cost order, which I granted.

[13] Costs:

I find, in respect of the main application, that the Applicants have clearly been

substantially successful and are entitled to their costs. The matter does not

fall in the class of constitutional litigation envisaged in Biowatch Trust v

Registrar, Genetic Resources and others 2009 (6) SA 232 CC where costs

should not be awarded against the state, even if unsuccessful. Ms Pi!lay SC

further argued that, were the Applicants to be successful and entitled to costs,

ft should not be on a punitive scale. She argued that the Ministers' "handling"

of the Section 48 application was based on a "genuine interpretation of a

statutory provision which has thus far not been interpreted by a court"_ Their

interpretation of Section 48 aside, there Was no justification for the !ack of

34

transparency or the departure from sections 3 and 4 of PAJA, both of which

could have gone a long way in possibly even preventing litigation.

Compliance therewith would certainly have removed a large portion of the

grounds of review which featured in this matter. A punitive cost,s order is

therefore justified. Atha was a necessary, but not voluntary, party to the

litigation and did not seek costs -from either the Applicants or the other

respondents. It opposed certain of the ancillary rellef in the event of remittal

but otherwise sought to remain out of the fray. lt should therefore neither be

liable nor entitled to costs.

[14] Order:

In the premises, I grant an order as follows:

1. The decision of the First Respondent on 20 August 2016 to grant the Third

Respondent written permission to conduct commercial mining in the Mabo!a

Protected Environment in terms of section 48(1)(b) of the National

Environmental Management: Protected Area Act, No. 57 of 2003 ("NEMPAA")

is reviewed and set aside.

2. The decision of the Second Respondent on 21 November 2016 to grant the

Third Respondent written permission to conduct commercial mining in the

Mabola Protected Environment in terms of section 48(1)(b) of NEMPAA rs

reviewed and set aside.

3. The Third Respondent's application for written permission to conduct

commercial mining in the Mabo!a Protected Environment in terms of section

35

48(1)(b) of NEMPAA is remitted to the First and Second Respondents for

reconsideration.

4. In reconsidering the Third Respondent's application for written permission to

conduct commercial mining in the Mabola Protected Environment in terms of

section 48(1)(b) of NEMPAA, the First and Second Respondents are directed

to consider all relevant considerations and -

4.1 to comply with sections 3 and 4 of the Promotion of Administrative

Justice Ac~ No. 3 of 2000;

4.2 to take into account the interests of local communities and the

environmental principles referred to in section 2 of the National

Environmental Management Act. No. 107of1998 ("NEMA");

4.3 to defer any decision in terms of section 48(1)(b) of NEMPAA until after

the decision of -

4.3.1 the Applicants' statutory appeal to the Director General:

Department of Mineral Resources in terms of the Mineral and

Petroleum Resources Development Act. No. 28 of 2002 against

the approval of the Third Respondent's environmental

management programme; and

4.3.2 the Applicants' statutory appeal to the Water Tribunal in term of

the National Water Act. No. 36 of 1998 against the decision to

issue a water use licence to the Third Respondent;

4.4 not to consider the granting of permission to conduct commercial

mining in the Mabo!a Protected Environmental in terms of section

48(1)(b) of NEMPAA until a management plan for the MPE has been

approved by the Fifth Respondent in terms of section 39(2) of NEMPAA

and to consider the contents thereof.

4 •

36

5. ln the event that, prior to the completion of the reconsideration contemplated

in paragraphs 3 and 4, the Fifth Respondent decides in terms of section 29 (b)

of the National Environmental Management: Protected Areas Act No. 57 of

2003, to exclude the farms referred to in Provincial Notice 127 of 2018

("Gazette notice"), from the Mabola Protected Environment, any party may

apply to court on the same papers, duly supplemented, on notice to the other

parties, for an order varying paragraphs 3 and 4 or granting such alternative,

further or interim relief as may be just and equitable in the circumstances.

6. The First, Second and Fifth Respondents are directed to pay the applicant's

costs of this applicatio_n, jointly and severally of the attorney and client sca!e,

the one paying the other to be absolved, such costs to include the costs of

two counsel.

Date of Hearing: 1 7 and 18 October 2018

Judgment delivered: 8 November 2018

APPEARANCES:

For the Applicants:

Attorney for Applicants:

' 0

NDAVJS Judge of the High Court

Gauteng Division, Pretoria

Adv. A Dodson SC with

Adv. A du Tait

Centre for Environmental Rights

.- -- ,-,_,--, ' -, . ,

I

37

c/o Du Plessiss & K"1yshaar Inc,

Pretoria

For the 1st, 2nd and 5th Respondents: Adv. K Pillay SC with

AdvL Gumbi

Attorney for I", 2"' and 5th Respondents: The State Attorney, Pretoria

For the 3'' Respondent: Adv. P Lazarus SC with

Adv. A Pantazis

Attorney for 3'' Respondents: GF Joubert Attorneys, Pretoria

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

PRETORIA 8 NOVEMBER 2018

BEFORE THE HONOURABLE MR JUSTICE DAVIS


MINING AND ENVIROMENTAL JUSTICE COMMUNllY NETWORK OF SOUTH AFRICA

GROUNDWORK




CASE NO: 50779117

1ST APPLICANT

zND APPLICANT

3RD APPLICANT

4 TH APPLICANT

5 TH APPLICANT

FEDERATION FOR A ENVIRONMENT

5 Slfll\ LICANT fl-fl! MIQl-j C()UM:t F 6 TH APP 6AUTi!AtO<JJ\IJSIO~ SOUTHAFRICA

ASSOCIATION FOR DEVELOPMENT

w

BENCH MARKS FOU N

And

MINISTER OF ENVIR

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LICANT

LICANT

CfitFFIER VAN DIE "1 c; 00ccel'iEcsHo A ...... "'.ul~~-AFDELtNcF su10 . ..,rf9\"R

TOR1A ' ::.


ATHA-AFRICA VENTURES (PlY) LTD

SPONDENT

zND RESPONDENT

3Ro RESPONDENT

4 TH RESPONDENT THE MABOLA PROTECTED ENVIRONMENT LANDOWNERS ASSOCIATION

.,., 51

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MEC FOR AGRICULTURE, RURAL DEVELOPMENT, LAND AND ENVIRONMENTAL AFFAIRS, MPUMALANGA

51H RESPONDENT

HAVING HEARD counsel(s) for the parties and having read the documents filed the court

reserved its judgment.

THEREAFTER ON THIS DAY THE COURT ORDERS

JUDGMENT

1. The decision of the first respondent on 20 August 2016 to grant the third respondent written permission to conduct commercial mining in the Mabola Protected Environment in terms of Seciion 48(1 )(b) of the National Environmental Management Protected Area Act, No. 57 of2003 ("NEMPAA") is reviewed and set aside.

2. The decision of the second respondent on 21 November 2016 to grant the third respondent written permission to conduct commercial mining in the Mabola Protected Environment in terms of Section 48(1 )(b) of NEMP AA is reviewed and set aside.

3. The third respondent's application for written permission to conduct commercial mining in the Mabola Protected Environment in terms of section 48(1)(b) of NEMPAA is remitted to the first and second respondents for consideration.

4. In reconsidering the third respondent's application for written permission to conduct commercial mining in the Mabola Protected Environment in terms of section 48(1)(b) of NEMPAA, the first and second respondents are directed to consider all relevant consid.eration and:

4.1. To comply with sections 3 and 4 of the Promotion of Administrative Justice Act, No. 3 of 2000.

4.2. To take into account the interests of local communities and the environmental principles referred to in section 2 of National Environmental Management Act, No. 107of1998 ("NEMA").

4.3. To defer any decision in terms of section 48(1 )(b) of NEMPAA until after the decision of:·

4.3.1.

4.3.2.

The ~pplicants' statutory _appeal to the Director General: Department of. Mineral Resources 1n terms of the Mineral and Petroleum Resources Development Act, No. 28 of 2002.

Th~ applicants' statutory appeal to the Water Tribunal in terms of the National Water Act, No. 36 of 1998 against the decision to issue a water use licence to the third respondent.

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4.4. Not to consider the granting of permission to conduct commercial mining in the Mabola Protected Environment in terms of section 48(1)(b) of NEMPAA until a management plan for the MPE has been approved by the fifth

'i respondent in terms of section 39(2) of NEMPAA and to consider the contents thereof.

5. In the event that, prior to the completion of the reconsideration contemplated in paragraphs 3 and 4, the fifth respondent decides in terms of section 29 (b) of the National Environmental Management: Protected Areas Act NO. 57 of 2003, to exclude the fanns referred to in Provisional Notice 127 of 201 B ("Gazette notice"), from the Mabola Protected Environment, any party may apply to court on the same papers, duly supplemented, on notice to the other parties, for an order varying paragraphs 3 and 4 or granting such alternative, further or interim relief as may be just and equitable in the circumstances.

6. The first, second and fifth respondents are directed to pay the applicant's costs of this application, jointly and severally of the attorney and client scale, the one paying the other to be absolved, such costs to include the costs of two counsel.

BY THE COURT

~~~ AJ I

Attorney: -

REGISTRAR OF THE t110H COURT OF GOUTH AFRICA ClAUTE "10.Cll\/I &ION,

"HETQHlll.

·11 i 2019 ·02· 2 0 ·~ I • • J • ._.,,r;.· ••

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GRIFFIER VAN DIE ...-oocc.E:REGSHOF ~UIO-AFRIKA, GAl.JTENC-P.FOELING,

PRETORIA

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IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

CASE NO: 50779/2017 PRETORIA 22 January 2019

BEFORE THE HONOURABLE MR JUSTICE DAVIS


MINING AND ENVIRONMENTAL JUSTICE COMMUNITY NETWORK OF SOUTH AFRICA 15

T APPLICANT

GROUNDWORK 2ND APPLICANT

EARTHLIFE AFRICA, JOHANNESBURG 3RD APPLICANT

BIRDLIFE SOUTH AFRICA 4 TH APPLICANT

ENDANGERED WILDLIFE TRUST 5 TH APPLICANT

FEDERATION FOR A SUSTAINABLE DEVELOPMENT 6TH APPLICANT

ASSOCIATION FOR WA t ER AND THE RURAL DEVELOPMENT

1 7 TH ~PPLICANT

BENCH MARKS FOUN9ATION Prfvato &ro xa7 ., • Preto ria 00o1 8 TH APPLICANT

AND I 2019 -02~ 1 1

MINISTER OF ENVIRONMENTAL AFFAtRS A ro26

MINISTER OF MINER,A{L RESOURCES


THE MABOLA PROTECTED ENVIRONMENT : AND OWNERS ASSOCIATION

MEC FOR AGRICULTURE, RURAL DEVELOPMENT, LA~ ID AND ENVIRONMENTAL AFFAIRS, MPUMALANGA

15r RESPONDENT

2ND RESPONDENT

3 RD j RESPONDENT

4 TH RESPONDENT

5 TH RESPONDENT

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-2-

HAVING HEARD counsel for the parties and having read the application for leave to appeal against the judgment of the Honourable Justice DAVIS delivered on 8 NOVEMBER 2018.

HH

IT IS ORDERED THAT

1. The third respondent application for leave to appeal is refused with costs, including costs of two counsel.

2. 'The State respondents to pay the wasted Gf.Sts occasioned by the application for leave to appeal as tendered in their notice f f withdraw of 21 January 2019.

Prlvnte Bag X67, Pretc..rlQ 0001 I

BY THE COURT

Gl)·PAET-028

~R Attorney: CENTRE FOR ENVIRONMENTAL HTS C/O DU PLESSIS AND KRUYSHAAR INC

ANNEXURE D - JUDGMENT

[BEING TRANSCRIBED]

in the supreme court of appeal of south africa appeal ... · applicants, with the registrar of the...

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