De Beers Consolidated Mines (Pty) Ltd v Regional Manager Limpopo: The Department of Mineral Resources & Energy and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Khumalo J
• Judgment Date: 04 September 2023
• Citation: 2023 JDR 3383 (GP)
• Hearing Date: 04 September 2023
• Docket Number: 66559/2020
• Court: Gauteng Division, Pretoria

Khumalo J:

Introduction

[1]

Mining and the extraction of mineral and other natural resources is an economic activity which self-evidently has extensive impact and effect upon the environment. [1] The right to an environment that is not harmful to health or welfare is guaranteed by section 24 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”). The Mineral and Petroleum Resources Development Act, 2002 (28 of 2002) (“MPRDA”), is the primary legislative instrument by which effect is given to section 24 of the Constitution in relation to mining activities. Section 2(h) of the MPRDA states that its object is to ensure that the nation’s mineral and petroleum resources are developed in an orderly and ecologically sustainable manner while promoting justifiable social and economic development. [2]

[2]

This is a review application in terms of Rule 53 of the Uniform Rules of Court instituted by De Beer Consolidated Mines (Pty) Ltd (“DBCM”) seeking relief in the following order:

2.1.

Directing that DBCM be exempted from the obligation to exhaust internal remedies as required for in section 7 (2) (c) of PAJA;

2.2.

Declaring that section 43 of the MPRDA as it existed when the DBCM lodged its closure application on 03 November 2009 (pre amendment MPRDA) is applicable to the determination of such application;

2.3.

Declaring that DBCM is not under any obligation to backfill the open pit at the Oaks Mine situated in the Limpopo Province on the properties known as the Oaks 153 MR, Oatlands I51 MR and Jakhalsfontein 199 MR;

2023 JDR 3383 p3

Khumalo J

2.4.

that the decision of the Regional Manager to refuse to grant DBCM’s closure application dated 03 November 2009 alternatively its refusal to decide (“the decision”) the closure application be set aside in terms of section 8 of PAJA;

2.5.

Alternatively, to prayer 4 above, that the decision be declared to be inconsistence with the principle of legality enshrined in section 1 (c) of the Constitution and that it be set aside for that reason;

2.6.

Directing the Minister to grant the closure application and to issue a closure certificate in terms of section 43 (1) of the pre amendment MPRDA, alternatively to issue a closure certificate upon satisfaction of the requirements of section 43 (5) and 13 of the MPRDA;

2.7.

In the alternative to prayer 2.1 - 2.6 above, directing the Minister to consider DBCM’s internal appeal and within 25 days of the grant of this order to decide the appeal, having regard to this Court’s judgement and to communicate his decision to DBCM within 5 days of its being taken; and

2.8.

Ordering those Respondents that oppose this Application to pay the costs of this Application jointly and severally, such costs to include the costs of two Counsel.

Parties

[3]

The 1st Respondent is the Regional Manager, Limpopo: Department of Mineral Resources and Energy and the 2nd Respondent, is the Director General; Department of Mineral Resources and Energy, who are both cited in their capacities as Government employees and organs of state responsible for administering, oversight, implementation and execution of the provisions of the MPRDA, by virtue of the powers delegated upon them by the Minister in terms of the provisions of s 7 and 8 of the MPRDA. The Minister of Mineral Resources and Energy is cited as the 3rd Respondent in his capacity as the cabinet member responsible for administering, oversight, implementation and execution of the provisions of the MPRDA.

2023 JDR 3383 p4

Khumalo J

[4]

De Beers Consolidated Mines Pty Ltd (DBCM) is a member company of the De Beers Group of Companies, the world’s leading diamond group and the owner of the Oaks Mine, that is situated in the rural area of Blouberg District Municipality, Musina in the Limpopo Province, with its registered address in Kimberley.

Factual Background

[5]

DBCM Oaks Mine was an open pit diamond mine that stretches over three farm properties known as the Oaks 153 MR, Oatlands I51 MR and Jakhalsfontein 199 MR, covering a total area of 5 323,5 hectares. It is situated in a remote rural area with no immediate communities or neighbours around it where a small kimberlite pipe was discovered in 1988 having an estimated mine life of only 8 years, to a final pit depth of 200m. The Mine is in the Limpopo Water Management Area, the responsible water authority being the Department of Water Affairs and Forestry (“DWAF”), Polokwane Regional Office.

[6]

On 6 April 1998, DBCM was, in accordance with s 9 (1) read with s 9 (3) (e) of the Mineral Act No. 50 of 1991 (“Mineral Act”) granted a mining licence in respect of the Oaks Mine. An initial Environmental Management Programme (“EMP”) was subsequently submitted by DBCM in February 1998 and approved on 24 June 1998 in accordance with Section 39 (1) of the Minerals Act (since repealed Act). The EMP contained measures to mitigate the environmental impact of mining during the phases of construction, operations, closure and rehabilitation phase. It expressly and significantly indicated that the Oaks mine pit would be rehabilitated by placing certain safety measures, but would in its end state remain open.

[7]

In July 2003, DBCM adopted and applied for an amendment of its initial EMP. The Amended EMP still contained closure steps and rehabilitation measures which DBCM stipulated that “the mine pit to remain open’. The amended EMP was on 29 July 2003, likewise adopted and approved by DMRE in accordance with section 39 (2) (c) of the erstwhile Minerals Act. This was prior to the commencement of the MPRDA on 1 May 2004. The Oaks Mine operated for a period of 10 years between the period 1998 to 2008, therefore de facto seized its operations in 2008. The mining license has

2023 JDR 3383 p5

Khumalo J

since lapsed as it was not converted to the new order right. DBCM submit that the initial and Amended EMP, however remained valid and enforceable in accordance with item 10 of the transitional arrangements in schedule II of the MPRDA. [3] DBCM alleges that s 43 in force at the time of its Application for a closure certificate in November 2009, is applicable to decide its Application, as a result seek such a declaration.

[8]

According to DBCM only 69 hectares of the total area is affected by the mining operations, most of the mining area being undisturbed. During the construction, operation and closure of mine, as well as their rehabilitation, there was a series of measures included in the EMP aimed at protecting the environment from mining impacts. The open cone shape pit was developed due to an open cast mining technic that was used of blasting and excavating the kimberlite and surrounding host rocks. The crushing, washing and screening process was used to extract the diamond from the kimberlite ore remotely from the pit where excavated. The Oaks Mine therefore also comprises of waste rock and mine residue disposal(MRD) complex where waste products could be disposed of. The waste rock extracted from the open pit was to be disposed at the waste rock dump. Some of the waste rock was used to construct the wall of the mine residue disposal complex.

[9]

The cone shaped open pit, covers an area of 8 hectares, and the final void of the pit was intended to cover an area of about 10.5 hectares. The pit’s design allowed an overall pit slope of 50 % with 10 m high benches. The MRD is made up of a series of paddocks for coarse residue deposits and an area for fine residue deposits (slimes). According to DBCM the waste used for the construction of the paddock walls did not reach a final height of 20 m and has since been finally rehabilitated. Similarly, that the MRD complex which occupies 48,9 hectares has also been sustainably rehabilitated.

2023 JDR 3383 p6

Khumalo J

[10]

On 3 November 2009 DMRE submitted an Application for a closure certificate in terms of s 43 [4] (3) of the MPRDA in respect of Oaks Mine appending a closure plan. The closure plan provided for safety, stability and sustainable land and vegetation as well as waste management measures with regard to the open pit mine. Moreover, the closure plan provided for post closure maintenance and control of the open pit, but stated, importantly (as with the Amended EMP) that upon closure of the Oaks Mime the open pit was to remain open. The DBCM argued that both its EMPs were approved unconditionally, as a result it had designed its mining activities and planned its operations on the basis that the pit would remain open.

[11]

On April 2011, the 1st Respondent conducted a site inspection of the Oaks Mine and assessed DBCM’s closure plan. On 7 July 2011 the 1st Respondent reported that DBCM needed to address the following environmental flaws fdings before a closure certificate can be issued (“1st Decision”), which were inter alia, that:

[11.1]

The open pit will pose a high risk to scavengers and illegal mining;

[11.2]

The Department would like to see a practical plan for future land uses that would not encourage illegal mining and scavenger;

[11.3]

All relevant stakeholders must have been consulted for future land use including the principal inspector of mines;

[11.4]

The Department will not issue any Closure Certificate until all the requirement of relevant legislation has been satisfied.

[12]

On 10 November 2012 still on the same findings proffered on 7 July 2011, the 1st Respondent indicated his resolve not to process the Closure Certificate Application unless DBCM complies (“2nd Decision”). In the interim, NEMA was amended on 08 December 2014 introducing section 24R (1) of NEMA [5] Amendment Act 24, 2008 which

2023 JDR 3383 p7

Khumalo J

holds the previous holder of an old order right and owner of works still responsible for any environmental liability, pollution or ecological degradation, the pumping and treatment of extraneous water, the management and...