Director: Mineral Development, Gauteng Region, and Another v Save the Vaal Environment and Others

• Jurisdiction: South Africa
• Judge: Mahomed CJ, Howie JA, Marais JA, Olivier JA, Madlanga JA
• Judgment Date: 12 March 1999
• Citation: 1999 (2) SA 709 (SCA)
• Docket Number: 133/98
• Hearing Date: 18 February 1999
• Counsel: SJ Grobler (with him LGF Putter) for the first appellantGL Grobler (with him GJ Marcus and LJ Bekker) for the second appellantJR Gautschi (with him PA Meyer) for the respondents
• Court: Supreme Court of Appeal

Olivier JA:

[1] This is an appeal against a judgment of Cassim AJ in an opposed application in the High Court of South Africa, Witwatersrand Local Division, leave to appeal having been granted by the Court a quo. The appeal raises the question whether interested parties, wishing to oppose an application by the holder of mineral rights for a H mining licence in terms of s 9 of the Minerals Act 50 of 1991 ('the Act'), are entitled to raise environmental objections and be heard by the first appellant, who is the official designated to grant or refuse such licence ('the Director'). In the present case, the Director, taking the view that consideration of such objections would be premature at that stage, refused the respondents a hearing. He was I successfully taken on review. The appeal is aimed at reversing the outcome of that review.

[2] The second appellant ('Sasol Mining') is the holder of extensive mineral rights, including those in respect of an area comprising three farms in the Sasolburg district. The farms front on the Vaal River. J

Olivier JA

[3] During May 1996 Sasol Mining was in urgent need of extending its A coal mining activities to the area in question. It was established that the only feasible manner of mining for coal in that area was by open-cast mining. The envisaged mining site is in the north-west part of the area and very close to the southern bank of the Vaal River. Sasol Mining then applied to the Director for a mining licence in terms of s 9 of the Act. B

[4] The first respondent ('Save') is an unincorporated association. Its members are concerned people who own property and live along the Vaal River. Its object, according to its written constitution, is to assist its members to protect and maintain the environmental integrity of the Vaal River and its environs for current C and future generations with specific focus on the area between the Letaba Weir and the Barrage - ie precisely the area in the immediate vicinity of the proposed open-cast mine. The other respondents are either members of Save or property owners in the affected area. All the respondents are united in their opposition to the development and exploitation of the coal reserves by open-cast mining in the area D under discussion. Their concerns are primarily of an environmental nature.

[5] In July 1996, while Sasol Mining's application was still under consideration by the Director, Save's attorney, Mr Barnard, raised the contention that Save is entitled to be heard in opposing the said E application. Towards the end of February 1997 and again in March 1997, the Director informed Barnard that he was not obliged to hear Save at that stage and that he was not prepared to do so. On 22 May 1997 the Director issued a mining licence to Sasol Mining in respect of the envisaged open-cast mine. F

[6] The environmental concerns raised by the respondents can be summarised as follows:

(a)

The destruction of the Rietspruit wetland.

This wetland occurs, inter alia, in the area under discussion. It covers approximately 1 000 hectares. The wetland in its G present state annually filters and purifies naturally in excess of two million cubic metres of improved quality water into the Vaal Barrage. This large volume of water makes a valuable contribution to water quality in the Vaal Barrage. It is alleged that the wetland will be at least partially destroyed by the envisaged open-cast mining. It is further alleged that the eventual replacement of the overburden after H the mine has been worked out would not restore the wetland because the upper layer of hydric soil will have been replaced by undifferentiated soils without water storage capabilities. The affected wetland will thus be permanently destroyed. Furthermore, removal of the overburden - to reach the coal seams - will result in natural seepage I water making contact with iron pyrites in the exposed coal seams. This will create weak sulphuric acid solutions and leaching of acid water into the Vaal Barrage is likely.

(b)

The threat to fauna and flora.

The proposed mining area supports some 254 bird species and some 44 endemic species of mammals. In addition, some 33 species J

Olivier JA

reptiles and amphibians are likely to occur in the area. Some 15 plant A taxa occurring in the area, including the provincial flower, are listed in the Free State's Protected Plants Ordinance. Furthermore, various red data plants (ie plants endangered by or threatened with extinction) have been identified.

(c)

Pollution. B

The predicted constant noise, light, dust and water pollution resulting from the proposed strip mine will totally destroy the 'sense of place' of the wetland and the associated Cloudy Creek. Thus the spiritual, aesthetic and therapeutic qualities associated with this area will also be eliminated. C

(d)

Loss of water quality.

The Vaal...