Mining and Environmental Justice Community Network of South Africa and Others v Minister of Environmental Affairs and Others

• Jurisdiction: South Africa
• Court: Gauteng Division, Pretoria
• Judge: Davis J
• Judgment Date: 08 November 2018
• Citation: 2019 (5) SA 231 (GP)
• Hearing Date: 08 November 2018
• Docket Number: 50779/2017
• Counsel: A Dodson SC (with A du Toit) for the applicants. K Pillay SC (with L Gumbi) for the first, second and fifth respondents. P Lazarus SC (with A Pantazis) for the third respondent.

Davis J: I

Introduction

[1] This is an application heard in the third motion court as a special application in terms of which the applicants seek to have decisions of the J Minister of Environmental Affairs and the Minister of Mineral

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Resources, to permit coal-mining activities in a protected wetlands area, A 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 ss 3 and 4 of the Promotion of Administrative Justice Act 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 B 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, C non-profit community, environmental and human-rights organisations. They are the Mining and Environmental Justice Community Network of South Africa, Groundwork, Earthlife Africa, Birdlife South Africa, the Endangered Wildlife Trust, the Federation for a Sustainable Environment, the Association for Water and Rural Development, and the Benchmarks Foundation. D 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 E 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. Its BEE partner is the Bashubile Trust of which the trustees F are Vincent Gezinhleyiso Zuma and Sizwe 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 G 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).

[3] Postponement H

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 applicants' counsel, I Adv Dodson SC, styled the matter as a textbook case of how case-managed litigation should function. By way 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. The applicants, the first, second and fifth respondents (jointly), as well J

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as A 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 Mabola Protected Environment (the MPE), comprising the wetlands in question. B 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 C postponement and, particularly having regard to the timing of the publication of the notice, required the MEC to furnish a further founding affidavit to the application for postponement, should the MEC persist therewith. Such an affidavit was furnished and the application for postponement was duly argued and dismissed with costs on an attorney D and client scale, including costs of two counsel. In dismissing the application for postponement, I indicated that the reasons therefor would be included in this judgment, which I shall later do.

[4] Statutory framework

[4.1]

In terms of s 24 of the Constitution of the Republic of South Africa E everyone has the right to an environment that is not harmful to their health or wellbeing, and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation, promote conservation and secure ecologically sustainable development and use F of natural resources, while promoting justifiable economic and social development.

[4.2]

The legislation in question, that gives effect to the abovementioned environmental provision contained in the Constitution, is the National Environmental Management Act 107 of 1998 G (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 (NWA).

[4.3]

NEMA provides for a set of principles to be applied throughout H the Republic by organs of state when taking decisions which 'may significantly affect the environment'. It also prescribes a number of relevant considerations to be taken into account when sustainable development is considered as part of integrated environmental management. [1]

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[4.4]

In particular, in addition to all the other listed principles, A s 2(4)(r) of NEMA provides as follows:

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'Sensitive A 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 pressure.'

[4.5]

NEMBA provides for the management and conservation of the B country's biodiversity within the framework of NEMA. It contains provisions dealing with the protection of species and ecosystems that warrant national protection. In this respect it also lists 'restricted activities' which may threaten or harm threatened or protected species (which include animal, plant or other organisms). In terms of s 12 of NEMBA both the relevant C Minister and MEC may publish lists of ecosystems that are threatened and in need of protection.

[4.6]

NEMPAA has as its objectives, stated in s 2 thereof, to provide — within the framework of national legislation for the declaration and management of protected areas, including NEMA — for cooperative governance in the declaration and management of D such areas, including the promotion of sustainable utilisation of protected areas for the benefit of people in a manner that would

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preserve the ecological character of such areas. A

[4.7]

In terms of s 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 s 24 of the Constitution.

[4.8]

Regarding the management and development of protected B areas, in the event of conflict with any national, provincial or municipal laws, the provisions of NEMPAA shall prevail. [2]

[4.9]

The mining industry in South Africa is well regulated, in particular by the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA).

[4.10]

Various subordinate legislation regulating various aspects of C environmental protection pertaining to mining rights has also been promulgated. [3]

[4.11]

In order for a party to conduct mining activities, it must have obtained the following authorisations —

•

a mining right in terms of s 23(1) of the MPRDA; D

•

the approval of its environmental management programme (EMPR) in terms of s 39 of the MPRDA;

•

an environmental authorisation for listed activities in terms of s 24 of NEMA;

•

a water use licence (WUL) in terms of s 22(1)(b) of the E NWA; and

•

permission for a change of land use of the properties comprising the mining area, from agricultural and/or conservation purposes to mining, in terms of s 26(4) of the Spatial Planning and Land Use Management Act 16 of 2013 F (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 is also required in terms of s 48 of NEMPAA. [4] It is this last-mentioned provision G

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which A primarily forms the subject-matter of the review in question.

[5] The protected area

[5.1]

On 9 December 2011 the late Minister of what was then the B combined Department of Water and Environmental Affairs (the deponent to the first, second and fifth respondents' answering affidavit) published a national list of ecosystems that are threatened and in need of protection. This was done in terms of s 52 of NEMBA. [5] This list included the Wakkerstroom/Luneburg Grasslands.

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[5.2]

Following a prior notice and comment procedure, which A included a full opportunity for stakeholder participation — including Atha, who at that stage held prospecting rights in respect of farms falling within the area covered by the notice — as well as a meeting of and discussion amongst stakeholders, the MEC on 22 January...