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

• Jurisdiction: South Africa
• Citation: 2019 (5) SA 231 (GP)

Mining and Environmental Justice Community Network of South Africa and Others v Minister of Environmental Affairs and Others
2019 (5) SA 231 (GP)

2019 (5) SA p231

Citation	2019 (5) SA 231 (GP)
Case No	50779/2017
Court	Gauteng Division, Pretoria
Judge	Davis J
Heard	November 8, 2018
Judgment	November 8, 2018
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.

Flynote : Sleutelwoorde

Environmental law — Protected areas — Prohibition on mining and prospecting activities in protected areas without ministerial consent — Nature of ministerial discretion — Minister's duties to act in procedurally fair and transparent manner, and to take relevant considerations into account — National Environmental Management: Protected Areas Act 57 of 2003, ss 48(1)(b) F and 48(4); Promotion of Administrative Justice Act 3 of 2000, s 6(2).

Headnote : Kopnota

This case concerned an application for review of a decision by the responsible ministers to grant second respondent mining company (Atha) permission, under s 48(1)(b) of the National Environmental Management: G Protected Areas Act 57 of 2003 (NEMPAA), [*] to conduct mining activities in an area which had been declared a marine protected area under s 28 of NEMPAA. The applicants' grounds of review, all contemplated in s 6(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), encompassed that the ministers —

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had not acted within the ambit of the enabling legislation, in that H permission to mine in a protected area could only be granted in 'exceptional circumstances' (words that the applicants submitted should be read into s 48 of NEMPAA so as to render it functional), and only once all the other required ministerial authorisations/permissions had been obtained;

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had failed to discharge their distinctive duties, in that they relied on I decisions taken by other officials in respect of other authorisations,

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without A 'applying their fresh minds' in exercising their discretion under s 48(1)(b);

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had acted procedurally unfairly, in that the applicants were not granted an opportunity to be heard in respect of Atha's request for s 48(1)(b) permission, and therefore the decisions lacked transparency (which was heightened because ATHA was politically connected — see [2.2] and B [11.1.3]).

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had failed to take relevant considerations into account, inter alia, in that the decisions were taken while statutory appeals against the granting of certain of the other environmental authorisations to Atha were pending; were taken in the absence of a final management plan for the marine protected area; were taken without regard to Atha's social and labour plan C as required by s 48(4) of NEMPAA; [*1] and failed to take international responsibilities relating to the environment into account.

The ministers conceded that PAJA's prescripts for procedurally fair administrative action were not followed but insisted that it had been 'reasonable and justifiable' (as contemplated in PAJA) to depart from those prescripts. With regard to allegations that they failed to take relevant considerations into D account, the ministers conceded that they had overlooked certain reports but contended that these were either immaterial (as with a certain environmental assessment report — see [11.7]) or unnecessary (as with the social labour plan — see [11.6.1]).

Held

As to the interpretation of s 48(1)(b) read with s 48(4) E

Reading the qualification of 'exceptional circumstances' into s 48 was unnecessary and might set the bar higher than the legislative intention. To purposively give effect to the envisaged environment within and manner in which the ministers were obliged to exercise their discretions, s 48(1)(b) and s 48(4) should be interpreted to mean the following: Despite the fact F that a person may have obtained all the necessary authorisations required in terms of all other applicable statutory provisions (see [4.11]) in order to lawfully conduct mining activities on a certain portion of land, should that land fall within a protected environment as contemplated in NEMPAA, then such a person would, in addition, need to obtain the written permission of both the ministers of environmental affairs and mineral resources to do so. In considering a request for such permission, the ministers shall act as G 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 s 2 of NEMA. (See [10.7])

A failure to take South Africa's international responsibilities relating to the environment into account would not satisfy the 'higher level of scrutiny' necessary when considering whether mining activities should be permitted H in a protected environment or not. (See para [11.11].)

As to the ministers' distinctive duties

Relying on decisions taken by other officials, in terms of other provisions, raised the spectre of an impermissible 'tick-box' approach. NEMPAA enjoyed supremacy (ito s 7 thereof) over other conflicting statutory provisions when dealing with protected environments. The ministers were expected to apply I their minds when exercising their s 48(1)(b) discretion. To hold otherwise

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would be contrary to the strict measure of scrutiny required by s 48(1)(b). A The ministers did not appreciate their distinctive duties, and neither did they fulfil them in the manner in which they came to their conclusions. Their decisions should therefore be reviewed and set aside. (See [11.3.2] – [11.3.6].)

As to procedural fairness and transparency

There was no evidence, written or otherwise (apart from the answering affidavit), B indicating that prior to the launching of the review application the departure from PAJA's procedural requirements was motivated, considered or 'concurred' in, or that any of the component specific factors listed in ss 3(4)(b) and 4(4)(b) of PAJA had been considered, as the ministers had been required to do. It was astounding that, in an admittedly novel procedure, the ministers decided that it would be procedurally fair not to hear the C applicants while well knowing that each and every preceding authorisation had been hotly contested. Whatever the case, it resulted in an unjustifiable and unreasonable departure from the PAJA prescripts and led to procedurally unfair administrative action which should be reviewed and set aside on this ground alone. (See [11.2.4] and [11.2.6].)

As to the ministers' failure to take certain relevant considerations into account D

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Failure to consider the management plan: Until the ministers knew how the specific part of the protected environment in which the proposed mining area was situated was going to be managed, or how the management criteria set out in s 40 of NEMPAA was going to be applied, they should E have been precluded from exercising their discretion in terms of s 48(1)(b) of NEMPAA. On the same basis as the ministers would need to know what the position was 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, they could only do so once they were in a position to consider how their consent, if granted, would either fit in with or impact on the management of the specific F environment. (See [11.5.3] and [11.5.5].)

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Failure to consider pending statutory appeals: The permission of the ministers envisaged in s 48 of NEMPAA was 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 G obtained. It must follow that, until all internal remedies had been exhausted in respect of such authorisations, their existence, nature or any conditions attached thereto would not have been determined. It was therefore a requirement that the ministers must wait to exercise their s 48(1)(b) discretion until finalisation of internal appeal procedures. (See [11.10.3] – [11.10.6].)

The ministers' decisions would be reviewed, set aside and remitted (see [11.1].) H

Cases cited

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): referred to

Biowatch Trust v Registrar, Genetic Resources, and Others I 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): referred to

Centre for Child Law v Hoërskool Fochville and Another2016 (2) SA 121 (SCA) ([2015] 4 All SA 571; [2015] ZASCA 155): dictum in para [11] applied

Cool Ideas 1186 CC v Hubbard and Another2014 (4) SA 474 (CC) (2014 (8) BCLR 869; [2014] ZACC 16): referred to J

2019 (5) SA p234

Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd A 2007 (6) SA 199 (CC) (2007 (10) BCLR 1027; [2007] ZACC 12): referred to

Executive Officer, Financial Services Board v Dynamic Wealth Ltd and Others2012 (1) SA 453 (SCA) ([2012] 1 All SA 135; [2011] ZASCA 193): referred to

Fuel Retailers Association of Southern Africa v Director-General: B Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province, and Others2007 (6) SA 4 (CC) (2007 (10) BCLR 1059; [2007] ZACC 13): applied

Gongqose and Others v Minister of Agriculture and Others2018 (5) SA 104 (SCA): referred to

IEC v Langeberg Municipality C 2001 (3) SA 925 (CC) (2001 (9) BCLR 883; [2001] ZACC 23): referred to

Masetlha v President of the Republic of South Africa and Another2008 (1) SA 566 (CC) (2008 (1) BCLR 1; [2007] ZACC 20): dictum in para [192] applied

MEC, Department of Agriculture,...